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Osborne v. Berryhill

United States District Court, W.D. Pennsylvania

March 2, 2017



          Donetta W. Ambrose United States Senior District Judge


         Plaintiff Sarah Delinski Osborne (“Osborne”) brings this action seeking judicial review of the ALJ's decision denying a claim for disability insurance benefits (“DIB”). Osborne applied for benefits in February of 2015, alleging a disability beginning on September 1, 2014. (R. 15) She appeared and testified at a September 2, 2015 video hearing as did a vocational expert. (R. 15) The ALJ denied Osborne's claim, finding her capable of light work with certain restrictions. (R. 23) Osborne has appealed and challenged the ALJ's decision in several respects. Pending are Cross Motions for Summary Judgment. Docket no. 8 and Docket no. 12. After careful consideration, I find Osborne's arguments to be unpersuasive. Consequently, the ALJ's decision is affirmed.

         Legal Analysis

         1. Standard of Review

         The standard of review in social security cases is whether substantial evidence exists in the record to support the Commissioner's decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). 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). A district court cannot conduct a de novo review of the Commissioner's decision or re-weigh the evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by substantial evidence, a court is bound by those findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See, 5 U.S.C. §706.

         2. The Vocational Expert

         Osborne argues that the ALJ's reliance upon the vocational expert's (“VE”) testimony was erroneous and not supported by substantial evidence. Her argument in this respect is two-fold. First, she contends that the VE, Roger Dennison, was not qualified to serve as a VE. See ECF docket no. 9, p. 4-7. Second, Osborne urges that the ALJ failed to satisfy the requirements set forth in the Hearings Appeals and Litigation Manual (“HALLEX”). 1-2-6-78 (S.S.A.), 1993 WL 751902. For the reasons set forth below, I reject both contentions.

         A. The VE's Qualifications

         As to the first contention, counsel for the claimant did a thorough and capable job at the hearing of highlighting Dennison's lack of formal training and degrees / certifications in the field of vocational rehabilitation. Yet, as all parties to this proceeding acknowledge, there are no statutory or regulatory provisions that provide minimum qualifications for VEs as a precondition for testifying in social security proceedings. See ECF Docket No. 9, p. 5; ECF Docket No. 13, p. 11. Instead, Osborne relies upon a passage in the Vocational Expert Handbook, which provides that a vocational expert should have:

Up-to-date knowledge of, and experience with, industrial and occupational trends and local labor market conditions; an understanding of how we determine whether a claimant is disabled, especially at steps 4 and 5 of the sequential evaluation process we describe beginning on page 13; current and extensive experience in counseling and job placement of people with disabilities and knowledge of, and experience using, vocational reference sources, including: the Dictionary of Occupational titles (DOT) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO); County Business Patterns published by the Bureau of Census; the Occupational Outlook Handbook published by the Bureau of Labor Statistics; and any occupational surveys of occupations prepared for SSA by various state employment agencies.

See Osborne urges that the VE fails to meet this threshold. I disagree.

         A thorough review of Dennison's testimony at the hearing as well as his CV convinces me that he was, in fact, qualified as an expert in this case and that he satisfies the standards set forth in the Handbook. For instance, the record demonstrates that Dennison is the owner of and job placement coordinator for a company. (R. 58, 245). Dennison testified that he has visited between 2 and 4 companies each week in the tristate area during the past several years. (R. 61) He explained that he works with job seekers and sets up interviews for them with prospective employers. (R. 62) Dennison has performed labor market analyses. (R. 62) He is affiliated with the International Association of Rehabilitation Professionals, the National Rehabilitation Counseling Association and the National Rehabilitation Association. (R. 247) Additionally, he was scheduled, as of the hearing, to take the Certified Rehabilitation Counselors exam. Finally, Dennison has testified in prior social security cases. (R. 64) Given Dennison's history of vocational counseling, his familiarity with the relevant vocational sources (i.e., the DOT), his past experience serving as a vocational expert, and his experience running his ...

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