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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RENAE NAHORY,

Plaintiff,

v.

Civil Action No. 12-932

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

MEMORANDUM JUDGMENT ORDER

AND NOW, this ~y of July, 2013, upon due consideration

of the parties' cross-motions for summary judgment pursuant to

plaintiff's request for review of the decision of the Commissioner

of Social Security

("Commissioner" )

denying plaintiff'S

application for supplemental security income under Title XVI of

the Social Security Act

("Act"),

IT

IS ORDERED

that

the

Commissioner's motion for summary judgment (Document No. 16) be,

and the same hereby is, granted and plaintiff's motion for summary

judgment (Document No. 14) be, and the same hereby is, denied.

As the factfinder, an Administrative Law Judge ("ALJ") has an

obligation to weigh all of the facts and evidence of record and

may rej ect or discount any evidence if the ALJ explains the

reasons for doing so.

Plummer v. Apfel, 186 F.3d 422, 429

(3d

Cir.1999). Where the ALJ's findings of fact are supported by

substantial evidence,

a

reviewing court

is bound by

those

findings, even if it would have decided the factual

inquiry

differently.

Fargnoli v. Massanari, 247 F.3d 34, 38

(3d Cir.

'll>AO 72
(Rev. 8/82)

2001). These well-established principles preclude a reversal or

Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 2 of 13

remand of the ALJ' s decision here because the record contains

substantial

evidence

to

support

the ALJ's

findings

and

conclusions.

Plaintiff filed her current application1 for supplemental

security income on April 24, 2008 1 alleging a disability onset

date of March 11 2008, due to bipolar disorder

I

anxiety and

depression. Plaintiff's application was denied initially. At

plaintiff's request I an ALJ held a hearing on July 8 1 2010 1 at

which plaintiff, represented by counsell and a vocational expert

appeared and testified.

On July 28 1 2010,

the ALJ issued a

decision finding that plaintiff is not disabled. On May 8 1 2012 1

the Appeals Council denied review making the ALJ's decision the

final decision of the Commissioner.

Plaintiff was 26 years old at the time of the ALJ's decision

and is classified as a younger person under the regulations.

20

C. F. R. §416. 963 (e). Plaintiff has an eighth-grade education which

is classified as limited.

20 C.F.R. §416.963{b)(3).

The ALJ

found that plaintiff has no past relevant work experience and that

she has not engaged in any substantial gainful activity since her

alleged onset date. 2

1

Plaintiff previously had filed two prior applications for
supplemental security benefits. The first was denied initially on July
8, 2002, and plaintiff did not request further review. The second was
denied by ALJ decision dated February 22, 2007.

2

The record indicates that plaintiff worked briefly as an
assembly line worker and as a youth activities director, but she did not
work at any job long enough for it to qualify as substantial gainful
activity or past relevant work.

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After reviewing plaintiff's medical records and hearing

testimony

from plaintiff and a vocational expert,

the ALJ

concluded that plaintiff is not disabled within the meaning of the

Act. The ALJ found that although the medical evidence establishes

that plaintiff suffers

from

the severe

impairments of mild

degenerative changes of the lumbar spine; cervical, thoracic and

lumbar strain; left hip

lipoma; history of scoliosis of the

thoracic spine, history of Wilms

tumor;

status post

left

nephrectomy; bipolar disorder; panic disorder; and, personality

disorder,3 those impairments, alone or in combination, do not meet

or equal the criteria of any impairment listed at Appendix 1 of 20

C.F.R., Part 404, Subpart P.

The ALJ also found

that plaintiff retains the residual

functional capacity

to engage

in

light work with certain

restrictions recognizing the limiting effects of her impairments. 4

A vocational expert then identified numerous categories of jobs

which plaintiff could perform based upon her age, education, work

3

In her current application plaintiff alleged disability solely
based on mental impairments. Later, she also asserted disability based
on a number of physical impairments.
Recognizing that the step 2
inquiry is de minimus, the ALJ determined that plaintiff's physical
impairments are "severe."
The court notes, however, that the record
shows that plaintiff never sought medical treatment for any physical
impairment.

4

In addition to a sit/stand option, certain postural limitations
and certain environmental restrictions, the ALJ also limited plaintiff
to work that entails a
low stress work environment with no production
line or assembly line type of pace; entails no individual decision
making
and
instructionsi entails minimal to no reading ability; and entails no
interaction with
than occasional
interaction with coworkers and supervisors.

the general public and no more
(R. 13).

responsibilities; entails

routine,

repetitive

tasks

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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 4 of 13

experience and residual

functional capacity,

including home

companion (light) ,

garment

folder

(light)

and

handpacker

(sedentary) . Relying on the vocational expert's testimony, the

ALJ found that plaintiff is capable of making an adjustment to

work which exists in significant numbers in the national economy.

Accordingly,

the ALJ determined that plaintiff is not disabled

within the meaning of the Act.

The Act defines "disability" as the inability to engage in

substantial gainful activity by reason of a physical or mental

impairment which can be expected to last for a continuous period

of at least twelve months.

42 U.S.C. §1382c(a) (3) (A).

The

impairment or impairments must be so severe that the claimant "is

not only unable to do his previous work but cannot, considering

his age, education and work experience, engage in any other kind

of substantial gainful work which exists in the national economy

.... " 42 U.S.C. §1382c(a) {3} (B).

The Commissioner has promulgated regulations incorporating a

five-step sequential evaluation process for determining whether a

claimant is under a disability.s

20 C.F.R. §416.920i Newell v.

5

The ALJ must determine:

(1) whether the claimant is currently
engaged in substantial gainful activity; (2) if not, whether she has a
severe impairment; (3) if so, whether her impairment meets or equals the
criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;
(4) if
not, whether the claimant's impairment prevents her from performing her
past-relevant work; and (5) if so, whether the claimant can perform any
other work which exists in the nat
economy, in light of her age,
education, work experience, and residual functional capacity. 20 C.F.R.
§§404.1520 and 416.920.
In
addition, when there is evidence of a mental impairment that allegedly
the Commissioner must follow the
prevents a claimant from working I
procedure
for evaluating mental
impairments
the
regulations.

forth
186 F.2d at 432; 20 C.F.R. §416.920a.

Newell, 347 F.3d at 545-46.

See

set

in

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Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).

If the claimant is found disabled or not disabled at any step, the

claim need not be reviewed further.

Id. i see Barnhart v. Thomas,

124 s. Ct. 3 7 6 ( 2 0 0 3) .

Plaintiff raises two challenges to the ALJ's findings in this

case:

(1)

the ALJ

improperly relied on the testimony of the

vocational expert who

led to provide the specific numbers in

the Dictionary of Occupational Titles ("DOT") of the jobs that he

identified as ones that plaintiff retains the residual functional

capacity to perform; and,

(2)

the ALJ

improperly considered

plaintiff's smoking habit in assessing her credibility. Upon

review, the court is satisfied that all of the ALJ's findings are

supported by substantial evidence.

At step 5 of the sequential evaluation process, the ALJ must

show that there are other jobs existing in significant numbers in

the national economy which the claimant can perform consistent

with her medical impairments, age, education, past work experience

and residual functional capacity.

20 C.F.R. §416.920(f).

Residual

functional capacity

is defined as

that which an

individual still is able to do despite the limitations caused by

her impairments. 20 C.F.R. §416.945(a) i Fargnoli, 247 F.3d at 40.

Here,

the ALJ found that plaintiff retains the residual

functional capacity to perform light work with a number of

restrictions meant

to accommodate her mental and physical

impairments.

(R. 13). At the hearing, in response to the ALJ's

hypothetical

involving

an

individual of plaintiff's age,

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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 6 of 13

education, work experience and residual functional capacity for

light work with the enumerated restrictions, the vocational expert

identified horne companion and garment

folder at

the

light

exertional level, and handpacker at the sedentary exertional

level, as representative of

the

types of

jobs that such an

individual would be able to perform.

The ALJ relied on the

vocational expert's testimony in finding plaintiff not disabled at

step 5.

Plaintiff does not challenge the ALJ's residual functional

capacity finding, nor even argue that she cannot perform the jobs

identified by the vocational expert. Rather, plaintiff's sole

contention is that the ALJ erroneously relied on the vocational

expert's testimony because the vocational expert

led to provide

the specific DOT numbers of the jobs that he identified as ones

that plaintiff can perform. 6

Plaintiff's argument is without

merit.

SSR 00-4p requires an ALJ

to

identify, and obtain a

reasonable explanation for, any conflict between occupational

evidence provided by a vocational expert and information contained

the DOT and also to explain in his decision how any conflict

that has been identified was resolved.

In particular, the Third

Circuit Court of Appeals has interpreted SSR 00-4p to require that

"the ALJ ask the vocational expert whether any possible conflict

At the hearing, plaintiff's counsel asked the vocational expert
if he could have the DOT numbers for the identified jobs, to which the
vocational expert responded "[n]o sir.
(R. 43).

I haven't copied them down.1I

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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 7 of 13

exists between the vocational expert's testimony and the DOT,"

and, if the testimony does appear to confl

t with the DOT,

the

ruling directs the ALJ "'to elicit a reasonable explanation for

the conflict.'" Burns v. Barnhart, 312 F.3d 113, 127

(3d Cir.

2002).

"The Ruling requires that the explanation be made on the

record and that the ALJ explain in his decision how the conflict

was resolved."

Id.

Here, a review of the hearing transcript establishes that the

ALJ specifically asked the vocational expert if there "is anything

in your testimony inconsistent with anything contained in the

DOT," to which the vocational expert responded "no sir."

(R. 43) .

In his decision,

the ALJ then indicated that "the vocational

expert's testimony is consistent with the information contained in

the [DOT]."

(R. 20). Thus, it is clear from the record that the

ALJ fully complied with SSR 04-p.

Although plaintiff argues that the vocational expert was

required to provide the specific DOT numbers of the jobs to which

he was referring in order for the ALJ to determine whether a

conflict existed between the vocational expert's testimony and the

DOT, SSR 00-4p does not require that level of specificity. Nor

has plaintiff cited any other ruling, regulation or any case law

from any

jurisdiction mandating

that

the vocational expert

identify the specific DOT number of any job to which he refers.

To

the contrary, numerous courts expressly have held that a

specific DOT number is not required.

See, ~, Irelan v.

~==~~, 82 Fed.Appx. 66, 72

(3d Cir. 2003) (no legal basis for

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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 8 of 13

argument that DOT numbers must be available in order for ALJ

adequately to test accuracy of vocational expert's testimonY)i

Ryan v. Astrue, 650 F.Supp.2d 207, 218 (N.D.N.Y. 2009) (no error in

vocational expert's failure to supply DOT numbers) i Burgos v.

Astrue, 2010 WL 3829108 at *7 (D. Conn., Sept. 22, 2010) (failure to

identify DOT number is not error) i Mosteller v. Astrue, 2010 WL

5317335 at * 4 (W.D.N.C., July 26,2010) (neither SSR 00-4p nor any

other relevant authority requires ALJ to inquire as to DOT numbers

for jobs referenced by vocational expert).

The court is satisfied in this case that the vocational

expert's testimony, even in the absence of specific DOT numbers,

constitutes substantial evidence supporting the ALJ's step

5

finding that jobs exist in significant numbers in the national

economy that plaintiff can perform. The ALJ met his obligations

under SSR 00-4p by expressly

inquiring as

to whether

the

vocational expert's testimony was consistent with the DOT, and, in

fact there is no conflict.7 The vocational expert was able to

identify a number of

light and sedentary

jobs existing in

significant numbers in the national economy that plaintiff retains

the residual functional capacity to perform. Accordingly, the ALJ

did not err in relying on the vocational expert's testimony to

7 The court notes that the vocational expert's testimony suggests
that he was not unaware of the DOT numbers but that he merely had not
written them down for the hearing. {R. 43}. Moreover, even a cursory
glance at the DOT establishes that the vocational expert's testimony
regarding
their
descriptions in the DOT as found by the ALJ.
See, DOT #789.687-066
{garment
i DOT #309.677-010 (companion-domestic ser.) i and, DOT
#529.686-014 (hand packager-cannery worker) .

is consistent with

fully

the

identified

jobs

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Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 9 of 13

find that plaintiff is not disabled at step 5.

See 2 0 C. F . R .

§416.966(a) i Plummer, 186 F.3d at 431.

Plaintiff

also

challenges

the

ALJ's

credibility

determination,

arguing

that

the ALJ

improperly considered

plaintiff's

smoking habit

in discrediting her

testimony.

Specifically, plaintiff takes issue with the following statement

by the ALJ in his decision:

it

that

is noted

Finally,
[plaintiff]
reported during the relevant period of time
of smoking one pack of cigarettes per day ...
The undersigned notes generally
a
cigarette habit presents an ongoing expense
that could present some additional incentive
to seek disability related financial benefits
in the absence of sui table employment, as
well as some disincentive with regard to
accepting full-time employment that must be
performed within a smoke-free environment.
These actions along with what has been
previously articulated cast
of
suspicion over
[plaintiff's]
subjective
allegations, and indicate potential secondary
sources of motivation underlying his [sic]
efforts to obtain disability benefits.

that

a

fog

(R.15).

While agreeing that such unnecessary speculation would better

have been left out of the decision, the court is satisfied that

the ALJ's isolated comments regarding plaintiff's smoking habit

had

no

significant bearing

on

the overall credibility

determination, which otherwise

is supported by substantial

evidence in the record.

It is well-settled that allegations of pain and other

sUbjective

symptoms must be supported by objective medical

evidence,

20 C.F.R. §416.929(c), and an ALJ may reject a

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claimant's sUbjective testimony if he does not find it credible so

long as he explains why he is rejecting the testimony. Schaudeck

v. Commissioner of Social Security, 181 F.3d 429, 433

(3d Cir.

1999); see also SSR 96-7p.

Initially, the court does not believe that the plaintiff's

smoking habit was

a proper consideration

in assessing her

credibility.

Pursuant

to

the regulations,

in evaluating a

plaintiff's symptoms, the ALJ is to consider both the objective

medical evidence and other evidence to include statements or

reports from the claimant, treating or non-treating sources and

others

"about

[the claimant's] medical history, diagnosis,

prescribed treatment, daily activities, efforts to work, and any

other evidence showing how [the claimant's] impairment(s) and any

related symptoms affect your ability to work."

20 C.F.R.

§416. 929 (a). (emphasis added) .

SSR 96-7p advises that the ALJ may consider, in addition to

the obj ective medical evidence, other factors

including:

the

claimant's daily activities; the location, duration, frequency and

intensity of the individual's pain or other symptoms; factors that

precipitate and aggravate

the

symptoms;

the

type, dosage,

effectiveness and side effects of medication;

the claimant's

treatment history; any additional measures other than treatment

the claimant uses to relieve pain or other symptoms; and, "any

other factors concerning the [claimant's1 functional limitations

and restrictions due to pain or other symptoms."

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Thus, under the applicable regulations and rulings, it is

clear that in assessing credibility the ALJ is to consider factors

impacting on the claimant's abili ty to work. Nothing, however, in

§416. 929 (a) or SSR 96-7p authorizes an ALJ

to consider the

claimant's motivation to work or incentive not to work. Here,

however,

the ALJ's discussion of plaintiff's smoking habit had

nothing to do with how it impacted on plaintiff's ability to work

but solely speculated that it constituted an expense that provides

an incentive for plaintiff to seek financial benefits and a

"disincentive" for her to seek work at a smoke-free workplace.

Because the ALJ did not find that plaintiff's smoking habit in any

way

fected her ability

to work,

it was not

a proper

consideration in assessing her credibility.

Nevertheless,

the court

is satisfied

that

the ALJ's

unnecessary speculation regarding plaintiff's smoking habit did

not impact his ultimate credibility determination, which otherwise

is sound and supported by the evidence.

In assessing credibility,

the ALJ also considered plaintiff's subjective complaints in light

of the objective medical evidence, plaintiff's rather extensive

activities of daily living, her limited treatment history, her

improvement while on medication, and all of the other relevant

evidence of record.

(R. 14-15).

In doing so, the ALJ found that

plaintiff "overstated the severity of her condition" and concluded

that plaintiff

"does experience

symptoms

related

to

[her]

impairments, but not to the frequency or debilitating degree of

severity alleged."

(R.15).

The ALJ thoroughly explained his

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credibility finding and that finding is more than supported by

substantial evidence, as outlined in detail in the decision,

notwithstanding the ALJ's isolated comments regarding plaintiff's

smoking habit.

It also is important to note that while the ALJ did not find

plaintiff's subjective complaints entirely credible, his decision

makes clear that, to the extent plaintiff's allegations as to the

limitations arising from her impairments are supported by the

medical and other evidence,

the ALJ did accommodate

those

limitations in his residual functional capacity finding. Only to

the extent that plaintiff's allegations are not so supported did

the ALJ find them to be not credible. Moreover, it is not this

court's function to re-weigh the evidence and arrive at its own

credibility finding but only to determine whether the ALJ's

I

credibility determination is supported by substant

evidence.

The court is satisfied that it is despite the ALJ's ill-advised

statements regarding plaintiff's smoking habit.

After carefully and methodically considering all of the

medical evidence of record and plaintiff's testimony,

the ALJ

determined that plaintiff is not disabled within the meaning of

the Act.

The ALJ's findings and conclusions are supported by

substantial

evidence

and are not otherwise

erroneous.

Accordingly, the decision of the Commissioner must be

firmed.

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/ Gustave Diamond

United States District Judge

Case 2:12-cv-00932-GD Document 18 Filed 07/30/13 Page 13 of 13

cc:

Michael V. Quatrini, Esq.
Quatrini Rafferty, P.C.
550 East Pittsburgh Street
Greensburg, PA 15601

Michael Colville
Assistant U.S. Attorney
U.S. Post Office & Courthouse
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

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