# HENNING v. KIJAKAZI

> District Court, W.D. Pennsylvania · September 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10419080

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419080

## How later opinions describe it (automated extraction)

- finding “substantial evidence support[ing] the ALJ’s determination to give little weight” to a nurse practitioner’s opinion
- noting that “non-medical evidence is an acceptable reason to assign less weight” to a medical opinion

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN HENNING, ) Case No. 3:20-cv-188
)
Plaintiff, ) JUDGE KIM R. GIBSON
)
Vv. )
)
KILOLO KIJAKAZI, )
)
Defendant. )
MEMORANDUM OPINION
Title IL of the Social Security Act entitles insured persons with disabilities to receive

_ disability insurance benefits (“DIB”). See 42 U.S.C. § 423. The present action stems from
Administrative Law Judge John A. Fraser’s (“the ALJ”) denial of an application for DIB by
plaintiff Susan Henning (“Ms. Henning”), (ECF No. 18-2 at 12-21), which Ms. Henning has
appealed to this Court. (ECF No. 1). Ms. Henning has moved for summary judgment on this
appeal, seeking reversal of her application’s denial. (ECF No. 31). The Acting Commissioner of
the Social Security Administration (“SSA”), Kilolo Kijakazi (“Commissioner”), opposes Ms.
Henning’s appeal on behalf of the SSA and has also moved for summary judgment. (ECF No.
33).! Reviewing the ALJ’s decision under 42 U.S.C. § 405(g), the Court AFFIRMS that decision,
DENIES Ms. Henning’s motion for summary judgment, and GRANTS the Commissioner’s
motion for summary judgment.
I. BACKGROUND
1 The ALJ denied Ms. Henning’s DIB application on behalf of the Commissioner, but the Commissioner is
also a party seeking to defend the ALJ’s (and her own) denial of Ms. Henning’s application on behalf of the
SSA. The Court will attempt to minimize any confusion stemming from the Commissioner’s dual role by
identifying the ALJ as the adjudicator whose findings the Court is currently reviewing, and the
Commissioner as the litigant who is defending those findings on appeal.

On August 3, 2018, Ms. Henning applied for DIB under Title II of the Social Security Act,
claiming a disability onset date of August 26, 2006. (ECF No. 18-5 at 4-13). On October 16, 2018,
an SSA Disability Examiner found that Ms. Henning was not disabled and denied her application.
(ECF No. 18-3 at 14). On December 18, 2018, Ms. Henning submitted a Disability Appeal,
requesting a hearing before an Administrative Law Judge. (ECF No. 18-4 at 9). On February 6,
2020, the ALJ held a hearing on Ms. Henning’s appeal. (ECF No. 18-2 at 41-86). On March 2,
2020, the ALJ issued a decision finding that Ms. Henning was not disabled. (Id. at 12-21). On
March 31, 2020, Ms. Henning submitted a request for review of the ALJ’s decision by the SSA
Appeals Council. (ECF No. 18-4 at 48-50). The Appeals Council denied this request for review

on July 15, 2020. (ECF No. 18-2 at 2-8).
On September 18, 2020, Ms. Henning filed a complaint with this Court, appealing the
denial of her DIB application under 42 U.S.C. § 405(g). (ECF No. 3). Both parties have filed
motions for summary judgment and supporting briefs. (ECF Nos. 31-34). The parties agree that
this case turns ona single question: whether substantial evidence supports the ALJ’s finding that
Ms. Henning failed to meet her burden of showing that her impairments were per se disabling.
(ECF No. 32 at 7; ECF No. 34 at 3).
II. LEGAL STANDARD
When reviewing an ALJ's denial of DIB, the Court must base its review on the record of
the administrative proceedings and the pleadings of the parties. 42 U.S.C. § 405(g). The Court’s
review of legal issues is plenary, but its review of factual findings is limited. Schaudeck v. Comm'r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). The Court must determine whether the ALJ applied
the proper legal standards in making his decision, and whether the record contains substantial

evidence supporting the AL]’s factual findings. See Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001).
With respect to the Court’s review of legal issues, the Court must “review the □□□□□
application of the law de novo.” Poulos v. Comm’ of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007). The

proper legal standard for assessing disability is a five-step sequential evaluation process that
considers whether a claimant: (1) is working, (2) has a severe impairment, (3) has an impairment
that meets or medically equals the requirements of an impairment listed in the regulations and is
considered per se disabling, (4) can return to his past relevant work, and (5) if not, whether he

can perform other work. See 20 C.F.R. § 404.1520(a)(4). See also Zirnsak v. Colvin, 777 F.3d 607,
611-12 (3d Cir. 2014).
With respect to the Court’s review of factual findings, the claimant must show at Steps
One through Four that the ALJ’s decision was not based on “substantial evidence.” 42 U.S.C. §
405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).2 “Substantial evidence” is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); Jesurum v. Sec’y of the U.S. Dep't of
Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). This evidentiary burden is more than a

mere scintilla but less than a preponderance of the evidence. Brown v. Bowen, 845 F.2d 1211, 1213
(3d Cir. 1988). If the ALJ’s factual findings were reached according to the correct legal standards
and are supported by substantial evidence, the Court is bound by them, “even if [it] would have
decided the factual inquiry differently.” Fargnoli, 247 F.3d at 38.

2 The burden of proof shifts to the Commissioner at Step Five. Hess 0. Comm’r of Soc. Sec., 931 F.3d 198, 201
(Gd Cir. 2019).

DISCUSSION
As noted, the sole dispute between the parties is whether the AL)’s finding at Step Three
of his disability analysis that none of Ms. Henning’s disabilities were per se disabling is supported
by substantial evidence. An ALJ considers at Step Three the “medical severity” of a claimant's
impairments by assessing whether those impairments meet or equal the requirements of an
impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Appendix 1”). 20 C.F.R.
§ 404.1520(a)(4)(iii). If the claimant’s impairments meet or equal the requirements of a listed
impairment, “then [the claimant] is per se disabled and no further analysis is necessary.” Plummer

v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) (italics original). The claimant “bears the burden of
presenting ‘medical findings equivalent in severity to all the criteria for the one most similar
impairment.” Lent v. Berryhill, No. 3:18-CV-1533, 2019 WL 1896547, at *1 (M.D. Pa. Apr. 29, 2019)
(citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990)) (emphasis original); 20 C.F.R. § 416.920(d).
Having reviewed the relevant materials—i.e., the evidentiary record, the ALJ's decision,
the parties’ motions for summary judgment, and their briefs in support thereof —the Court finds
substantial evidence supporting the AL]’s factual findings at Step Three. The ALJ found that the
severity of Ms. Henning’s mental impairments did not meet or medically equal the “paragraph
B” criteria of listings 12.04, 12.06, 12.08, and 12.15. (ECF No. 18-2 at 15). To satisfy the paragraph
B criteria, the mental impairments must result in one “extreme” limitation or two “marked”
limitations in a broad area of functioning. Appendix 1. An extreme limitation is the inability to
function independently, appropriately, or effectively, and on a sustained basis; a marked
limitation is a seriously limited ability to do so. Id.

Ms. Henning argues that the evidence that the ALJ cites as the basis for his factual finding
at Step Three “is not substantial evidence, particularly as it is in conflict with the medical evidence
of [her] mental impairments.” (ECF No. 32 at 9). She largely bases this argument on the
assessment of Deanna Rezk, CRNP (Certified Registered Nurse Practitioner), who was Ms.
Henning’s former treatment provider at the Community Guidance Center. (Id. at 11-13). In this
assessment, Nurse Rezk opined that Ms. Henning has extreme limitations in virtually every
work-related capacity. (ECF No. 18-10 at 92-93). The ALJ found that this assessment was “not
persuasive as [it is] not supported and consistent with the overall evidence of record.” (ECF No.
18-2 at 19) (citing ECF Nos. 18-6 at 28-45, 18-8 at 92-93, 18-10 at 92-94). He elaborated:
The extreme limitations opined by [this source are] inconsistent with the
claimant’s treatment history and mental status examination findings. For
example, the record showed improvement in the claimant’s symptoms with
medication. The claimant testified that she sees a nurse practitioner at Nulton for
medication management but no longer sees a therapist. She has had no inpatient
psychiatric hospitalizations.
(Id.) (citing ECF Nos. 18-9 at 10-26, 18-10 at 2-91).
Indeed, the documents relied upon by the ALJ indicate that Ms. Henning’s impairments,
while existent, do not necessarily have the intensity and persistence that Nurse Rezk’s assessment
suggests. Ms. Henning offered responses to a certain questionnaire that evidence a capacity to
handle basic responsibilities reliably and independently. (See ECF No. 18-6 at 29-34, 38-39).
Specifically, Ms. Henning reported the following capacities: she can clean herself, do laundry,
prepare meals, and perform other household tasks. (Id. at 30-31). She feeds and cleans after her
pet animals. (Id. at 30). She can perform minor repairs around her home and does some lawn
mowing. (Id. at 31). She regularly goes grocery shopping and is able to pay bills, count change,

handle a savings account, and use a checkbook. (Id. at 32). Ms. Henning can also follow spoken
instructions with a “medium” degree of success, and she can follow written instructions “pretty
well” when the instructions relate to matters of interest. (Id. at 34). Elsewhere, she “reported
babysitting and enjoying [that] work ‘for the most part[.]’” (ECF No. 18-10 at 69).
Additionally, treatment records from the Nulton Diagnostic & Treatment Center
(“Nulton”) indicate that Ms. Henning’s mental health improved in response to medication. (See
ECF No. 18-10 at 83) (Ms. Henning “knows she is better on [medication]”); (id.) (reporting that
“medication is working” but “just not enough”). Her medication noticeably reduced the feelings
of irritability and aggression that Ms. Henning identifies as the greatest obstacles to her
employability. (See id. at 69) (reporting “feeling more ‘calm’ and not so angry all the time” after
going on medication). Indeed, throughout her treatment with Nulton in 2019, Ms. Henning was
consistently described by her treatment providers as attentive, friendly, and cooperative. (See id.
at 8, 21, 30, 60, 70, 75, 85).
The thrust of Ms. Henning’s argument is that the evidence detailed above is non-medical
and therefore cannot serve as independent bases for the ALJ to discount the medical evidence that
is Nurse Rezk’s assessment. (See ECF No. 32 at 15). However, the distinction between medical
and non-medical evidence is irrelevant here. When the opinions of nurse practitioners are offered
to show “the severity of [an] impairment[] and how it affects [a claimant's] ability to work[,]” 20
C.E.R. § 404.1513(d), an ALJ must evaluate such evidence by considering, inter alia, how
consistent the evidence is “with the record as a whole[,]” id. § 404.1527(c)(4), as well as “any
factors ... which tend to support or contradict the medical opinion.” Id. § 404.1527(c)(6). The
evidence that ALJs can consider when reviewing these factors includes non-medical evidence.

See, e.g., Durden v. Colvin, 191 F. Supp. 3d 429, 457 (M.D. Pa. 2016) (noting that “non-medical
evidence is an acceptable reason to assign less weight” to a medical opinion).
The ALJ cited to both the Nulton records and Ms. Henning’s function report as
explanations for his decision to discount Nurse Rezk’s assessment. (See ECF No. 18-2 at 19). This
evidence was part of “the record as a whole” and contradicted the extreme severity that Nurse
Rezk ascribed to Ms. Henning’s impairments. 20 C.F.R. § 404.1527(c). Even assuming that this
evidence is non-medical in the relevant sense, it can nonetheless support an ALJ’s decision to
discount a nurse practitioner’s opinion regarding the severity of a claimant’s impairments, as well

as her opinion regarding the claimant's ability to work. See Rickabaugh v. Berryhill, 271 F. Supp.
3d 721, 736 (D. Del. 2017) (finding “substantial evidence support[ing] the ALJ’s determination to
give little weight” to a nurse practitioner’s opinion).
The Court is satisfied that the evidence cited by the ALJ would allow “a reasonable mind
[to] accept [it] as adequate to support a conclusion.” Richardson, 402 U.S. at 401. Specifically, this
evidence is adequate to support the ALJ’s conclusion that Ms. Henning “does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in [Appendix 1,]” (ECF No. 18-2 at 15), because a reasonable mind could
accept it as adequate to support the conclusion that Ms. Henning has at least a moderate ability
to “function independently, appropriately, or effectively, and on a sustained basis[.]” Appendix
1. The Court finds that the ALJ’s factual findings at Step Three were supported by substantial
evidence, and it accordingly grants the Commissioner’s motion for summary judgment.
An appropriate order follows.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN HENNING, ) Case No. 3:20-cv-188
)
Plaintiff, ) JUDGE KIM R. GIBSON
)
v. )
)
KILOLO KIJAKAZL )
)
Defendant. )

i ORDER
ay oT
AND NOW, this oH day of August, 2023, upon consideration of plaintiff Susan
Henning’s request for judicial review pursuant to 42 U.S.C. § 405(g), IT IS HEREBY ORDERED
that the decision of the ALJ is AFFIRMED.
IT IS FURTHER ORDERED that Ms. Henning’s motion for summary judgment at ECF
No. 31 is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion for summary judgment at
ECF No. 33 is GRANTED.

BY THE COURT:
SL A geen \ nm

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419080. Public record. Not legal advice.