Corliss v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID C.,1 ) CIVIL ACTION NO. 4:23-CV-0488

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

MARTIN O’MALLEY, Social Security )

Commissioner,2 )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff David C., an adult who lives in the Middle District of Pennsylvania,

seeks judicial review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying his application for disability insurance benefits under

Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to

42 U.S.C. §405(g).

This matter is before the undersigned upon consent of the parties pursuant to

28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After

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 Martin O’Malley became the Commissioner of Social Security on December

20, 2023. He is automatically substituted as a party pursuant to Fed. R. Civ. P.

25(d); see also 42 U.S.C. § 405(g).

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

portions of the certified administrative transcript, the Court finds the

Commissioner’s final decision is supported by substantial evidence. Accordingly,

the Commissioner’s final decision will be AFFIRMED.

II. BACKGROUND & PROCEDURAL HISTORY

On March 10, 2021, Plaintiff protectively filed an application for disability

insurance benefits under Title II of the Social Security Act. (Admin. Tr. 156-157;

Doc. 11-5, pp. 2-3). In this application, Plaintiff alleged he became disabled on

September 30, 2020, when he was 60 years old, due to the following conditions:

severe rheumatoid arthritis; swelling/pain of any joints in the body; disables

walking/standing/sitting; fatigued; high blood pressure; high cholesterol; shortness

of breath. (Admin. Tr. 177; Doc. 11-6, p. 3). Plaintiff alleges that the combination

of these conditions affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel,

climb stairs, see, remember, concentrate, and use his hands. (Admin. Tr. 206; Doc.

11-6, p. 32). Plaintiff has at least a high school education. (Admin. Tr. 24; Doc. 11-

2, p. 25). Before the onset of his impairments, Plaintiff worked as a building

superintendent and a supervisor of building maintenance. (Admin. Tr. 23; Doc. 11-

2, p. 24).

On May 18, 2021, Plaintiff’s application was denied at the initial level of

administrative review. (Admin. Tr. 15; Doc. 11-2, p. 16). On October 28, 2021,

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Plaintiff’s application was denied on reconsideration. (Admin. Tr. 15, Doc. 11-2, p.

16). On November 2, 2021, Plaintiff requested an administrative hearing. (Admin.

Tr. 15; Doc. 11-2, p. 16).

On February 18, 2022, Plaintiff, assisted by his counsel, testified during a

telephone hearing before Administrative Law Judge Alexander Klibaner (the

“ALJ”). (Admin. Tr. 29-54; Doc. 11-2, pp. 30-55). On March 30, 2022, the ALJ

issued a decision denying Plaintiff’s application for benefits. (Admin. Tr. 25; Doc.

11-2, p. 26). On April 28, 2022, Plaintiff requested that the Appeals Council of the

Office of Disability Adjudication and Review (“Appeals Council”) review the ALJ’s

decision. (Admin. Tr. 154; Doc. 11-4, p. 90).

On January 26, 2023, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1; Doc. 11-2, p. 2).

On March 20, 2023, Plaintiff filed a complaint in the district court. (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 law. (Doc. 1). As

relief, Plaintiff requests that the court find that Plaintiff is entitled to Social Security

Disability Insurance benefits or remand this case for a new hearing. (Doc. 1, p. 2).

On May 19, 2023, the Commissioner filed an answer. (Doc. 10). 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

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evidence. (Doc. 10). Along with his answer, the Commissioner filed a certified

transcript of the administrative record. (Doc. 11).

Plaintiff’s Brief (Doc. 12), the Commissioner’s Brief (Doc. 14), and

Plaintiff’s Reply (Doc. 15 ) have been filed. This matter is now ready to decide.

III. LEGAL STANDARDS

Before looking at the merits of this case, it is helpful to restate the legal

principles governing Social Security Appeals, including the standard for substantial

evidence review, and the guidelines for the ALJ’s application of the five-step

sequential evaluation process.

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.3 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.”4 Substantial evidence is

less than a preponderance of the evidence but more than a mere scintilla.5 A single

piece of evidence is not substantial evidence if the ALJ ignores countervailing

3 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).

4 Pierce v. Underwood, 487 U.S. 552, 565 (1988).

5 Richardson v. Perales, 402 U.S. 389, 401 (1971).

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evidence or fails to resolve a conflict created by the evidence.6 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.”7 In determining if the Commissioner’s decision is supported

by substantial evidence under sentence four of 42 U.S.C. § 405(g), the court may

consider any evidence that was in the record that was made before the ALJ.8

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

6 Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

7 Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).

8 Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals

Council has denied review the district court may affirm, modify, or reverse the

Commissioner’s decision, with or without a remand based on the record that was

made before the ALJ (Sentence Four review).”). The claimant and Commissioner

are obligated to support each contention in their arguments with specific reference

to the record relied upon. 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 6821082 (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).

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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).9

To determine whether the final decision is supported by substantial evidence,

the court 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.10 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.”11

Furthermore, meaningful review cannot occur unless the final decision is

adequately explained. As the Court of Appeals has noted on this score:

9 Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

10 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 . . . .”).

11 Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).

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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 505.12

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.”13 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.14 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

12 Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

13 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).

14 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

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retirement age, and became disabled prior to the date on which he or she was last

insured.15

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

five-step sequential evaluation process.16 Under this process, the ALJ must

sequentially determine: (1) whether the claimant is engaged in substantial gainful

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

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

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

any other work, considering his or her age, education, work experience and residual

functional capacity (“RFC”).17

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).”18 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.19

15 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

16 20 C.F.R. § 404.1520(a).

17 20 C.F.R. § 404.1520(a)(4).

18 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).

19 20 C.F.R. § 404.1545(a)(2).

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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.20 Once this burden

has been met by the claimant, it shifts to the Commissioner at step five to show that

jobs exist in significant number in the national economy that the claimant could

perform that are consistent with the claimant’s age, education, work experience and

RFC.21

IV. DISCUSSION

Plaintiff raises the following issues in his statement of errors:

(1) Whether the ALJ failed to resolve an apparent conflict between the RFC

limitation to “Occasional Overhead Reaching” and the frequent

reaching required by the job identified at step five?; and

(2) Whether the ALJ’s decision is not supported by substantial evidence

because he improperly reasoned that the Plaintiff has skills that are

transferable to jobs existing in a significant number in the national

economy?

(Doc. 12, p. 9).

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

In his March 2022 decision, the ALJ found that Plaintiff met the insured status

requirement of Title II of the Social Security Act through December 31, 2025.

2042 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a); Mason, 994 F.2d at 1064.

21 20 C.F.R. § 416.912(b)(3); Mason, 994 F.2d at 1064.

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(Admin. Tr. 17; Doc. 11-2, p. 18). 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 January 2021 (when Plaintiff stopped working) and

March 30, 2022 (the date the ALJ decision was issued) (“the relevant period”).

(Admin. Tr. 18; Doc. 11-2, p. 19).

At step two, the ALJ found that, during the relevant period, Plaintiff had the

following medically determinable severe impairments: rheumatoid arthritis and

osteoarthritis. (Admin. Tr. 18; Doc. 11-2, p. 19). The ALJ also found that during the

relevant period, Plaintiff had the following non-severe impairments: hypertension;

high cholesterol; asthma; history of back surgery; gout; and degenerative joint

disease. (Admin Tr. 18-19; Doc. 11-2, p. 19-20).

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. 19; Doc. 11-2, p. 20).

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:

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he could frequently handle and finger bilaterally. He could occasionally

reach overhead bilaterally. He could occasionally climb ramps and

stairs, but never ladders, ropes, or scaffolds. He could occasionally

balance on narrow or slippery surfaces. He could occasionally stoop,

kneel, crouch, and crawl. He could tolerate occasional exposure to

pulmonary irritants and vibration, such as power tools. He could

tolerate occasional exposure to workplace hazards, such as hazardous

machinery.

(Admin. Tr. 19; Doc. 11-2, p. 20).

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

not engage in his past relevant work. (Admin. Tr. 23-24; Doc. 11-2, pp. 24-25).

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. 24-25; Doc. 11-2, pp. 25-26). To support his conclusion, the

ALJ relied on testimony given by a vocational expert during Plaintiff’s

administrative hearing and cited the following representative occupation: a

maintenance service dispatcher (DOT 239.367-014). (Admin. Tr. 24-25; Doc. 11-2,

pp. 25-26).

B. WHETHER THE ALJ FAILED TO RESOLVE AN APPARENT CONFLICT

BETWEEN THE RFC LIMITATION TO OCCASIONAL OVERHEAD

REACHING AND THE FREQUENT REACHING REQUIRED BY THE JOB

IDENTIFIED AT STEP FIVE

Plaintiff’s first argument is that the RFC limits him to occasional overhead

reaching, but the one job identified at step five requires frequent reaching. (Doc. 12,

pp. 9-12). Plaintiff asserts that this is an apparent conflict between the DOT and the

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Vocational Expert’s (“VE”) testimony that the ALJ was required to resolve pursuant

to SSR 00-4p. Id. Plaintiff argues:

[t]he ALJ’s error in failing to appropriately resolve this conflict is not

harmless. Given that the Plaintiff is a person closely approaching

retirement age, the ALJ’s finding that he is limited to no more than light

exertional employment, and the inability to perform his past work, the

finding of this singular transferable skills position is the only barrier to

a finding of disability in this case. Because the conflict was not properly

resolved, the ALJ should not have relied on the vocational expert’s

testimony to support his finding that Plaintiff is not disabled and this

case must be remanded for compliance with SSR 00-4p. See Rivera-

Negron v. Astrue, 2013 U.S. Dist. LEXIS 155440, 2013 WL 5823713

(E.D.Pa., Oct. 30, 2013) (where ALJ failed to resolve conflict between

vocational expert testimony and DOT, decision not supported by

substantial evidence).

(Doc. 12, pp. 11-12).

The Commissioner responds by arguing that the DOT is silent on overhead

reaching and so there was no apparent conflict between the DOT and VE testimony

that the ALJ was required to resolve. (Doc. 14, pp. 8-11). Thus, the Commissioner

argues, the ALJ was permitted to rely on the VE’s testimony and properly did so. Id.

In reply, Plaintiff acknowledges “that because DOT is silent on overhead

reaching, [ ] the ALJ was permitted to rely on testimony from the vocational expert.”

(Doc. 15, p. 2). This said, Plaintiff argues that,

reliance on the vocational expert’s testimony does not eliminate the

requirements of SSR 00-4p. In fact, this is precisely why such a

regulation was instituted by the Agency; blind reliance on testimony

was to be avoided and sufficient explanations must be included in both

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the testimony and the determination to ensure that the reliance on the

testimony was supported by substantial evidence.

Defense opines that SSR 00-4p only relates to conflicts between the

DOT and the vocational expert’s testimony, and that this is not one of

those instance because the DOT is silent on overhead reaching and thus

there cannot be a conflict to resolve. This is an incomplete evaluation

however.

SSR 00-4p specifically states that “Evidence from VEs or VSs can

include information not listed in the DOT…Information about a

particular job’s requirements or about occupations not listed in the

DOT may be available in other reliable publications, information

obtained directly from employers, or from a VE’s or VS’s

experience in job placement or career counseling. SSR 00-4p

(emphasis added). Here, the testimony of the expert does in fact include

information about a particular job’s requirements that are not listed in

the DOT given that the DOT does not delineate between the direction

of reaching involved. Therefore, SSR 00-4p does in fact find this to be

something that requires a reasonable explanation for a basis to rely upon

the testimony. Id. As such, the ruling requires that the explanation be

made on the record and that the administrative law judge explain in his

decision how the conflict was resolved. Id.; Burns v. Barnhart, 312 F.3d

113 (3d Cir. 2002)

Regardless, while some courts have found where the DOT is silent there

may be no conflict, in several such cases, “detailed questioning” of the

VE was found to satisfy the applicable standards. See, e.g., Brown v.

Colvin, No. 15-323, 2016 U.S. Dist. LEXIS 160020, at *11 (E.D. Pa.

Nov. 17, 2016). Here, the ALJ did inquire about the DOT’s silence on

the subject, and further, where it was silent, asked the expert if they

relied on their professional experience. Tr. 50. Merely asking the VE

whether his or her testimony is inconsistent with the DOT but instead

based on their professional experience and receiving an affirmative

response without further explanation is insufficient. Such a boilerplate

question and answer does not meet the detailed questioning standard

referenced above. There must be a “reasonable explanation” in the

response to the question. Burns, 312 F.3d at 127 (quoting SSR 00-4p).

The expert provided no specific personal experience or context for her

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reliance on her professional experience. It is this lack of specificity that

SSR 00-4p was intended to protect against. As a matter of public policy,

we cannot simply rely on someone stating their knowledge is based on

professional experience without ever fact checking the basis. As such,

the testimony from the VE and the follow-up from the ALJ was

deficient and cannot support the determination in this matter.

For these reasons, Defense’s argument that no conflict exists and that

the ALJ was permitted to rely on such basic testimony from the VE

without further investigation fails.

(Doc. 15, pp. 2-3).

SSR 00-4p begins by outlining its purpose:

In particular, this ruling emphasizes that before relying on VE or VS

evidence to support a disability determination or decision, our

adjudicators must: Identify and obtain a reasonable explanation for any

conflicts between occupational evidence provided by VEs or VSs and

information in the Dictionary of Occupational Titles (DOT), including

its companion publication, the Selected Characteristics of Occupations

Defined in the Revised Dictionary of Occupational Titles (SCO),

published by the Department of Labor, and explain in the determination

or decision how any conflict that has been identified was resolved.22

SSR 00-4p then details the resolution of any such conflicts:

Resolving Conflicts in Occupation Information

Occupational evidence provided by a VE or VS generally should be

consistent with the occupational information supplied by the DOT.

When there is an apparent unresolved conflict between VE or VS

evidence and the DOT, the adjudicator must elicit a reasonable

explanation for the conflict before relying on the VE or VS evidence to

support a determination or decision about whether the claimant is

disabled. At the hearings level, as part of the adjudicator’s duty to fully

22 SSR 00-4p, 2000 WL 1898704, at *1 (S.S.A. Dec. 4, 2000).

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develop the record, the adjudicator will inquire, on the record, as to

whether or not there is such consistency.

Neither the DOT nor the VE or VS evidence automatically “trumps”

when there is a conflict. The adjudicator must resolve the conflict 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 on

the DOT information.

Reasonable Explanations for Conflicts (or Apparent Conflicts) in

Occupational Information

Reasonable explanations for such conflicts, which may provide a basis

for relying on the evidence from the VE or VS, rather than the DOT

information, include, but are not limited to the following:

Evidence from VEs or VSs can include information not listed in the

DOT. The DOT contains information about most, but not all,

occupations. The DOT’s occupational definitions are the result of

comprehensive studies of how similar jobs are performed in different

workplaces. The term “occupation,” as used in the DOT, refers to the

collective description of those jobs. Each occupation represents

numerous jobs. Information about a particular job’s requirements or

about occupations not listed in the DOT may be available in other

reliable publications, information obtained directly from employers, or

from a VE’s or VS’s experience in job placement or career counseling.

. . . .

Explaining the Resolution

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

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

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

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

explain in the determination or decision how he or she resolved the

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conflict. The adjudicator must explain the resolution of the conflict

irrespective of how the conflict was identified.23

SSR 00-4p also imposes upon the ALJ the affirmative responsibility to ask about

conflicts between VE evidence and information in the DOT.24

Contrary to Plaintiff’s assertions, which presuppose a conflict, we find no

conflict between the VE’s testimony and the information contained in the DOT.

Plaintiff conceded the DOT is silent on overhead reaching. (Doc. 15, p. 2). “As

correctly indicated by the Commissioner, when an ALJ relies on a VE’s expertise

concerning specific limitations to which the DOT is silent, a conflict does not

exist.”25 “As such there is no harmful error in [an] ALJ’s decision to rely upon the

vocational expert’s testimony without identifying and resolving a conflict between

that testimony and the DOT, as no such conflict exists.”26

23 Id. at *2, 4.

24 Id. at *4.

25 Tammero v. Saul, No. 3:19-CV-02234, 2020 WL 7480661, at *9 (M.D. Pa.

Dec. 18, 2020). See also Kowal v. Saul, No. CV 18-1350, 2020 WL 490962, at *3

(W.D. Pa. Jan. 30, 2020) (collecting cases); Sanborn v. Comm’r. of Soc. Sec., 613

F.App’x. 171, 177 (3d Cir. 2015) (finding that the DOT does not include sit/stand

options in job descriptions and, [a]ccordingly, the ALJ did not erroneously fail to

inquire into an explicit conflict between the VE’s testimony and the DOT.”); Phillips

v. Berryhill, No. CV 15-5204, 2017 WL 2224931, at *7 (E.D. Pa. May 22, 2017)

(“The Third Circuit Court of Appeals has recognized that the DOT’s silence with

regard to the sit/stand option does not place it in conflict with jobs identified by a

VE.”).

26 Kowal, 2020 WL 490962, at *3 (quoting Stockett v. Comm’r Soc. Sec., 216

F.Supp.3d 440, 460-61 (D.N.J. 2016) (internal quotation marks omitted) “See

also Parker v. Colvin, Civ. No. 13-1222, 2014 WL 4662095, at * 9 (W.D. Pa. Sept.

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While the DOT is silent on overhead reaching, “the regulations provide that a

VE may provide more detailed information concerning jobs identified by the ALJ

that are not available in the DOT.”27 In this case, the hypotheticals posed to the VE

explicitly included an instruction from the ALJ to assume an individual who can

occasionally reach overhead bilaterally. (Admin. Tr. 48-50; Doc. 11-2, pp. 49-51).

In answering the ALJ’s posed hypothetical the VE identified dispatcher,

maintenance service as a job Plaintiff could perform in keeping with the suggested

RFC of the hypothetical. (Admin. Tr. 48; Doc. 11-2, p. 49). The VE was qualified

to provide this testimony, and Plaintiff stipulated to her qualifications at the

hearing.28 “Since the VE’s testimony was given in response to a hypothetical

19, 2014) (explaining that no conflict existed which required remand where the jobs

identified in the DOT required constant / frequent reaching and the RFC precluding

reaching because the DOT is silent as to whether the reaching was “overhead” in

nature).

27 Tammero, 2020 WL 7480661, at *9. See 20 C.F.R. § 404.1566(d)-(e).

28 Plaintiff argues that “[a]s a matter of public policy, we cannot simply rely

on someone stating their knowledge is based on professional experience without

ever fact checking the basis.” (Doc. 15, p. 3). In his decision the ALJ wrote:

Pursuant to SSR 00-4p, I have determined that the vocational expert’s

testimony is consistent with the information contained in the Dictionary

of Occupational Titles and its associated publication the SCO. [The VE]

testified that areas not covered in the DOT were based on her

professional experience and knowledge of the labor market. I find the

comprehensive testimony of the vocational expert, in addition to her

extensive knowledge, which she relied on when identifying these

positions is sufficient to rely on.

(Admin. Tr. 25; Doc. 11-2, p. 26).

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question describing all of Plaintiff’s work-related restrictions, it constituted

‘substantial evidence’ that jobs consistent with his abilities and limitations existed

in the national economy.”29

Accordingly, Plaintiff’s argument that “[b]ecause the conflict was not

properly resolved, the ALJ should not have relied on the vocational expert’s

testimony to support his finding that Plaintiff is not disabled and this case must be

remanded for compliance with SSR 00-4p,” is not a basis for remand. (Doc. 12, p.

12).

It appears the basis of the VE’s testimony, her professional experience, was

fact checked by a review of her resume and that she was not simply taken at her

word as Plaintiff asserts. The VE’s resume is a part of the record, with the ALJ

asking her if the resume on file was “a true and accurate description of your

professional qualifications?” (Admin. Tr. 46; Doc. 11-2, p. 47). The VE answered,

“[y]es, it is, Your Honor.” Id. Plaintiff’s attorney at his hearing was then given the

chance to object to the VE’s qualifications but did not do so. (Admin. Tr. 47, Doc.

11-2, p. 48). A review of the VE’s resume reveals she has over twenty years of

experience in vocational rehabilitation; founded a company over ten years ago that

continues to provide services including vocational expert testimony, individual

consultations, vocational counseling virtually and via telephone, career and

vocational assessments and reports, and job placement assistance to individuals with

disabilities and organizations serving this population; has post-graduate education in

vocational rehabilitation counseling; and is a member of the American Board of

Vocational Experts and the International Association of Rehabilitation

Professionals, including membership in the Social Security Vocational Expert

Section. (Admin Tr. 233-35; Doc. 11-6, pp. 59-61).

29 Parker v. Colvin, No. 2:13-CV-1222, 2014 WL 4662095, at *9 (W.D. Pa.

Sept. 18, 2014) (citing Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 206 (3d Cir.

2008)).

Page 18 of 43

C. WHETHER THE ALJ IMPROPERLY REASONED THAT THE PLAINTIFF

HAS SKILLS THAT ARE TRANSFERABLE TO JOBS EXISTING IN A

SIGNIFICANT NUMBER IN THE NATIONAL ECONOMY

Plaintiff’s second overarching argument is that the ALJ improperly reasoned

he has skills transferable to jobs existing in a significant number in the national

economy. (Doc. 12, pp. 12-17; Doc. 15, pp. 4-5).

Social Security regulations provide:

(d) Skills that can be used in other work (transferability)—

(1) What we mean by transferable skills. We consider

you to have skills that can be used in other jobs,

when the skilled or semi-skilled work activities you

did in past work can be used to meet the

requirements of skilled or semi-skilled work

activities of other jobs or kinds of work. This

depends largely on the similarity of occupationally

significant work activities among different jobs.

(2) How we determine skills that can be transferred to

other jobs. Transferability is most probable and

meaningful among jobs in which—

(i) The same or a lesser degree of skill is

required;

(ii) The same or similar tools and machines are

used; and

(iii) The same or similar raw materials, products,

processes, or services are involved.

(3) Degrees of transferability. There are degrees of

transferability of skills ranging from very close

similarities to remote and incidental similarities

Page 19 of 43

among jobs. A complete similarity of all three

factors is not necessary for transferability.

However, when skills are so specialized or have

been acquired in such an isolated vocational setting

(like many jobs in mining, agriculture, or fishing)

that they are not readily usable in other industries,

jobs, and work settings, we consider that they are

not transferable.

(4) Transferability of skills for persons of advanced

age. If you are of advanced age (age 55 or older),

and you have a severe impairment(s) that limits you

to sedentary or light work, we will find that you

cannot make an adjustment to other work unless you

have skills that you can transfer to other skilled or

semiskilled work (or you have recently completed

education which provides for direct entry into

skilled work) that you can do despite your

impairment(s). We will decide if you have

transferable skills as follows. If you are of advanced

age and you have a severe impairment(s) that limits

you to no more than sedentary work, we will find

that you have skills that are transferable to skilled

or semiskilled sedentary work only if the sedentary

work is so similar to your previous work that you

would need to make very little, if any, vocational

adjustment in terms of tools, work processes, work

settings, or the industry. (See § 404.1567(a) and §

201.00(f) of appendix 2.)30

Further,

If the issue determining whether you are disabled is whether your work

skills can be used in other work and the specific occupations in which

they can be used, or there is a similarly complex issue, we may use the

30 20 C.F.R. § 404.1568(d)(1)-(4).

Page 20 of 43

services of a vocational expert or other specialist. We will decide

whether to use a vocational expert or other specialist.31

Social Security Ruling 82-41 states:

6. Findings of fact in determinations or decisions involving

transferability of skills. When the issue of skills and their transferability

must be decided, the adjudicator or ALJ is required to make certain

findings of fact and include them in the written decision. Findings

should be supported with appropriate documentation.

When a finding is made that a claimant has transferable skills, the

acquired work skills must be identified, and specific occupations to

which the acquired work skills are transferable must be cited in the

State agency’s determination or ALJ’s decision. Evidence that these

specific skilled or semiskilled jobs exist in significant numbers in the

national economy should be included (the regulations take

administrative notice only of the existence of unskilled sedentary, light,

and medium jobs in the national economy). This evidence may be VS

statements based on expert personal knowledge or substantiation by

information contained in the publications listed in regulations sections

404.1566(d) and 416.966(d). It is important that these findings be made

at all levels of adjudication to clearly establish the basis for the

determination or decision for the claimant and for a reviewing body

including a Federal district court.32

The SSA’s Program Operations Manual System (“POMS”) provides that “[a]

person’s skills are most likely to transfer between jobs of the same or lower skill

level; and, which use the same or similar: tools; machines; raw materials; products;

31 20 C.F.R. § 404.1566(e).

32 SSR 82-41, 1982 WL 31389 at *7 (S.S.A. 1982).

Page 21 of 43

processes; or services. NOTE: An absolute similarity of all these factors is not

necessary.”33 POMS DI 25015.017 also provides:

When you make a finding that the claimant has transferable skills, the

acquired work skills must be identified, and specific occupations to

which the acquired work skills are transferable must be cited in your

determination. Evidence that these specific skilled or semiskilled jobs

exist in significant numbers in the national economy should be included

(the regulations take administrative notice only of the existence of

unskilled sedentary, light, and medium jobs in the national economy).

This evidence may include statements by a Vocational Specialist (VS)

based on expert personal knowledge or substantiation by information

contained in the publications listed in regulations sections 404.1566(d)

and 416.966(d).34

POMS DI 25015.017 provides eight steps an ALJ should use in making the

transferability of skills assessment and states an ALJ,

generally must cite at least three occupations when documenting

capacity for other types of work. However, you may cite fewer than

three if the occupation(s) provide enough jobs that clearly there are a

significant number of jobs in the national economy within the cited

occupation(s). This evidence may be VS statements based on expert

personal knowledge or substantiation by information contained in the

publications listed in regulations sections 404.1566(d) and

416.966(d).35

33 Program Operations Manual System DI 25015.017(C)(3), available at

http://pomsresource.org/poms/DI-25015.017/ability-to-perform-other-work (last

visited Mar. 28, 2024) (emphasis in original).

34 Program Operations Manual System DI 25015.017(H).

35 Program Operations Manual System DI 25015.017(I). See also Program

Operations Manual System DI 25025.030(C)(1) (“Cite three occupations . . . .).

Page 22 of 43

It is important to note that the POMS “lack[s] the force of law and create[s] no

judicially-enforceable rights.”36

Plaintiff argues that:

the vocational expert provided a singular job and stated that 35,000 jobs

exist in the national economy. Tr. 24. The POMS cited states that you

generally must cite to at least 3 jobs, but can do less if “clearly there are

a significant number of jobs in the national economy”. POMS DI

25015.017(I). Avoiding providing the full 3 jobs and using one that

only has 35,000 in the national economy does not comply with the

POMS. Therefore, further evidence is needed to determine if there are

substantial jobs in the national economy to which Plaintiff’s skills

would transfer. If these job numbers do not exist, then he should have

been found disabled pursuant to the Medical Vocational Guidelines due

to his age, education, and previous work experience.

(Doc. 12, pp. 12-13).37

In response, the Commissioner argues that the POMS has no legal force and

is not a source of judicially enforceable rights. (Doc. 14, p. 14). It is quite clear the

Commissioner is correct. Again, the Third Circuit has found the POMS “lack[s] the

36 Bordes v. Comm’r Soc. Sec., 235 F.App’x 853, 859 (3d Cir. 2007)

(collecting cases).

37 The POMS also includes the following language: “EXCEPTION: You may

cite fewer than three occupations when it is clear that jobs exist in significant

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

vocational specialist advice supported by information contained in the publications

listed in regulations sections 404.1566(d) and 416.966(d) or other reliable sources

of occupational information.” Program Operations Manual System DI

25025.030(C)(1).

Page 23 of 43

force of law and create[s] no judicially-enforceable rights.”38 Thus the ALJ was not

required to cite to three jobs and this is not a basis for remand.39

Plaintiff next argues,

Regardless, Plaintiff argues that the blind reliance on the expert’s

testimony is misplaced here because delving further into the

classifications of the Plaintiff’s past composite work compared to the

given position, they are not closely enough related to render

transferable skills.

For example, the first three numbers of a DOT code demonstrate

particular occupational groups. While the parts of the Plaintiff’s past

composite work are similar with notations of 381 (properties and

cleaners) and 382 (janitors), the step five transferable skills position is

entirely different with the numbers of 239 (information and message

distribution occupations).

Next, each position is assigned a GOE code which are mismatched in

this instance. The Guide for Occupational Exploration (GOE)9

provides users with information about the interests, aptitudes,

adaptabilities, and other requisites of occupational groups. RHAJ, page

11-110. This is meant to provide assistance for others with career

exploration and occupational changes. GOE, page 1. In this instance,

both parts of the Plaintiff’s composite past work share the same GOE

code, which is 05.12.18. The category is for Elemental Work:

Mechanical, and more specifically cleaning and maintenance of

mechanical work. GOE, pages 127, 133. The position of maintenance

service dispatcher, however, has a GOE code of 07.04.05, which is for

38 Bordes, 235 F.App’x at 859.

39 To the extent Plaintiff argues that 35,000 jobs is not a significant

number, 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 WL 5860738, at *2

(3d Cir. Dec. 10, 2021) (quoting 20 C.F.R. § 404.1566(b)).

Page 24 of 43

Oral Communications, more specifically including information

transmitting and receiving. GOE, pages 237, 239.

Furthermore, the jobs do not share similar Work Fields either. For the

two parts of the Plaintiff’s composite job the Work Fields are 021-

Stationary Engineering and 031- Cleaning. EM21065. The step five

position offered, however, has a Work Field of 231- Verbal Recording-

Record Keeping. Id.

Jobs also can be given MPSMS codes, which describe materials,

products, subject matter, and/or services being rendered. RHAJ, page

5-1. The Plaintiff’s past work appears as though it would have very

different materials and products, subject matter, and services based on

the classifications. For example, there are janitorial services that fall

under the MPSMS code of 905, whereas for a dispatcher it would more

likely be services that are telephone communications (861) or

bookkeeping services (892). RHAJ, page 5-3, 5-4, 5-20, 5-21, 5-22.

Similarly, their subject matters would inherently be different as again,

the dispatch position would require communication services (860). Id.,

at 5-20. His past work would more likely include the subject matter of

sanitary services (870) or even mechanical engineering (706). Id., at 5-

18, 5-21.

It is apparent from these three categories that neither parts of the

Plaintiff’s composite past work share any similarities in grouping,

interests, work fields, or MPSMS codes. Directly Transferable

Occupations share at least one of the three-digit Work Fields known

from each job of the past work history AND have at least one of the

same three-digit MPSMS codes from any of those jobs done in the past.

Directly transferable occupations have primary job duties that are very

similar to past work. Little or no learning of job duties is anticipated.

Here, it is apparent that there is no similar three-digit Work Field so the

analysis fails there. It is also clear that the other categories leave

significant gaps as well.

Despite the expert’s testimony that there would be little to no vocational

adjustment required from his past work to this new position, there

appears to be a significant conflict here based on the classifications of

the work. The expert provided no true explanation for how there was

Page 25 of 43

little to no vocational adjustment required beyond stating that because

the Plaintiff took work orders and prioritized them in his past work, he

would be able to accomplish the skills required of this new job. Tr. 51-

53. There is no explanation by the expert nor the ALJ for the lack of

support from these categories and a formal transferable skills analysis.

In order to establish transferability of skills for such individuals (over

60), the semiskilled or skilled job duties of their past work must be so

closely related to other jobs which they can perform that they could be

expected to perform these other identified jobs at a high degree of

proficiency with a minimal amount of job orientation. SSR 82-41. It

does not appear that based on the information available from the

classifications of the positions that this would be possible. Once again,

while an expert may testify about their experience at a hearing, an ALJ

is supposed to follow the requirements of SSR 00-4p instead of blindly

relying on their testimony. SSR 00-4p. The lack of development on the

transferable skills conflict undermines the ALJ’s decision and causes it

to lack substantial support, entitling remand for the Plaintiff in this

matter. In accordance with SSR 00-4p, the ALJ must then resolve the

conflict by determining if the explanation given by the vocational

expert is reasonable and provides a basis for relying on the vocational

expert’s testimony.

(Doc. 12, pp. 13-15) (footnotes omitted).

In response, the Commissioner argues generally that the ALJ was allowed to

rely on VE testimony in his analysis of the transferability of skills. (Doc. 14, pp. 11-

12). The Commissioner asserts that is what the ALJ properly did here:

Specifically, the vocational expert testified that the skills required of a

Dispatcher, Maintenance Service are “[r]ecordkeeping, organizational

skills, communication and systemizing information and data, routing,

posting, following-up,” and that Plaintiff acquired those skills from his

past relevant work (Tr. 49). Then when the ALJ asked the vocational

expert, “[a]re there any skills required of that dispatcher, maintenance

service occupation that [Plaintiff] does not have from his past work,”

the vocational expert responded, “no” (Tr. 49). Thereafter, in response

to questioning by Plaintiff’s counsel, the vocational expert explained

Page 26 of 43

that there would be little to no adjustment in terms of tools, work

processes, and work settings with extensive elaboration where the

vocational expert discussed how Plaintiff performed his past job (Tr.

50- 53). The ALJ relied on the vocational expert’s testimony (Tr. 24-

25).

Citing to the agency’s Program Operations Manual System (POMS),

Plaintiff contends his interpretation of occupational groups, GOE

codes, and MPSMS codes in the DOT undermines the vocational

expert’s testimony (Pl.’s Br. at 10-11). But the vocational expert

explained that her testimony was based on how Plaintiff “describe[d]

the[ ] skills in his past work” (Tr. 51). And, as explained by the Eastern

District of Texas when rejecting a similar argument last year, “the

POMS reinforces that an ALJ can rely on the VE’s testimony to

ascertain whether job skills are transferable based on the VE’s expertise

and the VE’s knowledge of the claimant’s work history.” Mann v.

Kijakazi, 2022 WL 4477335, at *7; POMS DI 25015.017(H),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015017 (explaining

an ALJ’s transferability of skills analysis may be based on “statements

by a Vocational Specialist (VS) based on expert personal knowledge”).

(Doc. 14, pp. 12-13) (footnote omitted).

In his reply brief, Plaintiff acknowledges a complete similarity of the factors

listed in 20 C.F.R. § 404.1568(d)(2) is not required for transferability. (Doc. 15, p.

4). Plaintiff goes on to argue:

Defense argues that Plaintiff’s reliance on the POMS is misplaced,

however, while the POMS does lend support to the Plaintiff’s case, the

claim also relies on the Code of Federal Regulations as cited above. In

this instance, two of the most probative factors in transferability

according to the Code of Federal Regulations are whether the jobs have

the same or similar tools and machines are used and the same or similar

raw materials, products, processes or services are involved. 20 C.F.R.

§ 404.1568(d)(2). However, as demonstrated by the Plaintiff’s original

brief, this simply is not the case. The positions do not share the same

Work Field codes, and these codes determine whether there would be a

Page 27 of 43

reasonable match between the tools and machines used on the prior

work and new job. Plaintiff Brief at 11-12. Furthermore, the MPSMS

codes describe the materials, products, subject matter, and/or services

being rendered. Plaintiff Brief at 12; RHAJ, page 5-1. As explained, the

Plaintiff’s past composite work and the position offered by the

vocational expert do not appear to share any MPSMS codes either. Id.

It is improbable then that the expert’s testimony can stand on its own

without further explanation as the significant probative parts of

transferability have seemingly not been met in this instance. For this

reason, the ALJ’s reliance on the expert’s testimony without further

investigation cannot stand and remand is warranted for further

consideration of the matter.

(Doc. 15, pp. 4-5).

As to Plaintiff’s reliance on the POMS, we once again note the POMS creates

no judicially enforceable rights and does not have the force of law.40 The POMS also

states that VE testimony based on his or her personal knowledge is acceptable

evidence in making a transferability of skills assessment.41

Plaintiff appears to assert that although the VE testified there would be little

to no vocational adjustment required from Plaintiff’s past work to the dispatcher,

maintenance service position, there is a conflict “based on the classifications of the

work” such that SSR 00-4p applies. (Doc. 12, p. 15). Plaintiff argues that because

the codes do not match, two of the factors probative of transferability in 20 C.F.R.

§ 404.1568(d)(2) do not favor finding transferability. (Doc. 15, pp. 4-5). Plaintiff

40 Bordes, 235 F.App’x at 859.

41 Program Operations Manual System DI 25015.017(H) and (I).

Page 28 of 43

asserts that “Directly Transferable Occupations share at least one of the three-digit

Work Fields known from each job of the past work history AND have at least one

of the same three-digit MPSMS codes from any of those jobs done in the past.” (Doc.

12, p. 14). Plaintiff cites to no persuasive or precedential authority requiring this.

Plaintiff argues that the “lack of development on the transferable skills conflict

undermines the ALJ’s decision.” (Doc. 12, p. 15). Plaintiff argues that the expert did

not provide a “true” explanation for how there would be little to no vocational

adjustment and that “based on the information available from the classifications of

the positions,” found in the codes he cites to, it would not be possible for there to be

little to no vocational adjustment. (Doc. 12, p. 15).

We “disagree that these codes do the work that [Plaintiff] requires of them.”42

The Commissioner cites to Mann v. Kijakazi where the Eastern District of Texas

rejected an argument similar to Plaintiff’s:

Ms. Mann also points to the SSA’s Program Operations Manual System

(“POMS”) § DI25015.017, which covers transferability of skills

and instructs ALJs to search for occupations related to the claimant’s

past relevant work by looking for the same or similar: “guide for

occupational exploration (GOE) code; materials, products, subject

matter, and services (MPSMS) code; work field (WF) code; occupation

group (first three digits of DOT code); or industry designation.” See

Transferability of Skills Assessment (TSA), Program Operations Manual

System (POMS), SOC. SEC. ADMIN. (June 21, 2017),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015017. Ms. Mann

42 Bird v. Berryhill, No. CV 17-1785-CJB, 2019 WL 1568519, at *12 (D. Del.

Apr. 10, 2019).

Page 29 of 43

interprets this POMS provision to mean that the ALJ must exclude jobs

if they do not have the same codes or industry designations as a

claimant’s past relevant work. But the POMS does not actually say that.

Although the POMS states that a person’s skills are most likely to

transfer between jobs of the same or lower skill level and the “same or

similar” tools, materials, products, processes or services, the POMS

also notes that “[a]n absolute similarity of all of these factors is not

necessary.” Id. In addition, in the section entitled “Additional tips to

assist in the TSA,” the POMS notes that skills “are likely to transfer”

from “highly skilled occupations” or “occupations with skills

applicable across a number of industries.” Id. Nursing is listed in the

POMS as one of the common jobs with skills highly likely to transfer

to other light work. Id. Finally, like SSR 82-41, the POMS itself

instructs the ALJ to rely on VE testimony that is “based on [the VE’s]

expert personal knowledge” when making the requisite transferability

findings, and directs the ALJ to consider “all relevant vocational

sources ... [when] mak[ing] a judgment about whether skills gained in

PRW [past relevant work] are useable in other work within the

claimant’s RFC.” Id. (emphasis added). As such, the POMS reinforces

that an ALJ can rely on the VE’s testimony to ascertain whether job

skills are transferable based on the VE’s expertise and the VE’s

knowledge of the claimant’s work history.43

Plaintiff argues in response that this case is a “Fifth Circuit case and should not be

used as controlling law in this instance.” (Doc. 15, p. 4). Plaintiff does not elaborate

on this argument or explain why we should not find the reasoning of the Eastern

District of Texas persuasive. And persuaded we are, particularly by that Court’s

correct observation that “the POMS reinforces that an ALJ can rely on the VE’s

43 Mann v. Kijakazi, No. 4:21-CV-489-ALM-KPJ, 2022 WL 4477335, at *7

(E.D. Tex. Aug. 30, 2022), report and recommendation adopted, No.

421CV00489ALMKPJ, 2022 WL 4474145 (E.D. Tex. Sept. 26, 2022).

Page 30 of 43

testimony to ascertain whether job skills are transferable based on the VE’s expertise

and the VE’s knowledge of the claimant’s work history.”

Moreover, “even to the extent that [its] relevant DOT job codes differ[s] from

those relating to [Plaintiff’s] prior employment position, that certainly is not

dispositive. After all, the applicable social security regulations state that ‘complete

similarity’ between jobs is not required.”44 It appears that Plaintiff is, at least to some

extent, really asking the Court to reweigh the evidence: “to compare the evidence

mustered by the VE to that related to these codes, and to then determine that the

quantum of evidence swings more heavily in favor of [Plaintiff] than the

Commissioner.”45 We are not permitted to do so and so we do not.46

Plaintiff further argues that the VE’s testimony was insufficient in explaining

how there would be little to no vocational adjustment because the VE relied only on

Plaintiff’s description of his past work, and the ALJ “blindly” relied on the VE’s

testimony. (Doc. 12, p. 15; Doc. 15, p. 5). We are not persuaded. We find that the

ALJ’s transferability of skills assessment conformed to SSR 82-41 and the

applicable regulations.

44 Id. (quoting 20 C.F.R. § 404.1568(d)(3)).

45 Bird, 2019 WL 1568519, at *12.

46 Zirnsak, 777 F.3d at 611.

Page 31 of 43

The VE’s testimony on the subject of the transferability of skills and

vocational adjustment was thorough, and Plaintiff’s counsel had the opportunity to

question the VE and did so. The testimony was as follows:

[ALJ:] Have you reviewed the vocational information in the file and

listened to [Plaintiff’s] testimony?

[VE:] Yes, I have, Your Honor.

ALJ: Mr. Deverell, do you have any objection to [the VE’s]

professional qualifications?

ATTY: No, Your Honor.

BY ADMINISTRATIVE LAW JUDGE:

Q [VE,] do you need any additional information before providing

vocational testimony?

A I do not, Your Honor.

Q Can you please classify for us [Plaintiff’s] past work in terms of

the Dictionary of Occupational Titles?

A Yes, Your Honor, it’s -- he’s describing a composite job and

that is he was a superintendent, building, DOT code 382.664-

010, medium, SVP: 3. But the Claimant describes the

exertional level performed by him as being at the very heavy

level. He was also a supervisor of building maintenance and

DOT code is 381.137-010, medium, SVP: 6 and that sums it

up, Your Honor.

Q And let me ask you some hypothetical questions. For each of

the hypothetical questions please assume an individual with

the same age, education and work experience as [Plaintiff.]

In the first hypothetical please assume an individual who can

perform the full range of light work, except he can frequently

Page 32 of 43

handle and finger bilaterally, can occasionally reach overhead

bilaterally, can occasionally climb ramps and stairs, but never

ladders, ropes or scaffolds. Can occasionally balance on

narrow or slippery surfaces. Can occasionally stoop, kneel,

crouch and crawl. Can tolerate occasional exposure to

pulmonary irritants, to vibrations such as power tools and to

workplace hazards such as hazardous machinery. Would such

an individual be able to perform [Plaintiff’s] past work?

A No, Your Honor, he could not.

Q Are there any other jobs in the national economy that such a

hypothetical individual could perform at the semi-skilled or

skilled levels based on his transferable skills?

A Excuse -- oh, and I didn’t quite understand the question. You said

something about --

Q Sure.

A -- transferable?

Q Yes, is there any job that such a hypothetical individual could

perform with the -- with [Plaintiff’s] transferable skills, if

there are any that are consistent with this hypothetical?

A Okay. I would say a dispatcher, maintenance service, DOT

code 239.367-014, sedentary, SVP: 3.

Q What are the skills that are required of the dispatcher,

maintenance service?

A Recordkeeping, organizational skills, communication and

systemizing information and data, routing, posting,

following-up.

Q Are those skills that [Plaintiff] acquired from his past work?

A Yes, he did, that is correct.

Page 33 of 43

Q Are there any skills required of that dispatcher, maintenance

service occupation that [Plaintiff] does not have from his past

work?

A No.

. . . .

Q Has your testimony in this case been consistent with the

Dictionary of Occupational Titles and the SCO as well as with

your professional experience and observations of the labor

market? Are those parts of your testimony not specifically

covered by the DOT?

A That is correct, Your Honor.

ALJ: Mr. Deverell, do you have any questions for [the VE]?

ATTY: Thank you, Your Honor

EXAMINATION OF VOCATIONAL EXPERT BY ATTORNEY

Q So, my client here is over 55 for the whole period and, you

know, at that point, in order for there to be transferable skills

there has to be little or no adjustment in terms of tools, work

processes and work settings and it just seems that being a

dispatcher, you know, in a sedentary type of environment and

on the phone it’s just a completely different work setting,

completely different tools than, you know, being a

maintenance worker or a superintendent. Would you say that

there’s little to no adjustment in terms of tools, work

processes or work settings, Madam Vocational Expert?

A I -- yes, I would say yes.

Q Sorry, yes in that --

Page 34 of 43

A There’s little -- yes, because he describes these skills in his

past work, so there would be little requirements in terms of

training and tools and processes.

Q And it just seems like a totally different work setting.

A (No audible response.)

ALJ: Oh, Mr. Deverell --

ATTY: You know, given that it’s all in --

ALJ: -- that isn’t a question.

ATTY: I guess I’m trying to have the expert explain how it’s not a

different work setting.

ALJ: Well, [VE], can you tell us, what is the work setting in which

a dispatcher for maintenance service works?

VE: This is pretty -- it’s in the -- this job is pretty much clerical in

nature. A maintenance dispatcher making a service is clerical

in nature and the Claimant talked about receiving and

prioritizing work orders. He talked about supervising. I think

he said help -- workers under him -- about three workers and

cleaners, you know, for each building and he said he did the

prioritizing of the job -- of the orders himself and that aspect

of his job was clerical in nature.

BY ATTORNEY:

Q But the setting is different. One is an office and one is, you

know, working on buildings, physically demanding work.

A Okay, but I --

Q Is that correct?

Page 35 of 43

A Okay, but I gave him -- okay, oh, I described his work as a

composite job, so he did both. He did --

Q But neither of those jobs were clerical type of jobs.

A The only -- the building superintendent was not clerical, but

the other aspects of his job as he described it, it was that it was

a supervisor, building maintenance. That was clerical in

nature.

Q Even though it’s a medium job?

A Aspects of it was clerical in nature.

Q And in terms of tools, you know, the tools that he was using as

in the composite jobs that you described, I don’t think that any

of those tools would be used in the sedentary job. It sounds like

he’d be using a phone would be mostly the tool.

A (No audible response.)

ALJ: Oh, Mr. Deverell, what is the question that you have for [the

VE]? I’m not interested in hearing what you personally think

because you’re not a witness. Your opinion doesn’t matter. So

what is the question --

ATTY: Okay. So I’d like to know then --

ALJ: -- that you have for [the VE]?

ATTY: You know, how is there little to no adjustment in terms of tools

between these two positions?

VE: Okay, in terms of the supervisor part of the job, building

maintenance he would receive work orders that he would

prioritize and it doesn’t necessarily come -- if it comes in

through the phone, I mean that’s a separate job that somebody

else would do and the work orders would pretty much be

based on to him and he would prioritize it and dispatch

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workers to do the maintenance work which he did in his past

work.

ATTY: Okay. No further questions, thank you.

(Admin Tr. 47-53; Doc. 11-2, pp. 48-54).

The ALJ then explained in his decision that:

10. The claimant has acquired work skills from past relevant

work (20 CFR 404.1568).

The vocational expert testified that the claimant’s past relevant work as

was semi-skilled with a specific vocational preparation (SVP) codes of

3 and skilled with an SVP of 6 and required the following skills: record

keeping, organizational skills, communication, systemizing data,

routing, and following up. (Hearing Audio).

11. Considering the claimant’s age, education, work experience,

and residual functional capacity, the claimant has acquired work

skills from past relevant work that are transferable to other

occupations with jobs existing in significant numbers in the

national economy (20 CFR 404.1569a and 404.1568(d)).

. . . .

The vocational expert was asked if any occupations exist which could

be performed by an individual with the same age, education, past

relevant work experience, and residual functional capacity as the

claimant, and which require skills acquired in the claimant’s past

relevant work but no additional skills. The vocational expert responded

and testified that representative occupations such an individual could

perform include: a maintenance service dispatcher (DOT 239.367-014,

which is sedentary with an SVP 3) with about 35,000 jobs available in

the national economy.

[The VE] specifically testified that the above position would require

little vocational adjustment with the claimant’s acquired skills as the

position is clerical in nature and the duties are similar to the duties

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performed by the claimant, including his reports about receiving and

prioritizing work and communicating with supervisors, trainees, and

cleaners. These aspects of his past work were clerical in nature and

would be present in the performance of the maintenance dispatcher

position. (Hearing Audio).

Pursuant to SSR 00-4p, I have determined that the vocational expert’s

testimony is consistent with the information contained in the Dictionary

of Occupational Titles and its associated publication the SCO. [The VE]

testified that areas not covered in the DOT were based on her

professional experience and knowledge of the labor market. I find the

comprehensive testimony of the vocational expert, in addition to her

extensive knowledge, which she relied on when identifying these

positions is sufficient to rely on.

Based on the testimony of the vocational expert, I conclude that the

claimant has acquired work skills from past relevant work that are

transferable to other occupations with jobs existing in significant

numbers in the national economy. The vocational expert testified the

claimant’s previous work is so similar to the jobs recited above that the

claimant would need to make very little, if any, vocational adjustment

in terms of tools, work processes work settings, or the industry.

(Admin. Tr. 24-25; Doc. 11-2, pp. 25-26).

“When transferability appears to be relevant to finding whether a claimant

with skilled or semiskilled PRW [past relevant work] can adjust to other skilled

or semiskilled work, the ALJ should ‘make certain findings of fact’ in his or

her decision.”47 The required findings are: (1) identification of the acquired work

skills; (2) identification of “specific occupations to which the acquire work skills

47 Cassley v. Kijakazi, No. CV 21-226, 2022 WL 1748389, at *1 n.2 (W.D.

Pa. May 31, 2022) (citing to SSR 82-41, 1982 WL 31389, at *7).

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are transferable;” and (3) citation to “[e]vidence that these specific skilled or

semiskilled jobs exist in significant numbers in the national economy . . . .”48

Here, in conformation with the regulations and SSR 82-41, the ALJ did all

three.

The ALJ identified the skills as “record keeping, organizational skills,

communication, systemizing data, routing, and following up.” (Admin. Tr. 24; Doc.

11-2, p. 25). During the hearing, the ALJ had the VE testify regarding occupations

these skills would transfer to and the number of jobs in the economy, and then relied

on that testimony: “The vocational expert responded and testified that representative

occupations such an individual could perform include: a maintenance service

dispatcher (DOT 239.367-014, which is sedentary with an SVP 3) with about 35,000

jobs available in the national economy.” (Admin. Tr. 24; Doc. 11-2, p. 25). During

the hearing the VE confirmed her testimony was consistent with the DOT except for

where she had to rely on her professional experience and observations of the labor

market for information not specifically covered by the DOT. (Admin. Tr. 50; Doc.

11-2, p. 51). “This assessment is consistent with what the regulations and rulings

48 SSR 82-41, 1982 WL 31389, at *7.

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require of ALJs when they assess a claimant’s transferable skills.”49 Therefore, this

is not a basis for remand.

Plaintiff asserts two final arguments relating to the transferable skills

determination. First, Plaintiff argues:

many of the “skills” identified by the expert are not actually skills that

would transfer in such a way that give him any advantage in this other

position. For example, the expert identified communication and

following up as skills. Tr. 24. It is unclear how such basic functions

would be considered work skills. POMS DI 25015.017(C) discusses

particular functions that do not constitute skills and they are analogous

49 Cassley, 2022 WL 1748389, at *1 n.2. See 20 C.F.R. § 404.1566(e) (“If the

issue in determining whether you are disabled is whether your work skills can be

used in other work and the specific occupations in which they can be used, or there

is a similarly complex issue, we may use the services of a vocational expert or other

specialist. We will decide whether to use a vocational expert or other specialist.);

SSR 82-41, 1982 WL 3389, at *7 (“When the issue of skills and their transferability

must be decided, the adjudicator or ALJ is required to make certain findings of fact

and include them in the written decision. Findings should be supported with

appropriate documentation. When a finding is made that a claimant has transferable

skills, the acquired work skills must be identified, and specific occupations to which

the acquired work skills are transferable must be cited in the State agency’s

determination or ALJ’s decision. Evidence that these specific skilled or semiskilled

jobs exist in significant numbers in the national economy should be included (the

regulations take administrative notice only of the existence of unskilled sedentary,

light, and medium jobs in the national economy). This evidence may be VS

statements based on expert personal knowledge or substantiation by information

contained in the publications listed in regulations sections 404.1566(d) and

416.966(d).”); Program Operations Manual System DI 25015.17(H) (“This evidence

may include statements by a Vocational Specialist (VS) based on expert personal

knowledge or substantiation by information contained in the publications listed in

regulations sections 404.1566(d) and 416.966(d).”), DI 25015.17(I) (“Consider all

relevant vocational sources and make a judgment about whether skills gained in

PRW are useable in other work within the claimant’s RFC or MRFC.”).

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to those. It discusses actions such as greeting customers and operating

standard phones, which is similar to the expert stating that the Plaintiff

has “communication skills.” Additionally, following up does not

provide any specific skill set. Any individual within 30-days, the span

on unskilled work training periods, can be taught how to follow-up on

a matter. As such, this is also not a skill.

(Doc. 12, pp. 15-16). To the extent that two of the seven skills that the VE

identified do not appear to meet the POMS definition of skills, it is unclear, and

Plaintiff does not argue, how this is an error by the ALJ, and if it were, how it

was a harmful error requiring remand.50 The Court will not attempt to make

Plaintiff’s arguments for him, and therefore finds this is not a basis for remand.

Finally, Plaintiff argues:

the position of maintenance service dispatcher is a semi-skilled position

at SVP 3. Semiskilled occupations are more complex than unskilled

work and distinctly simpler than the more highly skilled types of jobs.

POMS DI 25015.017(C). They contain more variables and require

more judgment than unskilled occupations. Id. Even though semiskilled

occupations require more than 30 days to learn, the content of work

activities in some semiskilled jobs may be little more than unskilled. Id.

Therefore, one needs to pay close attention to the actual complexities

of the job tasks required to perform the work. Id. Per 20 C.F.R. §§

404.1568(b) and 416.968(b), semiskilled jobs “may require alertness

and close attention ... coordination and dexterity ... as when hands or

feet must be moved quickly to do repetitive tasks.” These descriptive

terms are not intended to illustrate types of skills in and of themselves.

50 Again, the POMS “lack[s] the force of law and create[s] no judicially-

enforceable rights.” Bordes, 235 F.App’x at 859.

The VE identified the following skills: (1) recordkeeping; (2) organizational

skills; (3) communication); (4) systemizing information and data; (5) routing; (6)

posting; and (7) following up. (Admin. Tr. 49; Doc. 11-2, p. 50). The ALJ cited to

all of these skills in his decision. (Admin. Tr. 24; Doc. 11-2, p. 25).

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The terms describe worker traits (aptitudes or abilities) rather than

acquired work skills. The position of maintenance service dispatcher

requires frequent reaching and handling. Selected Characteristics of

Occupations, page 337. Given this requirement of the position, it is

likely that the position is only a semiskilled position due to the

coordination and dexterity required. This shows that the job is akin to

an unskilled job, as it is only given a SVP 3 rating given the

manipulative demands of the position making it more than unskilled.

Pursuant to POMS DI 25015.017(E) skills can never transfer to

unskilled work.

(Doc. 12, p. 16) (footnote omitted).

In response, the Commissioner argues that the ALJ “was entitled to rely on

the vocational expert’s testimony and the DOT, rather than the lay speculation of

Plaintiff’s counsel.” (Doc. 14, p. 16). We agree with the Commissioner. “Skills,

levels of skills and potential occupations to which skills from PRW may be

transferred are for the adjudicator or ALJ to determine (with the assistance, when

required, of a VS or occupational reference sources).”51 Moreover, Plaintiff cites to

no authority suggesting it is the purview of this Court (or Plaintiff’s counsel) to

analyze the DOT and decide whether it is correct in its labelling of an occupation as

semiskilled, or to decide that the VE, with over twenty years of vocational

experience, was incorrect in identifying dispatcher, maintenance service as a

semiskilled occupation. The Court is satisfied that the ALJ correctly relied upon the

51 SSR 82-41, 1982 WL 31389, at *4.

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VE testimony to support his conclusion that work for the Plaintiff is available in the

national economy.

V. CONCLUSION

Accordingly, I find that Plaintiff’s request for the Court to find him entitled to

Social Security Disability Insurance benefits or to remand this case for a further

hearing be Denied as follows:

(1) The Commissioner’s final decision is AFFIRMED.

(2) Final judgment in the Commissioner’s favor will be issued separately.

(3) An appropriate order will be issued.

Date: March 29, 2024 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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