# CONKLIN v. COMMISSIONER OF SOCIAL SECURITY

> District Court, W.D. Pennsylvania · September 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10418027

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 7, 2022
- **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/10418027

## How later opinions describe it (automated extraction)

- holding that each fact incorporated into the RFC need not have been found by a medical expert

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DORENE CATHERINE CONKLIN, )
)
Plaintiff, )
)
v. ) Civil Action No. 21-263
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant. )

O R D E R

AND NOW, this 7th day of September, 2022, upon consideration of the parties’
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security’s final decision denying Plaintiff’s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and her claim for supplemental
security income benefits under Subchapter XVI of the Act, 42 U.S.C. § 1381 et seq., finds that
the Commissioner’s findings are supported by substantial evidence and, accordingly, affirms.
See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (2019); Jesurum v.
Secretary of U.S. Dep’t of Health & Human Servs, 48 F.3d 114, 117 (3d Cir. 1995) (citing
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988)). See also Berry v. Sullivan, 738 F. Supp.
942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the Commissioner’s decision
must be affirmed, as a federal court may neither reweigh the evidence, nor reverse, merely
because it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705
(3d Cir. 1981)).1

1 Plaintiff raise two primary arguments as to why she believes that the Administrative Law
Judge (“ALJ”) erred in finding her not to be disabled pursuant to the Act. After careful review,
the Court finds no merit to these arguments and, instead, finds that substantial evidence supports
the ALJ’s decision.

Plaintiff’s first argument involves the ALJ’s consideration of the Dictionary of
Occupational Titles (“DOT”) at Step Five of the Social Security Administration (“SSA”)’s
sequential process. “The DOT is a vocational dictionary that lists and defines all jobs available
in the national economy and specifies what qualifications are needed to perform each job.”
McHerrin v. Astrue, 2010 WL 3516433, at *3 (E.D. Pa. Aug. 31, 2010) (citing SSR 00-4p, 2000
WL 1898704 (S.S.A. Dec. 4, 2000)). Plaintiff contends that the jobs which the vocational expert
(“VE”) found that she could perform at Step Five – marker, electrical accessories assembler, and
photocopy machine operator – are incompatible with her residual functional capacity (“RFC”) as
determined by the ALJ. Specifically, she contends that the RFC limited her to work involving no
more than “office-level” noise (R. 912, 963), and that each of the jobs referenced by the ALJ
involves a greater level of noise than “office-level.” This assertion is premised on her claim that,
pursuant to the DOT, each of these jobs involves a noise level of 3 (moderate), and that under the
SSA’s Program Operations Manual System (“POMS”), an illustrative example of work involving
noise level 3 would be department or grocery positions, whereas an office level of noise is more
consistent with a noise level of 2 (quiet). See POMS TN-13,
https://secure.ssa.gov/poms.nsf/lnx/0425001001. Plaintiff argues that this inconsistency between
the DOT and the VE’s testimony and the ALJ’s ultimate finding that she could perform the jobs
of marker, electrical accessories assembler, and photocopy machine operator requires that this
case be remanded.

The Commissioner disagrees that there is any inconsistency between office level noise
and a noise level of 3, pointing to the Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles (“SCO”), arguing that office work could very well
involve a noise level of 3. Under the SCO, illustrative examples of noise level 2 work include
work at libraries, many private offices, funeral receptions, golf courses, and art museums.
Examples of noise level 3 work includes work in business offices where typewriters are used,
department stores, grocery stores, light traffic, and fast-food restaurants at off-hours. The
Commissioner contends that a restriction to office level noise would be consistent with a noise
level of 3. The Court tends to agree with her.

First, the Court notes that Plaintiff is incorrect in her assertion that definitions in the
POMS necessarily take precedence over those in the SCO. Social Security Ruling 00-4p, cited
by both parties in this case, provides that, “in making disability determinations, [the SSA relies]
primarily on the DOT (including its companion publication, the SCO) for information about the
requirements of work in the national economy.” SSR 00-4P at *2. It specifies that these two
publications are the ones used “at steps 4 and 5 of the sequential evaluation process.” Id.
Therefore, contrary to Plaintiff’s assertions otherwise, the SCO is to be consulted in determining
the qualifications and characteristics of occupations listed in the DOT. It is, in fact, in the SCO
that the positions at issue are identified as involving noise level 3. Therefore, it follows that the
definition of the various noise levels contained in the SCO must be considered in determining
whether there is inconsistency between a VE’s testimony and the DOT. See id. at *1 (indicating
that in order to rely on VE evidence to support a disability determination, an ALJ must
“[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence
provided by VEs or VSs and information in the [DOT], including its companion publication, the
[SCO], and [e]xplain in the determination or decision how any conflict that has been identified
was resolved.”).

Therefore, Plaintiff’s argument that the definition of noise level in the POMS “trumps”
the definition in the SCO is inconsistent with SSR 00-4p. However, it really does not matter, as
the two are not at odds. The POMS, in setting forth “illustrative examples” of noise levels,
merely picks out some, but not all of the examples in SCO. Indeed, the POMS, when referring to
noise level, specifically references the SCO. Both the POMS and the SCO expressly give as an
example of quiet work “many private offices,” not office work in general. All of this
demonstrates no apparent conflict between the two; they simply differ in the level of detail they
provide. Given all this, the Commissioner is correct that “office level” noise does not
specifically match up with a level 2 noise level and could be consistent with a level 3. Only
many (but not all) private office jobs necessarily involve a noise level of 2.

Indeed, even assuming that Plaintiff is correct that the ALJ could consult only the POMS
and not the SCO, it would still not establish an inconsistency. Again, the examples given for
quiet levels of noise in the POMS are library work and many private offices. The RFC did not
limit Plaintiff to the noise level existent in a private office, but merely to office level noise in
general. If anything, the use of the term “private” in the example for level 2 office work implies
that other kinds of office work are performed at higher noise levels. To the extent that general
office work could encompass varying noise levels depending on the nature of the work, the VE
specifically stated that for variables not identified in the DOT, he relied on his education,
training, and experience as a vocational rehabilitation consultant and counselor. (R. 966).

Regardless, even if the Court were to find that such an inconsistency technically exists, it
would not warrant remand under the circumstances of this case. As the Third Circuit Court of
Appeals explained in Zirnsak v. Colvin, 777 F.3d 607 (3d Cir. 2014), remand is not necessary in
such cases where the ALJ discharged his or her duty to ask the VE whether his or her testimony
was consistent with the DOT on the record and where the following factors were met: (1) the
claimant did not seriously argue an inability to perform the jobs in question and the record
supports a finding that he or she can perform such work; (2) the claimant did not point out the
conflict at the hearing; and (3) the challenged jobs were only representative examples. See id. at
618-619.

The situation here is much the same as in Zirnsak. First, the ALJ did, in fact, ask the VE,
“So would it be accurate to say that your testimony does not conflict with the DOT, but there are
areas where you have supplemented based on your knowledge and experience?” to which the VE
responded, “That is accurate your honor.” (R. 966). Further, here, as in Zirnsak, Plaintiff has
made no real argument that she could not perform the occupations at issue, and the ALJ
discussed the medical evidence and its impact on Plaintiff’s functional limitations at great length.
Moreover, Plaintiff did not raise any inconsistencies at the hearing. Finally, the jobs the ALJ
found Plaintiff could perform were identified as “representative occupations.” (R. 916).
Accordingly, there is no basis for remanding the case based on this argument. See also Brush v.
Colvin, Civ. No. 3:14-cv-2143, 2015 WL 3866078 (M.D. Pa. June 23, 2015).

Plaintiff’s second argument is that the ALJ’s RFC determination is not supported by
substantial evidence because the ALJ failed to take the actions recommended by the Appeals
Council in the remand order. She contends that “[g]iven the exact language of the Appeals
Council stated the ALJ was required to obtain additional medical evidence, this failure to follow
the order is legal error and remand is required.” (Doc. No. 19, p. 10). She further argues that,
without such additional evidence, the RFC had no basis for determining her RFC, as he assigned
little or no weight to the three medical opinions in this matter and therefore relied on no opinion
evidence in formulating the RFC. These arguments are both factually and legally incorrect.

First, the Appeals Council did not, as Plaintiff contends, “state[] the ALJ was required to
obtain additional medical evidence.” Rather, the remand order from the Council stated that upon
remand, the ALJ will “consider the need to obtain evidence from a medical expert (ME) related
to the nature, severity, and limiting effects resulting from the claimant’s mental impairments.”
(R. 980) (emphasis added). The remand, therefore, did not require the ALJ to do anything more
than consider whether additional evidence as to Plaintiff’s mental impairments was needed,
which the ALJ expressly did. (R. 906).

Moreover, to the extent that Plaintiff argues that the ALJ’s findings lacked the support of
substantial evidence because they were not backed by a specific medical opinion, the Court
emphasizes that “[t]he ALJ – not treating or examining physicians or State agency consultants –
must make the ultimate disability and RFC determinations.” Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 361 (3d Cir. 2011). See also 20 C.F.R. §§ 404.1527(d)(2), 404.1546(c),
416.927(d)(2), 416.946(c); SSR 96-5p, 1996 WL 374183 (S.S.A.) (July 2, 1996). “There is no
legal requirement that a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC.” Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006).
See also Chandler, 667 F.3d at 362 (holding that each fact incorporated into the RFC need not
have been found by a medical expert). As the Circuit Court explained in Titterington,
“[s]urveying the medical evidence to craft an RFC is part of an ALJ’s duties.” 174 Fed. Appx. at
11. Accordingly, an ALJ is not prohibited from making an RFC assessment even if no doctor
has specifically made the same findings. See Hayes v. Astrue, Civ. No. 07-710, 2007 WL
4456119, at *2 (E.D. Pa. Dec. 17, 2007).

Of course, it is true that an ALJ must explain the basis for the RFC finding and set forth
the reasons for crediting or discrediting relevant or pertinent medical evidence. See Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 121-22 (3d Cir. 2000); Fargnoli v. Massanari, 247 F.3d 34,
41 (3d Cir. 2001). Here, the ALJ explained at significant length how and why he formulated the
RFC the way he did, citing to specific evidence and explaining how that evidence warranted the
Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 18) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.
No. 20) is GRANTED as set forth herein.

s/Alan N. Bloch
United States District Judge

ecf: Counsel of record

limitations included in the RFC. The Court finds the ALJ’s discussion to be more than sufficient
and to be supported by substantial evidence.

Accordingly, the Court finds that the ALJ applied the proper legal standards and that
substantial evidence supports his findings. The Court will therefore affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10418027. Public record. Not legal advice.