BERTHOLD v. COMMISSIONER
Filing
19
OPINION. Signed by Judge Kevin McNulty on 10/17/2018. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES R. BERTHOLD,
Plaintiff,
Civ. No. 17-6518 (1(M)
V.
OPINION
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
KEVIN MCNULTY. U.S.D.J.:
Mr. James Berthold brings this action pursuant to 42 U.S.C.
§ 405(g),
1383(c) (3) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying his claims to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. § 40 1—34. For the reasons
set forth below, the decision of the Administrative Law Judge (“ALl”) is
AFFIRMED.
I.
BACKGROUND
The claimant, Mr. Berthold, seeks to reverse a finding that he did not
meet the Social Security Act’s definition of disability from May 13, 2013, the
onset date, through September 30, 2014, the late last insured. (R. 26).’ The
claimant filed his original application on January 6, 2014. (R. 17) The claim
was denied on August 26, 2014. (R. 17) The claimant received a hearing before
Administrative Law Judge Ricardy Damille on April 29, 2016, (A copy of the
Citations to the record are abbreviated as follows:
= Administrative Record (DE 7)
“P1. Br.” = Memorandum of Law on Behalf of the Plaintiff (DE 9)
“Def. Br,” = Defendant’s Brief Pursuant to Local Civil Rule 9.1 (DE 16))
1
Hearing Transcript (“Tr.”) is at 1?. 33—58.) Mr. Berthold, who was represented by
counsel, testified, as did a Vocational Expert (“VE”), Andrew Vaughn.
On June 17, 2016, the AM issued a decision which found the claimant
not disabled for purposes of the Social Security Act. (R. 14-32). Mr. Berthold,
still represented by counsel, sought review from the Appeals Council, which
denied review, rendering the AU’s decision final. (R. 1-4). This district court
action followed.
II.
AU’S DECISION AND STANDARD OF REVIEW
To qualify for DIB or 551, a claimant must meet income and resource
limitations and show that she is unable to engage in substantial gainful activity
by reason of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C.
§ 423(d)(1)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R. § 416.905(a); see Wig v.
Comm’r Soc. Sec., 570 F. App’x 262, 264 (3d Cir. 2014); Diaz i-c Comm’rof Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. The Five-Step Process
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.P.R.
§ 404.1520, 4 16.920.
This Court’s review necessarily incorporates a determination of whether the
AM properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
§ 404.1520(c), 416.920(c). If the
claimant has a severe impairment, move to step three.
2
Step Three: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.
404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high
level to identi1’ clear cases of disability without further analysis.) If so, the
claimant is automatically eligible to receive benefits; if not, move to step four.
Id.
§
404.1520(d), 4 16.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id.
§
404.1520(e)—(f), 416.920(e)—(fl. If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering her age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.
§
404.1520(g), 4 16.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
B. The ALl’s Decision
AW Ricardy Damille followed the five-step process in determining that
Mr. Berthold was not disabled in the relevant period. The ALl’s findings may be
summarized as follows:
Step One: At step one, the ALl found that Mr. Berthold had not engaged
in substantial gainful activity from May 1, 2013, through September 30, 2014.
(R. 19).
Step Two: At step two, the ALl determined that Mr. Berthold had the
following severe impairments: degenerative disc disease of the back; cervical
myelopathy; PTSD; and osteoarthritis of the left hip. (1?. 19).
Step Three: At step three, the ALl found that Mr. Berthold did not have
an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P.,
app. 1. (1?. 20-2 1).
3
Step Four: At step four, “[a]fter careful consideration of the entire
record,” the AM found that Mr. Berthold had the following RFC:
[Tjhe claimant had the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b). The claimant is able to
stand for four hours in an eight-hour day. He is able to
occasionally climb ramps and stairs; never climb ladders, ropes, or
scaffolds; and occasionally stoop and crawl. He is able to
frequently handle and finger with the hands. He must avoid
concentrated exposure to extreme cold, extreme heat, and
humidity. He must avoid moderate exposure to fumes, odors,
dusts, gases, and poor ventilation. He can understand, remember,
and carry out simple instructions, and can handle changes to
essential job functions on an occasional basis. He is limited to
occasional interaction with coworkers and the public.
(R. 21). The AM also determined that Mr. Berthold was unable to perform past
relevant work as a delivery truck driver, patrol officer, or solar energy systems
installer helper, either specifically or as generally performed. The demands of
those jobs exceed his RFC. (R. 25).
Step Five: At step five, the AM considered Mr. Berthold’s age, education,
work experience, and RFC, and found that he could perform jobs that existed
in significant numbers in the national economy. In doing so, the AM consulted
the Medical-Vocational Guidelines. (1?. 25—26). The Medical-Vocational
Guidelines are tables that set forth presumptions of whether significant
numbers of jobs exist in the national economy for a claimant. 20 C.F.R. Pt.
404, subpt. P, app. 2. These presumptions vary based on a claimant’s age,
education, work experience, and work capability. Id. Relying on the testimony
of the VE, the AM identified several representative jobs that Mr. Berthold could
perform despite the limitations of his RFC: “mail clerk, light, SVP of 2, 70,000
jobs nationally; addressing clerk, sedentary, SVP of 2, 62,000 jobs nationally;
or order clerk, sedentary, SVP of 2, 163,000 jobs nationally (Dictionary of
Occupational Titles, U.S. Dept of Labor, code 209.687-026; 209.587-010;
209.567-014).” (1?. 26).
4
The AJJ therefore determined that Mr. Berthold was “not disabled” for
purposes of the Social Security Act. (R. 26—27).
C. This Court’s Standard of Review
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sea, 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AIJ’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.
§
405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak u. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[IJn evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the claimant’s
findings
the Secretary’s responsibility to rebut it should
disability, and
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
...
...
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§
405(g)); Zimsak, 777 F.3d at 610-11 (“[Wje are
mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.
§
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
5
a rehearing. Podedwomy u. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Cornm’r of Soc. Sec., 235 F. App5c 853, 865-66 (3d Cir. 2007).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedwomy, 745 F.2d at 22 1-22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
III.
DISCUSSION
A. RFC Determination
Mr. Berthold challenges the AU’s determination of his RFC. First, he
faults the AU for failing to properly weigh the claimant’s credibility. Second, he
states more generally that the AU did not weigh the evidence properly, and in
particular failed to give sufficient weight to the opinion of Mr. Berthold’s
treating physicians. The AU’s conclusions, however, were supported by
substantial evidence.
The AU credited the evidence that Mr. Berthold suffered from several
documented medical impairments: degenerative disc disease of the back;
cervical myelopathy; VFSD; and osteoarthritis of the left hip. (R. 19) The
symptoms claimed as a result of those impairments were as follows:
The claimant alleges that tingling and numbness in his hands and
feet, low back pain, left side hip pain, fatigue, shoulder pain, leg
twitching, wheezing, and psoriasis boils prevents him from working
(Ex. IE at 2). The claimant testified that he has mood swings,
anger, anxiety panic attacks, and increased isolation as a result of
his PTSD. He testified that he can lift up to a gallon of milk, walk
up to two blocks, and stand a few minutes at a time. The claimant
also alleged that he has difficulty concentrating and
remembering directions.
6
(R. 22) The AU did not reject these claims out of hand; indeed, he accepted
that the medical impairment would reasonably be expected to produce such
symptoms. Where the AU parted company with the claimant was in relation to
the “intensity, persistence and limiting effects of these symptoms,” which, he
found, were “not entirely consistent with the medical evidence and other
evidence in the record.” (R. 22)
A claimants subjective complaints merit careful consideration, but the
AU is not required to accept them uncritically. Chandler v. Comm’r of Soc Sea,
667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R.
§
416.929). Rather, the AU
is required to assess whether and to what degree such complaints are credible.
Such credibility determinations are reserved for the AU:
[W]hile an AU must consider a claimant’s subjective complaints,
an AU has discretion to evaluate the credibility of a claimant and
arrive at an independent judgment in light of medical findings and
other evidence regarding the true extent of the pain alleged by the
claimant. Subjective complaints cannot alone establish disability.
Gantt v. Comm’r Soc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (internal
quotations and citations omitted). See also 20 C.F.R.
§
404.1529(c); Malloy z’.
Cornm’r of Soc. Sec., 306 F. App’x 761, 765 (3d Cir. 2009) (citing Van Horn v.
Schweiker, 717 F. 2d 871, 873 (3d Cir. 1983)); Davis v. Com’r of Soc. Sea, 240
F. App’* 957, 960 (3d Cir. 2007).
The AU may reject subjective complaints, for example, if they are not
credible in light of the other evidence of record. Schaudeck v. Comm’rof Soc
Sec., 181 F.3d 429, 433 (3d Cir. 1999). The AU is called upon to evaluate the
intensity, persistence, and limiting effects of a claimant’s symptoms to
determine the extent to which they limit her ability to perform basic work
activities. See 20 C.F.R.
evidence
.
.
.
§
404. l529(c)(2). As to that issue, “[o]bjective medical
is a useful indicator.” Id. The AU may also examine factors that
precipitate or aggravate the symptoms, medications and treatments, and daily
living activities. 20 C.F.R.
§
1529(c)(3).
7
The AW’s credibility determination “must contain specific reasons for the
finding reasons for the weight given to the individual’s symptoms” and “be
consistent with and supported by the evidence.” SSR 16-3; see also 20 C.F.R.
§ 404.1529(b), 416.929(b). What is required overall is that the ALl give the
claimants testimony “serious consideration,” state his reasons for discounting
it, and make “specific findings.” Rowan v. Bamhart, 67 F. App5c 725, 729 (3d
Cir. 2003). Where that has been done, a reviewing court will defer to the ALl’s
credibility determinations.
The ALl here discharged that obligation. His decision, supported by
substantial evidence in the record, represents a classic weighing of the
evidence to which this Court must defer.
Initially, counsel for the claimant argues that the ALl was insufficiently
specific about his reasons for discounting Berthold’s testimony, and inaccurate
in his on-the-record comments. Counsel pronounces himself “appalled” at the
ALl’s recital of Mr. Berthold’s ability to perform such daily activities as caring
for a pet, driving, shopping, and so on. (P1. Br. at 5) The ALl, he says, seems
“unaware that a claimant’s ability to perform his or her daily activities does not
equate to the ability to do substantial gainful activity on a sustained basis.
Makovics v. Schweiker, 577 FSupp [sic] 1287 (d. Del [sic] 1983).”
The ALl was not “unaware” of his obligation to weigh all of the evidence.
True, he briefly cited the testimony of the claimant’s girlfriend regarding the
claimant’s ability to perform a wide range of daily activities. (R. 24) The ALl
noted that such activities were “not limited to the extent one would expect,
given the complaints of disabling symptoms and limitations.” (Id.) Daily
activities, however, were but one component of the ALl’s analysis. The ALl
considered the claimant’s complaints, weighing them in light of a thorough
review of all the medical and non-medical evidence, as he was obligated to do.2
Counsel also takes exception to what he portrays as the ALl’s purposeful
misstatement of the onset date. Counsel stated on the record that the “amended”
April 1, 2014; prior to then, he stated, the mental
onset date, at least for PTSD,
2
was
8
The AW noted an extensive history of clinical findings that were not
consistent with the claimant’s complaints:
The medical record indicates some complaints but clinical
findings are not consistent with the claimant’s allegations. In
January 2014, the claimant was found to have degenerative disc
disease of the lumbar spine, cervical myelopathy, and
osteoarthritis of the left hip. Examination of the cervical spine
revealed active range of motion, and negative seated straight leg
raise and Spurling test for radicular symptoms. In addition, motor
strength was five out of five (Ex. 3P at 65-66). Regarding the
claimant’s nerve pain, in January 2014, the claimant complained
of pain in his hands but a nerve conduction study was normal (Ex.
3F at 2). There were no findings of cervical or lumbar
radiculopathy and it was noted that the claimant did not meet the
minimum criteria for peripheral polyneuropathy (Ex. 12F at 60,
241). In March 2014, the claimant underwent an MRI of the
lumbar spine that found LS-Sl broad based bulging and right
neuroforaminal stenosis. The cervical spine showed congenital
fusion of CS, C6, C7, and Ti with severe left neuroforaminal
stenosis at C3-C4 (Ex. 3F at 9). The claimant also underwent an x
ray of the pelvis that was normal except for a cyst in the superior
left acetabulum (Id. at 127). X-rays of the feet found only mild
osteoarthritic changes and x-rays of the wrists showed no arthritic
changes, but small arthritic spurs were noted in the elbows (Id. at
123-124). In April 2014, Dr. Changarmk Sivadas, consultative
internist, noted that the claimant did not use any ambulatory aids
(Ex. 2F at 1). He found a spasm in the cervical spine with limited of
range of motion in all directions, and limited range of motion in the
lumbar spine. The claimant was also found to have normal hips
and full muscle strength with no straight leg raise issues. The
claimant underwent an x-ray of the lumbar spine showed
degenerative changes at L5-Si. Dr. Sivadas also noted that the
claimant had normal gross and fine finger movements (Ex. 2F at
2). In July 2014, examination records indicate full muscle strength
throughout his extremities (Ex. 31? at 5). Imaging results from
condition had been treated as an adjustment disorder. (R. 38—39) The ALPs decision
found no disability for the entire period May 1, 2013, through September 30, 2014. It
was based, not only on the recently-diagnosed PTSD, but also on other chronic
conditions based on evidence dating from before April 1, 2014. This error, if that is
what it was, could not have affected the result.
9
February 2015 found no abnormalities in the bilateral hips (Ex.
l2Fat 9).
Regarding the claimant’s PTSD and adjustment disorder, the
record does not indicate limitations that would prevent him from
performing basic work activities In June 2014 the claimant was
diagnosed with VFSD and in July 2014 he was noted to be
clinically stable (Ex. 3F at 8; Ex. 1 IF at 5). In August 2014, the
consultative psychologist, Dr. Fulford, noted that the claimant
has ever been hospitalized for any psychiatric disorder. Upon
examination, Dr. Fulford found the claimant to have a
substantially normal mental status examination (Ex. 4F). In
October 2015 the claimant was noted to be negative for depression
or anxiety and his mental status examination as normal (Ex. 12F
at 62).
.
(1?. 22—23) The AM accepted and gave weight to this medical evidence.
The AM then discussed the medical evidence, both positive and negative
from the claimant’s point of view, that he did not fully accept. In doing so, he
discharged his obligation to give reasons for his credibility determinations.
The AM considered but discounted the report of a medical consultant,
Dr. Frederick, Cohen. This consultant, the AM wrote, had not personally
examined the claimant, and the other medical evidence actually supported
greater limitations than those found by Dr. Cohen. (1?. 23)
The AM considered but discounted a March 2016 letter from
RobertReynolds, VA Benefits Assistance Direct, stating that Mr. Berthold has a
permanent total disability. Mr. Reynolds, the AM wrote, did not appear to be a
“medically acceptable source,” his letter did not note particular functional
limitations, and the VA’s standards for disability are not the same as those of
the SSA. (R. 23) For similar reasons he discounted a March 2015 VA medical
record indicating 70% disability due to VPSD. (1?. 23—24)
The AM discounted a March 2016 GAF score of 41, because it is a “one
time snapshot,” which “may not represent longitudinal difficulties.” (R. 23) (I
take that to mean, among other things, that it dates from well after the relevant
period and does not measure impairments over time.)
10
Finally, the AIJ considered but discounted the opinions of two treating
physicians: Dr. Yousef Kat and a psychologist, Dr. Mark Vogel. (N. 23, 24)
“LT]he opinion of a treating physician does not bind the AW on the issue
of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011).
Nevertheless, a treating physician’s opinion is entitled to careful consideration.
Thus, for example, the courts will “give greater weight to the findings of a
treating physician than to the findings of a physician who has examined the
claimant only once or not at all.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d
Cir. 1993); 20 C.F.R.
§ 404.1527(c)(2). A treating physician’s opinion will be
accorded “controlling weight” if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case record.” Fargnoli
ii.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001); see Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000);; see also 20 C.F.R.
§ 404.1527(c)(2). An AW may therefore
reject a treating physician’s opinion, but “only on the basis of contradictory
medical evidence.” Morales, 225 F.3d at 318 (internal quotation marks
omitted). An AW may discount any physician’s opinion, including a treating
doctor’s, where the opinion is conclusonr, inconsistent with the record as a
whole, or other facts contradict the veracity of the opinion. 20 C.F.R.
§
404. 1527(c)(3)-(6).
The opinions of treating professionals, Dr. Kat and Dr. Vogel, did not
stand unrebutted by other medical evidence of record. The AW gave them
respectful consideration and gave cogent reasons for giving them little weight.
As for Dr. Kat, the defendant argues that the record contains no detailed
treatment notes, but only a check-box report. (Ex. lOP) Such check-list reports
are often discounted on that basis alone, at least where competing, reasoned
medical analyses are available. See Mason v. Shalasla, 994 F.2d 1058, 1065
(3d Cir. 1993); Griffin z’. Comm’r of Soc. Sec., 305 F. App’x 886. 890—91 (3d Cir.
2009). The defendant exaggerates somewhat, in stating that Dr. Kat merely
checked boxes; as the claimant’s counsel points out, his report contains some
11
limited narrative. (P1. Brf. 7 (quoting Ex. lOP) (“he has anxiety, anger,
difficulties with interpersonal interactions, unable to [t]mst others; he is hyper
vigilant and feels [u]nsafe outside the house.”).
More important to this Court are the AU’s substantive reasons for
discounting Dr. Kat’s analysis:
Dr. Kat opined that the claimant has a marked limitations in his
abffitv to get along with coworkers or peers without distracting
them; and moderate limitations in responding appropriately to
changes in the work setting, and tolerating normal levels of stress
(Id. at 3-4). He further opined that the claimant would be off task
20 percent of the time and absent 10-13 days per month (Id. at 4).
Dr. Kat estimated the claimant’s GAF to be 49 indicating
significant limitations. Little weight is given to this opinion because
the GAP score is wholly inconsistent with the substantially mild
limitations noted in his report. Dr. Kat’s opinion that the claimant
has marked limitations in getting along with coworkers is
unsupported by treatment notes and although the claimant
testifiedthat he isolates himself at times, he denied every being
fired or laid off from a job for not getting along with people. See Ex.
12E.
-
(R. 23) Those reasons, particularly in light of the competing medical analyses
summarized above, are sufficient.
As for the November 2015 report of Dr. Mark Vogel, a treating
psychologist, the AU’s analysis was mixed. All in all, he found that Dr. Vogel’s
report was entitled to “some weight,” but that its conclusions were not specific:
In November 2015, the claimant’s treating psychologist, Dr. Mark
Vogel, opined that the claimant has an occupational and social
impairment with deficiencies in most area, such as work, school,
family relations, thinking, and mood (Ex. 12P at 145). Some weight
is given to this opinion because Dr. Vogel is a treating source but it
is unclear the degree of deficiencies the claimant has in those
areas or what specific functional limitations the claimant has that
would impact work, school, or family relations.
(R. 24) Here, too, the AU discharged his duty to justify giving limited weight to
the treating psychologist’s opinion.
12
Ultimately, “[t]he credibility determinations of an administrative judge
are virtually unreviewable on appeal.” Hoyman v. Calvin, 606 F. App’5c 678, 681
(3d Cir. 2015) (citing Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed.
Cir. 2002)). Credibility determinations are entitled to “great deference.”
Horodenski v. Camm’r of Soc. Sec., 215 F. App5c 183, 188-89 (3d Cir. 2007)
(citing Atlantic Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001)). What
is required overall is that the AU give the claimant’s testimony “serious
consideration,” state his reasons for accepting or discounting it, and make
“specific findings.” Rowan v. Bamhart, 67 F. App’ic 725, 729 (3d Cir. 2003).
Where this has been done, a reviewing court will defer to the AU’s credibility
determination.
That was done here. The AU respectfully considered Mr. Berthold’s
claims of disabling symptoms, accepted them to a great extent, and where he
discounted them, gave reasons that were firmly based in the evidence of record.
No more is required to meet the “substantial evidence” standard.
The claimant here challenges the AU’s fact finding, but does not contend
that the RFC is inconsistent with the facts as found by the AU. I find that the
medical facts, as found by the AU, do support the limitations of the RFC
(quoted at p. 4, supra). Having upheld the AU’s fact finding, I uphold his RFC
determination as well.
B. Step 5: Work Available in the National Economy
Mr. Berthold also challenges the AU’s Step 5 determination, based on
the testimony of the YE, that given his RFC, he is able to perform certain jobs
available in the national economy (quoted at p. 4, supra). As is often the case,
the challenge to the Step 5 finding is really another version of the claimant’s
challenge to the fact-finding underlying the RFC. No other flaw is alleged. (See
P1. Brf. at 8.)
It is true of course that a hypothetical question posed to a YE must
reflect all of the claimant’s limitations that are supported by substantial
evidence, if the VE’s opinion is to be valid. See, e.g., Bums v. Bamhart, 312
13
F.3d 113, 123 (3d Cir. 2002) (“Where there exists in the record undisputed
evidence of specific impairments not included in a hypothetical question to a
vocational expert, the expert’s response is not considered substantial
evidence.”). That does not mean, however, that the VE must be asked to opine
on all imitations alleged by a claimant. See Rutherford v. Bamhart, 399 F.3d
546, 554 (3d Cir. 2005) (“We do not require an AU to submit to the vocational
expert every’ impairment alleged by a claimant. Instead
...
hypotheticals posed
must ‘accurately portray’ the claimant’s impairments and that the expert must
be given an opportunity to evaluate those impairments
established
....
...
that are medically
[Thus, tjhe AU must accurately convey to the vocational expert
all of claimant’s credibly established limitations.”).
I have already found that the RFC determination was supported by
substantial evidence. That RPC was the basis for the yE’s opinion regarding
jobs in the national economy that a person with Mr. Berthold’s limitations
could perform. The AU did not err at step five.
IV.
CONCLUSION
For the foregoing reasons, the decision of the AU is affirmed. An
appropriate order accompanies this opinion.
Dated: October 17, 2018
MCNULTY
United States District Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?