LIPPINCOTT v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 11/8/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ELAINE LIPPINCOTT, et al.,
Plaintiffs,

Civil No. 12-7175 (JBS)

v.
COMMISSIONER OF SOCIAL SECURITY,

OPINION

Defendant.

APPEARANCES:
Brian G. Smith, Esq.
Community Health Law Project, Inc.
900 Haddon Ave.
Suite 400
Collingswood, NJ 08108
Attorney for Plaintiffs Elaine Lippincott and Laurence
Lippincott
Katrina Marie Lederer, Esq.
Social Security Administration
26 Federal Plaza
New York, NY 10278
Attorney for Defendant Commissioner of Social Security

SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C. §§ 405(g)

and 1383(c) for review of the final decision of the Commissioner of
the Social Security Administration denying original Plaintiff Scott
Lippincott’s application for disability insurance benefits under
Title II of the Social Security Act (the “Act”) and supplemental
security income under Title XVI of the Act.

Elaine and Laurence

Lippincott were substituted as Plaintiffs in this matter following

their son’s death in January 2013 pursuant to a consent order signed
on April 10, 2013.1

[Docket Item 12.]

Plaintiffs challenge the decisions of Administrative Law Judge,
Frederick Timm (“the ALJ”), at steps three, four, and five of the
required five-step sequential analysis.

Plaintiffs also argue that

the ALJ failed to consider counsel’s letter brief submitted after
the administrative hearing, but before the decision.

While the

Court finds substantial evidence in the record to support the ALJ’s
determination that Lippincott failed to satisfy the requirements of
Listing 12.04 in step three, the ALJ’s conclusory statement regarding
Listings 1.04 and 11.00 is insufficient to allow judicial review.
For the reasons discussed below, the Court will vacate the
Commissioner’s final decision and remand the matter for further
proceedings.
II.

Background
A. Procedural Background
Scott Lippincott of Delmont, New Jersey, was 45 years old on

February 26, 2008 when he filed his application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
(R. 281-86.) Lippincott alleged disability based on herniated discs,
fractured vertebrae, and mental disabilities. (R. at 305.) His
1

This Opinion uses the term “Plaintiffs” to refer to both the
claimant, Scott Lippincott, and his parents, Elaine and Laurence
Lippincott.
2

claims were denied initially on September 25, 2008, and upon
reconsideration on February 11, 2009. (R. at 151-68.) Lippincott
subsequently requested a hearing on March 17, 2009. (R. at 169-70.)
The ALJ held a hearing on March 10, 2011 during which Lippincott
appeared in person and was represented by counsel. (R. at 85.)
Lippincott and his mother, Elaine Lippincott testified at this first
hearing. (R. at 83-132.) The ALJ held a supplemental hearing on
April 15, 2011 during which a vocational expert, Patricia Sasona,
testified.2

(R. at 53-82.) The ALJ’s decision suggests that

Lippincott was present and testified at the supplemental hearing as
well, but the transcript states that he was not present and does not
contain any such testimony. (R. at 19.) On June 3, 2011, the ALJ
found that Lippincott was not disabled and denied his application
for Social Security benefits. (R. at 19-29.) The Appeals Council
denied Lippincott’s request for review on September 14, 2012. (R.

2

Plaintiffs note that the vocational expert appeared by telephone,
but acknowledge that the transcript does not explicitly address the
manner of her appearance. (Pl. Br. [Docket Item 13] at 13.) Also,
the correct spelling of the vocational expert’s name remains unclear.
The administrative hearing transcript includes two spellings:
“Patricia Secerna” and “Patricia Ceserna,” while Plaintiffs’ briefing
and the ALJ decision contains a third. (R. at 19, 61.) The Court
adopts the spelling in Plaintiffs’ briefing and the ALJ’s decision:
“Patricia Sasona.” (R. at 19.)
3

at 1-6.) Plaintiffs filed this action, and the parties completed
briefing on June 21, 2013.
B. Medical History
The record in this case is voluminous and contains medical
evidence from various sources. Neither Plaintiffs, nor Defendant
provide an overview of Lippincott’s medical history. The Court notes
the relevance of the following medical evidence because it provided
the basis for the ALJ’s determination.
1. Dr. Zechowy
Upon referral by his primary care physician, Dr. William
Hingston, Lippincott underwent a neurological evaluation in September
2004 performed by Dr. Allen C. Zechowy. (R. at 554.) At the time,
Lippincott reported being assaulted in May 2004 and being struck on
the head with a shotgun. (Id.) Since the incident, Lippincott stated
that he became very irritable quickly and suffered panic attacks.
(Id.) The clinical impression was concussion, post-concussion
syndrome, rule/out seizure disorder vs. post-traumatic sleep
disturbances, and personality change as a result of head trauma. (R.
at 555.) An abnormal EEG from this same period revealed a single slow
sharp diffuse paroxysmal discharge compatible with cerebral cortical
irritability. (R. at 579.)
2. Cooper University Hospital
Records from Cooper University Hospital indicate that Lippincott
4

reported to the emergency department in May 2006 for a laceration
under his right eye after being struck with a gun. (R. at 524.)

He

declined to be evaluated. (R. at 520.) Additional records from the
Cooper University Hospital document an inpatient stay from December
1, 2008 to December 4, 2008 for acute bronchitis. (R. at 665-66.)
A physical examination showed no spinal tenderness and no neck
rigidity. (R. at 665.)
3. New Jersey Department of Corrections
The record includes treatment notes from the New Jersey
Department of Corrections from two periods: 1) April 2005 to February
2008; and 2) August 2010 to February 2011. These records document
treatment for a variety of conditions including insomnia (chronic,
secondary to years of substance abuse), mood disorder, personality
disorder NOS, polysubstance dependence, seizure disorder, blunt head
trauma, hepatitis C, herniated cervical disc, arthritis, back pain,
herniated lumbosacral disc, MRSA infection, dermatitis, glucose
intolerance, dyslipidemia, smoker, obesity, hyperopia, and
presbyopia. (R. at 414.)
Notes from an office visit on November 23, 2010 indicate that
Lippincott reported numbness and tingling in his legs. (R. at 1990.)
He was wheeled into the office in a wheelchair, but had no problem
removing his shoes and socks. (R. at 1991.) Notes from another

5

office visit on November 8, 2010 document a normal physical
examination with no acute distress. (R. at 2003-04.)
4. Kennedy Health System Behavioral Health Services
Records from Kennedy Health System Behavioral Health Services
indicate that Lippincott was evaluated in April 2008 and reported
feeling depressed and anxious because he had been off his medications.
(R. at 536.) He also reported being shot in the back of the head in
2004. (Id.) He was diagnosed with depression disorder NOS and PTSD
based on his reported history. (R. at 537.) He was assigned a GAF
of 56. (Id.)
Additional records from Kennedy Behavioral Health indicate that
Lippincott attended an intensive outpatient treatment program from
June 2008 to August 2008. (R. at 1860.) Lippincott was discharged
upon completion of the program with diagnoses of major depressive
disorder (recurrent), PTSD, rule out cocaine abuse, and a GAF of 50.
(R. at 1862.) Upon discharge, it was recommended that Lippincott
follow up with a bipolar/depression support group. (Id.)
5. Steiner Behavioral Health
Lippincott also received treatment at Steiner Behavioral Health
from July through September 2009. (R. at 1937-66.) A comprehensive
intake assessment completed on July 10, 2009 indicates diagnoses of
mood disorder NOS and PTSD with a GAF of 50. (R. at 1950.) The
assessment identified strengths of self-care skills, language skills,
6

and past work history. (R. at 1961.) After failing to follow up with
the program, Lippincott was discharged with the same diagnoses. (R.
at 1937.)
6. Dr. Rosenberg
In addition to the behavioral health treatment above, the record
contains a psychiatric evaluation from Dr. Leon I. Rosenberg at the
Center for Emotional Fitness in Cherry Hill, NJ from April 2008. (R.
at 587-89.) This evaluation notes that Lippincott was seen on an
emergency basis after being released from Southern State Correctional
Facility and being without medications. (R. at 587.) Lippincott
received initial diagnoses of major depressive episode, rule out PTSD,
and a GAF of 55. (R. at 589.) The record only contains one follow-up
note that Lippincott asked to continue his medications. (R. at 590.)
7. MRIs of Back and Spine
The record contains numerous MRIs of Lippincott’s back and spine
spanning a period from April 2003 to July 2009. A MRI of the cervical
spine from April 2003 revealed moderately large right sided post
lateral disc herniation at C5-C6 with narrowing of the neuroforamen
associated with some slight osteophyte. (R. at 559-60.) This MRI
also revealed some uncinated process hypertrophy with minimal
encroachment on the neural foramina on the left side at C5-C6 and
bilaterally at C6-7. (Id.)

7

A MRI of the cervical spine from July 2005 revealed C5-C6
right-sided bony ridging with an associated right-sided disc
protrusion/herniation with flattening of the right side of the spinal
cord resulting in mild central canal stenosis.

(R. at 1857.)

This

MRI further revealed mild narrowing of the right neural foramina,
mild bulging disc T2-T3, bulging disc and degenerative end plate
ridging, C6-C7, and no disc herniation or spinal stenosis. (Id.)
A MRI of the lumbosacral spine from April 2008 revealed L5-S1
right lateral recess disc extrusion impinging the descending right
S1 nerve root and mild foraminal narrowing. (R. at 576.) A MRI of
the cervical spine from this same period revealed C5-C6 degenerative
disc disease with osteophytic ridging and uncovertebral joint
hypertrophy resulting in foraminal narrowing and indentation of the
ventral thecal sac. (R. at 578.)
Lippincott received a L5-S1 lumbar epidural steroid injection
on September 12, 2008 at the Cooper Surgery Center. (R. at 608-11.)
A cervical MRI from July 2009 resulted in a clinical impression
of degenerative disc disease C5-6 with considerable right foraminal
stenosis and mild bilateral foraminal stenosis at C6-7.3

(R. at

1925-26.) A lumbar MRI from this same period resulted in a clinical
impression of large right foraminal disc herniation L5-S1 with
3

It is important to note that the ALJ refers to all of the above MRIs
in his decision except for these MRIs completed in July 2009. (R.
at 27.)
8

associated findings of degenerative disc disease, resulting in right
foraminal stenosis but only minimal central stenosis. (R. at 1926.)
8. State Consultative Exams
Lippincott was examined by state examiner, T.J.
Citta-Pietrolungo, on August 20, 2008. (R. 591-94.) Lippincott
reported chronic neck pain, chronic back pain with pain radiating
into the thighs, and a history of traumatic brain injury and rib
fractures. (R. at 591.) Lippincott’s history revealed degenerative
disc disease with right S1 disc narrowing and disc protrusion. (Id.)
He suffered a gunshot wound to the head on March 9, 2004 with
posttraumatic seizures, which resolved after one year. (Id.)
The examiner concluded that Lippincott had a history of
polysubstance abuse now in remission and a history of gunshot wound
to the posterior occiput resulting in diminished coordination and
balance. (R. at 592.) Lippincott also had a disc herniation right
L5-S1 which resulted in radicular symptoms into the right lower
extremity. (Id.) He also suffered from degenerative disc disease
in the cervical and lumbar spine causing chronic pain. (Id.) He was
limited for over exertional activities, higher level balance and
coordination activities. (Id.) He required cues and list making for
reminders of daily events. (Id.)
Lippincott underwent a consultative exam in September 2008 with
Ronald J. Karpf, Ph.D. (R. at 595-99.) He was diagnosed with major
9

depressive disorder (recurrent, moderate), cognitive disorder NOS,
and cannabis dependence (sustained full remission). (R. at 599.) An
assessment of Lippincott’s activities of daily living revealed that
Lippincott did some shopping and light cooking himself, but he did
not do any cleaning. (R. at 597.) He could not handle and budget
money himself and could not maintain a residence. (Id.) However,
he could take public transportation and drive a car. (Id.) Personal
grooming and hygiene were not problematic. (Id.) Lippincott
reported problems comprehending and following instructions, but he
did not manifest this in the interview. (Id.)
A state Residual Functional Capacity Assessment, completed
September 9, 2008 by Melvin Golish, found that Lippincott could lift
at the light exertional level and stand or walk for at least two hours
in an eight hour work day.

(R. at 601.)

He was limited in feeling

in his right index finger. (R. at 603.) He must avoid concentrated
exposure to extreme cold, heat, wetness, humidity and hazards. (R.
at 604.)

A state Mental Residual Functional Assessment, completed

September 23, 2008 by Jane Curran, found no more than moderate
limitations in any area of functioning. (R. at 626-28.)
A state Psychiatric Review Technique form, completed September
23, 2008 by Jane Curran, also found that Lippincott was no more than
moderately limited in any of the areas of functional limitation. (R.
at 612-25.)
10

9. Dr. Hingston
Dr. Hingston was Lippincott’s primary care physician before and
after his incarceration. Notes from Dr. Hingston include a CT scan
of Lippincott’s brain, completed July 29, 2009 by Dr. James H. Jacoby.
(R. at 1924.) This CT scan revealed left parietal craniotomy with
findings of encephalomalacia in the left parietal region which
apparently is secondary to old gunshot wound. (Id.) No other focal
areas of altered tissue density or space occupying areas of mass effect
were observed. (Id.) The basal cisterns and ventricular systems
were normal. (Id.) The posterior fossa was unremarkable. (Id.)
There was no evidence of midline shift or extra-axial fluid
collection. (Id.) The clinical impression was left parietal
craniotomy defect with underlying area of encephalomalacia. (Id.)
Also included in records from Dr. Hingston is a
medical-vocational assessment for the Camden County Board of Social
Services completed on June 30, 2008. (R. at 1932-36.) Dr. Hingston
completed this assessment form and verified diagnoses of herniation
L5-S1, C5-C6, brain abnormality, hepatitis C, and arthritis. (R. at
1933.) Dr. Hingston also indicated that Lippincott was ambulatory,
but had limitations in standing, walking, climbing, stooping, bending
and lifting. (Id.) Dr. Hingston opined that Lippincott would be
disabled from June 2008 through June 2009. (R. at 1934.)

11

10. St. Francis Medical Center
Lippincott was admitted to St. Francis Medical Center on August
19, 2010 for right-sided weakness, rule out CVA. (R. at 1968.)
Lippincott was seen by a neurologist. (Id.) He had neuro checks done
and CT scan which revealed no acute infarction. (Id.) The discharge
diagnoses from August 24, 2010 were depression, seizure disorder,
history of CVA, and hyperlipidemia. (Id.)

A MRI of the brain showed

chronic infarction, no acute infarction. (Id.) Where the record
addresses Lippincott’s seizure disorder, it states “no new episode.”4
(R. at 1969.)
C. Administrative Law Judge’s Findings and Determinations
In his written decision, the ALJ determined that Lippincott was
not disabled. (R. at 19.) The decision outlines the required
five-step analysis the ALJ followed. In the first step, the ALJ found
that Lippincott had not engaged in substantial gainful activity since
the alleged onset of disability.

(R. at 21.) In the second step,

the ALJ found the following severe impairments under 20 C.F.R.
404.1520(c) and 416.920(c): seizure disorder and mild left lower
extremity weakness status post gunshot wound, HNPs cervical and lumbar
spine, Hepatitis C, cognitive disorder NOS, major depressive
disorder, and anti-social behavior disorder. (Id.) Further, the ALJ
4

The ALJ’s decision refers to this hospitalization as evidence that
“[c]laimant suffered a seizure on August 19, 2010 but reported not
being on his medication.” (R. at 26.)
12

found a non-severe impairment of polysubstance abuse in full
remission. (Id.) In the third step, the ALJ found Lippincott did
not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926). (R. at 14–15.)
Specifically, regarding Lippincott’s mental impairments, the ALJ
concluded,
The claimant’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of
listing 12.04. In making this finding, the undersigned has
considered whether the “paragraph B” criteria are satisfied .
. . . In activities of daily living, the claimant has moderate
restriction . . . . In social functioning, the claimant has
moderate difficulties.
With regard to concentration,
persistence or pace, the claimant had moderate difficulties.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration. Because the claimant’s mental impairments do not
cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation, each of
extended duration, the “paragraph B” criteria are not
satisfied.
The undersigned has also considered whether the “paragraph C”
criteria are satisfied. In this case, the evidence fails to
establish the presence of the “paragraph C” criteria.
(R. at 22.) Further, regarding Lippincott’s physical conditions, the
ALJ concluded, “The claimant’s back disorder has been considered under
listing 1.04 and alleged neurological impairments have been
considered under the listings in 11.00 and found not to meet or equal
a listing.” (Id.)
13

Next, the ALJ evaluated Lippincott’s residual functional
capacity, or the activity that Lippincott was still capable of
performing despite the above impairments.

The ALJ determined that

Lippincott had the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) with the
following limitations: he could never climb
ladders/ropes/scaffolds, he could perform basic balancing
frequently and other postural maneuvers occasionally, he had no
feeling in his right index finger, he must avoid concentrated
exposure to extreme environments (e.g. heat, cold, humidity, loud
noises) and environmental irritants, and he must avoid exposure to
hazards (e.g. heights, moving machinery, sharp edges).

(R. at 23.)

The ALJ also determined that Lippincott was “further limited to
simple, routine tasks and to goal-oriented rather than
production-paced tasks, with no significant interaction with the
general public and no food contact.”

(Id.)

In step four, the ALJ determined that Lippincott was unable to
perform any past relevant work under 20 C.F.R. §§ 404.1565, 416.965
as a route truck driver, glazier, and assistant manager of a liquor
store. (R. at 28.) Finally, in step five, based on Lippincott’s age,
education, work experience, and residual functional capacity, the
ALJ determined that Lippincott could perform jobs that exist in

14

significant numbers in the national economy. (Id.) As such, the ALJ
determined that Lippincott was not disabled. (R. at 29.)
III.

Discussion
A. Standard of Review
This Court reviews the Commissioner's decision pursuant to 42

U.S.C. § 405(g); Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
The Court's review is deferential to the Commissioner's decision,
and the Court must uphold the Commissioner's factual findings where
they are supported by “substantial evidence.”

42 U.S.C. § 405(g);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham
v. Comm'r of Soc. Sec., No. 11–2633, 2012 WL 6200379, at *2 (3d Cir.
Dec. 13, 2012).

Substantial evidence is defined as “more than a mere

scintilla,” meaning “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Richardson v.

Perales, 402 U.S. 389, 400 (1971); Hagans v. Comm'r of Soc. Sec.,
694 F.3d 287, 292 (3d Cir. 2012) (using the same language as
Richardson).

Therefore, if the ALJ's findings of fact are supported

by substantial evidence, the reviewing court is bound by those
findings, whether or not it would have made the same determination.
Fargnoli, 247 F.3d at 38.
The ALJ must set out a specific factual basis for each finding.
Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974).

“When a

conflict in the evidence exists, the ALJ may choose whom to credit
15

but cannot reject evidence for no reason or for the wrong reason.
The ALJ must consider all the evidence and give some reason for
discounting the evidence she rejects.”

Plummer v. Apfel, 186 F.3d

422, 429 (3d Cir. 1999) (citations omitted).

While a court should

not “expect the ALJ to make reference to every relevant treatment
note in a case,” Fargnoli, 247 F.3d at 42, “[t]he ALJ's failure to
address evidence in direct conflict with his/her findings . . . is
erroneous.”

Landeta v. Comm'r of Soc. Sec., 191 Fed. Appx. 105, 110

(3d Cir. 2006).
B. Legal Standard for Determination of Disability
Under the Social Security Act, a “disability” is defined, for
the purposes of a plaintiff's entitlement to benefits, as the
inability “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous period
of not less than twelve months.”
Plummer, 186 F.3d at 427.

42 U.S.C. § 1382c(a)(3)(A);

A claimant is considered unable to engage

in any substantial gainful activity “only if his physical or mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy . .
. .”

42 U.S.C. § 1382c(a)(3)(B).
16

The disability determination involves a five-step sequential
process:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity
. . . . If a claimant is found to be engaged in substantial
activity, the disability claim will be denied . . . .
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment . . . . If the
claimant fails to show that her impairments are “severe”, she
is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence
of the claimant's impairment to a list of impairments presumed
severe enough to preclude any gainful work . . . . If a claimant
does not suffer from a listed impairment or its equivalent, the
analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant
retains the residual functional capacity to perform her past
relevant work . . . . If the claimant is unable to resume her
former occupation, the evaluation moves to the final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of
performing other available work in order to deny a claim of
disability . . . . The ALJ must show there are other jobs
existing in significant numbers in the national economy which
the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual
functional capacity. The ALJ must analyze the cumulative effect
of all the claimant's impairments in determining whether she
is capable of performing work and is not disabled . . . .
Plummer, 186 F.3d at 428 (citations omitted).
On appeal, Plaintiffs challenge the ALJ's decisions at steps
three, four, and five.

Plaintiffs also argue that the ALJ failed

to consider Lippincott’s counsel’s letter brief submitted after the

17

administrative hearing, but before the decision.

The Court will

analyze each issue in turn.
IV.

Analysis
Plaintiffs allege that the ALJ made eight errors in determining

Lippincott is not disabled: (1) the ALJ improperly evaluated
Lippincott’s condition under Listing 12.04, (2) the ALJ improperly
evaluated Lippincott’s condition under Listing 1.04, (3) the ALJ
improperly evaluated Lippincott’s condition under Listing 11.00, (4)
the ALJ improperly allowed the vocational expert to testify by
telephone, (5) the ALJ improperly found that the vocational expert
was qualified, (6) the vocational expert’s testimony was not in
accord with the ALJ’s hypothetical, (7) the ALJ’s evaluation of
Lippincott’s residual functional capacity is not supported by
substantial evidence, and (8) the ALJ failed to consider counsel’s
letter brief.
For the following reasons, the Court finds that there is
substantial evidence in the record to support the ALJ’s findings that
Lippincott did not meet the listed impairment requirements for
Listing 12.04, but that the ALJ failed to adequately explain his
determination that Lippincott did not meet the requirements for
Listings 1.04 and 11.00.

Therefore, the Court will vacate the

Commissioner’s decision and remand for further proceedings to
determine and explain, based on the evidence in the record and any
18

additional evidence and testimony, whether Lippincott’s impairments
met the Commissioner’s requirements for Listing 1.04 and 11.00.
A.

Step Three: Listed Impairments
1.

Generally

In Sullivan v. Zebley, 493 U.S. 521, 532 (1986), the Supreme
Court explained the implications of a finding of disability at step
three.

The level of severity required to meet or equal a listed

impairment is higher than that needed to meet or equal the statutory
standard for disability.

Id. at 532.

That is, the listings define

impairments which would prevent an adult, regardless of his age,
education, or work experience, from performing not just substantial
gainful activity, but any gainful activity.

Id.; 20 C.F.R. §

416.925(a) (stating that the purpose of the listings is to describe
impairments “severe enough to prevent a person from doing any gainful
activity”); S.S.R. 86–8 (stating that the listings define “medical
conditions which ordinarily prevent an individual from engaging in
any gainful activity”).

Hence, the listings operate as a

presumption of disability.

Zebley, 493 U.S. at 532.

If an adult

is not working and possesses an impairment which matches or equals
a listed impairment, that individual is conclusively presumed to be
disabled and awarded benefits without further inquiry.

Bowen v.

Yuckert, 482 U.S. 137, 141 (1987); Petition of Sullivan, 904 F.2d
826, 845 (3d Cir. 1990) (holding that a finding of disability at step
19

three implicitly includes a finding that the symptoms of the disease
have progressed to a degree that objectively precludes any gainful
work).

However, if the impairment is not one that is conclusively

presumed to be disabling, then the evaluation proceeds to the fourth
step.

Yuckert, 482 U.S. at 141; Bowen v. City of New York, 476 U.S.

467, 471 (1986) (stating “[i]f a person claimant's condition meets
or equals the listed impairments, he is conclusively presumed to be
disabled and entitled to benefits”; if not, “the process moves to
the fourth step”).
The listings are set at a very high level of severity, so that
anyone so impaired is presumed disabled.

Zebley, 493 U.S. at 521.

An adult claimant must present evidence that an unlisted impairment,
or combination of impairments, equals the severity of all the
criteria for a listed impairment to establish equivalence.
v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
adequately explain findings on equivalence.

Williams

The ALJ must

Marcia v. Sullivan, 900

F.2d 172 (9th Cir. 1990).
At step three, the burden is on the plaintiff to prove that his
impairment equals one listed in Appendix 1.

Bowen, 482 U.S at 146;

Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir.
2000).

The plaintiff must put forth more than just subjective

complaints of pain because subjective complaints “do not in
themselves constitute disability,” Green v. Schweiker, 749 F.2d
20

1066, 1070 (3d Cir. 1984), unless accompanied by medical signs and
laboratory findings which show that the claimant has a medical
impairment which could reasonably be expected to produce the pain
or other symptoms alleged.
1195 (3d Cir. 1971).

Bittel v. Richardson, 441 F.2d 11983,

Nonetheless, the ALJ should give serious

consideration to the claimant's subjective complaints of pain, Welch
v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), evaluating the claims
of pain and the severity of that pain, in light of the plaintiff's
credibility and the medical findings.

20 C.F.R. § 404.1529(c)(1);

Brown v. Schweiker, 562 F.Supp. 284, 287 (E.D. Pa. 1983) (quoting
Bolton v. Secretary of HHS, 504 F.Supp. 288 (E.D.N.Y. 1980)).
Although it is the plaintiff's burden to present evidence that
the impairment meets the listed requirements, the ALJ still has the
duty to support his determinations by discussing the evidence.
Burnett, 220 F.3d at 120.

The ALJ cannot state summarily that an

impairment does not meet the listing, and it is error to not discuss
the evidence or reasons at step three.
F.3d 1007, 1010 (10th Cir. 1996).

Id.; Clifton v. Chater, 79

The ALJ need not “use particular

language or adhere to a particular format in conducting his
analysis,” but the ALJ must provide “sufficient development of the
record and explanation of findings to permit meaningful review.”
Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004); Diaz v. Comm'r
of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
21

2.

As Applied to Mr. Lippincott

The ALJ determined that Lippincott suffered from the following
severe impairments under 20 C.F.R. 404.1520(c) and 416.920(c):
seizure disorder and mild left lower extremity weakness status post
gunshot wound, HNPs cervical and lumbar spine, Hepatitis C, cognitive
disorder NOS, major depressive disorder, and anti-social behavior
disorder. (R. at 21.) However, the ALJ found that Lippincott lacked
an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, 416.926).

(Id.)

The ALJ’s decision addresses Lippincott’s mental impairments
under Listing 12.04, back condition under listing 1.04, and
neurological impairments under Listing 11.00. (R. at 22.) The ALJ’s
decision discusses Lippincott’s mental impairments under each subpart
of Listing 12.04. After noting the “paragraph B” criteria under
Listing 12.04, the ALJ’s discussion consists of the following
paragraphs:
In activities of daily living, the claimant has moderate
restriction. During a consultative examination the claimant
reported doing some shopping himself, he does light cooking but
does not do any cleaning. He cannot handle and budget money
himself. He cannot maintain a residence by himself. He can take
public transportation and also drives a car. Personal grooming
and hygiene were non-problematic. The patient reports he has
problems comprehending and following instructions but he could
not manifest any of this in the interview. In the interview,
22

he could focus on the topic of conversation (Exhibit 7F, page
3).
In social functioning, the claimant has moderate difficulties
(Exhibits 10F and 11F).
With regard to concentration, persistence or pace, the claimant
has moderate difficulties (Exhibits 10F and 11F).
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration.
Because the claimant’s mental impairments do not cause at least
two “marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation, each of extended
duration, the “paragraph B” criteria are not satisfied.
The undersigned has also considered whether the “paragraph C”
criteria are satisfied. In this case, the evidence fails to
establish the presence of the “paragraph C” criteria.
(Id.)
The ALJ’s discussion regarding Lippincott’s back and
neurological impairments is less comprehensive and consists of a
single conclusory sentence: “The claimant’s back disorder has been
considered under listing 1.04 and alleged neurological impairments
have been considered under the listings in 11.00 and found not to
meet or equal a listing.” (Id.)
The Court must consider whether substantial evidence in the
record supports the ALJ’s findings.
3.

Listing 12.04

Listing 12.04 provides the listing criteria for affective
disorders.

A claimant will meet the listing only when the
23

requirements of both “paragraph A” and “paragraph B” are satisfied,
or when the requirements in “paragraph C” are satisfied.
§ 404, Subpt. P, App. 1, Sec. 12.04.

20 C.F.R.

A claimant will satisfy the

paragraph A criteria through medically documented persistence of
depressive syndrome, manic syndrome, or bipolar syndrome, each of
which is characterized by its own list of symptoms.
Subpt. P, App. 1, Sec. 12.04A.

20 C.F.R. § 404,

To satisfy the paragraph B criteria,

a claimant’s mental impairments must result in at least two of the
following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3.
Marked
difficulties
in
maintaining
concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. § 404, Subpt. P, App. 1, Sec. 12.04B.

Activities of daily

living include “cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.”
App. 1, Sec. 12.00C(1).

20 C.F.R. § 404, Subpt. P,

Analysis of a claimant’s activities of daily

living involves an assessment of the “quality of these activities
by their independence, appropriateness, effectiveness, and
sustainability,” and the extent to which a claimant is “capable of

24

initiating and participating in activities independent of
supervision or direction.”

Id.

The regulations accompanying Listing 12.00 for mental disorders
explain that the criteria in paragraphs B and C describe
impairment-related functional limitations that would prevent any
gainful activity.

20 C.F.R. § 404, Subpt. P, App. 1, Sec. 12.00.

The regulations define “marked” as “more than moderate but less than
extreme.

A marked limitation may arise when several activities or

functions are impaired, or even when only one is impaired, as long
as the degree of limitation is such as to interfere seriously with
your ability to function independently, appropriately, effectively,
and on a sustained basis.”

Id.

The regulations further define

“marked” in the context of activities of daily living:
We do not define “marked” by a specific number of different
activities of daily living in which functioning is impaired,
but by the nature and overall degree of interference with
function. For example, if you do a wide range of activities of
daily living, we may still find that you have a marked limitation
in your daily activities if you have serious difficulty
performing them without direct supervision, or in a suitable
manner, or on a consistent, useful, routine basis, or without
undue interruptions or distractions.
Id.
Paragraph C requires a medically documented history of a chronic
affective disorder of at least two years' duration, as well as, one
of the following:

25

1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years' inability to function
outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
20 C.F.R. § 404, Subpt. P, App. 1, Sec. 12.04C.
Plaintiffs argue that the ALJ improperly evaluated Lippincott’s
condition under Listing 12.04.

(Pl. Br. at 7.)

Plaintiffs note

that it appears the ALJ determined that Lippincott’s condition
satisfied the paragraph A criteria because the ALJ, at step two, made
a formal finding that

Lippincott suffered from a major depressive

disorder and did not discuss the requirements of paragraph A under
Listing 12.04.

(Id.)

Plaintiffs therefore emphasize that the ALJ

improperly evaluated Lippincott’s condition under paragraph B of the
listing.

(Id. at 8.)

Plaintiffs reject the ALJ’s analysis of

Lippincott’s daily functioning under the first criteria of paragraph
B: marked restriction of activities of daily living.

(Id.)

Plaintiffs argue that the ALJ erred in relying solely on Lippincott’s
statements during a state psychological consultative examination
that he could do some shopping, light cooking, grooming, and hygiene,
but he could not handle money and maintain a residence.

Plaintiffs

further argue that the ALJ failed to consider the testimony of
Lippincott’s mother verifying that he lived in a trailer on her
26

property, and at times experienced substantial limitations in
functioning.

(Id. at 8-9.)

Moreover, Plaintiffs argue that the ALJ’s analysis of
Lippincott’s social functioning under the second criteria of
paragraph B was “even more cursory” because the ALJ only cites to
two exhibits completed by a non-treating, non-examining medical
consultant on September 23, 2008: a Psychiatric Review Technique Form
and a Mental Residual Functional Capacity Assessment.

(Id. at 10.)

Plaintiffs note that the ALJ simply adopted the conclusions from the
Psychiatric Review Technique Form even though the form provides no
explanation for the bases of those conclusions.

(Id.)

Plaintiffs

also argue that these forms were completed two years before the ALJ’s
decision and Lippincott subsequently suffered a stroke in August
2010, in addition to his seizure disorder and cognitive disorder.
(Id.)
Substantial evidence in the record supports the ALJ’s
determination that Lippincott had only a moderate restriction in
activities of daily living under paragraph B of Listing 12.04.

The

ALJ cites to a state psychological consultative examination dated
September 8, 2009.

(R. at 595-99.)

The ALJ appears to rely

exclusively on a quotation from the examination report:
During a consultative examination the claimant reported doing
some shopping himself, he does light cooking but does not do
any cleaning. He cannot handle and budget money himself. He
27

cannot maintain a residence by himself. He can take public
transportation and also drives a car. Personal grooming and
hygiene were non-problematic. The patient reports he has
problems comprehending and following instructions but he could
not manifest any of this in the interview. In the interview,
he could focus on the topic of conversation.
(R. at 22.)

This report suggests that Lippincott could perform

certain activities of daily living such as shopping, cooking,
driving, and personal grooming and hygiene.

It also discusses

limitations such as an inability to manage money and maintain a
residence by himself.

While the ALJ provides no explanation for why

these statements support a finding of only “moderate,” as opposed
to “marked,” restrictions in activities of daily living, the
regulations are clear that a “marked” restriction is not determined
by “a specific number of different activities of daily living in which
functioning is impaired, but by the nature and overall degree of
interference with function.”
12.00.

20 C.F.R. § 404, Subpt. P, App. 1, Sec.

The consultative examination supports a finding that Mr.

Lippincott’s limitations did not severely restrict his overall
function.

Further, Plaintiff fails to identify evidence in the

record to contradict the ALJ’s determination.

Plaintiff refers only

to the testimony of Lippincott’s mother who testified at the
administrative hearing that Lippincott’s mental capacity was
sporadic, at times causing no problems, at other times causing
substantial limitations.

(R. at 124, 127.)
28

This testimony makes

no reference to activities of daily living.

As such, the Court finds

that substantial evidence supports the ALJ’s determination.
Similarly, substantial evidence in the record supports the
ALJ’s determination that Lippincott had only moderate difficulties
in social functioning and with regard to concentration, persistence
or pace.

For each of these paragraph B criteria, the ALJ supports

his conclusion with reference to two exhibits: a Psychiatric Review
Technique Form and a Mental Residual Functional Capacity Assessment.
(R. at 22.)

Both were completed by a non-treating psychologist, Jane

Curran, on September 23, 2008, and both fully support the ALJ’s
determination.

(R. at 622, 627.)

Moreover, Plaintiffs again fail

to identify countervailing evidence in the record.

Plaintiffs note

that the forms relied upon by the ALJ were created over two years
before the ALJ’s decision, and Lippincott suffered a stroke in the
interim in August 2010.

(Pl. Br. at 10; R. at 1968.)

The portion

of the record cited by Plaintiff as evidence that Lippincott suffered
a stroke states, “The patient was admitted to the hospital for
right-sided weakness, rule out CVA . . . The patient had an MRI of
the brain which showed chronic infarction, no acute infarction.”
(R. at 1968).

The ALJ referred to this event in his discussion of

Lippincott’s residual functional capacity and only found it to be
evidence of a seizure when Lippincott was off his medications.
at 26.)

(R.

While it is beyond this Court’s expertise to parse the
29

meaning of this document, it is at least clear that this document
does not discuss any impairments Lippincott experienced following
his hospitalization in August 2010.

As such, there are no grounds

to find that the ALJ’s decision is not supported by substantial
evidence.
Further, Plaintiffs fail to identify any other evidence in the
record indicating the impact of Lippincott’s neurological conditions
on his social functioning or concentration, persistence, or pace.
Plaintiffs argue that Lippincott suffered from a seizure disorder
and a cognitive disorder and state, “It would be surprising if a
person’s mental functions did not deteriorate in over two years with
those conditions.”

(Pl. Br. at 10.)

The Court is unpersuaded by

this argument because Plaintiffs fail to provide any citation to the
record for support.

Plaintiffs maintain the burden at step three,

and it is clear Plaintiffs have not satisfied this burden with respect
to Listing 12.04.

Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92

(3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d
Cir. 2004)).
Plaintiffs do not challenge the ALJ’s decision that Lippincott
failed to satisfy the final criteria of paragraph B regarding
episodes of decompensation or any criteria of paragraph C.
Accordingly, the Court finds substantial evidence in the record to

30

support the ALJ’s determination that Lippincott’s impairments did
not satisfy the criteria for Listing 12.04.
4.

Listings 1.04 and 11.00

Listing 1.04 provides the criteria for disorders of the spine
resulting in compromise of a nerve root or the spinal cord.
§ 404, Subpt. P, App. 1, Sec. 1.04.

20 C.F.R.

The claimant must show:

A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively, as defined
in 1.00B2b.
Id.

Listing 11.00 provides the criteria for neurological disorders,

including convulsive epilepsy (11.02), nonconvulsive epilepsy
(11.03), and central nervous system vascular accident (11.04).

20

C.F.R. § 404, Subpt. P, App. 1, Sec. 11.00.
The ALJ’s decision contains a single sentence regarding these
listings: “The claimant’s back disorder has been considered under
listing 1.04 and alleged neurological impairments have been
31

considered under the listings in 11.00 and found not to meet or equal
a listing.”

(R. at 22.)

Plaintiffs argue that the ALJ improperly evaluated Lippincott’s
condition under Listings 1.04 and 11.00.

Regarding Listing 1.04,

Plaintiffs note that the ALJ, at step two, made a formal finding that
Lippincott had a severe impairment of “HNP’s cervical and lumbar
spine.”

(Pl. Br. at 11; R. at 21.)

Plaintiffs also refer to

numerous MRIs in the record showing “compromise of a nerve root.”
(Pl. Br. at 11-12.)

Plaintiffs further note the testimony of

Lippincott’s mother discussing his problems standing, walking,
climbing stairs, falling, and needing to lie down.

(Pl. Br. at 11.)

Regarding Listing 11.00, Plaintiffs note that the ALJ, at step two,
determined that Lippincott had a seizure disorder, mild left leg
weakness, and a cognitive disorder.

(Id. at 13.)

Plaintiffs also

note that Lippincott suffered from “a CVA or cerbrovascular [sic]
accident, also known as stroke, in August of 2010,” and concludes,
“[a]ll of these conditions are neurological disorders.”

(Id.)

Regardless of whether these conditions would satisfy the
criteria for Listings 1.04 and 11.00, the ALJ’s conclusory statement
does not allow meaningful review.

See Jones v. Barnhart, 364 F.3d

501, 505 (3d Cir. 2004); see also Diaz v. Comm'r of Soc. Sec., 577
F.3d 500, 504 (3d Cir. 2009).

The Court recognizes that the ALJ need

not use particular language, but at minimum, the ALJ’s decision must
32

include “sufficient development of the record and explanation of
findings.”

Jones, 364 F.3d at 505.

In light of the many types of

spinal and neurological symptoms and diagnoses in the record, the
ALJ’s single conclusory sentence with respect to Listings 1.04 and
11.00 fails to meet this standard and requires remand for explanation
of the ALJ’s determination that Lippincott’s impairments do not meet
or equal Listings 1.04 or 11.00.
It is recognized that, having decided to remand the case at step
three, the Court has no obligation to reach Plaintiffs’ other
arguments at steps four and five.

Vivaritas v. Comm'r of Soc. Sec.,

264 F. App'x 155, 156-57 (3d Cir. 2008) (“Inasmuch as further
development of the record and the ALJ's decision based on that record
may make consideration of steps four and five of the five-step
sequential evaluation procedure unnecessary, we do not reach
[plaintiff’s] other challenges to the ALJ's decision.”).
Nonetheless, as counsel have fully briefed the remaining issues and
the Court has also considered them, we will address them for the sake
of completeness and to avoid the prospect of serial remands.

Also,

in the event that a second rationale for remand were found now, it
could be addressed by the ALJ in the course of this remand.
B.

Step Four: Residual Functional Capacity

At step four, the ALJ considers the claimant’s residual
functional capacity and past relevant work.
33

20 C.F.R. § 404.1520.

If the claimant can still perform past relevant work, the claimant
is not deemed disabled.

Id.

If the ALJ finds that the claimant

cannot perform past relevant work or the clamant does not have past
relevant work, the ALJ uses the claimant’s residual functional
capacity at step five to decide if the claimant can perform other
work in the national economy.

20 C.F.R. § 404.1545(a)(5)(ii).

The

residual functional capacity assessment considers how limitations
regarding claimant’s physical abilities, mental abilities, and any
other abilities affected by his impairments may affect the claimant’s
ability to do work on a regular and continuing basis.

20 C.F.R. §

404.1545(b)-(d).
The ALJ must consider all relevant medical and other evidence
when determining an individual's residual functional capacity and
must consider limitations imposed by all of an individual's
impairments, even those that are not “severe.”

20 C.F.R. §

404.1545(a)(2)-(3). Such evidence includes medical records, lay
evidence, effects of symptoms, including pain that are reasonably
attributed to a medically determinable impairment, descriptions and
observations of limitations by the claimant and others.

20 C.F.R.

§ 404.1545(a)(3). Additionally, the ALJ's findings of residual
functional capacity must “be accompanied by a clear and satisfactory
explanation of the basis on which it rests.”

34

Fargnoli v. Massanari,

247 F.3d 34, 41 (3d Cir. 2001) (quoting Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981)).
The ALJ determined that Lippincott had the residual functional
capacity to perform sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a).

(R. at 23.)

The ALJ recognized the

following limitations:
[Lippincott] can never climb ladders/ropes/scaffolds, can
frequently perform basic balancing and other postural
maneuvers occasionally, has no feeling in the right index
finger, must avoid concentrated exposure to extreme heat,
extreme cold, wetness, humidity, loud noises (4/5 and 5/5)
and environmental irritants, must avoid all exposure to
hazards (heights, moving machinery & sharp edges); and is
further limited to simple, routine tasks and to
goal-oriented rather than production-paced tasks, with no
significant interaction with the general public and no
food contact.
(Id.)

The ALJ explained that this determination followed a careful

consideration of the entire record, and referred to extensive medical
records including examining physicians and state consultative
examinations, as well as testimony from Lippincott and his mother.
(R. at 23-28.)

The state Residual Functional Capacity Assessment

was completed in September 9, 2008 and concluded that Lippincott
could frequently lift or carry 10 pounds and stand or walk for at
least two hours in an eight hour work day.

(R. at 601.)

The

assessment further concluded that Lippincott had limited feeling in
his right index finger and must avoid exposure to extreme cold, heat,
wetness, humidity, and hazards.

(R. at 603-04.)
35

The ALJ also

relied on a Mental Residual Functional Capacity Assessment completed
on September 23, 2008, which found “no more than moderate limitations
in any area of functioning.”

(R. at 25; R. at 626-29.)

The ALJ

stated that “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but the ALJ
did not find Lippincott’s statements concerning the intensity,
persistence and limiting effects of these symptoms to be credible
“to the extent they are inconsistent with the above residual
functional capacity assessment.”

(R. at 26.)

Plaintiffs argue that the ALJ’s evaluation of Lippincott’s
residual functional capacity is not supported by substantial
evidence.

(Pl. Br. at 20.)

Plaintiffs refer only to Lippincott’s

back problems as indicated by MRIs in the record, as well as Elaine
Lippincott’s testimony that her son had to lie down on a daily basis
due to back pain.

(Pl. Br. at 20.)

Plaintiffs conclude, “There is

no medical evidence that shows that Mr. Lippincott would be able to
go through a full work day in a seated position without any ability
to stand or lie down as needed.
do that.”

(Id.)

The evidence shows that he cannot

With the exception of the MRIs noted above and the

testimony of Lippincott’s mother, Plaintiffs provide no citation to
the record to support the argument that the ALJ’s residual functional
capacity assessment is not supported by substantial evidence.

36

The ALJ’s decision references all of the MRIs identified by
Plaintiffs with one exception.5

While the ALJ “must consider all

relevant evidence when determining an individual’s residual
functional capacity,” the ALJ is “not expect[ed] to make reference
to every relevant treatment note in a case where the claimant . .
. has voluminous medical records.”
34, 41-42 (3d Cir. 2001).

Fargnoli v. Massanari, 247 F.3d

The ALJ’s decision states that it is based

on “careful consideration of the entire record” and provides
extensive factual foundations for the findings.

The ALJ’s decision

is “sufficient to evaluate whether substantial evidence supports the
ALJ's determination.”
Cir. 2007).

Sharp v. Astrue, 228 F. App'x 228, 230 (3d

Further, the MRI not referenced by the ALJ contains

similar findings as the MRIs considered by the ALJ.

As such, the

Court finds no reversible error in failing to discuss a single MRI
of Lippincott’s back.
Moreover, the ALJ did not err in rejecting the testimony of
Lippincott’s mother.

Lippincott’s mother testified at the

administrative hearing on March 10, 2011.

(R. at 83-132.)

She

testified that Lippincott had to lie down every day due to his
physical condition.

(R. at 122-23.)

She also testified that

sometimes she observed Lippincott fall and she believed this was

5

The ALJ’s decision does not reference MRIs of Lippincott’s back and
spine completed in July 2009. (R. at 1925-26.)
37

because of his back.

(R. at 120.)

As the ALJ notes, Elaine

Lippincott also stated that Lippincott had “a lot of nerve damage.”
(Id.)

The ALJ determined that Elaine Lippincott’s testimony was not

supported by the medical evidence in the record and stated,
“Additionally, the claimant’s mother is not an acceptable medical
source and her opinion as to the claimant’s falling down due to back
problems rather than other possible causes is accorded no weight.”
(R. at 27.)
The ALJ may use evidence from “other sources,” to “show the
severity of the individual's impairment(s) and how it affects the
individual's ability to function.” SSR 06–03p, 2006 WL 2329939, at
*3 (Aug. 9, 2006).

The adjudicator “should explain the weight given

to opinions from these ‘other sources,’ or otherwise ensure that the
discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of
the case.”

Id. at *6.

Here, Elaine Lippincott would qualify as an

“other source,” meaning a non-medical source whose relationship with
the plaintiff is not based on a “professional” relationship.
at *2 (defining “medical source” and “other sources”).

Id.

The ALJ noted

that Lippincott’s mother was not an acceptable medical source and
declined to afford her opinion any weight as to the cause of
Lippincott’s falling down.

(R. at 27.)
38

The ALJ did not state that

he disregarded her testimony altogether.

Instead, it is clear that

the ALJ based his decision regarding Lippincott’s residual
functional capacity primarily on the medical exhibits, which he found
to be more credible and persuasive than other testimony.

Therefore,

the Court finds that the ALJ’s decision regarding Lippincott’s
residual functioning capacity is adequately explained and supported
by substantial evidence.
C.

Vocational Expert Testimony

If the Commissioner determines that the claimant is unable to
perform past relevant work under step four, the analysis proceeds
to step five.

In step five, the Commissioner considers the

claimant's ability to perform work (residual functional capacity),
age, education and past work experience to determine whether or not
the claimant is capable of performing other work which exists in
significant numbers in the national economy.
404.1520(a)(4)(v); 20 C.F.R. § 404.1560(c)(1).

See 20 C.F.R. §
In this final step

of the sequential analysis, the burden of proving that work is
available for the claimant shifts to the Commissioner to prove that
there is some other kind of substantial gainful employment that the
claimant is able to perform.
Cir. 1987).

Kangas v. Bowen, 823 F.2d 775, 777 (3d

Depending on the ALJ's interpretation of the available

evidence, the ALJ may either rely on the present record for this
finding or collect additional information.
39

The ALJ must, however,

conduct his inquiry using the proper legal standards as enumerated
in 20 C.F.R. § 404.1501–1599.
A vocational expert may be used when “the issue in determining
whether you are disabled is whether your work skills can be used in
other work and the specific occupations in which they can be used.”
20 C.F.R. § 404.1566(e).

The ALJ is not required to use a vocational

expert, but has discretionary power to do so.

Id.

At step five,

the ALJ need only rely on “competent evidence,” not necessarily the
opinion of a vocational expert, in determining whether the claimant
can perform sedentary work.

Gilliand v. Heckler, 786 F.2d 178, 183

(3d Cir. 1986).
Here, Plaintiffs challenge the testimony of vocational expert,
Patricia Sasona, on three grounds.

First, Plaintiffs argue that the

ALJ improperly allowed Sasona to testify by telephone.

Second,

Plaintiffs argue that the ALJ improperly found Sasona qualified.
Third, Plaintiffs argue that Sasona’s testimony was not in accord
with the ALJ’s hypothetical.
1.

Any Error in Allowing Sasona’s Testimony by
Telephone Was Harmless

Plaintiffs argue that the ALJ improperly allowed the vocational
expert to testify by telephone because no statutory or regulatory
provision allows testimony by telephone by the claimant or any other
witness, and neither Lippincott, nor his attorney received notice
40

that Sasona would testify by telephone.6

(Pl. Br. at 14.)

Plaintiffs rely primarily on two cased from the District of
Connecticut, Koutrakos v. Astrue, 3:11 CV 306 CSH, 2012 WL 1283427
(D. Conn. Jan. 9, 2012), and Edwards v. Astrue, 3:10CV1017 MRK, 2011
WL 3490024 (D. Conn. Aug. 10, 2011), to argue that remand is required
because telephonic testimony of a vocational expert is not addressed
in the applicable statutes and regulations.
Defendant argues that nothing in the regulations prohibits
telephone testimony and the Social Security Administration’s
Hearings, Appeals, and Litigation Law Manual (HALLEX) permits ALJs
to obtain expert medical or vocational testimony through in person
testimony, video teleconference, or telephone at a hearing.
Defendant also notes that Lippincott’s counsel failed to object at
the hearing to the substance or manner of Ms. Sasona’s testimony and
has not shown how Lippincott was prejudiced.
The regulations in effect at the time of Lippincott’s hearing
do not address testimony by telephone.7

6

The regulations state that

Plaintiff notes that the hearing transcript does not state that
Sasona appeared by telephone, but the portion of the transcript
preceding her testimony only makes sense if she appeared by telephone.
(Pl. Br. at 13.) Defendant does not contest that Sasona appeared by
telephone and only addresses Plaintiffs’ arguments that telephonic
testimony is not permitted by statute or regulation.
7
New regulations effective June 20, 2013 specifically allow
telephonic testimony: “Witnesses may appear at a hearing in person
or, when the conditions in § 416.1436(c)(2) exist, by video
teleconferencing or telephone.” 20 C.F.R. § 416.1450(e).
41

witnesses may appear at the hearing in person or by video
teleconferencing.

20 C.F.R. § 416.1450(e); 20 C.F.R. § 404.936(c)

(“The administrative law judge will determine that the appearance
of a person be conducted by video teleconferencing if . . . use of
video teleconferencing to conduct the appearance would be more
efficient than conducting the appearance in person, and . . . no
circumstance in the particular case that prevents the use of video
teleconferencing to conduct the appearance.”).

The regulations

regarding notice provide in relevant part:
If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing. The notice will also tell you how you may let
us know if you do not want to appear in this way and want, instead,
to have your hearing at a time and place where you may appear
in person before the ALJ.
20 C.F.R. § 416.1438(b); 20 C.F.R. § 404.938(b).
The Social Security Administration’s Hearings, Appeals, and
Litigation Law Manual (HALLEX) permits in person testimony, as well
as testimony by telephone and video teleconference.

The HALLEX

states, “The preferred method for obtaining [medical expert] or
[vocational expert] opinion is through in-person testimony or
testimony taken via telephone or video teleconference at a hearing.”8

8

“HALLEX provisions . . . lack the force of law and create no
judicially-enforceable rights.” Bordes v. Comm'r of Soc. Sec., 235
F. App'x 853, 859 (3d Cir. 2007); see also Schweiker v. Hansen, 450
42

I-2-5-30. Med. or Vocational Expert Opinion - Gen., HALLEX I-2-5-30
(S.S.A. Sept. 28, 2005).
Only one court in the Third Circuit has addressed whether
telephonic testimony of a vocational expert is improper under the
regulations.

The court in Bates v. Astrue, CIVA 07-074 JJF, 2008

WL 1736819 (D. Del. Apr. 11, 2008), rejected plaintiff’s contention
that her due process rights were violated when the ALJ allowed the
vocational expert to testify by telephone.

The Bates court

concluded that the plaintiff failed to establish that she was
prejudiced by deficiencies in the hearing where plaintiff’s counsel
failed to object to the vocational expert’s testimony by telephone,
plaintiff’s counsel had an opportunity to cross-examine the expert,
and relevant portions of the transcript were intact despite moments
when the parties were unable to hear the expert’s answers.

Id. at

*13.
Other courts outside the Third Circuit have addressed
telephonic testimony by a vocational expert and found harmless error.
See Palaschak v. Astrue, 08-CV-1172 (GLS), 2009 WL 6315324 (N.D.N.Y.

U.S. 785, 789 (1981) (“[T]he Claims Manual is not a regulation. It
has no legal force, and it does not bind the SSA. Rather, it is a
13-volume handbook for internal use by thousands of SSA employees.”);
Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) (“HALLEX is strictly
an internal guidance tool, providing policy and other procedural
guidelines to ALJs and other staff members. As such, it does not .
. . carry the force and effect of law.”).
43

Nov. 18, 2009) (finding harmless error); Cheatham v. Comm'r of Soc.
Sec., CIV.A. 12-11428, 2013 WL 1843400, at *11 (E.D. Mich. Mar. 19,
2013) (“[I]f the Court adopts a harmless error analysis, this matter
will not require remand.

However, the undersigned is recommending

that this matter be remanded on other grounds.

Therefore, it is the

undersigned's recommendation that the Commissioner be made aware
that its failure to provide notice of the VE's telephone testimony
may have violated 20 C.F.R. § 404.938(b).”); Green v. Astrue, CIV.A.
11-11711-PBS, 2013 WL 636962, at *11 (D. Mass. Feb. 20, 2013) (finding
that the lack of notice of the vocational expert's appearance via
telephone provides no basis for reversal where plaintiff failed to
show prejudice).
Plaintiffs rely on case law finding reversible error where the
ALJ allowed vocational expert testimony by telephone, specifically
Koutrakos v. Astrue, 3:11 CV 306 CSH, 2012 WL 1283427 (D. Conn. Jan.
9, 2012), and Edwards v. Astrue, 3:10CV1017 MRK, 2011 WL 3490024 (D.
Conn. Aug. 10, 2011).

See also Decker v. Comm'r of Soc. Sec.,

2:12-CV-0454, 2013 WL 1363752, at *10 (S.D. Ohio Apr. 3, 2013)
(finding violation of the regulation is not harmless and remanding
to ensure “the claimant is afforded his or her regulatory rights and
that the Commissioner has an appropriate incentive to follow the
regulation in question.”).

44

While courts outside the Third Circuit are divided, this Court
need not determine whether the ALJ failed to follow the regulations
by allowing vocational expert testimony by telephone because the
Court finds that any error was harmless.

First, Lippincott’s

counsel failed to object to the manner or substance of the vocational
expert’s testimony at the hearing.9

Second, Lippincott’s counsel was

able to effectively and extensively cross-examine the vocational
expert.

Third, there are no gaps in the transcript suggesting any

technical difficulties preventing an accurate and complete
understanding of the vocational expert’s testimony.

Finally,

Plaintiffs fail to allege or identify any prejudice to Lippincott.10
As such, even if the ALJ erred, this error would be harmless.
Shinseki v. Sanders, 556 U.S. at 409–10 (discussing harmless error
in the context of administrative review); Rutherford v. Barnhart,
399 F.3d 546, 533 (3d Cir. 2008) (“[R]emand is not required here
because it would not affect the outcome of the case.”).
9

The Court recognizes Plaintiffs’ argument that without notice of
the testimony by telephone, counsel was not prepared to object. (Pl.
Reply at 9.) However, the Court finds no error for reasons beyond
counsel’s failure to object.
10
The Court rejects Plaintiffs’ argument that “when a procedure is
not authorized by statute or regulation that an objection should be
accepted on appeal and without a showing of prejudice.” (Pl. Reply
at 8.) The governing regulations at the time of the hearing permitted
remote testimony through videoconference, and the present regulations
extend this to telephonic testimony in many circumstances. Testimony
by telephone was not so far astray from the expected procedure that
it could be deemed structural error requiring automatic remand,
considering the other factors discussed in the text.
45

2.

The ALJ Did Not Err in Finding Sasona Qualified as
a Vocational Expert

Plaintiffs argue that the ALJ improperly found Sasona qualified
as a vocational expert.

Plaintiffs contend that there are no

statutes, regulations, or administrative guidance identifying the
qualifications for vocational experts in the adjudication of Social
Security disability claims.

(Pl. Br. at 18.)

Further, Plaintiffs

argue that Sasona is not a practicing vocational counselor because
she has placed only ten people in the last five years.11

(Id. at 18.)

Defendant responds that Sasona is qualified to serve as a
vocational expert due to her educational and professional
experience.

Defendant further argues that Sasona’s experience

placing individuals in certain positions is irrelevant to her
testimony regarding jobs existing in the national economy within the
requirements of step five.

(Gov’t Opp. at 17.)

However, Defendant

does not cite to any authority providing qualifications for
vocational experts.
Plaintiffs correctly note that the applicable statutory and
regulatory provisions do not contain required qualifications for

11

The Court rejects as inapposite Plaintiffs’ reliance on Elcock v.
Kmart Corp., 233 F.3d 734, 744 (3d Cir. 2000) for the proposition
that Sasona’s experience as a witness in Social Security proceedings
does not qualify her as a vocational expert. (Pl. Br. at 19.) As
Defendant notes, Elcock concerned the qualifications of expert
witnesses in a premises liability matter. (Gov’t Opp. at 18.)
46

vocational experts.

The HALLEX directs the ALJ to select a

vocational expert from a roster maintained by each regional office.
I-2-5-52. Selecting a Vocational Expert, HALLEX I-2-5-52 (S.S.A.
Sept. 28, 2005).

The vocational experts on the roster have agreed

to provide impartial expert opinion testimony.

Id.

When no listed

vocational expert is available, the ALJ may use a vocational expert
who is not on the roster.

Id.

However, the HALLEX does not provide

a criteria for selecting vocational experts.
Plaintiffs also refer to the Office of Hearing and Appeal’s
Vocational Expert Handbook for the Philadelphia Region.

The

Handbook provides the following criteria for selection of a
vocational expert:
A VE must have up-to-date knowledge of, and experience with,
industrial and occupational trends and local labor market
conditions; the ability to evaluate age, education and prior
work experience in light of the residual functional capacity;
current and extensive experience in counseling and job
placement of adult handicapped people; and knowledge of and
experience using vocational reference sources, including the
Dictionary of Occupational Titles (DOT), together with any
supplements,
including
Selected
Characteristics
of
Occupations. The VE should have experience in the use of
reference sources in developing information about the duties,
skills, physical demands and working conditions of jobs,
occupationally significant characteristics of jobs; and
transferability of skills.
Vocational Expert Handbook, Office of Hearing and Appeals,
Philadelphia Region, SSA, available at
http://www.rehabpro.org/sections/ss-ve/resources/vehandbook.
47

In this case, Sasona testified that she has a Master’s degree
in Vocational Rehabilitation Counseling and has practiced her
profession for the last 35 years.

(R. at 59.)

Sasona explained that

she is licensed to practice vocational rehabilitation counseling in
New Jersey and is certified as a rehabilitation counselor from the
Commission of Rehabilitation Counselor Certification.

(R. at 59.)

Sasona stated that she currently performs vocational rehabilitation
services for insurance companies and provides testimony in Social
Security hearings.

(Id.)

Prior to her current employment, Sasona

testified that she worked for a dozen years developing vocational
plans and placing disabled individuals in appropriate employment.
(Id.)

Lippincott’s counsel objected to Sasona’s qualifications on

the grounds that she is not an active practitioner because Sasona
stated she placed roughly ten individuals over the past five years.
(R. at 60.)

The ALJ overruled counsel’s objection and found Sasona

to be qualified.

(Id.)

The Court finds no grounds to disturb the ALJ’s finding that
Sasona was qualified as a vocational expert.

Sasona’s credentials

appear to satisfy the criteria identified in the Vocational Expert
Handbook for the Philadelphia Region.

Further, the Court agrees

with the ALJ that the number of placements Sasona was involved in
over the past five years does not render her unqualified as a
vocational expert.

Her testimony in the present case reveals her
48

qualifications and ability to testify regarding the existence of
certain jobs in the national economy as necessary to assist the ALJ
under step five.

Therefore, the ALJ did not err in finding Sasona

qualified as a vocational expert.
3.

Sasona’s Testimony Was in Accord with the ALJ’s
Hypothetical

Plaintiffs argue that Sasona’s testimony was not in accord with
the ALJ’s hypothetical and conflicted with the Dictionary of
Occupational Titles (“DOT”).

(Pl. Br. at 20-21.)

Plaintiffs

contend that the ALJ’s hypothetical indicated that the person has
no feeling in the right index finger and is limited to goal-oriented
rather than production-paced tasks.

(Id.)

Plaintiffs argue that

the jobs of table worker and document preparer, identified by Sasona
and defined in the DOT, could not be performed by someone with the
hypothetical limitations.

(Id. at 20-21.)

Defendant responds that Sasona specifically testified that an
individual with no feeling in the right index finger would be able
to perform the job of table worker and both jobs were not
production-paced.

(Gov’t Opp. at 18.)

Defendant contends that no

conflict exists between Sasona’s testimony and the DOT because Sasona
was never questioned about which products were handled by a table
worker.

(Id. at 19.)

Defendant argues that because Sasona was

49

qualified as a vocational expert, the ALJ was entitled to rely on
her testimony.

(Id. at 18.)

The position of table worker is described in the DOT as follows:
“Examines squares (tiles) of felt-based linoleum material passing
along on conveyor and replaces missing and substandard tiles.” DOT
§ 739.687-182.
The position of document preparer is described in the DOT as
follows:
Prepares documents, such as brochures, pamphlets, and catalogs,
for microfilming, using paper cutter, photocopying machine,
rubber stamps, and other work devices: Cuts documents into
individual pages of standard microfilming size and format when
allowed by margin space, using paper cutter or razor knife.
Reproduces document pages as necessary to improve clarity or
to reduce one or more pages into single page of standard
microfilming size, using photocopying machine. Stamps standard
symbols on pages or inserts instruction cards between pages of
material to notify MICROFILM-CAMERA OPERATOR (business ser.)
976.682-022 of special handling, such as manual repositioning,
during microfilming. Prepares cover sheet and document folder
for material and index card for company files indicating
information, such as firm name and address, product category,
and index code, to identify material. Inserts material to be
filmed in document folder and files folder for processing
according to index code and filming priority schedule.
DOT § 249.587-018.
The Third Circuit has noted that “[a] hypothetical question
posed to a vocational expert must reflect all of a claimant's
impairments.”

Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)

(emphasis in original) (citation and internal quotations omitted).
However, the ALJ is not required to “submit to the vocational expert
50

every impairment alleged by a claimant.”

Rutherford v. Barnhart,

399 F.3d 546, 554 (3d Cir. 2005) (emphasis in original).

Instead,

“the hypotheticals posed must ‘accurately portray’ the claimant's
impairments and that the expert must be given an opportunity to
evaluate those impairments “as contained in the record.”

Id.

As

such, “the ALJ must accurately convey to the vocational expert all
of a claimant's credibly established limitations.”

Id. (emphasis in

original).
The Third Circuit has also identified the appropriate procedure
where there is a conflict between the vocational expert’s testimony
and the DOT.

Where an unresolved conflict exists between the

vocational expert’s testimony and the DOT:
[t]he adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE or VS evidence to support a
determination or decision about whether the claimant is
disabled. At the hearings level, as part of the adjudicator's
duty to fully develop the record, the adjudicator will inquire,
on the record, as to whether or not there is such consistency.
Rutherford v. Barnhart, 399 F.3d 546, 556 (3d Cir. 2005) (citing SSR
00-4P, 2000 WL 1898704 (S.S.A. Dec. 4, 2000)).

SSA 00-04P is to be

viewed in conjunction with the ALJ’s broader obligation to develop
the record sufficient to allow appellate review.

Id. at 557.

However, the failure of the ALJ to explain a conflict does not require
reversal where the ALJ’s step five analysis is otherwise supported
by substantial evidence.

Jones v. Barnhart, 364 F.3d 501, 506 (3d
51

Cir. 2004) (finding that inconsistencies between vocational expert
testimony and DOT “did not cause an ALJ determination at step 5 to
be devoid of substantial evidence” where such inconsistencies did
not exist as to all of the jobs identified by the vocational expert).
In this case, Plaintiffs do not argue that the ALJ’s
hypothetical failed to include all of Lippincott’s impairments.
Instead, Plaintiffs argue that the jobs identified by Sasona do not
conform to the ALJ’s hypothetical, and Sasona’s testimony regarding
these jobs conflicts with the DOT.

Specifically, Plaintiffs argue

that the jobs of table worker and document preparer are
production-paced and neither could be performed by a person without
the full use of both hands.

(Pl. Br. at 21.)

First, the record makes clear that the ALJ followed the
appropriate procedure to address any possible conflict with the DOT.
The ALJ complied with SSR 00-4P by asking Sasona if, and to what
extent, her testimony departs from the DOT.

(R. at 66.)

Sasona

responded only that the job of document preparer is different in so
far as it now involves different technology, i.e., scanned documents
as opposed to microfilm.
conflicts for either job.

(Id.)

Sasona did not identify any further

The ALJ’s decision states, “Pursuant to

SSR 00-4P, the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles.”
(R. at 29.)
52

Second, Sasona’s responses to questions from Lippincott’s
counsel on cross-examination show that her testimony regarding the
job of table worker conforms to the ALJ’s hypothetical and does not
conflict with the DOT.

In particular, Sasona explained that the job

of table worker could be performed by someone without sensation in
their right index finger because that person would have sensation
in their other fingers.

(R. at 67.)

She also explained that the

job of table worker is not a production-paced task.

Sasona testified

that it is paced only in the sense that items would be moving on a
conveyor belt and the individual would have an opportunity to inspect
the items before they pass.

(R. at 75-76.)

Further, Sasona was

never asked by the ALJ or Lippincott’s counsel whether the job of
table worker was limited to a specific product. Having confirmed that
an individual with the hypothetical limitations could perform the
job, she had no reason to specifically identify the products involved.
The Court finds nothing in Sasona’s testimony that conflicts with
the DOT description of table worker. Therefore, Sasona’s testimony
regarding the job of table worker neither failed to accord with the
ALJ’s hypothetical, nor conflicted with the DOT.
Because the ALJ need only identify a single job within the
claimant’s capacity that exists in significant numbers in the national
economy, the Court need not consider whether the ALJ failed to address
a conflict between Sasona’s testimony regarding the job of document
53

preparer and the DOT. 20 C.F.R. §§ 404.1566(b) (“Work exists in the
national economy when there is a significant number of jobs (in one
or more occupations)” (emphasis added)); 416.966(b) (same); Thornton
v. Astrue, CIV.A. 12-2524, 2013 WL 460138, at *7 (E.D. Pa. Feb. 7,
2013) (finding no need decide whether the ALJ committed error with
respect to one job where second job identified by vocational expert
was supported by substantial evidence).

Because the ALJ

appropriately credited Sasona’s testimony regarding the job of table
worker, the Court finds that substantial evidence supports the ALJ’s
determination at step five.
D.

Letter Brief from Lippincott’s Counsel

Plaintiffs argue that the ALJ failed to consider counsel’s
letter brief submitted shortly after the last hearing on April 15,
2011, but before the ALJ’s decision on June 3, 2011.12
21.)

(Pl. Br. at

Counsel’s letter brief requested a supplemental hearing with

the vocational expert or interrogatories directed at the vocational
expert to address alleged ambiguity in the vocational expert’s
testimony regarding the job of table worker.

(R. at 399-403.)

Counsel noted that Sasona referred to a specific table worker
position involving linoleum material, while the DOT contains several

12

Lippincott’s counsel’s letter brief is dated April 25, 2011. (R.
at 399.)
54

other entries for table workers in other industries with requirements
not conforming to the ALJ’s hypothetical.

(Id.)

Defendant responds that the ALJ’s decision reveals that he did
consider Plaintiffs’ arguments.

(Gov’t Opp. at 20.)

Specifically,

Defendant notes the ALJ’s discussion of Lippincott’s prison records
as evidence that he considered counsel’s letter brief.

(Id.)

The ALJ “may . . . reopen the hearing at any time before he or
she mails a notice of the decision in order to receive new and material
evidence.”

20 C.F.R. § 404.944; 20 C.F.R. § 416.1444.

However,

administrative hearings are subject to requirements of due process.
Gauthney v. Shalala, 890 F. Supp. 401, 408 (E.D. Pa. 1995) (Richardson
v. Perales, 402 U.S. 389, 401–02 (1971)).

“[W]hen an administrative

law judge chooses to go outside the testimony adduced at the hearing
in making a determination on a social security claim, the ALJ must
afford the claimant not only an opportunity to comment and present
evidence but also an opportunity to cross-examine the authors of any
post-hearing reports when such cross-examination is necessary to the
full presentation of the case, and must reopen the hearing for that
purpose if requested.”

Wallace v. Bowen, 869 F.2d 187, 193 (3d Cir.

1989).
The instant case is distinguishable from cases where the ALJ
relies on post-hearing evidence without satisfying due process.
Here, the ALJ did not rely on post-hearing evidence in rendering his
55

decision.

Instead, counsel’s letter brief alleged ambiguity in

Sasona’s testimony and requested an opportunity to clarify that
ambiguity at a supplemental hearing or through interrogatories.
Specifically, counsel argued that the DOT contains many listings for
the job of table worker that do not conform to the ALJ’s hypothetical
and Sasona only testified regarding one table worker position.
While the ALJ did not grant counsel’s request for a supplemental
hearing or interrogatories directed at Sasona, the Court does not
find an abuse of discretion in denying these requests.

Further, the

fact that the ALJ’s decision fails to specifically address counsel’s
arguments raised for the first time in the post-hearing letter brief
does not affect this Court’s conclusion that the ALJ’s findings at
step five are supported by substantial evidence.

Sasona’s testimony

is clear that she was referring to a specific table worker position
extant in significant numbers in the national economy.

Counsel’s

post-hearing argument that the DOT contains other table worker
positions not conforming to the ALJ’s hypothetical does not warrant
further explanation by the ALJ because Sasona did not testify
regarding these positions.

Moreover, Plaintiffs fail to cite any

authority requiring the ALJ to fully respond to arguments raised for
the first time in a post-hearing letter brief.

Therefore, the Court

finds that the ALJ acted within his discretion in his treatment of
counsel’s letter brief.
56

V.

Conclusion
For the foregoing reasons, the Court finds that substantial

evidence in the record supports the ALJ’s determination that
Lippincott failed to satisfy the requirements of Listing 12.04.
However, the ALJ’s conclusions under Listings 1.04 and 11.00 do not
allow judicial review.

Therefore, the Court will vacate the

Commissioner's final decision and remand the matter to allow the ALJ
to develop his reasoning and analysis as to Lippincott’s impairments
under Listings 11.00 and 1.04 at step three.

An accompanying Order

will be entered.

November 8, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

57