KNIGHT v. COLVIN

Filing 20

ORDER denying 12 Motion for Summary Judgment and granting 17 Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/20/2018. (dpo)

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

MARK KNIGHT,

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) Civil Action No. 16-1816
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Plaintiff,
v.
CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

AND NOW, this 20th day of March, 2018, 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 (“DIB”)
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); Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117
(3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom.,
507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also Berry v.
Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the
Commissioner’s decision must be affirmed, as a federal court may neither reweigh the evidence,
nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981)).1

Plaintiff’s primary argument is that the Administrative Law Judge (“ALJ”) erred in
finding that he could perform his past relevant work as a greeter at Step Four of the sequential
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process. Plaintiff first claims that the ALJ failed to resolve the conflict between the testimony of
the vocational expert (“VE”) that he could perform this job as it is actually and ordinarily
performed and the requirements of this position pursuant to the Dictionary of Occupational Titles
(“DOT”), which he alleges were incompatible with the limitations to occasional handling and
reaching with his left hand contained in his residual functional capacity (“RFC”). The Court
disagrees and finds that the ALJ properly relied on the testimony of the VE in finding that
Plaintiff could perform his past relevant work at Step Four.
The position under the DOT found by the ALJ and VE to be the closest to Plaintiff’s past
relevant work as a greeter was identified as a host/hostess position, with a DOT number of
352.667-101. Under DOT 352.667-101, this position of host/hostess requires “frequent”
handling and reaching. “Frequent” in this context generally means occurring between one third
and two thirds of the day, while “occasional” means occurring very little up to one third of the
day. See SSR 83-10, 1983 WL 31251 (S.S.A.), at **5-6. Plaintiff contends, therefore, that his
limitation to only the occasional ability to handle and reach with his left hand is inconsistent with
the DOT’s requirements for the job. While acknowledging that the ALJ did, in fact, attempt to
resolve this conflict at the hearing, Plaintiff asserts that his attempt was inadequate. The Court
finds, however, that to the extent that there was a conflict between the VE’s testimony and the
DOT, it was more than adequately resolved.
Social Security Ruling 00-4p, 2000 WL 1898704 (S.S.A.) provides that a VE’s testimony
and evidence regarding occupational information should be consistent with the occupational
information contained in the DOT. It states that when there is an apparent unresolved conflict
between VE testimony and the DOT, the ALJ is required to elicit a reasonable explanation for
the conflict before relying on the VE’s evidence. If the ALJ finds the VE’s explanation for the
conflict to be reasonable and provides a basis for doing so, the ALJ can rely on the VE’s
testimony. See id. at **2-4. The first question here, then, is whether there was a conflict
between the VE’s testimony and the DOT.
The VE testified that, if able to use his left hand as a “helper hand,” Plaintiff could
perform his past relevant work. (R. 86). He explained that the DOT is silent as to whether the
upper extremity dexterity requirements for the position are necessarily bimanual in nature, but
opined, based on 45 years of experience and observations, that the job could be performed if the
secondary hand could perform manual functions such as handling and reaching only
occasionally, as long as the dominant hand could do so frequently. (R. 86-87). Some courts
have held there to be no conflict in such circumstances, where the DOT indicates that a position
requires frequent upper extremity activities such as handling and reaching, and the VE testifies
that this could be done with one hand, with occasional help from the other, more limited hand.
See Diehl v. Barnhart, 357 F. Supp. 2d 804, 822 (E.D. Pa. 2005); Brown v. Colvin, No. 15-323,
2016 WL 6821877, at *2 (Nov. 17, 2016). Accordingly, it is unclear that there even is a conflict
between the VE’s testimony and the DOT in regard to the need for bimanual dexterity.
Regardless, even assuming that the DOT requires frequent handling and reaching with
both hands, and there is a conflict between the DOT and the VE’s testimony, the conflict was
more than adequately resolved. As discussed above, the VE particularly stated that regardless of
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Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 12) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.
No. 17) is GRANTED.
s/ Alan N. Bloch
United States District Judge

ecf:

Counsel of record

the DOT’s silence as to the need for bimanual dexterity, his experience and observations led him
to conclude that occasional use of a helper hand would be sufficient. The ALJ very specifically
confirmed that all operations with Plaintiff’s left hand would be limited to occasional use. With
this understanding, the VE testified that Plaintiff could perform his past work and explained the
basis for his opinion. (R. 86-87). The ALJ’s reliance on this evidence was reasonable,
especially in light of the fact that the DOT provides the maximum requirements for occupations
as generally performed, not the requirements for a specific job in a specific setting. A VE can
provide more specific information about a specific job, which is precisely what happened here.
See SSR 00-4p, at *3.
Plaintiff further argues that DOT 352.667-010 no longer accurately reflects the duties of a
Wal-Mart greeter. He argues, based on media reports, that the position has evolved and now
requires more walking and standing. However, none of this was part of the record before the
ALJ. The VE offered expert testimony as to how the position of greeter is actually and
ordinarily performed, and the ALJ was entitled to rely on this evidence in conducting his Step
Four analysis. See 20 C.F.R. § 404.1560(b)(2); Shears v. Barnhart, No. 05-3713, 2006 WL
1641635, at *2 (E.D. Pa. June 9, 2006) (finding that the claimant’s failure to challenge the VE’s
testimony at the hearing left such uncontradicted testimony as the only evidence upon which the
ALJ could rely). Accordingly, there is no basis for now questioning the VE’s uncontradicted
expert testimony as to the requirements of the greeter position.

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