CRAWFORD v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Kevin McNulty on 8/14/2015. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTHONY CRAWFORD,
Civ. No. 2:14-cv-4533 (KM)

Plaintiff,
V.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Background
Anthony Crawford applied for Social Security disability benefits on
January 28, 2009. (Decision, ‘1) He alleged that he became disabled one year
before that, on January 28, 2008. Id. Prior to that date, he worked as a
corrections officer in a state prison, and some of his injuries were sustained

i

Citations to the record will be abbreviated as follows:

“Chandarana Evaluation” Advanced Pain Management and Rehabilitation
Evaluation, Dkt. No. 4-10, Exh. 31F, 26-30.
“Function Report” Function Report Adult, Dkt. No. 4-6, Exh. 5E, 334-41.
“Hearing Tr.” SSA Office of Disability and Review, Transcript for hearing held
November 3, 2010, Dkt. No. 4-2, 36-48.
“Hearing Tr. II” SSA SSA Office of Disability and Review, Transcript for hearing held
November 7, 2012, Dkt. No. 4-2, 49-79.
“Kern Assessment” Hudson County Medical Determination, Report of Hilary B.
Kern, M.D., Dkt. No. 4-9, Exh. 30F, 923-35.
“Khan Records” Office Treatment Records, Jersey Neurosciences, Dkt. No. 4-10, Exh.
31F, 937-56.
“Majchrzak Letter” Letter from Tadeusz J. Majchrzak, dated October 24, 2012, Dkt.
No. 4-10, Exh. 32F, 967-68.
“Mot.” Plaintiffs Brief Pursuant to Local Rule 9.1, Dkt. No. 7.
“Passive Range of Motion Chart” —Passive Range of Motion Chart, dated May 3, 2011,
Dkt. No. 4-10, Exh. 48F, 1111-1115.
“Majchrzak Medical Assmt.” Medical Assessment of Ability to Do Work-Related
Activities, dated August 2, 2011, Dkt. No. 4-4, Exh. 12B, 41-43.
“Rubbani Report” Hudson County Medical Determination, Report of Mariam
Rubbani, Dkt. No. 4-10, Exh. 46F.
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1

while working in that position. Id. at 7. Crawford is presently receiving a
2
disability pension from his previous employer. Id. at 4. Crawford alleged
numerous impairments, including injuries to the hand, wrist, shoulder, ankle,
and lower back, as well as depression and obesity. (Mot., 4, 6; Dkt. No. 4-3,
Exh. 4A, 1)
On December 10, 2010, an Administrative Law Judge found that
Crawford did not meet the criteria to be considered disabled under the Social
Security Act. (Dkt. No. 4-3, Exh. 3A) An Appeals Council vacated and
remanded, finding that the AU

had not considered the effect of several of

Crawford’s alleged impairments on Crawford’s functional capacity. (Dkt. No. 43, Exh. 4A, 1-2) On remand, a second AU received new evidence and reviewed
Crawford’s application de novo. (See Decision) The determination of that second
Administrative Law Judge, Patrick Kilgannon, is the decision presently before
this Court. Unless otherwise specified, the “AU” referred to in this Opinion is
Judge Kilgannon.
The AU’s Decision
The AU

found that Crawford did not meet the criteria to be considered

disabled. (Decision, 14) In doing so, the AU

followed the familiar five-step

process outlined at 20 C.F.R. 404.1520. Under that framework, an AU first
asks whether the claimant is presently engaged in substantial gainful activity.
20 C.F.R.

§ 404.1520(b). At Step 2, an AU asks whether the claimant has a

medically determinable impairment, or a combination of impairments, that is
“severe.” 20 C.F.R.

§ 404.1520(c). At Step 3, the AU asks whether the

claimant’s impairments are so severe as to meet or medically equal the criteria
for an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20
C.F.R.

§ 404.1520(d). The AU will then assess the claimant’s residual

2 Neither party has offered any evidence as to how Crawford’s previous employer
defines disability, and how that definition might compare to the eligibility
requirements for Social Security disability payments. I therefore have not considered
the employer’s award of a disability pension in rendering my decision.

2

functional capacity (“RFC”). 20 C.F.R.

§ 404.1520(e). In layman’s terms, this

means that the AU will determine what the claimant can do despite the
impairments that have been established. 20 C.F.R.

§ 404. 1545(a)(1). At Step 4,

the AU determines whether, given that RFC, the claimant can still perform
past relevant work. 20 C.F.R.

§ 404.1520(a)(4)(iv). Finally, at Step 5 the AU

determines whether the claimant can perform another kind of work that exists
in the national economy. 20 C.F.R.

§ 404.1520 (a)(4)(v).

In this case, the AU determined at Step 1 that Crawford had not
engaged in substantial gainful activity since the alleged disability onset date.
(Decision, 4) At Step 2, the AU

determined that Crawford had several severe

impairments: “status-post multiple arthroscopic surgeries of the left shoulder
and left knee; bilateral carpal tunnel syndrome; cervical-spine disc herniations
with spondylosis at C5-6 with cervical radiculopathy; lumber-spine bulging
discs with radiculopathy; osteoarthritis of the ankles bilaterally; and obesity.”
(Decision, 4) The AU

also found that Crawford had several non-severe

impairments: “a right knee disorder; hypertension; asthma; and glaucoma.” Id.
At Step 3, the AU determined that these impairments did not, individually or
in the aggregate, meet the level of severity required for a finding of disability. Id.
at 5.
The ALl then determined that Crawford had the residual functional
capacity to perform “a range of sedentary work.” (Decision, 6) Specifically, the
AU

found that Crawford could
lift up to 10 pounds occasionally; can stand and/or walk for
approximately 2 hours per 8-hour workday; and can sit for
approximately 6 hours per 8-hour workday, with normal
breaks. He can never climb ladders, ropes or scaffolds; can
occasionally climb ramps and stairs; can never balance,
kneel or crawl; and can occasionally stoop and crouch.
Further, he can frequently handle, finger and feel bilaterally,
but in the dominant right upper extremity can frequently
reach in all directions , and in the non-dominant left upper
extremity can never reach overhead and can occasionally
reach in other directions.
3

Id.

At Step 4, the AU determined that Crawford could not perform
any past relevant work. (Decision, 13) At Step 5, though, the AU found
that there were a significant number of jobs in the national economy that
Crawford could perform. Id. The AU therefore found that Crawford did
not meet the criteria to be considered disabled. Id. at 14.
Crawford has raised three issues in his appeal to this Court. First, he
argues that the AU erred in rejecting the opinion of Crawford’s treating
physicians. (Mot., 30-32) Second, Crawford argues that the AU did not
properly account for the side effects of Crawford’s medication. Id. at 35-38.
Finally, Crawford argues that the AU failed to resolve a conflict between the
vocational expert’s testimony and the Selected Characteristics of Occupations.
Id. at 13-16.

With respect to the first two arguments, I find that the AU’s decision
was supported by substantial evidence. With respect to the third argument,
however, I agree with Crawford that a remand is appropriate.
I.

Treating physicians’ opinions as to effective ambulation
Crawford argues that the AU did not give sufficient weight to the

opinions of Crawford’s treating physicians. Those physicians, Crawford says,
established that the problems with Crawford’s left leg (including his ankle and
knee) were severe enough to warrant a finding of disability. The argument
implicates (a) the proper consideration of a treating physician’s opinion; and (b)
what it means to ambulate “effectively” within the meaning of the regulations.
a. The governing standards
i.

Consideration of a treating physician’s opinion

The Commissioner may give more weight to treating sources than to non
treating sources. 20 C.F.R. § 404. 1527(c)(2). A treating source’s opinion will
only be given “controlling weight,” however, if that opinion is “well-supported
4

by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the claimant’s] case
record.” 20 C.F.R. § 404.1527(c)(2) Otherwise, the Administration will
determine what weight to give to the opinion based on six factors: 1) the length
of the treatment relationship and the frequency of examination; 2) the nature
and extent of the treatment relationship; 3) the amount of relevant evidence
supporting the opinion; 4) the consistency of the opinion with the record as a
whole; 5) the specialization of the treating physician; and 6) Other factors that
the claimant or others bring to the Commissioner’s attention. Id. The ultimate
question of whether a person is disabled, however, is reserved to the
Commissioner. A treating physician’s opinion that a person is disabled within
the meaning of the SSA will not be given controlling weight. 20 C.F.R.

§ 404.1527(d)(l).
Where, as here, physicians disagree as to a claimant’s medical condition,
an AU is entitled to weigh all evidence in making his findings. Brown v. Astrue,
649 F.3d 193, 196 (3d Cir. 2011) (citing Kertesz v Crescent Hills Coal Co., 788
F.2d 158, 163 (3d Cir. 1986) (explaining that an AU “is not bound to accept
the opinion or theory of any medical expert, but may weigh the medical
evidence and draw its own inferences.”)) This is true even where the conflict is
between a treating physician and a non-treating physician.
Where, as here, the opinion of a treating physician conflicts with that of a
non-treating, non-examining physician, the ALT may choose whom to
credit but cannot reject evidence for no reason or for the wrong reason.
The ALT must consider the medical findings that support a treating
physician’s opinion that the claimant is disabled. In choosing to reject
the treating physician’s assessment, an ALT may not make speculative
inferences from medical reports and may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence and
not due to his or her own credibility judgments, speculation or lay
opinion.
Morales v. Apfel, 225 F.3d 310, 3 17-18 (3d Cir. 2000) (internal quotations and

citations omitted).

5

The question here, then, is whether substantial evidence supports the
AU’s decision not to credit the opinion of Crawford’s treating physicians. If the
AU had substantial evidence, and expressed permissible reasons for his

weighting of the evidence, then his determination will be upheld. See Brown,
649 F.3d at 196 (“As the AU

clearly explained why she gave greater weight to

the opinion of Dr. Cohen, her decision was supported by substantial evidence
and was not contrary to law.”)
ii.

The ability to ambulate effectively

In particular, Crawford argues that the AU

should have credited the

treating physicians’ assessment of Crawford’s limitations in his lower
extremities. On this question, the regulations provide that a person will be
considered disabled if a musculoskeletal problem causes the person to be
unable to ambulate effectively. This means that the person has “an extreme
limitation of the ability to walk.” 20 C.F’.R. Part 404 Subpart P, Appendix 1

§ 1.00(B)(2)(b)(1).
To ambulate effectively, individuals must be capable of sustaining
a reasonable walking pace over a sufficient distance to be able to
carry out activities of daily living. They must have the ability to
travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail. The ability to
walk independently about ones home without the use of assistive
devices does not, in and of itself, constitute effective ambulation.
20 C.F.R. Part. 404, Subpart. P, App. 1 § 1.00(B)(2)(b)(2). I will therefore
consider whether substantial evidence supported the AU’s decision that

6

Crawford, despite the opinions of some of his treating physicians, was capable
of ambulating effectively.
b. Application to this case
I find that the AU’s decision that Crawford could ambulate effectively
resulted from a permissible weighing of the evidence and was supported by
substantial evidence.
The AU relied on the assessment of examining physician Hillary B. Kern.
Dr. Kern evaluated Crawford on May 18, 2012. She noted that even without a
cane, Crawford could “ambulate up to 5 blocks.” (Kern Assessment, 2) Indeed,
she found that Crawford had “no objective need for [a] cane” at all. Id. at 6. See
also id. at 8 (responding “No” to the question, “Does the individual require the
use of a cane to ambulate?”). Dr. Kern estimated that in an 8 hour work day,
Crawford could sit for three hours at a time, and for a total of five hours; could
stand for two hours at a time and for a total of two hours; and could walk for
one hour at a time and for a total of one hour. Id. at 8.
In support of her assessment, Dr. Kern reported that Crawford had
“bilateral ankles, no focal deformity, and full range of motion.” (Kern
Assessment, 2) She assessed Crawford’s motor ability as 4/4 in both lower
extremities. Id. She stated that an examination of both ankles was “negative”
with “no evidence” of impairment in either ankle. Id. 3. She observed that
Crawford could perform a “full squat without any difficulty” and had full
flexibility in both ankles. Id. at 6. Dr. Kern also observed that Crawford was
able to transfer in and out of a chair and to get on and off of the examining
table without difficulty. Id. 2.
The AU also noted that a state agency doctor, Mariam Rubbani, reported
that Crawford transferred to and from the exam table without assistance and
without using the step stool. (Rubbani Report, 2) Dr. Chandarana, who
evaluated Crawford in September of 2012, noted that although Crawford used

7

a cane, the range of motion in his lower extremities was within normal limits.
(Chandarana Evaluation, 1)
Crawford points to the contrary evaluation of Dr. Tadeusz Majchrzak. Dr.
Majchrzak treated Crawford for “over fifteen years,” serving as his “primary
care physician” for “many years.” (Majchrzak Letter) Majchrzak opined that
Crawford needed to use a cane because of surgery on his left ankle in 2012,
and also because of overall “musculoskeletal problems.” Id. at 2. In May of
2011, Dr. Majchrzak reported that he had prescribed Crawford a cane, and
indicated that it would be “difficult” for Crawford to walk or stand without the
cane. (Range of Motion Chart, 3) He indicated that even with his cane,
Crawford could walk only 3-4 blocks at a time. (Range of Motion Chart, 5) And
in August of 2011, Majchrzak indicated that Crawford could stand and/or walk
for a total of only 2 hours per day, and for only 30 minutes without
interruption. Majchrzak also opined in October of 2012 that Crawford would be
unable to work “for at least the next couple of years and most probably
indefinite [ly]

.

“

(Maj chrzak Letter, 2)

The AU, however, discounted the opinion of Dr. Majchrzak, and said
why. The AU found that the medical evidence Dr. Majchrzak cited did not
substantiate such an extreme prognosis. (Decision, 12) Although Majchrzak
referred to prior surgeries (Majchrzak Letter, 1), he identified no specific
condition or imaging showing physiological issues that would cause such a
severe impairment. The lack of such support in the medical evidence justified
the AU in giving little weight to Dr. Majchrzak’s opinion. See 20 C.F.R.

§ 404. 1527(c)(3) (“The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings, the
more weight we will give that opinion. The better an explanation a source
provides for an opinion, the more weight we will give that opinion.”). And, even

This last conclusion is not particularly helpful. Determining disability is the
prerogative of the Commissioner. The opinions of others concerning whether the
claimant meets the regulatory and statutory definition of disability are not given any
particular weight. 20 C.F.R. § 404.1527(d)(1), (3).
8

on their own terms, Dr. Majchrzak’s observations (e.g., difficulty in walking
without a cane) do not establish an “extreme” limitation to Crawford’s ability to
walk.
Crawford also points to the reports of certain other doctors. He notes
that many of these physicians said he needed an assistive device such as a
cane to walk more than household distances. To begin with, the need for a
cane does not alone establish a disability. The regulations suggest that the
need for two canes or two crutches (as opposed to just one) will ordinarily be
required to demonstrate a disability. See 20 C.F.R. Part. 404, Subpart. P, App.
1 § 1 .00(B)(2)(b)(2) (examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker, two crutches or two
canes...”) Moreover, there is little evidence that any of these physicians
assessed Crawford’s ability to ambulate in relation to disability standards. For
instance, the regulations state that an inability to ambulate might involve an
“inability to walk a block at a reasonable pace on rough or uneven surfaces” or
an inability to use public transportation, or the inability to carry out activities
like shopping, banking, or climbing a few steps.” Id. None of the medical
testimony cited by Crawford describes his impairment as being quite that
severe or provides medical evidence that would support such a
characterization.
Even setting aside the AU’s weighing of the evidence, I find that the
evaluations that Crawford relies on do not necessarily provide strong support
for his position.
For example, in a series of examinations from June of 2011 to May of
2012, Dr. Musaid Khan, a neurologist, reported that Crawford’s walking gait
was “narrow based” (meaning the feet stay close together) and “antalgic”
(meaning he favored one leg) (Khan Records, 1-14). Dr. Khan reported that
Crawford walked with a cane (id.), but never opined that a cane was medically
necessary. Treatment records also indicate that in examinations in February,
March, and April of 2011, Dr. Khan did not indicate that Crawford was using a

9

cane, and assessed his gait as “narrow-based” but not antalgic. Id. at 16, 18,
20. And in all of Dr. Khan’s examinations, he assessed Crawford’s “power” as
“5/5 bilaterally in all extremities.” Id. at 2-20.
Crawford also points to the assessment of Dr. Rubbani, who noted in
June of 2011 that Crawford used a cane for ambulation. (Rubbani Report, 3)
Rubbani also explained, however, that Crawford “walks at a reasonable pace,”
and that he could “walk for two blocks with the cane and household distances
without.” Id. He reported that Crawford could walk on his heels and on his
toes. Id. Rubbani noted that Crawford’s ankle ranging was full. Id. And he
noted that Crawford could squat less than halfway down. Id. All of this falls far
short of compelling a conclusion contrary to that of the AU.
Crawford points out that another examining physician, Dr. Hoffman,
noted in September 2012 that Crawford walked “slowly” using a cane. (Hoffman
Evaluation, 2) Dr. Hoffman further noted that Crawford had been using the
cane for approximately a year (Id. at 1) and that the cane was necessary for
both standing and walking. Id. at 12. Dr. Hoffman also noted, however, that
Crawford was “able to put weight on either leg if he holds onto the table,” could
“bend halfway at the waist” (although he could not bend at the knees, and
could “walk on his heels or toes.” Id. at 2. In these respects, however, Dr.
Hoffman stands nearly alone. Dr. Kern, for example, who evaluated Crawford
on the same date as Dr. Hoffman, provided a less restrictive prognosis.
(Decision, 9)
Filling out a Social Security questionnaire in 2009, Crawford checked a
box indicating that he had “no problem” with personal care, including dressing,
bathing, and using the toilet. (Function Report, 2) Asked to identify all activities
affected by his injuries, he did not check the boxes for standing, walking, or
stair climbing. Id. at 5. One page that asked Crawford to select any assistive
devices he uses, giving options such as crutches, walker, cane, and wheelchair.
Id. at 7. Crawford selected none of the devices, and wrote “Does not apply.” Id.

10

I do not suggest that the AU’s conclusions were the only possible ones.
They were, however, permissible conclusions. The AU was supported by
substantial evidence in determining that Crawford’s impairments in his left
knee and ankles were not so severe as to warrant a finding of disability.

II.

Side effects of medication
Crawford also argues that the ALT did not properly consider the side

effects of Crawford’s medications. Principally, Crawford argues that his
medications make him sleepy during the day, which contributes to his inability
to work. I find that the AU’s determination with respect to Crawford’s
medication and symptoms was supported by substantial evidence.
The regulations do recognize that treatments, including pain medication,
can have adverse side effects such as drowsiness. 20 C.F.R. Pt. 404, Subpt. P,
App. 1

§ 1 .00(I)(1)-(2). The Administration therefore states that it will consider

such side effects in evaluating the symptoms that a claimant experiences. 20
C.F.R.

§ 404.1529(c)(iv).
Crawford says that the various pain medications that he has taken

during the period of his disability have made him drowsy. (Mot., 36) He says he
sleeps “a lot” during the day. (Hearing Tr., 11-12) He says he can fall asleep
“without warning.” Crawford also testified that his doctor wished to increase
the dosage of a certain pain medication, but refrained from doing so out of
concern that the medication would make him too sleepy. (Hearing Tr. II, 19)
The AU

had a substantial basis for rejecting that evidence. First, he

found that this testimony was contradicted by Crawford’s statements to Dr.
Kahn on July 12, 2012, in which Crawford denied experiencing daytime
sleepiness. (Khan Records, 975) (I note, however, that in an October 2012 visit
to the same doctor, Crawford did complain of sleepiness.)
More fundamentally, the ALT was justified in concluding that the
complained-of drowsiness did not rise to the level of a disability or contribute
significantly to Crawford’s symptoms. The Third Circuit has held that
11

drowsiness “should not be viewed as disabling unless the record references
serious functional limitations.” Bums v. Bamhart, 312 F.3d 113, 131 (3d Cir.
2002) Here, even Crawford himself never testified that his drowsiness had
caused such “serious functional limitations.” Crawford alleged only that he
sleeps a lot and drives less often because of his drowsiness. (Hearing Tr., 6) It
was not error for the AU to find that such symptoms do not render Crawford
disabled.
III.

Vocational Expert
Finally, Crawford argues that the testimony of the vocational expert was

inconsistent with the information contained in the Dictionary of Occupational
Titles. I agree and will remand for further proceedings.
At Step 5, the AU must show that jobs exist in the national economy in
significant numbers that an individual in the claimant’s situation can perform.

§ 404. 1560(c)(1) At this stage, the burden is on the Social Security
Administration to demonstrate that such jobs exist. 20 C.F.R. § 404. 1560(c)(2).
20 C.F.R.

The Social Security Administration has stated that in making this
determination, it will rely on information from two sources: a Department of
Labor publication called the Dictionary of Occupational Titles (including the
DOT’s companion publication, the Selected Characteristics of Occupations) and
the testimony of “vocational experts” (see 20 C.F.R.

§ 404.1566(e)). These two

sources must be consistent with one another; that is, the testimony of the
vocational expert must be consistent with the information contained in the
Dictionary of Occupational Titles, including the information in the Selected
Characteristics of Occupations. See SSR 00-4P, 2000 WL 1898704, *2
(December 4, 2000). If the two sources appear to be inconsistent, the AU

must

either resolve the conflict, or else rely on other evidence to conclude that a
sufficient number of jobs exist that the claimant could perform. The AU must
also explain how the conflict was resolved:
When vocational evidence provided by a VE or VS [vocational
specialist] is not consistent with information in the DOT, the
12

adjudicator must resolve this conflict before relying on the
VE or VS evidence to support a determination or decision
that the individual is or is not disabled. The adjudicator will
explain in the determination or decision how he or she
resolved the conflict.
Id. Note that the AU

is responsible for resolving such conflicts regardless of

whether the conflict was identified at the time the vocational expert testified or
only arose later. Id. (“The adjudicator must explain the resolution of the conflict
irrespective of how the conflict was identified.”).
I agree with Crawford that the vocational expert’s testimony is not
consistent with the Selected Characteristics of Occupations, a companion
publication of the Dictionary of Occupational Titles. Recall that the AU
4

found

that Crawford had a severe impairment in his left shoulder. (Decision, 4)
Therefore, the AU posed a hypothetical to the vocational expert that assumed
an individual who had certain left shoulder limitations: that is, one who could
not use his left arm for any overhead reaching, and could reach in other
directions no more than occasionally. (Hearing Tr. II, 25-26; Decision, 6) The
vocational expert identified three job categories from the Dictionary of
Occupational Titles that fit these criteria: Addresser (DOT No. 209.587-0 10),
Ticket Counter (219.587-010), and Document Preparer (249.587-0 18). Id. at
26-27) According to the Selected Characteristics of Occupations, however, each
of those jobs requires either “constant” or “frequent” reaching. (Mot.,

Just as an ALT must ensure that the vocational expert’s testimony is
consistent with the Dictionary of Occupational Titles, the ALT must likewise ensure
that it is consistent with the Selected Characteristics of Occupations.
Before relying on VE or VS evidence to support a disability
determination or decision, our adjudicators must: Identify and
obtain a reasonable explanation for any conificts between
occupational evidence provided by VEs or VSs and information in
the Dictionary of Occupational Titles (DOT), including its
companion publication, the Selected Characteristics of
Occupations.
SSR 00-4P, 2000 WL 1898704 at *1.
13

Appendices A-C) Thus the vocational expert’s testimony appears to conflict
5
with the Dictionary of Occupational Titles.
Courts have considered whether such conflicts require a remand to the
AU. A remand is not necessary if the conflict was adequately resolved or
explained by the vocational expert, or if other portions of the record provide
substantial evidence to support the AU’s conclusion that relevant jobs are
available in the national economy. But where such support is lacking, a
remand will be required. Three cases are instructive here.
In Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003), the AU

determined

that Boone could perform only a limited range of light, unskilled work. (Light
work is work that involves lifting only a certain amount of weight and requires
only a certain amount of walking or standing. See 20 C.F.R.

§ 416.967.) Boone,

353 F.3d at 206-07. The vocational expert, however, testified that an individual
with Boone’s capabilities could perform work as an inventory clerk or a home
health aide, both of which the Dictionary of Occupational Titles categorized as
involving “medium,” not light work, and as being “semi-skilled.” Id. The AU
also found that Boone could work as a “sales counter clerk.” The Special
Characteristics of Occupations, however, listed that job as involving frequent
reaching, handling, and fingering, which the AU

had found that Boone could

not do. Id. at 207. The Third Circuit found that the vocational expert’s
testimony therefore conflicted with the Dictionary of Occupational Titles. Id. at
208. The Court of Appeals considered whether the apparent discrepancy was
explained by the vocational expert’s testimony, or whether the record in some
other way contained substantial evidence that there were a significant number
of jobs in the national economy that Boone could perform. Id. at 208-09.
Finding such explanation and evidence to be lacking, the Court remanded the
case for further proceedings. Id. at 209-10.

For the full text of the SCR, including a key for what its various acronyms
represent, see www.nosscr.org/sco/sco.pdf, pages 340, 341, 347, and ID-2. Accessed
August 12, 2015.
14

The Third Circuit applied the same standard in Zimsak v. Colvin, 777
F.3d 607 (2014). There, the AU had determined that Zirnsak was capable of
only sedentary work. Id. at 619. The vocational expert testified that Zirnsak
could work as a “subassembler,” a job that the Dictionary of Occupational
Titles categorizes as “light,” rather than “sedentary.” Id. The Third Circuit
therefore considered whether the vocational expert had explained the
discrepancy, or whether the record otherwise contained substantial evidence
that a significant number of jobs existed in the national economy that Zirnsak
could perform. Id. The Court found that the vocational expert had not
adequately explained the discrepancy. The vocational expert had, however,
identified other jobs, performable by Zirnsak, that existed in significant
numbers in the national economy. The Court of Appeals therefore affirmed the
AU’s decision. Id. at 620.
Similarly, in Bums v. Bamhart, 312 F.3d 113 (3d Cir. 2002), the Third
Circuit considered a case in which the AU had determined that Burns could
perform only work that was light and unskilled. The vocational expert,
however, testified that Burns could perform more demanding “medium” and
“semi-skilled” work. Id. at 127-28. The Third Circuit, having already directed a
remand on other grounds, directed the Administration to clarify this apparent
conflict as well.
Here, I must determine whether the apparent conflict between the
demands of the jobs that the vocational expert identified and Crawford’s
exertional limitations either were explained by the vocational expert, or are
otherwise supported by substantial evidence. The vocational expert did not
address this discrepancy in his testimony. (Hearing Tr., 24-3 1) Likewise, the
AU did not identify or explain the discrepancy in his decision. (See Decision,
14) (“the undersigned has determined that the vocational expert’s testimony is
consistent with the information contained in the Dictionary of Occupational
Titles.”) The vocational expert did not provide, nor did the AU cite, other
evidence of jobs in the national economy that lay within Crawford’s RFC.

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In short, at Step 5 the AU appears to have relied exclusively on the
vocational expert’s testimony that Crawford could perform three jobs
(Addresser, Ticket Counter, and Document Preparer) that require “constant” or
“frequent” reaching. I do not suggest that there exist no jobs that Crawford
could perform requiring only limited or occasional reaching. Nor do I mean to
foreclose the possibility that the AU could determine that Crawford could
perform a job that required reaching with his right arm. I state only that such
jobs, if they exist, are not identified in this record. And such a distinction, if the
AU

intended it, was not stated in the AU’s decision.
Remand, therefore, is appropriate. This remand is solely for the purpose

of reconsideration of Step 5. The AU may take such additional evidence as he
deems necessary to resolving the conflict at Step 5. I do not direct any
reconsideration of Steps 1-4, although the AU of course retains discretion to
do so if he deems it necessary or advisable.
Conclusion
The case will be remanded to the Social Security Administration. A
separate order will issue.

Dated August 14, 2015
Newark, New Jersey

Kevin McNulty
United States District Judge

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