Rhine v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ASHTON S. RHINE, SR., ) CIVIL ACTION NO. 4:19-CV-1781

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

ANDREW SAUL, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Ashton S. Rhine, Sr., an adult individual who resides within the

Middle District of Pennsylvania, seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying his application for

disability insurance benefits under Title II of the Social Security Act. Jurisdiction is

conferred on this Court pursuant to 42 U.S.C. §405(g).

This matter is before me, upon consent of the parties pursuant to 28 U.S.C.

§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 13). After

reviewing the parties’ briefs, the Commissioner’s final decision, and the relevant

portions of the certified administrative transcript, I find the Commissioner's final

decision is supported by substantial evidence. Accordingly, I recommend that the

Commissioner’s final decision be AFFIRMED.

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II. BACKGROUND & PROCEDURAL HISTORY

On May 10, 2018, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 10; Doc. 8-

2, p. 11). In this application, Plaintiff alleged he became disabled as of March 23,

2013, when he was forty years old, due to the following conditions: MS, fatigue,

balance issues, arthritis in knees and ankles, anxiety, PTSD, and seizures. (Admin.

Tr. 210; Doc. 8-7, p. 23). Plaintiff alleges that the combination of these conditions

affects his ability to lift, squat, bend, stand, walk, kneel, talk, climb stairs,

remember/memorize, complete tasks, concentrate, understand, follow instructions,

use his hands, and get along with others. (Admin. Tr. 226; Doc. 8-7, p. 39). Plaintiff

has at least a high school education. (Admin. Tr. 20; Doc. 8-2, p. 21). Before the

onset of his impairments, Plaintiff worked as an infantryman, garbage collector,

trailer assembler, and corrections officer. Id.

On July 24, 2018, Plaintiff’s application was denied at the initial level of

administrative review. (Admin. Tr. 10; Doc. 8-2, p. 11). On September 14, 2018,

Plaintiff requested an administrative hearing. Id.

On May 23, 2019, Plaintiff, assisted by his counsel, appeared and testified

during a hearing before Administrative Law Judge Edward L. Brady (the “ALJ”).

(Admin. Tr. 22; Doc. 8-2, p. 23). On June 18, 2019, the ALJ issued a decision

denying Plaintiff’s application for benefits. Id. On July 18, 2019, Plaintiff requested

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review of the ALJ’s decision by the Appeals Council of the Office of Disability

Adjudication and Review (“Appeals Council”). (Admin. Tr. 163; Doc. 8-5, p. 26).

On August 29, 2019, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1; Doc. 8-2, p. 2).

On October 14, 2019, Plaintiff initiated this action by filing a Complaint.

(Doc. 1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the

application is not supported by substantial evidence, and improperly applies the

relevant law and regulations. Id. As relief, Plaintiff requests that the Court remand

this case for a new administrative hearing. (Doc. 1, p. 5).

On April 21, 2020, the Commissioner filed an Answer. (Doc. 7). In the

Answer, the Commissioner maintains that the decision holding that Plaintiff is not

entitled to disability insurance benefits was made in accordance with the law and

regulations and is supported by substantial evidence. (Doc. 7, ¶ 8). Along with his

Answer, the Commissioner filed a certified transcript of the administrative record.

(Doc. 8).

Plaintiff’s Brief (Doc. 14) and the Commissioner’s Brief (Doc. 15) have been

filed. Plaintiff did not file a reply. This matter is now ripe for decision.

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III. STANDARDS OF REVIEW

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. § 405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).

Substantial evidence “does not mean a large or considerable amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966).

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“In determining if the Commissioner’s decision is supported by substantial

evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.

Supp. 2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not

whether Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff

is not disabled is supported by substantial evidence and was reached based upon a

correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417,

2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s

errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v.

Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination

as to the status of a claim requires the correct application of the law to the facts.”);

see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope

of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court

has plenary review of all legal issues . . . .”).

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP

SEQUENTIAL EVALUATION PROCESS

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also

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20 C.F.R. § 404.1505(a).1 To satisfy this requirement, a claimant must have a severe

physical or mental impairment that makes it impossible to do his or her previous

work or any other substantial gainful activity that exists in the national economy. 42

U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). To receive benefits under Title II

of the Social Security Act, a claimant must show that he or she contributed to the

insurance program, is under retirement age, and became disabled prior to the date on

which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process,

the ALJ must sequentially determine: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment; (3)

whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant

is able to do any other work, considering his or her age, education, work experience

and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4).

Between steps three and four, the ALJ must also assess a claimant’s RFC.

RFC is defined as “that which an individual is still able to do despite the limitations

1 Throughout this Report, I cite to the version of the administrative rulings and

regulations that were in effect on the date the Commissioner’s final decision was

issued. In this case, the ALJ’s decision, which serves as the final decision of the

Commissioner, was issued on June 18, 2019.

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caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,

121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R.

§ 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant’s

medically determinable impairments, including any non-severe impairments

identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).

At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents

him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5);

20 C.F.R. § 404.1512(a); Mason, 994 F.2d at 1064. Once this burden has been met

by the claimant, it shifts to the Commissioner at step five to show that jobs exist in

significant number in the national economy that the claimant could perform that are

consistent with the claimant’s age, education, work experience and RFC. 20 C.F.R.

§ 404.1512(b)(3); Mason, 994 F.2d at 1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, to facilitate review of the decision under the substantial evidence standard, the

ALJ's decision must be accompanied by “a clear and satisfactory explication of the

basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts

in the evidence must be resolved and the ALJ must indicate which evidence was

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accepted, which evidence was rejected, and the reasons for rejecting certain

evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which

evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).

IV. DISCUSSION

Plaintiff raises the following errors in his brief:

(1) Whether the decision of another government agency, namely the

veteran administration, was disregarded in the decision making of this

case.

(2) Whether the diversity of the findings between two governmental

agencies as to disability should be re-evaluated.

(Doc. 14, p. 3). Despite the above issues listed in Plaintiff’s statement of errors, the

brief appears to raise the following 3 issues:

(1) Whether the Court should strike down 20 C.F.R. § 404.1504;

(2) Whether the ALJ’s Decision that Plaintiff Does Not Meet Listing 11.09

is Supported by Substantial Evidence; and

(3) Whether the ALJ’s Decision is Not Supported by Substantial Evidence

Because There is an Unresolved Conflict Between the Vocational

Expert Testimony and the Dictionary of Occupational Titles.

A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION

In his June 2019 decision, the ALJ found that Plaintiff met the insured status

requirement of Title II of the Social Security Act through December 31, 2016.

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(Admin. Tr. 12; Doc. 8-2, p. 13). Then, Plaintiff’s application was evaluated at steps

one through five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial gainful

activity at any point between March 23, 2013 (Plaintiff’s alleged onset date) and

December 31, 2016 (Plaintiff's date last insured) (“the relevant period”). (Admin.

Tr. 12; Doc. 8-2, p. 13). At step two, the ALJ found that, during the relevant period,

Plaintiff had the following medically determinable severe impairments: multiple

sclerosis, obesity, anxiety, depression and post-traumatic stress disorder (“PTSD”).

Id. The ALJ found that the following impairments were medically determinable but

non-severe: hypertension, degenerative disc disease of the spine, and seizure

disorder. Id. At step three, the ALJ found that, during the relevant period, Plaintiff

did not have an impairment or combination of impairments that met or medically

equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Admin. Tr. 13; Doc. 8-2, p. 14).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in

sedentary work as defined in 20 C.F.R. § 404.1567(a) except:

The claimant would require a cane for ambulation with occasional

balancing and stooping. The claimant could not kneel, crouch, crawl or

climb ladders, ropes or scaffolds. The claimant could not work around

dangerous conditions or machinery. The claimant is limited to jobs

involving only routine changes in workplace setting and routine.

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(Admin. Tr. 15; Doc. 8-2, p. 16).

At step four, the ALJ found that, during the relevant period, Plaintiff could

not engage in his past relevant work. (Admin. Tr. 20; Doc. 8-2, p. 21). At step five,

the ALJ found that, considering Plaintiff’s age, education and work experience,

Plaintiff could engage in other work that existed in the national economy. Id. To

support his conclusion, the ALJ relied on testimony given by a vocational expert

during Plaintiff’s administrative hearing and cited the following three (3)

representative occupations: document preparer (DOT #249.587-018, assembler of

small products (DOT #739.687-030), and charge account clerk (DOT #205.367-

014). (Admin. Tr. 21; Doc. 8-2, p. 22).

B. WHETHER 20 C.F.R. § 404.1504 SHOULD BE STRUCK DOWN

On March 27, 2017, 20 C.F.R. § 404.1504, addressing an ALJ’s obligation to

consider disability decision by other agencies and entities (like the Department of

Veteran’s Affairs) was amended. The new regulation states:

Other governmental agencies and nongovernmental entities—such as

the Department of Veterans Affairs, the Department of Defense, the

Department of Labor, the Office of Personnel Management, State

agencies, and private insurers—make disability, blindness,

employability, Medicaid, workers' compensation, and other benefits

decisions for their own programs using their own rules. Because a

decision by any other governmental agency or a nongovernmental

entity about whether you are disabled, blind, employable, or entitled to

any benefits is based on its rules, it is not binding on us and is not our

decision about whether you are disabled or blind under our rules.

Therefore, in claims filed (see § 404.614) on or after March 27, 2017,

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we will not provide any analysis in our determination or decision about

a decision made by any other governmental agency or a

nongovernmental entity about whether you are disabled, blind,

employable, or entitled to any benefits. However, we will consider all

of the supporting evidence underlying the other governmental agency

or nongovernmental entity’s decision that we receive as evidence in

your claim in accordance with § 404.1513(a)(1) through (4).

20 C.F.R. § 404.1504. The prior regulation on this subject stated that “a

determination made by another agency that [a claimant] is disabled or blind is not

binding on [the Social Security Administration].” 20 C.F.R. § 404.1504 (effective

until March 26, 2017).

During notice and comment on the proposed revision to 20 C.F.R. § 404.1504

(and its Title XVI counterpart 20 C.F.R. 416.905), several comments were submitted

about this change. I have reproduced the Administration’s summary of the relevant

comments and its response below:

Comment: While a few commenters agreed with our proposal not to

provide analysis about decisions by other governmental agencies and

nongovernmental entities in our decisions and determinations, other

commenters disagreed that those decisions are inherently neither

valuable nor persuasive. Some commenters stated these decisions are

important evidence that we should always discuss because the rules or

purposes of other disability programs are similar to our programs, while

other commenters said we should discuss the decisions because they

may be more or less probative to our decisionmaking due to the

different standards used. Some commenters suggested we provide

additional training to our adjudicators about the standards used by other

governmental agencies and nongovernmental entities. Other

commenters asserted that the Department of Veterans Affairs (VA)

100% disability ratings and Individual Unemployability (IU) ratings are

highly probative to our decisionmaking by pointing to our own research

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showing veterans are substantially more likely to be found disabled

than the general population of applicants. A few commenters said we

should adopt a VA 100% disability rating or have a rebuttable

presumption that someone with a VA disability rating is entitled to

disability under the Act.

Response: While we acknowledge the commenters’ concerns, we are

adopting our proposal in these final rules.

As we stated in the notice of proposed rulemaking (NPRM), there are

four reasons why we are not requiring our adjudicators to explain their

consideration of these decisions—(1) the Act's purpose and specific

eligibility requirements for disability and blindness differ significantly

from the purpose and eligibility requirements of other programs; (2) the

other agency or entity’s decision may not be in the record or may not

include any explanation of how the decision was made, or what

standards applied in making the decision; (3) our adjudicators generally

do not have a detailed understanding of the rules other agencies or

entities apply to make their decisions; and (4) over time Federal courts

have interpreted and applied our rules and Social Security Ruling (SSR)

06-03p differently in different jurisdictions.[FN24]

Although we are not requiring adjudicators to provide written analysis

about how they consider the decisions from other governmental

agencies and nongovernmental entities, we do agree with the

commenters that underlying evidence that other governmental agencies

and nongovernmental entities use to support their decisions may be

probative of whether an individual is disabled or blind under the Act.

In sections 404.1504 and 416.904 of the proposed rules, we provided

that we would consider in our determination or decision the relevant

supporting evidence underlying the other governmental agency or

nongovernmental entity’s decision that we receive as evidence in a

claim. We clarify in final 404.1504 and 416.904 that we will consider

all of the supporting evidence underlying the decision from another

government agency or nongovernmental entity decision that we receive

as evidence in accordance with final 404.1513(a)(1)-(4) and

416.913(a)(1)-(4).

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We are not adopting the suggestion that we should train our

adjudicators on the various standards of other governmental agencies

and nongovernmental entities that make disability or blindness

decisions. Even with increased training, the actual decision reached

under different standards is inherently neither valuable nor persuasive

to determine whether an individual is disabled or blind under the

requirements in the Act, for the reasons we discussed in the preamble

to the NPRM.[FN25]

Furthermore, while we did not rely on the research cited in a few

comments to propose these rules, upon review of that research,[FN26]

we disagree with the commenters’ summary of it. Specifically, our

researchers studied the interaction of our rules and the VA's disability

standards, focusing upon VA 100% disability ratings and IU ratings.

They concluded VA and SSA disability programs serve different

purposes for populations that overlap. While individuals with a VA

rating of 100% or IU have a slightly higher allowance rate under our

programs than members of the general population, nearly one-third are

denied benefits based on our rules for evaluating medical (or medical-

vocational) considerations. This data also supports our conclusion that

these ratings alone are neither inherently valuable nor persuasive in our

disability evaluation because they give us little substantive information

to consider. Fortunately, the VA and the Department of Defense (DoD)

share medical records electronically with us, and our adjudicators

obtain the medical evidence documenting DoD and VA treatment and

evaluations to evaluate these claims.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 F.R. 5844-

01, 5848-49 (Jan. 18, 2017).

The March 18, 2010 Department of Veterans Affairs decision is a part of the

administrative record in this case. (Admin. Tr. 264-270; Doc. 8-7, pp. 77-83). In that

decision, the Department of Veterans Affairs found that Plaintiff met “schedular

requirements for a grant of individual unemployability.” (Admin. Tr. 269; Doc. 8-7,

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p. 82). This conclusion was based on the following disability ratings for service-

connected impairments: disability rating of 40% impairment for weakness of the

lower left extremity associated with multiple sclerosis; disability rating of 30% for

weakness of the upper left extremity associated with multiple sclerosis; disability

rating of 30% for difficulty swallowing associated with multiple sclerosis; disability

rating of 10% for facial palsy associated with multiple sclerosis; disability rating of

10% for parathesias of the lower right extremity associated with multiple sclerosis;

disability rating of 10% for right ankle sprain; and disability rating of 10% for

lumbar sprain with minimal degenerative changes. (Admin. Tr. 264-270; Doc. 8-7,

pp. 77-83).

In his decision, the ALJ wrote:

Decisions made by other agencies and entities are not binding on us

because those decisions are made applying different criteria than the

Social Security Act and our regulations (20 C.F.R. § 404.1504 and §

416.904). These other governmental agencies and nongovernmental

entities use their own rules for their own programs. The most common

example is the disability rating from the Department of Veterans

Affairs. Here, the claimant was assigned a disability rating of 100

percent service connected disability (Exhibit 13E). As noted we do not

consider this finding in determining disability. Underlying this decision

is no function by function evaluation of the claimant, but simply a

percentage of disability which is not consistent with the evaluation

dictated under the Social Security Act.

(Admin. Tr. 19; Doc. 8-2, p. 20).

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Plaintiff’s application in this case was filed on May 10, 2018. The new version

of 20 C.F.R. § 404.1504 applies. Plaintiff argues that this regulation, and its Title

XVI counterpart, should be struck down. Specifically, he contends:

6. The Notice of Decision – Unfavorable in this case sighted [sic]

Social Security Regulations 20 C.F.R. 404.1504 and 416.904.

7. These sections both provide that “therefore, in claims filed (see

Section 404.614) on or after March 27, 2017, we will not provide

any analysis in our determination or decision about a decision

made by any other governmental agency or a non-governmental

agency about whether you are disabled, blind, employable, or

entitled to any benefits. However, we will consider all the

supporting evidence underlying the other governmental agency

or non-governmental entities [sic] decision that we receive as

evidence in your claim in accordance with Section 404,

1513(a)(1) through (4):.

8. The issues raised by these regulations are twofold. First, although

I would acknowledge that the Social Security Administration has

the right to say the decisions by other governmental agencies are

not binding on them in their decision making process, to totally

disregard the decision constitutes an error of law or abuse of

discretion on the part of the Social Security Administration. It is

understood that different regulations may result in different

decisions regarding the disability of a Claimant by various

governmental agencies, but the action of totally disregarding a

decision of another governmental agency requires a duplication

of effort on the part of each agency and further does not offer

each agency the opportunity to consider the reasoning employed

by its sister agency.

9. The two rules in question allow the Administrative Law Judge to

ignore the decision, in this case the Veterans Administration,

when, in fact, they should be required to consider the decision of

the Veterans Administration and offer reasoning and justification

of why they did not accept such a decision in cases like this.

Page 15 of 43

(Doc. 14, pp. 4-5).

In response, the Commissioner argues:

Plaintiff’s primary argument revolves around the fact that he received

a disability rating from the Veterans’ Administration, which he believes

should translate into a finding of disability from the SSA. This claim is

wholly without merit.

Because Plaintiff applied for benefits on or after March 27, 2017, the

ALJ applied a new regulatory framework that differs substantially from

prior regulations. See Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (technical errors

correction by 82 Fed. Reg. 15,132 (Mar. 27, 2017)). Relevant here, the

new regulations revised the agency’s policy regarding consideration of

disability decisions by other governmental agencies and

nongovernmental entities.

The new regulations instruct that such a disability decision “is

inherently neither valuable nor persuasive to the issue of whether [a

claimant is] disabled.” 20 C.F.R. § 404.1520b(c)(1) (2017); 82 FR

5844, 5848-49. The regulations thus do not require an ALJ to provide

“any analysis about how [he or she] considered such evidence in [his or

her] determination or decision.” 20 C.F.R. § 404.1520b(c). The agency

explained that this rule was adopted because, among other reasons,

there are important differences between the Social Security disability

program and other disability programs and the fact that adjudicators

generally do not have a detailed understanding of the rules governing

other agencies or entities. 82 FR 5844, 5848-49.

This regulation is valid and binding. Congress granted the

Commissioner exceptionally broad rulemaking authority under the Act

to promulgate rules and regulations “necessary or appropriate to carry

out” the relevant statutory provisions and to “regulate and provide for

the nature and extent of the proofs and evidence.” 42 U.S.C. § 405(a);

see also 42 U.S.C. § 1383(d)(1) (making provisions of 42 U.S.C. §

405(a) applicable to Title XVI); Barnhart v. Waltron, 535 U.S. 212,

217-25 (2002) (deferring to the Commissioner’s “considerable

authority” to interpret the Act); Heckler v. Campbell, 461 U.S. 458, 466

(1983). When a statute grants an agency such broad authority, its initial

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policies and rules are not “carved in stone.” Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 64 (1984). The agency

has broad latitude, therefore, to change its policy concerning evaluation

of evidence—even if the new regulations conflict with prior judicial

precedent. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 982-83 (2005) (citation omitted). A court’s “prior

construction of a statute trumps an agency construction otherwise

entitled to Chevron deference only if the prior court’s decision holds

that its construction follows from the unambiguous terms of the statute

and this leaves no room for agency discretion.” Brand X, 545 U.S. at

982.

There is no statutory mandate requiring the Commissioner to give

particular consideration to a decision from another governmental

agency apply a different disability program. Accordingly, the

exceptionally broad rulemaking authority conferred by Congress leaves

ample room for the Commissioner to decide that such decisions are

inherently neither valuable nor persuasive, and to not require analysis

of such decisions. Where, as here, the statute “is silent or ambiguous

with respect to the specific issue,” a reviewing court must sustain the

agency’s interpretation if it is “ based on a permissible construction” of

the Act. Walton, 535 U.S. at 218 (quoting Chevron, 467 U.S. at 843).

Plaintiff argues that the Commissioner should have adopted a different

rule, suggesting that “the action of totally disregarding a decision of

another governmental agency requires a duplication of effort on the part

of each agency and further does not offer each agency the opportunity

to consider the reasoning employed by its sister agency,” (Pl.’s Br. at

5). But this does not make the regulation invalid. Any policy can be

critiqued, but Plaintiff must do more than argue that the agency’s

judgment was misguided; he must show that the agency’s action

“exceeds the bounds of the permissible.” See Walton, 535 U.S. at 218.

Plaintiff does not come close to making such a showing here.

Ultimately, the Court should affirm the ALJ’s decision here because the

ALJ followed the new governing regulations, and substantial

evidence—a bar that is “not high” and requires only such relevant

evidence that a reasonable mind might accept as adequate, Biestek, 139

S. Ct. 1148, 1154—supports the ALJ’s fact-finding. The record

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provides more than a “mere scintilla” of support of the ALJ’s finding

that Plaintiff could perform sedentary work which: allows the use of a

cane for ambulation; requires only occasional balancing and stooping;

does not require any kneeling, crouching, crawling, or climbing

ladders/ropes/scaffolds; and only involves routine changes in the

workplace and workplace routine (Tr. 15, 109-10).

(Doc. 15, pp. 10-13).

Plaintiff asserts a vague argument that 20 C.F.R. § 404.1504 and 20 C.F.R.

§ 416.904 should be invalidated. The gravamen of Plaintiff’s argument that this

regulation should be struck down is only one sentence long. Plaintiff states “to totally

disregard the decision constitutes an error of law or abuse of discretion on the part

of the Social Security Administration.” (Doc. 14, p. 5). Plaintiff does not identify the

statute that authorizes the Commissioner to make regulations about the nature and

extent of evidence required to evaluate applications for disability benefits under the

Social Security Act, does not cite to the standard of deference such regulations are

entitled to, does not identify the scope of this Court’s ability to review this challenge,

and does not cite to any rationale to support his contention that these regulations

should be struck down under the appropriate standard of deference. In fact, Plaintiff

cites to no facts or legal authority to support his assertion that these regulations

should be struck down. See Local Rule 83.40.4(c) (explaining that “[e]ach

contention [in a plaintiff’s brief] must be supported by specific reference to the

portion of the record relied upon and by citations to statutes, regulations and cases

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supporting plaintiff’s position.”). The Commissioner’s response, which cites to legal

authority in response to Plaintiff’s argument does not cure this defect. Absent any

legal authority cited by Plaintiff to support his position that 20 C.F.R. § 404.1504

and 20 C.F.R. § 416.904 should be struck down, this challenge is denied because it

is not sufficiently developed by Plaintiff to permit judicial review. Having concluded

that Plaintiff’s challenge to these regulations is denied, I now turn my attention to

the issue of whether the regulations were properly applied in this case.

Plaintiff’s application was filed after the date when the new regulation became

effective. The record in this case includes the decision of the Bureau of Veterans’

Affairs. In that decision, the following items are listed under the heading “evidence”:

 VA Form 21-4138, Statement in Support of Claim, received

January 21, 2010

 Duty to Assist letter, dated January 25, 2010

 Private Medical evidence from Geisinger Health System,

received with claim, and also on February 18, 2010

 Outpatient treatment records, Altoona VAMC, dated September

23, 2009 to March 2, 2010

 Outpatient treatment records, Pittsburgh VAMC, dated July 16,

2009 to November 24, 2009

(Admin. Tr. 265; Doc. 8-8, p. 78). None of these documents were presented to the

ALJ in connection with this case. Furthermore, as noted above, the relevant inquiry

before the ALJ in this case is whether Plaintiff became disabled between March 23,

Page 19 of 43

2013 and December 31, 2016.2 Because this evidence was not submitted in

connection with this application for benefits, and pre-dates the relevant period in this

case by three years, I find that the ALJ’s analysis in this case complies with 20 C.F.R.

§ 404.1504 even though he did not consider any of the supporting medical evidence

from the 2010 Bureau of Veteran’s Affairs decision.

I note that the record in this case does include medical evidence from the

Bureau of Veterans Affairs for the time period of January 1, 2016 through May 17,

2019, which was considered.

C. WHETHER THE ALJ’S DECISION THAT PLAINTIFF DOES NOT MEET

LISTING 11.09 IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Appendix 1 of 20 C.F.R. Part 404, Subpart P (“listing of impairments”),

describes, for each major body system, the severity of impairment that is severe

enough to prevent a claimant from doing any gainful activity regardless of the

claimant’s age, education or work experience. 20 C.F.R. § 404.1525(a). At step three

of the sequential evaluation process, the ALJ considers whether the combination of

2 This case involves the evaluation of Plaintiff’s second application for benefits. In

his first application, filed in November 4, 2011, a different ALJ considered whether

Plaintiff was disabled between September 6, 2011 and March 22, 2013. (Admin. Tr.

117-126; Doc. 8-4, pp. 5-14). Although the Bureau of Veterans’ Affairs decision

was issued more than one year before Plaintiff filed his November 2011 application

social security benefits, it does not appear that the VA decision was made a part of

the record in that case. (Admin. Tr. 127-129; Doc. 8-4, pp. 15-17). The ALJ’s 2013

decision was not appealed to the Appeals Council or this Court. (Admin. Tr. 217;

Doc. 8-7, p. 30).

Page 20 of 43

the claimant’s medically determinable impairments meets the severity of one of the

impairments in the listing of impairments. 20 C.F.R. § 404.1520(a)(4)(iii). If a

claimant has an impairment that meets the twelve-month duration requirement and

meets or equals all the criteria of an impairment in the listing of impairments, the

claimant is found disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

However, to qualify for benefits by showing that an impairment, or

combination of impairments, is equivalent to a listed impairment, the claimant bears

the burden of presenting “medical findings equivalent in severity to all the criteria

for the one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990).

An impairment, no matter how severe, that meets or equals only some of the criteria

for a listed impairment is not enough. Id.

Plaintiff has a medically determinable severe impairment due to multiple

sclerosis. The Commissioner’s regulations describe multiple sclerosis as:

a chronic, inflammatory, degenerative disorder that damages the myelin

sheath surrounding the nerve fibers in the brain and spinal cord. The

damage disrupts the normal transmission of nerve impulses within the

brain and between the brain and other parts of the body, causing

impairment in muscle coordination, strength, balance, sensation, and

vision. There are several forms of MS, ranging from mildly to highly

aggressive. Milder forms generally involve acute attacks

(exacerbations) with partial or complete recovery from signs and

symptoms (remissions). Aggressive forms generally exhibit a steady

progression of signs and symptoms with few or no remissions. The

effects of all forms vary from person to person.

Page 21 of 43

20 C.F.R. Part 404, Subpart P, Appendix 1 § 11.00(N)(1). The same regulation also

provides the following guidance for evaluating multiple sclerosis under Listing

11.09:

We evaluate your signs and symptoms, such as flaccidity, spasticity,

spasms, incoordination, imbalance, tremor, physical fatigue, muscle

weakness, dizziness, tingling, and numbness when we determine your

ability to stand up, balance, walk, or perform fine and gross motor

movements. When determining whether you have limitations of

physical and mental functioning, we will consider your other

impairments or signs and symptoms that develop secondary to the

disorder, such as fatigue; visual loss; trouble sleeping; impaired

attention, concentration, memory, or judgment; mood swings; and

depression. If you have a vision impairment resulting from your MS,

we may evaluate that impairment under the special senses body system,

2.00.

20 C.F.R. Part 404, Subpart P, Appendix 1 § 11.00(N)(2).

To meet Listing 11.09, a claimant must prove that he meets either the A or B

criteria of the listing set forth below:

A. Disorganization of motor function in two extremities (see

11.00D1), resulting in an extreme limitation (see 11.00D2) in the

ability to stand up from a seated position, balance while standing

or walking, or use the upper extremities; or

B. Marked limitation (see 11.00G2) in physical functioning (see

11.00G3a), and in one of the following:

1. Understanding, remembering, or applying information

(see 11.00G3b(i)); or

2. Interacting with others (see 11.00G3b(ii)); or

Page 22 of 43

3. Concentrating, persisting, or maintaining pace (see

11.00G3b(iii)); or

4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. Part 404, Subpart P, Appendix 1 § 11.09.

In his decision, the ALJ addressed Listing 11.09 as follows:

With regard to the claimant’s multiple sclerosis, Listing 11.09 requires

disorganization of motor function in two extremities resulting in an

extreme limitation in the ability to stand up from a seated position,

balance while standing or walking or in using the upper extremities or

a marked limitation in one of the following: 1. Understand, remember,

or apply information, 2. Interact with others, 3. Concentrate, persist or

maintain pace and 4. Adapt or manage oneself. In this matter, the record

clearly does not establish these criteria. The record shows that on

neurological examination, despite some decreased sensation on the left

dorsal foot and bilateral soles of the feet, the claimant had a normal

casual gait with no use of an assistive device that would affect both

upper extremities. The claimant was also found to have full motor

strength in the upper and lower extremities and intact finger-to-nose

dexterity (Exhibit B7F). Additional records within the relevant period

show physical examination findings that only note general achiness, but

no other specific abnormality to gait, muscle strength, sensation or

reflexes (Exhibit B8F). Further, the clinical findings have noted the

claimant’s language was intact along with his memory, attention and

concentration, and he was able to follow complex commands (Exhibit

B7F). Lastly, the level of treatment and activities of the claimant would

not support a marked limitation, as discussed in detail below.

(Admin. Tr. 13; Doc. 8-2, p. 14).

Plaintiff argues:

10. The Veterans Administration findings which are part of Exhibit

B. 11. F specifically found that the Plaintiff had a 40% disability

based on left lower extremity weakness due to multiple sclerosis,

and a 30% disability due to left upper extremity weakness due to

Page 23 of 43

multiple sclerosis. The Plaintiff also had a right lower extremity

paresthesia due to multiple sclerosis causing a 10% disability.

11. These results would lead one to believe that a substantial whole

body disability on the left side of 30% of the left upper extremity

and a 40% left lower extremity disability would constitute at least

marked, if not extreme disability and qualify the Plaintiff for

benefits under Listing of Impairments 11.09(a) or (b).

12. This acknowledgement of the B requirement requires a marked

limitation in one of the following: (1) understanding,

remembering or applying information; (2) interacting with

others; (3) concentrating, persisting or maintaining pace; and (4)

adapting and managing oneself.

(Doc. 14, p. 6).

In response, the Commissioner argues:

Plaintiff next superficially argues that his diagnosed multiple sclerosis

met the requirements of Listing 11.09 (at step three of the sequential

evaluation process) on or before December 31, 2016, when his insured

status expired (Pl.’s Br. at 6). Again, Plaintiff makes no reference to

anything in the record to support his argument.

To be clear, it is Plaintiff’s burden to prove disability at step three. See

20 C.F.R. 404.1512(a) (stating that a claimant bears the burden of

providing sufficient evidence to establish entitlement to disability);

Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987) (stating that it is the

claimant’s burden to present medical findings that show that his

impairment matches the severity of a listed impairment). In order to

meet a listing, a claimant must show that all of the criteria of that listing

are met. Sullivan v. Zebley, 493 U.S. 521, 530 (1990), Meeting only

some criteria of a listing “no matter how severely does not qualify.” Id.

Here, as previously discussed, Plaintiff’s treatment for his complaints

has been conservative and routine in nature. And the record shows that

the ALJ considered whether Plaintiff’s impairment(s) met or equaled

the severity of a listed impairment, including Plaintiff’s multiple

sclerosis at Listing 11.09 (Tr. 13). In addition, the ALJ’s fact-finding is

Page 24 of 43

further supported by the prior administrative medical findings from the

state agency physician, who is highly qualified and an expert in Social

Security disability evaluation. 20 C.F.R. § 404.1513a(b)(1).

Specifically, the state agency physician reviewing Plaintiff’s claim for

benefits in July 2018 (including the category of neurological disorders

at § 11.00), concluded that Plaintiff did not have an impairment or

combination of impairments that met a listing on or before December

31, 2016, when his insured status expired (Tr. 133-38). Thus, this

argument is likewise without merit.

(Doc. 15, pp. 14-15).

Although Plaintiff argues that he meets both sections (a) and (b) of Listing

11.09, Plaintiff only develops his argument as to section (a). Therefore, to the extent

Plaintiff alleges that he also meets section (b) of this listing by demonstrating a

“marked” limitation in one of the four enumerated areas I am not persuaded.

Turning to section (a) of Listing 11.09, this section requires a claimant to

prove that he suffers from “[d]isorganization of motor function in two extremities

(see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand

up from a seated position, balance while standing or walking, or use the upper

extremities.” 20 C.F.R. Part 404, Subpart P, Appendix 1. The Commissioner’s

regulations define “disorganization of motor function” as:

interference, due to your neurological disorder, with movement of two

extremities; i.e., the lower extremities, or upper extremities (including

fingers, wrists, hands, arms, and shoulders). By two extremities we

mean both lower extremities, or both upper extremities, or one upper

extremity and one lower extremity.

Page 25 of 43

20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00(D)(1). An “extreme” limitation is

defined as “the inability to stand up from a seated position, maintain balance in a

standing position and while walking, or use your upper extremities to independently

initiate, sustain, and complete work-related activities.” 20 C.F.R. Part 404, Subpart

P, Appendix 1 § 1.00(D)(2). The Commissioner’s regulations provide the following

definitions for “inability to stand up from a seated position,” “inability to maintain

balance in a seated position,” and “inability to use your upper extremities”:

a. Inability to stand up from a seated position means that once

seated you are unable to stand and maintain an upright position

without the assistance of another person or the use of an assistive

device, such as a walker, two crutches, or two canes.

b. Inability to maintain balance in a standing position means that

you are unable to maintain an upright position while standing or

walking without the assistance of another person or an assistive

device, such as a walker, two crutches, or two canes.

c. Inability to use your upper extremities means that you have a loss

of function of both upper extremities (including fingers, wrists,

hands, arms, and shoulders) that very seriously limits your ability

to independently initiate, sustain, and complete work-related

activities involving fine and gross motor movements. Inability to

perform fine and gross motor movements could include not being

able to pinch, manipulate, and use your fingers; or not being able

to use your hands, arms, and shoulders to perform gross motor

movements, such as handling, gripping, grasping, holding,

turning, and reaching; or not being able to engage in exertional

movements such a lifting, carrying, pushing, and pulling.

20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00(D)(2)(a)-(c).

Page 26 of 43

Plaintiff does not clearly identify which two extremities exhibit

disorganization of motor function, or explain what “extreme limitation” the

disorganization of limitation results in. In support of this argument, Plaintiff

references the Bureau of Veterans’ Affairs decision discussing Plaintiff’s lower left,

upper left, and lower right extremities. As discussed above, the ALJ was not required

to consider the administrative findings made in that decision, and the medical

evidence that supports the Bureau of Veterans’ Affairs decision (1) was not

submitted to the ALJ in connection with Plaintiff’s May 2018 application for

benefits, and (2) appear to pre-date the period of time relevant to Plaintiff’s May

2018 decision by three years. Accordingly, I am not persuaded that remand is

required for further consideration of whether the ALJ erred at step three by failing

to consider this evidence.

D. WHETHER THE ALJ’S DECISION IS NOT SUPPORTED BY SUBSTANTIAL

EVIDENCE BECAUSE THERE IS AN UNRESOLVED CONFLICT BETWEEN

THE VOCATIONAL EXPERT TESTIMONY AND THE DICTIONARY OF

OCCUPATIONAL TITLES

Step five of the sequential evaluation process is unique, as it is the only step

where the government bears the burden of proof. See 20 C.F.R. § 404.1512(b)(3)

(“In order to determine under § 404.1520(g) that you are able to adjust to other work,

we must provide evidence about the existence of work in the national economy that

you can do . . ., given your residual functional capacity . . . age, education, and work

Page 27 of 43

experience.”). In most cases, this burden is met by relying on evidence from the two

publications by the United States Department of Labor (The Dictionary of

Occupational Titles; and, Selected Characteristics of Occupations Defined in the

Revised Dictionary of Occupational Titles). These publications are often

supplemented by testimony from a vocational expert.

Where there is an apparent, unresolved conflict about every occupation

identified by a vocational expert, the ALJ’s conclusion at step five is not supported

by substantial evidence. Boone v. Barnhart, 353 F.3d 203, 208 (3d Cir. 2003)

(concluding that the VE’s testimony did not constitute substantial evidence that the

claimant could perform a significant number of jobs because “according to the DOT,

[claimant could not] perform any of the occupations identified by the VE.”); cf.

Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005) (concluding that an ALJ’s

decision was supported by substantial evidence where “inconsistencies [were] not

present as to each of the jobs that the expert did list.”).

Plaintiff’s challenge to the adequacy of the VE testimony is three-fold. First,

he argues that the ALJ did not explain why he chose to rely on the testimony of the

VE when it conflicted with the information contained in the DOT. Second, Plaintiff

argues that Plaintiff could not do any of the occupations because he cannot be

expected to frequently use his upper extremities (a limitation that is not included in

the RFC assessment). Third, Plaintiff argues that the ALJ’s decision is not supported

Page 28 of 43

by substantial evidence because he did not identity three representative occupations

that Plaintiff could do. I will address each argument below.

1. Whether the ALJ Failed to Adequately Explain Why He Relied

on VE Testimony that Conflicts with the DOT

In 2000, the Social Security Administration published a policy ruling to

clarify its standards for the use of vocational experts who provide evidence at ALJ

hearings. SSR 00-4p, 2000 WL 1898704. This Ruling explains that:

Occupational evidence provided by a [Vocational Expert] generally

should be consistent with the occupational information supplied by the

[Dictionary of Occupational Titles]. When there is an apparent

unresolved conflict between [Vocational Expert] evidence and the

DOT, the adjudicator must elicit a reasonable explanation for the

conflict before relying on the [Vocational Expert] evidence to support

a determination or decision about whether the claimant is disabled. At

the hearings level, as part of the adjudicator’s duty to fully develop the

record, the adjudicator will inquire, on the record, as to whether or not

there is such consistency.

Neither the [Dictionary of Occupational Titles] nor the [Vocational

Expert] evidence automatically “trumps” when there is a conflict. The

adjudicator must resolve the conflict by determining if the explanation

given by the [Vocational Expert] is reasonable and provides a basis for

relying on the [Vocational Expert] testimony rather than on the

[Dictionary of Occupational Titles] information.

SSR 00-4p, 2000 WL 1898704 at *2-3.

During the administrative hearing, the VE testified as follows:

Q Thank you. With that in mind, let’s presume the following

hypothetical scenario. Let’s assume we have a hypothetical

individual the same age, education and same experience, as the

claimant that is before us. Let’s further presume this individual

Page 29 of 43

maintains the ability to do what I describe as a limited range of

sedentary work. In addition to being limited to sedentary duty

work, this individual would require a cane for ambulation, with

occasional balancing and stooping, no kneeling, crouching or

crawling, and no climbing of ladders, ropes or scaffolds. This

individual should also avoid jobs requiring him to work around

dangerous conditions or machinery. Based on those limitations,

could this hypothetical person perform any of the past work of

the claimant, that is before us?

A No sir, the past work would be out.

Q Are there other jobs such a person could perform?

A I would indicate the following representative positions. This

would be in the national economy for all three. First, document

preparer or preparation. Sedentary, unskilled SVP of 2. DOT

code 249.587-018. That is going to be 20 to 21,000 nationally. I

am going to indicate an assembler of small products, at the

sedentary, unskilled level, SVP of 2. That DOT code is 739.687-

030. That is going to be 45,000 nationally, and I would allow for

a caveat to that particular position after my testimony or before

when ready. I would also indicate charge account clerk,

sedentary, unskilled, SVP of 2. DOT code 205.367-014, 20,000

nationally.

Q If indicated, in addition to the limitations that I just provided, that

this individual would be limited to jobs involving only routine

changes in workplace setting, and workplace routine, would

these jobs remain?

A Yes, sir.

. . . .

Q Your testimony today, is it consistent with the Dictionary of

Occupational Titles?

A For the most part, it is. I have two caveats. For the first, I will

address is the assembler of small products, that I offered at the

Page 30 of 43

sedentary level. Assembly is performed at every exertional level,

per the Department of Labor and Industry. In the DOT, the code

that I used listed as light. There’s two definitions or two codes in

the DOT that address small parts assembly. A very good

descriptors of how it is—the standardization of how it’s

performed, general bench type work, and it gives a snapshot of

industries, tools and equipment that are relied on, and also the

products themselves. But it is not nearly and exhaustive list.

Seeing these jobs, how they are and can be performed in the

economy, and also researching how these jobs are structured.

Basically that’s the manner in which I testified to those particular

jobs. I would also indicate that the DOT does not recognize two

straight forward job titles, at the sedentary level, and that’s

certainly incorporated into how I view assembly positions, that

are bench work, but normally that’s the code that I’m relying

when I address it. . . .

(Admin. Tr. 109-111; Doc. 8-3, pp. 33-35).

In his decision, the ALJ addressed the conflict about the assembler of small

parts position as follows:

Pursuant to SSR 00-4p, the undersigned has determined that the

vocational expert’s testimony is consistent with the information

contained in the Dictionary of Occupational Titles with the exception

of the exertional classification of the assembler position. The vocational

expert explained that while the assembler position is listed in the

Dictionary of Occupational Titles as a light exertional job, it exists at

the sedentary exertional level of work in a bench work setting based on

his training and experience.

(Admin. Tr. 21; Doc. 8-2, p. 22).

Plaintiff argues:

13. In addition to the above grounds, the undersigned would also

note that the vocational testimony in this case is in error in that

the assembler of small products job, DOT No. 739-687-030 is

Page 31 of 43

clearly under the Dictionary of Occupational Titles a light job

which would not be consistent with the Administrative Law

Judge’s findings that the Plaintiff in this case was limited to

sedentary work.

(Doc. 14, p. 6).

In response, the Commissioner argues:

In addition, Plaintiff’s next argument, that Plaintiff cannot perform the

occupation of small products assembler because it is described in the

DOT as light work, requires little discussion (Pl.’s Br. at 6). Plaintiff

ignores the fact that, at the administrative hearing, the vocational expert

specifically testified that, while the occupation of small products

assembler is identified in the DOT as light, the vocational expert

specifically explained that the occupation can be performed at the

sedentary level of exertion (Tr. 111). Thus, the vocational expert

appropriately explained any apparent conflict between his testimony

and the jobs as they are defined in the DOT, pursuant to SSR 00-4p.

(Doc. 15, pp. 16-17) (internal footnotes omitted).

I agree with Plaintiff that the ALJ’s decision to rely on VE testimony instead

of the DOT is inconsistent with SSR 00-4p. SSR 00-4p states:

When vocational evidence provided by a VE or VS is not consistent

with information in the DOT, the adjudicator must resolve this conflict

before relying on the VE or VS evidence to support a determination or

decision that the individual is not disabled. The adjudicator will explain

in the determination how he or she resolved the conflict.

2000 WL 1898704 at *4. Although the ALJ in this case summarized the VE’s

testimony about the exertional level conflict, he did not explain how he resolved that

conflict (i.e., why he chose to rely on the VE’s testimony instead of the DOT).

However, I also find that this error is harmless because it does not impact the

Page 32 of 43

outcome of this case. See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)

(“No principle of administrative law or common sense requires us to remand a case

in quest of a perfect opinion unless there is reason to believe that the remand might

lead to a different result.”). As explained in Sections IV. (D)(2) and (3) of this

opinion, the other two occupations identified account for Plaintiff’s credibly

established limitations, the information provided by the VE about the other two

occupations does not conflict with the DOT, and the other two occupations offer the

requisite proof to support the ALJ’s assessment that a significant number of jobs

exist in the national economy that Plaintiff can perform. Accordingly, I am not

persuaded that remand is required.

2. Whether the RFC and Hypothetical Question Posed to the VE

Incorrectly Omit a Limitation to Less than Frequent Use of Both

Upper Extremities

One oft-contested issue in this setting relates to the claimant’s residual

capacity for work in the national economy. As discussed above, a claimant’s RFC is

defined as “the most [a claimant’ can still do despite [his or her] limitations,” taking

into account all of a claimant’s medically determinable impairments. 20 C.F.R.

§ 404.1545. In making this assessment, the ALJ is required to consider the combined

effect of all medically determinable impairments, both severe and non-severe. Id.

Although such challenges most often arise in the context of challenges to the

sufficiency of vocational expert testimony, the law is clear that an RFC assessment

Page 33 of 43

that fails to take all of a claimant’s credibly established limitations into account is

defective. See Rutherford v. Barnhart, 399 F.3d 546, 554 n. 8 (3d Cir. 2005) (noting

that an argument that VE testimony cannot be relied upon where an ALJ failed to

recognize credibly established limitations during an RFC assessment is best

understood as a challenge to the RFC assessment itself); Salles v. Comm’r of Soc.

Sec., 229 F. App’x 140, 147 (3d Cir. 2007) (noting that an ALJ must include in the

RFC those limitations which he finds to be credible).

Moreover, because an ALJ’s RFC assessment is an integral component of his

or her findings at steps four and five of the sequential evaluation process, an

erroneous or unsupported RFC assessment undermines the ALJ’s conclusions at

those steps and is generally a basis for remand.

During the administrative hearing, the VE testified:

EXAMINATION OF VOCATIONAL EXPERT BY ATTORNEY:

Q Mr. Keating, what degree of use of the hands is associated with

the jobs that you’ve suggested? The document preparer, the small

parts assembler and the charge account clerk?

A We’ll begin with the charge account clerk. Frequent handling and

occasional fingering. With regard to assembler, that’s going to

be constant across the board. Document preparation is frequent

reaching, handling and fingering.

Q So, if the Judge found the testimony of the claimant credible, to

the extent that he would be limited to occasional or less use of

his upper extremities, would he be able to perform any of the jobs

you suggested today?

Page 34 of 43

A No.

(Admin. Tr. 112; Doc. 8-3, p. 36).

In his RFC assessment, the ALJ did not restrict Plaintiff to “occasional or less”

use of his upper extremities. The ALJ summarized the medical evidence associated

with Plaintiff’s severe physical impairments (multiple sclerosis and obesity) as

follows:

The record established the existence of multiple sclerosis by diagnostic

testing, including an MRI of the brain (Exhibit B7F, Pgs. 108-110).

However, the record does not contain treatment records until January

22, 2014 with the claimant reporting having a headache once a week,

but no flares or deterioration since the prior visit six months earlier.

Treatment records from April 10, 2014 show the claimant was treating

with medication and his physical examination findings at that time

indicated intact speech, intact extraocular eye muscles, normal gait,

normal coordination of the arms and full (5 out of 5) muscle strength in

all major muscle groups of the arms and legs bilaterally. Treatment

records from July 2, 2014 note the claimant was doing very well on

medication with no flare-ups or exacerbations. Further, records from

December 2014 note the claimant reported his symptoms were stable

and he denied flares. However, he did report dizziness/vertigo and

disequilibrium of gait (Exhibits B1F, Pgs. 22 and 26, B2F, B7F, Pgs.

90 and 96-97 and B8F).

The record shows the claimant had a neurological examination by a

neurologist in Pittsburgh on June 12, 2015. These records note the

claimant was returning after 6 years to re-establish treatment for

multiple sclerosis. These records note that since 6 years prior, the

claimant only had 1 major exacerbation requiring treatment with

steroids and that was in 2010. On examination, the claimant was noted

to have a stutter, but his language was intact along with his memory,

attention and concentration, and he was able to follow complex

commands. The claimant had full motor strength in the upper and lower

extremities. The claimant had decreased sensation in the left hand, left

Page 35 of 43

dorsal foot and bilateral soles of the feet, but reflexes were within

normal limits. The claimant was found to have intact finger-to-nose

dexterity and normal rapid alternating movements. The claimant was

noted to have a normal casual gait, but was unsteady on toe/heal

walking and unable to perform tandem walking. The neurologist

indicate [sic] the claimant’s condition was stable with medication and

he should continue with his current dose (Exhibit B7F, Pgs. 100-102).

Treatment records from February 5, 2016 note the claimant did not go

to the follow-up with his neurologist due to a mix up and was

rescheduling the appointment (Exhibit B8F, Pgs. 47-49). The records

after this note show no significant treatment related to multiple sclerosis

aside from routine medication until a note on March 2, 2017 indicating

he had not gone back to the neurologist in Pittsburgh due to not wanting

to take a shuttle bus. The physical examination findings only note

general achiness but no other specific abnormality to gait, muscle

strength, sensation or reflexes. These records indicate the claimant

stated he would be going back to the neurologist (Exhibit B8F, Pgs. 32-

34). Treatment records from October 2017 note the claimant was

continued on his current medication and would hopefully follow with

his neurologist (Exhibit 8F, Pg. 29). Treatment records from February

15, 2018 and October 29, 2018 note the claimant reported he was doing

well with records from October indicating no recent flares (Exhibit 8F,

Pgs. 20 and 24). In addition, treatment records from February 15, 2018

note the claimant reported knee pain, but had no interest in treatment at

that time (Exhibit 8F, Pg. 24). Treatment records from October 29, 2018

note the claimant reported he was doing well in terms of his multiple

sclerosis and was walking more due to not having a license at that time

(Exhibit B5F, Pgs. 20-21). Lastly, treatment records show no

significant exacerbation of symptoms and no significant additional

treatment (Exhibits B5F and B11F).

In terms of the claimant’s obesity, at application, the claimant reported

to stand 5 feet 11 inches tall and weigh 330 pounds (Exhibit B3E).

Further, this condition is noted throughout the treatment records

(Exhibit B8F). However, the record does not establish specific

limitations directly related to the claimant’s obesity. Nevertheless, the

undersigned has considered some level of limitation to the exertional

ability, postural activities, range of motion and environmental

Page 36 of 43

conditions due to obesity. In addition, as indicated above, the

undersigned has taken into account the cumulative effects of the

claimant’s obesity on the claimant’s co-existing impairments. In this

regard, the claimant’s ability to ambulate would be directly impacted

by his weight. In sum, it is emphasized that the undersigned considered

the cumulative effects of the claimant’s obesity when forming the

residual functional capacity as set forth above.

(Admin. Tr. 16-18; Doc. 8-2, pp. 17-19)

Plaintiff argues:

14. . . . The other two jobs would require frequent to continuous use

of the Plaintiff’s upper extremities and it should be remembered

that the Veterans Administration found the Plaintiff had a whole

body disability of 30% due to weakness of his upper extremity

associated with multiple sclerosis.

(Doc. 14, p. 7).

In response, the Commissioner argues:

Finally, Plaintiff appears to argue (again with no citation to the

transcript or any binding authority) that the occupations named by the

vocational expert are in conflict with the ALJ’s residual functional

capacity assessment (Pl.’s Br. at 6-7). This argument is simply without

basis.

Here, in response to the ALJ’s hypothetical questioning, the vocational

expert named the representative sedentary occupations of document

preparer, small products assembler, and charge account clerk (Tr. 110).

Plaintiff alleges that Plaintiff cannot perform the occupations of

document preparer or charge account clerk because, he claims,

according to the DOT, both occupations require use of the upper

extremities (Pl.’s Br. at 7). However, Plaintiff offers no relevant

evidence to support his assertion that he needed to be further limited

than the ALJ found in the residual functional capacity assessment. Most

significantly, there is no citation to any medical evidence prior to

Plaintiff’s date last insured. Thus, this assertion is without basis.

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(Doc. 15, pp. 15-16).

The record in this case does not include any medical opinion about Plaintiff’s

physical functional capacity. Plaintiff does not object to the lack of such opinion in

his Brief.

The ALJ is only required to accurately convey to the VE, and account for in

the RFC assessment, those limitations that are credibly established in the record.

Rutherford, 399 F.3d at 554. I construe Plaintiff’s argument as an allegation that the

ALJ did not account for all of Plaintiff’s credibly established limitations, which in

Plaintiff view include a limitation to no more than occasional use of both upper

extremities. Credibly established limitations are:

Limitations that are medically supported but are also contradicted by

other evidence in the record may or may not be found credible—the

ALJ can choose to credit portions of the existing evidence but “cannot

reject evidence for no reason or for the wrong reason” (a principle

repeated in Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993); Reg.

§ 929(c)(4)). Finally, limitations that are asserted by the claimant but

that lack objective medical support may possibly be considered

nonetheless credible. In that respect the ALJ can reject such a limitation

if there is conflicting evidence in the record, but should not reject a

claimed symptom that is related to an impairment and is consistent with

the medical record simply because there is no objective medical

evidence to support it (Reg. § 929(c)(3)).

Rutherford, 399 F.3d at 554.

Here, Plaintiff alleges that he has a credibly established limitation to his ability

to use his upper extremities. As with his other arguments, he alleges that this

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limitation is established by the 2010 Bureau of Veteran’s Affairs decision. He does

not cite to any objective support in the medical records or to Plaintiff’s own

testimony to support the existence of this limitation. As discussed above, under the

version of 20 C.F.R. § 404.1504 that applies to Plaintiff’s application, the ALJ was

not required to consider the 2010 Bureau of Veteran’s Affairs decision. Therefore, I

am not persuaded that the ALJ erred by excluding limitations Plaintiff alleges are

established by a piece of evidence that the ALJ was not required to consider.

3. Whether the ALJ’s Decision is Supported by Substantial

Evidence Because he Did Not Cite to Three Representative

Occupations

Under the Commissioner’s regulations, “[w]ork exists in the national

economy when there is a significant number of jobs (in one or more occupations)

having requirements which [the claimant] is able to meet with [his or he] physical

or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b). “Isolated

jobs that exist only in very limited numbers in relatively few locations outside of the

region where you live are not considered ‘work which exists in the national

economy.’” Id. However, there is no bright line rule as to the number of jobs are

“significant.”

Plaintiff argues:

14. The requirement is that a number of jobs are given as examples

and that is always three (3) sample jobs. In this case, only two of

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the sample jobs would be within even the residual functional

capacity found by the Administrative Law Judge. . . .

(Doc. 14, p. 7).

In response, the Commissioner argues:

And to the extent Plaintiff seems to argue (again without any citation

to any biding authority) that the ALJ is required to identify three

representative occupations that Plaintiff can perform, this argument is

simply without basis (Pl.’s Br. at 7). Plaintiff is apparently alluding to

the Program Operations Manual System (POMS), § DI 25025.30

(Support for a Framework “Not Disabled” Determination). However,

his reliance on the POMS is misguided.

The relevant regulation here, 20 C.F.R. § 404.1566(b), provides that

“[w]ork exists in the national economy when there is a significant

number of jobs (in one or more occupations) having requirements

which you are able to meet with your physical or mental abilities and

vocational qualifications” (emphasis added). As just discussed,

Plaintiff’s attempt to undermine the validity of the representative

occupations identified by the vocational expert due to an alleged

limitations unsubstantiated in the relevant record, or due a supposed

inconsistency with the DOT is simply without merit.

In any event, as just discussed, and as confirmed by the POMS section

Plaintiff may be attempting to rely on, “You may cite fewer than three

occupations when it is clear that jobs exist in significant numbers within

fewer than three occupation(s). Make this determination using

vocational specialist advice supported by information contained in the

publications listed in regulations sections 404.1566(d) and 416.966(d)

or other reliable sources of occupations information.” That is precisely

what was done here and, accordingly, Plaintiff’s step five argument is

without merit.

(Doc. 15, pp. 17-19) (internal footnotes omitted).

Even excluding the occupation of assembler of small parts, the ALJ has

identified a significant number of jobs that Plaintiff could perform. Taken together,

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the two remaining occupations (document preparer and charge account clerk)

amount to approximately 40,000 positions in the national economy. (Admin. Tr. 21;

Doc. 8-2, p. 22). Courts have found that 20,000 jobs or more is enough. Young v.

Astrue, 519 F. App’x 769, 772 (3d Cir. 2013) (finding that 20,000 jobs is a

significant number); Brininger v. Berryhill, No. 3:16-CV-00903, 2017 WL 3634187

at *15 (M.D. Pa. Aug. 7, 2017) (finding that 74,470 jobs is enough). However, the

number of positions in the national economy isn’t what Plaintiff finds fault in.

Instead, he appears to argue that the ALJ erred by not following the Social Security

Administration’s Program and Operations Manual System (“POMS”).

The Commissioner correctly identifies that the § DI 25025.30(C)(1) of the

POMS states, under the heading “How to cite to occupations” and “subheading

“How many occupations,” that:

Cite three occupations that are examples of work the claimant could do

given his or her impairment-related limitations and restrictions. We

base our medical vocational rules on the existence of unskilled work at

all levels of exertion—from very heavy to sedentary.

Cite to occupations within the claimant’s RFC that contain jobs that

exist in significant numbers in the national economy if:

 A medical-vocational rule is not met; and

 No SSR provides support for a finding that the claimant’s

limitations do not significantly erode the occupational based of

the framework rule.

EXCEPTION: You may cite fewer than three occupations when it is

clear that jobs exist in significant numbers within fewer than three

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occupation(s). Make this determination using vocational specialist

advice supported by information contained in the publications listed in

the regulations sections 404.1566(d) and 416.966(d) or other reliable

sources of occupational information.

When evaluating similar arguments, other courts have noted that:

the POMS isn’t a regulation that has controlling force. See Parker v.

Sullivan, 891 F.2d 185, 190 (7th Cir. 1989); Darley v. Berryhill, 2018

WL 5631519 (N.D. Ill. Oct. 31, 2018) (finding the POMS direction to

cite three occupations is, “at best, persuasive”); Thompson v. Astrue,

2013 WL 393290 (N.D. Ind. Jan. 31, 2013) (“the POMS manual does

not impose judicially enforceable duties on an ALJ, it is considered

persuasive”).

Butler v. Saul, No. 2020 WL 5494745 at *5 (N.D. Ind. Sept. 11, 2020) (finding that

an ALJ’s decision was supported by substantial evidence even though the claimant

could not perform one of the three occupations cited by the ALJ). Because it is clear

based on the two remaining occupations (document preparer and charge account

clerk) that a significant number (40,000 in the national economy) of jobs exist, I am

not persuaded that remand is required.

[The next page contains the Conclusion]

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V. CONCLUSION

For the reasons set forth above that Plaintiff’s request for remand is DENIED

as follows:

(1) The final decision of the Commissioner is AFFIRMED.

(2) Final judgment will be issued in favor of the Commissioner of Social

Security.

(3) An appropriate order will issue.

Date: January 26, 2021 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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