Ferrebee v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KATHRYN A. FERREBEE,

Plaintiff, CIVIL ACTION NO. 3:20-cv-02188

Vv. (SAPORITO, M.J.)

KILOLO KIJAKAZI,! Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Kathryn A. Ferrebee, seeks judicial

review of the final decision of the Commissioner of Social Security

denying her claim for supplemental security income, pursuant to 42

U.S.C. § 405(g) and 42 U.S.C. § 13883(c)(8). The matter has been referred

to the undersigned United States magistrate judge on consent of the

parties, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

42 U.S.C. § 405(g) (action survives regardless of any change in the person

occupying the office of Commissioner of Social Security). The caption in

this case is amended to reflect this change.

I. BACKGROUND

On October 4, 2018, Ferrebee protectively filed an application for

supplemental security income, asserting a disability onset date of

October 4, 2018. Her claim was initially denied by state agency reviewers

on February 19, 2019. The plaintiff then requested an administrative

hearing.

A hearing was subsequently held on April 11, 2019, before an

administrative law judge, Jarrod Tranguch (the “ALJ”). In addition to the

plaintiff herself, the ALJ received testimony from an impartial vocational

expert, Dana Marmo. The plaintiff was represented by counsel at the

hearing.

On March 3, 2020, the ALJ denied Ferrebee’s application for

benefits in a written decision. The ALJ followed the familiar five-step

sequential evaluation process in determining that Ferrebee was not

disabled under the Social Security Act. See generally Myers v. Berryhill,

373 F. Supp. 3d 528, 534 (M.D. Pa. 2019) (describing the five-step

sequential evaluation process). At step one, the ALJ found that Ferrebee

had not engaged in substantial gainful activity since her application date.

At step two, the ALJ found that Ferrebee had the severe impairments of:

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depression, anxiety, unspecified personality disorder, and history of

polysubstance abuse.

At step three, the ALJ found that Ferrebee did not have an

impairment or combination of impairments that meets or medically

equals the severity of an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. The ALJ considered Ferrebee’s limitations in four

broad functional areas as a result of her mental disorders, finding

moderate limitations in all four areas: (1) her ability to understand,

remember, or apply information; (2) her ability to interact with others;

(3) her ability to concentrate, persist, or maintain pace; and (4) her ability

to adapt or manage oneself. See generally 20 C.F.R. § 416.920a(c)

(explaining functional limitation rating process for mental impairments);

20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas

of mental functioning); id. § 12.00(F) (explaining process for using

paragraph B criteria to evaluate mental impairments).

Between steps three and four of the sequential-evaluation process,

the ALJ assessed Ferrebee’s residual functional capacity (“RFC”). See

generally Myers, 873 F. Supp. 3d at 534 n.4 (defining RFC). After

evaluating the relevant evidence of record, the ALJ found that Ferrebee

had the RFC to perform the full range of all exertional levels of work as

defined in 20 C.F.R. § 416.967, with the following non-exertional

limitations:

[T]he claimant could perform jobs that would take no

more than 380 days of training to learn with a Specific

Vocational Preparation (SVP) level of two or less,

which are generally classified as unskilled. The

claimant could also perform jobs that would be

considered “low stress” that would involve only

occasional, simple decision-making, and _ only

occasional changes in the work duties and work

setting. The claimant could have occasional contact

with coworkers, customers, and members of the

general public.

(Tr: 32.)

In making these factual findings regarding Ferrebee’s RFC, the

ALJ considered her symptoms and the extent to which they could

reasonably be accepted as consistent with the objective medical evidence

and other evidence of record. See generally 20 C.F.R. § 416.929; Soc. Sec.

Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also

considered and articulated how persuasive he found the medical opinions

and prior administrative medical findings of record. See generally 20

C.F.R. § 416.920c.

At step four, based on this RFC and on testimony by the vocational

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expert, the ALJ concluded that Ferrebee was capable of performing her

past relevant work as a hand packager (DOT # 920.587-018) as actually

and generally performed. Based on this finding, the ALJ concluded that

Ferrebee was not disabled for Social Security purposes.

Although the ALJ found Ferrebee not disabled at step four, he also

recorded an alternative finding that Ferrebee was capable of performing

other jobs that exist in significant numbers in the national economy,

which would in turn dictate a not-disabled finding at step five. Based on

Ferrebee’s age, education, work experience, and RFC, and based on

testimony by the vocational expert, the ALJ concluded that Ferrebee was

capable of performing the requirements of representative occupations

such as night cleaner (DOT # 323.687-014), stock worker (DOT # 209.587-

034), tagger (DOT # 229.587-018), dishwasher (DOT # 318.687-010),

laborer (DOT # 922.687-058), or machine feeder (DOT # 699.686-010).

The plaintiff sought further administrative review of her claims by

the Appeals Council, but her request was denied on October 6, 2020,

making the ALJ’s March 2020 decision the final decision of the

Commissioner subject to judicial review by this court.

The plaintiff timely filed her complaint in this court on November

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21, 2020. The Commissioner has filed an answer to the complaint,

together with a certified copy of the administrative record. Both parties

have filed their briefs, and this matter is now ripe for decision.

II. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner's

finding that he or she is not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law. See

generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(8); Myers, 373 F.

Supp. 3d at 533 (describing standard of judicial review for social security

disability insurance benefits and supplemental security income

administrative decisions).

Ferrebee asserts on appeal that the ALJ’s decision is not supported

by substantial evidence because the ALJ’s RFC determination omitted

two particular non-exertional mental limitations found in uncontradicted

medical opinions that the ALJ had expressly found to be “persuasive”:

(1) a finding by a state agency psychological consultant that Ferrebee was

limited to “simple one or two step tasks”; and (2) parallel findings by a

consultative examining psychologist and a state agency psychological

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consultant that Ferrebee was moderately limited in her ability to

“Interact with supervisors” or to “accept instructions and respond

appropriately to criticism from supervisors.”

The plaintiff does not otherwise challenge the Ald’s findings with

respect to her physical and mental RFC.

A. Limitation to “Simple One or Two Step Tasks”

In the agency’s initial administrative decision, the state agency

psychological consultant, Melissa Franks, Psy.D., opined Ferrebee was

limited to “complet[ing] simple one or two step tasks.” (Tr. 106.) But the

ALJ adopted an RFC that limited Ferrebee to “only occasional, simple

decision-making.” (Tr. 33.) The plaintiff contends that there is a

significant distinction between “simple decision-making” and “simple one

or two step tasks,” and she argues that the ALJ erred in excluding this

more restrictive limitation from his RFC determination for Ferrebee.?

We need not resolve this particular issue because, under the

2 We note that the findings of a consultative psychological

examining psychologist, Gregory Coleman, Psy.D., were not so limited in

this aspect of mental functioning. Dr. Coleman found Ferrebee subject to

only mild limitations in her ability to understand, remember, and carry

out complex instructions. He found no limitations at all in her ability to

understand, remember, and carry out simple instructions. (Tr. 508.)

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circumstances presented in this case, even if we assume arguendo that

the plaintiff is correct, any error on this point is harmless.

In determining whether a claimant is capable of performing work

that exists in significant numbers in the national economy, the agency

and the courts routinely rely on the Dictionary of Occupational Titles (4th

ed. 1991) “DOT”), a publication by the U.S. Department of Labor that

identifies thousands of jobs by name and describes the skills and other

attributes required to perform each. See 20 C.F.R. § 416.966(d)(1) “[W]e

will take administrative notice of reliable job information available from

various governmental and other publications. For example, we will take

notice of... [the] Dictionary of Occupational Titles, published by the

Department of Labor... .”); see also Evans v. Metro. Life Ins. Co., 190

Fed. App’x 429, 436 n.7 (6th Cir. 2006) (recognizing that courts may take

judicial notice of the DOT as well). The DOT includes a description of the

“seneral educational development” (“GED”) for each of the jobs

catalogued therein. “General Educational Development embraces those

aspects of education (formal and informal) which are required of the

worker for satisfactory job performance.” DOT app. C, 1991 WL 688702.

The GED scale is composed of three divisions, one of which is relevant

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here—“Reasoning Development.” See id. In occupations described as

having Reasoning Development Level 1, satisfactory job performance

requires that an employee be able to “[a]lpply commonsense

understanding to carry out simple one- or two-step instructions” and to

“ldjeal with standardized situations with occasional or no variables in or

from these situations encountered on the job.” Jd. (emphasis added).

Meanwhile, occupations described as having Reasoning Development

Level 2 require an employee be able to “[alpply commonsense

understanding to carry out detailed but uninvolved written or oral

instructions” and to “[dJeal with problems involving a few concrete

variables in or from standardized situations.” Id.

Courts—including this one—have found that a limitation to one- to

two-step tasks is consistent with GED Reasoning Development Level 1,

but inconsistent with GED Reasoning Development Level 2. See Stanton

v. Comm’, Soc. Sec. Admin., 899 F.3d 555, 560 (8th Cir. 2018);

Henderson v. Colvin, 643 Fed. App’x 278, 277 (4th Cir. 2016) (per curiam);

Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015);

Skeens v. Astrue, 903 F. Supp. 2d 1200, 1210-11 (W.D. Wash. 2012);

Wisziwaty v. Astrue, 861 F. Supp. 2d 924, 946 (N.D. Ind. 2012); see also

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Shingler v. Kijakazi, Civil Action No. 4:20-CV-01344, 2022 WL 273426,

at *12 (M.D. Pa. Jan. 28, 2022); Brown v. Kijakazi, Civil Action No. 4:20-

CV-00836, 2021 WL 4711242, at *7 n.4 (M.D. Pa. Oct. 8, 2021).

Here, at step four, the ALJ found that Ferrebee was capable of

performing her past relevant work as a hand packager. That job,

however, is classified in the DOT as a Reasoning Development Level 2

position. See DICOT 920.587-018, 1991 WL 687916 (“packager, hand”).

The ALJ, however, also recorded an alternative step-five finding that

Ferrebee was capable of performing other jobs that exist in significant

numbers in the national economy. Four of the six occupations identified

by the ALJ were also Reasoning Development Level 2 positions, which a

one- or two-step tasks limitation would preclude. See DICOT 209.587-

034, 1991 WL 671802 (“marker’” or “stock worker”); DICOT 229.587-018,

1991 WL 672150 (“ticketer” or “tagger”); DICOT 318.687-010, 1991 WL

672755 (“kitchen helper” or “dishwasher”); DICOT 922.687-058, 1991 WL

688132 (“laborer, stores’). But two of the positions identified—night

cleaner and machine feeder—were Reasoning Development Level 1

positions, which are consistent with a one- or two-step tasks limitation.

See DICOT 323.687-014, 1991 WL 672783 (“cleaner, housekeeping” or

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“night cleaner’); DICOT 699.686-010, 1991 WL 678871 (“machine

feeder’).

Under the applicable 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 her] physical or mental abilities and vocational

qualifications.” 20 C.F.R. § 416.966(b) (emphasis added). Here, based on

testimony by the vocational expert, the ALJ found two occupations with

requirements that Ferrebee was able to meet with her physical and

mental abilities and vocational qualifications. Moreover, based on

testimony by the vocational expert, the ALJ found that a significant

number of jobs existed—900,000 night cleaner jobs nationally and 66,000

machine feeder jobs nationally—meaning that each of these two

occupations exists in significant numbers in the national economy. See

Young v. Astrue, 519 Fed. App’x 769, 772 (3d Cir. 2013) (per curiam)

(‘[T]he testimony from the vocational expert that 20,000 jobs were

available in the national economy is sufficient to support a finding that

work exists in significant numbers.”); Bennett v. Barnhart, 264 F. Supp.

2d 238, 259 (W.D. Pa. 2003) (finding vocational expert testimony that

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187,500 jobs were available nationally was “satisfactory to establish the

existence of a significant number of jobs in the national economy”); □□□

Leonard v. Heckler, 582 F. Supp. 389, 391-92 (M.D. Pa. 1983) (finding

vocational expert testimony that 5,000 jobs existed in the national

economy was insufficient to establish that work exists in significant

numbers).

Based on the foregoing, it is clear that, even if the plaintiffs

argument is fully credited, any error with respect to the AlJ’s exclusion

of a more restrictive one- or two-step tasks limitation is harmless. See

Shingler, 2022 WL 273426, at *12.

Our review does not end here, however, as we find the plaintiffs

second claim of error is not harmless.

B. Limitations on Interacting with Supervisors

In the agency’s initial administrative decision, the state agency

psychological consultant, Dr. Franks, opined that Ferrebee was

moderately limited in her ability to interact with the general public, in

her ability to accept instructions and respond appropriately to criticism

from supervisors, and in her ability to get along with coworkers or peers

without distracting them or exhibiting behavioral extremes. (Tr. 105—06.)

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Based on his examination of Ferrebee in person, a consultative

examining psychologist, Gregory Coleman, Psy.D., reached a similar

conclusion, opining that Ferrebee was moderately limited in her ability

to interact with the public, with supervisors, or with co-workers. (Tr.

509.) But the ALJ adopted an RFC that limited Ferrebee to “occasional

contact with coworkers, customers, and members of the general public.”

(Tr. 33.) This RFC determination did not include any limitation

whatsoever with respect to Ferrebee’s interaction with supervisors. The

plaintiff argues that the ALJ erred in excluding this more restrictive

limitation from his RFC determination for Ferrebee.

Although the ALJ did not explicitly reference the finding by Dr.

Franks that Ferrebee was moderately limited in her ability to accept

instructions and respond appropriately to criticism from supervisors, he

did expressly acknowledge the finding by Dr. Coleman that Ferrebee had

a “moderate limitation in interacting appropriately with the public,

supervisors, and coworkers.” (Tr. 36 (emphasis added).) The ALJ found

the opinions of both psychologists to be “persuasive,” without any

qualifiers, because these opinions were “supported by detailed

explanations and the clinical signs and findings” and “consistent with the

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claimant’s medical treatment history.” (/d.) Yet the AlLdJ’s RFC

determination excluded any limitation with respect to Ferrebee’s ability

to interact with supervisors, and it did so without any explanation

whatsoever.

While an ALJ is free to reject particular limitations articulated in

a medical opinion, see generally Titterington v. Barnhart, 174 Fed. App’x

6, 11 (8d Cir. 2006) (“There is no legal requirement that a physician have

made the particular findings that an ALJ adopts in the course of

determining an RFC.”); Myers, 373 F. Supp. 3d at 538 (“Nothing in the

Social Security Act or governing regulations requires the ALJ to obtain

matching “opinion” evidence in order to fashion a claimant’s RFC.”), it is

“well-settled that when an ALJ rejects relevant limitations in a medical

opinion without explanation, a remand is required.” Hoover v. Saul, 485

F. Supp. 3d 538, 544 (M.D. Pa. 2020) (emphasis added); see also Gonzales

v. Colvin, 191 F. Supp. 3d 401, 420 (M.D. Pa. 2015).

We cannot say that the ALJ’s failure to adopt the more restrictive

limitations posited by the two psychologists is harmless. The hmitations

that were adopted by the ALJ with respect to Ferrebee’s ability to

interact with the public and coworkers do not address this same area of

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mental impairment. As our sister court recently explained in a strikingly

similar case:

The public, supervisors, and co-workers are distinct

groups, and are separately addressed on the mental

RFC forms. Thus, limitations on one type of interaction

in the RFC does not account for limitations on the

others. Notably, an inability to appropriately interact

with or respond to criticism from supervisors is distinct

from an inability to interact with either coworkers or

the public. Indeed, the Social Security regulations treat

the abilities to respond appropriately to supervision

and to get along with coworkers as separate aspects of

the basic mental demands of unskilled work, noting

that the substantial loss of ability to meet any basic

mental demand could severely limit the potential

occupational base.

Veronica B. v. Kijakazi, Case No. 3:20-cv-6950, 2022 WL 131136, at *6

(D.N.J. Jan. 14, 2022) (citations and internal quotation marks omitted).

Here, despite the findings of Dr. Franks and Dr. Coleman with

respect to a moderate limitation to Ferrebee’s ability to interact with

supervisors, the ALJ posed no hypothetical to the vocational expert

incorporating such a limitation, and he excluded any such limitation from

his ultimate RFC finding. Without any vocational evidence whatsoever

on this particular question, we are unable to conclude that incorporating

the limitation would not significantly erode the remaining occupational

base. See, e.g., Martinez v. Astrue, No. CIV 09-729 JPA/LFG, 2010 WL

11623442, at *21 (D.N.M. Apr. 20, 2010) (noting that a vocational expert

had testified that claimant who would otherwise be able to work as a

housekeeper would be precluded from doing any work at all if a moderate

limitation in his ability to accept instruction and to respond

appropriately to criticism from supervisors was added), report &

recommendation adopted by Case No. 1:09-cv-00729 (D.N.M. May 17,

2010) (remand order), ECF No. 23.

Accordingly, in light of the foregoing, we are unable to conclude that

substantial evidence supports the ALJ’s RFC determination.

III. CONCLUSION

Based on the foregoing, we conclude that the Commissioner’s

finding that Ferrebee was not disabled is not supported by substantial

evidence. Accordingly, the Commissioner’s decision denying her

application for supplemental security income will be reversed and the

case will be remanded for further proceedings consistent with this

opinion.

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An appropriate Order follows.

Dated: March _ 43 , 2022 Fd

OSEPH APORITO, JR.

United States Magistrate Judge

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