BENTON v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Noel L. Hillman on 5/29/2019. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SEAN A. BENTON,
1:18-cv-09478-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
ALAN H. POLONSKY
POLONSKY AND POLONSKY
512 S. WHITE HORSE PIKE
AUDUBON, NJ 08106
On behalf of Plaintiff
PATRICIA ANNE STEWART
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET, 6TH FLOOR
PHILADELPHIA, PA 19123
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 Disability
Insurance Benefits (“DIB”) 1 and Supplemental Security Income

1

DIB is a program under the Social Security Act to provide
disability benefits when a claimant with a sufficient number of
1

(“SSI”) 2 under Title II and Title XVI of the Social Security
Act. 3

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,
August 1, 2012.

For the reasons stated below, this Court will

affirm that decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On March 21, 2013, Plaintiff, Sean A. Benton, protectively

filed 4 an application for DIB, and on March 4, 2014, Plaintiff

quarters of insured employment has suffered such a mental or
physical impairment that the claimant cannot perform substantial
gainful employment for at least twelve months. 42 U.S.C. § 423
et seq.
2

Supplemental Security Income is a program under the Social
Security Act that provides supplemental security income to
individuals who have attained age 65, or are blind or disabled.
42 U.S.C. § 1381 et seq.
3

The standard for determining whether a claimant is disabled is
the same for both DIB and SSI. See Rutherford v. Barnhart, 399
F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted).
DIB regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and
the parallel SSI regulations are found at 20 C.F.R. §§ 416.900416.999, which correspond to the last two digits of the DIB
cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §
416.945). The Court will provide citations only to the DIB
regulations. See Carmon v. Barnhart, 81 F. App’x 410, 411 n.1
(3d Cir. 2003) (explaining that because “[t]he law and
regulations governing the determination of disability are the
same for both disability insurance benefits and [supplemental
security income],” “[w]e provide citations only to the
regulations respecting disability insurance benefits”).
4

A protective filing date marks the time when a disability
2

protectively filed an application for SSI alleging that he
became disabled as of August 1, 2012. 5

Plaintiff claims that he

can no longer work at his previous job as a toll collector
because he suffers from a substance abuse disorder and affective
disorder (bipolar). 6
After Plaintiff’s initial claim was denied and upon
reconsideration, Plaintiff requested a hearing before an ALJ,
which was held on January 5, 2017.
issued an unfavorable decision.

On April 19, 2017, the ALJ

Plaintiff’s Request for Review

of Hearing Decision was denied by the Appeals Council on April
23, 2018, making the ALJ’s April 19, 2017 decision final.
Plaintiff brings this civil action for review of the

applicant made a written statement of his or her intent to file
for benefits. That date may be earlier than the date of the
formal application and may provide additional benefits to the
claimant. See SSA Handbook 1507; SSR 72-8.
5

Even though Plaintiff contends that his onset date of
disability is August 1, 2012, the relevant period for
Plaintiff’s SSI claim begins with his March 4, 2014 application
date, through the date of the ALJ’s decision on April 19, 2017.
See 20 C.F.R. § 416.202 (claimant is not eligible for SSI until,
among other factors, the date on which he or she files an
application for SSI benefits); 20 C.F.R. § 416.501 (claimant may
not be paid for SSI for any time period that predates the first
month he or she satisfies the eligibility requirements, which
cannot predate the date on which an application was filed).
This difference between eligibility for SSI and DIB is not
material to the Court’s analysis of Plaintiff’s appeal.
6

Plaintiff was 26 years old at the time of the alleged
disability onset date, which is defined as a younger individual
(age 18-49). (20 C.F.R. § 416.963.)
3

Commissioner’s decision.
II.

DISCUSSION
A.

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 social security benefits.
55 F.3d 900, 901 (3d Cir. 1995).

Ventura v. Shalala,

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).
more than “a mere scintilla.”

Substantial evidence means

Richardson v. 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 a
conclusion.”

Id.

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
totality.
1984).

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.
4

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.”
Ogden 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).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
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).
5

Although

an 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 1182.

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 legal standards.

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).
B.

Standard for DIB and SSI

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.
1382c(a)(3)(A).

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
6

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 for work.

42 U.S.C. § 1382c(a)(3)(B)

(emphasis added).
The Commissioner has promulgated regulations 7 for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

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 found “disabled.”

4.

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.”

5.

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

7

The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. The parties do not argue
that any of these amendments are relevant to Plaintiff’s appeal.
7

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.

See id.

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 Cir. 1983).
C.

Analysis

At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset of
disability.

At step two, the ALJ found that Plaintiff’s

impairments of substance abuse and affective disorder were
severe.
parts.

The ALJ then considered steps three through five in two
First, the ALJ considered Plaintiff’s substance abuse
8

and affective disorder together.

When considered together, 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 impairments.

At step four, the ALJ determined that

Plaintiff’s residual functional capacity (“RFC”) did not allow
him to work at his past job, and at step five that no jobs in
the national economy existed that Plaintiff could perform.
Second, the ALJ considered Plaintiff’s mental impairment
separate from his substance abuse. 8

The ALJ again found that

Plaintiff’s mental disorder did not equal the severity of one of
the listed impairments.

The ALJ determined a different RFC

based on his mental impairment alone if Plaintiff stopped his

8

An individual cannot be found disabled if drug or alcohol abuse
was a contributing factor material to the Commissioner’s
determination that the individual is disabled. When drug
addiction is at issue, and an individual is found disabled at
any step of the sequential evaluation process, the ALJ must
determine whether drug addiction is a “contributing factor
material to the determination of disability.” 20 C.F.R. §§
404.1535(a), 416.935(a). To make this determination, the ALJ
must decide whether a claimant would still be disabled if he
stopped abusing drugs. 20 C.F.R. §§ 404.1535(b), 416.935(b).
If a claimant would not be disabled if he stopped abusing drugs,
then drug addiction is material to the determination of
disability and the claimant will not be found disabled. 20
C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i). Conversely, if a
claimant would still be disabled independent of drug abuse, then
drug addiction is not considered material to the determination
of disability and the claimant will be found disabled.
20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(a).

9

substance abuse and found that even though he was not able to
perform his past work as a toll collector, he retained the RFC
to perform a full range of work with certain restrictions due to
his non-exertional limitations.

The ALJ found that Plaintiff

was capable of making a successful adjustment to other jobs in
the national economy, such as a general worker, cart attendant, 9
and tree planter.

The ALJ concluded that because Plaintiff’s

substance use disorder was a contributing factor material to the
determination of disability, Plaintiff could not be found
disabled under Social Security regulations.
Plaintiff argues that the ALJ erred in two ways.

Plaintiff

argues that there is only a one-sentence difference between the
ALJ’s two RFC determinations, and the ALJ’s decision is silent
as to why the limitations from the first RFC was excluded by the
ALJ in the second RFC.

Plaintiff also argues that the ALJ did

not properly support the finding that Plaintiff was capable of
performing the jobs set forth in the decision.
1.

Whether the ALJ erred in her RFC determination

The ALJ made two RFC determinations, 10 one considering
Plaintiff’s mental impairments and his substance abuse, and the

9

As discussed below, the decision states “car attendant,” but
that is a typographical error. The job is a “cart attendant.”
(R. at 71.)
10

The RFC reflects “what [the claimant] can still do despite
[his or her] limitations.” 20 C.F.R. § 416.945(a).
10

other considering only Plaintiff’s mental impairments.
[1] After careful consideration of the entire record, I
find that, based on all of the impairments, including the
substance use disorders, the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels[11] but with the following nonexertional
limitations: able to understand, remember, and carry out
simple, routine, and repetitive tasks; in a work
environment free of fast paced production requirements;
involving only simple, work-related decisions; with few, if
any, work place changes. The claimant can work two hours
without a break. The claimant can have occasional contact
with supervisors and coworkers in proximity, but not on
joint or shared tasks, working primarily with things rather
than people and no contact with the public. On at least an
occasional basis, the claimant will have inappropriate
contact with supervisors or coworkers and conduct
unacceptable to the employer.
(R. at 19.)
[2] If the claimant stopped the substance use, the claimant
would have the residual functional capacity to perform a
full range of work at all exertional levels, but with the
following nonexertional limitations: able to understand,
remember, and carry out simple, routine, and repetitive
tasks; in a work environment free of fast paced production
requirements; involving only simple, work-related
decisions; with few, if any, work place changes. The
claimant can work two hours without a break. The claimant
can have occasional contact with supervisors and coworkers
in proximity, but not on joint or shared tasks, working
primarily with things rather than people and no contact
with the public.
(R. at 27.)
Plaintiff argues that the final sentence of the first RFC –
“On at least an occasional basis, the claimant will have
See 20 C.F.R. §  404.1567 (“To determine the physical exertion
requirements of work in the national economy, we classify jobs
as sedentary, light, medium, heavy, and very heavy.”).
11

11

inappropriate contact with supervisors or coworkers and conduct
unacceptable to the employer.” - is missing from the second RFC
without any explanation from the ALJ.

Because of this,

Plaintiff argues the ALJ’s RFC determination is not supported by
substantial evidence.
Contrary to Plaintiff’s argument, the ALJ provides a
detailed analysis of the record evidence to explain that when
Plaintiff’s substance abuse is removed from the analysis,
Plaintiff’s ability to interact with others improves to a level
that renders him capable of performing work in the national
economy.
When the ALJ presented the first RFC to the vocational
expert (“VE”), the VE testified that no employer would tolerate
unacceptable behavior, and no jobs existed under that RFC.
at 26.)

(R.

The ALJ continued to examine the record evidence and

found that “the claimant has an affective disorder separate from
his substance abuse disorder,” and “[b]ased on the record
detailed above, if the claimant stopped abusing substances, he
would still have some work-related limitations, but not to the
same degree.”

(R. at 28.)

The ALJ concluded:

In terms of the claimant's alleged impairments, his medical
treatment has been conservative. He has been hospitalized
only on rare occasion for his impairments. His medications
are not unusual for either type or dosage, and they appear
to have been effective and with few adverse side effects.
Further, the record indicates that the claimant engages in
a reasonably broad range of daily living activities. While
12

the claimant appeared sincere and insightful about his
issues, I find that his allegations are nevertheless
inconsistent with the overall record. The medical evidence
of record reflects a greater substance abuse problem than a
mental one. The medical evidence is not entirely consistent
with the claimant's testimony.
(R. at 29.)
After discussing the effect Plaintiff’s substance abuse
played in his RFC, the ALJ determined that the limitation
included in the first RFC was not necessary in the second RFC
which considered Plaintiff’s mental impairments alone.

Because

the ALJ properly supported her RFC determinations, the Court
does not find that the ALJ erred on this issue.

See Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (U.S. 2019) (reiterating that
the threshold for such evidentiary sufficiency under the
substantial evidence standard is not high, and it “means - and
means only - such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion” (citations
omitted)).
2.

Whether the ALJ erred at step five

Once it has been determined that a claimant is not capable
of performing his past relevant work, the burden shifts to the
ALJ to show that the claimant’s RFC permits the claimant to
perform other jobs that exist in significant numbers in the
national economy.

20 C.F.R. § 404.1520(b)-(f).

In this case,

the ALJ determined that Plaintiff’s RFC based on his mental

13

impairments alone rendered him capable of performing three jobs:
(1) general worker (DOT code 979.687-034), which requires a
residual functional capacity for medium work, has an SVP of 1,
and has an availability of 3,708 jobs nationally; (2) cart
attendant (DOT code 920.687-014), which requires a residual
functional capacity for medium work, has an SVP of 2, and has an
availability of 128,033 jobs nationally; and (3) tree planter
(DOT code 452.687-018), which requires a residual functional
capacity for heavy work, has an SVP of 1, and has an
availability of 1,940 jobs nationally. 12
Plaintiff argues that the ALJ erred in this finding on each
of these three jobs.

Plaintiff points out that even though the

VE testified that the general worker job is a helper position
that requires interaction with people, and the ALJ agreed that
such a job did not align with Plaintiff’s RFC, the ALJ
nonetheless included the position in her decision.

Plaintiff

also argues that the “car attendant” job is actually a “cart
attendant,” which is akin to a bagger in a grocery store, and
even though that job suggested by the VE was not challenged by
Plaintiff’s representative at the hearing, such a job obviously

12

The DOT lists a specific vocational preparation (SVP) time for
each described occupation. Using the skill level definitions in
20 CFR 404.1568 and 416.968, unskilled work corresponds to an
SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and
skilled work corresponds to an SVP of 5-9 in the DOT.
14

requires contact with people, which is contrary to Plaintiff’s
RFC. 13
Finally, Plaintiff argues against the tree planter job as
follows:
That leaves us with only one, solitary job; that of tree
planter, of which the vocational witness stated, and the
Administrative Law Judge found, there were only 1,940 such
jobs in the United States. We know of no case that
definitively states what actually are “a significant number
of jobs” at Step Five. At this point, we only suggest that
even if there were this number of people engaged full time
as tree planter, being able to perform that one, solitary
occupation would not amount to a significant number in an
economy that employs 155,962,000 thousand people as of last
report.
There are other problems as well. As it was not raised at
the hearing, the residual functional capacity found by the
Administrative Law Judge included the idea that Benton was
only able to have “occasional contact with supervisors”.
We can imagine that there are jobs where in time spent,
13

The DOT code 920.687-014 for “cart attendant” is actually
titled “bagger (retail trade) alternate titles: grocery packer.”
While the description provides for some functions that require
interaction with customers, many other functions do not:
Bags groceries at grocery store: Packs grocery items in
sacks or cartons, arranging heavy and bulky items at bottom
of sack or carton. Verifies price of grocery item in
question against price of items on stock shelf, upon
request. Carries packed sacks, or places sacks in grocery
cart, and pushes cart to customer's vehicle, upon request.
Places groceries into customer's vehicle. Collects shopping
carts from parking lot and surrounding areas and returns
carts to store. Replaces cleaning and packing supplies used
at grocery checkout counter. Returns grocery items left at
checkout counter to specified stock shelves. Cleans work
area and carries empty bottles and trash to storeroom. May
price and place grocery articles on shelves. May assist in
unloading delivery trucks.
Id.
15

there may well be jobs, millions of jobs, where a person
does not spend greater than one-third of the day in contact
with their supervisor as would be the limit if they only
interacted “occasionally” with their supervisors. What we
cannot imagine, however, is that there is any job where a
person has a supervisor where if they are precluded from
interacting with a supervisor at all times when the
supervisor wants to interact with them, that they could
maintain any job. It is not the quantity of interaction
that is problematic, but the reason that they are limited
due to psychological problems that would make real world
work impossible. That limitation, alone, if valid, should
lead to the conclusion that all work is impossible outside
a sheltered workshop.
That this question is now being
asked frequently and that it is not always challenged for
the nonsense type of question that it is, is a shame. But
whether challenged or not, the testimony remains nonsense
and a decision that relies on nonsense cannot be found
supported by substantial evidence.
(Docket No. 10 at 25-26.)
The Court notes Plaintiff’s philosophical objection to the
nature of VE testimony and data in Social Security cases.

The

United States Supreme Court recently touched on that issue and
observed that if VEs supported their conclusions with supporting
data, VEs’ testimony “would be even better - more reliable and
probative” and “would be a best practice for the SSA and its
experts.”

Biestek v. Berryhill, 139 S. Ct. 1148, 1155 (U.S.

April 1, 2019).

The Supreme Court concluded, however, that VEs

do not need to provide an applicant with the data supporting
their testimony regarding suitable jobs and statistics in order
to “clear (even handily so) the more-than-a-mere-scintilla

16

threshold.”

Id. at 1156. 14

Thus, the Court finds Plaintiff’s argument on this issue
uncompelling for two reasons.

First, Plaintiff points only to

his own conjecture regarding the number of tree planter jobs in
the national economy, and he did not challenge the VE’s
testimony at the hearing.

Moreover, as Defendant indicates, the

14

This Court previously addressed a similar argument where the
plaintiff questioned the source and validity of the VE's
statistics that purported to support the availability of jobs in
the national economy, including that the jobs identified by the
VE had not been updated since 1977 (caretaker, photocopy machine
operator, marker and addresser) and 1986 (taper and document
preparer) and were woefully outdated. Jean–Pierre v.
Commissioner of Social Security, 2017 WL 4316880, at *9 (D.N.J.
2017). This Court found, however:
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. § 404.1566(b).
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.
Id. (citations omitted). The Court notes that the Supreme Court
in Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (U.S. April 1,
2019) affirmed the Sixth Circuit, which joined “the ranks of
unconvinced courts” which had rejected the Seventh Circuit’s
categorical rule precluding a vocational expert’s testimony from
qualifying as substantial evidence if the expert had declined an
applicant's request to provide supporting data.
17

Third Circuit has found that 200 and 569 jobs to be
“significant,” which shows that 1,940 tree planter jobs to be
“significant.”

Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987)

(200 jobs); Ahmad v. Comm’r of Soc. Sec., 531 F. App’x 275, 278
(3d Cir. 2013) (569 jobs); see also Young v. Astrue, 519 F.
App’x 769, 772 (3d Cir. 2013) (“[T]here is no precise estimate
for what constitutes ‘significant numbers’ of jobs under the
Social Security Act.”).
Second, even accepting that Plaintiff was not capable of
performing the general helper and cart attendant jobs,
the ALJ only needs to establish that a claimant is capable of
performing one job that exists in significant numbers in the
national economy.

See Reed v. Commissioner of Social Security,

2018 WL 5617549, at *6 (D.N.J., 2018) (citing Nalej v.
Berryhill, 2017 WL 6493144, at *11 (D.N.J. 2017) (citing 20
C.F.R. § 416.966(b))(explaining that SSA regulations provide
that work exists in the national economy when there is a
significant number of jobs in one or more occupations that an
individual can perform, and holding that even if the ALJ erred
in finding the plaintiff capable of performing two of three
jobs, he did not err as to the third job, and that finding as to
only one job was sufficient to support his determination that
the plaintiff was not disabled)).

As discussed, the Court does

not find Plaintiff has demonstrated that the ALJ’s determination
18

that Plaintiff’s RFC enabled him to work as a tree planter is
not supported by substantial evidence.
III. Conclusion
This Court may not second guess the ALJ’s conclusions, but
may only determine whether substantial evidence supports the
ALJ’s determinations.

Hartzell v. Astrue, 741 F. Supp. 2d 645,

647 (D.N.J. 2010) (citing Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992)).

The Court finds that the ALJ’s

determination that Plaintiff was not totally disabled as of
August 1, 2012 is supported by substantial evidence.

The

decision of the ALJ will therefore be affirmed.
An accompanying Order will be issued.

Date: May 29, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

19