WEHER v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

ORDER granting 8 Motion for Summary Judgment; denying 13 Motion for Summary Judgment. Remanding matter for further proceedings. Signed by Judge Donetta W. Ambrose on 5/3/18. (ask)

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

)
) No. 17-804
)

v.
COMMISSIONER OF SOCIAL
SECURITY
OPINION AND ORDER

SYNOPSIS
Plaintiff filed an application for social security disability and disability insurance
benefits. Plaintiff alleged disability due to various mental and physical impairments, some of
which were related to injuries sustained as the result of a car accident. Plaintiff’s application was
denied initially, and following hearing before an Administrative Law Judge (“ALJ”). The
Appeals Council denied her request for review. The parties’ Cross-Motions for Summary
Judgment are before the Court. For the following reasons, Plaintiff’s Motion will be granted,
and Defendant’s denied. This matter will be remanded for further proceedings.

OPINION
I.

STANDARD OF REVIEW
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

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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 is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh 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. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
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, No.
No. 10-6540, 2011 U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).
Nonetheless, I am not required to read the ALJ’s opinion “in a vacuum.” Knox v. Astrue, No.
No. 9-1075, 2010 U.S. Dist. LEXIS 28978, at *22 (W.D. Pa. May 26, 2010).
II.

THE PARTIES’ MOTIONS
Plaintiff challenges the ALJ’s findings that Plaintiff failed to meet various Listings. In

particular, she avers that the ALJ erred in failing to find that she met Listings §§ 1.02A, 1.04,
1.07, and 12.06. A Plaintiff’s failure to point to evidence of conditions required by the Listings

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is fatal to such a challenge. See Arrington v. Colvin, 216 F. Supp. 3d 217, 235 (D. Mass. 2016)
(citing cases).
Plaintiff argues that the ALJ erred in assessing Listing § 1.04, which addresses spinal
disorders. The Listing “requires the claimant to produce evidence of nerve root compression,
spinal arachnoiditis, or lumbar spinal stenosis,” along with other requirements. See, e.g., Harris
v. Comm'r of Soc. Sec., No. 11-2961, 2012 U.S. Dist. LEXIS 140308, at *12 (D.N.J. Sep. 27,
2012) (citing 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04). Plaintiff acknowledges that the
diagnostic studies of record alone are likely insufficient to meet the Listing, but contends that her
complaints of pain were consistent with the studies’ findings and diagnoses of spondylosis and
lumbar facet syndrome. Crediting her pain complaints and accepting those diagnoses, however,
does not constitute the required evidence. Plaintiff points to no evidence that would mandate or
support findings that meet the specific requirements of the Listing.
In addition, Plaintiff argues that the medical records demonstrate that her left femoral
mononeuropathy meets Listing § 1.02A, which addresses major dysfunction of a joint. In
particular, she complains that the ALJ summarily rejected the reports of Dr. Mathew and Dr.
Klein, who evaluated her for long-term disability insurance and the litigation resulting from her
accident. Listing 1.02 A requires, inter alia, certain symptoms resulting in “inability to ambulate
effectively.” “Inability to ambulate effectively means an extreme limitation of the ability to
walk.” Godfrey v. Astrue, No. 10-565, 2011 U.S. Dist. LEXIS 51145, at *14 (W.D. Pa. May 12,
2011) (quoting 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Listing 1.00B2b). Plaintiff does not
explain how the records to which she points, which merely recount Plaintiff’s various injuries
and diagnoses, and broadly suggest that she remained symptomatic, would support a finding that
she meets the specific requirements of Listing § 1.02A; the connection is not apparent.

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Plaintiff also asserts that the ALJ failed in his assessment of Listing 1.07, which
addresses fracture of an upper extremity. As Defendant points out, Plaintiff’s wrist condition did
not result from a fracture, which is a prerequisite for Listing 1.07; indeed, she ascribes her wrist
condition to tendonitis. Finally, Plaintiff argues that the combination of her impairments impacts
her ability to perform even the most minimal activities of daily living. Plaintiff, however, does
not point to a Listing that might apply to a combination of her impairments, or that the ALJ
arguably should have evaluated. I reject Plaintiff’s arguments.
Finally, in a different Section of her brief (Section II), Plaintiff contends that the ALJ
failed to evaluate whether she met Listing 12.06, for PTSD. To satisfy Paragraph B of that
Listing, a claimant’s mental impairment must result in at least two of marked restrictions of
activities of daily living, marked difficulties in social functioning, marked difficulties in
maintaining concentration, persistence, or pace, or repeated episodes of decompensation, of
extended duration. The ALJ determined that Plaintiff had only mild restrictions or difficulties in
daily living and social functioning, and moderate difficulties with concentration, persistence, or
pace; she did not have qualifying episodes of decompensation. In challenging these findings,
Plaintiff refers to her diagnoses of anxiety and severe depression and her subjective complaints,
but does not explain exactly how the ALJ’s analysis – which was thorough and supported by
citations to the medical record – was improper. I reject Plaintiff’s contentions.
A. Residual Functional Capacity (“RFC”)
Next, Plaintiff argues that the ALJ erred, in various respects, in crafting and employing
the RFC. First, Plaintiff complains that the ALJ did not incorporate the report of Shannon
Brody, PT. In his discussion, the ALJ afforded Ms. Brody’s opinion little weight. The ALJ did
so both because Ms. Brody is not an acceptable medical source, and because Ms. Brody’s report

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stated that the results of her testing “suggest significant observational and evidenced based
contradictions resulting in consistency of effort discrepancies, self-limiting behaviors, and/or
sub-maximal effort. The overall results of this evaluation do not represent a true and accurate
representation of Ms. Wehrer’s overall physical capabilities.” Based on Ms. Brody’s own
concerns about the accuracy of her evaluation results, the ALJ did not err in assigning little
weight thereto.
B. Vocational Expert (“VE”) Testimony
As a related matter, Plaintiff contends that the ALJ improperly relied on the VE
testimony to conclude that she is able to perform work that exists in sufficient numbers. In
particular, Plaintiff contends that the existence of 5,000 jobs in the national economy is
insufficient. “Work exists in the national economy when there is a significant number of jobs (in
one or more occupations) having requirements which you are able to meet with your physical or
mental abilities and vocational qualifications. Isolated jobs that exist only in very limited
numbers in relatively few locations outside of the region where you live are not considered 'work
which exists in the national economy.'“ Torres v. Shalala, No. 94-5492, 1995 U.S. Dist. LEXIS
7172, at *12 (E.D. Pa. May 22, 1995). The Social Security Act provides that "’work which
exists in the national economy’ means work which exists in significant numbers either in the
region where [claimant] lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A).
This question is dispositive, because if Plaintiff is unable to adjust to other work that exists in
significant numbers, she will be found disabled. Accomando v. Comm'r of Soc. Sec., No. 131391, 2014 U.S. Dist. LEXIS 160909, at *8 (D.N.J. Nov. 14, 2014).
There is no bright-line rule regarding what constitutes a significant number of jobs, in
accordance with applicable regulations. As my sister Court has noted, some courts have adopted

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the approach taken in the Sixth Circuit, in which a judge reviews the context of the particular
case, “including, but not limited to, the level of claimant's disability, the reliability of vocational
expert and claimant's testimony, the distance the claimant is capable of traveling, the isolated
nature of the jobs, the types and availability of such work.” Johnson v. Comm'r of SSA, No. 073137, 2008 U.S. Dist. LEXIS 71638, at *52 (D.N.J. Sep. 19, 2008) (citing Hall v. Bowen, 837 F.
2d 772 (6th Cir. 1988).
Not unexpectedly, courts have reached potentially differing conclusions about the
sufficiency of 10,000 jobs nationally. For example, in Sovan v. Berryhill, No. 17-5238, 2017
U.S. Dist. LEXIS 155471, at *12 (W.D. Wash. Sep. 22, 2017), the court found that the
identification of 10,000 jobs nationally, but none regionally, was insufficient. In Sovan, the
Court observed that District Courts approving a similar number all did so in combination with
considering regional numbers. Id. at *11-12 (citing cases).
As Sovan suggests, cases that have approved numbers around 10,000 are distinguishable
from the one at bar. For example, in Hoffman v. Astrue, No. 09-5252, 2010 U.S. Dist. LEXIS
26207 (W.D. Wash. Feb. 8, 2010), the court declined to find that 9,000 national and 150 regional
jobs was insufficient. In that case, however, the plaintiff alleged only that the regional number
was insufficient, and did not challenge the number of national jobs available; the Court’s focus
remained on regional availability. Id. at *43. In Johnson v. Chater, 108 F.3d 178, 180 (8th Cir.
1996), the VE testified to the local availability of 200 jobs and the national availability of 10,000
jobs; in that case, however, the court noted that the VE testified that the figures were
representative of other jobs that the claimant could perform, and identified one such job. Id.
Finally, the sole case to which Defendant points, in which the VE testified to the existence of
200 jobs, referred to regional jobs only; the Court cursorily indicated that the number of regional

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jobs was “a clear indication that there exists in the national economy” other work that claimant
could perform. Craigie v. Bowen, 835 F. 2d 56, 58 (3d Cir. 1987).
In this case, the ALJ relied on the following VE testimony:
There are a limited number of jobs including sedentary Guard jobs. There are over 5,000
of these in the economy. Example could be that of 379.367-010. There are sedentary
Call Out Operator jobs. There are over 5,000 of these in the economy. Example could be
that of 237.6 – excuse me. 237.367 and there are Membership Solicitors. No, Your
Honor. I’m sorry. There would be – those would be the limits in terms of the jobs based
on that hypothetical.
Hearing Transcript, p. 76-77.
On this particular record,1 I am disinclined to find that the ALJ’s conclusion regarding
the Plaintiff’s ability to adjust to other work is supported by substantial evidence. The VE stated
that there were “over” 5,000 of the identified jobs, and the amount and significance of such
overage is unclear; in addition, it is not entirely clear whether the job of Membership Solicitor is
unavailable to Plaintiff. Moreover, because the VE offered 379.367-010 as an “example,” it is
unknown whether that job represents the only available option in its category. Moreover, the VE
did not identify the number of jobs available regionally, which would aid in the pertinent
assessment. Indeed, the VE merely testified as to job availability in “the economy,” without
qualification. Based on the entire record, and the ambiguity of the VE’s testimony, remand is
warranted.
C. Credibility
Finally, Plaintiff argues that the ALJ failed to look at the “big picture” when evaluating
her credibility, and overemphasized her activities and benefits from treatment. According to
Plaintiff, the ALJ improperly considered her desire to have a child as evidence that she was not

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I emphasize that I do not hold that 10,000 jobs can never be a sufficient number; my holding is limited to the
particular circumstances of this case.

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disabled; he also failed to account for Plaintiff’s long work history, and treated her as looking for
a “handout.” It is well-established that the ALJ is charged with the responsibility of determining
a claimant's credibility. Weber v. Colvin, No. 15-109, 2016 U.S. Dist. LEXIS 94348, at *18
(W.D. Pa. July 20, 2016). It is axiomatic that a severe impairment does not necessarily entitle a
claimant to an RFC that accounts for that impairment, and that credibility assessments are
entitled to a high degree of deference. It is also true that work history alone is not dispositive of
credibility. Thompson v. Astrue, No. 09-519, 2010 U.S. Dist. LEXIS 98112, at *11 (W.D. Pa.
Sep. 20, 2010). The grounds for Plaintiff’s assertions regarding Plaintiff’s desire for a child, and
discounting her work history, are unclear. The ALJ found that Plaintiff’s statements were “not
entirely consistent with the evidence.” In so doing, he thoroughly and carefully set forth a
reasonable basis for that conclusion, including an evaluation of Plaintiff’s medical records.
There is no evidence that the ALJ was, as Plaintiff suggests, biased or unfair.
CONCLUSION
In conclusion, remand is warranted for the limited purpose of further consideration of the
jobs available to Plaintiff under the RFC. In all other respects, under applicable standards, I
cannot conclude that the ALJ’s decision was unsupported by substantial evidence. An
appropriate Order follows.
BY THE COURT:

___________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court
DATED:

May 3, 2018

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

)
) No. 17-804
)

v.
COMMISSIONER OF SOCIAL
SECURITY
ORDER
AND NOW, this 3rd day of May, 2018, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion is DENIED, and Defendant’s GRANTED. This matter is
remanded for further proceedings consistent with the foregoing Opinion.
BY THE COURT:

___________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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