JUSTUS v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NOAH RYAN JUSTUS, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-637

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 15th day of September, 2023, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision finding that as of July 1, 2017, Plaintiff was no longer qualified to

receive supplemental security income (“SSI”) benefits under Subchapter XVI of the Social

Security 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 previously received SSI benefits as a child pursuant to 20 C.F.R. § 416.924.

When he turned eighteen, his eligibility for benefits was re-evaluated, as is required by law,

pursuant to the rules that apply to adults who file new applications for SSI benefits. See 20

C.F.R. § 416.987(a) & (b). In a decision dated March 26, 2021, the Administrative Law Judge

(“ALJ”) found that Plaintiff was no longer disabled as of July 1, 2017. Plaintiff takes issue with

the ALJ’s determination, arguing that she inadequately considered the fact that he required work

accommodations within a structured setting. The Court disagrees and finds that substantial

evidence supports the ALJ’s decision that Plaintiff is no longer eligible for SSI.

The crux of Plaintiff’s argument is that the ALJ relied heavily on his ability to perform a

part-time job at a pizza shop in determining his residual functional capacity (“RFC”) and finding

him not to be disabled but failed to fully acknowledge that this work was performed in a

structured environment with significant accommodations. He cites to both 20 C.F.R. §

416.973(c) and Social Security Ruling 11-2p, 2011 WL 4055665 (S.S.A. Sept. 12, 2011), which

he asserts require an ALJ to consider whether work is performed under special conditions or

within a structured setting and prohibit an ALJ from considering accommodations in determining

whether the claimant can engage in substantial gainful activity. While Plaintiff’s general

statement of law is correct, in the context of this case the ALJ adequately considered any special

assistance Plaintiff received and did not improperly assume the availability of accommodations

in finding him able to work.

There are a variety of ways in which a job can be considered to be performed under

special conditions or within a structured setting, which includes things such as assistance from

other employees, the ability to work irregular hours or take frequent breaks, special arrangements

or equipment, permission to work at a lower standard of productivity or efficiency than other

employees, or being given an opportunity because of family relations or an altruistic employer.

See 20 C.F.R. § 416.973(c). As stated in Ruling 11-2p, which applies specifically to younger

adults such as Plaintiff:

If a young adult can function only if he or she receives more help

than would generally be provided to people without medical

impairments, we consider how well the young adult would

function without the extra help. The more extra help or support of

any kind that a young adult receives because of his or her

impairment(s), the less independent he or she is in functioning, and

the more severe we will find the limitation to be.

Id. at *8. The Ruling explains that “[a]ccommodations can include a change in setting, timing,

or scheduling, or an assistive or adaptive device.” Id. Accordingly, receiving such special

assistance must be considered, but is not in and of itself dispositive of a claimant’s disability.

The more special consideration given to a claimant, the more likely the claimant will be found to

be disabled. The ALJ’s analysis here complied with this standard.

The special consideration Plaintiff claims to have received includes (1) that he was hired

with a job coach through a “Work Based Learning Experience” with the Pennsylvania Office of

Vocational Rehabilitation (“OVR”), (2) that he was permitted to work reduced hours, and (3)

that he was permitted to take additional breaks. (Doc. No. 15, pp. 9-11). The ALJ, though,

acknowledged and discussed all of these factors in making her findings. She recognized, for

instance, that Plaintiff had an OVR counselor in connection with his job. (R. 19, 21). Plaintiff

does not explain how the presence of the counselor when Plaintiff started his job indicates an

inability to perform substantial gainful employment, but as the ALJ noted, the counselor actually

opined that Plaintiff had performed well and that he was capable of holding a full-time job. (R.

21, 595-605). The Court further notes that Plaintiff continued to work without any problem for

some time after the OVR counselor was no longer involved. As for Plaintiff’s claim that his

reduced hours constituted an employer accommodation, the ALJ addressed the issue and

explained that, although Plaintiff did work a reduced schedule, he was hired only to work part-

time in the first place and that the job was never meant to be a full-time position. (R. 21, 46).

His employer, in fact, stated that there were “only so many hours available” for Plaintiff to work.

(R. 639). While Plaintiff implies that this was itself done as an accommodation, when asked if

his employer purposefully gave him less work to do than other employees, he stated that he did

not know. (R. 52).

Therefore, the ALJ found that the first two ways in which Plaintiff claims to have

received special treatment were not really accommodations or special consideration at all.

Substantial evidence supports this finding. It is the third alleged accommodation, the need for

additional breaks, that requires a little further discussion. The ALJ did acknowledge Plaintiff’s

need for a break during his five-hour shift to re-focus. (R. 19). She also asked the vocational

expert (“VE”) regarding the typical breaks permitted during the workday, to which the VE

answered, “Generally, there’s two 10 to 15 minute breaks, one at the beginning of the shift, one

at the end of the shift, with a 30-minute lunch break in the middle of the shift.” (R. 61). After

confirming with the VE that the tolerable off-task time for employees was 10 percent, the ALJ

asked if that 10 percent off-task period would include a scenario where a person needs an

additional five-minute break, to which the VE replied affirmatively. (R. 62-63). Plaintiff

contends that this was insufficient, arguing that the evidence shows Plaintiff needs not “a” break

but multiple breaks during his 4–5-hour shift. He argues that the need for multiple unplanned

breaks is outcome determinative and precludes him from any full-time gainful employment.

This does not accord, though, with the actual record evidence.

Plaintiff is correct that it is ambiguous how many breaks Plaintiff’s employer indicated

that he needed. Plaintiff’s employer specifically said, “He does need some break to help him re-

focus.” (R. 639). This certainly could be read to include more than a single break during

Plaintiff’s shift. However, the ALJ accounted for this in her questioning of the VE. As noted,

the VE testified that a five-minute break in addition to the regularly scheduled break during the

first half of a full-time shift would fit within the tolerable level of off-task time. In other words,

one break is generally permitted to anyone, and another short break is generally tolerated. The

ALJ found that this testimony accurately accounted for Plaintiff’s need for additional short

breaks.

Plaintiff argues that the record shows the need for more breaks. However, in so doing, he

cites primarily to his employer’s statement that he needs “some break,” which he characterizes as

the need for some unknown quantity of multiple breaks. As noted above, this evidence is at best

ambiguous. On the other hand, Plaintiff’s own testimony is very much in line with the ALJ’s

findings. At the hearing, Plaintiff testified that his additional breaks were comprised of 5 to 10-

minute talks with co-workers which he estimated typically occurred between one to three times

during his shift. (R. 52-55). These short breaks generally fit within the limits tolerated by

employers to which the VE opined. It is also noteworthy that the VE drew a sharp distinction

between the type of breaks Plaintiff takes and those that would bring one away from the

worksite. (R. 64-65). This is not a situation, therefore, where there is evidence of numerous

unplanned breaks happening on a regular basis, and the ALJ did not find as such. Rather, she

treated Plaintiff’s extra breaks as exactly what he testified they are – a couple of short

conversations with co-workers beyond the normal number of breaks. She reasonably relied on

the VE, who testified that this would generally be tolerated by employers.

Plaintiff does suggest, at a few points, that an allowance for unscheduled breaks beyond

the number afforded to employees generally is outcome determinative because such an

allowance would constitute an accommodation that may not be considered in determining what

work he could perform. However, this is largely a matter of semantics, and, as the District Court

for the Middle District of Pennsylvania has explained, “confuses an important distinction

between legally-mandated ADA accommodations – which may not be considered when making

disability determinations – and informal accommodations traditionally made in the workplace,

which are permissible factors to take into account when reaching a disability determination.”

Tanner v. Berryhill, No. 1:18-CV-1433, 2019 WL 2184767, at *11 (M.D. Pa. May 21, 2019).

The court there explained that modifications that had become prevalent and commonly permitted

by employers, whether called “accommodations” or otherwise, were not the type of

accommodations meant to be excluded from a VE’s or ALJ’s analysis. See id. at **11-12

(collecting cases).

Hence, certain allowances that could be called accommodations – and that are not

necessarily permitted to every worker – such as a sit/stand option or a work station near to a

restroom, may be common enough that such an allowance is more aptly treated as a limitation

that is part of the RFC rather than as an employer accommodation that cannot be considered.

Indeed, any restriction in a claimant’s RFC could be construed as an accommodation in certain

contexts. Here, the accommodation of extra break time was considered by the ALJ and covered

by the testimony of the VE. As noted, the ALJ’s characterization of the nature and frequency of

plaintiff’s breaks was generally consistent with Plaintiff’s own testimony, and even if Plaintiff’s

testimony could be read as exceeding the ALJ’s findings, the ALJ was not, of course, required to

accept that testimony without question. See 20 C.F.R. § 416.929(c)(4); Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011). Here, she relied on other statements about

Plaintiff’s work behavior, objective medical evidence, and multiple supporting medical opinions.

All of this constitutes substantial evidence in support of the ALJ’s findings, especially in light of

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (Doc. No. 14) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 17) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

the United States Supreme Court’s reminder that the threshold for meeting the substantial

evidence standard “is not high.” Biestek, 139 S. Ct. at 1154.

Accordingly, the Court finds that the ALJ applied the proper legal standards and that

substantial evidence supports his findings. The Court will therefore affirm.