DEWITT v. BERRYHILL

Filing 20

ORDER denying 16 Motion for Summary Judgment; granting 18 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/5/19. (cha)

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

THERESA DEWITT,

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

Civil Action No. 17-1283

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Theresa Dewitt (“Dewitt”) brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3) for review of the ALJ’s decision denying of her claim for disability
insurance benefits (DIB). She alleges a disability beginning on June 3, 2013. (R. 22,
151) Following a hearing before an ALJ, during which time both Dewitt and a vocational
expert (“VE”) testified, the ALJ denied her claim.
Specifically, the ALJ determined that Dewitt had not engaged in substantial
gainful activity since the alleged onset date. (R. 24) The ALJ also concluded that Dewitt
suffered from numerous severe impairments. (R. 24)1 Dewitt’s impairments, or any
combination thereof, did not meet or equal any listed impairment. (R. 24-26) Concluding
that Dewitt was capable of performing light work subject to certain restrictions, the ALJ

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The ALJ found that Dewitt had the following severe impairments: cervical degenerative disc disease, plantar
fasciitis, coronary artery disease with prior myocardial infarction, congestive heart failure, bilateral knee
osteoarthritis, obesity, depression, and anxiety. (R. 24)

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determined that Dewitt had no past relevant jobs but was able to perform jobs that exist
in significant numbers in the national economy. (R. 26-31)
Dewitt has appealed the denial of her claim. Pending are Cross Motions for
Summary Judgment. See ECF Docket Nos. (16) and (18). For the reasons set forth
below, the ALJ’s decision is affirmed.
Legal Analysis
1. 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). Determining whether substantial evidence exists is
“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.
1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of
evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,
a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence – particularly certain types of evidence (e.g., that
offered by treating physicians).” Id. 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

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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 claimant 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 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

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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).
2. Light Work2
The ALJ found Dewitt retained the residual functional capacity to perform “light
work” as that phrase is defined in 20 C.F.R. § 404.1567(b) except that Dewitt “is limited
to two hours of standing / walking during the typical eight hour workday.” (R. 26) Dewitt
focuses upon the two-hour limitation for standing / walking. She reasons that this
limitation restricts her to “sedentary” work because “light” work requires standing or
walking off and on for a total of approximately six hours. See ECF Docket No. 17, p. 26. If restricted to “sedentary” work, Dewitt would be disabled under the Grids, she
concludes, given her age, her educational level, her lack of transferable job skills. Id.,
citing, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 1, Rule 201.14.
Dewitt’s position is unconvincing. Although Dewitt fell short of being able to
perform the full range of “light work,” she exceeds the requirements for “sedentary
work.” 3 Dewitt’s RFC places her between the light and sedentary exertional levels. In
such an instance, the ALJ’s reliance upon a vocational expert is entirely appropriate.
See Stephens v. Colvin, Civ. No. 15-2029, 2017 WL 1170899 at * 19 (M.D. Pa. March
13, 2017); Bryant v. Colvin, Civ. No. 14-981, 2015 WL 1401001 at * 11 (March 26,
2015); and Lackey v. Colvin, Civ. No. 12-516, 2013 WL 1903662 at * 3 (W.D. Pa. May
7, 2014) (stating that where “the ALJ was faced with a situation where the plaintiff’s

Significantly, Dewitt does not object to the ALJ’s assessment or evaluation of her physical or mental impairments.
Rather, her argument is legal in nature. As such, the ALJ’s underlying assessment is not before me on appeal.
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A claimant performing sedentary work should be able to “stand or walk no more than 2 hours in an 8-hour
workday.” See SSR 83-10.
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exertional limitations are ‘somewhere in the middle’ between light and sedentary work
… the ALJ properly relied on vocational expert testimony to find that there are jobs
existing in significant numbers in the national economy that plaintiff can perform in light
of her age, education and residual functional capacity.”) An ALJ is not required to rigidly
apply exertional categories. Rather, “where additional limitations exist such that a
claimant does not fall neatly within an exertional category, and ALJ should take those
limitations into account when determining a claimant’s RFC and appropriately reduce
the occupational base to fit the claimant’s individual characteristics at step five of the
process.” See 20 C.F.R. §§ 404.1569, 416.969; SSR 83-12, 1983 WL 31253. If the ALJ
is unclear as to the remaining occupational base given any additional limitations, then
the ALJ must consult a vocational source.” Hensley v. Colvin, Civ. No. 13-27810, 2015
WL 56626 at * 17 (S.D. W. Va. Feb. 10, 2015). This is precisely what the ALJ did here.
Consequently, I find no error with respect to the ALJ’s conclusion that Dewitt was
capable of light work.
Nor am I convinced by Dewitt’s contention that POMS DI 25025.015(D) requires
remand. The Program Operations Manual System Section 25025.015 simply provides
that, “in determining whether a claimant is disabled when his or her exertional capacity
falls in the middle of two rules and the rules direct opposite conclusions … the ALJ
should consider whether the claimant’s capacity is slightly or significantly reduced in
order to determine which level of exertion to apply; or in situations where the individual’s
exertional limitations are ‘in the middle’ in terms of the criteria for exertional ranges of
work…, the assistance of a VE is advisable.” Duska v. Colvin, Civ. No. 16-217E, 2017
WL 5067438, * 1 n. 1 (W.D. Pa. Sept. 21, 2017). Here, in response to questioning by

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both the ALJ and Dewitt’s attorney, the VE explained that there were positions in the
national economy that constituted “light” work but which also were consistent with
standing and walking limitations of nor more than two hours a day. (R. 51-55) The VE
explained that the lifting capacities of these jobs were beyond sedentary but that they
are typically done while seated at a desk. (R. 51-55)4 As such, the jobs of mail clerk,
office helper and photocopy machine operator remain available to Dewitt.
Consequently, there is no basis for remand.

In seeking testimony from a VE and in setting forth hypothetical questions which accurately portrayed Dewitt’s
limitations, the ALJ also properly abided by the policy of SSR 83-12 contrary to Dewitt’s contentions.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THERESA DEWITT,
Plaintiff,

)
)
)
)
)
)
)
)
)
)

-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Action No. 17-1283

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 5th day of March, 2019, it is hereby ORDERED that the decision
of the ALJ is affirmed. It is further ORDERED that Plaintiff’s Motion for Summary
Judgment (Docket No. 16) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 18) is granted.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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