Brownell v. Social Security Administration

Filing 31

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND DEFENDANT'S MOTION TO AFFIRM (Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
CHARLES BROWNELL,
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
_______________________________________)

Civil Action No.
17-11462-FDS

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND DEFENDANT’S MOTION TO AFFIRM
SAYLOR, J.
This is an appeal of a final decision of the Commissioner of the Social Security
Administration (“SSA”) denying the application of plaintiff Charles Brownell for Social Security
Disability Income (“SSDI”) benefits. Brownell appeals the denial of his application on the
ground that the decision is not supported by substantial evidence as required by 42 U.S.C.
§ 405(g). Specifically, he contends that the administrative law judge (“ALJ”) failed to properly
assess his residual functional capacity (“RFC”) and improperly relied on the testimony of an
unreliable vocational expert. He further contends that remand is warranted in order to permit the
ALJ to make a proper finding of disability.
Brownell has moved to reverse the decision of the Commissioner, and defendant has crossmoved to affirm the decision of the Commissioner. For the reasons stated below, the decision will be
affirmed.

I.

Background
A.

Factual Background
1.

Medical Records

Charles Brownell was 50 years old on October 31, 2010, the time he contends his
disability began. (A.R. 20, 425).1 He at least began 9th grade, but did not graduate from high
school. (A.R. 70, 301) He has no specialized job training, nor did he attend trade or vocational
school. (A.R. 301). He served in the military from February 1980 to December 1985. (A.R.
262). He has previously worked as a day laborer, shelf stocker, roofer, framer, forklift driver,
and bending machine operator. (A.R. 301, 307, 309-20, 339-46). He was last gainfully
employed in October 2012, stocking dairy aisles part-time at a Shaw’s supermarket; he was let
go because he would miss dates on milk containers, and could not complete his tasks on time.
(A.R. 369, 908, 1018). Prior to being laid off, he reported annual earnings just below $3,760.
(A.R. 284). He is not currently working and not earning any income. (A.R. 290-92). He resides
in Tyngsborough, Massachusetts, with his wife. He has a son, a daughter, and a granddaughter.
(A.R. 331-32).
Brownell reported a knee impairment in October 2007, when he went to the emergency
room reporting knee pain that had started after running and had kept him awake at night for two
weeks. (A.R. 564-65, 573). An x-ray revealed small degenerative spurs, compatible with
minimal osteoarthritis. (A.R. 24, 580). He was diagnosed with tendinitis and a sprain. (A.R.
563). He was prescribed Percocet and limited activity for seven days. (A.R. 563).

1

Brownell originally alleged that the onset of his disability was February 1, 2004, but his counsel
subsequently amended the date to October 31, 2010. (A.R. 20, 47, 112). The last date that he was insured was
December 31, 2010. (A.R. 23; see A.R. 68). To be eligible for SSDI benefits, a claimant must be “insured for
disability” at the time he became disabled. A claimant is insured for disability in any quarter in which he was fully
insured and had “at least 20 [quarters of coverage] in the 40-quarter period . . . ending with that quarter.” 20 C.F.R.
§ 404.130(b). Brownell meets the SSDI insured status requirement through December 31, 2010. (A.R. 23).

2

From April to July 2008, Brownell visited his primary care provider, Dr. Nasim Ghaffar,
complaining of tingling and numbness in both hands, possibly related to carpal tunnel syndrome.
Dr. Ghaffar noted his history of chronic obstructive pulmonary disease (“COPD”) and asthma.
(A.R. 710-14). Dr. Ghaffar referred him for an electromyography (“EMG”), which reported
positive for left cubital tunnel syndrome, although on examination he had normal sensation,
normal grip, and normal range of motion. (A.R. 711). She prescribed ibuprofen, advised him to
use splints, and noted that corticosteroid injections should be considered if the symptoms did not
improve. (A.R. 714).
In August 2008, Brownell had a motorcycle accident resulting in rib fractures for which
he was treated. (A.R. 708). None of the relevant records mention any reported knee symptoms.
In October 2008, Brownell applied for Emergency Aid to the Elderly, Disabled and
Children (“EAEDC”) benefits, alleging COPD and shortness of breath. (A.R. 999). He
indicated that his breathing issues affected his job because he could not keep up with the pace of
work. (A.R. 1000).
On December 13, 2008, Brownell was referred to Dr. Le M. Doan by the UMass
Disability Evaluation Services for a psychodiagnostic interview after reporting anxiety attacks.
(A.R. 1015). Dr. Doan noted that Brownell arrived well-groomed, but with a strong odor of
alcohol. (A.R. 1017). She also noted that Brownell minimized his alcohol use, but that he had a
past DUI. (A.R. 1016-17). Her “diagnostic impressions” included alcohol abuse, anxiety, and
emphysema, with a global assessment of functioning (“GAF”) score of 68, in the mild range.
(A.R. 1017). Brownell stated during his interview that the interference with his work was caused
by his physical rather than psychiatric problems. (Id.).
A January 2009 disability report from the UMass Medical School Center for Health Care

3

Financing Disability Evaluation Services stated that Brownell was not then performing
substantial gainful activity, and that his past work exceeded his current abilities. (A.R. 987,
993). The report addressed various issues affecting Brownell, including COPD, emphysema and
asthma, gastroesophageal reflux disease (“GERD”), alcohol abuse, carpal tunnel syndrome, and
anxiety attacks, but did not mention any knee impairment. (A.R. 988, 994). An RFC physical
examination performed by Dr. Nathaniel Manning indicated that he was capable of light work
with limitations for fumes, dust, odors, hazard, extreme hot or cold, and humidity, with
environmental limitations not exceeding the full range of light work. (A.R. 992, 995-96). An
RFC mental examination performed by Dr. Paul Kaufman indicated that he had no mental
limitation that interfered with his ability to perform basic work in a competitive labor market.
(A.R. 988, 991, 998).
On August 24, 2010, Brownell completed a Masshealth Adult Disability Supplement
form, which requested that he “[l]ist and describe all your medical and mental health problems.”
(A.R. 972, 981). He responded “emphysema.” (A.R. 972). Brownell reiterated that he had
trouble breathing and carrying weight. (A.R. 972). He stated that it was difficult for him to find
work where he lived that was not roofing or building, and that he could no longer keep up with
the type of activity these jobs required. (A.R. 972-73). He reported that he could “sit” and
“stand” “all the time,” but could “walk,” “bend,” “lift,” or “reach” “not very often.” (A.R. 976).
He was able to shop for food, plan meals, cook, wash dishes, do laundry, dust, make beds, empty
the trash, and vacuum. (Id.). Consistent with that application, the agency’s Massachusetts
Continuing Disability Determination Review form, which is dated October 6, 2010, reported no
improvement of his condition regarding his emphysema, COPD, asthma, GERD, carpal tunnel
syndrome, rib fractures, forearm lacerations, and anxiety. (A.R. 962). No additional conditions

4

were listed. (A.R. 964). At the time, Brownell was not performing substantial gainful activity.
(Id.).
Brownell’s medical records from the beginning of 2011 make no mention of knee
problems. He saw Dr. Ghaffar for a medical assessment on June 30, 2011. (A.R. 700). He
reported issues with hearing in both ears and memory loss. (A.R. 700-01). Dr. Ghaffar
recommended an otolaryngologist (“ENT”) consultation for Brownell’s hearing, and a neurology
consultation for his memory loss. (Id.).
In August 2011, Brownell saw Dr. Ghaffar again. (A.R. 690). Her notes indicate he was
“[n]egative for joint stiffness, joint pain, joint swelling.” (Id.). She administered an abdominal
ultrasound, which revealed a fatty infiltration of the liver with presumed area of sparing near the
gallbladder fossa. (A.R. 450, 691). Dr. Ghaffar encouraged him to abstain from alcohol. (A.R.
691).
In September 2011, Brownell saw Dr. Jason Viereck for a neurology consultation
because of claimed memory loss. (A.R. 796-99). Dr. Viereck’s notes briefly mention that
Brownell reported “[p]ains in elbows, knees,” but his physical examination at that time revealed
normal tone, strength, sensation, and reflexes. (A.R. 796). An MRI of his brain was scheduled.
(A.R. 796-97). The follow-up consultation in October 2011 revealed that the MRI results were
normal. In speaking to Brownell, Dr. Viereck noticed that he exhibited symptoms consistent
with ADD, and gave Brownell a prescription for Adderall. (A.R. 800). That same month,
Brownell had an ENT consultation and was prescribed hearing aids. (A.R. 388-90).
In January 2012, Brownell added knee pain, in addition to back pain and memory loss, to
his Massachusetts disability claim. (A.R. 943-46, 954-55). He reported that his knee pain had
started in the 1990s. (A.R. 954). He reported that he could no longer go on long walks or play

5

sports because he would “get out [of] breath,” and could no longer bend or lift because it hurt his
knees and back. (A.R. 955). He also complained of short-term memory loss and difficulties
concentrating. (Id.). He stated that he could not work because he would get “winded” easy, but
could do some “limited light stuff.” (A.R. 959). He also mentioned that he suffered from
confusion and memory loss, and had recently started treatment for it. (Id.).
In June 2012, Brownell saw Dr. Benjamin Henkle, complaining of longstanding stiffness
in his middle finger. (A.R 665). Brownell reported that his finger would stick when he opened
it, but no more than once or twice a year, and that he wore a wrist support during work.2 He
reported that the pain had worsened recently and he had trouble closing his finger. (Id.). Dr.
Henkle diagnosed trigger finger and referred him to Dr. Kevin Tomany, an orthopedic surgeon.
(Id.).
In July 2012, Brownell saw Dr. Joel Epstein, a consultative physician for the
Massachusetts Rehabilitation Commission Disability Determination Services. The examination
revealed no changes in his condition, as well as normal strength in upper and lower extremities,
with a normal gait. (A.R. 650). Dr. Epstein noted that Brownell had tender knees and mild pain
with no effusions and a full range of motion that could be consistent with early osteoarthritis.
(Id.).
Also in July 2012, Dr. Ghaffar referred Brownell to Dr. Sweta A. Desai, a lung specialist,
because of his complaints of worsening shortness of breath and COPD. (A.R. 787-89). Dr.
Desai diagnosed dyspnea. (A.R. 788). Brownell received chest x-rays and was scheduled for a
follow-up appointment in August 2012, during which Dr. Desai assessed Brownell’s asthma.
(A.R. 790-92).

2

Brownell reported that he was employed as a framer at the time. (A.R. 665).

6

In September 2012, Brownell saw Dr. William Krueger from the Massachusetts
Rehabilitation Commission Disability Determination Services, who performed a disability
determination examination. (A.R. 652-55). Brownell reported that the Adderall had helped his
condition. (AR. 652). He stated that he could no longer work, and that this caused him stress
because of his financial situation. (A.R. 653). During the examination, Dr. Krueger noted that
he was oriented to person, place and time, except that he had the date off by several days. (Id.).
He correctly identified the current president but not the former. (Id.). He remembered only one
out of three items after ten minutes, and scored a 25 out of 30 on the mini-mental state
examination (“MMSE”). (A.R. 653-54). Dr. Krueger diagnosed anxiety symptoms secondary to
a medical condition and COPD, and assessed his GAF at 54. (A.R. 655).
In December 2012, Brownell saw Dr. Desai again. (A.R. 793-95). Dr. Desai increased
Brownell’s asthma medication and recommended that he quit smoking. (Id.).
In January 2013, Brownell was referred by Dr. Ghaffar to Dr. Samuel D. Gerber, an
orthopedic surgeon, because of his complaints of ongoing pain in his knees. (A.R. 725). MRIs
of both of Brownell’s knees revealed moderate to severe patellofemoral arthritis and
degenerative signal of the medial meniscus. (A.R. 719, 723, 882). He was prescribed physical
therapy, which apparently was ineffective. (A.R. 724, 726).
On February 6, 2013, Dr. Gerber performed arthroscopic surgery on Brownell’s left knee
at Lowell General Hospital. (A.R. 739). The operative report confirmed stage four
patellofemoral arthritis and grade two cartilage changes. (A.R. 754). Dr. Gerber continued
treating Brownell after the surgery, and administered methylprednisolone shots in both knees.
(A.R. 303, 717-19).
In May 2013, in connection with Brownell’s continuing Massachusetts EAEDC benefits

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review, Dr. Manning determined that he was capable of performing a range of sedentary work
activities, but given his age, education, and skills, he was considered disabled by the state. (A.R.
912, 914-15).
Brownell first applied for SSI in January 2013 and SSDI in February 2013, citing
emphysema, COPD, memory loss, and arthritis in both knees. (A.R. 20, 111, 125).
In August 2013, Brownell saw Dr. Robert Sampson for a mental-health examination
related to his Social Security application. (A.R. 734-37). He reported that Adderall had helped
his short-term memory initially but was no longer working. (A.R. 737). He had the date wrong
by five days. (A.R. 736). He remembered three out of three items after five minutes, and scored
a 29 out of 30 on the MMSE. (Id.). He reported feeling depressed because of his financial
issues. (A.R. 737). Dr. Sampson assessed that Brownell was able to understand, follow, and
remember simple instructions, with minimal impairment in responding to routine work pressures
in a competitive work environment. (Id.). His GAF was assessed at 60. (Id.).
The initial disability-determination explanations show physical and mental impairments
as of January 7, 2013. (A.R. 111-23 (SSDI); A.R. 125-38 (SSI)). Dr. John Manuelian assessed
Brownell’s RFC as being able to occasionally lift twenty pounds, frequently lift ten pounds,
stand or walk with normal breaks for a total of four hours, and sit for six hours out of an eighthour work day. (A.R. 120-22, 135-36). He also found that Brownell could occasionally climb
stairs or ladders, balance, stoop, kneel, and crouch. (Id.). Those findings are consistent with the
RFC maximum sustained work capability of sedentary. (A.R. 138). Dr. Robert Lasky, a state
agency psychological consultant, found that his mental impairments, including organic mental
disorders and affective disorders, were mild. (A.R. 119, 133).
The SSA concluded that there was insufficient evidence of disability as of December 31,

8

2010, the date he was last insured. (A.R. 122, 136). However, because of his age, he was found
disabled as of January 2013, with no expectation of medical improvement. (A.R. 138-39).
Brownell requested reconsideration of the denial of his SSDI benefits, but did not allege
any changes in his condition. (A.R. 142, 146). In January 2014, Dr. Judith Clementson, a state
agency psychological consultant, assessed Brownell’s file. (A.R. 147-49). She took into account
the prior assessments by Dr. Sampson in August 2013, by Dr. Krueger in September 2012, and
Dr. Ghaffar in 2011. (A.R. 143-45). She rated Brownell’s affective disorders and ADD as nonsevere. (A.R. 147). She indicated that there was not enough evidence to determine whether he
was disabled as of the date he was last insured, December 31, 2010, and affirmed the initial
determination. (A.R. 147, 149).
In June 2014, Brownell saw Dr. Ghaffar again, reporting depression and anxiety. (A.R.
826). He was prescribed Zoloft and Xanax, and was referred to a psychiatry consultation for
depression. (A.R. 827). Brownell reported feeling well and without complaints on medication at
his follow-up appointment with Dr. Ghaffar in September 2014, and asked to discontinue Zoloft.
(A.R. 819). In November 2014, Brownell also reported to Dr. Ghaffar that his anxiety was under
control. (A.R. 816).
In August 2015, Dr. Frank A. Graf, an orthopedic surgeon, reviewed Brownell’s
complete medical history and assessed his condition. (A.R. 1018-23). He examined his knees
and diagnosed “[b]ilateral genu vara with patella femoral and medial compartment degenerative
osteoarthritis left knee” and “[p]atella femoral osteoarthritis right knee.” (A.R. 1022). Dr.
Graf’s assessment of Brownell’s condition, as far as his physical RFC was concerned, was
generally consistent with that of Dr. Manning and Dr. Manuelian—that he could frequently lift
20 pounds; occasionally lift 25 pounds; stand or walk for only 2 hours of an 8-hour work day;

9

and only occasionally climb ramps or stairs. (A.R. 1024-25). However, Dr. Graf opined that the
physical limitations began on October 31, 2010. (A.R. 1027).
Brownell saw Dr. Erin Durocher in the fall of 2015 for a mental-health assessment.
(A.R. 1028-39). Dr. Durocher evaluated Brownell’s mental RFC as impaired because of his
anxiety, finding that he struggled to make decisions, and that worrying inhibited his
concentration and appropriate interactions at work, and prevented him from retaining and
executing instructions. (A.R. 1036-38). She also noted that his memory was severely
compromised, and that he would have difficulties going to work. (A.R. 1038). She also
diagnosed social phobia. (Id.). Due to those impairments, she concluded that he would likely
need to miss work more than four days per month. (A.R. 1039). Dr. Durocher assessed
Brownell’s GAF at 50. (A.R. 1035).
2.

Hearing Testimony

The SSA conducted a hearing concerning Brownell’s application for disability benefits
on April 23, 2015. (A.R. 65). At the hearing, he appeared and testified before the ALJ. (Id.).
He was represented by counsel at the hearing. (Id.).
During the hearing, Brownell testified that he does not work and receives governmental
assistance in the form of food stamps and SSI. (A.R. 70). He testified that he last worked in
2012 at a Shaw’s supermarket, but was let go after a month because he could not timely process
300 gallons of milk each night, and kept forgetting the dates on the milk bottles. (A.R. 70-71).
He testified that he suffers from knee problems that got progressively worse through the
years, and that he was diagnosed with arthritis “a couple years ago” when he had surgery on his
left knee. (A.R. 76-77). He testified that he has had trouble with his left knee “[e]very single
day” since at least 2010. (A.R. 79). He testified that he was diagnosed with carpal tunnel
syndrome in 2008, after years of pain in his left arm, elbow, and hand. (A.R. 78). He testified
10

that he has had trouble breathing since 2010, and was diagnosed with COPD. (A.R. 79, 82). He
has had asthma since childhood, but still has not completely stopped smoking. (A.R. 80-82). He
testified that he suffers from memory loss and hearing loss and wears hearing aids. (A.R. 81, 8385).
During the hearing, Brownell’s wife, Tecia Brownell, also testified. (A.R. 87-90). She
testified that her husband has had issues with his knees, preventing him from standing, but did
not recall when the issues started; that her husband has had issues with his left hand and his
breathing since before December 2010; that he suffered from memory loss, to the point where
she had to forbid him from using the stove to cook because he kept forgetting and burning
things; and that she did not believe he would have been able to work a job requiring him to stand
very long, lift much weight, or remember instructions since December 2010. (A.R. 87-89).
During the hearing, vocational expert Ruth Baruch testified as to Brownell’s capacity for
work in 2010, under various scenarios. (A.R. 94-105). The ALJ asked Baruch to assume a
person of Brownell’s age, education, and work experience, with the following restrictions:
limitation to light exertional work; need to avoid concentrated exposure to extreme hot and cold
temperatures, humidity, and pulmonary irritants, such as dust, fumes, gases; and limitation to
simple, routine tasks. (A.R. 94). Baruch testified that such a person could not work any past job
that Brownell had previously worked. (Id.). She testified that there were other jobs in the
national economy that such a person could perform, for example, hand packager/inspector
(130,000 jobs in the national economy), bench assembler (225,600 jobs), and electrical
assembler (38,990 jobs). (A.R. 94). The ALJ asked Baruch if additional restrictions, such as
restrictions on climbing ramps, steps and ladders; crawling, kneeling and crouching limited to no
more than occasional basis; and reaching and handling limited to no more than frequent

11

bilaterally, would affect the jobs she had identified. (A.R. 95). Baruch testified that it would
not, but that only absences 10% more than the normal break period would be tolerated, as well as
absences of one day a month. (Id.).
Brownell’s attorney asked Baruch to assume a person of Brownell’s age, education, and
work experience, with the additional restrictions of standing only two hours a day, and only
occasional reaching and handling with the dominant left hand. (A.R. 95-96). Baruch testified
that the restriction of standing only two hours a day would further reduce the jobs available by
25 to 30%, and the restriction of only occasional reaching would eliminate such jobs completely.
(A.R. 96). He then asked Baruch to assume a person of Brownell’s age, education, and work
experience with memory such that they would fail to remember the sequence of steps they were
supposed to perform in the job up to 15 to 20% of the time, and so would require more than
normal supervision. (A.R. 96-97). Baruch testified that in such unskilled work, it is typically
expected that the person would be supervised when learning the job, but that past the training
period, if the person makes a daily mistake, they are going to get three warnings and then lose
their job. (A.R. 97-100). Baruch further testified that if those types of mistakes happened once a
week, such a person would typically not last more than one to three months on the job. (A.R.
101).
Baruch further testified that in order to determine the number of jobs available, she
begins with the number of jobs in a census grouping of multiple job titles, which are broken
down by skill level, and further into sedentary, light, medium, heavy and very heavy work by the
Occupational Employment Quarterly, which then estimates the number of jobs in each category.
(A.R. 102-03). She testified that the actual number of people practicing such jobs could differ.
(A.R. 104). Baruch testified that she compared that method with a second method using

12

algorithms to determine the number of jobs available, and has found the results to be fairly close.
(A.R. 104-05).
Following the hearing, Brownell submitted an affidavit by vocational expert David W.
Meuse disputing Baruch’s findings. (A.R. 397-99). Specifically, Meuse challenged the numbers
of jobs in the national economy that Baruch had found, stating that the methodology used to
make those findings was deeply flawed and that some of the jobs included in the 1979 DOT have
been outsourced or automated to the point where they no longer exist in the United States. (A.R.
398-99). The ALJ presented Baruch with interrogatories to allow her to respond to the Meuse
affidavit. Baruch answered in writing, providing new numbers for the jobs mentioned—706
bench assemblers, 5877 hand packagers, and 5216 electrical assemblers—but contended that
those jobs still existed in significant numbers, and that Brownell would have been able to
perform them. (A.R. 419-22).3 She also provided evidence that those jobs still exist and are
advertised in the national economy. (Id.). Brownell requested a supplemental hearing to explore
these issues further. (A.R. 49, 412).
The SSA conducted a supplemental hearing concerning Brownell’s application for
disability benefits on February 9, 2016. (A.R. 45). At the hearing, he and Baruch appeared and
testified before the ALJ. (Id.). During the hearing, Brownell’s attorney amended the alleged
onset date to October 31, 2010. (A.R. 47).

3

The interrogatory answers are handwritten, and the number of bench assembler jobs is not entirely clear
from the evidence. That bullet point reads: “Bench assembler 706.684.022 (51-9199) OES group production
workers 1526 jobs in this group. (specific DOT codes to this census group) 706 Bench assemblers in USA based on
job browser which breaks down to DOT code.” (A.R. 420). At the supplemental hearing, plaintiff’s lawyer clearly
read the number of jobs to be 706, asking her at one point whether she had adjusted the number to “a little under
1,000” and at another point whether she had adjusted it to “706 bench assemblers,” to which she answered in the
affirmative. (A.R. 51, 55). The ALJ, however, in his decision, clearly read her answer to mean that there were 1526
jobs in that category, citing the 1526 figure in the text and relying on the fact that numbers of jobs exceeded “12,000
combined.” (A.R. 36-37). It is likely that 706 is the correct figure—in testifying about the other two job categories,
Baruch identified the number of DOT codes within the OES group before giving the total number of jobs. (See A.R.
420). However, this discrepancy does not change the outcome.

13

Brownell’s attorney questioned Baruch about the different numbers she gave between her
initial testimony and her written answer to the vocational expert’s affidavit, and about the overall
job-assessment methodology. (A.R. 50-61). Baruch testified that she changed the numbers of
hand-packager jobs from 130,000 to a little under 6,000, the numbers of bench-assembler jobs
from 225,600 to a little under 1,000, and the numbers of electrical-assembler jobs from 39,000 to
a little under 6,000 after consulting the JobBrowser Pro software, which she said is routinely
used by vocational experts. (A.R. 50-51, 55, 424). She testified that she would never place a
client in a job further than fifty to seventy miles from his home. (A.R. 53). She further testified
that the numbers she gave were the national total, not the number of jobs either in the region
where the claimant lived or in several other regions of the country, which would have been
lower. (A.R. 57). She testified that considering the job market for 2010 further complicated the
assessment, because there could have been a national unemployment rate of 8%, which could
mean 30% fewer jobs available than the current numbers, but that her across-the-board estimate
was not industry-specific. (A.R. 58). And she testified that there was no way for a vocational
expert in her position to produce a number accurate down to a single job, and that she doesn’t
know of any other available methodology to estimate jobs. (A.R. 59-60).
B.

Procedural Background

On February 14, 2013, Brownell filed an initial claim for disability benefits alleging the
following conditions: emphysema, COPD, memory loss, and arthritis in both knees. (A.R. 20,
141, 150, 262, 300). The application alleged an onset date of February 1, 2004. (A.R. 141, 293).
He stated that he had filed for supplemental security income, but did not file nor intend to file for
any worker’s compensation, public disability, or black-lung benefits. (A.R. 262).
The SSA notified Brownell on September 4, 2013, that his claim for disability benefits
had been denied. (A.R. 151-53). Based on his medical reports, reports of state agency doctors
14

and claimant-supplied records, the SSA determined that Brownell suffered from emphysema,
COPD, memory loss, and arthritis in both knees, but that his eligibility for disability benefits had
passed. (A.R. 151). The SSA determined that his condition was not severe enough to be
considered disabling on any date through December 31, 2010. (Id.).
The SSA notified Brownell on October 16, 2013, that his supplemental security income
claim had been approved, and that he had been found disabled for SSI purposes as of January 7,
2013. (A.R. 20, 163). That finding and the disability beginning on January 7, 2013, are not at
issue. (A.R. 20).
On October 29, 2013, Brownell filed for reconsideration. (A.R. 181, 358-62). After
reconsideration, on January 17, 2014, the SSA determined that Brownell’s condition was not
disabling on any date through December 31, 2010, the last day that insured status for disability
was met. (A.R. 182). Brownell did not request a hearing before an ALJ concerning his
disability claim until June 16, 2014. (A.R. 185, 187, 189). The late filing was due to his
attorney’s office not having received a copy of the January 17, 2014 denial. (Id.). The hearing
was held before the ALJ on April 23, 2015. (A.R. 201, 207). A supplemental hearing was held
before the ALJ on Tuesday, February 9, 2016. (A.R. 236).
On May 13, 2016, the ALJ issued an opinion finding that Brownell was not disabled
under §§ 216(i) and 223(d) of the Social Security Act through December 31, 2010, the last date
insured. (A.R. 17-38). He requested review of the decision with the Appeals Council on July
12, 2016. (A.R. 261). On June 15, 2017, the Appeals Council denied his request for review.
(A.R. 1).
On August 8, 2017, Brownell filed this action to review the SSA Commissioner’s
decision. He has moved to reverse the Commissioner’s decision, and the SSA has cross-moved

15

to affirm it.
II.

Legal Standards
A.

Standard of Review

This Court may affirm, modify, or reverse the Commissioner’s decision, with or without
remanding the case for a rehearing. 42 U.S.C. § 405(g). The ALJ’s finding on any fact shall be
conclusive if it is supported by “substantial evidence,” and must be upheld “if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it as adequate to support his
conclusion,” even if the record could justify a different conclusion. Rodriguez v. Sec’y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The ALJ’s findings of fact are not
conclusive when derived by ignoring evidence, misapplying the law, or making expert findings
of fact. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (citing Da Rosa v. Sec’y of Health &
Human Servs., 803 F.2d 24, 26 (1st Cir. 1986)).
In applying the “substantial evidence” standard, the reviewing court must bear in mind
that it is the province of the ALJ, not the courts, to find facts, decide issues of credibility, draw
inferences from the record, and resolve conflicts of evidence. Ortiz v. Sec’y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991). Reversal is warranted only if the ALJ committed a
legal or factual error in evaluating the claim, or if the record contains no “evidence rationally
adequate . . . to justify the conclusion” of the ALJ. Roman-Roman v. Comm’r of Soc. Sec., 114
F. App’x 410, 411 (1st Cir. 2004); see also Manso-Pizarro v. Sec’y of Health & Human Servs.,
76 F.3d 15, 16 (1st Cir. 1996). Therefore, “[j]udicial review of a Social Security claim is limited
to determining whether the ALJ used the proper legal standards and found facts based on the
proper quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Questions of law, to the extent that they are at issue, are reviewed de novo. Seavey v. Barnhart,
276 F.3d 1, 9 (1st Cir. 2001).
16

B.

Standard for Entitlement to Disability Benefits

In order to qualify for SSI benefits, the claimant must demonstrate that he is “disabled”
within the meaning of the Social Security Act. The Social Security Act defines a “disability” as
the “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.” 42
U.S.C. § 423(d)(1)(A). The impairment must be severe enough to prevent the claimant from
performing not only his or her past work, but also any substantial gainful work existing in the
national economy. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c)(1).
An applicant’s impairment is evaluated under a five-step analysis set forth in the
regulations promulgated under the statute. See 20 C.F.R. § 404.1520. The First Circuit has
described the analytical sequence as follows:
First, is the claimant currently employed? If he is, the claimant is automatically
considered not disabled.
Second, does the claimant have a severe impairment . . . mean[ing] an impairment ‘which
significantly limits his or her physical or mental capacity to perform basic work-related
functions[?]’ If the claimant does not have an impairment of at least this degree of
severity, he is automatically considered not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments
contained in . . . Appendix 1 [of the Social Security regulations]? If the claimant has an
impairment of so serious a degree of severity, the claimant is automatically found
disabled. . . . If, however, his ability to perform basic work-related functions is impaired
significantly (test 2) but there is no ‘Appendix 1’ impairment (test 3), the [ALJ] goes on
to ask the fourth question:
Fourth, does the claimant’s impairment prevent him from performing work of the sort he
has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant’s impairment prevent him from performing other work of the sort
found in the economy? If so, he is disabled; if not, he is not disabled.
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
17

The burden of proof is on the applicant as to the first four inquiries. See 42 U.S.C.
§ 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence thereof as the [ALJ] may require.”).
If the applicant has met his or her burden as to the first four inquiries, then the burden shifts to
the Commissioner to present “evidence of specific jobs in that national economy that the
applicant can still perform.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). In
determining whether the applicant is capable of performing other work in the economy, the ALJ
must assess the applicant’s RFC in combination with vocational factors, including the applicant’s
age, education, and work experience. 20 C.F.R. § 404.1560(c).
III.

Analysis
A.

The ALJ’s Findings

In evaluating the evidence, the ALJ conducted the five-part analysis called for by Social
Security Act regulations.
At step one, the ALJ found that Brownell did not engage in substantial gainful activity
during the period from his alleged onset date of October 31, 2010, through his date last insured
of December 31, 2010. (A.R. 23).
At step two, the ALJ found that through the date last insured, Brownell’s COPD and
asthma were severe impairments under 20 C.F.R. § 404.1520(c). (Id.). He found that the record
showed upper-extremity impairments related to his carpal and cubital tunnel syndrome, as well
as lacerations, continuous elbow pain, and trigger finger syndrome, but those impairments did
not impose more than minimal functional limitations prior to the date last insured and were nonsevere. (A.R. 23-24). He found that the record showed bilateral knee impairment, but that the
totality of the evidence did not support a conclusion that the knee impairment was severe prior to
the date last insured. (A.R. 24-25). He found that Brownell’s hearing loss, to the extent it was
18

medically determinable prior to the date last insured, was non-severe. (A.R. 25). He further
found that the record of his history of GERD showed no evidence that it imposed more than a
minimal limitation in basic work functioning. (Id.). He further found that the record showed
evidence of his history of anxiety and alcohol abuse prior to the date last insured, but that his
mental functioning was only slightly limited. (A.R. 26). He further found that Brownell was not
under any active treatment for mental-health symptoms through the date last insured, and overall
the medical records did not support more than minimal functional deficits prior to the date last
insured, although his memory loss later worsened. (A.R. 26-27).
At step three, the ALJ found that Brownell did not have an impairment or combination of
impairments that met, medically equaled, or functionally equaled the severity of an impairment
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (A.R. 28-29). The only severe impairments prior
to the date last insured were asthma and COPD, and the evidence did not support a finding that
his respiratory impairments met listing 3.02, dealing with chronic pulmonary insufficiency, or
3.03, dealing with asthma, because the tests did not reflect listing level impairment, nor did the
evidence support asthma attacks requiring emergency room visits or hospitalization. (A.R. 29).
At step four, the ALJ determined that through his date last insured, Brownell had the
residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b),
limiting him to simple, routine tasks and avoiding concentrated exposure to extreme
temperatures and pulmonary irritants. (Id.). His past experience as a bending machine operator
involved medium but very heavy work as performed; his past position as a store laborer involved
medium unskilled work; and his past position as an overnight stocker involved heavy,
semiskilled or unskilled work, according to the vocational expert. (A.R. 34-35). Accordingly,
the exertional demands of Brownell’s past work exceeded his residual functional capacity, and

19

he was unable to perform past relevant work. (A.R. 33-34).
At step five, the ALJ concluded that through the date last insured, given Brownell’s age,
education, work experience, and residual functional capacity, there were jobs existing in
significant numbers in the national economy that he could have performed, even after the
vocational expert revised the job numbers. (A.R. 35). The ALJ relied on the vocational expert’s
testimony that someone with his same characteristics could have worked in representative
occupations such as a hand packager/inspector, a bench assembler, or an electrical assembler
through the date last insured. (A.R. 35-36). The ALJ considered the fact that Brownell had
challenged that testimony on the ground that it should take into account regional variances, the
recession in 2010, and the fact that some jobs are no longer unskilled. (A.R. 36). Nevertheless,
he credited Baruch’s testimony because (1) she had 20 years’ experience in vocational services;
(2) she adjusted her figures in response to the criticisms and provided a rationale for her
methodology; (3) she provided proof that the jobs she cited continue to exist in the national
economy; and (4) she explained that the data available is not perfect, and that all methods result
in estimates. (Id.). He found that there were significant numbers of jobs because “three
representative jobs were identified, with numbers exceeding 12,000 combined, and two jobs had
over 5,000 each available,” and “Ms. Baruch provided support that these jobs are actually
advertised and available, and meet the physical and mental demands of the residual functional
capacity and vocational background of the claimant.” (A.R. 37).
The ALJ accordingly found that Brownell did not suffer from a disability as of December
31, 2010, the date he was last insured, under 42 U.S.C. § 423(d) and 42 U.S.C. § 1382c(a)(3)(A).
(A.R. 37-38).
B.

Plaintiff’s Objections

Brownell raises two objections to the ALJ’s decision. He contends that (1) the ALJ’s
20

RFC finding was erroneous, and (2) that the vocational testimony at step five was unreliable.
1.

The ALJ’s RFC Finding

Brownell first contends that the ALJ’s RFC finding as of December 31, 2010, that he
could perform work at the light exertional level, was not supported by the evidence because his
knee impairment was severe as of that date and should have been included. He argues that he
was suffering from a degenerative impairment, therefore the date of onset should have been
inferred pursuant to Social Security Ruling 83-20. He further contends that the ALJ failed to
give appropriate weight to Dr. Graf’s testimony, and instead substituted his lay interpretation of
the medical evidence and the opinions of the state agency non-examining physicians, who had
insufficient evidence to evaluate the severity of his knee impairments through the date last
insured.
The claimant has the burden of providing evidence to establish how his impairments limit
his RFC. 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a
disability unless he furnishes such medical and other evidence of the existence thereof as the
[ALJ] may require.”); Pereira v. Berryhill, 2017 WL 3567515, at *7 (D. Mass. Aug. 17, 2017)
(citing Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001); Gordils v. Sec’y of Health &
Human Servs., 921 F.2d 327, 328-29 (1st Cir. 1990)).
Although Brownell complained of severe knee pain that lasted two weeks in 2007, x-rays
only revealed small degenerative spurs consistent with minimal osteoarthritis. (A.R. 564-65,
573, 580). Furthermore, he did not complain of a severe knee ailment between 2007 and 2011,
even though he had been continuously receiving care for other impairments during that period.
In 2009, Dr. Manning, his examining physician, assessed his RFC as capable of performing the
full range of light work. In August 2010, Brownell did not mention a knee impairment on his
Massachusetts disability supplement form. (A.R. 972, 981). In September 2011, nine months
21

after his date last insured, he complained of knee pain to Dr. Viereck, but a physical examination
at that time revealed normal tone, strength, sensation, and reflexes. (A.R. 674). In July 2012,
Dr. Epstein noted in a consultative examination that he had mildly tender knees and mild pain
with full range of motion, normal strength in his extremities, and a normal gait, consistent with
“early osteoarthritis.” (A.R. 650). The first indication of a severe impairment came two years
after his date last insured, in January 2013, when he was referred to an orthopedic surgeon.
(A.R. 725). In February 2013, he underwent arthroscopic surgery and was diagnosed with stage
four patellofemoral arthritis, and grade two cartilage changes, and his RFC was subsequently
assessed as sedentary. (A.R. 739, 754, 912, 914).
The ALJ correctly concluded that under the circumstances, Social Security Ruling 83-20
did not require him to consult a medical advisor. (A.R. 33-34).4 Nor was there an insufficient
quantum of evidence to support an RFC determination simply because there was no physician
testimony as to Brownell’s RFC at the time he was last insured. The RFC is not a medical
assessment, but instead is an administrative finding reserved to the Commissioner. 20 C.F.R.
§ 404.1527(d); Ramos v. Barnhart, 119 F. App’x 295, 296 (1st Cir. 2005); Manso-Pizarro v.
Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996); Gordils, 921 F.2d at 329
(holding that the ALJ is not precluded from rendering common-sense judgments about functional

capacity based on medical findings, as long as he does not overstep the bounds of a lay person’s
competence and render a medical judgment). The medical records for the period in which onset

The relevant paragraph is the following: “In some cases, it may be possible, based on the medical
evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the
first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be
determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the
particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative
law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is
information in the file indicating that additional medical evidence concerning onset is available, such evidence
should be secured before inferences are made.” Soc. Sec. Ruling 83-20, 1983 WL 31249, at *3 (Jan. 1, 1983).
4

22

is alleged are reasonably complete. They indicate that Brownell’s knee pain was not disabling at
least in 2009 and likely as late as September 2011, and show that it did not become severe until
late 2012 or early 2013. See Fischer v. Colvin, 831 F.3d 31, 36 (1st Cir. 2016) (explaining that
“[t]he ALJ did not rely upon the absence of medical evidence but rather the existence of ‘precise’
medical evidence—the normal results of the diagnostic imaging—when concluding that
Fischer’s impairments had not reached disabling severity prior to her DLI” and the “precise
medical evidence eliminated the need for the ALJ to infer that Fischer’s onset date preceded her
DLI”); Rascoe v. Comm’r of Soc. Sec., 103 F. Supp. 3d 169, 180-81 (D. Mass. 2015) (holding
that onset date of severe depression was ambiguous and required medical advisor where records
of treatment through date last insured were “sparse” and where claimant had been diagnosed
with major depressive disorder prior to the dated last insured). If Brownell’s date last insured
were sometime in 2011 or 2012, the question might be much closer. But under the
circumstances, the ALJ was permitted to infer from the silence in the relevant medical records—
which include contemporaneous records seeking disability assistance from the state—to
conclude that Brownell’s knee condition was not severe at the relevant time.
Moreover, Brownell held several jobs between 2010 and 2012 as a retail shelf stocker,
and therefore was performing work above the sedentary level through his date last insured.
(A.R. 307, 908, 958). Although he did not keep those jobs, the reasons he gave for leaving were
(1) as to a job in 2010, that it was seasonal work, and (2) as to his last job in 2012, that he could
not keep up due to his COPD or keep track of milk dates due to his memory loss. (A.R. 908; see
A.R. 972-73). (But see A.R. 1018 (Dr. Graf additionally reporting knee reasons)). Furthermore,
he was still performing substantial housework in August 2010, such as shopping for food,
planning meals, cooking, washing dishes, laundry, dusting, making beds, emptying the trash, and

23

vacuuming. (A.R. 976). The ALJ properly relied on Brownell’s lack of reported symptoms and
other activities on and around his date last insured, as there was no evidence that he had any
exertional limitations for the performance of work activities that treatment records did not reveal.
See Pereira, 2017 WL 3567515, at *7 (citing Perez v. Sec’y of Health & Human Servs., 958 F.2d
445, 446-47 (1st Cir. 1991)).
Finally, the ALJ properly accorded little weight to Dr. Graf’s 2015 evaluation, and
instead relied on non-examining physicians. See 20 C.F.R. § 404.1527(c). Dr. Graf was not a
treating physician, but was consulted for the purposes of Brownell’s disability application;
therefore the ALJ was under no obligation to give his opinion controlling weight. Id.
§ 404.1527(c)(2). Dr. Graf’s examination occurred in August 2015, years after Brownell’s date
last insured; that examination therefore could not provide direct evidence of his condition five
years earlier, and instead interpreted the records of other physicians. See Evangelista v. Sec’y of
Health & Human Servs., 826 F.2d 136, 140 (1st Cir. 1987). The ALJ noted that the date of onset
appeared only as part of a general conclusion at the end of the report, was not supported by
specific findings as to why that date was chosen, and appeared to have been typed in by
Brownell’s attorney as opposed to being arrived at by Dr. Graf, who had handwritten his answers
on the questionnaire. (A.R. 32, 1027). And Dr. Graf’s opinion that the condition was severe at
that time contradicted contemporary evidence that Brownell was not even complaining of knee
pain to his treating doctors. Taken together, that is substantial evidence supporting the ALJ’s
decision to afford that opinion little weight.
Because as substantial evidence supports the ALJ’s assessment that plaintiff’s RFC at his
date last insured was to perform work at the light exertional level, the ALJ properly refused to
apply Grid Rule 201.14 in Brownell’s favor. (A.R. 35); see 20 C.F.R. Pt. 404, Subpt. P, App. 2.

24

2.

Vocational Testimony

Brownell further contends that the vocational expert testimony was unreliable because
(1) the expert relied on the ALJ’s erroneous RFC assessment; (2) she changed her testimony;
(3) she provided national numbers instead of the numbers “in the region where the claimant lives
or in several other regions of the country”; (4) the number of jobs available at Brownell’s date
last insured were 30% below the figure she relied upon due to the recession; (5) the ALJ
improperly aggregated the figures to arrive at a significant number of jobs in the national
economy; and (6) even relying on the figures provided by the vocational expert, they were too
low to be “significant.”5
The ALJ has the burden at step five to show that work that the claimant could perform
“exists in significant numbers either in the region where [the claimant] lives or in several regions
of the country.” 42 U.S.C. § 423(d)(2)(A).
First, and as set forth above, the ALJ’s RFC finding was correctly assessed, therefore the
vocational expert’s testimony properly relied on that assessment.
Second, the mere fact that Baruch adjusted her testimony does not show that the
testimony was unreliable. She provided answers to the ALJ’s interrogatories following the
introduction of an affidavit from Brownell’s vocational expert; in that affidavit, she lowered her
estimations of the numbers for each job that Brownell could perform in response to criticism of
her earlier methodology, and explained her reasoning and the methods available to estimate the
numbers of jobs in the national economy. (A.R. 419-22). Correcting and clarifying the record,
in response to criticism, does not make an expert unreliable.

5

Brownell also contends that two of the jobs listed have changed so that they are now beyond his skill
level, because the Dictionary of Occupational Titles was last revised in 1991. Brownell’s motion to correct the
record was denied, and there is no record evidence concerning that contention.

25

Brownell’s strongest arguments are that the ALJ should not have relied on Baruch’s
numbers because they were national numbers that did not account for local variations and the
effect of the recession. The relevant statute provides that “‘work which exists in the national
economy’ means work which exists in significant numbers either in the region where [the
claimant] lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A); see also 20
C.F.R. § 404.1566 (“We consider that work exists in the national economy when it exists in
significant numbers either in the region where you live or in several other regions of the country.
It does not matter whether (1) work exists in the immediate area in which you live; (2) a specific
job vacancy exists for you; or (3) you would be hired if you applied for work.”). Baruch
conceded that she had provided national numbers, and that if she had provided the numbers for
either the region where plaintiff lived or a number of other regions they would have been lower.
(A.R. 57). She did not testify as to how much lower. In addition, she testified that because of
the recession, the number of available jobs could be as much as 30% lower, though that was a
non-industry-specific estimate. (A.R. 58). In response to those arguments, the ALJ credited
Baruch’s testimony that all the available methods for calculating jobs result in an estimate and
noted that there was no requirement that experts provide an exact figure. (A.R. 36). He
concluded: “I accept Ms. Baruch’s testimony, based upon her experience and knowledge of
labor markets and the data that is available, and find that she has provided valid estimates of the
representative jobs.” (Id.). He acknowledged that “[i]solated jobs that existed only in very
limited numbers in relatively few locations outside the region where [the claimant] live[s] are not
considered ‘work which exists in the national economy,’” but determined that, here, evidence
that three representative jobs with numbers “exceeding 12,000 combined” and two with greater
than 5,000 jobs available was “not consistent with isolated jobs in very limited numbers or few

26

locations.” (A.R. 37).
Although it is a close question, the Court finds that the ALJ was within his authority to
credit and rely on Baruch’s testimony as substantial evidence for the proposition that there were
sufficient jobs either in the region where plaintiff lived or in several other regions of the country.
It is the ALJ’s prerogative to resolve conflicts in the evidence and determine issues of credibility,
as he did here. Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); see
Purdy v. Berryhill, 887 F.3d 7, 16 (1st Cir. 2018) (“Admissibility of evidence before an ALJ
presiding over Social Security proceedings is not subject to the Federal Rules of Evidence, and
an ALJ is given express authority to assess the reliability of the evidence offered.”). Even where
reasonable minds may differ, the Court must accept the ALJ’s conclusions as long as there is
substantial evidence in the record to support it. Baruch’s testimony meets that standard here.
The ALJ therefore properly based his decision on the amended numbers provided by the
vocational expert in deciding that there were significant job numbers in the national economy,
even though there was no exact figure and the evidence could have supported a lower number of
jobs.
Accepting the testimony of the vocational expert, there were a significant number of jobs
plaintiff could have performed as of the date he was last insured. Plaintiff correctly points out
that the term “significant” is not specifically defined in the Social Security Act, and that the case
law is somewhat scattered. But the result here is within the range of those precedents.
There is no obvious problem with the ALJ’s adding the numbers of jobs together. The
regulation states: “Work exists in the national economy when there is a significant number of
jobs (in one or more occupations) having requirements which you are able to meet . . . .” 20
C.F.R. § 404.1566(b) (emphasis added). By its plain text, the regulation contemplates

27

aggregating occupations. And, because the purpose of the exercise is to find whether a claimant
could find work of any kind, there is no reason to require that there be a sufficient number of
jobs in any one type of job. Therefore, the ALJ properly aggregated the numbers provided by
the vocational expert to arrive at approximately 12,000 combined. (A.R. 37).6 See, e.g.,
Montalbo v. Colvin, 231 F. Supp. 3d 846, 863 (D. Haw. 2017) (holding that the 12,300 jobs
found by the vocational expert, including electric parts assembler (5,500 jobs); small parts
assembler (1,300 jobs); and solderer, assembler (5,000 jobs) were sufficient in light of the
discretion afforded to the ALJ in determining whether the number of jobs available is
significant).
Furthermore, even if the ALJ had not aggregated the numbers, some courts have held that
even a relatively small number of jobs can be “significant.” See Tetrault v. Astrue, 2011 WL
613701, at *6 (D. Mass. Feb. 11, 2011) (holding that “there is not a magic, sufficient number,”
and that courts have found sufficient numbers of jobs to exist in the local or regional economy at
levels as low as 200); id. (citing Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir.1987) (finding 200
jobs in region sufficient); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir.1987) (finding 174 jobs in
local area, 1,600 jobs statewide, and 80,000 jobs nationwide sufficient)); see also Critchley v.
Colvin, 2016 WL 3030211, at *8 (S.D.W. Va. May 4, 2016), rep. & rec. adopted, 2016 WL
3033763 (S.D.W. Va. May 26, 2016) (citing cases finding jobs on the order of 5,000 jobs
nationally significant). And “[c]ourts have generally held that what constitutes a ‘significant’
number is fairly minimal.” Fox v. Comm’r of Soc. Sec., 2009 WL 367628, at *20 (N.D.N.Y.
Feb. 13, 2009) (citing cases where 200 to 1500 jobs found sufficient). While there are cases to
the contrary, the question of what is “significant” in any given context is a question of fact. See

6

See supra note 3.

28

Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 527-28 (9th Cir. 2014). Therefore, the ALJ was
within his discretion to find that the number of jobs here was sufficient.
Furthermore, the ALJ properly relied on the Grid to find that Brownell was not disabled,
because his non-exertional limitations do not significantly impair his ability to perform at a given
exertional level. “Where a claimant’s impairments involve only limitations in meeting the
strength requirements of work, the Grid provides a ‘streamlined’ method” by which the
Commissioner can meet her burden to show that there are jobs in the national economy that a
claimant can perform. Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991).
If a non-strength impairment, even though considered significant, has the effect
only of reducing that occupational base marginally, the Grid remains highly
relevant and can be relied on exclusively to yield a finding as to disability. Yet
the more that occupational base is reduced by a nonexertional impairment, the
less applicable are the factual predicates underlying the Grid rules, and the greater
is the need for vocational evidence.
Id. (quoting Ortiz v. Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989)); see
also Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994). The ALJ properly found that the assessed
RFC, which included the limitation that Brownell “must avoid concentrated exposure to
temperature extremes and pulmonary irritants,” was closer to the first category of environmental
restrictions stated in SSR 85-15, which requires avoiding “excessive” exposure to pulmonary
irritants, than the second category, which applies when the claimant “can tolerate very little
noise, dust, etc.” (A.R. 29, 33, 37); SSR 85-15, 1985 WL 56857, at *8 (Jan. 1, 1985). The ALJ
could therefore properly rely on SSR 85-15 to find that “the impact on the broad world of work
would be minimal because most job environments do not involve great noise, amounts of dust,
etc.,” and therefore apply medical vocational Grid Rule 202.11. (A.R. 37). That alone supports
his finding that Brownell was not disabled, apart from any inadequacies in the vocational
testimony. (A.R. 29, 37); 20 C.F.R. Pt. 404, Subpt. P, App. 2.
29

IV.

Conclusion
For the foregoing reasons, plaintiff’s motion to reverse the decision of the Commissioner

is DENIED, and defendant’s motion to affirm the decision of the Commissioner is GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge

Dated: June 27, 2018

30