BOOTHBY v. BERRYHILL, No. 2:2019cv00119 - Document 14 (W.D. Pa. 2020)
Court Description: ORDER denying 8 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/12/20. (cha)
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issuing a decision in which he found Boothby capable of performing the full range of light duty does cause me pause. It appears as though all parties were operating under the understanding at the hearing that the ALJ believed Boothby capable of, at most, 9 sedentary work. Certainly, the ALJ could have convened a second hearing once he formulated an RFC based upon light work. Yet I see no denial of due process. This is not an instance where the ALJ posed to the VE hypotheticals based upon a broad RFC then formulated an RFC based upon a narrower RFC. In such an instance, it would be intuitive that any jobs identified in a VE’s response to a hypothetical would not necessarily encompass jobs available under a narrower RFC. But here the ALJ posed questions based upon a narrow RFC then ultimately found that the medical evidence supported a broader RFC. As set forth above, his finding in this regard is supported by substantial evidence of record. Boothby has not identified any case law, nor did independent research reveal, suggesting that due process rights are violated in such circumstances. Indeed, Boothby’s counsel “had the opportunity to fully cross-examine the VE at the administrative hearing.” Bayer v. Colvin, 557 Fed. Appx. 280, 286 (10th Cir. 2014). As was the case in Bayer, here the hearing came to an end only when Boothby’s counsel indicated that she was finished with her examination. (R. 93) (compare Tanner v. Secretary of Health and Human Services, 932 F.2d 1110 (5th Cir. 1991) (reversing and remanding where the ALJ relied upon a VE’s report submitted after the close of evidence, finding that due process requires that a claimant be given the opportunity to cross-examine the VE). Further, although the hypothetical the ALJ did pose to the VE was based upon sedentary job positions, the VE identified the position of security guard which the DOT describes as a “light position.” (R. 89) Admittedly, the VE reduced the number of security guard positions characterized as “sedentary” to 5,000, but Boothby does not offer any case law or other compelling argument in support of the conclusion 10 that the number of positions available as “light duty” is insufficient. See ECF Docket No. 13, p. 18, citing, U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, https://www.bls.gov/ooh/protective-service/security-guards.htm, noting that there were 1,133,900 security guards available nationally in 2016). Consequently, I find no basis for remand. 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DANA LYNN BOOTHBY Plaintiff, -vs- ) ) ) ) ) ) ) ANDREW M. SAUL, Defendant. Civil Action No. 19-119 AMBROSE, Senior District Judge. ORDER OF COURT Therefore, this 12th day of February, 2020, it is hereby ORDERED that the Motion for Summary Judgment (Docket No. 12) is GRANTED and the Motion for Summary Judgment (Docket No. 8) is DENIED. It is further ORDERED that the Clerk of Courts mark this case “Closed” forthwith. BY THE COURT: /s/ Donetta W. Ambrose Donetta W. Ambrose United States Senior District Judge 12
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