HORVATH v. SAUL

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

HOLLY LYNN HORVATH, ) ) Plaintiff, ) ) -vs- ) Civil Action No. 19-788 ) ANDREW M. SAUL, ) COMMISSIONER OF SOCIAL ) SECURITY, ) ) Defendant. ) AMBROSE, Senior District Judge.

OPINION AND ORDER Synopsis Plaintiff Holly Lynn Horvath (“Horvath”) seeks judicial review of the Social Security Administration’s denial of her claim for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Horvath alleges a disability onset date of October 1, 2014. (R. 15) The ALJ denied her claim following a hearing at which both Horvath and a vocational expert (“VE”) appeared and testified. Horvath then appealed.

Before the Court are the parties’ cross-motions for summary judgment. See ECF Docket Nos. 11 and 13. Horvath filed an additional Motion based upon an Appointments Clause argument at No. 15, which will be addressed in a separate Opinion. For the reasons set forth below, the ALJ’s decision is affirmed.

Opinion 1. Standard of Review Judicial review of the Commissioner’s final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g) 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 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). Determining whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence – particularly certain types of evidence (e.g., that offered by treating physicians).” Id. 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); Richardson, 402 U.S. at 390, 91 S. Ct. 1420.

Importantly, a 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, 196-7, 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, 2011 WL 2036692, 2011 U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).

II. The ALJ’s Decision As stated above, the ALJ denied Horvath’s claim for benefits. More specifically, at step one of the five step analysis, the ALJ found that Horvath had not engaged in substantial gainful activity since the alleged onset date. (R. 17) At step two, the ALJ concluded that Horvath suffers from the following severe impairments: affective disorders, borderline intellectual functioning, and alcohol abuse. (R. 17-18) At step three, the ALJ concluded that Horvath does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19) Between steps three and four, the ALJ found that Horvath has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with certain nonexertional limitations. (R. 20-26) At step four, the ALJ found that Horvath is unable to perform past relevant work. (R. 26) At the fifth step of the analysis, the ALJ concluded that, considering Horvath’s age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform. (R. 26-27) As such, the ALJ concluded that Horvath was not under a disability during the relevant period of time. (R. 27) III. Discussion1 (1) Severe Impairments Horvath faults the ALJ for failing to consider her anxiety and mild intellectual disorder2 at step two of the sequential analysis. I agree that the ALJ’s analysis is deficient in this respect but such deficiency is not fatal. Any error was harmless because the ALJ found in Horvath’s favor at step two. See Salles v. Commissioner of Soc. Sec., 229 Fed. Appx. 140, 145 n. 2 (3d Cir. 2007) (“[b]ecause the ALJ found in Salle’s favor at Step Two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless.”), citing, Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). Additionally, it is clear from the decision that the ALJ considered Horvath’s anxiety and mental impairments throughout the sequential analysis. Consequently, I find no error. (2) Step Three - Listings As stated above, at the third step of the analysis, the ALJ determined that Horvath did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ considered Listings 12.04 and 12.06. (R. 18-19) Horvath contends that the ALJ should have considered Listing 12.05 as well, and that she erred in failing to do so.

As the Third Circuit Court states, “[i]n determining whether a claimant has met his burden of showing that his impairment meets or equals a listed impairment, it is the Commissioner’s duty to first identify and specify those listings that potentially apply to the claimant’s impairments.” Mann v. Commissioner of Social Sec. Admin., 638 Fed. Appx. 123, 125 (3d Cir. 2016). Indeed, identifying the most applicable listing is within the “realm of the ALJ’s expertise” and requiring the ALJ to identify the relevant listings “is consistent with the nature of Social Security disability proceedings.” Burnett v. Comm’r. of Soc. Sec., 220 F.3d 112, 120 n. 2 (3d Cir. 2000). Given that these proceedings are “inquisitorial rather than adversarial” in nature and because “it is the ALJ’s duty to investigate the facts and develop the arguments both for and against granting benefits,” the responsibility for identifying the relevant Listings is appropriately placed on the ALJ. See Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080 (2000).

As an initial matter then, I agree for purposes of argument that the ALJ should have addressed Listing 12.05 in this context. Nevertheless, the Third Circuit Court has stated that such a deficiency can, in certain cases, constitute a harmless error. See Rivera v. Comm’r. of Soc. Sec., 164 Fed. Appx. 260, 263 (3d Cir. 2006). “Harmless error exists in this context when, for example, a reviewing court examines the evidence at issue and finds ‘abundant evidence supporting the [ultimate] position taken by the ALJ, and comparatively little contradictory evidence.’” Wiberg v. Colvin, Civ. No. 11-494, 2014 WL 4180726, at * 17 (D. Del. Aug. 22, 2014), quoting, Rivera, 164 Fed. Appx. at 263. See also, Rosa v. Comm’r. of Soc. Sec., Civ. No. 12-5176, 2013 WL 5322711, at * 7-8 (D.

N.J. Sept. 20, 2013). After careful review, I agree with the Defendant that the ALJ’s failure to address Listing 12.05 constitutes harmless error.

Listing 12.05B3 has three requirements. A claimant must have: (1) a significantly subaverage general intellectual functioning; (2) significant deficits in adaptive functioning; and (3) evidence that the disorder began prior to the age of 22. Both Listing 12.05B(2) and Listings 12.04B and 12.06B share the same criteria. That is, they require an extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understand, remember or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. The ALJ considered each of these criteria and determined that, because Horvath’s mental impairments did not cause at least two “marked” limitations or one “extreme” limitation, the criteria set forth in paragraph B were not satisfied.

Specifically, the ALJ concluded that Horvath has only “moderate” limitations with respect to understanding, remembering, or applying information. (R. 19) The ALJ explains that, although Horvath contends that she has trouble with multi-step tasks, following instructions and making decisions, the evidence demonstrates that she has experienced improvement with reduced alcohol consumption and the use of medication. (R. 19, citing Exs. 5F, 21F, 6E). With respect to interacting with others, the ALJ found that Horvath has a moderate limitation. She acknowledged that Horvath has social anxiety and isolates herself from crowds and reports that she has no friends and socializes primarily with her family. (R. 19) Yet the ALJ found that the records indicate that Horvath is able to attend regular medical appointments, drinks “socially,” lives with

Although the ALJ made these conclusions within the context of Listing 12.04 and 12.06, the requirements are identical with respect to Listing 12.05, and, as stated above, there is substantial evidence indicating that Horvath could not have satisfied the requirements of Listing 12.05B(2).4 Indeed, Horvath makes no meaningful analysis with respect to these criteria. Rather, she focuses her argument upon her IQ scores and any alleged errors the ALJ may have committed in connection with determining such scores under 12.05B(1). Yet even accepting for purposes of argument that the ALJ erred in this regard, Horvath only demonstrates that the ALJ erred with respect to her finding

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. § [404.1527]([c])(2), the opinion of a treating physician is to be given controlling weight only when it is well- supported by medical evidence and is consistent with other evidence in the record.

Becker v. Comm’r. of Soc. Sec. Admin., 403 Fed. Appx. 679, 686 (3d Cir. 2010). The ultimate issue of whether an individual is disabled within the meaning of the Act is for the Commissioner to decide. Thus, the ALJ is not required to afford special weight to a statement by a medical source that a claimant is “disabled” or “unable to work.” See 20 C.F.R. § 404.1527(d)(1), (3); Dixon v. Comm’r. of Soc. Sec., 183 Fed. Appx. 248, 251- (3d Cir. 2006) (“[O]pinions on disability are not medical opinions and are not given any special significance.”).

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.

Sec., 577 F.3d 500, 505 (3d Cir. 2009). The ALJ must provide sufficient explanation of his final determination to provide a reviewing court with the benefit of the factual basis underlying the ultimate disability finding. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). In other words, the ALJ must provide sufficient discussion to allow the court to determine whether any rejection of potentially pertinent, relevant evidence was proper.

Johnson v. Comm’r. of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008).

Here, Horvath’s argument focuses upon the weight the ALJ accorded the opinions offered by Dr. Aponte and Dr. Ostrich.5 The ALJ explained that she gave Ostrich’s opinion great weight because it is supported by the record. This is an appropriate and valid reason for crediting evidence. See 20 C.F.R. § 404.1527; 416.927. Further, substantial evidence supports her finding in this regard. (R. 23) Indeed, Horvath offers nothing to undermine Ostrich’s findings other than IQ testing which occurred after he rendered his opinion. Yet the ALJ considered the IQ testing and acknowledged the findings. She determined that the restrictions in the RFC “adequately accommodate the claimant’s borderline intellectual functioning.” (R. 22) Additionally, she gave the opinion authored by Dr. Groves, who conducted the IQ testing, only “partial” weight. (R. 23) The ALJ noted that Groves had only limited clinical contact with Horvath and that Horvath’s outpatient mental health records portray an average intellectual ability based upon regular examinations over a period of three years. (R. 23) Indeed, the ALJ explained that “the observations of the claimant’s examiners regarding

I similarly reject Horvath’s contention that the ALJ erred in giving Dr. Aponte’s opinion “little” weight. The ALJ explains that the findings are not supported by the treatment records; that inpatient treatment was only required for alcohol-related problems; that other mental health issues have been managed with outpatient counseling and medication; and that Horvath has experienced improvement with abstinence from alcohol and the use of medication. (R. 24) Further, Horvath is able to perform activities of daily living. (R. 24) These are valid reasons for discounting the opinion and the ALJ’s findings are supported by substantial evidence of record.

Horvath’s arguments concerning the assessment of medical evidence amounts to little more than a request for a re-weighing of the evidence of record. However, I cannot conduct a de novo review. If the ALJ’s findings of fact are supported by substantial evidence, I am bound by those findings. Here, the ALJ’s findings are so supported. Further, because those findings are supported by substantial evidence of record, the ALJ’s RFC assessment similarly is supported by substantial evidence of record. Consequently, there is no basis for remand.6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HOLLY LYNN HORVATH ) Plaintiff, ) ) -vs- ) Civil Action No. 19-788 ) ANDREW M. SAUL, ) COMMISSIONER OF SOCIAL ) SECURITY, ) ) Defendant. ) AMBROSE, Senior District Judge.

ORDER OF COURT Therefore, this 7th day of May, it is hereby ORDERED that the Plaintiff’s Motion for Summary Judgment (Docket No. 11) is DENIED and the Defendant’s Motion for Summary Judgment (Docket No. 13) is GRANTED. Because a Motion for Summary Judgment (Docket No. 15) remains pending, this case shall NOT be marked “closed.”

BY THE COURT: /s/ Donetta W. Ambrose Donetta W. Ambrose United States Senior District Judge