# BOOTHBY v. BERRYHILL

> District Court, W.D. Pennsylvania · February 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10415322

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10415322

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415322. Public record. Not legal advice.