WINGROVE v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARCUS HOLDEN WINGROVE, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-1349

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 28th day of September, 2023, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., finds that the Commissioner’s

findings are supported by substantial evidence and, accordingly, affirms.1 See 42 U.S.C. §

405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (2019); Jesurum v. Secretary of U.S. Dep’t

of Health & Human Servs, 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d

1211, 1213 (3d Cir. 1988)). See also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990)

(if supported by substantial evidence, the Commissioner’s decision must be affirmed, as a federal

1 Defendant asks the Court to tax costs against Plaintiff but does not advance an argument

in support of that request. Accordingly, the Court will award no costs. See Pa. Dep’t of Pub.

Welfare v. U.S. Dep’t of Health & Hum. Servs., 101 F.3d 939, 945 (3d Cir. 1996).

court may neither reweigh the evidence, nor reverse, merely because it would have decided the

claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).2

2 Plaintiff has raised two primary arguments as to why he believes the Administrative Law

Judge (“ALJ”) erred in finding that he is not disabled. First, he contends that the ALJ’s residual

functional capacity (“RFC”) assessment is not supported by substantial evidence, in large part

because she improperly considered the medical opinion evidence. Second, he asserts that the

ALJ’s credibility determination is not supported by substantial evidence. The Court disagrees on

both counts and finds that substantial evidence supports the ALJ’s decision.

In arguing that the ALJ’s RFC determinations lack sufficient record support, Plaintiff

notes that the ALJ based these finding largely on the opinions of state agency medical

consultants Stephanie Prosperi, M.D. (R. 85-89), and John Gerome Bertolino, M.D. (R. 101-05),

and asserts that such reliance was inconsistent with the Social Security Administration’s

regulations and the record evidence. He argues first that, pursuant to 20 C.F.R. §

404.1520b(c)(2), “[f]indings made by a State agency disability examiner made at a previous

level of adjudication about a medical issue” – which is how he defines the opinions of Drs.

Prosperi and Bertolino – are classified as evidence that is “inherently neither valuable nor

persuasive,” and that the ALJ was thus wrong to have relied on them. (Doc. No. 14, p.3). He

contends that, in any event, because the state agency medical consultants did not have access to

later evidence, their opinions are stale, as that evidence showed a worsening of his condition.

The Court finds no merit in either position.

Plaintiff is correct, of course, that for cases such as this one, filed on or after March 27,

2017, the amended regulations, including 20 C.F.R. §§ 404.1520b and 404.1520c, apply to an

ALJ’s consideration of medical opinion evidence. He is incorrect, however, that the new

amendments invalidate the opinions of state agency medical consultants. Section 404.1520b(c)(2),

to which Plaintiff cites, applies to findings made by “a State agency disability examiner” and does,

in fact, characterize such findings as inherently neither valuable nor persuasive. However, “[s]tate

agency medical and psychological consultants are different from state agency disability

examiners.” Rodney L. B. v. Kijakazi, No. CV 21-1162-JWL, 2022 WL 4465072, at *8 (D. Kan.

Sept. 26, 2022); 20 C.F.R. § 404.1615. As the court explained in Rodney L. B., a disability

examiner may make a disability decision without consulting with a medical or psychological

consultant only under certain circumstances. State agency medical or psychological consultants,

on the other hand, make findings known as “prior administrative medical findings,” i.e. findings

regarding the existence and severity of impairments or symptoms, whether the claimant’s

impairments meet or medically equal a listing, the claimant’s RFC, whether the duration

requirement is met, and how failure to follow prescribed treatment or drug addiction and

alcoholism relate to the claim. 2022 WL 4465072, at *8; 20 C.F.R. § 404.1513(a)(5). Such prior

administrative medical findings are akin to medical opinions, and ALJs not only can but must

evaluate them as such. See 20 C.F.R. § 404.1520c. There is no question here that Drs. Prosperi

and Bertolino were functioning as state agency medical consultants (which is how the ALJ

identified them) and that the findings that the ALJ found persuasive constituted prior

administrative medical findings. There was nothing improper per se, therefore, with the ALJ

finding those opinions to be persuasive.

This is consistent with probably the most notable change brought on by the 2017

amendments – the elimination of the “treating physician rule.” Compare 20 C.F.R. §

404.1527(c)(2) (applying to cases prior to the amendment of the regulations) with 20 C.F.R. §

404.1520c(a) (applying to later cases). See also 82 Fed. Reg. 5844-01, at 5853 (Jan. 18, 2017).

While the medical source’s treating relationship with the claimant is still a valid consideration,

“the two most important factors for determining the persuasiveness of medical opinions are

consistency and supportability.” 82 Fed. Reg. at 5853. See also §§ 404.1520c(b) and (c).

Therefore, the fact that the state agency consultants did not treat or examine Plaintiff does not

invalidate their opinions and does not necessarily pertain to the “two most important factors” of

consistency and supportability. Indeed, the Court notes that even under the regulations

governing cases filed prior to March 27, 2017, while an ALJ was required to consider the

treating relationship between a claimant and an opining doctor, when the medical opinion of a

treating source conflicted with that of a non-treating, or even a non-examining physician, “the

ALJ may choose whom to credit.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See also

Dula v. Barnhart, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005); Salerno v. Comm’r of Soc. Sec.,

152 Fed. Appx. 208 (3d Cir. 2005).

While there is nothing inherently improper in finding a state agency medical consultant’s

opinion to be persuasive, that finding must still, of course, be grounded in substantial evidence.

Plaintiff argues that is not the case here because the opinions of the state agency medical

consultants are inconsistent with and not supported by evidence from after the time they

reviewed the record. It is well established that the fact that the opinion of a state agency medical

consultant or consultative examiner was rendered before other evidence became available does

not mean the ALJ was prohibited from finding it to be persuasive. See Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The Social Security regulations impose no limit on

how much time may pass between a report and the ALJ's decision in reliance on it.”). That said,

it is also true that where there is a substantial amount of new evidence between the date on which

an opinion upon which an ALJ relies and the date on which the ALJ renders his or her decision,

remand may be warranted. See id.; Cadillac v. Barnhart, 84 Fed. Appx. 163, 168-69 (3d Cir.

2003); Grimes v. Colvin, Civ. No. 15-133E, 2016 WL 246963, at *2 (W.D. Pa. Jan. 21, 2016).

Although Plaintiff believes that to be the case here, the Court finds the ALJ’s finding to the

contrary to have adequate record support.

Dr. Prosperi’s opinion was issued on February 11, 2020, and Dr. Bertolino’s on August

18, 2020. They had evidence, then, from well after Plaintiff’s June 5, 2019 back surgery, but not

from later events set forth in the record. The ALJ, though, did have access to the entire record in

rendering her decision, including evidence from after the consultants reviewed the record.

Indeed, she discussed this evidence at great length, beginning with the April 2017 car accident

that was the catalyst for the events here and continuing through Plaintiff’s treatment after a

second reported car accident in 2021. She outlined the evidence after the first accident up to the

point of Plaintiff’s June 5 back surgery. She discussed the surgery itself and Plaintiff’s

significant improvement following the surgery. She also acknowledged that, some time

afterward, Plaintiff began to complain of worsening back pain on his left side, fatigue, and

numbness, but pointed out that the objective medical findings showed little by way of deficits in

functioning during this period. She addressed Plaintiff’s second car accident and specifically

noted that several of his clinical findings of limited mobility and strength were from shortly after

that event. She also noted that an MRI taken after that second accident continued to show only

mild issues. (R. 21-23). The ALJ considered all of this in assessing the medical opinions, all but

one of which were from before the second car accident.

The Court finds the ALJ’s characterization of the evidence to be fair. As the ALJ

acknowledged, Plaintiff had some complaints of worsening symptoms some months after his

surgery, but these complaints were somewhat vague, and as the ALJ found, the objective medical

evidence showed little change. As for the 2021 car accident, the Court notes that it would seem

strange for Plaintiff to characterize this as some kind of major change that would invalidate the

earlier opinions considering he did not even mention the second accident at the administrative

hearing in this matter. In fact, it is mentioned largely in passing in the medical records, and any

records there might be pertaining to treatment Plaintiff received as a result of the accident are not

included in the record. Moreover, as discussed above, medical imagining evidence from after

that accident does not support the claim that this event substantially changed Plaintiff’s

condition.

Plaintiff conversely argues that the ALJ improperly rejected the opinions offered by his

treating medical professionals, specifically the December 6, 2019 opinion of Mark Kerestan, PT,

PA-C, CEAS (R. 638-39), the January 8, 2020 opinion of Frank Artuso, M.D. (R. 774-75), and

the April 2, 2021 opinion of Jon Luker, C.R.N.P. (R. 992-93). However, the ALJ discussed each

of these opinions at length and cited to specific record evidence to support her evaluation. (R.

23-27). Plaintiff naturally believes that the evidence leads to a different conclusion, but if

supported by substantial evidence, the Commissioner’s decision must be affirmed, as a federal

court may neither reweigh the evidence, nor reverse, merely because it would have decided the

claim differently. See Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C.

§ 405(g)); Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986); Berry, 738 F.

Supp. at 944 (citing Cotter, 642 F.2d at 705). Moreover, “[t]he presence of evidence in the

record that supports a contrary conclusion does not undermine the [ALJ’s] decision so long as

the record provides substantial support for that decision.” Malloy v. Comm’r of Soc. Sec., 306

Fed. Appx. 761, 764 (3d Cir. 2009). Here, the evidence was sufficient to support the ALJ’s

findings. The Court also notes that the opinions of Mr. Kerestan and Dr. Artuso were offered

prior to the state agency medical consultants’ opinions. In addition, in regard to NP Luker’s

opinion, the ALJ noted and relied upon the fact that he merely completed a check-box form,

which the Third Circuit Court of Appeals has characterized as being of limited probative value.

See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a

physician’s obligation is only to check a box or fill in a blank are weak evidence at best.”).

Plaintiff also takes issue with the ALJ’s statement that the post operation restrictions

imposed by his surgeon, Kevin Walsh, M.D., after his June 2019 surgery were temporary in

nature. He labels this statement as a speculative inference and argues that nothing shows that Dr.

Walsh’s restrictions were not meant to be permanent. However, a review of those restrictions

tells a different story. First, the instructions were specifically labeled as “only a brief guide for

your recovery period until you return for your six week post-operative appointment.” (R. 532).

Moreover, several of the instructions, including those for lifting, driving, and sitting/changing

position, had stated end points of either a specific duration or until Plaintiff’s follow-up

appointment. (R. 532-34). These restrictions were not discussed at Plaintiff’s post operation

follow-up visit on July 25, 2019, and in fact, Dr. Walsh instead indicated that Plaintiff “has done

very well since his surgery and reports complete resolution of his pre operative complaints.” (R.

491). The ALJ did not speculate, therefore, about whether Dr. Walsh’s post operation

instructions were temporary in nature, but rather relied on a plain and logical reading of the

language itself. In any event, the ALJ considered these temporary restrictions in light of the

record as a whole in finding them unpersuasive. (R. 24).

Plaintiff’s second major argument is that substantial evidence does not support the ALJ’s

credibility determination. The Court first notes that although an ALJ’s consideration of a

claimant’s testimony is still often referred to as a “credibility” determination, that term has been

eliminated from the Commissioner’s policy concerning “subjective symptom evaluation.”

Schneider v. Berryhill, No. CV 17-1299, 2019 WL 698471, at *2 (W.D. Pa. Feb. 20, 2019)

(citing SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016)) (explaining SSR 16-3p

“clarif[ied] that the subjective symptom evaluation is not an examination of an individual’s

character”). The manner of the evaluation, though, remains unchanged in most ways, and many

concepts that applied when the evaluation was considered to be one of credibility continue to

apply now.

Plaintiff’s main contention is that the ALJ improperly considered his ability to engage in

activities of daily living, claiming that the ALJ relied on his ability to engage in “sporadic and

transitory activities” as evidence of an ability to engage in work-related activity. (Doc. No. 14,

p. 13-14). Similar claims arise in a number of social security disability cases and raise a similar

dilemma. There is, of course, nothing inappropriate with an ALJ considering a claimant’s

activities of daily living in evaluating the severity of the claimant’s symptoms and limitations. In

fact, ALJs are required to do so. See 20 C.F.R. § 404.1529(c)(3)(i); Wright v. Astrue, No. Civ.

10-942, 2011 WL 4079067, at *3 (W.D. Pa. Sept. 13, 2011). However, as Plaintiff points out, in

performing this analysis, an ALJ cannot use evidence of sporadic and transitory activities to

demonstrate an ability to engage continuously in substantial gainful activity. See Fargnoli v.

Astrue, 247 F.3d 34, 40 n.5 (3d Cir. 2001). The question here, as in many cases, is whether the

ALJ’s proper consideration of Plaintiff’s daily activities veered into an improper reliance on

sporadic and transitory activities. Here, it did not.

The activities at issue do not appear to be sporadic in nature, but rather involve the

performance of daily tasks requiring a certain amount of physical exertion, such as cooking,

cleaning, and caring for children on a regular basis. (R. 21). While these activities may not

alone support a finding of non-disability, it is important to note that the ALJ did not rely solely on

any one factor in evaluating Plaintiff’s testimony. As discussed above, she also extensively

discussed the objective medical evidence, such as medical imagining date and clinical findings, in

considering Plaintiff’s testimony. It is also important to remember that, while a claimant’s testimony

regarding his or her subjective complaints is certainly relevant, an ALJ is not under an obligation to

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (Doc. No. 13) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 17) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

simply accept what the claimant said without question. See 20 C.F.R. § 404.1529(c)(4); Chandler,

667 F.3d at 363. Moreover, where an ALJ has articulated reasons supporting a “credibility”

determination, that determination is afforded significant deference. See Horodenski v. Comm’r of

Soc. Sec., 215 Fed. Appx. 183, 188-89 (3d Cir. 2007); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.

2003). The Court finds that such deference is warranted in this case. See also Paula R. v. Comm’r of

Soc. Sec., No. CV 20-18808 (RBK), 2022 WL 950242, at *5 (D.N.J. Mar. 30, 2022) (“Credibility

determinations are ‘virtually unreviewable on appeal.’” (quoting Hoyman v. Colvin, 606 Fed. Appx.

678, 681 (3d Cir. 2015))).

In making her decision here the ALJ relied on the objective medical evidence, Plaintiff’s

testimony and statements, and the medical opinion evidence. All of this constitutes substantial

evidence in support of the ALJ’s findings, especially in light of the United States Supreme

Court’s reminder that the threshold for meeting the substantial evidence standard “is not high,”

Biestek, 139 S. Ct. at 1154. Accordingly, for the reasons set forth herein, the Court affirms.