ROBERTSON v. BERRYHILL

Filing 16

ORDER denying 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 11/19/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JILL ARLENE ROBERTSON,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-216

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 12 and
14). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 13 and 15). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 12) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 14).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security denying her application for disability insurance benefits pursuant to the Social Security
Act. Plaintiff filed her application alleging disability since November 2, 1012. (ECF No. 9-5, p.
2). Administrative Law Judge (“ALJ”), Bonnie Hannan, held a hearing on February 8, 2016.
(ECF No. 9-2, pp. 31-60). On March 24, 2016, the ALJ found that Plaintiff was not disabled
under the Act. (ECF No. 9-2, pp. 16-26).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 12 and 14).
The issues are now ripe for review.
1

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

II.

LEGAL ANALYSIS
A.

Standard of Review

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).
Additionally, the Commissioner’s findings of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A
district court cannot conduct a de novo review of the Commissioner’s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a court is bound by those findings, even if
the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. §706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. §404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments

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prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional
capacity. 20 C.F.R. §404.1520. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.

Step 3 - Listings

Plaintiff argues that the ALJ erred at step 3 by failing to properly apply Listing 1.04(B),
disorders of the spine, to her claim. (ECF No. 13, pp. 12-17). In step three of the analysis set
forth above, the ALJ must determine if the claimant’s impairment meets or is equal to one of the
impairments listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1.; Jesurum v. v. Secretary of Health
and Human Services, 48 F.3d 114, 117 (3d Cir. 1995). An applicant is per se disabled if the
impairment is equivalent to a listed impairment and, thus, no further analysis is necessary.
Burnett v. Commissioner, 220 F.3d 112, 119 (3d Cir. 2000). It is a plaintiff’s burden to show that
his impairment matches a listing or is equal in severity to a listed impairment. Williams v.
Sullivan, 970 F.2d 1178, 1186 (3d Cir.1992).
At issue in this case is Listing 1.04(B) (disability of the spine). See, 20 C.F.R. pt. 404,
subpt. P, app. 1 §1.04. Listing 1.04 provides, in relevant part:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord. With:

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B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in
position or posture more than once every 2 hours….
To be found presumptively disabled, a plaintiff must meet all of the criteria of a Listing. 20 CFR
§§404.1525(c)(3), 416.925(c)(3). Thus, to meet Listing 1.04(B), a plaintiff must demonstrate
both: 1) a disorder of the spine (spinal archnoiditis) resulting in compromise of a nerve root or
the spinal cord; and 2) spinal arachnoiditis manifested by severe burning or painful dysesthesia,
and resulting in the need for changes in position or posture more than once every 2 hours. 20
C.F.R. pt. 404, subpt. P, app. 1 §1.04(B). An impairment that meets only some of the criteria,
“no matter how severely, does not qualify” for a per se disability determination. Sullivan v.
Zebley, 493 U.S. 521, 530 (1990).
Here, the ALJ specifically considered whether Plaintiff’s severe impairments meet or
equal Listing 1.04(B). (ECF No. 9-3, p. 19). The ALJ found that Plaintiff’s impairments do not
meet Listing 1.04 because:
[T]he record does not demonstrate compromise of a nerve root or the spinal cord
with additional findings of …B. Spinal arachnoiditis2….As discussed below in
Finding 5, the claimant has a history of significant back treatment, and ongoing
regular pain management. Physical examinations during the period at issue
have shown some range of motion limitations, but typically full extremity strength
and a normal gait (Exhibits B6F, B9F, B11F, B12F).
The claimant’s conditions of…arachnoiditis…do not cause listing-level
neurological deficits such as significant and persistent disorganization of motor
function in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gate and station, for instance (Section 11.00, Exhibits
B6F, B9F, B11F, B12F).
(ECF No. 9-2, p. 19)(footnote added). At no point does Plaintiff argue that the ALJ erred in
finding that she did not meet the first criteria of Listing 1.04(B). See, ECF No. 13. Rather,

“Spinal arachnoiditis is a condition characterized by adhesive thickening of the arachnoid which may
cause intermittent ill-defined burning pain and sensory dysesthesia, and may cause neurogenic bladder
or bowel incontinence when the cauda equina is involved.” See, 20 C.F.R. pt. 404, subpt. P, app. 1
§1.00(K)(2)(a).
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Plaintiff focuses on the severity of her arachnoiditis and the evidence to support the same.3 Id.

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Plaintiff spends the majority of her argument suggesting that the ALJ erred in finding that she did not
meet or equal Listing 1.04 because the ALJ erred in weighing the opinion evidence. (ECF No. 13, pp. 1317). The amount of weight accorded to medical opinions is well-established. Generally, the ALJ will give
more weight to the opinion of a source who has examined the claimant than to a non-examining source.
20 C.F.R. § 416.927(c)(1). In addition, the ALJ generally will give more weight to opinions from a treating
physician, “since these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.” Id. §416.927(c)(2).
The opinion of a treating physician need not be viewed uncritically, however. Rather, only where an
ALJ finds that “a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence [of] record,” must he give that opinion controlling
weight. Id. “[T]he more consistent an opinion is with the record as a whole, the more weight [the ALJ
generally] will give to that opinion.” Id. § 416.927(c)(4). If the ALJ finds that “a treating source’s opinion
on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence [of] record,” he must give that opinion controlling weight. Id. Also, “the more consistent an
opinion is with the record as a whole, the more weight [the ALJ generally] will give to that opinion.” Id. §
416.927(c)(4).
In the event of conflicting medical evidence, the Court of Appeals for the Third Circuit has explained:
“A cardinal principle guiding disability determinations is that the ALJ accord treating
physicians’ reports great weight, especially ‘when their opinions reflect expert judgment
based on continuing observation of the patient’s condition over a prolonged period of
time.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999)). However, “where . . . the opinion of a treating physician
conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom
to credit” and may reject the treating physician’s assessment if such rejection is based on
contradictory medical evidence. Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the
opinion of a treating physician is to be given controlling weight only when it is wellsupported by medical evidence and is consistent with other evidence in the record.
Becker v. Comm’r of Social Sec. Admin., No. 10-2517, 2010 WL 5078238, at *5 (3d Cir. Dec. 14, 2010).
Although the ALJ may choose whom to credit when faced with a conflict, he “cannot reject evidence for
no reason or for the wrong reason.” Diaz v. Comm’r of Soc. Security, 577 F.3d 500, 505 (3d Cir. 2009).
As set forth above, an ALJ is not required to accept a doctor’s opinion uncritically. Rather, the ALJ
must weigh it in relation to all of the evidence of the record. In this case, that is exactly what the ALJ did.
In so doing, the ALJ sufficiently set forth valid and acceptable reasons for weighing the opinion evidence.
See, 20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence). The ALJ gave some portions of the
opinion of her PCP, Dr. Masters, greater weight and some portions (those involving postural activities)
less weight. (ECF No. 9-2, pp. 22-24). The ALJ explained that she gave that portion of the opinion less
weight because it was inconsistent with other medical records and Plaintiff’s own testimony. Id. The ALJ
also discounted the opinion of her pain specialist, Dr. Rai, for the same reasons. Id. at p. 23. The ALJ
gave the opinion of the state medical consultant, Dr. Tran, some weight, but found Plaintiff more limited
than that assessed by Dr. Tran. Id. Finally, the ALJ gave the opinion of the consulting examiner, Dr.
Zimba, great weight as to the conclusion that Plaintiff’s impairments are not at a disabling level, but gave
other assessments (driving restrictions) less weight as it was contradicted by Plaintiff’s own testimony. Id.
at p. 24. Additionally, the ALJ gave Dr. Masters’ opinion regarding Plaintiff’s ability to sit, stand, and walk
greater weight than that of Dr. Zimba because Dr. Maters is Plaintiff’s treating source. Id. at 24. After a
review of the record, I find that basis for the ALJ’s opinion is sufficiently explained and supported by
substantial evidence. Id. at pp. 16-26.
Plaintiff seems to also argue that even if she did not meet Listing 1.04(B), the ALJ erred “in relying on
sporadic and transitory activities by the Plaintiff as the basis for rejecting portions of her treating doctors’

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Again, to qualify for a per se disability determination, Plaintiff must meet both criteria. 20 C.F.R.
pt. 404, subpt. P, app. 1 §1.04(B). Since Plaintiff does not even address how the ALJ’s finding
as to the first criteria is incorrect, I find Plaintiff’s argument fatally flawed.4 Therefore, remand is
not warranted.
An appropriate order shall follow.

medical opinions.” (ECF No. 13, p. 14). Consistency with other evidence is a valid reason for
discounting opinion evidence. See, 20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence).
Furthermore, I note that an ALJ is required to consider, inter alia, a plaintiff’s activities of daily living. See,
Social Security Ruling 96-7p and 20 C.F.R. §§404.1529, 416.929. The ALJ will look at inconsistencies
between the claimant's statements and the evidence presented. Id. After a review of the record, I find
that the ALJ properly evaluated the opinion evidence in relation to all of the other evidence (including,
inter alia, activities of daily living). Therefore, I find no error in this regard.
Even if Plaintiff’s argument was not fatally flawed, remand still would not be warranted given my
discussion in the prior footnote.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JILL ARLENE ROBERTSON,

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Plaintiff,
-vsNANCY A. BERRYHILL,5
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-216

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 19th day of November, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (ECF No. 12) is denied and Defendant’s Motion for Summary Judgment
(ECF No. 14) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

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