JEAN-PIERRE v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Noel L. Hillman on 9/27/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PAUL HENRY JEAN-PIERRE,
COMMISSIONER OF SOCIAL
BRIAN G. SMITH
COMMUNITY HEALTH LAW PROJECT, INC.
900 HADDON AVE.
COLLINGSWOOD, NJ 08108
On behalf of Plaintiff
MAIJA PELLY DIDOMENICO
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19147
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section 205(g)
of the Social Security Act, as amended, 42 U.S.C. § 405(g),
regarding Plaintiff’s application for Supplemental Security Income
(“Social Security benefits”) under Title XVI of the Social
42 U.S.C. § 401, et seq.
The issue before the
Court is whether the Administrative Law Judge (“ALJ”) erred in
finding that there was “substantial evidence” that Plaintiff was
not disabled at any time since his alleged onset date of
disability, July 2, 2011.
For the reasons stated below, this
Court will affirm the ALJ’s decision.
BACKGROUND AND PROCEDURAL HISTORY
On December 12, 2011, Plaintiff, Paul Henry Jean-Pierre, who
was forty-four years old at the time, applied for benefits
alleging disability since July 2, 2011.
include status-post colon cancer, degenerative disc disease of the
lumbar spine, history of migraines, obesity, major depressive
disorder and personality disorder.
Plaintiff has no prior work
experience for which he reported earnings. 1
After the state agency denied Plaintiff’s application twice,
Plaintiff requested an administrative hearing.
Two hearings were
held before an ALJ on June 5, 2015 and February 11, 2016.
29, 2016, the ALJ issued his decision, which determined that
Plaintiff was not disabled.
On August 30, 2016, the Appeals
Council denied Plaintiff’s request for review, rendering the ALJ’s
decision the final decision of the Commissioner.
The record shows that Plaintiff earned an associate’s degree in
travel and tourism and a bachelor’s degree in computer science,
and he worked as a chess instructor and earned money from playing
chess in informal competitions.
this civil action for review of the Commissioner’s decision.
Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
A reviewing court must
uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”
42 U.S.C. §§ 405(g),
1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001);
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
evidence means more than “a mere scintilla.”
Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co.
V. NLRB, 305 U.S. 197, 229 (1938)).
It means “such relevant
evidence as a reasonable mind might accept as adequate to support
The inquiry is not whether the reviewing
court would have made the same determination, but whether the
Commissioner’s conclusion was reasonable.
See Brown v. Bowen, 845
F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984).
“[A] court must ‘take into account whatever in the record fairly
detracts from its weight.’” Schonewolf v. Callahan, 972 F. Supp.
277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health &
Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal
Camera Corp. V. NLRB, 340 U.S. 474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”
v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster
v. Heckler, 786 F.2d 581 (3d Cir. 1986)).
The Third Circuit has
held that an “ALJ must review all pertinent medical evidence and
explain his conciliations and rejections.”
Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
ALJ must also consider and weigh all of the non-medical evidence
Id. (citing Van Horn v. Schweiker, 717 F.2d 871, 873
(3d Cir. 1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d Cir.
The Third Circuit has held that access to the Commissioner’s
reasoning is indeed essential to a meaningful court review:
Unless 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 substantial 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).
ALJ, as the fact finder, must consider and evaluate the medical
evidence presented, Fargnoli, 247 F.3d at 42, “[t]here is no
requirement that the ALJ discuss in its opinion every tidbit of
evidence included in the record,” Hur v. Barnhart, 94 F. App’x
130, 133 (3d Cir. 2004).
In terms of judicial review, a district
court is not “empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder.”
Williams, 970 F.2d at
However, apart from the substantial evidence inquiry, a
reviewing court is entitled to satisfy itself that the
Commissioner arrived at his decision by application of the proper
Sykes, 228 F.3d at 262; Friedberg v. Schweiker,
721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp.
791, 793 (D.N.J. 1981).
Standard for Disability Insurance Benefits
The Social Security Act defines “disability” for purposes of
an entitlement to a period of disability and disability insurance
benefits as the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death, or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.
See 42 U.S.C. §
Under this definition, a Plaintiff qualifies as
disabled only if his physical or mental impairments are of such
severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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
42 U.S.C. § 1382c(a)(3)(B) (emphasis added).
The Commissioner has promulgated regulations for determining
disability that require application of a five-step sequential
See 20 C.F.R. § 404.1520.
This five-step process is
summarized as follows:
If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”
If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”
If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1
and has lasted or is expected to last for a continuous
period of at least twelve months, the claimant will be
If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”
Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience to
determine whether or not he is capable of performing
other work which exists in the national economy. If he
is incapable, he will be found “disabled.” If he is
capable, he will be found “not disabled.”
20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is therefore
dependent upon a finding that the claimant is incapable of
performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150,
1153 (3d Cir. 1983).
In the first four steps of the analysis, the
burden is on the claimant to prove every element of his claim by a
preponderance of the evidence.
In the final step, the
Commissioner bears the burden of proving that work is available
for the Plaintiff: “Once a claimant has proved that he is unable
to perform his former job, the burden shifts to the Commissioner
to prove that there is some other kind of substantial gainful
employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775,
777 (3d Cir. 1987); see Olsen v. Schweiker, 703 F.2d 751, 753 (3d
At step one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since the alleged onset of
disability, July 2, 2011.
At step two, the ALJ found that
Plaintiff’s impairments of status-post colon cancer, degenerative
disc disease of the lumbar spine, history of migraines, obesity,
major depressive disorder and personality disorder were severe.
At step three, the ALJ determined that Plaintiff’s severe
impairments or his severe impairments in combination with his
other impairments did not equal the severity of one of the listed
At step four, the ALJ determined that Plaintiff had
no relevant past work, but found that Plaintiff retained the
residual functional capacity to work at the sedentary level 2 with
certain restrictions in jobs such as a caretaker, DOT #301.687010; photocopy machine operator, DOT #207.685- 014; marker, DOT
#209.587-034; taper, DOT #017.684-010; document preparer, DOT
#249.587-018; addresser, DOT #209.587-010 (step five).
Accordingly, the ALJ found that Plaintiff was not disabled.
Plaintiff presents four areas where he claims the ALJ erred
in his analysis:
1. The ALJ erred by failing to include absenteeism in
See 20 C.F.R. § 404.1567(a) (“Sedentary work. Sedentary work
involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary
criteria are met.”)
the residual functional capacity (“RFC”) evaluation.
2. The ALJ erred by finding that Plaintiff was capable
of performing the jobs identified by the Vocational Expert
3. The ALJ erred when he improperly found that the
testimony of the VE was consistent with the Dictionary of
4. The ALJ erred by improperly accepting the numbers of
jobs cited by the VE as available in the national economy.
The Court finds that the ALJ did not err in these ways, and
holds that substantial evidence supports the ALJ’s decision that
Plaintiff retains the residual functional capacity to perform
sedentary work with certain limitations.
1. Whether the ALJ erred by failing to include
absenteeism in the residual functional capacity (“RFC”)
The ALJ found Plaintiff’s RFC to be as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined
in 20 CFR 416.967(a) except with no climbing of ladders
or crawling; occasional climbing of stairs; frequent
balancing, stooping, kneeling or crouching; and
occasional exposure to extreme cold, vibrations or
He is further limited to
understanding, remembering and carrying out simple
instructions in a work setting where co-worker and
public interaction is occasional.
(R. at 24.)
Plaintiff challenges this finding because he contends that
the ALJ was required to include absenteeism in Plaintiff’s RFC.
Specifically, Plaintiff points out that his treating medical
provider, Lariden Ruffin, APN, determined that Plaintiff would
likely be absent from work about twice a month due to his
impairments and treatments.
Plaintiff contends that because the
ALJ did not explicitly state the weight he afforded to Ruffin’s
two-days-a-month absenteeism opinion, the ALJ erred because this
opinion addressed a functional limitation which must be included
in the RFC and cannot be ignored without explanation.
Plaintiff’s argument is unavailing.
In making a RFC
determination, the ALJ is required to do the following:
In determining whether you are disabled, we consider all your
symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence. By objective
medical evidence, we mean medical signs and laboratory
findings . . . . By other evidence, we mean . . . statements
or reports from you, your treating or nontreating source, and
others about your medical history, diagnosis, prescribed
treatment, daily activities, efforts to work, and any other
evidence showing how your impairment(s) and any related
symptoms affect your ability to work. . . .
20 C.F.R. § 404.1529.
The RFC reflects “what [the claimant] can
still do despite [his or her] limitations,” 20 C.F.R. §
416.945(a), and the controlling regulations are clear that the RFC
finding is a determination expressly reserved to the Commissioner,
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2), 404.1546(c),
It is true, the ALJ did not specifically address Ruffin’s
opinion that Plaintiff was required to take unscheduled breaks
every 90 minutes or be absent from work twice per month.
when determining Plaintiff’s RFC, the ALJ provided a detailed
recitation of the medical evidence, as well as Plaintiff’s
testimony and his self-completed functional reports.
summarized the findings, and then explained why he afforded
certain weight to a particular opinion by Ruffin and why he
rejected another provider’s four-days-a-month absenteeism
In the case of Ruffin’s provider report, the ALJ
summarized all of Ruffin’s findings related to Plaintiff’s ability
to sit, stand, walk, and be exposed to environmental elements such
as dust and fumes.
(R. at 31.)
The ALJ afforded Ruffin’s
opinions partial weight overall, and specifically (1) afforded
great weight to Ruffin’s sitting limitations, (2) rejected
Ruffin’s standing and walking limitations finding them too
permissive, (3) accepted Ruffin’s environmental restrictions and
added additional considerations due to Plaintiff’s migraines, and
(4) found the absence of any lifting, carrying, and postural
limitations in Ruffin’s report to be specious.
The regulations provide that the ALJ may reject the opinion
of a treating medical source when it is not supported by medically
acceptable clinical or diagnostic techniques or inconsistent with
other substantial evidence regardless of the treatment
See 20 C.F.R. § 404.1527(d)(2)-(3).
In this case,
the ALJ discussed Ruffin’s medical opinions and contrasted them
with the other medical evidence in the record, as well as
Plaintiff’s own statements.
In doing so, the ALJ found Ruffin’s
opinions to be consistent in some ways and inconsistent in other
ways, including opinions that were not restrictive enough based on
the other evidence in the record, as well as in other areas that
were completely lacking in support.
The ALJ accordingly afforded
Ruffin’s opinions as a whole partial weight.
Thus, the ALJ
satisfied his burden of explaining why he weighed all of Ruffin’s
opinions as he did, an analysis which as a whole encompassed
Ruffin’s absentee opinion.
The requirement that an ALJ must specifically address a
treating physicians opinions arose from situations where the ALJ
simply ignored probative evidence or without explanation afforded
no or limited weight to a treating source’s opinion.
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (“[W]e need from the
ALJ not only an expression of the evidence s/he considered which
supports the result, but also some indication of the evidence
which was rejected.
In the absence of such an indication, the
reviewing court cannot tell if significant probative evidence was
not credited or simply ignored.”).
That is not the case here.
Cf. Crosby v. Barnhart, 98 F. App’x 923, 925 (3d Cir. 2004) (“[I]n
this case the ALJ did not reject, explicitly or implicitly, the
proffered evidence. The ALJ merely afforded Dr. Campbell's opinion
less than controlling weight, because the opinion was contradicted
by other doctors and itself had portions both supporting and
undermining Crosby's claim.”); Ramos v. Berryhill, 2017 WL
3393806, at *3 (D.N.J. 2017) (“While an ALJ may not reject
probative evidence without explanation, the ALJ need not cite
specific reasons for implicitly rejecting evidence which is
irrelevant or discounted by other evidence in the record.”).
Moreover, an ALJ is not required to go line-by-line through a
report and explain the weight he is providing to every one of a
medical provider’s findings.
See Hur v. Barnhart, 94 F. App’x
130, 133 (3d Cir. 2004) (“There is no requirement that the ALJ
discuss in its opinion every tidbit of evidence included in the
record.”); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001)
(“[W]e do not expect the ALJ to make reference to every relevant
treatment note in a case where the claimant . . . has voluminous
The ALJ’s analysis of Ruffin’s reports, as he
compared them with the other evidence in the record, demonstrates
that substantial evidence supports his RFC determination,
including the determination that Plaintiff’s RFC did not require a
limitation for absenteeism.
Accordingly, the ALJ did not err by
not including Ruffin’s absenteeism opinion in Plaintiff’s RFC.
2. Whether the ALJ erred by finding that Plaintiff was
capable of performing the jobs identified by the
Vocational Expert (“VE”).
Plaintiff argues that the VE provided jobs that were not at
the sedentary level, and therefore the ALJ’s determination that
Plaintiff was capable of the jobs suggested by the VE was in
Plaintiff also argues that the ALJ erred in finding that
Plaintiff was capable of performing the work identified by the VE
because the VE acknowledged that if a person needed to tell his
co-workers to go away when he wanted to be alone due to his mental
impairments, that person would not be capable of any job.
Neither argument is availing.
To support the step five
determination, the ALJ is only required to identify a single job
within the claimant's capacity that exists in significant numbers
in the national economy.
Lippincott v. Commissioner of Social
Sec., 982 F. Supp. 2d 358, 384 (D.N.J. 2013) (citing 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).”); 20
C.F.R. § 416.966(b) (same)).
Even accepting that the caretaker,
photocopy machine operator, and marker are not sedentary jobs,
Plaintiff does not argue that a taper, document preparer, or
addresser are not sedentary jobs.
Thus, the ALJ did not err by
relying up on the VE to find that jobs existed in the national
economy that Plaintiff was capable of performing.
The ALJ also did not err when he did not rely on the VE’s
testimony that no jobs would accommodate a person with Plaintiff’s
RFC who, at his own discretion, wanted his co-workers to go away.
The RFC limited Plaintiff to occasional interaction with coworkers and the public – it did not allow for Plaintiff to
unilaterally demand solitude at his job when he wished to be
Because Plaintiff does not dispute that several of the
jobs offered by the VE afforded minimal contact with co-workers
and the public, those jobs meet Plaintiff’s RFC, and satisfy the
ALJ’s burden at step five.
3. Whether the ALJ erred when he found that the
testimony of the VE was consistent with the Dictionary
of Occupational Titles.
Plaintiff argues that a conflict existed between the VE’s
testimony about available jobs and the reasoning level of those
Specifically, Plaintiff contends that the reasoning levels
of the jobs suggested by the VE were 2 and 3, while Plaintiff’s
RFC mirrored a reasoning level of 1. 3
Because the reasoning level
of the jobs conflicted with Plaintiff’s RFC, the ALJ had a duty to
ask the VE about the conflict.
Plaintiff claims his failure to do
so warrants remand.
The Court does not agree.
SSR 00-4p provides, “When a VE or
VS provides evidence about the requirements of a job or
occupation, the adjudicator has an affirmative responsibility to
ask about any possible conflict between that VE or VS evidence and
information provided in the DOT. In these situations, the
adjudicator will: Ask the VE or VS if the evidence he or she has
provided conflicts with information provided in the DOT; and If
the VE's or VS's evidence appears to conflict with the DOT, the
adjudicator will obtain a reasonable explanation for the apparent
“The DOT is a vocational dictionary that lists and defines all
jobs available in the national economy and specifies what
qualifications are needed to perform each job.” Zirnsak v.
Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (citing Appendix C,
Dictionary of Occupational Titles, available at
www.occupationalinfo. org/appendxc_1.html) (other citations
omitted). The qualification categories listed by the DOT for each
job include the job’s Strength level, General Educational
Development (“GED”) level, and its Specific Vocational Preparation
(“SVP”) level. Strength level “reflects the estimated overall
strength requirement of the job.” GED measures the “those aspects
of education (formal and informal) which are required of the
worker for satisfactory job performance.” GED is broken into
three categories: (1) reasoning development, (2) mathematical
development, and (3) language development. Reasoning levels in the
DOT range from level 1 to level 6.
It does not appear that the ALJ explicitly asked the VE
whether the suggested jobs conflicted with the DOT.
Such an error
is harmless and will not result in remand when no conflict exists.
Zirnsak v. Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (citations
omitted) (“[T]his Circuit has emphasized that the presence of
inconsistencies does not mandate remand, so long as substantial
evidence exists in other portions of the record that can form an
appropriate basis to support the result.”); Jackson v. Barnhart,
120 F. App’x 904, 906 (3d Cir. 2005) (“[E]ven if it was error for
the ALJ to fail to solicit testimony about potential conflicts
between this portion of the VE's testimony and the DOT, the error
Where substantial evidence supports the ALJ's
opinion and where the failure to solicit the testimony
contemplated in SSR 00–4p is harmless, this court will not reverse
the ALJ's decision) (citing Jones v. Barnhart, 364 F.3d 501, 506
(3d Cir. 2004) (“[T]his Court has not adopted a general rule that
an unexplained conflict between a VE's testimony and the DOT
necessarily requires reversal.”) (other citation omitted)).
Here, the ALJ’s failure to ask the VE about any conflicts is
harmless because there is no conflict between Plaintiff’s RFC and
the reasoning level of the jobs suggested by the VE. 4
RFC limited him to “understanding, remembering and carrying out
Plaintiff argues that this limitation
aligns with Level 1 reasoning.
Level 3 reasoning is: Apply commonsense understanding
to carry out instructions furnished in written, oral, or
diagrammatic form. Deal with problems involving several
concrete variables in or from standardized situations.
Level 2 reasoning is: Apply commonsense understanding to
carry out detailed but uninvolved written or oral
instructions. Deal with problems involving a few concrete
variables in or from standardized situations.
Level 1 reasoning is: Apply commonsense understanding to
carry out simple one- or two-step instructions. Deal with
standardized situations with occasional or no variables in or
from these situations encountered on the job.
Dictionary of Occupational Titles, Appendix C.
Plaintiff further argues that all the jobs suggested by the
VE were Level 2 and Level 3 jobs, and therefore he is not capable
of doing any of them.
The Court does not agree.
Procedurally, the posture of the issue in this case is the same
as in Zirnsak v. Colvin, 777 F.3d 607, 617 (3d Cir. 2014), where
the ALJ asked the VE about any potential conflicts between the
suggested jobs and the DOT, but the VE failed to raise as a
conflict the reasoning level of those jobs. The Third Circuit
explained that because “the VE did not identify the reasoning
level inconsistency at the hearing, the ALJ did not elicit an
explanation for that inconsistency or explain in its decision how
the conflict was resolved,” and “[t]herefore, we must determine
whether there is substantial evidence in the record that still
supports the ALJ's determination.” Zirnsak, 777 F.3d at 617
First, the Third Circuit observed that “there is no brightline rule stating whether there is a per se conflict between a job
that requires level 3 reasoning and a finding that a claimant
should be limited to simple and routine work.”
Zirnsak, 777 F.3d
Second, Plaintiff has not pointed to any authority that
classifies the limitation of “understanding, remembering and
carrying out simple instructions” to only Level 1 jobs.
the positions are all classified as “unskilled,” which suggests
that the jobs require minimal reasoning ability, regardless if
they are classified at the 2 or 3 reasoning level. See 20 C.F.R. §
416.968(a) (“Unskilled work is work which needs little or no
judgment to do simple duties that can be learned on the job in a
short period of time.”); Money v. Barnhart, 91 F. App’x 210, 215
(3d Cir. 2004) (“Money makes the assumption that even a reasoning
level of 2, where 1 is the lowest possible level of reasoning, is
incompatible with the ALJ's decision in her RFC that her jobs must
However even level two only requires a person to
‘[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions[; d]eal with problems
involving a few concrete variables in or from standardized
Working at reasoning level 2 would not contradict
the mandate that her work be simple, routine and repetitive.”).
Finally, as discussed in Zirnsak, Plaintiff has not
articulated how he would not be capable of the suggested jobs at
their reasoning levels, considering that he has an associate’s
degree and a bachelor’s degree, and in June 2015 he reported that
he played chess, read chess books, attended Bible study, and
participated in church missions.
(R. at 26.)
See Zirnsak, 777
F.3d at 618–19 (noting that Zirnsak's counsel did not question the
VE regarding inconsistencies at all, and that Zirnsak does not
seriously argue that she is incapable of performing the jobs order clerk, charge account clerk, or telephone quotation clerk recommended by the VE, and the record establishes that Zirnsak
could perform these jobs since she Zirnsak completed tenth grade
and testified that she received her GED or further education).
Therefore, substantial evidence in the record supports the
finding that Plaintiff is capable of performing the jobs suggested
by the VE, and the ALJ’s failure to ask the VE about possible
conflicts is harmless due to the lack of any actual conflict.
4. Whether the ALJ erred by accepting the numbers of
jobs cited by the VE as available in the national
Plaintiff’s final argument on appeal is that he questions the
source and validity of the VE’s statistics that purport to support
the availability of jobs in the national economy.
points out that the jobs identified by the VE have not been
updated since 1977 (caretaker, photocopy machine operator, marker
and addresser 5) and 1986 (taper 6 and document preparer 7) and are
The VE testified the following job was available nationally in
the numbers indicated:
209.587-010 ADDRESSER (96,000 jobs nationally): Addresses by hand
or typewriter, envelopes, cards, advertising literature, packages,
and similar items for mailing. May sort mail.
The VE testified the following job was available nationally in
the numbers indicated:
017.684-010 TAPER, PRINTED CIRCUIT LAYOUT (206,000 jobs
nationally): Places (tapes) adhesive symbols and precision tape on
sheets of mylar in conformance with preliminary drawing of printed
circuit board (PCB) to produce master layout: Places, aligns, and
secures preliminary drawing of PCB and successive layers of
transparent sheets of mylar on lighted drafting table, using
register bar. Selects specified symbols and width of tape to
indicate peak voltage potential. Cuts tape and places tape and
adhesive symbols on specified sheets of mylar to outline board
size, to indicate connector pads, placement of various components,
and to trace circuitry of PCB as indicated on underlying
preliminary drawing, using utility knife, precision grid, and
straightedge. Places specified adhesive identification and
reference numbers on master layout. Reproduces blueprint copy of
master layout, using print machine. Inspects copy to verify
The VE testified the following job was available nationally in
the numbers indicated:
249.587-018 DOCUMENT PREPARER (38,000 jobs nationally): 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
woefully outdated – e.g., the addresser job is someone who
addresses by hand or typewriter envelopes and similar items, and
the VE testified that there are 96,000 of such jobs in the
Plaintiff cites to case law from other circuits
that have similarly questioned the SSA’s use of the DOT for job
descriptions and the questionable statistics for those jobs.
e.g., Alaura v. Colvin, 797 F.3d 503, 507–08 (7th Cir. 2015)
(Posner, J.) (“We have recently expressed concern with the source
and validity of the statistics that vocational experts trot out in
social security disability hearings.
The problem appears to be
that the only reliable statistics are census data for broad
categories of jobs, rather than for jobs in the narrower
categories that the applicant for benefits is capable of doing.
Typically, it appears, the vocational expert simply divides the
number of jobs in the broad category that includes the narrow
category of jobs that the applicant can perform by the number of
narrow categories in the broad category, thus assuming that each
photocopying machine. Stamps standard symbols on pages or inserts
instruction cards between pages of material to notify MICROFILMCAMERA 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.
narrow category has the same number of jobs as each other narrow
category—which is preposterous.
A vocational expert's stated
number of jobs in a narrow category seems likely, therefore, to be
a fabrication.” (internal citations omitted).);
Id. at 508 (“It's
hard to believe that, as the vocational expert testified in this
case, there are 200,000 people in the United States for whom this
is a full-time job.
And does anyone use a typewriter any more?
Most addressing nowadays is either personal, as when one is
sending a Christmas or get-well card, or automated, as in the case
of business mailings, including mass mailings of advertisements or
Even though this Court recognizes the concerns expressed by
former Judge Posner and the Seventh Circuit, and echoed by
Plaintiff in this case, the SSA Regulations direct that an ALJ is
to take notice of job information available from various
governmental and other publications, such as the Dictionary of
Occupational Titles, County Business Patterns, Census Reports,
Occupational Analyses, and Occupational Outlook Handbook, as well
as engage the services of a vocational expert.
20 C.F.R. §
It is not for this Court to reform the methodology
that SSA VEs use to determine available and appropriate jobs in
the national economy that match a claimant’s RFC.
The Court also cannot otherwise direct that an ALJ should not
consider the DOT and VE testimony when performing the step five
analysis, which would be in contravention of SSA regulations.
See, e.g., Weir v. Colvin, 2016 WL 4083524, at *3 (W.D. Wis. 2016)
(stating that Weir's argument - taking issue with the VE's
testimony regarding the number of jobs available to her in
Wisconsin - was well taken, and noting that the Seventh Circuit
has recently articulated concerns with VE testimony, both in terms
of calculating the number of jobs available in the national
economy and relying too heavily on vague references to their own
“experience” to support their testimony, but finding that “Weir's
criticism of the VE's methodology is not a basis for remand until
appellate precedent instructs that relying on the methodology is
reversible error”); cf. Rivera v. Berryhill, 242 F. Supp. 3d 1226,
2017) (“In sum, while the Court takes note of the
lack of confidence expressed by the Seventh Circuit towards VEs
and the testimony they offer, Plaintiff has cited nothing
indicating that the Tenth Circuit harbors these same reservations.
To the contrary, the Tenth Circuit is incredibly deferential
towards VE testimony so long as the ALJ complies with the mandates
of Haddock and SSR 00–4p. Indeed, what would be the point of
vocational testimony (or expert testimony in general) if it could
not reach beyond matters already established through
administrative (or judicial) notice?” (internal citations and
quotations omitted)); Lillis v. Colvin, 2017 WL 784949, at *5 (D.
Conn. 2017) (“[I]t would be helpful if the Second Circuit would
weigh in on this precise issue and engage thoroughly the reasoning
in Judge Posner's opinion in Alaura.
As the law stands now,
though, this Circuit does not require the level of scrutiny of a
VE's methods Plaintiff seeks.”); Feeley v. Commissioner of Social
Sec., 2015 WL 3505512, at *11 (D.N.J. 2015) (finding that two of
the jobs offered by the VE were obsolete, but two others did “not
unlock memories of the Reagan era,” and noting that the “O*Net
seems to have replaced the Dictionary of Occupational Titles,” and
the “SSA may wish to reconsider its persistent reliance on the DOT
in disability proceedings,” and further noting that the “SSA
itself has stated (albeit in a notice in the Federal Register more
than six years ago) that it ‘plans ... to replace the Dictionary
of Occupational Titles’” (internal citations omitted)).
Accordingly, the Court does not find that the ALJ’s reliance
on the VE’s testimony to be in error based on Plaintiff’s general
dissatisfaction with the SSA’s reliance on the VE’s use of the DOT
and current statistical methodologies. 8
Plaintiff has not specifically challenged the reliability of the
For the reasons expressed above, the ALJ’s determination that
Plaintiff is not totally disabled is supported by substantial
The decision of the ALJ is therefore affirmed.
An accompanying Order will be issued.
Date: September 27, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.DJ.
job numbers of the three sedentary positions suggested by the VE,
and therefore the Court cannot determine sua sponte whether the
VE’s numbers are valid or the job descriptions accurate.
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