Soto v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSE J. SOTO, ) CIVIL ACTION NO. 4:21-CV-1531

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

KILOLO KIJAKAZI, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Jose J. Soto, an adult individual who resides in the Middle District of

Pennsylvania, seeks judicial review of the final decision of the Acting 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. 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 the Commissioner’s final decision

will be AFFIRMED.

Page 1 of 27

II. BACKGROUND & PROCEDURAL HISTORY

On June 10, 2019, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 15). In this

application, Plaintiff alleged he became disabled on September 29, 2018, when he

was 40 years old, due to the following conditions: asthma, atrial fibrillation, high

blood pressure, high cholesterol, two right knee surgeries, lower back issues,

traumatic brain injury, anxiety, depression, post-traumatic stress disorder (PTSD),

auditory and visual hallucinations, anger issues, low frustration tolerance, racing

thoughts, and poor sleep. (Admin. Tr. 16, 21, 24). Plaintiff alleges that the

combination of these conditions affects his ability to walk, stand, lift more than forty

pounds, bend, understand, retain information, tolerate crowded spaces, and sleep.

(Admin. Tr. 21). Plaintiff has at least a high school education. (Admin. Tr. 24).

Plaintiff has no past relevant work. (Admin. Tr. 24).

Plaintiff’s application was denied at the initial level of administrative review

on September 10, 2019, and upon reconsideration on November 26, 2019. (Admin.

Tr. 15). On January 28, 2020, Plaintiff requested an administrative hearing. (Admin.

Tr. 15).

On March 1, 2021, Plaintiff, assisted by his counsel, appeared and testified

during a telephone hearing before Administrative Law Judge Daniel Balutis (the

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“ALJ”). (Admin. Tr. 15, 25). On March 11, 2021, the ALJ issued a decision denying

Plaintiff’s application for benefits. (Admin. Tr. 25). On May 15, 2021, Plaintiff

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

Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 241).

On July 13, 2021, the Appeals Council denied Plaintiff’s request for review.

(Admin. Tr. 1).

On September 6, 2021, 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. (Doc. 1, p. 1). As relief, Plaintiff requests that the Court

Reverse and set aside the Commissioner’s final decision; or [i]n the

alternative, remand this cause for further proceedings consistent with

the Commissioner’s regulations and Circuit law[;] . . . . [a]ward

attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C.

§ 2412, if plaintiff is the prevailing party; [s]tay any filing deadline for

filing a fee petition for an award of attorney’s fees pursuant to 42 U.S.C.

§ 406(b) after final judgment until such time as past-due benefits are

determined by the Commissioner and counsel is in receipt of the Notice

of Award, and then award attorney’s fees pursuant to 42 U.S.C. §

406(b) upon filing of the fee petition; and [o]rder such other relief as

this court deems just.

(Doc. 1, pp. 1-2).

On November 4, 2021, the Commissioner filed an Answer. (Doc. 12). In the

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

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

regulations and is supported by substantial evidence. (Doc. 12, p. 2). Along with her

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

(Doc. 13).

Plaintiff’s Brief (Doc. 16), the Commissioner’s Brief (Doc. 17), and

Plaintiff’s Reply (Doc. 18) have been filed. This matter is now ripe for decision.

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

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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).

“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 . . . .”).

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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

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

1 Throughout this Opinion, 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 March 11, 2021. (Admin. Tr. 25).

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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

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; 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

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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

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

In his statement of errors, Plaintiff raises the following issues:

1. The ALJ erroneously failed to include the uncontroverted limitation to

1-2 step tasks within the residual functional capacity assessment; the

ALJ erroneously failed to discuss or explain his basis for failing to

include the uncontroverted limitation to 1-2 step tasks.

2. The ALJ’s residual functional capacity is not supported by substantial

evidence as the residual functional capacity exceeds the limitations of

all medical opinions of record.

Page 8 of 27

(Doc. 16, p. 6).

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

In his March 2021 decision, the ALJ found that Plaintiff met the insured status

requirement of Title II of the Social Security Act through June 30, 2022. (Admin.

Tr. 17). 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 September 29, 2018, (Plaintiff’s alleged onset date)

and March 11, 2021 (the date the ALJ decision was issued) (“the relevant period”).

(Admin. Tr. 17, 25). At step two, the ALJ found that, during the relevant period,

Plaintiff had the following medically determinable severe impairment(s): depression

and post-traumatic stress disorder (PTSD). (Admin. Tr. 17). The ALJ also found

that, during the relevant period, Plaintiff had the following medically determinable

non-severe impairments: alcohol dependence and tetrahydrocannabinol (THC)

dependence. (Admin. Tr. 18). 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. 18).

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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 light

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

[H]e could frequently perform all postural maneuvers except climb

ramps and stairs and stoop. He could tolerate frequent interaction with

supervisors, and occasional changes in routine work setting.

(Admin. Tr. 20).

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

not engage in his past relevant work because Plaintiff had no past relevant work.

(Admin. Tr. 24).

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. (Admin. Tr. 24). 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: assembler, small products II (any

industry) (DOT# 739.687-030 with 100,000 positions nationally); mail clerk

(clerical) (DOT# 209.687-026 with 75,000 positions nationally); and cleaner,

housekeeping (any industry) (DOT# 323.687-014 with 500,000 positions nationally.

(Admin. Tr. 25).

Page 10 of 27

B. WHETHER THE ALJ PREJUDICIALLY ERRED BY NOT LIMITING, AND NOT

EXPLAINING HIS FAILURE TO LIMIT, PLAINTIFF’S RESIDUAL FUNCTIONAL

CAPACITY TO ONE- TO TWO-STEP TASKS

At the initial administrative level, state agency psychological consultants, Dr.

Amanullah and Dr. Galdieri, opined that Plaintiff “is able to meet the basic mental

demands to complete 1-2 step tasks on a sustained basis, despite the limitations from

the psychological impairment.” (Admin. Tr. 104, 118). The ALJ found that these

opinions, and the assessment that Plaintiff “is able to meet the basic mental demands

to complete 1-2 step tasks on a sustained basis,” were “persuasive” and “generally

supported by and consistent with the medical evidence of record. (Admin. Tr. 23).

The limitation to 1-2 step tasks, however, was not incorporated in the ALJ’s RFC

assessment. (Admin. Tr. 20).

Plaintiff argues that the ALJ’s RFC assessment, and ultimate conclusion on

the issue of disability, is not supported by substantial evidence because the ALJ

improperly rejected the limitation to 1-2 step tasks without adequate support or

explanation. Specifically, Plaintiff contends:

As stated above, both Dr. Amanullah and Dr. Galdieri concluded that

Soto was “able to meet the basic mental demands to complete 1-2 step

tasks on a sustained basis.” (Tr. 104, 118). These opinions are

uncontroverted and no medical opinion suggests a greater level of

functioning. Additionally, the ALJ found these opinions to be

“persuasive” and found them to be “generally supported by and

consistent with the medical evidence of record.” (Tr. 23).

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Despite the fact that both Dr. Amanullah and Dr. Galdieri clearly and

unequivocally opined that Soto would be limited to “1-2 step tasks”,

the ALJ failed to include – or discuss his failure to include – this

limitation within the residual functional capacity assessment. (Tr. 20).

Notably, the ALJ was aware that these opinions limited Soto to “1-2

step tasks” as he discussed this limitation when analyzing the opinions

of Drs. Amanullah and Galdieri. (Tr. 23). However, the ALJ did not

explain why such a limitation should not be included within the residual

functional capacity assessment since these opinions were found to be

persuasive and “generally supported by and consistent with the medical

evidence of record.” (Tr. 23).

This Court has routinely held that even a limitation to “simple, routine

tasks” does not properly account for a limitation to “one or two step

tasks.” See, e.g., Beltran, Civ. A. 3:17-cv-00715-SES. Thus, it is

unclear as to how the ALJ properly accounted for the uncontroverted

limitations in Dr. Amanullah’s opinion or Dr. Galdieri’s opinion when

the ALJ failed to include *any* limitations related to task complexity –

let alone the limitation to “1-2 step tasks” contained within those

opinions.

This leads us to a related error. Not only did the ALJ fail to include such

a limitation in the residual functional capacity assessment, but the ALJ

did not explain his failure to include this limitation to 1-2 step tasks. An

ALJ’s failure to articulate the failure to include such a limitation is

cause for remand. Magistrate Judge Schwab notes in the Beltran

decision that this Court has routinely remanded where the ALJ “failed

to include, or to provide an adequate explanation as to why he decided

to exclude, a limitation to one or two-step tasks.” Beltran, Civ. A. 3:17-

cv-00715 at * 2-3 (citing Hurrey v. Colvin, 1:14-CV-02408, slip op. at

19-21 (M.D. Pa. Jan. 28, 2016) (Mehalchick, M.J.) (Report &

Recommendation), adopted, 1:14-CV-02408, slip op. (M.D. Pa. Feb. 2,

2016)). This is particularly true when such a limitation is

uncontroverted as it is here.

The requirement that an ALJ explain his failure to include a limitation

to 1-2 step tasks derives from the ALJ’s duty to adequately explain the

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evidence that he rejects or to which he affords lesser weight. Diaz v.

Comm’r of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009) (holding that

because the ALJ did not provide an adequate explanation for the weight

he gave to several medical opinions, remand was warranted). “The

ALJ’s explanation must be sufficient enough to permit the court to

conduct a meaningful review.” Burnett v. Comm’r of Soc. Sec., 220

F.3d 112, 119-20 (3d Cir. 2000). Thus, as this Court held in Beltran,

Hurrey, and more recently, Podunajec, an ALJ must explain the failure

to include a limitation to one or two step tasks in the residual functional

capacity assessment. Failure to do so leaves this ALJ’s analysis

unreviewable.

Soto’s case is even more problematic than Podunajec, Beltran, or

Hurrey. In each of these cases, the ALJ at least included a limitation to

“simple tasks” or “simple, routine tasks.” Here, the ALJ did no such

thing. The ALJ included no limitation to “simple tasks” and included

no limitation regarding task complexity of any kind. Thus, the error in

Soto’s case is even more egregious than that in Podunajec, Beltran, or

Hurrey. As the Court concluded that each of these cases required

remand, it is axiomatic that the facts of Soto’s case require remand.

This error cannot be harmless. As explained by Magistrate Judge

Saporito in Podunajec, the distinction between “simple” and “one and

two step” tasks could potentially impact a vocational expert’s testimony

and the ALJ’s ultimate conclusion in this case. Podunajec, Civ. A. No.

3:19-cv01938-JFS at *17 (citing Beltran, 3:17-CV-00715, slip op. at 2-

3; Hurrey, 1:14-CV-02408, slip op. at 19-21); see also Chrupcala v.

Heckler, 829 F. 2d 1269, 1276 (When the ALJ's denial of benefits is

not based upon an accurate hypothetical, reversal is the most

appropriate disposition of the case.) This error cannot be harmless.

(Doc. 16, pp. 8-11).

In response, the Commissioner argues that the failure to include a limitation

to one to two step tasks is harmless in this case because, even if it is an error, Plaintiff

Page 13 of 27

can still do one of the occupations identified by the ALJ. Specifically, the

Commissioner contends:

Plaintiff first argues that because the ALJ found the opinions of State

agency psychological consultants to be persuasive yet did not include

their limitation to one to two step tasks, this requires remand (Pl. Br. 6).

However, as a job cited by the VE can be performed even with a

limitation to one to two step tasks, this omission has no bearing on the

outcome of the case. Therefore, this Court should affirm.

It is not enough for Plaintiff to simply point out an error. Instead, the

burden is on Plaintiff to show that the alleged error would have an effect

on the outcome ALJ’s decision. See Perkins v. Barnhart, 79 F. App’x

512, 515 (3d Cir. 2003) (finding harmless error where the ALJ’s

mistake “would have no effect on the ALJ’s decision”); Shinseki v.

Sanders, 556 U.S. 396, 409 (2009) (explaining that Plaintiff, as the

moving party, bears the burden of showing that any legal error would

have changed the Commissioner’s decision). Here, Plaintiff cannot

establish that the ALJ’s omission of a limitation to one to two step tasks

would have changed the ultimate outcome, and remand on this issue

would be futile.

Importantly, this Court recently ruled on a case with a nearly identical

fact pattern in Shingler v. Kijakazi, 2022 WL 273426 (M.D. Pa. Jan. 28,

2022). In Shingler, it was argued that because the State agency

consultants found that Mr. Shingler “would be expected to understand

and remember simple, one and two step instructions,” the ALJ’s failure

to include that limitation in his RFC assessment despite finding it

persuasive or explain its omission required remand. Shingler, 2022 WL

273426, at *11.

This Court rejected this argument, finding harmless error. Shingler,

2022 WL 273426, at *13. Specifically, this Court noted that the VE

identified the job of “cleaner/housekeeper,” which per the DOT is a job

with a GED Reasoning Development Level 1. Shingler, 2022 WL

273426, at *12. As noted by this Court, GED Reasoning Development

Level 1 “requires that an employee be able to ‘[a]pply commonsense

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

“[d]eal with standardized situations with occasional or no variables in

or from these situations encountered on the job.’” Id. (citing DOT,

Appendix C 1991 WL 688702). This Court reasoned that “[t]he plain

language of the DOT definition for GED Reasoning Level 1 suggests

there is no conflict between it and a limitation to no more than one- or

two-step tasks” and that “other courts have concluded that ‘a limitation

to one to two-step tasks is consistent with GED Reasoning

Development Level 1.” Shingler, 2022 WL 273426, at *12 (internal

citations omitted). As such, this Court held that “even if a limitation to

one or two step instructions were included in the ALJ's RFC

assessment, Plaintiff would still be able to perform the occupation of

cleaner/housekeeping,” a job which the VE testified existed in

significant numbers in the national economy. Id.

The facts of this case are essentially identical to Shingler, and this Court

should likewise affirm. Here, State agency psychological consultants

found that Plaintiff “is able to meet the basic mental demands to

complete 1-2 step tasks on a sustained basis, despite the limitations

from the psychological impairment” (Tr. 104, 118). The ALJ found this

persuasive but did not incorporate that limitation in his RFC (Tr. 23).

However, exactly like in Shingler this was harmless error, as the VE

found that Plaintiff had the RFC to perform the job of “cleaner,” a job

that is GED Reasoning Development Level 1 with 500,000 positions in

the national economy (Tr. 25, 68); see Cleaner, Housekeeping, DOT

323.687- 014. Thus, just as remand was not required in Shindler,

remand is also not required here.

(Doc. 17, pp. 9-12).

In reply, Plaintiff argues:

The Commissioner’s harmless error argument is based on the fact that

the ALJ concluded that Soto can perform an occupation with a GED

Reasoning Level of 1 and that a limitation to one or two step tasks

would not preclude the performance of the occupation. The

Commissioner’s argument is an impermissible post hoc rationalization.

Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015) (enforcing the "the

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foundational principle of administrative law that a court may uphold

agency action only on the grounds that the agency invoked when it took

the action") (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).

The Commissioner’s harmless error argument requires this Court to

review vocational evidence in the first instance. Doing so is inconsistent

with the function of the District Court. Meloni v. Colvin, 109 F. Supp.

3d 734, 741 (M.D. Pa. 2015) (citing Christ the King Manor, Inc. v.

Sec’y US. Dep’t of Health & Human Servs., 730 F.3d 291, 305 (3d Cir.

2013) (“The Court should not be interpreting vocational evidence in the

first instance; that is the realm of a vocational expert.”).

The Commissioner specifically requests this Court to review the

requirements of the DOT to determine whether such a limitation would

be harmless. This is prohibited. Because the vocational expert was not

asked about a limitation to “one or two step tasks”, there is no

vocational expert testimony regarding this limitation. In such a case,

the proper remedy is to remand.

The United States Court of Appeals for the Third Circuit has held in

“the clearest of terms” that a hypothetical question must include all of

a claimant’s functional limitations which are supported by the record.

Ramirez v. Barnhart, 372 F.3d 546, 553-55 (3d Cir. 2004); Chrupcala

v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Podedworny v. Harris,

745 F.2d 210, 218 (3d Cir. 1984). A hypothetical that omits limitations

is defective, and the answer thereto cannot constitute substantial

evidence to support denial of a claim. Ramirez, 372 F.3d at 553-55.

While this alone is enough to establish that this error cannot be

harmless, the Court in Beltran provides more specific reasoning. The

Beltran decision collects cases from several districts and circuits to

show that when a limitation to “one or two step tasks” is erroneously

omitted from a residual functional capacity and/or hypothetical

question to the vocational expert, such an error is harmful. See also

Podunajec v. Saul, Civ. A. No. 3:19-cv01938-JFS at *16 (M.D. Pa.

Dec. 11, 2020); Hurrey v. Colvin, 1:14-CV02408, slip op. at 19-21

(M.D. Pa. Jan. 28, 2016) (Report & Recommendation) (finding that

omission of a limitation to 1-2 step tasks could potentially impact a

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VE’s testimony and the ALJ’s ultimate conclusion), adopted, 1:14-CV-

02408, slip op. (M.D. Pa. Feb. 2, 2016) (Order); Harden v.

Commissioner of Social Security, No. 13-906, 2014 WL 4792294, at

*3-5 (W.D. Pa. Sept. 24, 2014) (finding that “a limitation regarding the

complexity of tasks and instructions that a claimant can perform may

be different from a limitation regarding the routineness or

repetitiveness of a job.”); McGriff v. Colvin, No. 3:16-CV-911, 2017

WL 3142336, at *3 (D. Conn. July 25, 2017) (collecting cases).

Indeed, where the omitted limitation refers to “one or two step tasks”,

Courts have nearly unanimously agreed that such a limitation is

harmful. The Commissioner’s argument fails because the

Commissioner failed to appreciate the difference between “simple,

routine tasks” and “one or two step tasks.” Beltran and the cases

discussed therein clearly discuss and explain the difference between the

two limitations. Beltran, Civ. A. 3:17-cv-00715-SES.

Indeed, Magistrate Judge Saporito explained that such an error cannot

be harmless. Podunajec v. Saul, Civ. A. No. 3:19-cv-01938-JFS at *17

(M.D. Pa. Dec. 11, 2020) (Saportio, M.J.). As explained by Magistrate

Judge Saporito, the distinction between “simple” and “one and two

step” tasks could potentially impact a vocational expert’s testimony and

the ALJ’s ultimate conclusion in this case.

The facts in Soto’s case are more egregious than those in Podunajec. In

Soto’s case, the ALJ did not even include a limitation to “simple tasks”.

The vocational expert was not provided an accurate hypothetical

question. When the ALJ's denial of benefits is not based upon an

accurate hypothetical, reversal is the most appropriate disposition of the

case. Chrupcala v. Heckler, 829 F. 2d 1269, 1276 (3d Cir. 1987); see

also e.g., Lam v. Astrue, 2011 U.S. Dist. LEXIS 53229, at *14 (E.D.

Pa. Mar. 31, 2011)(finding that until the ALJ forecloses the possibility

that the VE could have changed his testimony if the ALJ had included

accurate limitations in the hypothetical question, the VE’s answer to the

hypothetical as posed cannot be said to constitute substantial evidence

upon which the ALJ can properly rely.).

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Furthermore, since Plaintiff submitted his initial brief on this matter,

this Court issued yet another decision adopting the reasoning of

Podunajec, Beltran, and Hurrey and remanding for additional

consideration: Simon v. Kijakazi, 1:20-cv-02064-MCC (M.D. Pa. Mar.

18, 2022) (Carlson, M.J.). In Simon, Magistrate Judge Carlson

thoroughly analyzed the Podunajec decision, “[found] Magistrate

Judge Saporito’s opinion instructive”, and concluded that the ALJ’s

lack of explanation in omitting a limitation to 1-2 step tasks was cause

for remand. This further establishes that this error cannot be harmless.

To be clear, with Magistrate Judge Carlson’s March 18, 2022 decision

in Simon, the cases cited above establish that four of the Magistrate

Judges in this Court have found this error to be harmful:

• Magistrate Judge Schwab in Beltran, Civ. A. No. 3:17-cv-00715;

• Magistrate Judge Saporito in Podunajec, Civ. A. No. 3:19-

cv01938;

• Magistrate Judge Carlson in Simon, Civ. A. No. 1:20-cv-02064;

and,

• Chief Magistrate Judge Mehalchick in Hurrey, Civ. A. No. 1:14-

CV-02408.

While the above cases establish harm, there is another way to

understand why this error cannot be harmless. When a claimant has

nonexertional limitations, unless the Commissioner is relying upon

administrative notice, the Commissioner cannot establish that there are

jobs in the national economy without the production of additional

vocation evidence such as a vocational expert or other similar evidence,

such as a learned treatise. Sykes v. Apfel, 228 F.3d 259, 273 (3d. Cir.

2000); see also AR 01-1(3).

Here, there is no question that Soto has non-exertional limitations. The

ALJ did not rely on administrative notice. Thus, according to Sykes,

the Commissioner cannot meet her burden at Step Five unless relying

upon other vocational evidence such as a vocational expert or learned

treatise. Sykes, 228 F.3d at 273. However, here the vocational expert’s

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testimony was based on an inaccurate hypothetical question. Thus, this

testimony does not constitute substantial evidence upon which the ALJ

can rely. Ramirez, 372 F.3d at 553-55. As a result, the Commissioner

is left without any evidence supporting her position. The Commissioner

cannot sustain her burden at Step Five.

Plaintiff has clearly established harm through Beltran, Hurrey,

Podunajec, and now, Simon. The Commissioner’s argument relies

exclusively on impermissible post hoc rationalizations. The Court

should not entertain such post hoc rationalizations or engage in analysis

of vocational evidence in the first instance. Remand is required to

determine if a limitation to 1-2 step tasks would impact vocational

expert testimony.

(Doc. 18, pp. 2-8).

I am partially persuaded by Plaintiff’s argument. To the extent Plaintiff argues

that the ALJ improperly excluded the limitation to 1-2 step tasks without adequate

support or explanation, I agree. I am not, however, persuaded that this error requires

remand in this case.

In his supporting brief and reply, Plaintiff offers several arguments as to why

the ALJ’s error—failing to incorporate a limitation to 1-2 step tasks—requires

remand in this case.

First, Plaintiff argues that this type of error cannot be harmless in any case,

based on this Court’s prior holdings in: Beltran v. Berryhill, No. 3:17-CV-715 (M.D.

Pa. Feb. 20, 2018), ECF No. 22; Podunajec v. Saul, No. 3:19-CV-1938, 2020 WL

7319779 (M.D. Pa. Dec. 11, 2020); Simon v. Kijakazi, No. 1:20-CV-2064, 2022 WL

Page 19 of 27

828935 (M.D. Pa. Mar. 18, 2022); and Hurrey v. Colvin, 1:14-CV-2408 (M.D. Pa.

Jan. 28, 2016), ECF No. 16, report and recommendation adopted by 2016 U.S. Dist

LEXIS 202824 (M.D. Pa. Feb. 2, 2016). Plaintiff is correct that the facts of these

cases bear some similarity to this one. However, the issue raised in this case—

whether the ALJ’s error is harmless because Plaintiff would still be able to perform

one of the occupations cited by the ALJ in support of his conclusion—is not

addressed in any of the four cases.

In Beltran, like in this case, the ALJ credited a medical opinion assessing that

the claimant “would be expected to understand and remember simple, one and two-

step instructions.” Beltran, No. 3:17-CV-715, ECF No. 22 p. 2. Unlike this case,

however, the Commissioner did not argue that the error was harmless because the

occupations identified by the ALJ had a GED reasoning level of 1. Instead, the

Commissioner argued that minor inconsistencies in SVP level were not egregious

enough to undermine an ALJ’s decision.

In Podunajec, like in this case, an ALJ failed to include a limitation to one

and two step tasks within the RFC, despite affording great weight to the medical

opinion containing that limitation. 2020 WL 7319779 at *4. Unlike this case,

however, in Podunajec the ALJ concluded that the claimant could engage in her past

relevant work as a “counter attendant.” Neither the VE testimony nor the ALJ

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decision identified a DOT number for that job. Although the Commissioner cited to

cases involving GED reasoning level conflicts, she did so in support of an argument

that there was no distinction between an RFC for “simple, routine tasks” and one for

“one and two-step tasks.” The Court rejected that argument. The Commissioner did

not, however, argue that the error was harmless because the occupations identified

by the ALJ had a GED reasoning level of 1.

In Simon, like in this case, a physician limited the claimant to the performance

of simple 1 or 2-step tasks, and the ALJ credited that physician’s opinion without

incorporating the 1 or 2-step task limitation in the RFC assessment. 2022 WL

828935 at *8-10. The Court found that the ALJ’s failure to explain why the limitation

was excluded required remand. Unlike this case, however, the Commissioner did not

argue that the error was harmless because the occupations identified by the ALJ had

a GED reasoning level of 1.

In Hurrey, like in this case, a physician limited the claimant to the

performance of simple 1 or 2-step tasks, and the ALJ credited that physician’s

opinion without incorporating the 1 or 2-step task limitation in the RFC assessment.

In Hurrey, the claimant argued that, had the ALJ incorporated the 1 or 2-step task

limitation, he would have been unable to perform occupations with a GED reasoning

level of 2. The Court declined to make a finding on that issue, but found that a

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restriction to “simple” tasks may allow for a higher reasoning level than 1 or 2-step

tasks. Unlike this case, the Commissioner did not argue that the error was harmless

because the occupations identified by the ALJ had a GED reasoning level of 1.

Having reviewed each of the cases Plaintiff cited in his brief, I am not

persuaded that they are dispositive of the issue that an ALJ’s failure to incorporate a

1 or 2-step limitation in the RFC always requires remand. None of the cases cited in

Plaintiff’s brief address the argument raised in this case.

Next, Plaintiff argues that remand is required under Sykes v. Apfel, 228 F.3d

259, 266-271 (3d Cir. 2000) because the ALJ was required to consult a vocational

expert. I am not persuaded by this argument. In this case, the ALJ did consult a

vocational expert and posed the following hypothetical question:

[ALJ] Okay. Thank you, sir. I have a single hypothetical for you. For

purposes of this hypothetical, I would like for you to assume an

individual, same age, vocational background, and education as

the claimant. I would like you to assume an individual restricted

to a light exertional range, with the following additional

restrictions. Posturally, this person would frequently climb

ladders, ropes, and scaffolds; frequently balance; frequently

kneel, crouch, and crawl. This person would only have frequent

contact with supervisors, and there would be occasional changes

in the routine work setting. Based upon this hypothetical, is there

any work this person could do in the national economy?

[VE] I would offer the following representative positions in the

national economy. The first would be an assembler of small

products. It’s light, unskilled, SVP of two. The DOT code is

739.687-030, and there’s 100,000 nationally. I would indicate

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mail sorter. Light, unskilled, SVP of two. The DOT code for that,

209.687-026. 75,000 nationally. And I would also indicate a

cleaner. Light, unskilled, SVP of two. DOT code is 323.687-014,

and there’s 500,000 nationally.

(Doc. 13-2, p. 69).

Turning the Commissioner’s argument, I must now determine whether the

error alleged—failure to incorporate a limitation to 1 or 2-step tasks in the RFC and

ALJ hypothetical—is harmless in this case. In social security appeals, an error is

considered “harmless” where it would not change the outcome of the ALJ’s decision.

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.”); Coy v. Astrue, No. 8-1372, 2009 WL 2043491 at *14 (W.D. Pa.

Jul. 8, 2009) (“No principle of administrative law “require[s] that we convert judicial

review of agency action into a ping-pong game” in search of the perfect decision.”).

In the Dictionary of Occupational Titles (“DOT”), the general educational

development of each occupation is described. “General educational development

embraces those aspect of education (formal and informal) which are required of the

worker for satisfactory job performance. DOT, Appendix C, 1991 WL 688702. The

GED scale is composed of three divisions, but only one is relevant here—reasoning

development. Id. In occupations with a reasoning development level of 1,

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satisfactory job performance requires that an employee be able to “[a]pply

commonsense understanding to carry out simple one- or two-step instructions. Deal

with standardized situations with occasional or no variables in or from these

situations encountered on the job.” Id. In occupations with a reasoning development

level of 2, satisfactory job performance requires that an employee be able to “[a]pply

commonsense understanding to carry out detailed but uninvolved written or oral

instructions. Deal with problems involving a few concrete variables in or from

standardized situations.” Id.

The plain language of the DOT definition for GED Reasoning Level 1

suggests there is no conflict between it and a limitation to no more than 1 or 2-step

tasks. As explained in Ferrebee v. Kijakazi:

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'r, Soc. Sec. Admin., 899 F.3d 555, 560 (8th Cir. 2018);

Henderson v. Colvin, 643 Fed. App'x 273, 277 (4th Cir. 2016) (per

curiam); Rounds v. Comm'r SSA, 807 F.3d 996, 1003 (9th Cir. 2015);

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

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

also Shingler v. Kijakazi, Civil Action No. 4:20-CV-01344, 2022 U.S.

Dist. LEXIS 16307, 2022 WL 273426, at *12 (M.D. Pa. Jan. 28, 2022);

Brown v. Kijakazi, Civil Action No. 4:20-CV-00836, 2021 U.S. Dist.

LEXIS 195357, 2021 WL 4711242, at *7 n.4 (M.D. Pa. Oct. 8, 2021).

Page 24 of 27

No. 3:20-cv-02188, 2022 U.S. Dist. LEXIS 56229, at *6 (M.D. Pa. Mar. 28, 2022).

Courts have also noted that a GED Reasoning Level of 2 may conflict with a

limitation to 1 or 2-step tasks, and typically remand where a there is a conflict

involving a limitation to 1 or 2-step tasks and the only occupations cited by a VE

and ALJ contain a GED reasoning level 2. Id.

In this case, two of the occupations identified by the VE and cited by the ALJ

(small products assembler DOT #739.687-030 and mail sorter DOT #209.687-026)

could be inconsistent with a limitation to 1 or 2-step tasks because those occupations

have a GED reasoning level of 2. No party disputes that these occupations could be

inconsistent with a limitation to 1 or 2-step tasks. One of the occupations (cleaner

DOT #323.687-014), has a GED Reasoning Level of 1. Thus, if the 1 or 2 step task

limitation was included in the RFC assessment, Plaintiff would still be able to

perform this one job.

Furthermore, the VE testified that there are approximately 500,000 cleaner

jobs nation-wide. In the Third Circuit, if a plaintiff can perform 35,000 jobs in the

national economy, and “nothing suggests [the] jobs . . . are unusually clustered in

‘relatively few locations’ far from the [] region where [the plaintiff] lives,” a

significant number of jobs exist which the plaintiff can do, and the plaintiff will be

found not disabled. Lamoureux v. Comm'r of Soc. Sec. Admin., No. 21-1677, 2021

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WL 5860738, at *2 (3d Cir. Dec. 10, 2021) (quoting 20 C.F.R. § 404.1566(b)). Thus,

there are a significant number of cleaner jobs.

Therefore, even if the ALJ had included a limitation to 1 or 2-step tasks and

relied on the same VE testimony already in this record, the result of the ALJ’s

decision, would be the same.

Plaintiff also argues that remand is required because the ALJ failed to explain

why the limitation was not incorporated in the RFC. This too is an error, but for the

same reasons is harmless in this case.

Accordingly, I am not persuaded that remand is required because the ALJ

failed to incorporate the 1 or 2-step tasks limitation in the RFC assessment. Although

this, and the failure to explain, were errors, there is no likelihood that it would change

the outcome in this case.

[The next page contains the Conclusion]

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V. CONCLUSION

Accordingly, Plaintiff’s request for remand will be Denied as follows:

(1) The final decision of the Commissioner will be AFFIRMED.

(2) Final judgment will be issued in favor of Kilolo Kijakazi.

(3) Aa appropriate Order will be issued.

Date: September 20, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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