SOTO v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAMON MARTINEZ SOTO, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-692

)

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 benefits under Subchapters II

and XVI 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. 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 court may neither reweigh the evidence, nor reverse,

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merely because it would have decided the claim differently) (citing Cotter v. Harris, 642

F.2d 700, 705 (3d Cir. 1981)).1

1 Plaintiff raises a single issue on appeal: whether the administrative law judge

(“ALJ”) took into account his migraines in crafting his residual functional capacity (“RFC”).

(Doc. No. 17 at 4-14). Specifically, Plaintiff contends that the ALJ erred by failing to

account for work-related limitations caused by Plaintiff’s migraine headaches, including off-

task time and absenteeism, and that the evidence of Plaintiff’s migraine headaches

established greater limitations than those set forth in the RFC. (Id.) After careful review,

the Court disagrees and finds that substantial evidence supports the ALJ’s decision.

The Court rejects Plaintiff’s argument as it is clear the ALJ accounted for the whole

record, including Plaintiff’s migraines, when formulating his RFC. Plaintiff relies heavily

on his own subjective testimony to establish the extent of his migraines (Doc. No. 17 at 4-

14), and the ALJ recounted much of Plaintiff’s testimony about his migraine headaches when

analyzing his RFC. Notably, the ALJ explained that Plaintiff alleged that he sometimes

would have migraine headaches where the pain would not go away and where he could not

get out of bed. (R. 24). The ALJ also noted that Plaintiff alleged he had migraine

headaches 1 to 2 times per week and 1 headache per week and that his headaches could last

for an hour and his migraines could last anywhere from 12 hours to 3 days with an intense

fog afterwards. (Id.). The ALJ cited Plaintiff’s testimony that he would spend 2 to 3 days

in his room after a migraine headache because light would cause him pain and his report that

he gets 2 to 3 migraine headaches per month. (Id.). While this testimony was certainly

relevant, an ALJ is not under any obligation to simply accept what the claimant said without

question. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); Chandler v. Comm’r of Soc.

Sec., 667 F.3d 356, 363 (3d Cir. 2011). 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). The Court

finds such deference is warranted in this case, as the ALJ noted that the reports in the record

regarding the frequency and severity of Plaintiff’s headaches did not cause disabling

limitation and that Plaintiff’s statements concerning the intensity, persistence, and limiting

effects of his migraines were not persuasive of disability based upon the record. (R. 24,

33).

The ALJ also explained the medical evidence, including testing results, in relation to

Plaintiff’s migraines. The ALJ noted that Plaintiff had normal neurological examinations in

March 2017, May 2018, and April 2019. (R. 26-27). Further, a CT scan of Plaintiff’s head

on December 28, 2019 was described as normal. (R. 28). The ALJ also explained that

Plaintiff had an MRI of his brain performed on October 14, 2020 that showed the Plaintiff had

moderate migraine vasculopathy. (R. 28; Exh. 24F/70). Later, on March 29, 2021, the

Plaintiff had an assessment that found he had migraine headaches without aura. (R. 29).

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Notably, the ALJ also analyzed evidence showing Plaintiff’s inconsistency in his

migraine complaints. For instance, on December 28, 2019, Plaintiff was noted to have a

typical migraine and he reported that his pain was well managed and that he did not want

pain management. (R. 27-28). The ALJ also noted that on April 21, 2020, Plaintiff was

seen at Star Medical Clinic with reports of triggered migraine headaches. (R. 28; Ex.

11F/2). A few months later, on December 7, 2020, Plaintiff reported his medication helped

with his migraine headaches. (R. 28). On March 29, 2021, Plaintiff was evaluated at the

Veterans Administrative Medical Center and reported mild headaches at least twice per week

with 3 or 4 migraines every month and alleged 3 or 4 intense headaches per month. (R.

29). On September 22, 2021, Plaintiff denied headaches at a telehealth visit with the

Veterans Administration. (R. 29-30). A few months later, on November 12, 2021,

Plaintiff alleged milder tension headaches and more severe migraines and stated he had 2-3

milder headaches a month, 2-3 more severe migraines a month, and an average of 2

headaches per week. (R. 30). However, just a few weeks later, on November 23, 2021,

Plaintiff denied headaches. (R. 31).

In addition to evaluating this record evidence, the ALJ also noted that he analyzed

Social Security Ruling 19-4p, which provides guidance on how to evaluate primary

headache disorders in disability claims. (R. 32). This ruling states in part:

We establish a primary headache disorder as [a medically determinable

impairment (“MDI”)] by considering objective medical evidence (signs,

laboratory findings, or both) from an [acceptable medical source]. We

may establish only a primary headache disorder as an MDI. We will not

establish secondary headaches (for example, headache attributed to trauma

or injury to the head or neck or to infection) as MDIs because secondary

headaches are symptoms of another underlying medical condition. We

evaluate the underlying medical condition as the MDI. Generally,

successful treatment of the underlying condition will alleviate the secondary

headaches.

SSR 19-4p, 2019 WL 4169635 (2019). In analyzing this ruling, the ALJ found Plaintiff

had a medically determinable headache disorder. (R. 32). However, the ALJ found that

the frequency and severity of Plaintiff’s headaches did not support the level of limitation

alleged by him or a finding that his migraine headaches cause him disabling limitations.

(R. 33). Despite this, the ALJ incorporated combined limitations into the RFC to account

for Plaintiff’s migraines, noting, “the undersigned has accommodated this impairment by

the combined limitations noted in the above-articulated residual functional capacity.” (R.

33). The Court is satisfied that the ALJ adequately considered Plaintiff’s migraines and

incorporated all limitations arising from that impairment in the RFC.

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Further, the Court rejects Plaintiff’s argument alleging the ALJ erred by not

considering Plaintiff’s off-task time and absenteeism in formulating the RFC. (Doc. No.

17 at 12). Plaintiff alleges that the only reasonable way to read the RFC is that the ALJ

found that his headaches never would result in off-task time or absenteeism. (Id. at 14).

The Court disagrees. The ALJ considered Plaintiff’s arguments regarding off-task time

and absenteeism during the hearing and specifically rejected them in his opinion. (R. 23

n.1). The ALJ had previously addressed off-task time and absenteeism with the vocational

expert (“VE”) at Plaintiff’s hearing and the VE had indicated that up to 5% off-task time and

one day of absence a month would be tolerated for an individual doing the jobs the VE

identified as performable with Plaintiff’s RFC. (R. 83). The VE also testified that it was

work preclusive if a person could not have more than rare social interaction with anyone in

the workplace and if a person had to have a person with them at the worksite, like a caretaker.

(R. 83-84).

At the hearing, Plaintiff’s counsel raised this issue after the vocational expert’s

testimony, stating,

I think that really respectfully your questions to the Vocational Expert

address off task, absenteeism, and social interaction are right on point with

the substantial evidence. This young man has – it’s just horrendous what

he has been through and I appreciate very much his service, but I do think

that as Your Honor has stated in this hearing, he’s still [INAUDIBLE] with

his mental health and he, Your Honor, I just don’t believe there’s any

evidence that really supports a finding that he could be greater, you know,

that he could meet any employers’ tolerances for absenteeism, time off task,

or social interaction . . . I respectfully would submit that the record strongly

– very strongly supports a finding of disabled under any of the hypotheticals

that Your Honor had addressed to the Vocational Expert in which she

indicated there’s no jobs.

(R. 84-85). The ALJ addressed Plaintiff’s argument in a footnote in his opinion, noting,

The undersigned recognizes various hypothetical questions were posed to

the vocational expert by the undersigned and his/her

attorney/representative. However, the claimant’s residual functional

capacity (RFC) reflects the actual limitations supported by the weight of the

evidence, for the reasons explained throughout this decision. The fact that

the undersigned and/or the claimant’s attorney/representative might have

asked the vocational expert questions about the effect(s) of greater

limitation(s) than those assessed in the final RFC on the occupational base

does not mean to imply the existence of these greater limitations, rather it

is a means to gauge/assess the potential for restriction of the occupational

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

Judgment (Doc. No. 16) is DENIED, and Defendant’s Motion for Summary Judgment

(Doc. No. 18) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

base, assuming arguendo that such limitations(s) [sic] ultimately do not find

support by the weight of the evidence.

(R. 23 n.1). The ALJ’s explanation sufficiently addresses Plaintiff’s argument

regarding off-task time and absenteeism. Given the ALJ’s sufficient explanation

for Plaintiff’s RFC, the Court declines Plaintiff’s invitation to disturb the ALJ’s

RFC because the determination is supported by substantial evidence.

Moreover, the cases cited by Plaintiff are unpersuasive. (Doc. No. 17 at

14 (citing Decker v. Comm’r of Soc. Sec., No. 4:20-CV-951, 2021 U.S. Dist. LEXIS

225176, at *28 (M.D. Pa. Nov. 22, 2021); Means v. Colvin, No. 2:15-cv-01107-

TFM, 2016 U.S. Dist. LEXIS 79768, at *14-15 (W.D. Pa. June 20, 2016)).

Decker involved a remand based primarily on the ALJ’s failure to discuss

countervailing medical opinion evidence. See 2021 U.S. Dist. LEXIS 225176, at

*28. Means was similarly a remand for the ALJ’s failure to discuss Plaintiff’s

possible absences from work due to migraine headaches and for the ALJ’s failure

to discuss Plaintiff’s migraine-related symptoms or explain whether or not they

were incorporated into the RFC. See 2016 U.S. Dist. LEXIS 79768, at *19-21.

Here, neither case is analogous. Plaintiff’s migraine headaches were sufficiently

accounted for in the RFC, and the ALJ discussed Plaintiff’s migraine-related

symptoms and explained that they were incorporated into the RFC. (R. 24-31).

Moreover, the Plaintiff does not point to any countervailing medical evidence that

the ALJ failed to consider in crafting the RFC. The only possible medical

evidence Plaintiff could point to is his Disability Report-Appeal where Plaintiff

noted his migraines are sporadic, but also triggered by stress, sunlight, having a

bowel movement, and exertion. (Doc. No. 17 at 6 (citing R. 351)). The ALJ

permissively found this Report unpersuasive. (R. 34).

Accordingly, the Court affirms.

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