ENCI v. ASTRUE

Filing 14

ORDER denying 9 Plaintiff's Motion for Summary Judgment; granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/12/2012. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT J. ENCI, JR.,

Plaintiff,
vs.

Civil Action No. 11-31

MICHAEL J. ASTRUE ,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o

R D E R

AND NOW, this 12th day of March, 2012, 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., finds that the
Commissioner's findings are supported by substantial evidence and,
accordingly, affirms.

See 42 U.S.C. §405 (g) i Jesurum v. Secretary of

U.S. Department of Health & Human Services, 48 F.3d 114, 117 (3d Cir.
1995) i Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert.
denied sub nom., 507 U.S. 924 (1993) i Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988).
944

(W.D.

Pa.

1990)

See also
{if

----~------------

, 738 F. Supp. 942,

supported by substantial

evidence,

the

Commissioner's decision must be affirmed, as a federal court may neither
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reweigh the evidence, nor reverse, merely because it would have decided
the claim differently)

(citing Cotter v. Harris,

642 F.2d 700, 705

(3dCir.1981)).1

Plaintiff argues that the testimony of the vocational expert ("VE")
was not consistent with the Dictionary of Occupational Titles ("DOT") and,
therefore, did not constitute substantial evidence upon which the
Administrative Law Judge ("ALJ") could rely. However, neither the facts of
the case nor the applicable law support this position.
Plaintiff's primary argument relates to the VE's treatment of the
sit/stand option requirement contained in the residual functional capacity
("RFC") determined by the ALJ. Despite Plaintiff's misleading claim that
"the VE never even mentioned that his testimony regarding the si t/ stand option
was inconsistent with the DOT," the discussion between the ALJ and VE
regarding the effect of the sit/stand option on the jobs available for
Plaintiff was quite extensive. For each of the jobs the VE found that the
hypothetical person identified by the ALJ could perform at the light
exertional level, he expressly reduced the number of such positions available
in half to account for the sit/stand option.
(R. 55). He explained what
he meant by a "sit/stand option," and when asked by the ALJ whether his
testimony was consistent with the DOT, testified that it was, except for
the adjustment he made for that option. He further explained that he made
this reduction based on his experience in placing individuals.
(R. 56-57).
In her decision, the ALJ fully explained that the sit/stand option is not
directly addressed by the DOT, but that the VE was able to testify on the
matter based on his expertise and experience. This analysis clearly complied
with S.S.R. 00-04p, 2000 WL 1898704 (S.S.A.) (Dec. 4, 2000).
Regardless, even if the record had not contained the discussion set
forth above, an unexplained conflict between a VE's testimony and the DOT
does not require remand if substantial evidence supports the ALJ' s findings.
See Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005) i Boone v.
Barnhart, 353 F.3d 203, 209 (3d Cir. 2003). Moreover, minor unexplained
inconsistencies do not necessarily warrant a remand. See Rutherford, 399
F. 3d at 558. Here, substantial evidence clearly supports the ALJ' s reliance
on the VE's testimony regarding the impact of the sit/stand option. As
discussed above, the DOT is silent as to the sit/stand option in regard to
the relevant occupations, so the VE's testimony taking this additional
limitation into account was not inconsistent with the DOT in any way. In
any event, as explained above, he adequately explained how he factored the
option into his analysis.

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Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No.9) is DENIED and defendant's Motion for
Summary Judgment

(document No.

11)

is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

The other "conflicts" between the VE' s testimony and the DOT cited by
Plaintiff likewise find no support in the facts of law. For example,
Plaintiff argues that a limitation to unskilled work would preclude a job
with a specific vocational preparation ("SVP") time rating of 2 under the
DOT. However, SSR 00-04p specially provides that "unskilled work
corresponds to an SVP of 1-2." Id. at *3. Likewise, Plaintiff argues that
a limitation to routine and repetitive tasks would preclude work requiring
a reasoning level of 2 under the DOT. This argument was specifically rej ected
by the Third Circuit in Money v. Barnhart, 91 Fed. Appx. 210 (3d Cir. 2004) .
See also Myers v. Astrue, 2011 WL 2580455, at *11 (W.D. Pa. June 28, 2011).
Plaintiff actually goes so far as to equate "reaching," "handling" and
"fingering" with overhead lifting. It should go without saying that these
actions are not the same at all. There is likewise no basis for the other
"inconsistencies" alleged by Plaintiff. Moreover, Plaintiff does not offer
any explanation as to the relevance of the alleged discrepancy in the number
of jobs available, and, significantly, he does not at any point dispute that
these jobs exist in the national economy.
In sum, there is no actual conflict between the VE' s testimony and the
DOT. Moreover, the ALJ adequately complied with SSR 00-04p in regard to any
potential conflict. As such, there is no merit to Plaintiff's argument.
The Court notes that the Government chose not to address the issues
regarding the VE's testimony raised by Plaintiff in any way, even though
they were the only issues raised. While the Court understands that the
parties filed for summary judgment on the same day, it is unclear why, after
seeing that Plaintiff solely raised issues not addressed in the Government's
brief, it did not file any additional response.

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