The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES W. OWENS, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 22-845
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )
O R D E R
AND NOW, this 27th 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 Unfortunately, this case, originally filed in 2013, has undergone a number of remands and
therefore has gone ten years without a resolution. Fortunately, all of this back-and-forth resulted
in a particularly thorough and well-reasoned decision by the Administrative Law Judge (“ALJ”)
that Plaintiff is not disabled. Plaintiff takes issue with much of the ALJ’s findings, but
ultimately, the ALJ properly applied the law and relied upon substantial evidence in making her
findings. Hence, the Court will affirm.
The ALJ’s decision is 27 pages long and single-spaced. It comprehensively sets forth the
basis for the ALJ’s findings at each step of the sequential process, including the formulation of
Plaintiff’s residual functional capacity (“RFC”). To the extent Plaintiff is merely suggesting that
the evidence in the record leads to a different conclusion, the Court has little more to say other
than to refer to the ALJ’s decision. Indeed, 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, more
than substantial evidence supports the ALJ’s determination, as she herself discussed at length.
Plaintiff specifically challenges the ALJ’s analysis of his migraine headaches, sleep
apnea, obesity, use of an assistive device to walk, and mental impairments. The ALJ addressed
each of these issues at length in her decision, citing to medical imaging evidence, clinical
findings generally showing good strength, range of motion, and reflexes, Plaintiff’s conservative
treatment history, his improvement with medication, Plaintiff’s reports of symptoms to health
care providers, his activities of daily living, and a number of supporting medical opinions. The
ALJ fairly characterized the evidence and offered a balanced review of the record; the Court
need not recount the plethora of evidence to which the ALJ cited. The Court further notes that
the RFC did include restrictions specifically tailored to many of Plaintiff’s conditions, including
his migraines, obesity, and mental impairments.
Further, although Plaintiff suggests that the ALJ’s consideration of his ability to engage in
activities of daily living – which he labels as sporadic and transitory – was improper, there is
nothing inappropriate per se 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). It is true that 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), but that is not what happened here, as
the ALJ herself adequately explained. The ALJ similarly was correct in considering the objective
medical evidence, Plaintiff’s improvement with medication, his reports of symptoms, and his
conservative course of treatment in rendering her decision. See 20 C.F.R. § 404.1529(c)(2) and
(3); SSR 16-3p, 2016 WL 1119029 (S.S.A. 2016); Garrett v. Comm’r of Soc. Sec., 274 Fed. Appx.
159, 164 (3d Cir. 2008). The ALJ even acknowledged that “headaches do not necessarily present
with objective findings” in conducting her review of the evidence. (R. 906).
Plaintiff next argues that the ALJ erred in finding that he did not meet or medically equal
Listings 12.04, 12.08, and/or 12.15, 20 C.F.R. Part 404, Subpart P, Appendix 1, at Step Three of
the sequential analysis because she did not give enough weight to the opinions of consultative
examiners John Mills, Ph.D. (R. 621-28), and Vito Dongiovanni, Psy.D. (R. 742-53). The Court
disagrees and finds the ALJ’s explanation for the weight given to all the medical opinions,
including those of Drs. Mills and Dongiovanni, to be sufficient. Because Plaintiff’s claim was
filed before March 27, 2017, the ALJ properly applied 20 C.F.R. § 404.1527 in evaluating the
opinion evidence. Again, the ALJ’s discussion was thorough and well-supported, and she
sufficiently explained why she gave less weight to the statements of Drs. Mills and Dongiovanni
that Plaintiff had marked limitations in certain mental areas of functioning such as carrying out
detailed instructions, making judgements, responding to work pressure and changes, and
interacting with others. (R. 913-14, 627, 752). In any event, the Court notes that the RFC, as
crafted by the ALJ, generally took these marked limitations into consideration, as Plaintiff was
limited to jobs involving no more than understanding, remembering, and carrying out simple
instructions and making simple work-related decisions with no fast-paced or quota-based work
activity, no interaction with the public and co-workers, and only occasional interaction with
supervisors. (R. 901).
The Court further notes that the ALJ also relied on other medical opinions in making her
findings, including those of state reviewing agents Sandra Banks, Ph.D. (R. 64-69), and Arlene
Rattan, Ph.D. (R. 80-86), which were consistent with the RFC as crafted by the ALJ. Dr. Banks
did not suggest any marked limitations, and Dr. Rattan found Plaintiff only to be markedly
limited in his ability to interact appropriately with the general public, which the ALJ accounted
for in the RFC. (R. 85, 901). The ALJ gave these opinions great weight and provided an
adequate explanation as to why. (R. 915). Under Section 404.1527, while an ALJ is required to
consider the treating relationship between a claimant and an opining doctor, when the medical
opinion of a treating source conflicts 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). In certain cases,
the ALJ is justified in giving more weight to the non-examining professional’s opinion. See
Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d Cir. 2005). Neither Dr. Mills nor Dr.
Dongiovanni qualify as a treating physician in any event, so it was no error for the ALJ to give
more weight to the state reviewing agents’ opinions.
Plaintiff also argues that the ALJ gave insufficient consideration to his subjective
complaints. However, while a claimant’s testimony regarding his subjective complaints is
certainly relevant, an ALJ is not under an obligation to simply accept what the claimant said
without question. See 20 C.F.R. § 404.1529(c)(4); Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 363 (3d Cir. 2011). In fact, as a general matter, when 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). In any event, as with the rest of her decision, the
ALJ comprehensively explained why she found Plaintiff’s testimony about the limitations caused
by his impairments to not be fully supported by the record.
As noted, Plaintiff challenges much of the ALJ’s decision; to the extent he has raised any
additional arguments asking the Court to re-weigh the evidence and come to a different
conclusion, the Court reiterates that it cannot do. Plaintiff does raise one last argument, though,
warranting further discussion. The Department of Veterans Affairs certified Plaintiff as an
honorably discharged veteran, permanently disabled and entitled to disability compensation at
the 100 percent rate, effective June 16, 2010. (R. 1375-76). Plaintiff alleges that the ALJ
considered the VA’s decision under the improper version of 20 C.F.R. § 404.1504 and that she
erred in failing to give it more weight. The Court disagrees on both counts.
First, the ALJ did, in fact, apply the version of Section 404.1504 applying to claims filed
before March 27, 2017, which provides:
A decision by any nongovernmental agency or any other
governmental agency about whether you are disabled or blind is
based on its rules and is not our decision about whether you are
disabled or blind. We must make a disability or blindness
determination based on social security law. Therefore, a
determination made by another agency that you are disabled or
blind is not binding on us.
The newer version of Section 404.1504, which applies to later-filed claims, on the other hand,
provides:
Other governmental agencies and nongovernmental entities – such
as the Department of Veterans Affairs, the Department of Defense,
the Department of Labor, the Office of Personnel Management,
State agencies, and private insurers – make disability, blindness,
employability, Medicaid, workers’ compensation, and other
benefits decisions for their own programs using their own rules.
Because a decision by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind,
employable, or entitled to any benefits is based on its rules, it is not
binding on us and is not our decision about whether you are
disabled or blind under our rules. Therefore, in claims filed (see §
404.614) on or after March 27, 2017, we will not provide any
analysis in our determination or decision about a decision made by
any other governmental agency or a nongovernmental entity about
whether you are disabled, blind, employable, or entitled to any
benefits. However, we will consider all of the supporting evidence
underlying the other governmental agency or nongovernmental
entity's decision that we receive as evidence in your claim in
accordance with § 404.1513(a)(1) through (4).
Both versions make clear that the Commissioner is not bound by the disability finding of another
agency, such as the VA, as such decisions are made under different standards. The newer
version, however, says that an ALJ need not discuss the disability decision itself at all – only that
he or she must consider the evidence supporting that decision. Here, the ALJ clearly considered
the VA’s decision, consistent with the requirements of the old version of 404.1504.
Moreover, the ALJ’s decision to give the VA’s decision little weight is supported by
substantial evidence. While the ALJ cannot ignore the VA’s disability determination, see
Pulaski v. Finch, 415 F.2d 613, 613 (3d Cir. 1969); Kane v. Heckler, 776 F.2d 1130, 1135 (3d
Cir. 1985), as discussed above, disability determinations made by other agencies are not binding
on the Social Security Administration. See 20 C.F.R. § 404.1504. Therefore, even “a VA rating
of total and permanent disability is not legally binding on the Commissioner because the criteria
applied by the two agencies are different but it is evidence that is entitled to a certain amount of
weight and must be considered by the ALJ.” Solomon v. Saul, No. CV 18-1443, 2020 WL
475496, at *2 (W.D. Pa. Jan. 29, 2020) (citing Malcom v. Barnhart, 448 F. Supp.2d 595 (D. Del.
2006) (internal citations omitted). “Thus, an ALJ may give less weight to a VA disability rating
so long as the ALJ sets forth specific and valid reasons for doing so and that those reasons are
supported by substantial evidence of record.” Id. (citing Chambliss v. Massanari, 269 F.3d 520,
522 (5th Cir. 2001)). Accordingly, while an ALJ cannot reject another agency’s disability
decision merely because it employs different standards, it can reject it if it is inconsistent with
the application of the facts under Social Security law.
Here, the ALJ more than adequately explained why the facts supported a different finding
in this Social Security disability case than had been made in the VA case. While acknowledging
that the VA found Plaintiff to be 100 per cent disabled, she explained that this decision was not
consistent with the objective medical findings, treatment history, and reports of symptoms. She
detailed medical imaging data and examination findings demonstrating generally good strength,
range of motion, and gait and no motor or sensory deficits. (R. 911). She did, in fact, exactly
what she was required to do under Section 404.1502 – consider the VA’s decision in light of the
evidence in this case.
The Court emphasizes that Plaintiff’s date last insured was September 30, 2013. While
the ALJ acknowledged that Plaintiff’s conditions may have deteriorated after that date (R. 906,
914), that is not what is at issue here. The ALJ’s decision clearly addresses that time frame, is
consistent with the governing law, and supported by substantial evidence. The Court therefore
will affirm.
Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 14) 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