BOOTHBY v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANA LYNN BOOTHBY )

)

Plaintiff, )

)

-vs- ) Civil Action 19-119

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

OPINION AND ORDER

Synopsis

Dana Lynn Boothby (“Boothby”) seeks review of a decision denying her claim for

a period of disability and disability insurance benefits (“DIB”) under Title II of the Social

Security Act, 42 U.S.C. §§ 401-434. Boothby alleges an onset of disability beginning on

September 18, 2013. (R. 12) Following a hearing during which both Boothby and a

vocational expert (“VE”) appeared and testified, the ALJ denied benefits. Ultimately this

appeal followed. The parties have filed Cross Motions for Summary Judgment. See

ECF Docket Nos. 8 and 12. For the reasons set forth below. The ALJ’s decision is

affirmed.

Opinion

1. Standard of Review

Judicial review of the Commissioner’s final decisions on disability claims is provided

by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court

to review the transcripts and records on 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 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 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); Richardson, 402 U.S. at 390, 91 S. Ct. 1420.

A district court cannot conduct a de novo review of the Commissioner’s decision, or

re-weigh the evidence; 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, 196-7, 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, 2011 WL 2036692, 2011 U.S.

Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).

II. The ALJ’s Decision

The ALJ denied benefits at the fifth step of the analysis. More specifically, at step

one, the ALJ found that Boothby has not engaged in substantial gainful activity since the

alleged onset date. (R. 14) The ALJ noted that any attempts to work beyond that date

were unsuccessful and did not rise to the level of substantial gainful activity. (R. 15) At

step two, the ALJ concluded that Boothby suffers from the following severe

impairments: cervical degenerative disc disease, multilevel cervical spinal canal

stenosis and neural foraminal stenosis, myofascial pain syndrome and obesity. (R. 15-

19) At step three, the ALJ determined that Boothby did not have an impairment or

combination of impairments that meets or medically equals one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19) Between steps three

and four, the ALJ decided that Boothby had the residual functional capacity (“RFC”) to

perform the full range of light work. (R. 20-32) At the fourth step of the analysis, the ALJ

concluded that Boothby was unable to return to her past relevant work. (R. 32)

Ultimately, at the fifth step of the analysis, the ALJ concluded that, considering

Boothby’s age, education, work experience, and RFC, jobs exist in significant numbers

in the national economy that she could have performed. (R. 32-34)

III. Discussion

(1) Listing 1.04A

At the third step of the analysis, the ALJ concluded that Boothby did not meet or

equal the impairments set forth in Listing 1.04. (R. 19) Boothby challenges this

conclusion, insisting that her constellation of symptoms medically satisfies Listing

1.04A. She bears a heavy burden in meeting the requirements set forth in Listing 1.04A.

As recognized in Sullivan v. Zebley, 493 U.S. 521, 532 (1990), “[t]he Secretary explicitly

has set the medical criteria defining the listed impairments at a higher level of severity

than the statutory standard. The listings define impairments that would prevent an adult,

regardless of his age, education, or work experience, from performing any gainful

activity, not just ‘substantial gainful activity.’” (citations omitted). The standard is set

higher because if a claimant satisfies a listing, “he is presumed unable to work and is

awarded benefits without a determination whether he actually can perform his own prior

work or other work.” Zebley, 493 U.S. at 532.

Listing 1.04A provides:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal

stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),

resulting in compromise of a nerve root (including the cauda equina) or the spinal

cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution

of pain, limitation of motion of the spine, motor loss (atrophy with associated

muscle weakness or muscle weakness) accompanied by sensory or reflex loss

and, if there is involvement of the lower back, positive straight-leg raising test

(sitting and supine)….

20 C.F.R. pt. 404, subpt. P, App. 1.

Here, the ALJ explained that, although an MRI and CT scan confirmed cervical

degenerative disc disease and multilevel spinal canal with neural foraminal stenosis,

there was “no evidence of nerve root compression.” (R. 19) The ALJ further explained

that examinations did not demonstrate “the requisite limited range of motion in the spine

or motor loss accompanied by sensory or reflex loss.” (R. 19) Rather, Boothby showed

normal range of motion, normal strength and motor function, and normal gait with

slightly diminished sensation in the fingers and reduced grip strength on occasion. (R.

19) Substantial evidence of record supports these findings. (R. 303-04, 351, 358)

Indeed, Boothby has not identified any records revealing nerve root compression.

Instead, Boothby urges that the records support a finding of “neuro-anatomic distribution

of pain and sensory loss.” See ECF Docket No. 9, p. 9. Yet Boothby must demonstrate

both evidence of nerve compression and sensory or reflex loss. Because substantial

evidence of record supports the ALJ’s findings that she did not satisfy all of the

requirements of Listing 1.04A, there is no basis for remand on this issue.

(2) Residual Functional Capacity Assessment

Boothby also objects to the ALJ’s finding regarding her residual functional capacity.

A claimant’s RFC consists of “’that which an individual is still able to do despite the

limitations caused by his or her impairment(s).’” Fargnoli v. Massanari, 247 F.3d 34, 40

(3d Cir. 2010), quoting, Burnett v. Comm’r. of Soc. Sec., 220 F.3d 112, 121 (3d Cir.

2000). The assessment must be based upon all of the relevant evidence, including the

medical records, medical source opinions, the individual’s subjective allegations, and

description of his / her limitations. See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The

regulations provide that for claims, such as Boothby’s, that were filed before March 27,

2017, a treating physician’s opinion should be given “controlling weight” provided that

the opinion is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and not inconsistent with other substantial evidence of record. See 20

C.F.R. §§ 404.1527(c)(2), 416.(c)(2). See also, Fargnoli, 247 F.3d at 43. “The ALJ may

not reject a physician’s findings unless she first weighs the findings against other

relevant evidence and explains why certain evidence has been accepted and other

evidence rejected.” Scandone v. Astrue, Civ. No. 05-4833, 2011 WL 3652476, at * 7

(E.D. Pa. Aug. 18, 2011). Of course, “[t]he law is very clear … that the opinion of a

treating physician does not bind the ALJ on the issue of functional capacity.” Chandler

v. Commissioner of Social Security, 667 F.3d 356, 361 (3d Cir. 2011), quoting, Brown v.

Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011). Additionally, opinions proffered by state

agency medical and psychological consultants merit significant consideration as well

because they are considered experts in the Social Security disability programs.

Chandler, 667 F.3d at 361, citing, 20 C.F.R. § 404.1527(f), 416.927(f).

As stated above, the ALJ found Boothby capable of performing the full range of

light work. (R. 20-32) In so finding, the ALJ provided a detailed, 12-page discussion of

the medical evidence. Most of Boothby’s argument consists of a recitation of evidence

which she contends supports her claim.1 Yet this is the wrong standard. The question

before me is not whether substantial evidence supports Boothby’s claims. “Substantial

evidence could support both Plaintiff’s claims and the ALJ’s findings because

substantial evidence is less than a preponderance.” Hundley v. Colvin, 2016 WL

6647913, at * 2 (W.D. Pa. Nov. 10, 2016), citing, Jesurum v. Sec’y. of Health & Human

Services, 48 F.3d 114, 117 (3d Cir. 1995).

I find that substantial evidence supports the ALJ’s RFC findings. For instance, as

the ALJ represented, the MRIs and CT scans indicate that Boothby had no nerve root

compression. (R. 303-04, 351, 358) Further, as the ALJ noted, Boothby attended

1 Boothby makes arguments regarding the RFC throughout her brief.

physical therapy sessions and achieved a “normal range of motion and strength in the

neck and shoulders, and reduction in hand paresthesias.” (R. 22) Indeed, the therapist

recommended discontinuation of formal physical therapy. (R. 22, citing Exhibit 3F/6)

Additionally, Boothby routinely exhibited normal range of motion, strength, gait, and

motor function during examinations with his medical care providers. (R. 22, citing Exhibit

3F/6, R. 23, citing Exhibit 6F/11-12, 15-17, R. 24, citing Exhibit 8F/59, 72-73, R. 25,

citing Exhibit 6F7, R. 26, citing Exhibit 3F/2) Moreover, Boothby has received only

conservative treatment and the medical providers have documented improvement in her

pain complaints and headaches following the prescribed treatment. (R. 29) Further, as

the ALJ discusses, Boothby’s assertions regarding her disabling pain are inconsistent

with her representations that she is the sole caretaker of her incapacitated daughter. (R.

30)

Boothby objects to the ALJ’s discussion in three respects: the ALJ’s assessment

of the state agency medical consultant’s conclusions; the ALJ’s assessment of Dr.

Mustovic’s limitations; and the ALJ’s citation to a progress report from Boothby’s

physical therapy. After careful consideration, I am not persuaded by Boothby’s

arguments. I turn first to Boothby’s concerns over the opinion rendered by Dr. Fox, the

state agency medical consultant. The ALJ accorded Dr. Fox’s conclusion that Boothby

could perform light duty work “great weight.” (R. 30) Boothby contends Fox’s report is

not entitled to such weight because it “is not based on a doctor’s true examination and

evaluation, but on reading over other materials which have been obtained through the

date of that evaluation.” See ECF Docket No. 9, p. 12. Yet the regulations specifically

recognize that opinions proffered by state agency consultants merit significant

consideration because they are considered experts in the Social Security disability

programs. Chandler, 667 F.3d at 361, citing, 20 C.F.R. § 404.1527(f), 416.927(f).

Consequently, Boothby’s argument is not convincing.

Boothby also objects to the ALJ’s citation to progress notes from Boothby’s

physical therapy program. Certainly, the ALJ recounted the physical therapist’s notes,

entered in conjunction with a session on December 22, 2014, that Boothby’s “’subjective

complaints are worse than I would expect based upon her objective measures and very

good tolerance to an extensive exercise program.’” (R. 26, 338) (emphasis in original)

Yet, contrary to Boothby’s implications, the ALJ does not treat the physical therapist as

an “acceptable medical source.” See ECF Docket No. 9, p. 13 n. 5. Rather, the

reference to the progress notes is included in the ALJ’s recitation of Boothby’s medical

history. Consequently, I find no basis for remand in this respect.

Finally, with respect to Dr. Mustovic, the ALJ explained that he discounted her

May 2014 assessment because she specifically cautioned that her opinion that Boothby

required modified work duties was anticipated to last for only two months. (R. 31, 387)

Further the ALJ noted that, other than limiting Boothby to four hours of work per day,

Mustovic did not impose any postural or environmental limitations on her. (R. 31, 372)

Mustovic also authored letters dated July 16, 2015 and August 27, 2015, in which she

stated that Boothby “reports to me that she does housekeeping duties at a postal facility

and does use her hands in a repetitive fashion which certainly could have been a causal

factor of her bilateral carpal tunnel syndrome.” (R. 385, 388) The ALJ explained that

they have “minimal probative value” on Boothby’s claim because they were authored in

connection to a worker’s compensation claim. (R. 31) Indeed, as the ALJ found, “these

opinions relate solely to occupational causal connection presumably rendered in

support of the worker’s compensation and / or Federal Retirement Disability claims.” (R.

31) The ALJ’s assessment of Mustovic’s opinions is eminently reasonable.

Consequently, I find no basis for remand.

(3) Step Five Finding

Finally, Boothby objects to the ALJ’s finding at the fifth step of the analysis. The ALJ

posed a hypothetical to the VE about an individual limited to sedentary work with certain

further restrictions. (R. 88-89) The VE responded as follows:

Your Honor, such a hypothetical individual would be able to perform the following

occupation and titles. Your Honor, one would be security guard, DOT code 372.667-

034. The DOT describes it as a light position with an SVP of 3, and that’s true. There

are security guard positions, though, that are sedentary. Training is also done well

within 30 days, however – and the environment is controlled, however the jobs are

reduced to approximately 5,000. Your Honor, that is the only job I’m comfortable

identifying. Sedentary positions traditionally require up to frequent fingering and / or

handling. The surveillance system monitor is a position that reportedly does not

require those activities, however that position is in flux and I choose not to cite that

as a viable position at this time.

(R. 89-90) Ultimately, as set forth above, the ALJ found that Boothby was capable of

performing the full range of light work. Boothby contends that by failing to offer a light

duty hypothetical to the VE, the ALJ deprived her counsel of the ability to question the

appropriateness of light duty work and the erosion of any applicable jobs. See ECF

Docket No. 9, p. 15.

The ALJ’s conduct in questioning the VE only about sedentary jobs and then

issuing a decision in which he found Boothby capable of performing the full range of

light duty does cause me pause. It appears as though all parties were operating under

the understanding at the hearing that the ALJ believed Boothby capable of, at most,

sedentary work. Certainly, the ALJ could have convened a second hearing once he

formulated an RFC based upon light work. Yet I see no denial of due process. This is

not an instance where the ALJ posed to the VE hypotheticals based upon a broad RFC

then formulated an RFC based upon a narrower RFC. In such an instance, it would be

intuitive that any jobs identified in a VE’s response to a hypothetical would not

necessarily encompass jobs available under a narrower RFC. But here the ALJ posed

questions based upon a narrow RFC then ultimately found that the medical evidence

supported a broader RFC. As set forth above, his finding in this regard is supported by

substantial evidence of record.

Boothby has not identified any case law, nor did independent research reveal,

suggesting that due process rights are violated in such circumstances. Indeed,

Boothby’s counsel “had the opportunity to fully cross-examine the VE at the

administrative hearing.” Bayer v. Colvin, 557 Fed. Appx. 280, 286 (10th Cir. 2014). As

was the case in Bayer, here the hearing came to an end only when Boothby’s counsel

indicated that she was finished with her examination. (R. 93) (compare Tanner v.

Secretary of Health and Human Services, 932 F.2d 1110 (5th Cir. 1991) (reversing and

remanding where the ALJ relied upon a VE’s report submitted after the close of

evidence, finding that due process requires that a claimant be given the opportunity to

cross-examine the VE). Further, although the hypothetical the ALJ did pose to the VE

was based upon sedentary job positions, the VE identified the position of security guard

which the DOT describes as a “light position.” (R. 89) Admittedly, the VE reduced the

number of security guard positions characterized as “sedentary” to 5,000, but Boothby

does not offer any case law or other compelling argument in support of the conclusion

that the number of positions available as “light duty” is insufficient. See ECF Docket No.

13, p. 18, citing, U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Outlook

Handbook, https://www.bls.gov/ooh/protective-service/security-guards.htm, noting that

there were 1,133,900 security guards available nationally in 2016). Consequently, I find

no basis for remand.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANA LYNN BOOTHBY )

Plaintiff, )

-vs- ) Civil Action No. 19-119

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 12th day of February, 2020, it is hereby ORDERED that the

Motion for Summary Judgment (Docket No. 12) is GRANTED and the Motion for

Summary Judgment (Docket No. 8) is DENIED. It is further ORDERED that the Clerk of

Courts mark this case “Closed” forthwith.

BY THE COURT:

/s/ Donetta W. Ambrose

Donetta W. Ambrose

United States Senior District Judge