GARMAN v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Renee Marie Bumb on 9/29/2017. (dmr)

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

Nicole M. Garman,
Plaintiff,
Civil No. 16-5507(RMB)
v.
Commissioner of Social
Security,

OPINION

Defendant.

BUMB, United States District Judge:
THIS matter comes before the Court upon an appeal by
Plaintiff Nicole M. Garman (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security disability benefits for the period beginning January
29, 2010. (Compl. ¶ 5) [Dkt. No. 1]. For the reasons set forth
below, the Court vacates the decision of the Administrative Law
Judge (“ALJ”) and remands for proceedings consistent with this
Opinion.
I.

Disability Defined
The Social Security Act defines “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states that:
[A]n individual shall be determined to be under a
disability 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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i)–(v). In Plummer v. Apfel, 186 F.3d
422, 428 (3d Cir. 1999) the Third Circuit described the
Commissioner's inquiry at each step of this analysis, as
follows:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 404.1520(a). If a
claimant is found to be engaged in substantial
activity, the disability claim will be denied. Bowen
v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that his impairments are “severe,” he is ineligible
for disability benefits.

2

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. 20 C.F.R. § 404.1520(d). 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 his past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of
demonstrating an inability to return to his past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume his
former occupation, the evaluation moves to the final
step.
At this [fifth] 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. 20 C.F.R. §
404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with his 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 he is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).
II.

Background
The Court recites only the facts that are necessary to its

determination on appeal, which is limited to the weight afforded
to the opinions of two doctors in the ALJ’s calculation of
Plaintiff’s Residual Functional Capacity (“RFC”) and whether

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there are a “significant number” of jobs in the national economy
that Plaintiff is capable of performing.
A. Brief Medical History
Plaintiff was born on April 10, 1979, and was 30 years old
on the alleged date of disability onset, January 29, 2010.
(Administrative Record “A.R.” 187, 12). Plaintiff suffers from
mitochondrial disorder which, according to her testimony, was
exacerbated when her infant son died in January, 2010, and has
never remitted. (Id. at 46). Plaintiff also complains of spinal
deformity at L4-L5, chronic pain, joint inflammation, chronic
severe fatigue, anxiety, and depression. (Id. at 46-47, 223).
Prior to the alleged disability onset date, Plaintiff was
working as a medical records coder. (Id. at 204).
In her Adult Function Report, completed October 27, 2012,
(Id. at 212-219), Plaintiff indicated that she required her
parents’ help caring for her children. (Id. at 213). Plaintiff
also indicated that she was tired all the time and needed daily
naps, needed help remembering what medication she had and had
not taken, and could no longer handle her family’s finances.
(Id. at 214-15). Plaintiff did not, however, note any issues
with personal care, and she could still cook, clean, and do
laundry. (Id. at 213, 215). She engages in limited social
activity, including using social media daily, speaking to her
parents and siblings, and attending church twice a month, but
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has anxiety and cannot be around large crowds. (Id. at 216).
Physically, Plaintiff claims to have had issues walking,
lifting, squatting, climbing stairs, sitting, and using her
hands. (Id.)
Beginning on February 10, 2011, Plaintiff’s primary care
physician has been Dr. Phillip Varner, D.O. (Id. at 306). In her
new patient evaluation, Dr. Varner found Plaintiff positive for
fatigue, back pain and joint pain, dizziness, headaches, memory
loss, weakness, anxiety, depression, and difficulty
concentrating, among other things. (Id.) Plaintiff visited Dr.
Varner on at least ten occasions between February 2011 and
August 2013. (Id. 306-28, 377, 380). During these visits,
Plaintiff presented with a variety of symptoms including (in
addition to those listed after Plaintiff’s initial visit)
difficulty walking, hands shaking, wrist pain, decreased range
of motion in the bilateral hip and knees, and tenderness in both
knees. (Id.)
On December 12, 2012, Dr. Ronald Bagner, M.D., performed a
consultative examination of Plaintiff. (A.R. 370). Dr. Bagner’s
impression was that Plaintiff had a “lumbosacral strain,” walked
with a slow, but normal gait, and did not appear uncomfortable
sitting or performing simple physical tasks such as getting on
and off of the examination table. (Id. at 371).

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On December 18, 2012, Dr. Theodore Brown, Ph.D., conducted
a consultative mental status examination of Plaintiff. (Id. at
365). Dr. Brown noted that Plaintiff was “pleasant and
cooperative throughout the [e]xamination,” but diagnosed her
with, among other things, depression and anxiety. (Id. at 367).
B. Doctor Varner’s Opinion
Beyond his treatment notes, Dr. Varner provided a Medical
Source Statement to the Commissioner. (Id. at 392-99). In this
statement, Dr. Varner diagnosed Plaintiff with mitochondrial
disease with the following symptoms: musculoskeletal pain,
fatigue, headaches, general malaise, extremity numbness pain or
tingling, difficulty walking/abnormal gait, muscle weakness,
muscle spasms, loss of manual dexterity, swelling, insomnia,
sleep disturbance, and depression. (Id. at 392, 394). He
indicated that he believed Plaintiff’s claims as to the
severity, duration, and frequency of her symptoms were credible.
(Id. at 393).
Dr. Varner further indicated that Plaintiff would need to
lie down or recline for one and a half to two hours on a daily
basis, that Plaintiff’s impairments would be likely to produce
good days and bad days, that Plaintiff would be “off task” for
at least twenty-five percent of every day. (Id.) According to
Dr. Varner, during every eight hour workday, Plaintiff would
need to elevate her legs for four hours. (Id. at 395). Dr.
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Varner further believed that Plaintiff suffered from levels of
pain and fatigue significant enough to prevent her from
performing normal, full-time work activities more than “3-4 days
per month,” and that physical activity would likely greatly
increase Plaintiff’s pain level. (Id. at 396-97).
C. State Agency Consultant Assessments
On December 24, 2012, Dr. Sharon Flaherty, Ph.D., a state
agency psychological consultant, performed a Mental Residual
Function Capacity Assessment of Plaintiff. (Id. at 100-02). Dr.
Flaherty found that Plaintiff had understanding and memory
limitations. (Id. at 101).
Specifically, Dr. Flaherty found that Plaintiff had the
following moderate mental limitations: (1) ability to understand
and remember very short and simple instructions; (2) ability to
carry out very short and simple instructions; (3) ability to
maintain attention and concentration for extended periods; (4)
ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances;
(5) ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform
a consistent pace without an unreasonable number and length of
rest periods; (6) ability to accept instructions and respond
appropriately to criticism from supervisors; (7) ability to get
along with coworkers or peers without distracting them or
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exhibiting behavioral extremes; (8) ability to respond
appropriately to changes in the work setting; (9) and ability to
travel in unfamiliar places or use public transportation. (Id.
at 101-02).
Dr. Flaherty also found that Plaintiff was markedly limited
in her ability to understand, remember, and carry out detailed
instructions. (Id. at 101). She noted that Plaintiff could
“understand, remember and follow short [and] simple
instructions[,] . . . learn [and] perform simple, routine
tasks[,] . . . communicate and interact with others[,] . . . and
adapt to minor change.” (Id. at 101-02). As a result of these
findings, Dr. Flaherty concluded that “[f]rom a psych
standpoint, the [Plaintiff] can sustain focus, memory, basic
social interaction and mental pace/persistence for simple,
routine tasks.” (Id. at 102).
Dr. Robert Starace affirmed Dr. Flaherty’s opinion on May
21, 2013. (Id. at 113-15).
D. Procedural Background
Plaintiff applied for Social Security Disability Insurance
Benefits (“DIB”) on October 5, 2012 alleging that she was
disabled due to mitochondrial disease, spinal deformity at L4L5, chronic pain, depression, anxiety, joint inflammation, and
chronic severe fatigue. (A.R. 187-88, 220, 223). Plaintiff’s

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claim was denied on January 10, 2013, (A.R. 92-118), and
reconsideration was denied on May 21, 2013. (A.R. 128-33).
On August 24, 2013, Plaintiff requested a hearing, (A.R.
134-35), and on January 22, 2015 a hearing was held before the
Honorable Mark Barrett. (A.R. 31). Plaintiff, who was
represented by counsel, testified at the hearing. On April 30,
2015, the ALJ issued a decision finding that Plaintiff was not
disabled. (A.R. 12-25). The Appeals Council denied Plaintiff’s
request for review on July 6, 2016, (A.R. 1-3), at which time
the ALJ’s decision became the final determination of the
Commissioner.
E. The ALJ’s Decision
The ALJ applied the requisite five-step analysis,
ultimately concluding that Plaintiff was not “disabled.” At Step
1, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity during the period from her alleged
onset date of January 29, 2010, through her date last insured of
March 31, 2013. (Id. 14). At Step 2, The ALJ found that
Plaintiff had five severe impairments: obesity, depression,
anxiety, mitochondrial disorder, and a lumbar back sprain. 1 (Id.
at 14-15). Next, at the Third Step, the ALJ determined that,

1

The ALJ also addressed Plaintiff's history of cholecystectomy,
but found that it was non-severe because it “result[ed] in
minimal, if any, limitation on the claimant’s ability to perform
work-related activities when properly treated.” (A.R. 15).
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through the date last insured, Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1. (Id.)
Based on his findings, the ALJ determined that Plaintiff
had the RFC to perform “sedentary work as defined in 20 CFR 404
.1567(a), except that the [Plaintiff] is limited to simple,
repetitive work.” (Id. at 23). In making these findings, the ALJ
looked to the Plaintiff’s testimony, the Adult Third Party
Function Report completed by Plaintiff’s husband, and the
Plaintiff’s medical record including the treatment notes and
reports of the multiple doctors who evaluated Plaintiff. 2 (Id. at
18-23). The ALJ found that Plaintiff's allegations regarding the
severity and intensity of both her physical and mental
limitations were not supported by the objective medical
evidence. (Id.)

The ALJ also afforded little weight to Dr.

Varner’s opinion regarding Plaintiff’s limitations, finding that
it was “inconsistent with the objective medical evidence and
record as a whole,” including the doctor’s own treatment notes

2

With regard to Plaintiff’s physical pain and symptoms, the
ALJ’s decision references the notes of Dr. Varner, Dr. Peter
Tsao, Dr. Brown, Dr. Bagner, and Dr. David Greenbaum. (A.R. 1920). With regard to Plaintiff’s anxiety and depression, the ALJ
referenced the notes of Dr. Varner, Dr. Brown, Dr. Sharon
Flaherty, Dr. Robert Starace; Dr. Jyothsna Shastry; and Dr.
Arvind Chopra. (Id. at 20-23).
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and a CT Scan of Plaintiff’s lumbar spine. 3 (Id. at 22).
“Substantial weight,” however, was assigned to the opinion of
Dr. Flaherty. 4 (Id.)
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to perform any past relevant work.
(Id. at 23). Furthermore, the ALJ concluded that Plaintiff was a
“younger individual” as of the alleged disability onset date,
had at least a high school education and was able to communicate
in English. (Id. at 23). He further determined that
transferability of job skills was immaterial to his
determination under the medical–vocational rules. (Id. at 24).
Then, considering Plaintiff's age (33 years old as of the
alleged disability onset date (Id. at 23)), education, work
experience, and RFC as determined, the ALJ found that there were
jobs that existed in significant numbers in the national economy
that Plaintiff could have performed. (Id. at 24-25).
Because Plaintiff had both exertional and non-exertional
impairments, the ALJ used the medical-vocational rules as a
framework. He further stated that Plaintiff's “non-exertional
impairments do not significantly erode the vocational base
contemplated by the medical-vocational rules” and that “expert
3

Plaintiff challenges the ALJ’s assignment of weight, or lack
thereof, to Dr. Varner’s opinion.
4 Plaintiff contends that too much weight was afforded to Dr.
Flaherty’s opinion, and that the ALJ did not properly consider
the entirety of Dr. Flaherty’s findings.
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vocational testimony is not needed in this case to assess
[Plaintiff's] work capability.” 5 (Id. at 25.) Thus, Plaintiff's
application was denied. (Id.)
III. Standard of Review
When reviewing an ALJ’s final decision on disability
benefits, courts are required to uphold the ALJ’s factual
determinations if they are supported by “substantial evidence.”
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§
405(g), 1383(c)(3). “‘Substantial evidence’ has been defined as
‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Dellapolla v. Comm'r, 662 Fed. Appx. 158, 160 (3d
Cir. 2016) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d
Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971))).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)); see also Guerrero v.
Comm'r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The ALJ's responsibility is to analyze all the evidence
5

The ALJ’s decision not to elicit expert vocational testimony,
or to consider vocational evidence of any kind, is the final
issue presented for appeal.
12

and to provide adequate explanations when disregarding portions
of it.”), aff'd, 249 F. Appx. 289 (3d Cir. 2007). As stated by
the Third Circuit,
[U]nless the [Commissioner] has analyzed all evidence
and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his
decision is supported by evidence approaches an
abdication of the court's duty to scrutinize the
record as a whole to determine whether the conclusions
reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec'y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted).
While the Commissioner's decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App'x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm'r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli v. Massanari, 247 F.3d 34,
42 (3d Cir. 2001) (“Although we do not expect the
[administrative law judge] to make reference to every relevant
treatment note in a case where the claimant ... has voluminous
medical records, we do expect the ALJ, as the factfinder, to
consider and evaluate the medical evidence in the record
consistent with his responsibilities under the regulations and
case law.”).

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In addition to the “substantial evidence” inquiry, the
Court must also determine whether the ALJ applied the correct
legal standards. See Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000). The Court’s review of legal issues is plenary. Id. at 262
(citing Schaudeck v. Comm'r, 181 F.3d 429, 431 (3d Cir. 1999).
IV.

Analysis
Plaintiff presents three issues for review by this Court.

First, Plaintiff argues that the ALJ erred in failing to consult
a vocational expert despite arriving at an RFC for less than a
full range of sedentary work. (Pl.’s Br. at 2). Second,
Plaintiff argues that the ALJ erred in both his determination of
credibility and the weight accorded to the opinions of Dr.
Varner because he failed to consider the impact of the
Plaintiff’s mitochondrial disorder, “particularly with regard to
fatigue and pain.” (Id.) Finally, Plaintiff argues that the ALJ
erred in assigning substantial weight to the opinions of the Dr.
Flaherty, “while not incorporating her findings into the RFC or
explaining why the omitted findings were rejected.” (Id.)
Because the Court finds that the ALJ failed to fully address the
reasons why Plaintiff's non-exertional limitations do not
significantly erode his occupational base, the Court will remand
for further proceedings.
A. Failure to Consult Vocational Expert

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Plaintiff argues that the ALJ’s failure to consult a
vocational expert to determine the effect of Plaintiff’s
nonexertional limitations 6 on the occupational base violated
Acquiescence Ruling 01–1(3) (“AR 01-1(3)”). (Pl.’s Br. 15-18).
The Commissioner issued AR 01–1(3) after the Third Circuit
ruling in Sykes v. Apfel, in which the Court held that, where a
claimant had nonexertional limitations, the existence of
significant numbers of jobs in the national economy could not be
established by reliance solely upon the medical-vocational
grids. 228 F.3d 259, 274. Rather, when a claimant has exertional
and nonexertional limitations, the Commissioner must present
evidence consisting of (1) the testimony of a vocational expert
or other similar evidence or (2) official administrative notice
that a non-exertional limitation does not significantly erode a
claimant's occupational base. Id. at 261.
In response to Sykes, the Commissioner issued AR 01-1(3),
which provides:
Before denying disability benefits at step five when a
claimant has a nonexertional limitation(s), we must:
(1) take or produce vocational evidence such as from a
vocational expert, the DOT or other similar evidence
(such as a learned treatise); or (2) provide notice
that we intend to take or are taking administrative
notice of the fact that the particular nonexertional
limitation(s) does not significantly erode the
occupational job base, and allow the claimant the
opportunity to respond before we deny the claim.
6

Based on evaluations on Plaintiff’s mental health, the ALJ
limited her to “simple, repetitive work.” (A.R. at 23).
15

This Ruling does not apply to claims where we rely on
an SSR that includes a statement explaining how the
particular nonexertional limitation(s) under
consideration in the claim being adjudicated affects a
claimant's occupational job base. When we rely on such
an SSR to support our finding that jobs exist in the
national economy that the claimant can do, we will
include a citation to the SSR in our determination or
decision.
AR 01-1(3) clarified that under the holding in Sykes, the
ALJ is not required to rely on testimony from a vocational
expert, but may instead rely upon a Social Security Ruling
(“SSR”). See Allen v. Barnhart, 417 F.3d 396, 406 (3d Cir.
2005). Moreover, the Third Circuit has since held that the ALJ’s
failure to provide notice of his intention to rely upon an SSR
is not fatal, but requires the court to apply close scrutiny to
said reliance. Meyler v. Comm'r of Soc. Sec., 238 F. Appx. 884,
890 (3d Cir. 2007)(citing Allen, 417 F.3d at 408); see
also Breslin v. Comm'r of Soc. Sec., 509 F. Appx. 149, 155 (3d
Cir. 2013); Smalls v. Comm'r of Soc. Sec., No. 09–2048, 2010 WL
2925102, at *9 (D.N.J. July 19, 2010)(“advanced notice is not
unequivocally required in every circumstance. But . . . when
advanced warning is not given, the ALJ's reliance on the Ruling
is subject to ‘close scrutiny.’”).
If, however, the ALJ chooses to rely on an SSR instead of a
vocational expert or other similar vocational evidence to find
that the occupational base is not significantly eroded by a

16

claimaint’s nonexertional limitations, it “must be crystal-clear
that the SSR is probative as to the way in which the
nonexertional limitations impact the ability to work, and thus,
the occupational base.” Allen, 417 F.3d at 407. Furthermore, the
ALJ must specifically cite the SSR or SSRs relied upon and
“explain why the SSR is ‘relevant or controlling.’” See AR 01–
1(3); see also Williams v. Comm'r of Soc. Sec., No. 12–5637,
2013 WL 4500335, at *9 (D.N.J. Aug.21, 2013) (citing Allen, 417
F.3d at 406).
Defendant argues that the ALJ’s decision not to rely on
vocational evidence was proper here because he “relied on grid
rule 201.28 and cited to SSR 85-15, SSR 83-10, and the case Kirk
v. Secretary of HHS, 667 F.2d 524 (6th Cir. 1981).” The Court
disagrees. These SSRs may address all of Plaintiff’s nonexertional limitations, but the Court finds that the ALJ did not
sufficiently explain how, and thus remand on this point is
necessary. 7

7

Plaintiff’s contends that the ALJ’s reliance on Kirk v.
Secretary of HHS was improper in light of the fact that it is an
out of circuit case decided prior to Sykes. There are three ways
for the ALJ to properly decide that the job market is not
significantly eroded without the use of vocational evidence. The
only way that the ALJ may do so without providing prior notice
to Plaintiff is to rely on an SSR. See AR 01-1(3). Defendant
does not contend that the ALJ provided prior notice to Plaintiff
here, and thus the only real issue is whether the ALJ properly
relied on either SSR 85-15 or SSR 83-10.
17

The ALJ cited SSR 85–15 only as support for the principle
that where a claimant has solely nonexertional limitations,
section 204.00 of the medical-vocational guidelines provides a
framework for decision-making. 8 (See A.R. 24). In the last
paragraph of his decision, the ALJ provided that
When a claimaint has both exertional and nonexertional impairments, the medical-vocational rules
provide a “a framework for consideration of how much
the individual’s work capability is further diminished
in terms of any types of jobs that would be
contraindicated by the non-exertional limitations” . .
. The particular rule applies, despite the nonexertional limitations, “if the individual is capable
of performing a wide range of jobs at the designated
level—i.e., sedentary, light or medium.” Kirk v.
Secretary of HHS, 667 F.2d 187 [improperly cited];
Social Security Rulings 83-10. In this case, the
[Plaintiff’s] non-exertional impairments do not
significantly erode the vocational base contemplated
by the medical-vocational rules. Accordingly, the
undersigned concludes that expert vocational testimony
is not needed in this case to assess the claimant’s
work capability.
(Id. at 25).
The ALJ conclusorily asserts that Plaintiff's nonexertional limitations do not significantly erode her
occupational base. While the decision does cite to two SSRS, the
ALJ did not provide an explanation of how either of the SSRs
cited supports such a conclusion. See Buffington v. Comm'r of

8

SSR 85-15 may well be on point, as argued by Defendant in its
brief. (Def.’s Br. 12). Because it was not cited in support of
the ALJ’s decision to not rely on vocational evidence, it cannot
be relied upon in defense of that decision, however on point it
may be.
18

Soc. Sec., No. 12–100, 2013 WL 796311, at *10–11 (D.N.J. March
4, 2013) (finding “it is not clear that the ALJ based his actual
analysis on any of the SSRs cited, despite the boilerplate
references” and remanding for further consideration of how the
plaintiff's limitations affect her ability to perform
substantial gainful employment). Thus, it is not “crystal-clear”
that either of these SSRs is “probative as to the way in which
the nonexertional limitations impact Plaintiff’s occupational
base.” Allen, 417 F.3d at 407. As such, the Court will remand.
On remand, the ALJ may still determine that consultation of
a vocation expert is unnecessary. In fact, it is possible that
the ALJ will rely on these very SSRs and reach the same
decision. If so, however, he must make clear that this is what
he is doing and cite the specific portions of these SSRs that he
believes support such determination. At this juncture, however,
the Court will remand because of the ALJ's failure to fully
explain why the nonexertional limitations do not significantly
erode Plaintiff's occupational base. Because the Court finds
that remand on this point is necessary, it need not address
Plaintiff's other arguments.
An Order and Final Judgment consistent with this Opinion
shall issue on this date.
_s/_Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
19

DATED: September 29, 2017

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