United States District Court, W.D. Pennsylvania
N. Bloch United States District Judge
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.
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.
 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
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.
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
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