Lymperopulos v. Colvin
Filing
47
MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 3/5/2021: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARKO L.,1
Plaintiff,
v.
ANDREW MARSHALL SAUL,
Commissioner of Social Security2,
Defendant.
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No. 16 C 9723
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Marko L.’s claims for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff’s motion
for summary judgment [Doc. No. 31] is denied, and the Commissioner’s request to
affirm the ALJ’s decision is granted.
In accordance with Internal Operating Procedure 22 – Privacy in Social Security
Opinions, the Court refers to Plaintiff only by his first name and the first initial of his last
name.
1
Andrew Saul has been substituted for his predecessor pursuant to Federal Rule of Civil
Procedure 25(d).
2
BACKGROUND
I.
PROCEDURAL HISTORY
Plaintiff originally filed his claim for DIB and SSI payments in January 2006,
alleging disability since April 21, 2005. On October 17, 2007, an Administrative
Law Judge (“ALJ”) held a hearing and on March 28, 2008 issued a decision finding
that Plaintiff had been under a disability from April 21, 2005 until April 1, 2007.
Plaintiff appealed the finding that his disability had terminated, and after the
Appeals Council denied review filed suit in federal court. On May 2, 2009, the
reviewing court issue an order affirming the ALJ’s decision.
On June 21, 2010, Plaintiff filed a new application (the application at issue)
for DIB and SSI payments, alleging disability since his original onset date of April
21, 2005. A different ALJ held a hearing on May 31, 2012, and on June 29, 2012
found that res judicata applied to preclude a finding of disability from March 28,
2008 (the date of the prior ALJ’s decision) to May 2, 2009 (the date of the reviewing
court’s decision). The ALJ found Plaintiff was not under a disability since May 2,
2009. On February 26, 2014, the Appeals Council remanded the case, finding that
the ALJ improperly applied res judicata to the period from the date of the prior
ALJ’s decision to the date of the reviewing court’s decision. On November 13, 2014,
another hearing was held before the ALJ and on December 15, 2014, the ALJ found
Plaintiff not disabled.
Plaintiff appealed again, and after the Appeals Council denied review, filed
this case on October 14, 2016. On July 20, 2018, this Court remanded the matter to
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the Commissioner for further proceedings pursuant to the sixth sentence of 42
U.S.C. § 405(g) for consideration of new evidence. On April 18, 2019, a hearing was
held before the ALJ. Plaintiff personally appeared and testified at the hearing and
was represented by counsel. Vocational expert Richard Fisher also testified.
On May 24, 2019, the ALJ denied Plaintiff’s claim for benefits, finding him
not disabled under the Social Security Act. The Appeals Council then denied
Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the
Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. §
405(g).3 See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
ALJ DECISION
Plaintiff’s claim was analyzed in accordance with the five-step sequential
evaluation process established under the Social Security Act. See 20 C.F.R. §
404.1520(a)(4). The ALJ found at step one that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of August 1, 2007. At step
two, the ALJ concluded that Plaintiff had the following severe impairments:
degenerative joint disease of the left knee, status post total knee arthroplasty in
2012; and left hip degenerative joint disease, status post acetabular repair. The ALJ
concluded at step three that his impairments, alone or in combination, do not meet
or medically equal a Listing. Before step four, the ALJ determined that Plaintiff
retained the RFC to perform sedentary work except:
[T]he claimant can alternate between positions sitting for about an hour,
then stand for a few minutes, and then resume sitting; sit a total of 6
hours in an 8 hour workday; stand/walk about 2 hours total in an 8 hour
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A supplemental record was filed on the docket on September 13, 2019.
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workday with standing up to 30 minutes and walking up to 20 minutes
at a time; the position changes are not a break from the workstation and
the claimant can continue working during the position changes; never
climb ladders/ropes/scaffolds, kneel, or crawl; occasionally climb
ramps/stairs, balance, stoop, and crouch; no work around hazards like
unprotected heights or moving, dangerous machinery; occasional
pushing/pulling with the left lower extremity/foot controls; and
frequently handle, finger, feel, and gross/fine manipulations with the
non-dominant left upper extremity.
(R. 1037.)
At step four, the ALJ concluded that Plaintiff would be unable to perform his
past relevant work as a carpenter. At step five, based upon the VE’s testimony and
Plaintiff’s age, education, work experience and RFC, the ALJ concluded that
Plaintiff can perform jobs existing in significant numbers in the national economy,
leading to a finding that he is not disabled under the Social Security Act.
DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has 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 twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a Plaintiff is
disabled, the ALJ considers the following five questions in order: (1) Is the Plaintiff
presently unemployed? (2) Does the Plaintiff have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the Plaintiff unable to perform her former
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occupation? and (5) Is the Plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
Plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The Plaintiff bears the burden of proof at steps 1-4. Id.
Once the Plaintiff shows an inability to perform past work, the burden then shifts to
the Commissioner to show the Plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. Id.
II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
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ALJ’s decision must be affirmed even if “‘reasonable minds could differ’” as long as
“the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a Plaintiff, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a Plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
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III.
ANALYSIS
Plaintiff argues that the ALJ committed the following errors: (1) the ALJ
erroneously found that Plaintiff did not meet the criteria for listing 1.02; (2) she
erred in failing to consider a closed period of disability; (3) the ALJ erred in her
assessment of Plaintiff’s subjective symptom statements; (4) she erred in
discounting the opinion of Plaintiff’s treating physician; and (5) her step 5
determination was unsupported by substantial evidence.
A.
Listing 1.02
Plaintiff contends that his impairments meet the elements of listing 1.02,
which describes major dysfunction of a joint:
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint pain
and stiffness with signs of limitation of motion or other abnormal motion
of the affected joint(s), and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis of the
affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in ability to ambulate effectively, as defined in
1.00B2b….
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02A. An inability to ambulate effectively is
defined in the regulations as:
(1) … an extreme limitation of the ability to walk, i.e., an impairment(s)
that interferes very seriously with the individual’s ability to
independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the
use of a hand-held assistive device(s) that limits the functioning of both
upper extremities….
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(2) To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. They must have the ability to travel without
companion assistance to and from a place of employment or school.
Therefore, examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker, two crutches
or two canes, the inability to walk a block at a reasonable pace on rough
or uneven surfaces, the inability to use standard public transportation,
the inability to carry out routine ambulatory activities, such as shopping
and banking, the inability to carry out routine ambulatory activities,
such as shopping and banking, and the inability to climb a few steps at
a reasonable pace with the use of a single hand rail. The ability to walk
independently about one’s home without the use of assistive devices does
not, in and of itself, constitutes effective ambulation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b.
Plaintiff argues that the ALJ’s analysis of Listing 1.02 was insufficient and
unsupported by substantial evidence. In discussing Listing 1.02, the ALJ stated:
Regarding the claimant’s degenerative joint disease of the left hip and
knee, the undersigned reviewed Listing 1.02A (Major dysfunction of a
joint(s) due to any cause). In order to meet the criteria of this listing,
there must be involvement of one major peripheral weight-bearing joint,
resulting in the inability to ambulate effectively. Here, however, there
is no evidence that the claimant is unable to ambulate effectively. Even
though, a treating physician, Dr. Samuel Chmell, an orthopedic
surgeon, indicated that Listing 1.02A was met in an attorney-generated
questionnaire in September 2014, the evidence does not substantiate
that conclusion. Dr. Chmell’s opinion is discussed in greater detail
below, but essentially, the evidence reflects that the claimant’s knee
prosthesis was stable post-surgically, and there is little evidence of
subsequent complication. The claimant’s motor strength in the lower
extremities remained essentially intact even prior to surgery, as
discussed below.
(R. 1037.) Thus, the ALJ’s analysis of Listing 1.02 was more detailed than Plaintiff
represents in his brief, and the analysis of Plaintiff’s ambulatory ability later in the
opinion must also be considered. See Jeske v. Saul, 955 F.3d 583, 590 (7th Cir. 2020)
(“[W]hen an ALJ explains how the evidence reveals a claimant’s residual functional
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capacity, that discussion may doubly explain how the evidence shows the claimant’s
impairment is not presumptively disabling under the pertinent listing. And, as
we’ve already recognized, ‘[t]o require the ALJ to repeat such a discussion
throughout [the] decision would be redundant.’”) (citation omitted).
At the step three analysis and throughout the opinion, the ALJ thoroughly
discussed the medical evidence, including that Plaintiff’s knee was stable postsurgery and his motor strength remained intact. Furthermore, Plaintiff challenges
the ALJ’s conclusion solely based on the fact that certain physicians found that
Plaintiff required a disabled parking spot. Plaintiff points to no authority that such
an observation by Plaintiff’s physicians compels a conclusion that Plaintiff cannot
ambulate effectively. The ALJ considered these findings explicitly and found them
unpersuasive. Thus, the Court finds the ALJ’s analysis supported by substantial
evidence.
B.
Closed Period of Disability
Plaintiff next argues the ALJ erred in failing to consider a closed period of
disability. Specifically, Plaintiff contends the ALJ should have at least considered a
closed period of disability during the time Plaintiff was being treated before his
knee replacement. The Programs Operations Manual System (“POMS”), an internal
agency guideline, states that a claimant is entitled to a closed period of disability if
he establishes that he is disabled for a continuous period of twelve months or more
but is not disabled at the time of decision. See DI 25510.001 Closed Period of
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Disability, POMS, Social Security, https://secure.ssa.gov/poms.nsf/lnx/0425510001.
See also 20 C.F.R. §§ 404.1594, 416.994.
Contrary to Plaintiff’s argument, the ALJ explicitly considered medical
evidence beginning from March 29, 2008, the date after the prior ALJ’s decision
denying benefits. The ALJ also found that Plaintiff was not under a disability since
August 1, 2007 through May 30, 2019. Plaintiff simply argues that “[t]he ALJ’s
rationale for denial is largely based in evidence from after Lymperopulos’ knee
replacement” and is thus erroneous. (Doc. No. 32 at 11.) However, Plaintiff does not
cite any authority stating that the ALJ is required to do any more than the ALJ did
here—consider medical evidence at all relevant times and determine whether
Plaintiff was under a disability at any relevant time. Significantly, the Court notes
that contrary to Plaintiff’s running theme of the ALJ failing to differentiate between
evidence before and after Plaintiff’s knee surgery, the ALJ explicitly discusses the
difference between the two time periods and notes that Plaintiff’s condition
improved following the surgery. The Court will not remand the case on this basis.
C.
Subjective Statements
Plaintiff next argues the ALJ failed to properly evaluate his subjective
symptom statements, but Plaintiff offers no persuasive reason that the ALJ’s
evaluation of Plaintiff’s testimony was erroneous. The Court may overturn an ALJ’s
credibility determination only if it is “patently wrong,” but “failure to adequately
explain his or her credibility finding by discussing specific reasons supported by the
record is grounds for reversal[.]” Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir.
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2015) (citations omitted). Plaintiff makes one argument on this issue: that the ALJ
erred in discussing Plaintiff’s testimony that he was “stockpiling” his extra pain
medication instead of taking it as prescribed.4
The ALJ’s interpretation of this comment as negating Plaintiff’s complaints
of pain somewhat is reasonable, however, and Plaintiff essentially requests that the
Court reweigh the evidence to arrive at a different conclusion. This is impermissible
and the Court will not re-interpret the statement as Plaintiff requests where the
ALJ’s interpretation is supported by substantial evidence. See Elder, 529 F.3d at
413 (ALJ’s decision must be affirmed even if “‘reasonable minds could differ’” as
long as “the decision is adequately supported.”). The ALJ’s discussion of the medical
evidence as it related to Plaintiff’s credibility, including his prescription medication
regimen, was thorough and supported by substantial evidence.
To the extent Plaintiff attempts to raise any argument related to the credibility
determination aside from the argument regarding prescription medication, such as the ALJ
“offer[ing] no other grounds for discounting Lymperopulos’ complaints before his 2012 knee
replacement[,]” Plaintiff has not explained that argument in any detail. Thus, Plaintiff has
waived any other argument. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016)
(“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived[.]”).
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D.
Treating Physician Rule5
Plaintiff argues the ALJ failed to follow the “treating physician rule” by not
appropriately weighing the opinion of his treating physician and failed to include in
the RFC assessment Plaintiff’s need to elevate and ice his knee. An ALJ must give
controlling weight to a treating physician’s opinion if the opinion is both “wellsupported” and “not inconsistent with the other substantial evidence” in the case
record. 20 C.F.R. § 404.1527(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir.
2011). The ALJ must also “offer good reasons for discounting” the opinion of a
treating physician. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal
quotations omitted); Scott, 647 F.3d at 739; see also Israel v. Colvin, 840 F.3d 432,
437 (7th Cir. 2016) (“A contradictory opinion of a non-examining physician does not,
by itself, suffice as a justification for discounting the opinion of the treating
physician.”). The regulations require the ALJ to consider a variety of factors,
including: (1) the length, nature, and extent of the treatment relationship; (2) the
frequency of examination; (3) the physician’s specialty; (4) the types of tests
performed; and (5) the consistency and support for the physician’s opinion. See 20
C.F.R. § 404.1527(c).
The Social Security Administration has modified the treating physician rule to eliminate
the “controlling weight” instruction. See 20 C.F.R. § 404.1520c (“We will not defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . ,
including those from your medical sources.”). However, the new regulations apply only to
disability applications filed on or after March 27, 2017. See 20 C.F.R. § 404.1527 (“For
claims filed (see § 404.614) before March 27, 2017, the rules in this section apply.”).
Plaintiff’s application in this case was filed in 2010, and therefore the ALJ was required to
apply the former treating physician rule.
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Plaintiff’s treating orthopedic surgeon, Dr. Chmell, stated in September 2014
that Plaintiff would need to “lie down [and] occasionally elevate the [left] knee”
during the workday.6 (R. 983.) The ALJ extensively discussed Dr. Chmell’s medical
opinion generally, and the Court will not repeat the entire discussion here.
However, the following portion of the ALJ’s opinion (among others) is relevant to
Plaintiff’s only specific challenge:
Dr. Chmell added that the claimant would lie down during the day and
occasionally elevate the knee but did not indicate a specific duration or
frequency that the claimant did this. Here, Dr. Chmell provided more
description of functional restrictions though his report of “problems”
with certain movements lack detail to specific ability to perform those
activities. Overall, however, the noted restrictions or “problems” are
more consistent with the evidence but are not fully supported by the
evidence as a whole. Dr. Chmell’s report that the claimant can sit and
stand for only about one hour at a stretch has been included in the above
residual functional capacity, but the need to lie down throughout the
day to elevate the knee is not supported by substantial evidence. In
terms of symptoms and clinical findings, Dr. Chmell noted pain and
stiffness, pain to palpation over the patella, and 0-90 degree range of
motion with pain. However, the doctor acknowledged that the x-rays
show a stable prosthesis. The doctor’s notes fail to mention problems
with weakness, chronic swelling, or circulatory issues that might
support a need to elevate the leg.
(R. 1048.) As reflected by the above portion of the opinion and the rest of the ALJ’s
discussion, she carefully considered Dr. Chmell’s opinion and especially his sit/stand
restriction and opinion related to elevating/icing the left knee. Contrary to
Plaintiff’s contention, the ALJ did not cherry-pick the evidence and discussed many
of Dr. Chmell’s treatment notes and their overall context. See Simila v. Astrue, 573
Dr. Chmell stated this as part of a more detailed impairment questionnaire, but Plaintiff
raises as error only the ALJ’s failure to include the elevating/icing the knee limitation in
Plaintiff’s RFC.
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F.3d 503, 516 (7th Cir. 2009) (“[T]he ALJ is not required to discuss every piece of
evidence but is instead required to build a logical bridge from the evidence to her
conclusions.”). That the ALJ’s careful evaluation of the opinion resulted in her
adopting Dr. Chmell’s opinion related to sitting/standing and not his opinion related
to elevating/icing the knee is not error. This is especially so here considering the
vagueness of Dr. Chmell’s opinion (which the ALJ noted) as to frequency, duration
and other details of the elevation and icing required. The Court will not reweigh the
evidence where the ALJ’s conclusion was reasonable and supported by substantial
evidence. See Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). Accordingly, the
Court finds the ALJ’s evaluation of the medical opinion evidence and RFC
assessment supported by substantial evidence.
E.
Step Five
Finally, Plaintiff argues the ALJ’s Step 5 finding is not supported by
substantial evidence because 99,000 jobs is not a significant number of jobs.7 It is
the Commissioner’s burden at Step 5 to show a significant number of jobs the
claimant can perform existing in the economy. Walker v. Bowen, 834 F.2d 635, 640
(7th Cir. 1987). In her opinion, the ALJ found that Plaintiff could perform the jobs
of telephone quotation clerk (59,000 available), order clerk food and beverage
(16,000 job available), and charge account clerk (24,000 jobs available). Plaintiff
Plaintiff’s implication, raised in a footnote, that the VE’s testimony was inconsistent with
SkillTran’s JobBrowser Pro, is not sufficient to raise the argument in an opening brief.
Crespo, 824 F.3d at 674. However, even if it were sufficiently raised, it is unpersuasive as
Plaintiff did not challenge at the hearing the VE’s testimony regarding the number of jobs
available. See Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).
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cites only a non-precedential case from another district that found that 120,350 jobs
was not significant. See Sally S. v. Berryhill, No. 2:18-cv-460, 2019 WL 3335033, at
*11 (N.D. Ind. July 23, 2019).
However, Seventh Circuit precedent casts doubt on the conclusion in that
case. See Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (finding that it is
“well-established that 1,000 jobs is a significant number” for regional job
availability); Weatherbee v. Astrue, 649 F.3d 656, 572 (7th Cir. 2011) (finding that
3,900 jobs in the regional economy and 140,000 jobs in the national economy were
“well above the threshold for significance.”). Furthermore, other circuits that have
considered the issue have found that far fewer jobs constituted “significant” jobs in
the national economy. See Sanchez v. Comm’r of Soc. Sec., 705 F. App’x 95, 99 (3d
Cir. 2017) (finding 18,000 jobs in the national economy is significant); Taskila v.
Comm’r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (finding 6,000 jobs in the
national economy significant); Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997)
(finding 10,000 jobs in the national economy significant). In considering the weight
of the above precedent and in the absence of any controlling authority or even
authority in this district that the number of jobs in the national economy here is not
significant, the Court finds that 99,000 jobs available in the national economy is
significant.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
31] is denied, and the Commissioner’s request to affirm the ALJ’s decision is
granted.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
March 5, 2021
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