HISER v. ASTRUE
Filing
14
MEMORANDUM JUDGMENT ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 10 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/5/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LARRY DAVID HISER,
Plaintiff,
v.
Civil Action No. 11-836
MICHAEL J. AS TRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
$"'/:h... day
of
September,
2012,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
Social
Security
( "Commissioner" )
denying
plaintiff's applications for disability insurance benefits and
supplemental
security
income
under
Titles
respectively, of the Social Security Act ("Act"),
II
and
XVI,
IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
10) be, and the same hereby is, granted and plaintiff's motion for
summary judgment
(Document No.9)
be,
and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may reject
or discount
reasons for doing so.
~A072
(Rev. 8/82)
Cir. 1999) .
any evidence
if
Plummer v. Apfel,
the ALJ explains
the
186 F.3d 422,
(3d
429
Where the ALJ's findings of fact are supported by
substantial
findings,
evidence,
even
differently.
2001).
if
a
it
reviewing
would
Fargnoli v.
have
court
decided
Massanari,
is
bound
the
factual
247 F.3d 34,
38
by
those
inquiry
(3d Cir.
These well-established principles preclude a reversal or
remand of the ALJ I
substantial
S
decision here because the record contains
evidence
to
support
the
ALJ IS
findings
and
conclusions.
Plaintiff protectively filed his pending applications 1 for
benefits on August 8, 2008, alleging a disability onset date of
June 8, 2008, due to ruptured discs in his neck, pain and numbness
in both hands.
Plaintiff's applications were denied initially.
At plaintiff's request an ALJ held a hearing on February 24, 2010,
at
which
testified.
plaintiff,
represented
by
counsel,
appeared
and
On April 21, 2010, the ALJ issued a decision finding
that plaintiff is not disabled.
On April 26, 2011, the Appeals
Council denied review making the ALJ's decision the final decision
of the Commissioner.
Plaintiff was 38 years old at the time of the ALJ's decision
and is classified as a younger person under the regulations.
C.F.R.
§404.1563(c)
and
416.963(c).
He
has
a
high
20
school
education and has past relevant work experience as a carpenter,
but he has not engaged in any substantial gainful activity since
his alleged onset date.
For purposes of plaintiff's Title II application, the ALJ found
that plaintiff met the disability insured status requirements of the Act
on his alleged onset date and has acquired sufficient quarters of
coverage to remain insured only through December 31, 2012.
1
~A072
(Rev. 8/82)
- 2
After
reviewing
testimony
from
plaintiff's
plaintiff
and
medical
a
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that while plaintiff suffers from the severe
impairment of residuals from two spinal surgeries,2 the medical
evidence
does
not
show
that
plaintiff's
impairment
meets
or
medically equals the criteria of any of the impairments listed at
Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The
ALJ also
found
that
plaintiff
retains
the
residual
functional capacity to perform a range of light work but with
numerous
restrictions
plaintiff's
impairment. 3
recognizing
Taking
the
into
limiting
account
effects
these
of
limiting
effects, a vocational expert identified ticket taker as a category
of light job which plaintiff can perform based upon his age,
education,
work experience and residual functional capacity.
Relying on the vocational expert's testimony, the ALJ found that,
although plaintiff cannot perform his past relevant work, he is
capable of making an adjustment to jobs existing in significant
2
On August 22, 2008, plaintiff underwent a C3 -C7 posterior
cervical laminoplasty and a left C6-C7 laminoforaminotomy and discectomy
after an MRI and CT myelogram had shown cervical stenosis with symptoms
of myelopathy.
On January 14, 2009, after an MRI indicated a post
surgical residual amount of herniation at C6-C7 causing mild left-sided
or foraminal stenosis, plaintiff underwent an anterior cervical
discectomy and fusion C6-C7.
(R. 13).
3
Specifically, plaintiff requires a si t/ stand option; can perform
all postural movements occasionally, except cannot climb ladders, ropes
or scaffolds i cannot do push/pull movements or overhead lifting or
reaching with the non-dominant, left upper extremity; should generally
be able to look straight ahead at the work task without frequent or
repeti ti ve head or neck movements i and should not be exposed to
temperature extremes, wet or humid conditions, or hazards.
(R. 14).
"Il>A072
(Rev, 8/82)
-
3
numbers in the national economy.
Accordingly, the ALJ concluded
that plaintiff is not disabled under the Act.
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of
at
least
twelve
1382c(a) (3) (A).
42
months.
U.S.C.
§§423 (d) (1) (A)
and
The impairment or impairments must be so severe
that the claimant "is not only unable to do his previous work but
cannot, considering his age, education and work experience, engage
in any other kind of substantial gainful work which exists in the
national
economy
II
42
U.S.C.
§§423 (d) (2) (A)
and
§1382c (a) (3) (B) .
The Commissioner has promulgated regulations incorporating
a five-step sequential evaluation process for determining whether
a
claimant is under a
416.920.
disability. 4
20 C . F . R .
§ §4 04 . 1520 and
If the claimant is found disabled or not disabled at any
step, the claim need not be reviewed further.
Id.; see
====~~=
v. Thomas, 124 S.Ct. 376 (2003).
Here,
plaintiff
raises
numerous
challenges
determination that plaintiff is not disabled:
(I)
to
the ALJ's
the ALJ erred
4 The ALJ must determine:
(1) whether the claimant is currently
engaged in substantial gainful activity; (2) if not, whether he has a
severe impairment; (3) if so, whether his impairment meets or equals the
criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix Ii (4) if
not, whether the claimant's impairment prevents him from performing his
past-relevant work; and, (5) if so, whether the claimant can perform any
other work which exists in the national economy, in light of his age,
education, work experience, and residual functional capacity. 20 C.F.R.
§§404.1520 and 416.920; Newell v. Commissioner of Social Security, 347
F.3d 541, 545 (3d Cir. 2003).
~A072
(Rev. 8/82)
- 4
at step 3 by finding that plaintiff/s impairment does not meet or
equal Listing 1.04Ai (2) the ALJ improperly evaluated the medical
evidence and failed to give controlling weight to the opinions of
his
treating
plaintiff
IS
physicians;
credibilitYi
(3)
and
the
(4)
l
ALJ
improperly
evaluated
the ALJ erred at step 5 by
failing to resolve a conflict between the vocational expert s
I
testimony and the Dictionary of Occupational Titles ("DOT)
II
and
also by failing to account for all of plaintiff/s limitations in
his residual functional capacity finding.
In addition
plaintiff
l
has raised an allegation of bias on the part of the ALJ due to an
alleged conflict of interest.
Upon review
I
the court is satisfied
that the ALJ properly evaluated the evidence and that all of the
ALJ/s findings are supported by substantial evidence.
The court
also finds no merit to plaintiff/s bias claim.
First
l
the court is satisfied that the ALJ/s step 3 finding
is supported by substantial evidence.
determine
equivalent
whether
to,
one
the
of
claimant's
the
At step 3 1 the ALJ must
impairment
listed
matches
is
Burnett
impairments.
or
v.
I
Commissioner of Social Security Administration, 220 F.3d 1121 119
(3d Cir. 2000).
The listings describe impairments that prevent
an adult, regardless of age, education, or work experience, from
performing any gainful activity.
(3d Cir. 2000)
impairment
claimant]
necessary."
is
is
i
Knepp v. Apfel, 204 F.3d 78, 85
20 C.F.R. §§404.1520(d) and 416.920(d).
equivalent
per
se
to
a
disabled
listed
and
Burnett, 220 F.3d at 119.
'Aon
(Rev. 8/82)
- 5
no
impairment
further
"If the
then
[the
analys
is
Here, the ALJ found that plaintiff suffers from the severe
impairment of residuals stemming from two surgeries, the first of
which treated cervical stenosis with symptoms of myelopathy and
the second of which addressed a post-surgical residual amount of
herniation at C6-C7 which was causing mild left-sided or foraminal
stenosis and weakness in plaintiff's triceps.
The
ALJ
properly
identified
Listing
1.04A
as
the
corresponding Listing for plaintiff's impairment and adequately
explained in his decision why plaintiff's impairment does not meet
or equal the severity of that Listing. s (R. 13)
F.3d at 120, n.2.
i
see Burnett, 220
In particular, the ALJ noted that plaintiff
"has failed to establish any continuous 12 month period since [his
alleged onset date] during which his cervical spine impairment has
been attended by clinical findings that satisfy the requirements
of Section 1.04A
The
ALJ
then
II
set
supporting his finding.
(R.
14).
forth
.}.
the
obj ective
medical
evidence
Specifically, the ALJ noted that
plaintiff provided no clinical evidence of any stenosis present
since the second of his two surgeries.
He further noted that the
reports of Dr. France, who examined plaintiff on April 14, 2009,
""'Aon
(Rev. 8/82)
5
The criteria for meeting Listing 1.04A are as follows: Disorders
of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord, with evidence of nerve
root compression, characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive straightraising test (sitting and supine) .
- 6
three months after plaintiff's second surgery, found some triceps
weakness but no accompanying sensory or reflex loss,
and that
examinations conducted by Dr. Lee during the period from August
of 2009 to December of 2009 showed no measurable or significant
muscle weakness.
(R.14).
Plaintiff disputes the ALJ's interpretation of the medical
reports of Dr.
France,
arguing that
there
is
"no comment or
assertion" in those medical records indicating that plaintiff's
impairment
has
been
"conclusively repaired or
corrected"
nor
indicating that "plaintiff has been cured as the ALJ concluded."
He also suggests that the absence of objective findings following
his second surgery actually is an indication that his doctors
"needed no
further
testing to confirm what
established as the nature of [plaintiff's]
impairment's continued level of severity.
takes
issue
with
the
ALJ's
failure
they had already
impairments and each
II
to
Finally, plaintiff
consider
plaintiff's
testimony as to continuing symptoms following the surgeries in
determining whether plaintiff meets Listing 1.04A.
The court
finds none of these arguments persuasive.
First,
contrary to plaintiff's assertion,
the ALJ did not
conclude that plaintiff's spinal impairment has been "cured" or
"conclusively repaired or corrected.
at
step 3
that plaintiff
did not
II
Rather, the ALJ determined
establish through clinical
findings that his spinal impairment was of listing-level severity,
i.e.,
doing
that it was severe enough to prevent an individual from
any
gainful
activity
(20
~A072
(Rev. 8/82)
- 7
C.F.R.
§§404.1525(a)
and
416.925(a)),
for a continuous period of at least twelve months,
as required by the regulations.
See 20 C.F.R. §§404.1525(c) (4)
and 416.925(c) (4) ("Most of the listed impairments are permanent
or expected to result in death ... [f]or all [listings that do not
state a specific time period], the evidence must show that your
impairment (s)
has
lasted
or
can
be
expected
continuous period of at least 12 months.")
to
last
for
a
As already discussed,
this finding is supported by the objective medical evidence.
Moreover, plaintiff's insinuation that the ALJ had concluded that
plaintiff has been "cured" further is belied by the ALJ's step 5
residual
functional
capacity
finding,
which
made
numerous
accommodations recognizing the ongoing limitations arising from
plaintiff's impairment.
There
also
is no merit
to plaintif f' s
argument
that
no
additional clinical findings were necessary to establish that
plaintiff
alleges,
met
Listing
his doctors
1.04A after
his
surgeries
"already established"
the
because,
he
nature of his
impairments and "each impairment's continued level of severity."
The
regulations
expressly
recognize
that
"[mlusculoskeletal
impairments frequently improve with time or respond to treatment.
Therefore, a longitudinal clinical record is generally important
for the assessment of severity and the expected duration of an
impairment
("medical
"
treatment
Appendix
I,
(including
considered in terms of
§§1.00.Hi
surgical
its effectiveness
see
also
treatment)
1.00.I.l
must
be
in ameliorating the
signs, symptoms, and laboratory abnormalities of the disorder") .
~A072
(Rev. 8/82)
- 8
Here,
the
longitudinal
clinical
record
establishes
that
plaintiff's spinal disorder improved after surgical treatment as
evidenced by the treatment notes and examination reports of both
Dr. France and Dr. Lee.
Accordingly, the absence of any objective
clinical evidence showing any remaining stenosis after plaintiff's
second surgery was significant to show that plaintiff's impairment
had improved at
least
to a
point where
it did not meet
the
criteria of Listing 1.04A, and the ALJ rightly recognized the lack
of such evidence in support of his step 3 finding.
Finally, plaintiff's contention that the ALJ erred in failing
to consider plaintiff's testimony at step 3 is incorrect.
Step
3 concerns the medical severity of plaintiff's impairment and each
listing "specif [ies]
needed to
the objective medical and other findings
satisfy the
§§404 .1525 (c) (3)
and
criteria of
that
416 . 925 (c) (3) .
listing.
20
/I
Accordingly,
C.F.R.
it
was
plaintiff's burden to present medical findings equal in severity
to the relevant listed impairment.
U.S. 521, 531 (1990).
See Sullivan v. Zebley, 493
He did not do so.
The court is satisfied
that the ALJ's step 3 finding is in accordance with the applicable
regulations and that it is supported by substantial evidence.
Plaintiff's
second
argument
evaluated the medical evidence.
is
that
the
ALJ
improperly
Specifically, he contends that
the ALJ improperly gave more credence to a report from the state
agency consultative examiner,
perform
a
range
of
light
who opined that plaintiff could
work,
rather
than
to
a
treating
physician, Dr. Pellegrini, who indicated on a state welfare form
~A072
(Rev. 8/82)
- 9
that
plaintiff
was
"temporarily
disabled.
Plaintiff
II
also
suggests that the treatment notes and findings from Dr. France and
Dr. Lee establish that plaintiff's impairment has been continuous
for a period of twelve months and that their findings should have
been given controlling weight.
The court has reviewed the record
and is satisfied that the ALJ properly evaluated the medical
evidence in accordance with the applicable standards.
Under the Social Security Regulations and the law of this
circuit,
opinions
substantial,
of
treating
physicians
are
entitled
and at times even controlling, weight.
§§404.1527(d) (2)
and 416.927(d) (2)
i
Fargnoli,
to
20 C.F.R.
247 F.3d at 33.
Where a treating physician's opinion on the nature and severity
of
an
impairment
clinical
and
is
well
laboratory
supported
diagnostic
by
medically
techniques
acceptable
and
is
inconsistent with other substantial evidence in the record,
will be given controlling weight.
opinion
is
not
entitled to
Id.
not
it
When a treating source's
controlling
weight,
it
is
to be
evaluated and weighed under the same standards applied to all
other medical opinions
including
the
specialization.
Here,
the
I
taking into account numerous factors,
opinion's
supportability,
consistency
and
20 C.F.R. §§404.1527(d) and 416.927(d).
ALJ
adhered
to
evaluating the medical evidence.
the
foregoing
standards
in
It is clear that he considered
all of the relevant medical evidence and provided a detailed
analysis of that evidence, setting forth sufficient explanations
as to why he rejected or discounted any such evidence.
~A072
(Rev. 8/82)
- 10
(R. 15
18).
In particular, the ALJ exhaustively addressed the treatment
records of Dr. France and Dr. Lee, plaintiff's treating physicians
for his spinal impairment.
(R. 16-17).
The court finds no error
in the ALJ's analysis.
Plaintiff's specific objections to the ALJ's evaluation of
the medical evidence are unpersuasive.
First, the court finds no
error in the ALJ's analysis of the opinion of Dr. pellegrini that
plaintiff was "temporarily disabled" from June 12, 2008, to July
1, 2009, which was set forth in a letter to the welfare department
dated December 11,
attributed
it
addressed this
rejected it.
to
2008.
Dr.
opinion
(R.203).
France,
the
in his
Although he inadvertently
ALJ
nevertheless
expressly
decision and explained why he
Specifically, he pointed out that the opinion, which
was rendered prior to plaintiff's second surgery on January 14,
2009, was not supported by the subsequent reports from plaintiff's
treating physicians, which established that plaintiff had regained
the ability to perform a limited range of light work within a oneyear period from plaintiff's alleged onset date. 6 (R. 18).
The
ALJ then referenced specific reports from Dr. France supporting
his conclusion, including a statement dated February 23, 2010, in
which
Dr.
France
indicates
that
he
would
restrictions· on plaintiff's ability to work.
put
"no
formal
(R.19).
6
As the ALJ also correctly noted, whether a plaintiff is disabled
is a determination reserved to the Commissioner, and the opinion of a
physician, treating or otherwise, on the ultimate determination of
disability never is entitled to special significance.
20 C.F.R.
§§404.1527(e) & 416.927(e) i SSR 96-5p.
~A072
(Rev. 8/82)
- 11 -
Plaintiff alleges that the ALJ misinterpreted the findings
of Dr. France, in particular the statement that Dr. France would
put "no formal restrictions" on plaintiff's ability to work.
Plaintiff
contends
that
the
ALJ
ignored
the
context
of
Dr.
France's statement and the additional statement that plaintiff's
ability to work is to be based on his "symptoms and functional
limitations."
According to plaintiff, Dr. France thus "leav[es]
it to the patient to ascertain what he can or cannot do."
The
court
finds
nothing
unreasonable
interpretation of Dr. France's report.
in
the
ALJ' s
First, Dr. France twice
was given the opportunity to state his opinion on plaintiff's
functional limitations arising from his impairment.
346-352) .
(R. 281-285;
On both occasions he declined to place any formal
restrictions on plaintiff's ability to work and the ALJ reasonably
concluded
from
those
statements
that
any
restrictions
on
plaintiff's ability to work therefore would not be dependent on
any
objective
medical
reason,
but
subjective tolerances and symptoms.
solely
upon
plaintiff's
Plaintiff even acknowledges
in his reply brief that while it is Dr. France's practice not to
place limitations on what his patients can or cannot do,
that
practice "exclud[es] presumably some activity that could damage
or undo the orthopedic recovery process."
Accordingly, if there
had
limiting
been
objective
medical
reasons
for
plaintiff's
activity, it is reasonable to assume that Dr. France would have
included those limitations in his medical source statement and
would not "leave them to the patient."
""'A072
(Rev. 8/82)
- 12
Furthermore, the ALJ's residual functional capacity finding
is fully in accord with Dr. France's assessment in that the ALJ
actually did place limitations on plaintiff's ability to work
based
upon
plaintiff's
subjective
symptoms
insofar
as
limitations are supported by the objective medical evidence.
court is satisfied that the ALJ's evaluation of Dr.
those
The
France's
assessment is supported by substantial evidence.
Finally,
the court finds no merit to plaintiff's argument
that the ALJ erred in accepting the opinion of the state agency
reviewing physician that plaintiff can perform a limited range of
light work.
Pursuant to the Regulations,
state agency medical
consultants are "highly qualified physicians
...
who are also
experts in Social Security disability evaluation.
§§404 .1527 (f) (2) (i) and 416.927 (f) (2) (i).
II
20 C.F.R.
Accordingly, while not
bound by findings made by reviewing physicians,
the ALJ is to
consider those findings as opinion evidence, and is to evaluate
them
under
evidence.
SSR 96-6p.
the
same
standards
as
all
other
medical
opinion
20 C.F.R. §§404.1527(f) (2) (ii) and 416.927(f) (2) (ii);
Here, the ALJ expressly evaluated the report of the
state agency reviewer under the appropriate regulations and his
evaluation is supported by substantial evidence.? (R. 18)
Plaintif f
determination
next
is
not
contends
that
supported
by
the
ALJ's
substantial
credibility
evidence.
?
Significantly, the court notes that the ALJ, "resolving all
doubts in
[plaintiff's]
favor," actually incorporated additional
limitations beyond those suggested by the state agency reviewer. (R.
18) .
~A072
(Rev. 8182)
- 13
Specifically, plaintiff alleges that the ALJ scoured the medical
records
to
find
"snippets"
supporting
an adverse
credibility
finding while ignoring plaintiff's testimony as to his pain.
The
court
finds
no
error
in
the
ALJ's
evaluation
of
plaintiff's subjective complaints of pain and limitations.
As
required, in assessing plaintiff's credibility the ALJ considered
plaintiff's
subjective
complaints,
but
also
considered
those
complaints in light of the medical evidence and all of the other
evidence of record.
SSR 96-7p.
20 C.F.R. §§404.1529(c) and 416.929(c) i see
Based on his review of all of the evidence, the
ALJ found that plaintiff was not entirely credible and "seem [ed]
to be exaggerating his symptoms."
(R. 15).
The ALJ did a thorough job in his decision explaining why
plaintiff's allegations of disabling subjective symptoms are not
supported by the record, and, in particular the objective medical
findings.
(R.
Based upon that evidence,
15).
the ALJ found
plaintiff to be not entirely credible as to his symptoms and
limitations.
The ALJ adhered to the appropriate standards in
evaluating plaintiff's credibility and it is not this court's
function
to
re-weigh
the
credibility determination.
whether
the
ALJ's
evidence
and
arrive
at
its
own
Rather, this court must only determine
credibility
determination
is
supported
by
substantial evidence and the court is satisfied that it is.
It also is important to note that while the ALJ did not find
plaintiff's subjective complaints entirely credible, his decision
makes clear that, to the extent plaintiff's allegations as to the
'!!>.Aon
(Rev. 8/82)
- 14
limitations arising from his
impairment
are
supported by the
medical and other evidence, the ALJ accommodated those limitations
in his residual functional capacity finding.
Only to the extent
that plaintiff's allegations are not so supported did the ALJ find
them to be not credible.
Plaintiff next challenges the ALJ's step 5 finding that there
is other work existing in the national economy which plaintiff can
perform.
resolve
Specifically, plaintiff alleges that the ALJ failed to
an
"inconsistency"
between
the
vocational
expert's
testimony that plaintiff can perform the job of ticket taker and
the description of the
ticket
Occupational Titles ("DOT").
taker job in the Dictionary of
He further contends that the ALJ's
hypothetical to the vocational expert failed to incorporate an
additional limitation that plaintiff would be required to miss
more than four days of work per month due to pain! which would
preclude plaintiff from performing any jobs.
At step 5 of the sequential evaluation process, the ALJ must
show that there are other jobs existing in significant numbers in
the national economy which the claimant can perform consistent
with his medical impairments, age, education! past work experience
20 C. F . R .
and residual functional capacity.
416.920 (f).
§ § 404
. 1520 (f)
and
Residual functional capacity is defined as that which
an individual still is able to do despite the limitations caused
by his
impairments.
20
C. F . R .
§ § 4 04
Fargnoli! 247 F.3d at 40.
'A072
(Rev. 8/82)
- 15
. 154 5 (a)
and 4 16 . 945 (a) i
Here,
the ALJ found
that plaintiff retains
the residual
functional capacity to perform a limited range of light work with
certain
restrictions
accommodating
the
medically-supportable
limitations arising from plaintiff's impairment.
(R.14).
In
response to the ALJ's hypothetical involving an individual of
plaintiff's
functional
age,
education,
capacity
for
work
light
experience
work
with
and
the
residual
enumerated
limitations, the vocational expert identified a ticket taker as
representative of the type of light jobs that such an individual
would be able to perform.
constitutes
substantial
The vocational expert's testimony
evidence
supporting
the ALJ's
step
5
finding that jobs exist in significant numbers in the national
economy that plaintiff can perform.
Plaintiff, however, contends that he cannot perform the job
of ticket taker identified by the vocational expert as it is
described in the DOT at 344.667-010 based on a lack of manual
dexterity resulting from paresthesias in his hands.
Accordingly,
plaintiff contends that this case must be remanded to the ALJ to
resolve this conflict in accordance with SSR 00-4p.8
8
SSR 00-4p requires an ALJ to identify, and obtain a reasonable
explanation for, any conflict between occupational evidence provided by
a vocational expert and information contained in the DOT and also to
explain in his decision how any conflict that has been identified was
resolved.
In particular, the Third Circuit Court of Appeals has
interpreted SSR 00-4p to require that "the ALJ ask the vocational expert
whether any possible conflict exists between the vocational expert's
testimony and the DOT," and, if the testimony does appear to conflict
with the DOT, the ruling directs the ALJ '''to elicit a reasonable
explanation for the conflict. "' Burns v. Barnhart, 312 F.3d 113, 127 (3d
Cir. 2002).
"The Rul
requires that the explanation be made on the
record and that the ALJ explain in his decision how the conflict was
resolved." Id.
""'A072
(Rev. 8/82)
- 16
Plaintiff raised this identical argument in a post-hearing
The ALJ considered plaintiff's argument but
brief to the ALJ.
found
it
to
establish
be
an
without
merit
objective
because
for
basis
manipulative limitation."
(R. 20).
the
"record
fails
to
alleged
[plaintiff's]
The ALJ then identified the
specific medical reports upon which he relied in reaching that
conclusion and in particular noted that Dr. France reported no
specific objective findings related to numbness of the hand, that
Dr. Lee did not report any grip strength weakness and that neither
doctor referred plaintiff for any diagnostic studies related to
these
complaints.
(R.
20).
Thus,
contrary
to
plaintiff's
assertion that the ALJ ignored plaintiff's complaints regarding
pain and numbness in his hands
complaints but
f
the ALJ expressly considered those
found them to be unsupported by the obj ecti ve
medical evidence.
The court believes that the ALJ's finding in
this regard is supported by substantial evidence as outlined in
the decision.
As there was no objective medical basis for incorporating any
additional limitation relating to manual dexterity into the ALJ's
residual
functional
between the
capacity
vocational
finding,
expert's
there
testimony
was
that
no
conflict
plaintiff
can
perform the job of ticket taker and the description of that job
in the
DOT.
constitutes
Accordingly,
substantial
the
vocational
evidence
supporting
expert's
testimony
the ALJ's
step
5
finding that jobs exist in the national economy that plaintiff can
perform.
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