# RAZEY v. O'MALLEY

> District Court, W.D. Pennsylvania · September 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10668195

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 23, 2024
- **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/10668195

## How later opinions describe it (automated extraction)

- noting that “‘[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive’” (quoting § 405(g)); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999
- stating that the court has plenary review of all legal issues, and reviews the ALJ’s findings of fact to determine whether they are supported by substantial evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LEON ALBERT RAZEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 23-1298
)
MARTIN O’MALLEY,1 )
Commissioner of Social Security, )
)
Defendant. )

O R D E R
AND NOW, this 23rd day of September, 2024, upon consideration of Defendant’s
Motion for Summary Judgment (Doc. No. 15) filed in the above-captioned matter on December
7, 2023,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for Summary Judgment (Doc. No.
9) filed in the above-captioned matter on October 17, 2023,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART and DENIED IN
PART. Specifically, Plaintiff’s Motion is granted to the extent that it seeks a remand to the
Commissioner of Social Security (“Commissioner”) for further evaluation as set forth below and
denied in all other respects. Accordingly, this matter is hereby remanded to the Commissioner
for further evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.
I. Background
Plaintiff Leon Albert Razey protectively filed a claim for disability insurance benefits
under Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., effective March 20,

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).
2018, claiming that he became disabled on September 16, 2015 due to a back injury, head
trauma, broken bones, depression, anxiety, and nerve damage. (R. 12, 123-29, 150). After being
denied initially on August 20, 2018, Plaintiff sought, and obtained, a hearing before an
Administrative Law Judge (“ALJ”) on November 5, 2019. (R. 12, 70-74, 77-78, 27-55). In a
decision dated December 12, 2019, the ALJ denied Plaintiff’s request for benefits. (R. 12-22).

Significantly, Plaintiff was considered to be a younger individual, pursuant to 20 C.F.R. §
404.1563, and the ALJ’s decision restricted Plaintiff to a limited range of sedentary work. (R.
17, 20). On October 6, 2020, the Appeals Council declined to review the decision. (R. 1-3).
Plaintiff filed an action in federal court at Civil No. 20-1798, and, on August 3, 2021, the
Honorable Donetta Ambrose granted the Commissioner’s Motion to Remand and remanded the
matter “for further administrative action.” (R. 649). On December 10, 2021, the Appeals
Council vacated the December 12, 2019 decision and remanded the matter, stating that “[f]urther
development of the medical record is necessary to determine whether the claimant requires the
use of a portable oxygen supply.” (R. 655). Upon remand, the matter was assigned to a different

ALJ, who held a telephonic hearing on June 23, 2022. (R. 561, 584-619). On August 17, 2022,
the new ALJ issued a decision denying Plaintiff’s claim for benefits. (R. 561-76). Of note, this
decision restricted Plaintiff to a limited range of light work and noted that, as of June 2, 2021,
Plaintiff changed age categories from younger individual to person closely approaching
advanced age pursuant to Section 404.1563. (R. 568, 575). On May 31, 2023, the Appeals
Council declined to assume jurisdiction (R. 520-24), and Plaintiff filed a new appeal with this
Court. The parties have filed cross-motions for summary judgment, and the case is now ripe for
adjudication.
II. Standard of Review
Judicial review of a social security case is based upon the pleadings and the transcript of
the record, and the scope of that review is limited to determining whether the Commissioner
applied the correct legal standards and whether the record, as a whole, contains substantial
evidence to support the Commissioner’s findings of fact. See 42 U.S.C. § 405(g); Matthews v.

Apfel, 239 F.3d 589, 592 (3d Cir. 2001) (noting that “‘[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive’”
(quoting § 405(g)); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)
(stating that the court has plenary review of all legal issues, and reviews the ALJ’s findings of
fact to determine whether they are supported by substantial evidence). If the district court finds
this to be so, it must uphold the Commissioner’s final decision. See Rutherford v. Barnhart, 399
F.3d 546, 552 (3d Cir. 2005). The Court may not set aside a decision that is supported by
substantial evidence “even if [it] would have decided the factual inquiry differently.” Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing § 405(g)); Monsour Med. Ctr. v. Heckler, 806

F.2d 1185, 1190-91 (3d Cir. 1986)).
“Substantial evidence” is defined as “more than a mere scintilla.” Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). It
means “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id.; Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). However, a “‘single piece
of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to
resolve, a conflict created by countervailing evidence.’” Morales v. Apfel, 225 F.3d 310, 317 (3d
Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “‘Nor is evidence
substantial if it is overwhelmed by other evidence – particularly certain types of evidence (e.g.,
that offered by treating physicians) – or if it really constitutes not evidence but mere
conclusion.’” Id. So as to facilitate the district court’s review, an ALJ’s findings must “be
accompanied by a clear and satisfactory explication of the basis on which [they] rest[].” Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Decisions that are conclusory in their findings or
indicate the ALJ’s failure to consider all the evidence are not supported by substantial evidence.
See id. at 705-06. Moreover, the Court must ensure the ALJ did not “reject evidence for no

reason or for the wrong reason.” Id. at 706 (citing King v. Califano, 615 F.2d 1018 (4th Cir.
1980)).
A disability is established when the claimant can demonstrate some medically
determinable basis for an impairment that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period. See Fargnoli v. Massanari, 247 F.3d 34,
38-39 (3d Cir. 2001). “A claimant is considered unable to engage in any substantial gainful
activity ‘only if his physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy . . . .’” Id. at 39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration has promulgated regulations incorporating a five-step

sequential evaluation process in guiding ALJs in determining whether a claimant is under a
disability as defined by the Act. See 20 C.F.R. § 404.1520. At Step One, the ALJ must
determine whether the claimant is currently engaging in substantial gainful activity. See id. at
§ 404.1520(a)(4)(i). If so, the disability claim will be denied. See Bowen v. Yuckert, 482 U.S.
137, 140 (1987). If not, the second step of the process is to determine whether the claimant is
suffering from a severe impairment. See 20 C.F.R. § 404.1520(a)(4)(ii). “An impairment or
combination of impairments is not severe if it does not significantly limit [the claimant’s]
physical or mental ability to do basic work activities.” Id. at § 404.1522. If the claimant fails to
show that his or her impairments are “severe," he or she is ineligible for disability benefits. If
the claimant does have a severe impairment, however, the ALJ must proceed to Step Three and
determine whether the claimant’s impairment meets or equals the criteria for a listed impairment.
See id. at § 404.1520(a)(4)(iii). If a claimant meets a listing, a finding of disability is
automatically directed. If the claimant does not meet a listing, the analysis proceeds to Steps

Four and Five.
In considering these steps, the ALJ must formulate the claimant’s residual functional
capacity (“RFC”). A claimant’s RFC is defined as the most that an individual is still able to do
despite the limitations caused by his or her impairments. See Fargnoli, 247 F.3d at 40; 20 C.F.R.
§ 404.1545(a). At Step Four, it is the claimant’s burden of demonstrating an inability to perform
his or her past relevant work. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the ALJ
determines that the claimant lacks the RFC to resume his or her former occupation, the
evaluation then moves to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
At this stage, the burden of production shifts to the Commissioner, who must demonstrate

that the claimant is capable of performing other available work in the national economy in order
to deny a claim of disability. See id. at § 404.1520(a)(4)(v). In making this determination, the
ALJ must consider the claimant’s RFC, age, education, and past work experience. See id. The
ALJ must further analyze the cumulative effect of all the claimant’s impairments in determining
whether he or she is capable of performing work and is not disabled. See id. at § 404.1523.
III. The ALJ's Decision
In her August 17, 2022, decision, the ALJ found that Plaintiff met the insured
requirements of the Act through September 30, 2021, after Plaintiff reached age 50. (R. 563).
She then proceeded to apply the sequential evaluation process, finding that Plaintiff had not been
engaged in substantial gainful activity since the alleged onset date of September 16, 2015. (R.
563-64). The ALJ also found that Plaintiff met the second requirement of the process insofar as
he had several severe impairments, including obstructive sleep apnea, chronic obstructive
pulmonary disease, degenerative joint disease, obesity, and degenerative disease of the spine.
(R. 564). However, she found that some of Plaintiff’s alleged impairments did not qualify as

severe impairments, included several – such as borderline intellectual functioning, depression,
anxiety, and substance abuse disorder – that the prior ALJ had found to be severe. (R. 14, 564-
67). The ALJ concluded that none of Plaintiff’s impairments met any of the listings that would
satisfy Step Three. (R. 567-68).
The ALJ found that Plaintiff retained the RFC to perform light work with a number of
non-exertional limitations. (R. 568). As noted, this deviated from the prior ALJ’s vacated
decision that limited Plaintiff to a range of sedentary work. (R. 17). At Step Four of the process,
the ALJ used a vocational expert (“VE”) to find that Plaintiff was unable to perform his past
relevant work. (R. 575). She proceeded to determine, at Step Five, whether there were jobs in

the national economy that Plaintiff could perform. (R. 575-76). As noted, in so doing she
acknowledged that Plaintiff had changed age categories as of her 50th birthday on June 2, 2021.
(R. 575). The VE testified that, based on Plaintiff’s age, education, work experience, and RFC,
Plaintiff could perform a significant number of jobs in the national economy, including the
representative occupations of router, private mail clerk, and marker. (R. 576, 613).
Accordingly, the ALJ found that Plaintiff was not disabled. (R. 576).
IV. Legal Analysis
Plaintiff argues that the ALJ here erred in determining his severe impairments and his
RFC, asserting that she was bound by the prior ALJ’s findings, including his finding that
Plaintiff was limited to a range of sedentary work. Plaintiff further argues that the ALJ
improperly retroactively applied a newer version of the regulations in evaluating whether his
conditions met or equaled a listing at Step Three of the sequential analysis. While the Court
disagrees with Plaintiff’s second argument, it does find that remand is warranted based on his
first claim. Accordingly, the Court will remand this case for further consideration of this issue

consistent with this order.
The first ALJ in this case determined that Plaintiff’s RFC was limited to a range of
sedentary work. At the time of that decision, Plaintiff was considered to be a younger person,
and therefore, the medical-vocational guideline section of the regulations (commonly referred to
as the “grids”), 20 C.F.R., pt. 404, subpt. P, app. 2, would have directed that Plaintiff was not
disabled assuming he had the RFC to perform a full range of sedentary work. (R. 21). Because
the RFC formulated by the first ALJ, though, did not permit Plaintiff to perform a full range of
such work, he utilized a VE to determine if there was substantial work Plaintiff could perform,
finding that there was. (Id.). As discussed, the matter was appealed and ultimately remanded for

further consideration, particular on the issue of whether Plaintiff requires the use of a portable
oxygen supply. (R. 655). The second ALJ determined that Plaintiff’s need for daytime oxygen
postdated his date last insured but concluded nonetheless that Plaintiff was capable of
performing a limited range of light, rather than sedentary, work. (R. 568). This change proved
to be significant; because Plaintiff had turned 50 and was therefore a person closely approaching
advanced age, a limitation to sedentary work may have led to a finding of disabled under the
grids, depending on transferability of job skills. A limitation to light work, however, continued
to dictate a finding of not disabled.
It is in this context that Plaintiff’s argument must be considered. As noted, Plaintiff
contends that the second ALJ, on remand, was bound by the earlier findings regarding his RFC
except in regard to his use of oxygen.2 The Court actually disagrees with this position. Judge
Ambrose, in fact, addressed this very situation in Naccarato v. Kijakazi, No. CV 21-20, 2022
WL 280943 (W.D. Pa. Jan. 31, 2022), where she held, under very similar facts, that the doctrines

of res judicata, collateral estoppel, and/or law of the case are “inapplicable ‘where the ALJ's
opinion which constituted the final decision of the Commissioner was vacated and the district
court did not make a finding on this issue.’” Id. at *1 (quoting Durst v. Saul, Civ. No. 19-2101,
2020 WL 5501201, at *4 (E.D. Pa. Sept. 11, 2020)). Likewise, in Feeney v. Berryhill, No. 15-
CV-3838, 2017 WL 2544587 (E.D. Pa. June 13, 2017), Judge Legrome Davis of the Eastern
District of Pennsylvania stated, “When a case is remanded to a new ALJ by the Appeals Council,
the second ALJ is not bound by the first ALJ’s decision, particularly where the second ALJ hears
additional evidence.” Id. at *4. Indeed, this is consistent with the Third Circuit’s general
approach to these issues. See Carter v. Barnhart, 133 Fed. Appx. 33, 35 (3d Cir. 2005).

However, this does not end the discussion. As this and other courts have explained, the
prior ALJ’s decision is still part of the record. See Krokus v. Colvin, No. CIV.A. 13-389, 2014
WL 31360, at *1 n.1 (W.D. Pa. Jan. 2, 2014); Babyak v. Berryhill, 385 F. Supp. 3d 426, 430
(W.D. Pa. 2019). As such, although not bound by the findings in such a decision, a subsequent
ALJ is still required to consider them in making his or her findings on remand. As with any

2 Because Plaintiff’s claim was not denied at Step Two, the differences between the two
ALJs’ findings as to which of Plaintiff’s impairment were severe is not relevant. See Salles v.
Comm’r of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007). What matters is Plaintiff’s
RFC. That said, the RFC on remand contained no mental restrictions that would account for
Plaintiff’s borderline intellectual functioning, depression, anxiety, and/or substance abuse
disorder, whereas the first decision (which found those impairments to be severe) contained a
plethora of mental functional limitations. On remand, the ALJ should address this difference in
determining the proper restrictions to be included in the RFC.
record evidence, an ALJ must “give some indication of the evidence which [she] rejects and
[her] reason(s) for discounting such evidence.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d
112, 121 (3d Cir. 2000) (citing Plummer, 186 F.3d at 429).
While Krokus and Babyak dealt with a slightly different issue, they are still instructive
here. Those cases addressed the issue of whether a subsequent ALJ was bound by or needed to

consider the unvacated findings of an earlier ALJ for an earlier time period. The rationale is the
same here; though vacated, the earlier ALJ’s decision is part of the record and cannot be
disregarded all together. See Krokus, 2014 WL 31360, at *1 n.1 (“The earlier findings are
relevant, of course, but lack preclusive effect.”); Babyak, 385 F. Supp. 3d at 430 (“Although the
ALJ was not bound by the prior RFC determination, the earlier findings are relevant. In making
an RFC assessment, the Third Circuit court instructs the ALJ to consider all evidence before
him.”) (citations omitted). This is particularly true here given that the primary issue on remand
was Plaintiff’s need for oxygen, an issue that would not be expected to produce an RFC with a
less restrictive exertion level absent some specific new evidence.

All of this leads to the elephant in the room. With Plaintiff’s change of age categories, a
finding that he was limited to sedentary work on remand may have directed a finding of
disability. The difference in the separate ALJ’s RFC findings was therefore potentially outcome
determinative. Given the significance of this issue, and the somewhat limited scope of the
Appeals Council’s remand, it was necessary for the ALJ to discuss this difference and why the
different findings were supported by substantial evidence. The second ALJ’s decision here,
thorough as it was, did not address the fact that Plaintiff had previously been found to be limited
to sedentary work. She may not have been bound by that finding, but that does not mean that
this crucial difference did not warrant any discussion. Again, the vacated decision was part of
the record; the ALJ was required to consider it. Hence the need for remand.
This remand need not account for Plaintiff’s second argument or involve application of
the prior version of the listings at Step Three. Plaintiff contends that the listings in effect at the
time of his application – specifically musculoskeletal listings 1.02 and 1.04 – should continue to

govern his case despite the fact that the musculoskeletal listings were amended, resulting in these
listings being replaced with new listings 1.15 and 1.18, effective April 2, 2021. See 85 F.R.
78164-01 (Dec. 3, 2020). He asserts that the second ALJ’s application of these new listings was
impermissibly retroactive.3 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), and
the Court does so again here.
For example, 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

3 The first ALJ considered Plaintiff’s conditions under Listings 1.02 and 1.04. (R. 15).
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
or 1.04 in any meaningful way. The Court therefore agrees that application of Listings 1.15 and
1.18 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. Footnote 2 to this provision expressly states that “[i]f a court reverses
our final decision and remands a case for further administrative proceedings after the effective
date of these final rules, we will apply these final rules to the entire period at issue in the decision
we make after the court's remand.” That is what occurred here.4

Therefore, the remand here is limited to a consideration of the earlier ALJ findings in
the record (including those contained in the August 17, 2022 decision) in determining Plaintiff’s
severe impairments, his RFC, and ultimately whether he is disabled. The Court again
emphasizes that these earlier ALJ findings have no preclusive effect, but given the significance
that subtle changes in those findings could have on the outcome of this case, they must be
considered as part of the context of the record as a whole. Accordingly, remand is necessary.5
V. Conclusion
In short, the record does not permit the Court to determine whether the ALJ’s decision is
supported by substantial evidence, and, accordingly, the Court finds that substantial evidence

does not support the ALJ’s decision in this case. The Court hereby remands the case to the
Commissioner for reconsideration consistent with this Order.

s/Alan N. Bloch
United States District Judge

ecf: Counsel of record

4 The Court further notes that, in any event, Plaintiff offers no argument as to how or why
his conditions would have met or equaled the prior listings even if they had applied.

5 Because it is the need for additional explanation by the ALJ that necessitates a remand in
this case, the record does not permit the Court to reverse and remand the case for an award of
benefits. See Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10668195. Public record. Not legal advice.