SAYERS v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KERRY LYNN SAYERS, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-117-E

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 31st day of August, 2023, 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 Act, 42 U.S.C. § 1381 et seq., finds that

the Commissioner’s findings are supported by substantial evidence and, accordingly, affirms.

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 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)).1

1 Plaintiff raises two arguments as to why she believes that the Administrative Law Judge

(“ALJ”) erred in finding her not to be disabled. She first argues that the requirements of two of

the jobs the ALJ found her capable of performing – ticket taker and cashier II – are inconsistent

with the reaching, handling, and fingering restrictions contained in her residual functional

capacity (“RFC”) as formulated by the ALJ. Second, she contends that her limitation to

occasional stair-climbing is inconsistent with the third job – usher – the ALJ found her capable

of performing. Because the Court finds no merit in Plaintiff’s second argument, it need not make

a finding as to her first argument and will affirm.

Plaintiff’s argument that her limitation to occasionally climbing stairs eliminated the

usher position she was found capable of performing is based on nothing more than her own

speculation and characterization of the job. As the Commissioner points out, the Dictionary of

Occupational Titles (“DOT”) does not set forth any requirements for climbing stairs in regard to

the usher position. See DOT 344.677-014. Likewise, the Selected Characteristics of

Occupations Defined in the Revised Dictionary of Occupational Titles indicates that climbing is

generally not present in performing the job. The vocational expert (“VE”) in this case testified

that Plaintiff could perform the job, and no objection to her testimony was raised at the

administrative hearing. (R. 51). Plaintiff does not identify or even allege any inconsistency

between the VE’s testimony and the DOT’s description of the position; rather, she simply

appeals to common sense and cites a handful of want ads that appear to require significant use of

the stairs. However, the Court cannot merely accept Plaintiff’s suggestion to assume that

constant (or at least frequent) stair-climbing is inherent to the job of usher. As noted, the DOT

description of the usher position contains no express requirements regarding the climbing of

stairs, and, moreover, Plaintiff is not completely unable to climb stairs; she is merely limited to

doing so occasionally. Accordingly, even assuming that some amount of stair-climbing may be

involved in ushering, Plaintiff would still not be precluded from performing the job.

The Court can essentially end its analysis there. While the Commissioner bears the

burden of demonstrating that the claimant can perform jobs existing in the national economy at

the fifth step of the sequential analysis, see Zirnsak v. Colvin, 777 F.3d 607, 616 (3d Cir. 2014),

this burden is satisfied if the ALJ identifies at least one occupation with a significant number of

jobs in the national economy that the claimant can perform. See Wilkinson v. Comm’r of Soc.

Sec., 558 Fed. Appx. 254, 256 (3d Cir. 2014) (citing 20 C.F.R. §§ 404.1566(b), 416.966(b)).

Therefore, a finding that Plaintiff could perform one of the 15,000 usher jobs in the national

economy is sufficient to satisfy the Commissioner’s burden at Step Five. (R. 51).

As such, the Court need not decide whether there is any unexplained inconsistency

between the VE’s testimony that Plaintiff could perform the jobs of ticket taker and cashier II

despite being limited to occasionally reaching (other than overhead), handling, and fingering

with her dominant right hand and the DOT’s description of these positions that indicates a need

for frequent reaching, handling, and/or fingering. See DOT 344.667-010, 211.462-010 The

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (Doc. No. 13) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 15) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

Court, of course, recognizes that, where there is an apparent unresolved conflict between a VE’s

testimony and the DOT, the ALJ must elicit a reasonable explanation for the conflict. See SSR

00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000); Zirnsak, 777 F.3d at 617; Burns v.

Barnhart, 312 F.3d 113, 127 (3d Cir. 2002). Here, though, the ALJ clearly addressed the fact

that, while Plaintiff could only occasionally reach, handle, and finger with her right hand, she

could do so frequently with her left hand, in considering whether Plaintiff could perform the

positions of ticket taker and cashier II. He specifically raised the issue with the VE at the

administrative hearing, as did Plaintiff’s counsel. In response to this questioning, the VE

explained that, based on her training, knowledge, and experience, the jobs of ticket taker and

cashier II could be performed with either hand, particularly given the light weight involved. (R.

51-54). In addition, the ALJ permitted Plaintiff to introduce her own rebuttal vocational

evidence (R. 55) and expressly discussed this evidence, and the apparent conflict in general, in

his decision at great length. (R. 23-24). Since the Court has found that Plaintiff can still perform

the job of usher, it need not determine whether the ALJ’s analysis of the VE’s explanation and

the rebuttal evidence was reasonable, but it does note that, at the very least, it was extensive and

comprehensive.

Accordingly, for the reasons set forth herein, the Court finds that the ALJ applied the

proper legal standards and that substantial evidence supports his findings. The Court will

therefore affirm.