UMHOLTZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
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ORDER denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 9/15/14. (hmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN UMHOLTZ,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of
Social Security
Defendant.
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Civil Action No. 14-00009J
AMBROSE, U.S. Senior District Judge
OPINION
AND
ORDER
I. Synopsis
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for supplemental security income
(“SSI”)) and disability insurance benefits (“DIB”) pursuant to the Social Security Act (“Act”).
Plaintiff filed his application alleging he was disabled beginning February 4, 2011. ECF No. 82, 10. An Administrative Law Judge (“ALJ”) held a hearing on July 23, 2012 in Altoona,
Pennsylvania. Id. On August 28, 2012, the ALJ found that Plaintiff was not disabled under the
Act. ECF No. 8-2, 20. After exhausting all administrative remedies, Plaintiff filed this action.
Pending before the Court are cross-motions for summary judgment.
ECF Nos. [9]
(Plaintiff) and [11] (Commissioner). Both parties filed briefs in support of their motions. ECF
Nos. [10] (Plaintiff) and [12] (Commissioner). The issues are now ripe for review. After careful
consideration of the submissions of the parties, and based on my Opinion as set forth below, I
deny Plaintiff’s motion and grant Defendant’s motion for summary judgment.
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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 “[m]ore 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 supplemental security income (“SSI”), a plaintiff must demonstrate that
she 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. § 1382c(a)(3)(A).
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. § 416.920. 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
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meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 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. § 416.920. A 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).
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. Whether the ALJ Adequately Addressed Plaintiff’s Mental Impairments With Respect to
Concentration, Persistence, and Pace
Plaintiff submits that the ALJ erred because he failed to properly evaluate Plaintiff’s mental
limitations and alleges that the ALJ’s mental RFC does not properly account for Plaintiff’s
limitations with respect to concentration, persistence, and pace. Pl.’s Br. 5-14. Plaintiff further
alleges that because the ALJ’s hypothetical questions to the vocational expert (“VE”) did not
accurately set forth all of Plaintiff’s individual impairments, the VE’s responses cannot be
substantial evidence in support of the ALJ’s denial of benefits. Id.
The ALJ found “[w]ith regard to concentration, persistence or pace, the claimant has
moderate difficulties . . . but [] he retains the ability to perform simple, repetitive, routine (i.e.
unskilled) job tasks.” ECF No. 8-2, 15. He noted that Plaintiff’s self-reported activities of daily
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living “are consistent with an individual capable of performing simple, routine, repetitive job
tasks.”
Id.
The ALJ noted that despite Plaintiff’s testimony that he “had difficulty with
concentration and focus . . . [Plaintiff’s] testimony was responsive and coherent without apparent
lapses of attention.” Id. Further, the ALJ recognized that Plaintiff had experienced no episodes
of decomposition for an extended duration. Id. The ALJ concluded that Plaintiff’s mental
impairment does not meet either of the “paragraph B” or “paragraph C” criteria such that he
meets or medically equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
at 15-16. The ALJ properly supported these findings with substantial evidence in the record.
See id. (citing Exhibits B3E, B9F, 2E, & 6E).
Moreover, as the ALJ stated, the paragraph B limitations are “used to rate the severity of
mental impairments at steps 2 and 3 . . . [and] the mental residual functional capacity assessment
used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in paragraph B of the adult
mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).” ECF No. 8-2, 15.
After assessing Plaintiff’s degree of limitation according to the categories found in paragraph B
of the adult mental disorders listing in 12.00 of the Listing of Impairments, the ALJ determined
Plaintiff is limited to inter alia “simple, routine tasks involving no more than simple, short
instructions, simple, work-related decisions with few work place changes (unskilled work), no
work at production-rate pace, and occasional interaction with the public, co-workers, and
supervisors.” Id. at 16. In making his determination, the ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [his] symptoms [] not credible to the
extent they are inconsistent with [the ALJ’s] residual functional capacity assessment.” Id. at 17.
Discussing Plaintiff’s credibility regarding his mental limitations, the ALJ found that gaps in
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Plaintiff’s treatment for his mental impairments “suggest that [his] symptoms may not be as
serious as alleged.” Id. at 18. The ALJ gave little weight to Plaintiff’s lower GAF scores,
finding them to be “inconsistent with the totality of the evidence, including mental status
examinations, which generally revealed a bright affect with normal speech and fair grooming.”
Id. The ALJ also gave only “some weight” to the state agency physician and psychologist who
concluded Plaintiff has “‘moderate’ work-related limitations from his mental health
impairments,” and noted that his RFC is more restrictive. Id. After reviewing the record, I find
that the ALJ thoroughly considered and properly weighted all evidence of Plaintiff’s mental
limitations with respect to concentration, persistence, and pace.
See ECF No. 8-2, 17 (citing
Exhibits B3F, B7F, B8F, & B9F). Accordingly, remand on this basis is not warranted.
Additionally, I find that the ALJ’s hypothetical questions to the VE accurately reflected
all of Plaintiff’s limitations in concentration, persistence, and pace. ECF No. 8-2, 43-44. In his
questioning of the VE, the ALJ asked if there was work available for an individual “limited to
simple, routine tasks involving no more than simple, short instructions; simple, work-related
decisions with few workplace changes; no work at production rate pace, fast-paced assembly
line-type work. Further limitations of occasional interaction with the public, co-workers, and
supervisors.” Id. at 44. Such restrictions have repeatedly been found sufficient to accommodate
limitations in concentration, persistence, and pace. See, e.g., McDonald v. Astrue, 293 F. App’x
941, 947-48 (3d Cir. 2008); Menkes v. Astrue, 262 F. App’x 410, 412 (3d Cir. 2008) (“The term
‘simple routine tasks,’ in the context of disability proceedings, generally refers to the nonexertional or mental aspects of work. For example, performing a ‘simple routine task’ typically
involves low stress level work that does not require maintaining sustained concentration . . .
Having previously acknowledged that Menkes suffered moderate limitations in concentration,
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persistence and pace, the ALJ also accounted for these mental limitations in the hypothetical
question by restricting the type of work to ‘simple routine tasks.’”); Watson v. Colvin, No. 12552, 2013 WL 5295708, at *5 (W.D. Pa. Sept. 18, 2013); Polardino v. Colvin, No. 12-806, 2013
WL 4498981, at *3 (W.D. Pa. Aug. 19, 2013) (“The Third Circuit Court of Appeals has
determined that a limitation to simple, routine tasks sufficiently accounts for a claimant’s
moderate limitations in concentration, persistence and pace.”); Hart v. Colvin, No. 13-5, 2013
WL 4786061, at *9 (W.D. Pa. Sept. 6, 2013) (“Hart’s concentration-related difficulties were
accommodated by the limitations permitting the performance of only simple, routine, repetitive
tasks.”).
Moreover, I disagree with Plaintiff’s comparison of this case to Ramirez v. Barnhart, 372
F.3d 546 (3d Cir 2004) because the ALJ here took into account deficiencies in pace in his RFC
by precluding work at a production-rate pace and fast-paced assembly-line type work. See Pl.’s
Br. 13; ECF No. 8-2, 16, 44. Consequently, I find no merit to Plaintiff’s argument or basis for
remand on this issue.
C. Whether the ALJ Properly Relied on VE Testimony Regarding Job Information Found in
the Dictionary of Occupational Titles (“DOT”)
Plaintiff argues that the ALJ’s reliance on the VE’s testimony was improper because the
VE relied on job information as found in the DOT. Pl.’s Br. 15-22. Plaintiff alleges a conflict
between the VE’s evidence and information provided in the DOT’s companion publication, the
Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles (“SCO”) that the ALJ failed to recognize. Pl.’s Br. 15. The ALJ considered and rejected
Plaintiff’s post-hearing brief objecting to the VE’s testimony because he found the VE’s
testimony consistent with the [DOT] and his RFC. ECF No. 8-2, 20.
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First, I find the ALJ’s discussion of his rejection of Plaintiff’s post-hearing brief
sufficient. See ECF No. 8-2, 20; see also HALLEX I-2-5-55 (“If a claimant raises an objection
about a VE’s opinion, the ALJ must rule on the objection and discuss any ruling in the
decision.”).
Further, I find no merit to Plaintiff’s attack on the ALJ’s reliance on the DOT. “[T]he
DOT remains an appropriate source of occupational data. Under 20 C.F.R. § 404.1566(d)(1), the
Social Security Administration may take administrative notice of job information from the
DOT.” Devault v. Astrue, Civ. Action No. 2:13-cv-0155, 2014 WL 3565972, at *6 (W.D. Pa.
July 18, 2014). During the hearing, in response to questioning by Plaintiff’s counsel, the VE
confirmed that his opinions were consistent with the DOT and the SCO. ECF No. 8-2, 50.
While Plaintiff alleges the VE’s testimony is inconsistent with the SCO because the jobs of
Bakery Worker and Fruit Distributor, according to the SCO, require occasional reaching, Pl.’s
Br. 18, the VE clearly took this into consideration when he clarified the reaching limitations of
the hypothetical individual under consideration:
A
Well I just would like a point of clarification on that nondominant [left]
upper extremity. Are you saying that it can only be extended away from the body
-Q
Occasionally, up to one-third of the time, laterally, to the side, and in front
of him basically extending occasionally.
Id. at 45. Accordingly, the VE opined: “[M]aybe logically if you could reach unlimited amount
with your other upper extremity -- I’m not sure that you’re really going to be able to practically
accomplish job duties that require frequent reaching. I just think that [] there’s too much activity
that would require bilateral [reaching] . . . I can’t think of [] any medium duty work [because] . . .
it’s almost impossible to carry things frequently without extending the arms bilaterially. . . .
[therefore] at the light level where a hypothetical person could lift and carry up to 20 pounds
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occasionally, 10 pounds on a frequent basis . . . there are jobs that an individual would perform.”
Id. at 46. Because the SCO reaching requirement for the jobs subsequently identified by the VE
is not inconsistent with the hypothetical reaching limitations as articulated by the ALJ, I find no
error in the ALJ’s reliance on the VE’s testimony.
Moreover, I find no merit to Plaintiff’s allegations that the VE’s testimony is inconsistent
with “up-to-date and reliable job information” as found on the Department of Labor’s
Occupational Information Network (O*NET). “Social Security Ruling 00-4P sets forth that the
relevant inquiry is whether VE testimony is consistent with the DOT.” Devault, 2014 WL
3565972 at *6 (citing S.S.R. 00-4P). ALJ’s are directed to identify and explain conflicts
between the VE’s testimony and the DOT. S.S.R. 00-4P. “Thus, even if the VE’s testimony was
in conflict with O*NET, there is no requirement that the VE’s testimony comply with that
database.” Malfer v. Colvin, Civ. Action No. 12-169J, 2013 WL 5375775, at *5 (W.D. Pa. Sept.
24, 2013). Because there is no conflict between the VE’s testimony and the DOT and SCO, I
find that the ALJ properly relied on the VE’s testimony as substantial evidence.
III. CONCLUSION
After careful consideration of the record and the submissions by both parties, for all of
the foregoing reasons, I find that the ALJ’s decision is supported by substantial evidence and not
otherwise erroneous. Accordingly, I deny Plaintiff’s motion for summary judgment and grant
Defendant’s motion for summary judgment. An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN UMHOLTZ,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of
Social Security
Defendant.
Civil Action No. 14-00009J
AMBROSE, U.S. Senior District Judge
ORDER OF COURT
AND NOW, this 15th day of September, 2014, after careful consideration of the
submissions of the parties and for the reasons set forth in the Opinion accompanying this Order,
it is ordered that Plaintiff’s Motion for Summary Judgment (ECF No. [9]) is DENIED and
Defendant’s Motion for Summary Judgment (ECF No. [11]) is GRANTED.
BY THE COURT:
/s/ Donetta W. Ambrose________________
Donetta W. Ambrose
U.S. Senior District Judge
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