HARTZOG v. BERRYHILL

Filing 16

ORDER denying 11 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 9/19/2019. (dpo)

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

PEGGY ANN BROCK HARTZOG,

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Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 18-484

ORDER
AND NOW, this 19th day of September, 2019, upon consideration of the parties’
cross-motions for summary judgment, the Court, upon review of 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 denying Plaintiff’s claim
for supplemental security income benefits under Subchapter XVI of the Social Security 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); Jesurum v. Secretary of U.S.
Department of Health & Human Services, 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan,
970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); 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 it

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would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981)).1

Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in several ways
in finding, after two remands, that she is not disabled under the Social Security Act. First, she
argues that the ALJ failed to analyze whether her migraine condition met or equaled a listing at
Step Three of the sequential analysis. She further asserts that the ALJ failed to properly account
for her migraine headaches in formulating her residual functional capacity (“RFC”). Finally, she
contends that the ALJ failed to give proper weight to the opinions of her treating health care
providers. The Court disagrees and instead finds that substantial evidence supports the ALJ’s
decision that Plaintiff is not disabled.
1

Plaintiff initially argued that the ALJ failed to consider whether her migraine
headaches met or equaled Listing 11.03, 20 C.F.R. Part 404, Subpart P, Appendix 1, pertaining
to non-convulsive epilepsy. She, correctly, identified Social Security Administration guidance
that previously established Listing 11.03 as the most appropriate listing for considering
migraines. However, as the parties now acknowledge, Listing 11.03 was rescinded effective
September 29, 2016, after this matter was last remanded but well before the ALJ issued his
decision on February 14, 2018. Plaintiff, accordingly, has withdrawn the portion of her
argument relating to Listing 11.03. However, she still contends that the ALJ failed to provide an
adequate analysis of whether her migraines met or equaled a listing, regardless of whether
Listing 11.03 was in effect. (Doc. No. 15 at 5). She also suggests that Listing 11.02, as it
pertains to dyscognitive seizures, is now the most analogous listing. (Id. at 6).
The Court notes that it did, in its March 31, 2016 Order, indicate that the ALJ, on
remand, should consider whether Plaintiff’s migraine headaches met or equaled Listing 11.03,
which, at the time, was still applicable. (R. 2082). Consistent with this directive, the ALJ
considered whether Plaintiff’s migraines met or equaled any applicable listings set forth at 11.00.
(R. 1990). In so doing, he incorporated his extensive discussion of the effects of Plaintiff’s
migraines later in his decision. (Id.). The Court finds this discussion to sufficiently address the
applicability of the listings under 11.00, including 11.02. Plaintiff does not attempt to
demonstrate how she does meet this, or any other, listing, and, indeed, the showing of a
dyscognitive seizure requires a showing of an alteration of consciousness, see Listing
11.00.H.1.b, of which there is no evidence here. It is important to remember that to meet a
listing, a claimant must “present medical findings equal in severity to all the criteria of a listed
impairment.” Degenaro-Huber v. Comm’r of Soc. Sec., 533 Fed. Appx. 73, 75 (3d Cir. 2013)
(quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in the original)). Substantial
evidence supports the ALJ’s finding that Plaintiff’s migraine condition did not.
Plaintiff next argues that the ALJ failed to properly account for her migraine
headaches in determining her RFC. This was the primary basis for this Court’s previous remand
in 2016, and while the ALJ’s 2018 decision is not completely without error on this point, the
ALJ did adequately explain the impact of Plaintiff’s migraines on her RFC.
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The Court’s major concern last time was that the ALJ, in his December 23, 2014
decision, appeared to find that Plaintiff’s migraines had not occurred at a level sufficient to
impact her RFC for 12 consecutive months, based on unsupported findings, and the Court
therefore was unable to determine whether the ALJ had properly accounted for Plaintiff’s
migraines in the RFC. In his 2018 decision, though, the ALJ clearly indicated that Plaintiff’s
migraines impacted her RFC throughout the relevant timeframe. (R. 1994-96). He, in fact,
expressly explained how he incorporated Plaintiff’s migraines into his RFC analysis by limiting
her to sedentary work and restricting her from all exposure to work hazards, excessive noise, and
bright light. (R. 1996).
As Plaintiff points out, the ALJ still misstates the record in making his findings,
particularly the records of Christopher Rhody, D.O., Plaintiff’s treating general practitioner.
Indeed, as the Court pointed out in its prior remand of this matter, the ALJ incorrectly stated, in
his 2014 decision, that Dr. Rhody’s treatment notes reflected no mentions of headaches after July
2009 until June 2010. (R. 610, 2079). Unfortunately, this misstatement appears in the ALJ’s
most recent decision as well. (R. 1994). However, given the broader scope of his overall
discussion, this minor error no longer necessitates remand, particularly in light of the fact that the
headaches reported by Plaintiff to Dr. Rhody between July 2009 and June 2010 appear to refer to
sinus headaches, and not necessarily migraine headaches. (R. 551, 557).
As noted, the primary reason for the previous remand was for the ALJ to
reconsider his finding that Plaintiff’s migraines had never been sustained enough to impact her
RFC, given that it was based, in part, on the erroneous finding that Plaintiff had gone a year
without reporting any headaches to Dr. Rhody. Upon remand, the ALJ in his 2018 decision
clearly found that the migraines were generally present over the relevant time period. His
discussion in his most recent opinion instead focused on the fact that her reports of migraines
were sporadic and that they improved significantly with medication. (R. 1994-96). The issue
now, properly framed, is how frequent and severe Plaintiff’s migraines were over the course of
the relevant time period. Failure to acknowledge two reports of sinus headaches to Dr. Rhody in
2009 does not have a material impact on this analysis.
The record is now significantly more developed in regard to Plaintiff’s migraine
headaches. The ALJ had previously discussed the “significant improvement in the frequency
and severity of her headaches” noted by Tatyana P. Barsouk, M.D., in July of 2014. (R. 611,
1928). In the instant decision, he again discussed this finding, which is now supported by
additional notes from Dr. Barsouk from December 15, 2014, where she clarified that, as of July,
Plaintiff was experiencing “maybe 1 headache per week which was very mild and not associated
with photo, phonophobia, nausea, or vomiting.” (R. 1995, 2348). The ALJ went on to
acknowledge a later increase in the severity of Plaintiff’s headache symptoms, which happened
when Plaintiff herself altered her medication dosage. (R. 1995, 2341). He also considered the
fact that Plaintiff had cancelled an appointment for botox treatment (before ultimately
abandoning this treatment after one appointment), and that her symptoms again improved by
April 20, 2016. (R. 1995). This evidence is all relevant to the frequency and severity of
Plaintiff’s migraines in determining their impact on the RFC.
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Plaintiff asserts that the analysis was insufficient because it did not address the
episodic nature of her migraines, nor did it account for other limitations allegedly caused by her
condition, such as being absent from work or off-task while at work. However, these limitations
are based primarily on Plaintiff’s own subjective complaints. While such claims were certainly
relevant, the ALJ was not under an obligation to simply accept what she said without question.
See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 363 (3d Cir. 2011). The ALJ here clearly considered Plaintiff’s testimony, but found it to
be not fully supported by the record. His discussion was extensive and supported by substantial
evidence.
In sum, the Court finds that the RFC findings in the 2018 ALJ decision were
adequately discussed and supported by substantial evidence, especially in light of the United
States Supreme Court’s recent reminder that the threshold for meeting the substantial evidence
standard “is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The ALJ here
focused on determining how often Plaintiff suffered from migraines and how serious they were
when she did. He determined them to be rather sporadic and of varying, but generally
improving, intensity, and accounted for them by placing certain limitations in the RFC, but not
all of the limitations claimed by Plaintiff in her testimony. The evidence supports this finding.
Whether it hypothetically could also have supported an RFC finding that did include the
restrictions that Plaintiff would miss a day of work per month and be off-task for a significant
amount of the day is irrelevant, as “[t]he presence of evidence in the record that supports a
contrary conclusion does not undermine the [ALJ’s] decision so long as the record provides
substantial support for that decision.” Malloy v. Comm’r of Soc. Sec., 306 Fed. Appx. 761, 764
(3d Cir. 2009).
The issue is not whether Plaintiff did, in fact, suffer from migraine headaches
during the relevant time, as it is clear that the parties and the ALJ agree that she did. The issue is
whether this condition “caused functional limitations that precluded [her] from engaging in any
substantial gainful activity.” Walker v. Barnhart, 172 Fed. Appx. 423, 426 (3d Cir. 2006). The
ALJ explained how he formulated Plaintiff’s RFC in regard to her migraines in significant detail,
and the Court finds his determination to be supported by substantial evidence.
Finally, Plaintiff argues that the ALJ gave insufficient weight to the June 10, 2010
opinion of Dr. Rhody (R. 530-32) and the May 20, 2014 opinion of Martin Violago, M.D., her
treating pain management specialist (R. 1925). Plaintiff correctly asserts that when assessing a
claimant’s application for benefits, the opinion of the claimant’s treating physicians generally is
to be afforded significant weight. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001);
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). In fact, the regulations provide that for
claims, such as this one, filed before March 27, 2017, a treating physician’s opinion is to be
given “controlling weight” so long as the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence
in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Fargnoli, 247 F.3d at 43; Plummer,
186 F.3d at 429. As a result, the ALJ may reject a treating physician’s opinion outright only on
the basis of contradictory medical evidence, and not on the basis of the ALJ’s own judgment or
speculation, although he may afford a treating physician’s opinion more or less weight
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depending upon the extent to which supporting explanations are provided. See Plummer, 186
F.3d at 429. However, it is also important to remember that:
The ALJ -- not treating or examining physicians or State agency
consultants -- must make the ultimate disability and RFC
determinations. Although treating and examining physician
opinions often deserve more weight than the opinions of doctors
who review records, “[t]he law is clear . . . that the opinion of a
treating physician does not bind the ALJ on the issue of functional
capacity[.]” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d
Cir.2011). State agent opinions merit significant consideration as
well.
Chandler, 667 F.3d at 361 (internal citations omitted in part).
Although Plaintiff characterizes the ALJ’s alleged error in weighing the medical
opinion evidence as one of law, this is not really the case. Plaintiff argues that the ALJ’s legal
mistake was not expressly considering each factor in 20 C.F.R. §§ 404.1527 and 416.927.
However, while an ALJ must, of course, consider the factors set forth in those regulations, the
ALJ need not expressly discuss each factor. See Palmer v. Colvin, No. 1:14-0311-TFM, 2015
WL 5286171, at *7 n.5 (W.D. Pa. Sept. 10, 2015). Indeed, the ALJ need not use any “particular
language or adhere to a precise format” in assessing opinion evidence. Jones v. Barnhart, 364
F.3d 501, 505 (3d Cir. 2004). Therefore, the fact that the ALJ did not explain how each factor in
Sections 404.1527 and 416.927 applied to his analysis is not a mistake of law.
In any event, the ALJ did, in fact, consider the proper factors in determining the
weight to apply to the medical opinions in this case. Plaintiff argues that the ALJ considered the
opinions of Drs. Rhody and Violago “in isolation from each other,” contrary to his duty to
consider the consistency of medical opinions with the record as a whole, including other medical
opinions, pursuant to 20 C.F.R. §§ 404.1527(c)(4) and 416.927(c)(4). However, the ALJ
specifically did consider these two opinions together and even discussed the fact that the two
doctors worked together at Canonsburg Community Health Center. (R. 2001, 2003-04). He also
clearly indicated that each of these two physicians had a long-standing treating relationship with
Plaintiff. (R. 2000-02). The ALJ, as Plaintiff acknowledges, considered the consistency of the
opinions with the other evidence of record and the supportability of the opinions, including the
fact that Drs. Rhody and Violago “merely check-off or otherwise indicate functional limitations
in their reports without citing to any treatment records or evidence that supports their
assessments.” (R. 2004). While, as Plaintiff points out, “check-box” opinions are not improper
per se, the Court of Appeals for the Third Circuit has stated that “[f]orm reports in which a
physician’s obligation is only to check a box or fill in a blank are weak evidence at best.” Mason
v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). The ALJ could and did consider this aspect of
the opinions.
The issue really, then, is not whether the ALJ properly followed the law (which he
did), but whether his findings regarding the weight afforded to the medical opinions are
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supported by substantial evidence. As noted above, the ALJ discussed the record evidence and
how it was inconsistent with the opinions of Drs. Rhody and Violago, and the Court finds this
discussion to be sufficient and supported by substantial evidence. The Court further notes that,
although Plaintiff alleges that the ALJ relied on the fact that she mowed her lawn to discount
these opinions, it is clear from the context that the ALJ’s statement that Plaintiff is able to
perform daily activities is a reference to medical records documenting this finding. (R. 1928,
2439, 2441, 2444, 2447, 2449).
Plaintiff also takes issue with the fact that the ALJ gave more weight to several
other opinions in the record, specifically those of Miles Lance Weaver, M.D. (R. 262-63), with
whom Plaintiff followed up after gastric bypass surgery, and her treating rheumatologist David
E. Seaman, M.D. (R. 351-53), as well as that of state agency physician Abu N. Ali, M.D. (R.
520-24). While conceding that the first two doctors had a treating relationship with her, Plaintiff
argues that their opinions – prepared on July 1, 2008, and August 21, 2008, respectively –
predate the opinions of Drs. Rhody and Violago and that they are narrowly tailored to the
specific condition these doctors were treating. Although Plaintiff’s contentions are correct, these
factors did not stop the ALJ from giving them the weight they were due. First, the ALJ
acknowledged the time span since these opinions were rendered and considered more current
evidence in assigning them weight. Further, neither Dr. Weaver nor Dr. Seaman purported to
opine on anything outside of the scope of their treatment with Plaintiff. There is also no
indication that the ALJ relied on these opinions to discount Dr Rhody’s and Dr. Violagao’s
opinions, which pertained to Plaintiff’s back and neck pain. Indeed, all of these treating
physicians were really addressing different impairments, and none offered an opinion relevant to
the limitations created by Plaintiff’s migraine headaches.
As for the state reviewing agent, the law is clear that although “the opinions of a
doctor who has never examined a patient have less probative force as a general matter, than they
would have had if the doctor had treated or examined him,” Morales v. Apfel, 225 F.3d 310, 320
(3d Cir. 2000) (internal quotations omitted), where “the opinion of a treating physician conflicts
with that of a non-treating, non-examining physician, the ALJ may choose whom to credit.” Id.
at 317. See also Dula v. Barnhart, 129 Fed. Appx. 715, 718-19 (3d Cir. 2005). The ALJ, of
course, “‘cannot reject evidence for no reason or for the wrong reason,’” Morales, 225 F.3d at
317 (quoting Plummer, 186 F.3d at 429), and can only give the opinion of a non-treating, nonexamining physician weight insofar as it is supported by evidence in the case record, considering
such factors as the supportability of the opinion in the evidence, the consistency of the opinion
with the record as a whole, including other medical opinions, and any explanation provided for
the opinion. See Social Security Ruling 96-6p, 1996 WL 374180 (S.S.A.), at *2 (1996). In
certain cases, it would not be unwarranted to give more weight to the non-examining
professional’s opinion. See Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208 (3d Cir. 2005)
(affirming an ALJ’s decision to credit the opinion of the non-examining state agency reviewing
psychologist because his opinion was more supported by the record than the opinions of the
treating physician and the consultative examiner).
Here, the ALJ adequately discussed the record and its consistency with the
opinion of the state reviewing agent. Plaintiff objects, however, due to the fact that Dr. Ali’s
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Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (document No. 11) is DENIED and that Defendant’s Motion for Summary Judgment
(document No. 13) is GRANTED.

s/Alan N. Bloch
United States District Judge

ecf:

Counsel of record

opinion, completed on January 2, 2009, was rendered without access to later record evidence,
including Dr. Rhody’s and Dr. Violago’s opinions. It is not unexpected for the record to contain
evidence post-dating the state reviewing agent’s opinion. Generally speaking, “there is always a
time lapse between the consultant’s report and the ALJ hearing and decision.” Chandler, 667
F.3d at 361. The issue here, of course, is that, given the age of the case, all of the medical
opinions are long in the tooth. However, the Court notes that the ALJ did not simply adopt Dr.
Ali’s opinion, or any other, but rather considered all of them in formulating the RFC. Indeed, the
RFC here was far more restrictive than the one proposed by Dr. Ali. (R. 1991, 2004). Moreover,
the ALJ acknowledged that the reviewing agent did not have access to the later medical records.
The ALJ did, though, have access to this later evidence to which none of the opining medical
professionals did, and clearly relied upon and discussed that evidence in making his findings.
This case has certainly not always gone smoothly. However, the ALJ’s instant
opinion is thorough and well-supported, and Court therefore affirms. While the Court
acknowledges Plaintiff’s suggestion that oral argument may assist the Court in this matter, the
Court finds such argument to be unnecessary in light of the extensive record in this case and the
parties’ comprehensive and well-crafted briefs.
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