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Hartzog v. Berryhill

United States District Court, W.D. Pennsylvania

September 19, 2019

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


          Alan N. Bloch United States District Judge

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

         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.



[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.

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.

The Court’s major concern last time was that the ALJ, in his December 23, 2014 decision, appeared to find that Plaintiffs 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 Plaintiffs migraines in the RFC. In his 2018 decision, though, the ALJ clearly indicated that Plaintiffs migraines impacted her RFC throughout the relevant timeframe. (R. 1994-96). He, in fact, expressly explained how he incorporated Plaintiffs 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., Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs migraines in determining their impact on the RFC.

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 ...

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