# Shaffer v. Saul

> District Court, M.D. Pennsylvania · May 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10413222

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413222

## How later opinions describe it (automated extraction)

- 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
- finding that “allowing a claimant to secure a remand for failing to develop the record without any showing of prejudice would allow a back door around the materiality requirement of a sentence six remand.”
- noting that an ALJ must include in the RFC those limitations which he finds to be credible

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JASON S.1, ) CIVIL ACTION NO. 4:21-CV-1598
Plaintiff )
)
v. )
) (ARBUCKLE, M.J.)
KILOLO KIJAKAZI,2 )
Defendant )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Jason S., an adult who lives 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).

1 To protect the privacy interests of plaintiffs in social security cases, we have
adopted the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States that federal courts
should refer to plaintiffs in such cases by their first name and last initial.
2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July
9, 2021. She is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d)
(providing that when a public officer sued in his or her official capacity ceases to
hold office while the action is pending, “the officer’s successor is automatically
substituted as a party.”); see also 42 U.S.C. § 405(g) (“Any action instituted in
accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).

Page 1 of 48
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, we find the Commissioner's final decision is
supported by substantial evidence. Accordingly the Commissioner’s final decision

will be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On June 6, 2019, Plaintiff protectively filed an application for disability
insurance benefits under Title II of the Social Security Act. (Admin. Tr. 16; Doc.

14-2, p. 17).3 In this application, Plaintiff alleged he became disabled on August 9,
2018, when he was forty-four years old, due to the following conditions: stenosis of
the spine, degenerative disc disease, herniated discs, chronic bronchitis, and
depression. (Admin. Tr. 201; Doc. 14-6, p. 3). The majority of Plaintiff’s limitations

are the result of his back pain. Plaintiff has had three surgeries to address this
impairment, and despite those surgeries his back pain and other impairments
continue to affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb

3 Citations to the certified administrative transcript refer first to the bates numbers
assigned by the Social Security Administration (“Admin. Tr.”) and then to the
document and page number assigned through the Court’s Electronic Case File
System (“Doc.”).

Page 2 of 48
stairs, complete tasks, and concentrate. (Admin. Tr. 224; Doc. 14-6, p. 26). Plaintiff
completed high school and attended a trade school where he studied lumber

inspection. (Admin. Tr. 27; Doc. 14-2, p. 28); (Admin. Tr. 202; Doc. 14-6, p. 4);
(Admin. Tr. 46; Doc. 14-2, p. 47). Before the onset of his impairments, Plaintiff
worked as a lumber handler, machine mechanic, and lumber scaler. (Admin. Tr. 26;

Doc. 14-2, p. 27).
On September 16, 2019, Plaintiff’s application was denied at the initial level
of administrative review. (Admin. Tr. 16; Doc. 14-2, p. 17). On December 12, 2019,
Plaintiff’s application was denied at the reconsideration level of administrative

review. Id. On January 8, 2020, Plaintiff requested an administrative hearing. Id.
On January 4, 2021, Plaintiff, assisted by his counsel, appeared and testified
during a telephone hearing before Administrative Law Judge Daniel Balutis (the

“ALJ”). Id. On January 14, 2021, the ALJ issued a decision denying Plaintiff’s
application for benefits. (Admin. Tr. 28; Doc. 14-2, p. 29). On February 15, 2021,
Plaintiff requested that the Appeals Council of the Office of Disability Adjudication
and Review (“Appeals Council”) review the ALJ’s decision. (Admin. Tr. 184; Doc.

14-4, p. 62). Along with his request, Plaintiff submitted one page of new evidence
that was not available to the ALJ when the ALJ’s decision was issued. (Admin. Tr.
7; Doc. 14-2, p. 8).

Page 3 of 48
On July 27, 2021, the Appeals Council denied Plaintiff’s request for review.
(Admin. Tr. 1; Doc. 14-2, p. 2). It addressed the new evidence as follows:

You submitted [a] Narrative letter from Dr. Charles Kovalchick, DO,
dated March 10, 2021 (1 pages). We find this evidence does not show
a reasonable probability that it would change the outcome of the
decision. We did not exhibit this evidence.
(Admin. Tr. 2; Doc. 14-2, p. 3).
On September 15, 2021, Plaintiff filed a complaint in the district court. (Doc.
1). In the complaint, Plaintiff asks that the court set aside the ALJ’s decision and
grant his application for benefits. Id.
On December 8, 2021, the Commissioner filed an answer. (Doc. 13). In the
answer, the Commissioner maintains that the decision denying Plaintiff’s
application was made in accordance with the law and is supported by substantial

evidence. (Doc. 13, ¶ 8). Along with her answer, the Commissioner filed a certified
transcript of the administrative record. (Doc. 14).
Plaintiff’s Brief (Doc. 15) and the Commissioner’s Brief (Doc. 20) have been

filed. Plaintiff did not file a reply. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal
principles governing Social Security Appeals. We will also discuss the general

standards relevant to the arguments Plaintiff raised in his brief.
Page 4 of 48
A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT
A district court’s review of ALJ decisions in social security cases is limited to

the question of whether the findings of the final decision-maker are supported by
substantial evidence in the record.4 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.”5 Substantial evidence is

less than a preponderance of the evidence but more than a mere scintilla.6 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.7 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.”8 In determining if the Commissioner’s decision is supported

by substantial evidence the court may consider any evidence in the administrative
record.9 However, the claimant and Commissioner are obligated to support each

4 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).
5 Pierce v. Underwood, 487 U.S. 552, 565 (1988).
6 Richardson v. Perales, 402 U.S. 389, 401 (1971).
7 Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
8 Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
9 Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003).
Page 5 of 48
contention in the argument section of their briefs with specific reference to the page
of the record relied upon.10

The Supreme Court has underscored the limited scope of district court review
in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency
factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135
S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence
standard, a court looks to an existing administrative record and asks
whether it contains “sufficien[t] evidence” to support the agency's
factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And
whatever the meaning of “substantial” in other contexts, the threshold
for such evidentiary sufficiency is not high. Substantial evidence, this
Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales,
402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It
means—and means only—“such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Consolidated
Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S.
150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the
substantial-evidence standard to the deferential clearly-erroneous
standard).11
In practice, this is a twofold task. First, the court determines whether the final
decision is supported by substantial evidence. To accomplish this task, the court

10 L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014)
(“parties . . . bear the responsibility to comb the record and point the Court to the
facts that support their arguments.”); Ciongoli v. Comm’r of Soc. Sec., No. 15-7449,
2016 WL 6821085 (D.N.J. Nov. 16, 2016) (noting that it is not the Court’s role to
comb the record hunting for evidence that the ALJ overlooked).
11 Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
Page 6 of 48
must decide not only whether “more than a scintilla” of evidence supports the ALJ’s
findings, but also whether those findings were made based on a correct application

of the law.12 In doing so, however, the court is enjoined to refrain from trying to re-
weigh evidence and “must not substitute [its] own judgment for that of the fact
finder.”13

Second, the court must ascertain whether the ALJ’s decision meets the burden
of articulation the courts demand to enable judicial review. As the Court of Appeals
has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for
his decision. 220 F.3d at 119. Conclusory statements . . . are
insufficient. The ALJ must provide a “discussion of the evidence” and
an “explanation of reasoning” for his conclusion sufficient to enable
judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 &
n.3 (3d Cir. 2004). The ALJ, of course, need not employ particular
“magic” words: “Burnett does not require the ALJ to use particular
language or adhere to a particular format in conducting his analysis.”
Jones, 364 F.3d at 505.14

12 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 . . . .”).
13 Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
14 Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Page 7 of 48
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.”15 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.16 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.17
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process.18 Under this process, the ALJ must

15 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). 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 January 14, 2021.
16 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
17 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
18 20 C.F.R. § 404.1520(a)
Page 8 of 48
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”).19

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).”20 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.21
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 from engaging in any of his or her past relevant work.22 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

19 20 C.F.R. § 404.1520(a)(4).
20 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).
21 20 C.F.R. § 404.1545(a)(2).
22 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064.
Page 9 of 48
perform that are consistent with the claimant’s age, education, work experience and
RFC.23

C. GUIDELINES FOR THE ALJ’S EVALUATION AT STEP THREE OF THE
SEQUENTIAL EVALUATION PROCESS
At step three of the sequential evaluation process, the ALJ considers whether
the combination of the claimant’s medically determinable impairments meets or
medically equals the severity of one of the impairments listed in Appendix 1 of 20
C.F.R. Part 404, Subpart P, Appendix 1 (“Listing of Impairments”).24 This step

functions to identify those claimants whose medical impairments are so severe they
would be found disabled regardless of their vocational background, making further
inquiry unnecessary.25

At this step, the claimant bears the burden of producing medical findings that
show his or her impairments meet or medically equal a listed impairment.26 To meet

23 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064.
24 20 C.F.R. § 404.1520(a)(4)(iii).
25 20 C.F.R. § 404.1525(a) (explaining that the Listing of Impairments
“describes for each of the major body systems impairments that we consider to be
severe enough to precent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.”); Sullivan v. Zebley, 439 U.S. 521,
532 (1990) (“The Secretary has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. . . . The reason
for this difference between the listings’ level of severity and the statutory standard
is that, for adults, the listings were designed to operate as a presumption of disability
that makes further inquiry unnecessary.”).
26 Burnett, 220 F.3d at 120 n.2.
Page 10 of 48
this burden, the claimant must establish that he or she meets all requirements of the
relevant listing.27 An impairment, no matter how severe, that meets or equals only

some of the criteria for a listed impairment is not enough.28 The Listings are strictly
construed because meeting or equaling a listing at step three results in an automatic
finding of disability.

D. GUIDELINES FOR THE ALJ’S EVALUATION AT STEP FOUR OF THE
SEQUENTIAL EVALUATION PROCESS
At step four of the sequential evaluation process, an ALJ considers whether a
claimant can engage in his or her past relevant work.29 At this step, an ALJ must first
identify the claimant’s past relevant work.30 Once identified, the ALJ classifies the
skill level and exertional demands of that work. The claimant is the “primary source

for vocational documentation, and statements by the claimant regarding past work
are generally sufficient for determining the skill level; exertional demands and
nonexertional demands of such work.”31 A vocational expert may also offer evidence
concerning the physical and mental demands of a claimant’s past relevant work.32

27 Sullivan, 493 U.S. at 531.
28 Id.
29 20 C.F.R. § 404.1520(a)(4)(iv).
30 20 C.F.R. § 404.1560(b)(1) (defining past relevant work as “work that [a
claimant has] done within the past 15 years, that was substantial gainful activity, and
that lasted long enough for you to learn to do it.”).
31 SSR 82-62, 1982 WL 31386. at *3.
32 20 C.F.R. § 404.1520(b)(2).
Page 11 of 48
Once identified and classified, the ALJ compares the demands of the past
relevant work to the claimant’s current RFC. A VE may offer expert opinion

testimony in response to hypothetical questions about whether a person with the
claimant’s current RFC can meet the demands of past relevant work.33
If a claimant can do his or her past relevant work, as it was actually performed

or as it is generally performed in the national economy, the claimant will be found
not disabled.34 An ALJ will not consider the claimant’s other vocational factors (age,
education, and work experience) at this step.35
E. GUIDELINES FOR THE ALJ’S EVALUATION AT STEP FIVE OF THE
SEQUENTIAL EVALUATION PROCESS
At step five of the sequential evaluation process an ALJ considers whether a
claimant can make an adjustment to other work.36 At this step, the ALJ considers a

claimant’s age, education, work experience and RFC.37 If a claimant can adjust to
other work, and that other work exists in significant numbers in the national
economy, a claimant will be found not disabled.

33 Id.
34 20 C.F.R. § 404.1560(b)(3).
35 Id.
36 20 C.F.R. § 404.1520(a)(v).
37 Id.
Page 12 of 48
The Social Security Administration bears the burden at this step.38 In order to
meet that burden it has taken administrative notice of several sources of job data,

including the Dictionary of Occupational Titles (“DOT”) published by the
Department of Labor.39 The DOT is a “dictionary that lists and defines all jobs
available in the national economy and specifies what qualifications are needed to
perform each job.”40 It does not contain statistical information about the availability

of jobs in the national economy.
The DOT, however, has not been updated in almost 30 years.41 Despite its
age, current guidance dictates that ALJs are required to consider the job descriptions

in the DOT in any case where a vocational expert is used.42
Because the database of job titles is so outdated, an expert’s
methodology for connecting job titles to reliable estimates of the
number of jobs for each title is especially important. The Social
Security Administration has itself acknowledged this issue and
expressed an intent to update the database, but the new version has not
yet arrived.43

38 20 C.F.R. § 404.1560(c)(2).
39 20 C.F.R. § 404.1566(d)(1).
40 Rush v. Berryhill, No. CV 17-939, 2018 WL 4257930, at n.1 (W.D. Pa. Sept. 6,
2018) (quoting McHerrin v. Astrue, 2010 WL 3516433, at *3 (E.D. Pa. Aug. 31,
2010)).
41 See Ruenger v. Kijakazi, 23 F.4f 760, 761-62 (7th Cir. 2022) (per curiam).
42 SSR 00-4p, SSR 00-4p, 2000 WL 1898704, at *2.
43 Jones v. Comm’r of Soc. Sec., No. 19-CV-793-JPG, 2021 WL 457924, *8
(S.D. Il. Feb. 9, 2021) (quoting Brace v. Saul, 970 F.3d 818, 820 (7th Cir. 2020).
Page 13 of 48
Although an ALJ is required to consider information in the DOT, he or she is
not required to rely on the DOT over a vocational expert.44 Further, whenever a VE

is used, the claimant “has the right to review and respond to the VE evidence before
the issuance of a decision.”45
F. STANDARDS GOVERNING AN ALJ’S DUTY TO DEVELOP THE
RECORD
Plaintiffs, their attorneys, and the Social Security Administration each play a
role in developing the evidentiary record in disability claims. “Claimants and their

appointed representatives have the primary responsibility under the Act to provide
evidence in support of their disability . . . claims.”46 The regulations also provide
that a claimant is required to either (1) inform the ALJ about evidence requested but

not yet received, or (2) provide any relevant evidence, five days or more business
days before the ALJ hearing.47

44 SSR 00-4p, 2000 WL 1898704, at *2 (“Neither the DOT nor the VE or VE
evidence automatically “trumps” when there is a conflict. The adjudicator must
resolve the conduct by determining if the explanation given by the VE or VS is
reasonable and provides a basis for relying on the VE or VS testimony rather than
the DOT information.”).
45 SSR 96-9p, 1996 WL 374185, at *9 n.8; see e.g. Allen v. Comm’r of Soc.
Sec., 475 F.Supp.3d 413 (M.D. Pa. Aug. 1, 2020) (remanding where an ALJ failed
to address concerns about the reliability of DOT job descriptions presented in a post-
hearing brief).
46 SSR 17-4p, 2017 WL 4736894 at *2, 6.
47 20 C.F.R. § 404.935.
Page 14 of 48
An ALJ’s obligation to assist the claimant are, in large part, set out in two
regulations.

First, under 20 C.F.R. § 404.1512, an ALJ is required to make “every
reasonable effort” to develop a claimant’s “complete medical history” before making
a determination.48 In most cases, a “complete medical history” requires development

of records from the 12 months preceding the month the application for benefits was
filed.49
Second, under 20 C.F.R. § 404.1520b, the ALJ has an obligation to develop
the record where it is insufficient to resolve a claimant’s application. If, after

reviewing all of the relevant evidence, the ALJ concludes the record is insufficient
to determine whether a claimant is disabled, the ALJ will try to resolve the
inconsistency by taking additional action to develop the record.50 That additional

action may include recontacting a medical source, requesting additional evidence,
asking the claimant to undergo a consultative examination, and asking the claimant
or others for more information.51

48 20 C.F.R. § 404.1512(b).
49 20 C.F.R. § 404.1512(b)(ii).
50 20 C.F.R. § 404.1520b(b).
51 Id.
Page 15 of 48
G. CHALLENGES TO AN ALJ’S RFC ASSESSMENT
One oft-contested issue in Social Security Appeals relates to the claimant’s

residual capacity for work in the national economy. 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.52 In making this assessment,
the ALJ is required to consider the combined effect of all medically determinable

impairments, both severe and non-severe.53 An “RFC assessment must include a
narrative discussion of how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily

activities, observations).”54 The ALJ is required to discuss the claimant’s ability to
perform sustained work activity in an ordinary work setting on a regular and
continuing basis (8-hours per day, 5-days per week), and describe the maximum
amount of each work-related activity the claimant can perform based on the evidence

available in the case record.55 The ALJ is also required to explain how any material
inconsistencies in the case record were considered and resolved.56

52 20 C.F.R. § 404.1545.
53 20 C.F.R. § 404.1545.
54 SSR 96-8p, 1996 WL 374184 at *7.
55 Id.
56 Id.
Page 16 of 48
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

that fails to take all of a claimant’s credibly established limitations into account is
defective.57 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.
H. GUIDELINES FOR THE EVALUATION OF MEDICAL OPINIONS &
PRIOR ADMINISTRATIVE MEDICAL FINDINGS
The Commissioner’s regulations carefully define the sources and types of
statements that can be considered “medical opinions.”58

The regulations also recognize another type of statement that does not meet
the strict definition of medical opinion, but is nonetheless evaluated under the same

57 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).
58 20 C.F.R. § 404.1502(d) (defining medical source); 20 C.F.R. §
404.1513(a)(2) (defining the types of statements that are medical opinions).
Page 17 of 48
framework. This type of statement is called a “prior administrative medical finding”
and is, in other words, a state agency consultant’s medical opinion.59

The regulatory framework for evaluating medical opinions and prior
administrative medical findings includes both factors to guide the analysis, and very
specific articulation requirements that must be met in addition to the well-established

requirements that apply generally to the ALJ’s decision as a whole.
This regulation directs that an ALJ’s consideration of the persuasiveness of
competing medical opinions and prior administrative medical findings is guided by
the following factors:

(1) the extent to which the medical source’s opinion is supported by
relevant objective medical evidence and explanations presented by the
medical source (supportability);
(2) the extent to which the medical source’s opinion is consistent with the
record as a whole (consistency);
(3) length of the treatment relationship between the claimant and the
medical source;
(4) the frequency of examination;
(5) the purpose of the treatment relationship;
(6) the extent of the treatment relationship;
(7) the examining relationship;

59 20 C.F.R. § 404.1513(a)(5) (defining prior administrative medical finding).

Page 18 of 48
(8) the specialization of the medical source; and
(9) any other factors that tend to support or contradict the opinion.60
The most important of these factors are the “supportability” of the opinion and

the “consistency” of the opinion.61 Unlike prior regulations, under the current
regulatory scheme, when considering medical opinions and prior administrative
medical findings, an ALJ “will not defer or give any specific evidentiary weight,

including controlling weight, to any medical opinion(s) or prior administrative
medical finding(s), including those from your medical sources.”62
The Commissioner’s regulations also provide several “articulation”

requirements. First, the ALJ is always required to explain how he or she considered
the “supportability” and “consistency” of a medical source’s opinion or a prior
administrative finding. Second, the ALJ is only required to articulate how he or she
considered the other six factors if there are two equally persuasive medical opinions

about the same issue that are not exactly the same.63 Third, if one medical source

60 20 C.F.R. § 404.1520c(c).
61 20 C.F.R. § 404.1520c(b)(2).
62 20 C.F.R. § 404.1520c(a); see Lawrence v. Comm’r of Soc. Sec., No. 3:21-
CV-1239, 2022 WL 17093943, at *3 (M.D. Pa. Nov. 21, 2022) (describing the
regulations applicable to applications filed after March 2017 as a “paradigm shift”
that abandons the prior hierarchy of medical source opinions that placed treating
source opinions above all others).
63 20 C.F.R. § 404.1520c(b)(3).
Page 19 of 48
submits multiple medical opinions, an ALJ will articulate how he or she considered
the medical opinions from that medical source in a single analysis.64 Fourth, an ALJ

is not required to articulate how evidence from non-medical sources is considered
based on the 20 C.F.R. § 404.1520c factors.65 Fifth, the ALJ is not required to
articulate or provide any analysis about how he or she considers statements on issues

reserved to the Commissioner or decisions by other governmental or
nongovernmental entities.66
I. GUIDELINES FOR THE ALJ’S SYMPTOM EVALUATION
In Social Security cases, “symptoms” are defined as the claimant’s “own

description of [his or her] physical or mental impairment.”67 The Social Security
Regulations and Rulings set out a two-step process to evaluate a claimant’s
symptoms.68
First, the ALJ must consider whether there is an underlying medically

determinable impairment that could reasonably be expected to produce the
claimant’s symptoms. If there is no medically determinable impairment, or if there
is a medically determinable impairment but that impairment could not reasonably be

64 20 C.F.R. § 404.1520c(b)(1).
65 20 C.F.R. § 404.1520c(d).
66 20 C.F.R. § 404.1520b(c).
67 20 C.F.R. § 404.1502(n).
68 20 C.F.R. § 404.1529.
Page 20 of 48
expected to produce the claimant’s symptoms, an ALJ will not find that those
symptoms affect the claimant’s ability to perform work-related activities.69 An ALJ

does not consider whether the severity of an individual’s symptoms is supported by
the objective medical evidence at the first step of this analysis.70
Second, the ALJ must evaluate the intensity, persistence, and limiting effects
of the symptoms caused by the claimant’s medically determinable impairments.71

SSR 16-3p explains:
If an individual’s statements about the intensity, persistence, and
limiting effects of symptoms are consistent with the objective medical
evidence and the other evidence of record, we will determine that the
individual’s symptoms are more likely to reduce his or her capacities to
perform work-related activities for an adult. . . . In contrast, if an
individual’s statements about the intensity, persistence, and limiting
effects of symptoms are inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual’s
symptoms are less likely to reduce his or her capacities to perform
work-related activities or abilities to function independently,
appropriately, and effectively in an age-appropriate manner.
We may or may not find an individual’s symptoms and related
limitations consistent with the evidence in his or her record. We will
explain which of an individual’s symptoms we found consistent or
inconsistent with the evidence in his or her record and how our
evaluation of the individual’s symptoms led to our conclusions. We will

69 SSR 16-3p, 2017 WL 5180304, at *4.
70 SSR 16-3p, 2017 WL 5180304, at *3.
71 20 C.F.R. § 404.1529(c)(1).
Page 21 of 48
evaluate an individual’s symptoms considering all the evidence in his
or her record.72
When evaluating a claimant’s symptoms, an ALJ considers objective
evidence, a claimant’s statements about the intensity, persistence and limiting effects

of his or her symptoms, statements made by medical sources in opinions and
treatment records, and statements about a claimant’s symptoms made by non-
medical sources. This evidence is evaluated based on the following factors:
(1) the claimant’s daily activities;

(2) the location, duration, frequency, and intensity of the claimant’s
pain or other symptoms;
(3) any factor that precipitates or aggravates the claimant’s pain or
other symptoms;
(4) the type, dosage, effectiveness, and side effects of any
medication the claimant takes or has taken to alleviate his or her
pain or other symptoms;
(5) any treatment, other than medication, the claimant receives or
has received for relief of his or her pain or other symptoms;
(6) any measures the claimant uses or has used to relieve his or her
pain or other symptoms (e.g., lying flat on your back, standing
for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) any other factors concerning functional limitations and
restrictions due to pain or other symptoms.73

72 2017 WL 5180304, at *8.
73 20 C.F.R. § 404.1529(c)(3).
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The ALJ is required to discuss the factors pertinent to the evidence of record,
but will not discuss a factor where it is not relevant.74

Although the “statements of the individual concerning his or her symptoms
must be carefully considered, the ALJ is not required to credit them.”75 The ALJ is,
however, required to explain which of an individual’s symptoms he or she finds
consistent or inconsistent with the evidence in the record.76

Some claimants may experience symptoms differently and may be limited by
symptoms to a greater or lesser extent than other claimants with the same medical
impairments, objective evidence, and non-medical evidence.77 For this reason,

district courts generally afford great deference to an ALJ’s symptom evaluation.
IV. DISCUSSION
In his statement of errors, Plaintiff raises the following issue:
(1) “Whether the ALJ erred in determining that appellant could perform
jobs in a sedentary capacity and [thereby] erred in denying claimant’s
application for disability benefits.” (Doc. 15, p. 4).
In the argument section of his brief, however, Plaintiff raises additional issues.
We construe Plaintiff’s brief as raising the following issues:

74 SSR 16-3p, 2017 WL 5180304, at *8.
75 Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).
76 SSR 16-3p, 2017 WL 5180304, at *8.
77 SSR 16-3, 2017 WL 5180304, at *4.
Page 23 of 48
(1) Whether the ALJ improperly limited the scope of Plaintiff’s testimony
during the administrative hearing.
(2) Whether Plaintiff was prejudiced by the ALJ’s decision not to hold the
record open for updated medical records that post-date Plaintiff’s date
last insured.
(3) Whether substantial evidence supports the ALJ’s Step Three finding
that Plaintiff does not meet listing 1.04(A).
(4) Whether substantial evidence supports the ALJ’s decision that Plaintiff
could sit for up to six hours at one time.
(5) Whether substantial evidence supports the ALJ’s decision that Plaintiff
had no significant difficulty remaining on task.
(6) Whether substantial evidence supports the ALJ’s evaluation of
Plaintiff’s testimony about the nature of his past relevant work.
(7) Whether the VE testimony is reliable enough to support the ALJ’s
conclusion at Step Five.
We begin our analysis by summarizing the ALJ’s decision, and then will
address each issue raised in Plaintiff’s brief.
A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION
In his January 2021 decision, the ALJ found that Plaintiff met the insured
status requirement of Title II of the Social Security Act through December 31, 2019.
(Admin. Tr. 18; Doc. 14-2, p. 19). Then, Plaintiff’s application was evaluated at
steps one through five of the sequential evaluation process.

Page 24 of 48
At step one, the ALJ found that Plaintiff did not engage in substantial gainful
activity at any point between August 9, 2019 (Plaintiff’s alleged onset date) and

December 31, 2019 (Plaintiff's date last insured) (“the relevant period”). Id.
At step two, the ALJ found that, during the relevant period, Plaintiff had the
following medically determinable severe impairments: lumbar degenerative disc

disease and spondylosis. Id. The ALJ also identified the following medically
determinable non-severe impairments: opioid dependence, pilonidal cyst, upper
respiratory infection, and obesity. (Admin. Tr. 19; Doc. 14-2, p. 20).
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. 21; Doc. 14-2, p. 22).

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 can occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs, but he can never climb ladders, ropes or
scaffolds. The claimant requires a cane for ambulation, but he can carry
objects with his non-cane hand. He can frequently work at unprotected
heights, moving mechanical parts, and frequently operate a motor
vehicle. The claimant can work frequently in weather, humidity,
wetness, extreme cold, and vibration.
Page 25 of 48
(Admin. Tr. 21; Doc. 14-2, p. 22).
At step four, the ALJ found that, during the relevant period, Plaintiff could

not engage in his past relevant work. (Admin. Tr. 26; Doc. 14-2, p. 27). 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. 27-28; Doc. 14-2, pp. 28-29). 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: ticket counter, DOT
#219.587-010; charge account clerk, DOT #205.367-014; and order maker, DOT

#209.567-014. Id.
B. THE ALJ DID NOT LIMIT THE SCOPE OF PLAINTIFF’S TESTIMONY
Plaintiff seeks benefits under Title II of the Social Security Act. Therefore, he
must show that he became disabled on or before his date last insured. In this case,

the ALJ determined that Plaintiff’s date last insured was December 31, 2019.
Plaintiff does not challenge this finding.
During the January 4, 2021, administrative hearing, the ALJ asked Plaintiff

several questions about his symptoms. The ALJ prefaced that discussion with the
following instruction:
ALJ: . . . . I’m gonna be asking you questions about you and your
disabilities. First and foremost, I—we—I went through that.
Page 26 of 48
Second thing. We’re going to be talking about a remote
period of time, between August of 2018 and December of
2019. Okay? It’s within that period of time that I have to
find you disabled. Do you understand that?
CLMT: Yes, sir.
ALJ: So, when I’m going to be talking to you, I’m going to be
talking about that period of time. It may seem strange, sir,
but it’s been over a year since the DLI. So, anything that’s
happened after the date last insured, sir, generally it isn’t
going to be relevant, okay?
(Admin. Tr. 41; Doc. 14-2, p. 42) (emphasis added). After asking Plaintiff a series
of general questions about his contact information, height, weight, dominant hand,
the status of his driver’s license (and ability to drive), Plaintiff’s use of a cane,
educational background, and vocational history, the ALJ posed a series of more
targeted questions. For example, the ALJ asked about the location and intensity of
Plaintiff’s pain that day, and about the medication Plaintiff was currently prescribed
and its side-effects. (Admin. Tr. 50-52; Doc. 14-2, pp. 51-53). Then, the ALJ asked
whether Plaintiff’s pain that day was the same as Plaintiff’s pain at the end of 2019.

(Admin. Tr. 52; Doc. 14-2, p. 53). He also asked about Plaintiff’s medications and
side-effects at the end of 2019. Id. The ALJ also asked about Plaintiff’s ability to
function in 2019. (Admin. Tr. 53, 55-56; Doc. 14-2, pp. 54, 56-57). Once the ALJ
finished his questions, Plaintiff’s counsel was given the opportunity to ask questions

and did so. (Admin. Tr. 64; Doc. 14-2, p. 65).
Page 27 of 48
Plaintiff argues “[d]uring the hearing the Administrative Law Judge indicated
that he was limiting the testimony to the dates between August 9, 2018, and

December 31, 2019.” (Doc. 15, p. 9). Plaintiff does not cite to any portion of the
record where the ALJ explicitly did so. Although the ALJ did discuss that when he
was talking to Plaintiff it would be about the period between August 9, 2018, and

December 31, 2019, he did not limit all testimony to that period of time. In fact, even
the ALJ posed questions about Plaintiff’s current symptoms, and referenced
Plaintiff’s responses to those questions in the decision. (Admin. Tr. 22; Doc. 14-2,
p. 23) (“He said that he has pain in his neck, and it has worsened since 2019.”).

Accordingly, we are not persuaded that the ALJ limited Plaintiff’s testimony.
C. PLAINTIFF WAS NOT PREJUDICED WHEN THE ALJ DECLINED TO
HOLD THE RECORD OPEN
On December 21, 2020, fourteen days before the administrative hearing,
Plaintiff’s counsel sent a letter to the ALJ. (Admin. Tr. 279-280; Doc. 14-6, p. 81-
82). In that letter, counsel reported that he was still waiting for responses from five

medical providers: Wood, Hlavac, Williams, Oleski, and Talenti. Id. During the
administrative hearing, counsel and the ALJ had the following discussion about
those records:

ALJ: Counsel, I do have your five-day letter at Exhibits 16E.
Is—are all these records still outstanding?
Page 28 of 48
ATTY: Yes, Your Honor.
ALJ: Okay.
ATTY: A third—I wanna bring up—

ALJ: Hang on, Counsel. I wanna go through—Dr. Wood, at
Exhibit B21F, was updated on March 20th of last year
[2020]. Is that correct?
ATTY: Yes, Your Honor.
ALJ: I see Dr. Hlavac, H-L-A-V-A-C, Exhibit B17F. His records
were updated on March 19th, 2020, also. Is that correct?
ATTY: Yes, Your Honor.
ALJ: And Talenti, that would be his gastroenterologist, Exhibit
B25F. These records were updated on December 4th, 2020.
Is that correct?
ATTY: Yes, Your Honor.
ALJ: Okay. And Dr. Williams, who was part of Holly [phonetic]
Family Health. They were also updated in August 2020. Is
that correct?
ATTY: Yes, Your Honor.
ALJ: Okay. Who’s Dr. Oleski?
ATTY: She is with Northeast Rehabilitation and Associates Judge.
She is a physiatrist.
ALJ: Okay. And I—should be Northeast Rehab.
ATTY: Sheryl Oleski.
ALJ: Okay. I’m looking—hang on—okay—I’m just looking
right now. Hang on. Okay. Stay with just the providers I
Page 29 of 48
mentioned. Wood, Hlavac, Williams, and Talenti. It would
appear based upon what I’m seeing, is that all of these
records are gonna be after the date last insured of December
31st, 2019. Is that correct?
ATTY: Yes, Your Honor.
ALJ: I’m not going to wait for those additional records. Dr.
Oleski, are those also records after the DLI?
ATTY: Yes, Your Honor.
ALJ: I’m not going to wait for those, either. Is there any other
outstanding relevant evidence that’s not in the file, that
you’re aware of?
ATTY: No, Your Honor.
(Admin. Tr. 39-40; Doc. 14-2, pp. 40-41).
On January 14, 2021, ten days after the hearing, the ALJ issued his written
decision. In that decision, the ALJ did consider the available medical records that
post-dated Plaintiff’s date last insured. He cited evidence from January 2020 that
Plaintiff returned to physical therapy due to ongoing thoracic and lumbar pain, had

a positive straight leg raise, and had reduced strength that ranged from 3+ to 4-/5
due to pain. (Admin. Tr. 23; Doc. 14-2, p. 24). The ALJ also considered primary
care records from February 2020, May 2020, and November 2020. (Admin. Tr. 24;
Doc. 14-2, p. 25).

Plaintiff sought further review and on February 18, 2021, the Appeals Council
sent a letter to Plaintiff inviting him to send a statement about the facts and law of
Page 30 of 48
this case “or additional evidence,” and gave Plaintiff twenty-five days to do so.
(Admin. Tr. 8; Doc. 14-2, p. 10). Plaintiff did submit new evidence, but it was not

treatment records from any of the five sources listed in the December 21, 2020, letter.
Instead, Plaintiff submitted a one-page letter from Dr. Kovalchick dated March 10,
2021 (almost eight weeks after the ALJ decision was issued). (Admin. Tr. 7; Doc.

14-2, p. 8).
Plaintiff argues:
On December 21, 2020, correspondence was submitted to the Social
Security Administration notifying the Judge that five (5) different
medical records had not as of yet been received by Claimant’s counsel’s
office and that Claimant’s counsel had sought an extension of time to
submit these records at a later time if they were not received in time.
. . . . He indicated that he will not consider any records before or after
[August 9, 2018 and December 31, 2019].
It is Claimant’s position that all records should have been allowed
and/or considered in that they would support a continued history of the
Claimant’s conditions which continued into the period the
Administrative Law Judge evaluated and continuing on thereafter. By
failing to consider these records and allowing the Claimant to present
same into evidence the Claimant became severely prejudiced.
(Doc. 15, pp. 9-10).
In another section of his brief, Plaintiff argues:
It is Claimant’s position that his condition has continued to worsen
resulting in chronic pain in his low back, radicular symptoms as well as
additional limitations in function due to his conditions. Further, his
opioid dependency also increased the likelihood of also being an
important factor in his limitations and his ability to work. It is asserted
Page 31 of 48
that his records would also support Claimant’s chronic low back pain
and leg pain would have expanded upon Claimant’s lumbar disc
ruptures and three (3) prior lumbar surgeries over a span of five (5)
years which proved to be unsuccessful in alleviating his back and leg
symptoms. Further, these records would of [sic] also helped expand on
the MRI’s that were recently done which would establish that the scar
tissue was effecting his nerves going into the right leg. In addition, these
records would of [sic] also addressed the worsening of Claimant’s
condition to perform any kind of gainful employment on a sustained
basis. It would address the issues of his inability to perform repetitive
movements such as twisting, lifting and his requirement to change
positions frequently as his pain increased from sitting too long.
(Doc. 15, p. 10). We construe this argument as an allegation that the record before
the ALJ was insufficient, and that the ALJ did not meet his obligation under 20
C.F.R. § 404.1520b to develop that record.
In response, the Commissioner asserts that the record in this case was
adequately developed, even without the evidence from these five sources. In support
of her position, the Commissioner argues that the evidence should not be considered
because Plaintiff did not comply with 20 C.F.R. § 404.935. She also argues that
Plaintiff has not shown that the failure to admit this evidence resulted in prejudice
to his claim.
We find Plaintiff complied with 20 C.F.R. § 404.935(a). He, through counsel,
submitted a letter more than five business days before the administrative hearing that
he was “still waiting” for responses from five medical providers. (Admin. Tr. 279;

Page 32 of 48
Doc. 14-6, p. 81). The regulation does not require production. Notification is
sufficient. Therefore, we find that Plaintiff did comply with 20 C.F.R. § 404.935(a).

We are persuaded, however, by the Commissioner’s argument that the failure
to admit this evidence did not result in prejudice. This Court has held that, to secure
a remand based on the ALJ’s failure to develop the record, a plaintiff is required to
show that the ALJ’s error prejudiced the plaintiff.78 We find no evidence of prejudice

in this case.
Nothing in this record suggests that the missing evidence relates to the period
of time relevant to Plaintiff’s application. Plaintiff admits that all of the evidence

from the five providers post-dated Plaintiff’s date last insured. The Court cannot
review this evidence for itself because it was never produced. Plaintiff has offered
only general allegations that the records show that Plaintiff’s condition continued to

worsen after his date last insured. These general allegations are not enough to show

78 Herring v. Colvin, 181 F.Supp.3d 258, 272-273 (M.D. Pa. 2014) (finding that
“allowing a claimant to secure a remand for failing to develop the record without
any showing of prejudice would allow a back door around the materiality
requirement of a sentence six remand.”); see e.g., Cosme v. Comm’r of Soc. Sec.,
No. 18-CV-01327, 2020 WL 2079284, at *5 (D.N.J. Apr. 30, 2020) (declining to
remand where a plaintiff did not proffer the missing records or otherwise
demonstrate specific prejudice due to an omission from the ALJ’s record) aff’d by
845 F. App’x 128 (3d Cir. 2021).
Page 33 of 48
prejudice. Accordingly, we are not persuaded that remand is required based on the
ALJ’s alleged failure to meet his obligation under 20 C.F.R. § 404.1520b.

D. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S EVALUATION AT
STEP THREE
To satisfy Listing 1.04(A) a claimant must show:
Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test (sitting and supine).79
At step three of the Sequential Evaluation Process, the ALJ found that
Plaintiff’s back impairment did not meet or medically equal Listing 1.04. In doing
so the ALJ found:
The claimant's degenerative disc disease and spondylosis was
considered under listing 1.04. Listing 1.04 requires evidence of the
following: nerve root compression characterized by neuroanatomic
distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test (sitting and supine); or
spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the
need for changes in position or posture more than once every 2 hours;
or lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested

79 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.04(A).
Page 34 of 48
by chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in section 1.00B2b of Appendix 1.
As discussed in more detail below, imaging of the claimant’s spine
revealed multiple disc bulges and herniations [Ex. B6F/19-20].
However, treatment records do not reflect evidence of nerve root
compression with motor loss (atrophy with associated muscle
weakness) accompanied by sensory or reflex loss; spinal arachnoiditis;
nor spinal stenosis resulting in pseudoclaudication resulting in inability
to ambulate effectively [Ex. B1F-B26F]. In addition, records indicate
the claimant ambulated effectively with a single point cane [Ex. B11F,
B25F, and B26F]. Based on the unremarkable results of these
examinations, the claimant's spine disorder does not meet listing 1.04.
(Admin. Tr. 21; Doc. 14-2, pp. 22).
In his brief, Plaintiff argues:
The Claimant’s degenerative disc disease and spondylosis was
considered under listing 1.04. There was clear evidence of nerve root
compression characterized as neuroanatomic distribution of pain,
limitation of motion of the spine, motor loss accompanied by sensory
loss and positive straight leg raising test as well as a long history of
failed operations on his back resulting in severe burning and painful
dysesthesias. The MRI’s and prior history of back surgeries clearly
supported multiple disc bulges and herniations. The nerve root
compressions with motor loss was supported by Claimant’s inability to
ambulate without a cane. Therefore the ALJ was presented with
uncontroverted medical evidence from the Claimant.
(Doc. 15, p. 8). We construe this as an argument that Plaintiff should have been
found disabled at step three because he met listing 1.04(A), and are not persuaded.
Plaintiff argues that there is “clear evidence” that he meets this listing. He
does not, however, cite to the portions of the administrative record that support his
Page 35 of 48
position. Plaintiff references an MRI, “prior history of back surgeries,” and
Plaintiff’s use of a cane for ambulation. Plaintiff did have an MRI in 2018 that

showed multiple disc bulges and herniations and marked narrowing of the right
neural foramen at L5-S1, and did undergo back surgeries in 2011 (lumbar surgery),
2014 (lumbar surgery at L1-S5), and 2015 (lower back cyst and bone spur removal).

(Admin. Tr. 458, 1197; Doc. 14-7, pp. 174, 913). These findings suggest nerve root
compression may be present. However, they do not show every requirement of the
listing.
To the extent Plaintiff argues that his cane use establishes the requisite “motor

loss” by showing muscle weakness, we are not persuaded. The objective findings
the ALJ cites throughout his decision substantially support his conclusion that the
degree of muscle weakness at issue in this case does not satisfy the listing prior to

Plaintiff’s date last insured. The ALJ noted that, on October 15, 2018, Plaintiff’s
lower extremity strength was 4/5. (Admin. Tr. 663; Doc. 14-7, p. 379). On October
18, 2018, Plaintiff’s lower extremity strength was 5/5. (Admin. Tr. 23; Doc. 14-2, p.
24) (citing Admin. Tr. 583; Doc. 14-7, p. 299). In December 2018, Plaintiff had 5/5

strength in his lower limbs. Id. (citing Admin. Tr. 588; Doc. 14-7, p. 304). In March
2019, Plaintiff had 5/5 strength. Id. (citing Admin. Tr. 623; Doc. 14-7, p. 339). In
August 2019, Plaintiff was able to do a one-quarter squat, he had no atrophy, and

Page 36 of 48
had 4/5 strength in his lower extremities. (Admin. Tr. 24; Doc. 14-2, p. 25) (citing
Admin. Tr. 676-680; Doc. 14-7, pp. 392-96). He had moderate difficulty rising from

a chair and was unable to walk on his heels or toes. Id. At two exams that took place
the month after Plaintiff’s insured status expired, Plaintiff had 3+ to 4-/5 strength.
(Admin. Tr. 23; Doc. 14-2, p. 24) (citing Admin. Tr. 1137, 1144; Doc. 14-7, pp. 853-

860).
These records demonstrate that, before Plaintiff’s date last insured, his muscle
grade strength was 4/5 or 5/5. Isolated reports of slight muscle weakness are not
enough to satisfy Listing 1.04(A).80 Given that the requirements of the Listings must

be strictly construed, we find no error in the ALJ’s assessment that Plaintiff does not
meet this Listing. The ALJ’s decision shows that he considered the relevant
evidence, and substantial evidence supports his conclusion that Plaintiff did not have

the requisite muscle weakness to show motor deficits during the relevant period.
Evidence of Plaintiff’s cane use, without more, is not an adequate basis to disturb
that conclusion.

80 See Ayala v. Kijakazi, 620 F.Supp.3d 6, 29 (S.D.N.Y. 2022) (collecting cases
where courts held that occasional diminished motor strength does not satisfy Listing
1.04(A), and that muscle grade strength of 4/5 is insufficient to satisfy Listing
1.04(A)).
Page 37 of 48
E. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S RFC ASSESSMENT
In his brief, Plaintiff suggests that the ALJ’s RFC assessment does not

adequately account for his inability to sit for long periods or his inability to
concentrate. We will address each of these arguments separately below.
1. The ALJ Adequately Evaluated Plaintiff’s Ability to Sit
Plaintiff argues:

It should also be noted that in reviewing the decision of the ALJ he
considered in part Tara Cywinski, CRNP’s opinion that Claimant could
sit for one half hour for a total of four (4) hours and stand and walk for
fifteen (15) minutes for a total of two (2) hours in an eight (8) hour work
day. This description is clearly outside the scope of a sedentary position
from a medical standpoint. Additionally, the ALJ failed to consider the
clear medical evidence of Claimant’s treating physicians which
indicated that the Claimant was not even capable of sitting for a six (6)
hour period based upon his ongoing discomfort in his back and his
ability to utilize a cane.
(Doc. 15, p. 7).
The Commissioner responds that “Plaintiff does not develop this argument or
directly challenge the ALJ’s analysis of Nurse Cywinski’s opinion, and as such, to
the extent this argument can be construed as attacking the RFC analysis or medical
opinion analysis, it is waived.” (Doc. 20, p. 19). The Commissioner argues in the
alternative that substantial evidence supports the ALJ’s evaluation of CRNP
Cywinski’s findings. (Doc. 20, pp. 22-23).
Page 38 of 48
We begin our analysis with a summary of the relevant medical opinions and
prior administrative medical findings. One non-treating consultative examiner

(CRNP Cywinski) gave an opinion about Plaintiff’s physical limitations, and two
state agency consultants (Dr. Scovern and Dr. Chung) issued administrative medical
findings at the initial and reconsideration levels about Plaintiff’s physical

limitations. One treating source (Dr. Kovalchick) wrote in treatment records that
Plaintiff “remains disabled fully from his pain issues.” (Admin. Tr. 1069; Doc. 14-
7, p. 785).
CRNP Cywinski assessed that Plaintiff could sit for only four hours per eight-

hour workday. Dr. Scovern and Dr. Chung assessed that Plaintiff could sit for six
hours in an eight-hour workday. The ALJ found that CRNP Cywinski overestimated
Plaintiff’s sitting, standing and walking limitations because physical exams

“revealed the claimant’s lower extremity strength generally ranged from 4/5 to 5/5,
he had no focal deficits, and his sensation was intact. [Ex. B11F, B25F, and B26F].
Furthermore, the claimant’s straight leg raise test was only mildly positive bilaterally
in March 2019 [Ex. B8F/26].” (Admin. Tr. 25; Doc. 14-2, p. 26). He found that the

two state agency consultant opinions were persuasive because “a consultative
medical exam revealed the claimant’s bilateral strength was 5/5 in his upper and 4/5
in his lower extremities, [and] he had no muscle atrophy.” (Admin. Tr. 25-26; Doc.

Page 39 of 48
14-2, pp. 26-27). Dr. Kovalchick’s statement was not considered under 20 C.F.R.
§ 404.1520c because it addressed an issue reserved to the Commissioner. 20 C.F.R.

§ 404.1520b.81
First, to the extent Plaintiff argues that the ALJ’s analysis of the medical
opinions under 20 C.F.R. § 404.1520c is defective, this issue has not been adequately
developed in the briefs.82 Absent a more specific argument, we find no error with

the ALJ’s evaluation of these medical opinions.
Second, to the extent Plaintiff argues that substantial evidence does not
support the RFC assessment, we are similarly not persuaded. Two state agency

consultant opinions support the ALJ’s conclusion that Plaintiff would be able to sit
for up to six hours at one time. These opinions offer substantial support for the ALJ’s
assessment Plaintiff could engage in sedentary work (requiring Plaintiff to sit for up

to six hours).

81 After the ALJ decision was issued, Plaintiff submitted a March 10, 2021
letter from Dr. Kovalchick. (Admin. Tr. 5; Doc. 14-2, p. 8). In the letter, Dr.
Kovalchik opined that Plaintiff “is required to change positions frequently as he has
increased pain if he sits too long.” Id. This opinion cannot be considered in
evaluating a challenge under sentence four of 42 U.S.C. § 405(g). We will address
Plaintiff’s argument that the letter should be considered under sentence six of 42
U.S.C. § 405(g) separately.
82 Plaintiff also suggests that “treating physicians” assessed Plaintiff could not
sit for more than four hours. He did not identify those physicians and has not directed
the court to any such opinion. Our own review of the record suggests that no treating
source offered a functional assessment of Plaintiff’s ability to sit.
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2. The ALJ Adequately Evaluated Plaintiff’s Ability to
Remain on Task
Plaintiff testified that he naps three or four times per day because his pain
makes it difficult to sleep through the night. (Admin. Tr. 63; Doc. 14-2, p. 64).

During the administrative hearing, counsel suggested that Plaintiff’s daytime fatigue
and need for naps, if credited, would result in Plaintiff being off task 15 to 20 percent
of the workday. (Admin. Tr. 71; Doc. 14-2, p. 72). No medical source assessed
whether, or for what percentage of the workday, Plaintiff would be off task due to

pain or fatigue.
Plaintiff argues:
Evidence and information was presented of the Claimant’s ability to be
off task at least fifteen (15%) percent to twenty (20%) percent of each
work day. Further, there was clear testimony that the Claimant would
be off task even further. The ALJ failed to even address this issue,
disregarding and ignoring Claimant’s restrictions, his lack of function
and inability to carry on his daily activities of assisted daily living.
(Doc. 15, p. 11).
In response, the Commissioner reports that the only support for a limitation to
Plaintiff’s ability to remain on task is in Plaintiff’s administrative hearing testimony
about daytime fatigue. (Doc. 20, p. 28). She argues that the ALJ found that Plaintiff’s
statements about the intensity, persistence, and limiting effects of his impairments
were not entirely consistent with the medical evidence, and that substantial evidence

Page 41 of 48
supports this finding. (Doc. 20, pp. 28-29). Our own review of the ALJ’s decision
suggests that Plaintiff’s statements about the intensity and limiting effects of his pain

and daytime fatigue were indeed discounted. Plaintiff has not offered any persuasive
argument as to why the ALJ’s evaluation of Plaintiff’s statements under 20 C.F.R. §
404.1529 was defective.

F. THE ALJ FOUND IN PLAINTIFF’S FAVOR AT STEP FOUR
During the administrative hearing, Plaintiff testified about the nature of his
past relevant work as he actually performed it. (Admin. Tr. 47-49; Doc. 14-2, pp.
48-50). Based on this testimony a vocational expert determined that Plaintiff’s past

work was a composite position. (Admin. Tr. 69-70; Doc. 14-2, pp. 70-71). At step
four, the ALJ relied on the VE’s testimony and classified Plaintiff’s past relevant
work as:
A composite position as a lumber handler, heavy and unskilled as
defined by the Dictionary of Occupational Titles (DOT), DOT#
922.687-070, Specific Vocational Preparation (SVP) 2; a machine
mechanic, DOT# 638.281-014, medium and skilled, SVP6; and lumber
scaler, DOT# 221.487-010, medium and semiskilled, SVP 3. The
vocational expert testified that the claimant’s composite position was
performed at the very heavy level [Hearing Testimony]. As required by
SSR 82-62, this work was substantial gainful activity, was performed
long enough for the claimant to achieve average performance, and was
performed within the relevant period.
Page 42 of 48
(Admin. Tr. 26; Doc. 14-2, p. 27). The ALJ found in Plaintiff’s favor at step four
and concluded that the claimant (limited to sedentary work) would be unable to

perform this composite position as actually or generally performed. Id.
Plaintiff argues that the ALJ “failed to credit the Appellant’s testimony as a
required source for vocational documentation.” (Doc. 15, p. 8) (emphasis added).

We construe this as an argument that the ALJ’s analysis at step four is defective.
We are not persuaded that remand is required for further evaluation of
Plaintiff’s testimony about his past relevant work. The ALJ found in Plaintiff’s favor
when he concluded that Plaintiff could not engage in his past relevant work. Thus,

even if some of Plaintiff’s testimony about his prior work was improperly
discounted, there is no possibility further consideration of that testimony about
Plaintiff’s past relevant work could result in a more favorable outcome.

Accordingly, remand is not required for further consideration of Plaintiff’s
testimony about his past relevant work.
G. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DECISION AT STEP
FIVE
Plaintiff argues:
In the instant matter, the uncontroverted evidence from the Appellant
established that he was limited from even performing sedentary work.
The vocational expert examined by the ALJ relied upon three (3)
separate jobs, namely:
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1. Ticket Counter, DOT # 219.587-010, sedentary and unskilled,
SVP 2;
2. Charge Account Clerk, DOT # 205.367-014, sedentary and
unskilled, SVP 2; and
3. Order Maker, DOT # 209.567-014, sedentary unskilled, SVP 2.
A review of the three (3) jobs to which the ALJ relied upon based upon
the testimony of the vocational counselor clearly were jobs that were
not within the abilities of Claimant to perform.
First, each job relied upon by the vocational expert were last updated in
1997 and were considered seasonal. Each job was over forty-five (45)
years old and never have been updated to meet with current job
requirements and job demands. The jobs do not take into account the
online and computer basis for similar positions. Specifically, the ticket
counter position being a forty-five (45) year old position did not take
into account the office setting and did not account for Claimant’s ability
to sit or stand. Further, there is no such position under DOT #209.567-
014 as an order maker. The vocational counselor was inaccurate in
relying upon said position. Further, if DOT #209.567-014 job is
considered a clerk for the food and beverage industry, based upon
modern economic standards and technology, said job does not exist in
the current vocational job opportunities. Based upon the above the
Judge erred in relying upon the vocational experts testimony based
upon the fact that the jobs no longer existed in the economy and were
outdated. Therefore said jobs should not have been considered. There
was no evidence in the national economy that Claimant could perform
said jobs.
. . . .
The Appellant also asserts that, any hypothetical jobs, identified by the
DOT as “available” are a fallacy since the DOT has not been updated
since 1991. Reliance on the DOT is inherently flawed and relies on
invalid scientific data (e.g. it is more than 15 years old and no longer
relevant to the time period of the relevant work history of 15 years). See
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Page 44 of 48
Based upon that premise the jobs submitted by the vocational counselor
being over forty-five (45) years old clearly under the designation
supplied by the vocational counselor clearly should not have been
considered as available.
Based upon the above the Commissioner cannot meet the shifting
burden that other work exists in significant numbers in the national
economy that Claimant can do, given the residual functional capacity,
age, education and work experience. See 20 C.F.R. 404.1512(g),
404.1520(c), 416.912(g) and 416.960(c).
(Doc. 15, pp. 6-8).
Also in his brief, Plaintiff argues:
No hypothetical was ever presented by the ALJ as to the variant in his
decision as to the Claimant being off task and his inability to perform
sedentary work.
(Doc. 15, p. 11).
We construe these arguments in Plaintiff’s brief as a challenge to the ALJ’s
findings at step five. Plaintiff contends that: (1) the DOT jobs the VE identified do
not exist in significant numbers in the national economy; (2) even if the jobs exist in
significant numbers, Plaintiff cannot meet the exertional demands of the occupations
at issue; and (3) substantial evidence does not support the ALJ’s conclusion at step
five because neither the RFC assessment nor the hypothetical question posed to the
VE account for Plaintiff’s credibly established limitation in remaining on task. We
will address each argument separately below.

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1. Plaintiff Has Not Demonstrated That the Job Data Or VE
Testimony Is Inaccurate
In this case, Plaintiff is challenging both the reliability of DOT job
descriptions and the VE’s testimony about one particular job “Order Maker.” He

contends that none of the positions identified by the VE or cited by the ALJ exist in
the national economy.
With respect to Plaintiff’s argument that the job description contained in the
DOT are unreliable, we are not persuaded. Plaintiff did not object to the VE’s

testimony at the hearing. Plaintiff did not inquire about the method used to determine
whether the jobs cited existed in the national economy. Plaintiff did not ask for the
record to be held open for a post-hearing brief on this issue. Plaintiff has not

presented any evidence about the availability of these jobs to this Court. Absent any
objection from Plaintiff, the ALJ relied on what is, by regulation, a reliable source
of vocational information. Accordingly, we find no error.
With respect to Plaintiff’s allegation that the job “Order Maker” identified in

the ALJ’s decision does not appear at #209.567-014, he is correct. This occupation
is listed in the DOT as “Order Clerk, Food and Beverage.”83 We note, however, that
the VE correctly identified this position as an “Order Clerk” in her testimony.

83 1991 WL 671794.
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(Admin. Tr. 71; Doc. 14-2, p. 72). There is little doubt that the statistical data
provided is for the occupation of Order Clerk. We are not persuaded that the

scrivener’s error of identifying the position of “Order Clerk” as “Order Maker” in
the ALJ decision is likely to affect the outcome in this case. Therefore, we find this
error is not a basis for remand.

2. The Occupations Identified In the ALJ’s Decision Are
Appropriate
Next, Plaintiff argues that he cannot do sedentary work, and therefore cannot
do the jobs the VE identified because he cannot sit for six hours and cannot remain
on task. This is essentially a challenge to the RFC assessment itself. As discussed in
Sections IV(E)(1) and (2) of this opinion, substantial evidence supports the ALJ’s

decision that these limitations were not credibly established.
3. The ALJ’s Hypothetical Question is Appropriate
Plaintiff argues that the ALJ should be precluded from relying on the VE’s
response to the first (and only) hypothetical question asked because that question did

not accurately represent all of Plaintiff’s credibly established limitations. Plaintiff
suggests that his sitting limitation and off task limitation were improperly excluded.
We are not persuaded. As discussed in Sections IV(E)(1) and (2) of this opinion,
substantial evidence supports the ALJ’s decision that these limitations were not

credibly established.
Page 47 of 48
V. CONCLUSION
Accordingly, we find that Plaintiff’s request for relief is DENIED as follows:

(1) The final decision of the Commissioner is AFFIRMED.
(2) Final judgment will be issued in favor of the Commissioner.
(3) Appropriate Orders will be issued.

Date: May 30, 2023 BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413222. Public record. Not legal advice.