United States District Court, W.D. Pennsylvania
KATASHA L. KESSLER
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY
OPINION AND ORDER
DONETTA W. AMBROSE, SENIOR JUDGE
filed an application for supplemental security income
benefits, alleging physical and mental impairments including
those stemming from an automobile accident and including
post-concussion syndrome, major depressive disorder, and
generalized anxiety disorder. Her application was denied
initially, and upon hearing by an administrative law judge
(“ALJ”). The Appeals Council denied her request
for review. Before the Court are the parties'
Cross-Motions for Summary Judgment. For the following
reasons, Plaintiff's Motion will be denied, and
STANDARD OF REVIEW
review of the Commissioner's final decisions on
disability claims is provided by statute. 42 U.S.C.
§§ 405(g) 6 and 1383(c)(3) 7. Section 405(g)
permits a district court to review the transcripts and
records upon which a determination of the Commissioner is
based, and the court will review the record as a whole. See 5
U.S.C. §706. When reviewing a decision, the district
court's role is limited to determining whether the record
contains substantial evidence to support an ALJ's
findings of fact. Burns v. Barnhart, 312 F.3d 113,
118 (3d Cir. 2002). Substantial evidence is defined as
"such relevant evidence as a reasonable mind might
accept as adequate" to support a conclusion. Ventura
v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971)). Substantial evidence may be
"something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent [the ALJ's decision] from being
supported by substantial evidence." Consolo v. Fed.
Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018,
16 L.Ed.2d 131 (1966). If the ALJ's findings of fact are
supported by substantial evidence, they are conclusive. 42
U.S.C. § 405(g); Richardson, 402 U.S. at 390.
district court cannot conduct a de novo review of the
Commissioner's decision, or re-weigh the evidence of
record; the court can only judge the propriety of the
decision with reference to the grounds invoked by the
Commissioner when the decision was rendered. Palmer v.
Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C.
v. Chenery Corp., 332 U.S. 194, 196 - 97, 67 S.Ct. 1575,
91 L.Ed. 1995 (1947). Otherwise stated, “I may not
weigh the evidence or substitute my own conclusion for that
of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and
reconciliation of conflicting expert opinions. If the
ALJ's findings of fact are supported by substantial
evidence, I am bound by those findings, even if I would have
decided the factual inquiry differently.” Brunson
v. Astrue, No. No. 10-6540, 2011 U.S. Dist. LEXIS 55457
(E.D. Pa. Apr. 14, 2011) (citations omitted). Nonetheless, I
am not required to read the ALJ's opinion “in a
vacuum.” Knox v. Astrue, No. No. 9-1075, 2010
U.S. Dist. LEXIS 28978, at *22 (W.D. Pa. May 26, 2010).
Plaintiff contends that the ALJ erred at step two of the
sequential analysis in finding her mental health and
cognitive impairments non-severe. "Even assuming that
the ALJ failed to include all of the Plaintiff's severe
impairments at step two, this would be harmless error, as the
ALJ did not make his disability determination at this step.
Indeed, remand would not affect the outcome of this case and
is not warranted." Roberts v. Astrue, No.
8-625, 2009 U.S. Dist. LEXIS 91559, at * 15, 2009 WL 3183084
(W.D. Pa. Sept. 30, 2009). Here, at step two, the ALJ found
that Plaintiff had severe impairments of spine injury status
and post-concussion syndrome; the analysis did not end, and
the disability determination was not made at step two.
Therefore, even if the ALJ erred in finding certain
impairments non-severe, the error would be harmless. Remand
is not warranted on this basis.
Plaintiff argues that the ALJ improperly based his decision
on lack of treatment and lack of compliance with medication.
Plaintiff counters with evidence that she did, in fact, seek
mental health treatment; kept her appointments and was
cooperative with her therapist; and that her condition
interfered with her completion of treatment modalities. In
other words, as Plaintiff asserts, she complied to the best
of her ability. These points are well taken, but
Plaintiff's argument elides the context in which the ALJ
made the challenged observations. In connection with his
assessment of the opinions of psychologist William Young, the
ALJ noted that Dr. Young disregarded Plaintiff's lack of
treatment with a psychiatrist (rather than lack of treatment
altogether), and lack of compliance with treatment. The ALJ
engaged in a rather thorough assessment of the weight to be
afforded Dr. Young's opinion; lack of psychiatric
treatment and compliance were merely among the factors that
the ALJ considered. While an ALJ should not draw adverse
inferences about an individual's symptoms and functional
affects from non-treatment or non-compliance without
considering explanations, the ALJ did not do so here.
Instead, Plaintiff's current argument points only to the
ALJ's consideration of Dr. Young's failure to address
those factors when assessing the weight to be afforded Dr.
Young's opinion. Remand is not warranted on this basis.
Plaintiff contends that she meets the requirements of Listing
12.05(C). “Mental Retardation and Autism.” The
Listing was revised, however, effective January 17, 2017;
subsection (C) was removed. Plaintiff's hearing before
the ALJ occurred on August 17, 2017, and the ALJ's
decision is dated November 24, 2017. The Court is to consider
the rules in effect at the time of the ALJ's decision.
Davis v. Colvin, No. 16-112, 2017 U.S. Dist. LEXIS
48044, at *8 n.2 (W.D. Pa. Mar. 30, 2017); McFadden v.
Berryhill, No. 16-1007, 2017 U.S. Dist. LEXIS 39958, at
*5 n.2 (W.D. Pa. Mar. 21, 2017).
Plaintiff's Listing argument relies on the results of IQ
testing performed when she was 21 years old, it the Court
will look to revised Listing 12.05(B). That Listing
requires as follows:
(1) significantly subaverage general intellectual functioning
evidenced by either a full scale IQ score of 70 or below or a
full scale IQ score of 71-75 accompanied by a verbal or
performance IQ score of 70 or below; (2) significant deficits
in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, areas of
mental functioning (including (a) understand, remember, and
apply information; (b) interact with others; (c) concentrate,
persist, or maintain pace; and (d) adapt or manage oneself);
and (3) evidence about current intellectual and adaptive
functioning and the history of the disorder demonstrates or
supports the conclusion it began prior to age 22.
Ken M. v. Berryhill,
340 F.Supp.3d 1070, 1075 (W.D.
Wash. 2018) (citing 20 C.F.R. pt. 404, Subpt. P, app. 1