The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DANIELE CELESTE BARNARD, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-1146
)
ANDREW SAUL, )
Commissioner of Social Security, )
)
Defendant. )
O R D E R
AND NOW, this 30th day of August, 2021, upon consideration of the parties’
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security’s final decision denying Plaintiff’s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and her claim for supplemental
security income benefits under Subchapter XVI of the Social Security Act, 42 U.S.C. § 1381 et
seq., finds that the Commissioner’s findings are supported by substantial evidence and,
accordingly, affirms.1 See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54
(2019); Jesurum v. Secretary of U.S. Dep’t of Health & Human Servs, 48 F.3d 114, 117 (3d Cir.
1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988)). See also Berry v. Sullivan,
738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the
1 Defendant asks the Court to tax costs against Plaintiff but does not advance an argument
in support of that request. Accordingly, the Court will award no costs. See Pa. Dep’t of Pub.
Welfare v. U.S. Dep’t of Health & Hum. Servs., 101 F.3d 939, 945 (3d Cir. 1996).
Commissioner’s decision must be affirmed, as a federal court may neither reweigh the evidence,
nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981)).2
2 The only arguments that Plaintiff develops to any extent (and even these are quite
conclusory) is that the Administrative Law Judge (“ALJ”) erred in accounting for the amount of
time she would be off task during the work day and in determining that she could perform the
representative jobs of printed circuit board screener, final assembler, and document preparer,
despite having a residual functional capacity (“RFC”) of less than a full range of sedentary work.
The Court finds no merit in these assertions and finds instead that substantial evidence supports
the ALJ’s decision.
In a footnote, Plaintiff argues that, based on the RFC formulated by the ALJ and the
testimony of the vocational expert (“VE”), she would not be able to perform any work, even at
the sedentary exertional level, because she would be off task more than 10 percent of the time.
As Defendant points out, this argument is nothing more than a misinterpretation of the RFC and
hypothetical question that was already cleared up at the administrative hearing. The ALJ
included in the RFC the provision that
[Plaintiff] requires a position that will allow her to shift from a
seated position to a standing position and/or stretch at intervals of
approximately 30 minutes, provided she does not leave the
workstation and the shifting of positions results in her being off-
task no more than 1-2 minutes with each position shift.
(R. 19). Later in the RFC, the ALJ clarified that Plaintiff “would be off task up to 10% of the
workday in addition to regularly scheduled breaks due to the combined effects of her
impairments.” (R. 20 (emphasis added)). This language was mirrored in his hypothetical
question to the VE. (R. 62-63). In response to the hypothetical, the VE indicated, based on
Plaintiff’s RFC, including the provisions regarding being off task, that Plaintiff could perform
the representative positions of printed circuit board screener, final assembler, and document
preparer. (R. 63). In response to the ALJ’s questioning, the VE also indicated that employers
generally do not tolerate an employee being off task more than 10 percent of the workday, in
addition to normal breaks. (R. 61).
Later in the hearing, Plaintiff’s counsel asked for clarification as to whether the 10
percent off task time in the hypothetical included the 1-2 minutes every half hour that Plaintiff
would be off task in shifting positions. (R. 63). The ALJ expressly stated that “the hypothetical
provided the 10% off task, and that’s inclusive of the one to two minutes that are off task with
the position shifts, that up to 10% of the workday, but no more than that, would be tolerated or
would be this hypothetical.” (R. 65). The VE confirmed that this was her understanding as well.
(Id.). Accordingly, there is simply no factual basis for Plaintiff’s contention that she would be
Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (document No. 14) is DENIED and that Defendant’s Motion for Summary Judgment
(document No. 16) is GRANTED.
s/Alan N. Bloch
United States District Judge
ecf: Counsel of record
off task 1-2 minutes every half hour in addition to the 10 per cent off task noted elsewhere in the
RFC.
Plaintiff also suggests that the ALJ improperly relied upon the VE’s testimony that she
could perform the jobs of printed circuit board screener, final assembler, and document preparer
because, as she asserts, those jobs require that a claimant be able to perform a full range of
sedentary work. She, however, offers no explanation as to why the VE was incorrect regarding
the consistency of those jobs with her RFC. To the extent that she is implying that Social
Security Ruling 83-12 provides that the inability to perform a full range of sedentary work
directs a finding of disabled, this is simply incorrect. See SSR 83-12, 1983 WL 31253 (S.S.A.),
at *3 (1983) (“Another situation where VS assistance is advisable is where an individual's
exertional RFC does not coincide with the full range of sedentary work.”); SSR 96-9p, 1996 WL
374185 (S.S.A.), at *1 (July 2, 1996) (“[A] finding that an individual has the ability to do less
than a full range of sedentary work does not necessarily equate with a decision of ‘disabled.’ If
the performance of past relevant work is precluded by an RFC for less than the full range of
sedentary work, consideration must still be given to whether there is other work in the national
economy that the individual is able to do, considering age, education, and work experience.”).
To the extent that Plaintiff’s brief could be construed as raising any additional arguments,
such arguments are too under-developed and conclusory to be addressed by the Court. See Hyer
v. Colvin, No. CV 15-297-GMS, 2016 WL 5719683, at *11 (D. Del. Sept. 29, 2016) (“‘It is not
enough merely to present an argument in the skimpiest way, and leave the Court to do counsel’s
work – framing the argument, and putting flesh on its bones through a discussion of the
applicable law and facts.’”) (quoting Ve Thi Nguyen v. Colvin, No. C13-882, 2014 WL 1871054,
at *2 (W.D. Wash. May 8, 2014)). Accordingly, for all of the reasons set forth herein, the Court
finds that substantial evidence supports the ALJ’s decision and therefore affirms.