HAMMAN v. BERRYHILL

Filing 15

OPINION and ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 8/9/18. (slh)

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

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Civil Action No. 17-965

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
12). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11 and 13). 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. 10) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 12).
I.

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

Security denying her application for supplemental security income pursuant to the Social
Security Act. Plaintiff filed her application alleging disability since January 1, 2007. (ECF No. 88, p. 9). Administrative Law Judge (“ALJ”), Michael F. Colligan, held a hearing on February 9,
2016. (ECF No. 8-3). On May 16, 2016, the ALJ found that Plaintiff was not disabled under the
Act. (ECF No. 8-2, pp. 21-33).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 10 and 12).
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’s only argument is that the ALJ’s decision is not based on substantial evidence
because two of the three jobs identified by the VE are in direct conflict with the DOT based on
the residual functional capacity (“RFC”)2 determined by the ALJ and the third job does not exist
in significant numbers in the national economy. (ECF No. 11, pp. 5-8). To that end, Plaintiff’s
argument is premised on the notion that the VE did not specify the DOT codes for the jobs he
identified (sedentary guard job performed primarily at night, sedentary, unskilled clerical workers
and sedentary, unskilled inspectors). (ECF No. 11, pp. 5-8). Based on that premise, Plaintiff
then reviewed the DOT and came up with specific jobs listings in the DOT she believes are
similar to the jobs identified by the VE. (ECF No. 11, pp. 5-8). Once Plaintiff identified those
DOT jobs numbers, Plaintiff argued various reasons for why those specific jobs were in conflict
2

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 sedentary
work with certain exceptions. (ECF No. 8-2, pp. 25-26).

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with the RFC. Id. Based on the same, Plaintiff argued remand is warranted. Id. at p. 9.
After a review of the evidence, I find Plaintiff’s initial premise to be fatally flawed. At the
hearing, in response to Plaintiff’s representative’s questioning, the VE very clearly and precisely
provided the DOT codes for the jobs he identified.
Q.

Do you have DOT numbers for those jobs?

A.

Yes. The sedentary guard job would be 379.367-010. The sedentary
clerical worker would be 249.587-018 and the inspector job would be
739.687-182.

(ECF No. 83, p. 36). Plaintiff’s entire argument, however, is based on misidentified and different
DOT job numbers. Plaintiff never argues, analyzes or addresses whether the DOT numbers
identified by the VE were in conflict with the VE’s testimony and/or the RFC. Moreover, after
having received Defendant’s Brief, which plainly identified the problem with Plaintiff’s argument,
Plaintiff never sought leave to amend her Brief or to file a reply brief to address the same. As a
result, Plaintiff’s whole argument is misplaced and insufficient to put the issue before me.
Consequently, I find that remand is not warranted.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLY HAMMAN,

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Plaintiff,
-vsNANCY A. BERRYHILL,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-965

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 9th day of August, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 10) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 12) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

3

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

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