United States District Court, W.D. Pennsylvania
N. Bloch United States District Judge.
NOW, this 21st day of June, 2017, upon
consideration of the parties' cross motions for summary
judgment, the Court, upon review of the Acting Commissioner
of Social Security's final decision, denying Plaintiffs
claim for supplemental security income benefits under
Subchapter XVI of the Social Security Act, 42 U.S.C. §
1381, et seq., finds that the Acting
Commissioner's findings are supported by substantial
evidence and, accordingly, affirms. See 42 U.S.C.
§ 405(g); Jesurum v. Sec'v of U.S. Dep't of
Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d
Cir. 1992), cert denied sub nom., 507 U.S. 924
(1993); 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.
IT IS HEREBY ORDERED that Plaintiffs Motion for Summary
Judgment (Doc. No. 9) is DENIED and Defendant's Motion
for Summary Judgment (Doc. No. 11) is GRANTED.
 Plaintiffs sole argument on appeal is
that the Administrative Law Judge ("ALJ") erred by
failing to consider properly whether Plaintiffs treatment
regimen prevents her from maintaining regular employment. The
Court disagrees and finds that substantial evidence supports
the ALJ's findings as well as his ultimate determination,
based on all the evidence presented, of Plaintiff s
In essence, Plaintiff contends that the ALJ erred in
relying on the answer provided by the vocational expert
("VE") to the ALJ's original hypothetical
question posed at the administrative hearing, when he should
have instead relied on the VE's response to the ALJ's
follow-up question which included an additional limitation
regarding absences from work. Specifically, the ALJ
originally asked the VE to assume an individual of Plaintiff
s age, education and work experience who can work at any
exertional capacity but who can perform only routine,
repetitive tasks; who can handle only occasional judgment,
decision-making and workplace changes; and who can tolerate
only occasional interaction with the public, coworkers and
supervisors. (R. 32, 63-64). Considering these limitations,
the VE testified that such an individual would be able to
perform the requirements of representative occupations such
as hand packer, kitchen helper, and housekeeper/cleaner. (R.
32, 64). Plaintiff argues that the ALJ should have instead
relied upon the VE's response to the follow-up question,
in which the ALJ inquired whether there would be work for a
person who would miss at least three days of work per month.
(R. 65). Plaintiff asserts that the record shows that she
frequently attended scheduled medical appointments, and she
claims that it is not clear from the ALJ's decision
whether that factor was possibly ignored or wrongfully
rejected by the ALJ. (Doc. No. 10, at 12). Plaintiff further
contends that this follow-up testimony of the VE is
consistent with the medical evidence of record, and that the
ALJ failed to provide evidence to reject such
It is important to note that, while the hypothetical
question to the VE must accurately portray the claimant's
impairments, such question need only reflect those
impairments that are adequately supported by the record.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984); Chrupcala v. Heckler. 829 F.2d 1269, 1276 (3d
Cir. 1987). Plaintiff correctly points out that the VE
testified that consistently missing more than 8 days of work
per year and/or 3 days of work per month consistently would
jeopardize an individual's employment. (R. 65). While the
ALJ did pose a follow-up question at the administrative
hearing including such additional limitation, when ultimately
formulating Plaintiffs residual functional capacity
assessment ("RFC"), the ALJ explicitly concluded
that this additional restriction did not need to be included
therein. See 20 C.F.R. § 416.945(a)(1)
(explaining that your RFC "is the most you can still do
despite your limitations").
The Court emphasizes that, despite Plaintiffs
assertions to the contrary, the ALJ very clearly explained in
his decision that his follow-up hypothetical question
regarding an individual who would be absent from work 3 days
per month was based on Plaintiffs allegations that the ALJ
found to be inconsistent with the other evidence in the
record, which he reviewed at length in his decision. (R. 32).
In his decision, the ALJ thoroughly discussed Plaintiffs
treatment records, which included the records concerning
Plaintiffs various appointments cited by Plaintiff to support
her argument. The ALJ further specified that although the
VE's response to his follow-up question was accurate,
that portion of the VE's testimony was discounted in
making his determination because the VE was asked to assume
limitations that the ALJ found were, quite simply, not
established by the evidence. (R. 32).
Nevertheless, Plaintiff attempts to contest the
ALJ's conclusion by arguing that, based on the medical
records from her various appointments, she would obviously
miss multiple full days of work each month due to her
appointment schedule. The Court notes that, while the record
undoubtedly shows that Plaintiff has attended a number of
appointments each month, there is no indication in the record
that each appointment would require her to miss an entire day
of work. Additionally, since the record does not show that
such appointments could not be scheduled outside of Plaintiff
s prospective working hours, and since her appointments
appear to have lasted an hour at most (and were often closer
to 20 minutes in length), there is also no indication in the
record that Plaintiff would even have to miss partial days of
work in order to attend her appointments. Quite simply,
Plaintiff never established that she would have the absences
per month that the VE indicated would preclude employment.
Thus, the Court finds that, in making his determination, the
ALJ relied upon the response to an appropriate hypothetical
question which included those limitations, properly portrayed
in the RFC, that were supported by the record.
Alternatively, Plaintiff cursorily contends in her
Reply that the ALJ failed to fully develop the record. More
specifically, Plaintiff suggests that the ALJ should have
attempted to obtain evidence regarding the frequency,
duration and availability of medical appointments, and that
the VE should have opined on the impact that 20-60 minute
appointments would have on maintaining employment. (Doc. No.
13, at 3).
It is true that an ALJ has a duty to develop a full
and fair record in a Social Security case. See Ventura v.
Shalala. 55 F.3d 900, 902 (3d Cir. 1995); Carmichael
v. Barnhait 104 Fed.Appx. 803, 805 (3d Cir. 2004). In
this case, however, the ALJ clearly fulfilled his duty. At
the administrative hearing, the proposed exhibits (Parts A,
B, C, D, and E of the file and medical exhibits C1F through
C5F), which included Plaintiffs medical records describing
her appointments, were admitted into evidence and made a part
of the record. (R. 41). Also at the hearing, the ALJ asked
whether Plaintiffs attorney had any questions for the VE and
the attorney replied that he did not. (R. 65). Moreover, the
ALJ specifically asked Plaintiffs attorney whether there was
anything additional he wanted to add at the end of the
hearing, and the attorney indicated that there was nothing.
(R. 65). Furthermore, nothing in the record indicates that
Plaintiff or her counsel communicated at any point to the ALJ
that certain evidence was missing, nor did Plaintiffs counsel
ever indicate to the ALJ that additional evidence was needed
in order to reach a decision. See 20 C.F.R. §
416.1450(d). Quite simply, the ALJ cannot be expected to seek
out evidence that did not appear to be missing or necessary
to make his decision, and it was Plaintiff and her attorney
who had the burden to obtain the evidence she wished to
submit in support of her claim. See 20 C.F.R. §§
416.912(a), 416.1540(b)(1). Nothing in the record, therefore,
demonstrates that the ALJ failed to fulfill his duty to
develop more fully the record in this case.
In sum, the Court finds here that the ALJ's
original hypothetical question to the VE fully accommodated
the limitations that were supported by the record, which were
also properly included in the RFC. After careful review of
the record, the Court finds that the ALJ did not err in
relying on the response of ...