COLANTONIO v. KIJAKAZI

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE CAROL SANDRA MOORE WELLS ON 8/30/24. 8/30/24 ENTERED AND COPIES E-MAILED.(lisad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL P. C.,

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Plaintiff

v.
MARTIN O’MALLEY, 1
Commissioner of the
Social Security Administration,
Defendant

CIVIL ACTION

NO. 22-1406

MEMORANDUM
CAROL SANDRA MOORE WELLS
UNITED STATES MAGISTRATE JUDGE

August 30, 2024

Michael P.C. (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the
Social Security Administration Commissioner’s (“the Commissioner”) final decision, denying his
claim for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. Plaintiff
filed a brief supporting his request for review, the Commissioner responded to it, and Plaintiff has
filed a reply brief. For the reasons set forth below, Plaintiff’s Request for Review will be denied,
and Judgment will be entered in Defendant’s favor and against Plaintiff.
I.

PROCEDURAL HISTORY 2

On July 16, 2019, Plaintiff applied for DIB, alleging disability beginning March 6, 2019.
R. at 12. The Social Security Administration (“SSA”) initially denied Plaintiff’s claim on January
31, 2020, and upon reconsideration on August 20, 2020, so Plaintiff requested a hearing. Id. at 12.
On December 16, 2020, and January 13, 2021, Plaintiff appeared telephonically before

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Martin O’Malley became Commissioner of the Social Security Administration on December 20, 2023. Pursuant to
Fed. R. Civ. P. 25(d), Mr. O’Malley is substituted as Defendant in this suit. Pursuant to the last sentence of 42 U.S.C.
§ 405(g), no further action needs to be taken to continue this suit.
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This court has reviewed and considered the following documents in analyzing this case: Plaintiff’s Brief and
Statement of Issues in Support of Request for Review (“Pl.’s Br.”), Defendant’s Response to Request for Review of
Plaintiff (“Def.’s Resp.”), Plaintiff’s Reply Brief (“Pl.’s Reply”), and the administrative record (“R.”).

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Administrative Law Judge Jennifer Spector (“the ALJ”) for those administrative hearings. Id. at
38, 60. Plaintiff, represented by an attorney, and vocational expert, Denise Cordes (“the VE”),
testified at the hearings. Id. On February 11, 2021, the ALJ, using the sequential evaluation
process (“SEP’) for disability, 3 issued an unfavorable decision. Id. at 27. The Appeals Council
denied Plaintiff’s request for review, on February 15, 2022, making the ALJ’s findings the
Commissioner’s final determination. Id. at 1. Plaintiff sought judicial review of that decision
from this court on April 8, 2022. Both parties consented to the undersigned’s jurisdiction pursuant
to 28 U.S.C. § 636(c)(1).
II.
A.

FACTUAL BACKGROUND

Plaintiff’s Personal History
Plaintiff, born on February 5, 1955, R. at 65, was 66 years old when the ALJ rendered her

decision. He resides with his wife and their pets. R. at 65. Plaintiff, a high school graduate,
completed college coursework in the Air Force, but did not receive a college degree. Id. at 66-67.

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The Social Security Regulations provide the following five-step sequential evaluation for determining whether or
not an adult claimant is disabled:
1. If the claimant is working, doing substantial gainful activity, a finding of not
disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. § 404.1520(b).
2. If the claimant is found not to have a severe impairment which significantly
limits his physical or mental ability to do basic work activity, a finding of not
disabled is directed. Otherwise proceed to Step 3. See 20 C.F.R. § 404.1520(c).
3. If the claimant’s impairment meets or equals criteria for a listed impairment or
impairments in Appendix 1 of Subpart P of Part 404 of 20 C.F.R., a finding of
disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. § 404.1520(d).
4. If the claimant retains the residual functional capacity to perform past relevant
work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20
C.F.R. § 404.1520(f).
5. The Commissioner will determine whether, given the claimant’s residual
functional capacity, age, education and past work experience in conjunction with
criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. § 404.1520(g).

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B.

Plaintiff’s Testimony
At the December 16, 2020 and January 13, 2021 hearings, Plaintiff testified regarding

limitations because of pain in his back and both feet, carpal tunnel syndrome (“CTS”), irritable
bowel syndrome (“IBS”), and heart issues. Plaintiff stated that he experiences pain in the lower
third of his back; this pain also affects his legs. R. at 77. After he walks up a flight of stairs, he
needs to sit down and experiences a level four pain. Id. If he stands for one to three minutes for
any reason, the pain level rises to ten, and he must sit down. Id. Plaintiff testified that he is able
to walk on an even, flat surface comfortably for approximately three to four minutes before he
needs to stop. Id. He stated that he can sit in a chair for 15-20 minutes before he needs to “get up
and move around.” Id. at 78.
Plaintiff also described limitations with his feet. After right foot required hammer toe
surgery, he developed Morton’s neuroma. Id. at 81. A subsequent fall resulted in torn ligaments
and exacerbated the pain in his right foot; he attends physical therapy twice a week. Id. Plaintiff
stated that he has pain in his left foot caused by nerve damage from surgery. Id.
Plaintiff testified that he also suffers from CTS. Id. at 79. When he is not using his hands,
he does not experience any pain. Id. However, his hands lock up and spasm for three to four
minutes, if he tries to use a keyboard or write with a pen or pencil. Id. at 79-80. What used to take
him thirty seconds to do in an email now takes him three to four minutes. Id. at 80. His ability to
open a jar varies from day to day. Id. at 80-81.
Plaintiff detailed to the ALJ the impact of his IBS; a condition that requires him to use the
restroom between four and fifteen times a day. Id. at 83. He estimated that two to three times a
week, he experiences symptoms that require restroom use on the higher end of that range, and two
days a week on the lower end. Id. at 84. He takes Lasix, as needed, to manage the symptoms. Id.

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at 85.
Plaintiff has had two cardiac stents inserted and takes Xarelto, Sotalol, and Metoprolol for
his heart condition. Id. at 86. He explained that he experiences nausea at times from all the
medications he takes. Id. at 89.
Plaintiff testified that he is able to drive and kept his driver’s license, although he could not
sit for any extended period. Id. at 66. He does not require assistance with his personal grooming.
Id. at 92.
C.

Vocational Expert’s Testimony
At the January 13, 2021 administrative hearing, the VE testified.

R. at 38.

She

characterized Plaintiff’s past work as a management analyst and sales manager as skilled 4 and
sedentary 5 positions, both performed at a medium 6 level of exertion, based on Plaintiff’s file. Id.
at 46-47. His position as a training representative was a skilled position, classified as light 7 work,
but performed at a medium level of exertion. Id. at 47.
The ALJ’s first hypothetical asked the VE to consider an individual of Plaintiff’s age,

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“Skilled work requires qualifications in which a person uses judgment to determine the machine and manual
operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled
work may require laying out work, estimating quality, determining the suitability and needed quantities of materials,
making precise measurements, reading blueprints or other specifications, or making necessary computations or
mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or
figures or abstract ideas at a high level of complexity.” 20 C.F.R. § 404.1568(c).
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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
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“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing
up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.”
20 C.F.R. § 404.1567(c).
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.” 20 C.F.R. § 404.1567(b).

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education, and past work experience who could perform work at the sedentary exertional level.
Id. This hypothetical individual can:
occasionally push/pull with the bilateral upper extremities, but
never with the bilateral lower extremities; can frequently reach,
handle, and finger; cannot climb ladders, ropes, or scaffolds;
cannot crawl; can occasionally engage in all other postural
maneuvers; must avoid concentrated exposure to vibration,
extreme temperatures, and have no exposure to hazards, such as
unprotected heights or dangerous machinery. Can further have no
travel for work which would result in not having ready access to a
restroom.
Id. at 47-48. The VE replied that, given these restrictions, the past sales manager and training
representative positions would be eliminated, however, such an individual could still perform the
management analyst job. Id. at 48-49.
The ALJ next inquired whether an individual, under the previously stated restrictions, who
also “could only sit, stand, or walk in any combination for four hours per day,” would be precluded
from work. Id. at 50. The VE answered that the additional limitation would be work preclusive.
Id. An individual who “needed to shift positions from sitting to standing while performing [the]
occupation [of] management analyst” could work. Id. The VE opined that shifting from sitting to
standing every two hours would not be a problem. Id. at 51. However, needing to do so every 15
minutes would preclude work. Id.
III.

THE ALJ’S FINDINGS

In her decision, the ALJ issued the following findings:
1. [Plaintiff] meets the insured status requirements of the Social
Security Act through March 31, 2021.
2. [Plaintiff] has not engaged in substantial gainful activity
since March 6, 2019, the alleged onset date (20 CFR
404.1571 et seq.).
3. [Plaintiff] has the following severe impairments: carpal
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tunnel syndrome s/p carpal tunnel release, CAD, congestive
heart failure, paroxysmal atrial fibrillation, degenerative disc
disease of the cervical and lumbar spine, obesity (20 CFR
404.1520(c)).
4. [Plaintiff] does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that
[Plaintiff] has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except
occasionally push and pull with the bilateral upper
extremities, but never with the bilateral lower extremities,
frequently reach, handle and finger, cannot climb ladders,
ropes or scaffolds or crawl, occasionally engage in all other
postural activities, must avoid concentrated exposure to
vibration and extreme temperatures, and no exposure to
hazards such as unprotected heights or dangerous
machinery, and no travel for work which would result in not
having ready access to a restroom.
6. [Plaintiff] is capable of performing past relevant work as a
management analyst (DOT #161.167-010, SVP7, sedentary
as defined medium as performed). This work does not
require the performance of work-related activities precluded
by [Plaintiff]’s residual functional capacity (20 CFR
404.1565).
7. [Plaintiff] has not been under a disability, as defined in the
Social Security Act, from March 6, 2019, through the date
of this decision (20 CFR 404.1520(f)).
IV.
A.

DISCUSSION

Standard of Review
Judicial review of the Commissioner’s final decision is as follows. The Commissioner’s

findings of fact will not be disturbed if substantial evidence supports them. Poulos v. Comm’r of
Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429,
431 (3d Cir. 1999). Substantial evidence is not “a large or considerable amount of evidence, but
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rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). While it is more than a mere scintilla of evidence, Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019), it may amount to less than an evidentiary preponderance.
Fargnoli v. Halter, 247 F.3d 34, 38 (3d Cir. 2001); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988).
Overall, this test is deferential to the ALJ. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185,
1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987). The court should affirm the ALJ’s
findings of fact that are supported by substantial evidence, even when the court, acting de novo,
might have reached a different conclusion. Id. Indeed, the court may not undertake a de novo
review of the Commissioner’s decision by reweighing the record evidence itself. Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011); Rutherford v. Barnhart, 399 F.3d 546, 552
(3d Cir. 2005); Monsour Med. Ctr., 806 F.2d at 1190-91. Nor is the court permitted to “impose
[its] own factual determinations.” Chandler, 667 F.3d at 359; see Burns v. Barnhart, 312 F.3d
113, 118 (3d Cir. 2002) (“We also have made clear that we are not permitted to weigh the evidence
or substitute our own conclusions for that of the fact-finder.”). By contrast, the Commissioner’s
legal conclusions are subject to de novo review. Poulos, 474 F.3d at 91; Schaudeck, 181 F.3d at
431.
B.

Burden of Proof in Disability Proceedings
To be found “disabled” under the Act, Plaintiff must carry the initial burden of

demonstrating that she cannot engage in “any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

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§ 404.1505(a). Plaintiff may establish a disability through: (1) medical evidence meeting one or
more serious impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1; or (2) proof that
the impairment is severe enough that Plaintiff cannot engage in any type of “substantial gainful
work which exists in the national economy.” Heckler v. Campbell, 461 U.S. 458, 460 (1983); 42
U.S.C. § 423(d)(2)(A).
Under the first method, Plaintiff is considered per se disabled by meeting one of the “listed”
impairments. Heckler, 461 U.S. at 460. Under the second method, Plaintiff must initially
demonstrate that a medically determinable impairment prevents a return to their past employment.
See Brown, 845 F.2d at 1214. If Plaintiff proves that the impairment results in functional
limitations to performing their past relevant work, then the burden of proof shifts to the
Commissioner to prove that work exists in the national economy, which Plaintiff can perform
given his age, education, work experience, and residual functional capacity. See Hess v. Comm’r
Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Poulos, 474 F.3d at 92.
C.

Review of the Administrative Law Judge’s Decision
Applying the sequential evaluation process, the ALJ concluded that Plaintiff could perform

his past relevant work as a management analyst, sedentary as defined and medium as performed.
R. at 27. At the administrative hearings, Plaintiff testified that the symptoms of his impairments
preclude him from performing his prior work, or any other type of work. Id. at 38, 60.
Plaintiff presents two claims as a basis for remand. First, he argues that the ALJ committed
reversible error by failing to account, at Step Four, for the impact of mild mental limitations on his
ability to return to his prior relevant work. Pl.’s Br. at 3. Second, he challenges the authority of
the ALJ and Appeals Council Judges. Id. at 11. He argues that since they were not properly
appointed, they had no legal authority to adjudicate his claims. Id. This court finds that both of

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Plaintiff’s claims fail.
1. The ALJ Correctly Accounted for Plaintiff’s Mild Mental Limitations and Properly
Found Him Capable of Performing His Past Skilled Work
Plaintiff states the ALJ did not account at Step Four for the impact of mild mental
limitations on his ability to return to his prior skilled work. Pl.’s Br. at 3. Additionally, he appears
to argue that the ALJ could not have found Plaintiff capable of skilled work in the RFC assessment
because she also found Plaintiff had mild mental limitations earlier in the SEP. Id. at 4-6.
First, at all steps of the SEP, the ALJ followed the regulations and appropriately accounted
for Plaintiff’s mental limitations. When conducting Step Two of the SEP, the ALJ specifically
considered Plaintiff’s allegations of some difficulty with memory and concentration in his function
report. R. at 17, 374. The ALJ found that Plaintiff had mild limitations in the following areas: (1)
understanding, remembering, or applying information; and (2) concentrating, persisting, or
maintaining pace. Id. at 17. She based her findings on the record and highlighted a lack of
evidence indicating that these difficulties were particularly significant; this is because the record
contained generally normal mental status examination findings. Id. The ALJ explained that the
mild limitation findings were not included in the RFC assessment, which only “reflect[ed] the
degree of limitation I have found.” Id. at 18. When she then proceeded to make the RFC finding,
she did not restrict the complexity of work Plaintiff could perform, thus, her subsequent finding at
Step Four that Plaintiff could perform his past skilled work. Id. at 20, 24-26. In doing so, she
cited relevant supporting evidence, including Plaintiff’s mental health treatment records and expert
psychologists’ findings. Id. Notably, Plaintiff does not cite any evidence that the ALJ ignored or
misrepresented, to support his contention that he lacked the mental functioning capacity to perform
skilled work beginning on March 6, 2019.

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Second, Plaintiff does not provide any authority for his argument that a finding of mild
mental limitations precludes one’s ability to perform prior skilled work. Contrariwise, courts in
this Circuit have found that mild limitations in concentration, persistence, and pace did not
preclude a claimant from returning to past relevant skilled work. See Brumfield v. Saul, No. 194555, 2020 U.S. Dist. LEXIS 152896, at *2-5 (E.D. Pa. Aug. 21, 2020); Northrup v. Kijakazi, No.
20-cv-00412, 2022 U.S. Dist. LEXIS 53577, at *10-14 (M.D. Pa. Mar. 23, 2022). This includes
mild impairments caused by anxiety, as suffered by Plaintiff. See O’Connor v. Comm’r of Soc.
Sec, 466 F. App’x 96, 101-03 (3d Cir. 2012) (non-precedential) (plaintiff could return to work as
a public defender despite mild limitations in mental functioning due to anxiety).
This court finds that the ALJ properly treated Plaintiff’s mental health impairments in
finding him capable of performing his past skilled work. She adequately considered all the
evidence of Plaintiff’s mental health impairments and understood their impact before determining
Plaintiff’s RFC. Accordingly, the ALJ did not err by failing to explicitly include her mild SEP
Step Two findings in Plaintiff’s RFC. Since the ALJ’s Step Four assessment was proper, remand
on this basis is not warranted.
2. Former Commissioner Berryhill Had Authority to Act When She Reappointed All
ALJs and Appeals Council Judges on July 16, 2018
Finally, Plaintiff argues that, by operation of statute, Berryhill’s appointment as Acting
Commissioner (“AC”) expired on November 16, 2017, hence, she lacked authority to reappoint all
ALJs and Appeal Council Judges, on July 16, 2018. Before that date, on April 17, 2018, President
Trump had nominated Andrew Saul to be the Commissioner. Saul was not confirmed and sworn
into office, until June 17, 2019. Reappointment of ALJs and Appeals Council Judges by an AC
(or Commissioner) was needed because, prior to AC Berryhill’s action, none of the Social Security
Administration’s ALJs or Appeals Council Judges had been validly appointed. As explained
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below, Plaintiff’s challenge to AC Berryhill’s authority on July 16, 2018, lacks merit.
The Commissioner cites an abundance of cases, which hold that Berryhill acted properly
on July 16, 2018, because, once Saul was nominated by President Trump, on April 17, 2018,
Berryhill could exercise the powers of an AC, pursuant to 5 U.S.C. § 3346(a)(2). See Def.’s Resp.
at 12 & n.6. Against this weight of persuasive authority, Plaintiff relies upon Brian T.D. v.
Kijakazi, 580 F. Supp. 3d 615 (D. Minn. 2022), and Richard J.M. v. Kijakazi, No. 19-CV-00827,
2022 U.S. Dist. LEXIS 58606 (D. Minn. Mar. 30, 2022). See Pl.’s Br. at 12 (stating that “Plaintiff
offers the exact same arguments here as the claimant in those cases”). These two decisions have
been reversed and vacated, respectively. See Dahle v. Kijakazi, 62 F.4th 424, 429-30 (8th Cir.
2023) (reversing grant of summary judgment in Brian T.D. and noting that “Berryhill was properly
serving as Acting Commissioner when she ratified the appointment of the SSA ALJs”), cert.
denied, 144 S. Ct. 549 (2024); Messer v. O’Malley, No. 22-2127, 2024 U.S. App. LEXIS 4620, at
*1 (8th Cir. Feb. 21, 2024) (granting consent motion to vacate district court’s judgment in Richard
J.M. and remanding case for further proceedings in light of Dahle). This court concurs with the
weight of authority and concludes that, once President Trump nominated Saul to be the next
Commissioner, Berryhill could exercise the authority of an AC, pursuant to § 3346(a)(2), and
validly reappointed all ALJs and Appeals Council Judges, on July 16, 2018. Hence, Plaintiff’s
argument to the contrary fails.
V.

CONCLUSION

A thorough review of the relevant law and the record indicates that the ALJ did not commit
reversible legal errors and that substantial evidence supports the ALJ’s decision. Accordingly,
Plaintiff’s Request for Review is denied. An implementing Order and Order of Judgment follow.

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