VICKERS v. O'MALLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GINGER M. VICKERS, )

)

Plaintiff, )

)

v. ) Civil Action No. 24-78

)

COMMISSIONER OF SOCIAL SECURITY, )

)

)

Defendant. )

O R D E R

AND NOW, this 25th 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 insurance benefits under

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

supplemental security income benefits 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

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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)).1

1 Plaintiff contends the Administrative Law Judge (“ALJ”) did not follow this

Court’s previous remand order directing him to resolve the conflict between Plaintiff’s

residual functional capacity (“RFC”) limiting her to both unskilled work at the Specific

Vocational Preparation (“SVP”) 1 or 2 levels and one to two step instructions. (Doc. No.

8; R. 1048). In the decision on appeal, the ALJ removed the limitation to one to two step

instructions in Plaintiff’s RFC finding, but Plaintiff contends that this did not follow this

Court’s order and that the ALJ’s explanation for the removal of this limitation was not

adequate. (Doc. No. 8). As a result, Plaintiff contends the ALJ’s November 14, 2023

decision is not supported by substantial evidence and that this Court should reverse the

decision and order calculation for award of benefits. (Id.). After review, the Court

disagrees with Plaintiff and finds the ALJ’s November 14, 2023 decision should be

affirmed for the following reasons.

This Court previously remanded a prior ALJ decision in this case with instructions

that the ALJ reconsider the RFC determination as there were concerns that the record

triggered a conflict between the limitation to one to two step instructions and occupations

with a GED reasoning development level 2. Vickers v. Comm’r of Soc. Sec., No. 21-1093,

2022 WL 1620076, at *6 (W.D. Pa. May 23, 2022). In that case, the ALJ arrived at an

RFC that limited Plaintiff to, inter alia, “unskilled work at the SVP 1 or two levels” and

“to one or two step instructions.” Id. at *2.

In the November 14, 2023 ALJ decision, now on appeal, the ALJ concluded that

Plaintiff had an RFC with the following mental limitations:

• She can apply commonsense understanding to carry out detailed but

uninvolved written or oral instructions;

• She can deal with problems involving a few concrete variables in or from

standardized situations;

• Work duties and any changes must be explained, written, and/or

demonstrated, and could be learned in 30 days or less;

• Work must not be fast-paced and not have strict production rates such as

assembly line work or hourly time quotas; [and]

• She can have frequent interaction with others.

(R. 1819).

In determining this RFC and complying with this Court’s remand order, the ALJ

evaluated and gave partial weight to the opinions of Drs. Steven Pacella, Ph.D., and

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Timothy Ostrich, Psy.D. (R. 1826-27). Dr. Pacella opined that Plaintiff had marked

limitations in understanding, remembering, and carrying out complex instructions, in

making judgments on complex work-related decisions, and in interacting appropriately

with supervisors. (Ex. 24F/8-9). The ALJ found persuasive the limitation that Plaintiff

could not deal with complex instructions and decisions due to her memory deficits but

explained that Dr. Pacella’s clinical findings and the record showed that Plaintiff could

perform simple work with no fast-paced work or production quotas and occasional

interaction with others. (R. 1819, 1827). Additionally, Dr. Ostrich opined, in pertinent

part, that Plaintiff “could understand, retain, and follow simple job instructions (i.e.,

perform one and two step tasks) and perform simple, routine, repetitive tasks in a stable

environment[.]” (R. 1827 (citing Ex. 1A)). The ALJ gave this opinion partial weight

and explained that he did not limit Plaintiff to one and two step tasks because “simple

routine repetitive tasks may be considered vague and internally inconsistent with ‘mild

deficits in executive functioning[.]’” (R. 1827). In this way, the ALJ explained the

changes made to the RFC to comply with this Court’s prior remand order.

In this appeal, Plaintiff contends that the ALJ erred in removing the one to two step

instruction limitation in the RFC because this Court’s remand order did not demand that it

be removed; rather it just instructed that the conflict within the previous RFC be addressed.

(Doc. No. 8 at 9-19). The Court rejects Plaintiff’s argument because when it remanded

the previous RFC it did not affirm or resolve any part of the RFC, it instead remanded the

case for further evaluation and the ALJ’s prior decision was vacated by Appeals Council.

(R. 1802-03, 1807). While the Court acknowledges that it stated that it did not “make any

broad findings as to whether the limitation to one or two step instructions necessarily

restricts Plaintiff to jobs with a reasoning level of 1[,]” it also instructed the ALJ to “address

the potential conflict between Plaintiff’s RFC and the GED level 2 occupations relied

upon.” Vickers, 2022 WL 1620076, at *3. The ALJ was not bound by his previous

decision as Plaintiff’s RFC finding in the decision at issue was decided de novo.

HALLEX: Hearings, Appeals and Litigation Law Manual § 1-2-8-18(A), 1993 WL 643058

(May 26, 2017). Thus, the ALJ was under no obligation to include the one to two step

instruction limitation in the latest RFC.

Plaintiff also argues that the ALJ should have kept the one to two step instruction

limitation in her RFC as it was consistent with and supported by the record. (Doc. No. 8 at

7-11). Plaintiff points to the opinion of Dr. Lindsey Groves, Psy.D., in support of this

proposition. Dr. Groves performed two cognitive evaluations and found that Plaintiff had

severe deficits in memory, mild deficits in executive functioning and verbal fluency, and that

Plaintiff showed a decline in cognitive functioning between the time of her two evaluations

in 2010 and 2018. (Ex. 17F/8). Plaintiff overlooks, however, that the ALJ considered

both of Dr. Groves’ opinions and assigned them some weight and little weight, respectively.

(R. 1826). The ALJ noted that he accounted for some of Dr. Groves’ assessed limitations

because they were “generally consistent with and based on the contemporaneous testing with

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the WAIS-IV and WRAML-s testing showing normal cognitive functioning other than in the

area of immediate memory and variable attention.” (Id.). However, he found Dr. Groves’

later assessed limitations, where she opined that Plaintiff “would be unable to sustain gainful

employment” only of little weight because they were conclusory, did not address specific

functional limitations, and opined on disability, which is an issue reserved for the

Commissioner. (Id.). Accordingly, the Court construes Plaintiff’s argument on this point

as merely a request to reweigh the evidence.

Plaintiff next argues that the ALJ’s RFC is not supported by substantial evidence

because the ALJ did not sufficiently explain why the one to two step instruction limitation

was removed. (Doc. No. 8 at 12-15). Plaintiff contends that the ALJ did not explicitly

reject Dr. Ostrich’s limitation to one and two step instructions and that the ALJ’s

“explanation” that the one to two step instruction limitation “may be . . . internally

inconsistent with ‘mild deficits in executive functioning,’” is not a finding that facilitates

meaningful judicial review. (Id. at 13-14). The Court disagrees. As noted, in

evaluating Dr. Pacella’s opinion, opining that Plaintiff be limited to one and two step

instructions, the ALJ explained that he did not adopt this limitation because “simple routine

repetitive tasks may be considered vague and internally inconsistent with ‘mild deficits in

executive functioning[.]’” (R. 1827). The Court finds this is an adequate explanation

for the ALJ’s exclusion of this limitation as it provides a satisfactory explanation for the

ALJ’s basis to exclude this limitation. See Fargnoli v. Massanari, 247 F.3d 34, 41 (3d

Cir. 2001) (quotations and citation omitted) (explaining the RFC assessment must “be

accompanied by a clear and satisfactory explication on the basis on which it rests.”). In

this way, the ALJ explained the changes made to the RFC to comply with this Court’s prior

remand order.

Lastly, Plaintiff posits that the ALJ erred by incorporating the definition of

reasoning level 2 into the RFC in a blatant attempt to avoid this Court’s previous

instructions on remand. (Doc. No. 8 at 15-17). Plaintiff points to the ALJ’s inclusion

of two limitations in her RFC, specifically: “[s]he can apply common sense understanding

to carry out detailed but uninvolved written or oral instructions; [and] [s]he can deal with

problems involving a few concrete variables in or from standardized situations[.]” (R.

1819). Plaintiff contends that these limitations were not the product of thoughtful

consideration of the record as the ALJ simply copied and pasted the reasoning level 2

limitations. (Doc. No. 8 at 15-17). The Court disagrees. The ALJ explained that he

limited Plaintiff to simple work due, in part, to the opinions of Drs. Pacella and Ostrich.

(R. 1826-27). Indeed, as noted, the ALJ explained that he assigned both of these opinions

partial weight and agreed with Dr. Pacella’s finding that Plaintiff could not deal with

complex instructions and decisions. (R. 1819, 1827). Plaintiff’s contention that the ALJ

was bound by the law of the case doctrine to keep the previous RFC limitation to one to

two step instructions is without merit for the reasons stated above. Accordingly, the Court

rejects Plaintiff’s arguments on this point.

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

Judgment (Doc. No. 7) is DENIED and that Defendant’s Motion for Summary Judgment

(Doc. No. 14) is GRANTED.

s/Mark R. Hornak

Chief United States District Judge

ecf: Counsel of record

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

and the decision of the Commissioner must be affirmed.

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