KELLER v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GREGORY R. KELLER, )

)

Plaintiff, )

)

v. ) Civil Action No. 23-1812

)

LELAND DUDEK,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 21st day of March, 2025, 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 income benefits under

Subchapter II of the 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, merely because

1 Leland Dudek is substituted as the defendant in this matter pursuant to Federal

Rule of Civil Procedure 25(d) and 42 U.S.C. § 405(g). The Clerk is directed to amend

the docket to reflect this change.

1

it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d

Cir. 1981)).2

2 Plaintiff contends the Administrative Law Judge (“ALJ”) incorrectly assessed the

medical evidence of record by not evaluating it under the appropriate regulations. (Doc.

No. 10 at 13-16). Additionally, Plaintiff argues that the ALJ erred in finding that he had

no severe impairments and that the ALJ’s determination was not the result of a fair and

impartial hearing. (Id. at 16-19). Upon consideration, the Court disagrees with Plaintiff

and finds the ALJ’s decision is supported by substantial evidence.

This is a medical improvement case following a favorable disability finding. In

2014, an ALJ issued a favorable decision on Plaintiff’s claim for disability insurance

benefits, but medical improvement was expected with appropriate treatment and a

continuing disability review was recommended in 18 months. (R. 79-85).

Subsequently, an ALJ determined that Plaintiff’s impairments improved in March 2018 to

the point that his impairments were no longer severe and he was deemed no longer disabled

under the Act as of March 1, 2018. (R. 9-23). Appeals Council denied Plaintiff’s

request for review of the ALJ’s decision and Plaintiff appealed to this Court. (R. 1-6).

This Court then granted Defendant’s unopposed motion to remand the case back to the

Commissioner for further proceedings. (R. 1046-47). After another administrative

hearing was held, ALJ Leslie Perry-Dowdell issued another unfavorable decision finding

Plaintiff was no longer disabled as of March 1, 2018. (R. 996-1011, 1019-45, 1048-53).

Plaintiff appealed to this Court after Appeals Council denied his request for review. (R.

977-83).

As noted, Plaintiff asserts that the ALJ failed to analyze the medical evidence under

the correct regulation, 20 C.F.R. § 404.1527. (Doc. No. 10 at 13-16). Specifically,

Plaintiff contends that while the ALJ addressed the consistency and supportability of the

medical opinions, she failed to address the other factors in this regulation, including the

existence of an examining or treating relationship; the nature, length, and frequency of

visits as part of the relationship; and the specialty of the source. (Id.). After reviewing

the ALJ’s analysis of these medical opinions, the Court disagrees.

The appropriate regulation here, 20 C.F.R. § 404.1527(c) explains that when ALJs

do not give a treating source’s medical opinion controlling weight, they should consider

the following factors in evaluating other medical opinions: (1) the examining relationship;

(2) the treating relationship; (3) the length of the treatment relationship and the frequency

of examination; (4) the nature and extent of the treatment relationship; (5) supportability;

(6) consistency; (7) specialization; and (8) other factors that are brought to the ALJ’s

attention or of which the ALJ is aware that tend to support of contradict the medical

opinion. 20 C.F.R. § 404.1527(c). Here, while the record contained Plaintiff’s

2

treatment records, Plaintiff’s treating physicians did not submit opinions. Thus, the ALJ

did not afford any treating source’s opinion controlling weight and was tasked with

analyzing all of the medical opinions in accordance with 20 C.F.R. § 404.1527(c).

The Court finds the ALJ’s analysis of the opinion of physical consultative

examiner, Dr. Einat Rabinovich, M.D., comported with 20 C.F.R § 404.1527(c). The

ALJ explained that Dr. Rabinovich opined that Plaintiff could continuously lift and carry

up to 100 pounds; sit, stand, and walk for 8 hours; and did not need a cane or have

limitations with respect to his hands or feet; and did not have postural or environmental

limitations. (R. 1009 (citing Ex. B6F)). The ALJ addressed the consistency and

supportability factors by reasoning that this opinion was consistent with Plaintiff’s

treatment history and was supported by Dr. Rabinovich’s normal examination findings

during the consultative examination. (R. 1009). The ALJ also addressed the existence

of an examining or treating relationship and the nature, length, and frequency of visits as

part of the relationship by acknowledging that Dr. Rabinovich was a consultative examiner

and, therefore, examined Plaintiff on one occasion and reviewed only the medical records

from 2015 to 2016. (Id.). The only factor in 20 C.F.R. § 404.1527 that the ALJ did not

address is that of specialization. However, this, alone, does not require remand as the

records did not indicate Dr. Rabinovich’s specialty and courts within the Third Circuit have

held that where an ALJ gives a proper basis to credit or discount a medical opinion, remand

is not required where the ALJ fails to mention the source’s specialty. See, e.g., Winters

v. Saul, No. 19-1017, 2020 WL 5246710, at *8 (M.D. Pa. June 23, 2020). Here, the ALJ

properly discounted this opinion, giving it partial weight, because it was based on only one

examination and review of only the medical records from 2015-16. (Id.). Accordingly,

the ALJ’s analysis of Dr. Rabinovich’s opinion is supported by substantial evidence.

Likewise, the ALJ’s analysis of the opinion of psychological consultative examiner,

Dr. Chantal Deines, Psy.D., comported with 20 C.F.R. § 404.1527. Dr. Deines opined

that Plaintiff had no limitations in his ability to perform mental work-related functions.

(R. 1009-10 (citing Ex. B10F)). The ALJ gave this opinion partial weight after finding it

was generally consistent with the consultative examination findings and was supported by

Dr. Deines’ examination of Plaintiff. (R. 1010). Additionally, the ALJ addressed that

Dr. Deines was a consultative examiner and, therefore, did not have a treating relationship

with Plaintiff, and examined Plaintiff on one occasion. (Id.). The ALJ also noted that

the context of Dr. Deines’ opinion was limited as she did not have access to subsequent

mental health records showing Plaintiff was diagnosed with attention deficit hyperactivity

disorder. (Id.). While the ALJ also did not mention Dr. Deines’ specialization in this

analysis, this is not an issue requiring remand for the reasons stated above.

Similarly, the ALJ’s analysis of the state agency medical consultants’ opinions

comported with 20 C.F.R. § 404.1527. The ALJ assigned these opinions partial weight

after acknowledging their lack of treatment relationship with Plaintiff by noting that they

3

were state agency medical and psychological examiners. (R. 1010-11). The ALJ noted

that these opinions were generally consistent with and supported by Plaintiff’s treatment

records and the consultative examinations. (Id.). Moreover, the ALJ acknowledged that

these consultants only reviewed Plaintiff’s medical records through June 2018, which

implicitly acknowledged that these sources never examined or treated Plaintiff. (Id.).

The ALJ’s failure to address the specialization factor as to these medical sources is not an

issue requiring remand for the reasons stated above. Thus, Plaintiff’s argument on this

point fails.

The Court also finds no merit in Plaintiff’s argument that the ALJ’s assessment of

his severe impairments was not supported by substantial evidence and that, as a result, the

ALJ’s ultimate finding that Plaintiff was not disabled was not supported by substantial

evidence. Plaintiff contends that the ALJ incorrectly found that he did not have any

severe impairments and that this finding does not make sense in light of the ALJ’s previous

January 2020 finding that Plaintiff had multiple severe impairments. (Doc. No. 10 at 16-

18). The Court notes that Plaintiff is pointing to a finding from a previously remanded

decision and the ALJ is not bound by that decision, a fact that the ALJ pointed out at the

hearing. (R. 1024); see Krokus v. Colvin, No. 13-389, 2014 WL 31360, at *1 n.1 (W.D.

Pa. Jan. 2, 2014).

Additionally, Plaintiff argues that his impairments are severe due to his “numerous”

emergency room and hospital visits after March 1, 2018 due to a variety of impairments.

(Id. at 17). However, Plaintiff overlooks that he has a gap in medical treatment from 2020

to early 2021, a fact that the ALJ acknowledged. (R. 1006). The emergency room and

hospital visits that Plaintiff relies upon occurred prior to February 2018 and his

hospitalizations occurred in 2013, 2014, and 2015. (Doc. No. 10 at 3 (citing R. 837)).

Plaintiff points out to the Court that he was seen in 2019 for continued heartburn and

constipation, but the result of this appointment was only a recommendation that Plaintiff

be compliant with his medication regimen. (R. 966). Altogether, Plaintiff does not

point to any evidence that the ALJ overlooked or that would change the ALJ’s analysis in

a meaningful way. Accordingly, Plaintiff’s argument on this point is without merit.

Likewise, the Court rejects Plaintiff’s argument that the ALJ’s determination was

not the result of a fair and impartial hearing and that she failed to follow federal statutes

and regulations. (Doc. No. 10 at 18-19). Plaintiff contends that ALJ Leslie Perry-

Dowdell is biased against claimants generally because statistics show that she awards

disability benefits in very few cases and is one of the least likely judges to award benefits.

(Id.). Plaintiff points to statistics that reflect that over the past 5 years, nationally, claims

for benefits are granted by ALJ’s in approximately 45% of proceedings, and for this ALJ

over the same time frame, in the 14% to 20% range. The Court disagrees that this “claims

granted” rate differential, while quite notable over a number of years, shows bias that calls

into question the validity of the proceedings and outcome in this specific case. The

4

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

Judgment (Doc. No. 9) is DENIED and that Defendant’s Motion for Summary Judgment

(Doc. No. 17) is GRANTED.

s/Mark R. Hornak

Chief United States District Judge

ecf: Counsel of record

United States Court of Appeals for the Third Circuit has stated that judicial rulings, alone,

almost never support bias allegations. See, e.g., Liteky v. U.S., 510 U.S. 540, 555 (1994)

(stating “judicial rulings alone almost never constitute valid basis for a bias or partiality

motion.”); Kirlew v. Atty Gen. of U.S., 267 Fed. Appx. 125, 128 (3d Cir. 2008) (stating “we

cannot base a finding of bias merely on repeated adverse rulings.”); Johnson v. Comm’r of

Soc. Sec., No. 08-4901, 2009 WL 4666933, at *4 (D.N.J. Dec. 3, 2009), aff’d, 398 Fed.

Appx. 727 (3d Cir. 2010) (quotation omitted) (noting “an ALJ’s impartiality should not be

judged by result or reputation or by statistics of how that judge has previously ruled.”).

To state a cognizable claim of bias, Plaintiff must show that the ALJ’s actions have been

“so extreme as to display clear inability to render fair judgment.” Liteky, 510 U.S. at 551.

ALJ Perry-Dowdell’s statistics, alone, do not rise to this standard and Plaintiff provides no

additional pertinent evidence. See, e.g., James R. v. Kijakazi, No. 22-05030, 2023 WL

6389097, at *5 (D.N.J. Sept. 30, 2023) (holding Plaintiff did not state a claim for bias when

Plaintiff “chiefly relies on the ALJ’s apparently high general rate of denying social security

benefits and the allegation that other judges in the District have criticized the ALJ.”).

Here, the claims approval rate differential noted by Plaintiff does give the Court pause, in

light of the magnitude of that differential over a meaningful period of time. But for the

reasons noted above, the Court concludes that on the record in this specific case, substantial

evidence supports the findings of the ALJ, and the record does not reveal a basis to

conclude that the ALJ failed to properly apply the relevant statutory, regulatory and case

law principles to her analysis, or that she is unable or unwilling to apply the proper analysis

to the resolution of matters before her, or that she somehow “reverse engineered” her

analysis in this case to lead to a preferred and predetermined outcome that was contrary to

the record evidence. Accordingly, the Court rejects Plaintiff’s argument on this point.

All told, the ALJ’s findings and conclusions are supported by substantial evidence

and the decision of the Commissioner must be affirmed.

5