BREWER v. COLVIN

Filing 16

OPINION and ORDER denying 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/6/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCES JENNY BREWER,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-153

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 12 and
14). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 13 and 15). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 12) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 14).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security denying her applications for disability insurance benefits and supplemental security
income pursuant to the Social Security Act. Plaintiff filed her applications alleging disability
since July 28, 2012. (ECF No. 8-7, pp. 2, 11). Administrative Law Judge (“ALJ”), Joanna
Papazekas, held a hearing on April 6, 2016. (ECF No. 8-3). On July 20, 2016, the ALJ found
that Plaintiff was not disabled under the Act. (ECF No. 8-2, pp. 20-32).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 12 and 14).
The issues are now ripe for review.
1

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

II.

LEGAL ANALYSIS
A.

Standard of Review

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). 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).
Additionally, 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). A
district court cannot conduct a de novo review of the Commissioner’s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a court is bound by those findings, even if
the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. §706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. §404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments

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prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he 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. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.

Conflicts between the Vocational Expert (“VE”) Testimony and the
Dictionary of Occupational Titles (“DOT”)

Plaintiff first argues that the case should be reversed/remanded because there were
inconsistencies between the VE’s testimony and the information contained in the DOT. (ECF
No. 13, p. 9). Specifically, Plaintiff contends the ALJ did not resolve a conflict between the VE’s
testimony and the DOT. Id. I turn to SSR 00-4p for guidance on this matter. See 2000 WL
1898704.
Occupational evidence provided by a VE or VS generally should be consistent
with the occupational information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict before relying on
the VE or VS evidence to support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of the adjudicator’s duty to fully
develop the record, the adjudicator will inquire, on the record, as to whether or
not there is such consistency. Neither the DOT nor the VE or VS evidence
automatically “trumps” when there is a conflict. The adjudicator must resolve the
conflict by determining if the explanation given by the VE or VS is reasonable
and provides a basis for relying on the VE or VS testimony rather than on the
DOT information.
See SSR 00-4p, 2000 WL 1898704 (emphasis added). A reasonable explanation for a conflict
or apparent conflict, which may provide a basis for relying on the evidence from the vocational

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expert, rather than the DOT information, exists where “[t]he DOT lists maximum requirements of
occupations as generally performed, not the range of requirements of a particular job as it is
performed in specific settings. A VE, VS, or other reliable source of occupational information
may be able to provide more specific information about jobs or occupations than the DOT.” Id.
The Court of Appeals for the Third Circuit similarly requires an ALJ to address and resolve any
material inconsistencies or conflicts between the vocational expert’s testimony and the DOT
descriptions. See Boone v. Barnhart, 353 F.3d 203, 206 (3d. Cir. 2004). Indeed, the failure to
do so may necessitate a remand. Id.
After careful review, I find the inconsistency was properly addressed at the hearing.
(ECF No. 8-3, pp. 37-40). Then, in her decision, the ALJ thoroughly discussed and resolved the
inconsistency finding the VE’s explanation for the difference to be reasonable. (ECF No. 6-3,
pp. 37-39; No. 8-2, p. 32). Based on the same, I find the ALJ was entitled to rely upon the
vocational expert’s testimony. SSR 00-04p. Therefore, I find no error in this regard.
C.

Residual Functional Capacity (“RFC”) 2

Virtually all of Plaintiff’s argument regarding the RFC maintains that there is substantial
evidence to support her position that she is disabled. (ECF No. 13, pp. 11-16).

To be clear,

the standard is not whether there is evidence to establish Plaintiff’s position but, rather, is
whether there is substantial evidence to support the ALJ’s finding. Allen v. Bowen, 881 F.2d 37,
39 (3d Cir. 1989). Thus, this argument is entirely misplaced.
It may be argued that Plaintiff is suggesting that the ALJ failed to properly consider her
need to take one hour to eat lunch due to her esophageal problems when determining her RFC.
(ECF No. 13, pp. 14-17). This “suggestion” falls woefully short. Nevertheless, I will consider the

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RFC refers to the most a claimant can still do despite his/her limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a). The assessment must be based upon all of the relevant evidence, including the medical
records, medical source opinions, and the individual’s subjective allegations and description of his own
limitations. 20 C.F.R. §416.945(a). In this case, the ALJ found Plaintiff has the RFC to perform light work
with certain exceptions. (ECF No. 8-2, pp. 24-31).

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same.

After a review of the record, I find the ALJ specifically considered and sufficiently

addressed her alleged esophageal issues (as well as her other alleged impairments). (ECF No.
8-2, pp. 20-32). For example, the ALJ acknowledged that Plaintiff testified she had issues with
her esophagus and required a long time to eat. (ECF No. 8-2, p. 25). However, the ALJ found
Plaintiff not entirely credible.3 Id. Therefore, she was not required to accept such testimony.
Simply because a plaintiff has an impairment or a diagnosis does not equate to a disability.
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). Thus, I find no error in this regard.
D.

Acceptable VE Testimony

Plaintiff next argues that the ALJ erred in relying on the VE testimony that did not
account for all of Plaintiff’s impairments, namely her esophageal problems. (ECF No. 13, p. 10).
An ALJ is required to accept only that testimony from the vocational expert which accurately
reflects a plaintiff’s impairments. See, Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984);
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Based on my review of the record,
there is substantial evidence that the ALJ accepted the hypothetical questions and VE testimony
that accurately reflected Plaintiff’s impairments. (ECF No. 8-3, pp. 37-40; No. 8-2, pp. 20-32).
Consequently, remand is not warranted on this basis.
An appropriate order shall follow.

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An ALJ is charged with the responsibility of determining a plaintiff’s credibility. 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). I must defer to the ALJ’s credibility 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). Here, Plaintiff does not argue that the
ALJ erred in determining her credibility. See, ECF No. 13.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANCES JENNY BREWER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,4
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-153

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 6th day of March, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 12) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 14) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

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