BRETER v. COMMISSIONER OF SOCIAL SECURITY
Filing
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ORDER denying 7 Motion for Summary Judgment; granting 9 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/27/19. (cha)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL T. BRETER,
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Plaintiff,
-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Action No. 18-171
AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Michael T. Breter (“Breter”) seeks judicial review of the Social Security
Administration’s denial of his claim for a period of disability and disability insurance
benefits (“DIB”).1 Breter alleges a disability onset date of October 10, 2007. (R. 15)) The
ALJ denied his claim following a hearing at which both Breter and a vocational expert
(“VE”) appeared and testified. Breter then appealed. Before the Court are the parties’
cross-motions for summary judgment. See ECF Docket Nos. 7 and 9. For the reasons
set forth below, the ALJ’s decision is affirmed.
Opinion
1. Standard of Review
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The ALJ determined that Breter met the insured status requirements of the Social Security Act through December
31, 2013. (R. 17)
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Judicial 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 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.
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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 Breter’s claim for benefits. More specifically, at
step one of the five step analysis, the ALJ found that Breter had not engaged in
substantial gainful activity between the alleged onset date and the date last insured. (R.
17) At step two, the ALJ concluded that Breter suffers from the following severe
impairments: status post multiple surgical procedures following a right wrist injury. (R.
17-18) At step three, the ALJ concluded that Breter 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) Between steps three
and four, the ALJ found that Breter has the residual functional capacity (“RFC”) to
perform light work except that “he has no effective use of the dominant right upper
extremity for handling, fingering, pushing, pulling, or lifting. He cannot use the extremity
in a ‘helper’ fashion.” (R. 18-20) At step four, the ALJ found that Breter is unable to
perform his past relevant work. (R. 20) Ultimately, at the fifth step of the analysis, the
ALJ concluded that, considering Breter’s age, education, work experience, and RFC,
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there are jobs that exist in significant numbers in the national economy that she can
perform. (R. 20-21)
III. Discussion
(a) Conflict Between DOT and VE Testimony
Breter urges that a remand is necessary because of an unresolved conflict
between the Dictionary of Occupational Titles (“DOT”) and testimony proffered by the
vocational expert (“VE”). Here, at the fifth step of the sequential analysis the ALJ
concluded that, given Breter’s age, education, work experience, and residual functional
capacity, there were jobs that existed in significant numbers in the national economy
that he could perform, such as an usher and a ticket taker. (R. 20-21) As the Third
Circuit Court recognized in Zirsnak v. Colvin, 777 F.3d 607, 616 (3d Cir. 2014), at this
step the Commissioner bears the burden of demonstrating that the claimant can
perform jobs existing in the national economy. “To determine what type of work (if any)
a particular claimant is capable of performing, the Commissioner uses a variety of
sources of information, including the DOT,2 the SSA’s own regulatory policies and
definitions (found in the Code of Federal Regulations (‘CFR’)), and testimony from VEs.”
Zirsnak, 777 F.3d at 616. Issues arise when a vocational expert’s testimony conflicts, or
appears to conflict, with information provided by the DOT. “As a general rule,
occupational evidence provided by a VE should be consistent with the occupational
evidence presented in the DOT.” Id., at 616 (citations omitted). To ensure consistency
between the DOT and a VE’s testimony, courts have imposed an obligation on ALJs to
“’The DOT is a vocational dictionary that lists and defines all jobs available in the national economy and specifies
what qualifications are needed to perform each job.’” Zirsnak, 777 F.3d at 616, quoting, McHerrin v. Astrue, Civ.
No. 9-2035, 2010 WL 3516433, at * 3 (E.D. Pa. Aug. 31, 2010).
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“[i]dentify and obtain a reasonable explanation for any conflicts between occupational
evidence provided by VEs … and information in the [DOT].” Id., at 616. Breter maintains
that the ALJ never asked the VE on the record whether his testimony was consistent
with the DOT and, as such, an inherent conflict exists which requires a remand. I
disagree.
First, Breter himself acknowledges that the DOT does not address one-armed
jobs. See ECF Docket No. 8, p. 5. It is unclear how a conflict can exist if the DOT is
silent on this issue. Given the absence of a conflict, I see no reason for remand. See
Weckherlin v. Berryhill, Civ. No. 16-1487, 2017 WL 3873167, at * 4 (E.D. Mo. Sept. 5,
2017) (stating, “the Court is persuaded by the reasoning of several district and circuit
court cases holding that the DOT’s silence as to a functional limitation does not create a
conflict between the DOT and the VE’s testimony, and therefore does not require inquiry
by the ALJ.”); Sanborn v. Comm’r. of Soc. Sec., 2015 WL 3452872, at * 6 (3d Cir. June
1, 2015); Phillips v. Berryhill, 2017 WL 2224931, at * 7 (E.D. Pa. May 22, 2017) (stating
that “[t]he Third Circuit Court of Appeals has recognized that the DOT’s silence with
regard to the sit/stand option does not place it in conflict with jobs identified by a VE.”);
Horn v. Colvin, 2013 WL 1386836, at * 4 (W.D. Pa. Apr. 4, 2013); Conn. V. Astrue, 852
F. Supp.2d 517, 528 (D. Del. 2012).
Second, even if there was a conflict, it was more than adequately resolved. The
ALJ specifically fashioned an RFC which limited a worker to the use of the nondominant arm. The ALJ asked the VE whether an individual who could perform light
work, but who had no use of the dominant right, upper extremity, meaning no handling,
no fingering, no feeling, and no use of the right, upper extremity even as a helper, could
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perform any jobs. (R. 48) The VE opined that someone with Breter’s RFC could perform
the requirements of an usher and / or ticket taker. (R. 48-49, 57) When asked what the
VE based his opinion on, the VE responded as follows:
[t]he description in the DOT of what people do in the jobs and also on my
professional practice as a rehab counselor in these types of jobs, knowing what
they do out there in jobs and having seen ushers as well as ticket takers and
what they’re doing, you know, out there in the actual economy performing work.
(R. 57) In denying Breter’s claim for benefits, the ALJ noted that: “[t]he vocational expert
testified that the Dictionary of Occupational Titles does not address one-armed jobs,
and that his testimony is based upon his knowledge and experience.” (R. 21) The ALJ
also found the VE’s testimony to be consistent with “Marni, et. al., ‘Employer Validation
of Jobs Performed with One Arm’, Journal of Forensic Vocational Analysis, Vol. 11, No
2, pp. 34-47.” (R. 21) Finally, the ALJ concluded, pursuant to SSR 00-4p, that the VE’s
testimony was consistent with the information contained in the DOT. The ALJ’s reliance
upon this evidence was reasonable, particularly in light of the DOT’s silence on the
matter. The VE provided specific information about the requirements of each job and
claimant’s ability to perform those requirements. As such, I find no basis for remand.
See Knight v. Colvin, Civ. No. 16-1816, 2018 WL 1400077, at * 1, n. 1 (W.D. Pa. 2018).
(b) Breter’s Pain
Breter also argues that the ALJ erred in assessing the intensity, persistence, and
limiting effects of his symptoms, including pain. See ECF Docket No. 8, p. 8-13. In
particular, Breter urges that the ALJ “cherry picked” certain evidence from his extensive
medical records to support the ALJ’s conclusion. After a review of the evidence, I
disagree.
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“There is no requirement that the ALJ discuss in its opinion every tidbit of
evidence included in the record” or that the evidence under each step be discussed in a
particular order. Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Hur v. Barnhart,
94 Fed. Appx. 130, at * 2 (3d Cir. Apr. 16, 2004). Rather, the ALJ must set forth his
decision such that a reviewing court is sufficiently able to discern the basis for the ALJ’s
opinion. In considering the intensity, persistence, and limiting effects of an individual’s
symptoms, the ALJ will examine the entire case record, including the objective medical
evidence; an individual’s statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources and other
persons; and any other relevant evidence in the individual’s case record. SSR 16-3p.
Additionally, the ALJ will also consider daily activities; the location, duration, frequency,
and intensity of pain or other symptoms; factors that precipitate and aggravate the
symptoms; treatment, other than medication, an individual receives or has received for
relief of pain or other symptoms; any measures other than treatment an individual uses
or has used to relieve pain or other symptoms; and any other factors concerning an
individual’s functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c), 416.929(c). The ALJ will also look at inconsistencies between the
claimant’s statements and the evidence presented. Id. I must defer to the ALJ’s
determinations, unless they are not supported by substantial evidence. Smith v.
Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson, 500 F.2d 309, 312
(3d Cir. 1974), cert. denied, 420 U.S. 931 (1975).
In this case, the ALJ specifically stated in his decision that he considered “the
entire record” and “all symptoms and the extent to which these symptoms can
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reasonably be accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 CFR 404.1529 and SSR 96-4p.” (R. 17, 18)
Moreover, the ALJ followed the proper method in assessing Breter’s symptoms and
pain. That is, he first determined whether there was an underlying medically
determinable physical or mental impairment that could reasonably be expected to
produce Breter’s pain or other symptoms, then he evaluated the intensity, persistence,
and limiting effects of those symptoms. (R. 18-20) The ALJ properly compared the
medical evidence and other evidence of record, including activities of daily living, to
Breter’s testimony, and found them to be not entirely consistent. (R. 19) For instance,
prior to his last date insured, Breter performed heavy work in welding school; replaced a
starter, one-handed, in the snow; engaged in heavy activities; attended welding school;
and did things around the house. (R. 19) He also reported “hobbies of arts and crafts,
camping, computers, and hunting” well after the date last insured. (R. 19) A plaintiff
need not be pain free or symptom free to be found not disabled. Rather, a plaintiff must
still show he / she is unable to perform substantial gainful activity. Petition of Sullivan,
904 F.2d 826, 845 (3d Cir. 1990). Based on my review, I find the ALJ properly assessed
Breter’s pain. Furthermore, based on the entire record as a whole, there is substantial
evidence to support the ALJ’s decision regarding the same. Therefore, I find no error in
this regard and remand is not warranted.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL T. BRETER
Plaintiff,
)
)
)
)
)
)
)
)
)
)
-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Action No. 18-171
AMBROSE, Senior District Judge.
ORDER OF COURT
Therefore, this 27th day of March, 2019, it is hereby ORDERED that the Plaintiff’s
Motion for Summary Judgment (Docket No. 7) is DENIED and the Defendant’s Motion
for Summary Judgment (Docket No. 9) is GRANTED. It is further ORDERED that the
ALJ’s decision is AFFIRMED. This case shall be marked “Closed” forthwith.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
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