LENZ v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LISA YVONNE LENZ, )

)

Plaintiff, )

)

v. ) Civil Action No. 23-848

)

MARTIN O’MALLEY,1 )

Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 9th day of September, 2024, upon consideration of the parties’

cross-motions for summary judgment, the Court, after reviewing the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits (“DIB”) under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and her claim for supplemental

security income (“SSI”) under Subchapter XVI of the Act, 42 U.S.C. § 1381 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, merely

1 Martin O’Malley is substituted as the defendant in this matter, replacing former Acting

Commissioner Kilolo Kijakazi pursuant to Federal Rule of Civil Procedure 25(d) and 42 U.S.C.

§ 405(g).

because it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705

(3d Cir. 1981)).2

2 Plaintiff argues both that the Administrative Law Judge (“ALJ”) erred by failing to apply

the proper governing regulations and that his findings regarding her residual functional capacity

(“RFC”) and his conclusion that she is not disabled are not supported by substantial evidence.

The Court disagrees with both argument and therefore will affirm.

Plaintiff cites two primary errors of law she alleges were made by the ALJ. The first is

that he erred in applying Listings 1.15, 1.16, 1.18, and 1.19, which were not in effect at the time

of her application, rather than Listings 1.02, 1.03, 1.04, and 1.06, which were. As part of the

Social Security Administration (“SSA”)’s sequential analysis, an ALJ must determine, at Step

Three, whether the claimant’s impairment(s) meets or equals the criteria for a listed impairment

as set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. This determination is critical, because

if a claimant meets a listing, a finding of disability is automatically directed. See id. at §§

404.1520(a)(4)(iii), 416.920(a)(4)(iii). In the decision under review here, issued on April 16,

2021, the ALJ considered whether Plaintiff’s impairments met or medically equaled Listings

1.15, 1.16, 1.18, and 1.19, which apply to musculoskeletal disorders, ultimately finding that the

listings had not been met or equaled. Plaintiff argues, though, that these were not the appropriate

listings here because they were implemented after the application date in this case and after this

matter was remanded to the Commissioner by the Court. The Court disagrees and finds that the

ALJ considered the proper listings and that, in any event, any such error would have been

harmless.

Plaintiff initially filed her application for DIB and SSI in May of 2016. A different ALJ

denied her request for benefits on July 3, 2018, finding, inter alia, that Plaintiff’s impairments

did not meet or equal musculoskeletal listings 1.02, 1.04, and 1.06. (R. 38). Plaintiff filed an

appeal in federal court at Case No. 2:19-CV-00489, and on May 20, 2020, this Court, based on

Plaintiff’s Appointments Clause argument, remanded the matter to the Commissioner for further

consideration. Before a new decision was issued, the musculoskeletal listings were amended,

resulting in Listings 1.02, 1.03, 1.04, and 1.06 being replaced with 1.15, 1.16, 1.18, and 1.19,

effective April 2, 2021. See 85 F.R. 78164-01 (Dec. 3, 2020). In denying Plaintiff’s claims on

remand, the ALJ did not consider Plaintiff’s impairments in light of the previous listings but

under the new ones.

Plaintiff contends that the listings in effect at the time of her application and the time of

the remand should continue to govern. However, courts, including this one, have largely rejected

this argument. See Green v. Kijakazi, No. 22-87-E, 2023 WL 567739 (W.D. Pa. Aug. 31, 2023).

For instance, in Cox v. Kijakazi, 77 F.4th 983 (D.C. Cir. 2023), the appellate court reversed the

district court’s decision that the version of Listing 12.05 in effect at the time the claimant filed

her claim must be applied in her case, instead holding that application of the amended version of

Listing 12.05 to the claimant’s pending claim was not retroactive. See id. at 985-86. In so

doing, it acknowledged that Congress had not granted the SSA the power to enact rules that are

retroactive in effect, so the court went on to analyze the factors for determining whether a law or

regulation would have retroactive effect set forth in Landgraf v. USI Film Prod., 511 U.S. 244

(1994). The court in Cox held that the application of the new version of the listings did not

impair the claimant’s vested rights (i.e., rights already possessed when she filed the claim), did

not impose any new duty or obligation, and did not deny the claimant fair notice, disrupt

reasonable reliance, or impair settled expectations. See 77 F.4th at 990-93. The court

emphasized that the claimant’s “filing of her application for SSI benefits itself did not vest her

with any legal right to have her claim decided under the 2014 Listings, as opposed to the 2017

Listings.” Id. at 991. The court further observed:

The Social Security Act does not provide claimants with the right

to have their claims adjudicated under any particular Listings or

similar regulatory interpretation upon application. Rather, the

statute and implementing regulations simply instruct the

Administration to award benefits only to claimants it finds to be

disabled.

Id. It also noted that a change in the listing was not dispositive of the claimant’s case, since the

listings merely “operate as a presumption of disability that makes further inquiry unnecessary,”

and that she could still establish that she was disabled without invoking the listing. Id. at 992.

While the D.C. Circuit Court’s decision is not binding on this Court, the Court finds the

rationale compelling. As the D.C. Circuit explained, Plaintiff had no vested right to proceed

under any specific version of the listings, the new listings imposed no new burdens or obligations

on her, and she was not deprived fair notice and cannot be said to have “relied” on Listings 1.02,

1.03, 1.04, or 1.06 in any meaningful way. The Court therefore agrees that application of

Listings 1.15, 1.16, 1.18, and 1.19 was not retroactive. In so doing, this Court also agrees with

the other circuit courts that have found similarly. See Combs v. Comm’r of Soc. Sec., 459 F.3d

640 (6th Cir. 2006); McCavitt v. Kijakazi, 6 F.4th 692 (7th Cir. 2021); Jones v. O'Malley, 107

F.4th 489, 494-97 (5th Cir. 2024). The Court further notes that this is consistent with the

language in the Revised Medical Criteria for Evaluating Musculoskeletal Disorders providing:

As we noted in the dates section of this preamble, these final rules

will be effective on April 2, 2021. We delayed the effective date

of the rules to give us time to update our systems, and to provide

training and guidance to all of our adjudicators before we

implement the final rules. The current rules will continue to apply

until the effective date of these final rules. When the final rules

become effective, we will apply them to new applications filed on

or after the effective date of the rules, and to claims that are

pending on or after the effective date.

85 F.R. 78164-01. This language clearly states that the new listings will apply to claims pending

after the effective date.

In any event, Plaintiff offers no argument as to how or why her conditions would have

met or equaled the prior listings even if they had applied. The Court’s review of the

requirements of previous Listings 1.02, 1.03, 1.04, and 1.06 and of the new Listings 1.15, 1.16,

1.18, and 1.19, as well as the record evidence, likewise has not demonstrated that the outcome of

this case would have been different had the older listings been used. Therefore, although the

ALJ correctly applied the new listings, the issue is ultimately moot.

The second way in which Plaintiff contends the ALJ misapplied the law in this case is by

evaluating the medical opinion evidence under 20 C.F.R. §§ 404.1520c and 416.920c rather than

20 C.F.R. §§ 404.1527 and 416.927. By way of background, in 2017, the SSA amended its

regulations in regard to how an ALJ is to evaluate medical opinion evidence, most notably

eliminating the “treating physician rule.” Compare 20 C.F.R. §§ 404.1527(c)(2) and

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

404.1520c(a) and 416.920c(a) (applying to later cases). See also 82 Fed. Reg. 5844-01, at 5853

(Jan. 18, 2017). Plaintiff is correct that for claims, such as this one, filed before March 27, 2017,

the older versions apply, and a treating physician’s opinion is to be given “controlling weight” so

long as the opinion is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and not inconsistent with other substantial evidence in the record. 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2); Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer

v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, contrary to Plaintiff’s contentions, the ALJ

did in fact apply Sections 404.1527 and 416.927 when considering the medical opinion evidence

here.

Not only did the ALJ expressly cite to Sections 404.1527 and 416.927, he also assigned

the various opinions “weight,” which was the operative term under the old regulations rather

than determining their “persuasiveness” as the new regulations demand. (R. 1263, 1265-67). In

regard to the treating physician opinions at issue here – those of Thomas Baer, DPM, and Joel

Last, M.D. – the ALJ clearly identified and discussed their treating relationship with Plaintiff.

(R. 1265, 1266). Plaintiff nonetheless suggests that the fact that he also considered the

consistency and supportability of the opinions demonstrates that he used the new regulations,

which identify consistency and supportability as “the two most important factors for determining

the persuasiveness of medical opinions.” 82 Fed. Reg. at 5853. See also 20 C.F.R. §§

404.1520c(b) and (c). However, consistency with the record and how well an opinion is

supported by medical evidence were already important considerations under Sections 404.1527

and 416.927. Indeed, part of the reason the regulations were amended was to acknowledge that

courts were already applying these as the most important factors. See 82 Fed. Reg. at 5853-84.

Further, while the ALJ did give more weight to the opinions of the state agency

consultants than to those of Plaintiff’s treating physicians, such a determination was permissible

even pursuant to the old regulations. Under Sections 404.1527 and 416.927, an ALJ must

consider the treating relationship between a claimant and an opining doctor, but 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

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

Judgment (Doc. No. 8) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 13) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

opinion. See Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d Cir. 2005) (affirming an

ALJ’s decision to credit the opinion of the non-examining state agency reviewing psychologist

because his opinion was more supported by the record than the opinions of the treating physician

and the consultative examiner). That is the case here, and substantial evidence supports the

ALJ’s decision to weigh the medical opinions as he did.

Therefore, the Court finds no legal error. As for Plaintiff’s arguments regarding whether

substantial evidence supports the ALJ’s underlying factual determinations, the Court notes that

these assertions essentially ask the Court to reweigh the evidence and come to different

conclusions. However, 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). To the extent the Court is being asked to come to its own

conclusion based on the evidence, therefore, it declines to do so. In any event, the ALJ’s decision

was thorough, and he adequately explained his findings based on Plaintiff’s testimony, the

objective medical evidence, Plaintiff’s treatment history, her activities of daily living (including

her ability to work at a substantial gainful activity level while allegedly disabled), and the various

medical opinions. The Court further notes that although Plaintiff argues that the ALJ disregarded

her surgical arthrodesis and lumbar surgical fusion at both Steps Two and Five, it is clear that the

ALJ considered these conditions within the broader impairment of degenerative disc disease (R.

1264), an impairment he discussed at length throughout the decision.

Accordingly, the Court finds that the ALJ applied the correct legal standards and that

substantial evidence supports his decision. It will therefore affirm.