NIEVES v. COMMISSIONER OF SOCIAL SECURITY
Filing
24
OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 3/12/2021. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWIN NIEVES,
Plaintiff,
Case No. 2:18-cv-10748
Magistrate Judge Norah McCann King
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
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 the application of Plaintiff Edwin Nieves for
Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et
seq. Plaintiff appeals from the final decision of the Commissioner of Social Security denying that
application. After careful consideration of the entire record, including the entire administrative
record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil
Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court affirms the
Commissioner’s decision.
I.
PROCEDURAL HISTORY
On August 29, 2012, Plaintiff filed an application for benefits, alleging that he has been
disabled since January 19, 2011. R. 139–43. The application was denied initially and upon
reconsideration. R. 72–76, 80–81. Plaintiff sought a de novo hearing before an administrative
law judge. R. 82–84. Administrative Law Judge Leonard Olarsch (“ALJ”) held a hearing on
February 27, 2014, at which Plaintiff, who was represented by counsel, appeared and testified, as
1
did a vocational expert. R. 23–51. In a decision dated April 14, 2014, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Social Security Act since August 29, 2012,
i.e., the date on which the application was filed (“the ALJ’s first decision”). R. 13–19, 370–76
(duplicate). That decision became the final decision of the Commissioner of Social Security
when the Appeals Council declined review on August 28, 2015. R. 1–6.
Plaintiff timely filed an appeal from that decision pursuant to 42 U.S.C. § 405(g). R.
386–94 (D. N.J. Case No. 15-cv-7762). On October 31, 2016, after the parties had submitted
moving and responsive briefs, United States District Judge Katharine S. Hayden issued a bench
decision, following the parties’ oral arguments, and remanded the matter for further
administrative proceedings. R. 404–43. On November 4, 2016, Judge Hayden’s bench decision
was memorialized in a written Order, which found and ordered as follows:
This matter having come before the Court upon filing of the plaintiff's complaint
ON October 29, 2015, and the Court having reviewed the pleadings and heard and
benefited from oral argument on October 31, 2016 (Abraham S. Alter, Esq., for
plaintiff; Edward C. Tompsett, SAUSA, for defendant) and the Court having found
the administrative decision of April 14, 2014 to be substantively flawed and
conclusory, and the Court having explained its ruling and reasons in a Bench
Decision announced on October 31, 2016; and the Court having requested and
received agreement on a Remand Order set forth on the record;
IT IS ON THIS 4th DAY OF NOVEMBER, 2016, ORDERED AS FOLLOWS:
1. This matter is remanded to the Commissioner for reconsideration of the
plaintiff’s residual functional capacity, such reconsideration to result in specific
references to the evidence resulting in findings with respect to plaintiff’s
exertional capacities to walk, stand, lift, carry and sit.
2. This matter is remanded for reconsideration of plaintiff’s subjective complaints
of pain and limitations resulting from acknowledged nerve damage and disc
disease in his back.
3. This matter is remanded for a new hearing and new testimony from a vocational
expert since this case has reached the fifth step of the sequential evaluation. The
ALJ shall incorporate the Commissioner’s understandings as published in SSR
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83-10 regarding the requirements of unskilled jobs when questioning the
vocational expert.
R. 449–50 (“the 2016 Court Order”).
On September 18, 2017, the Appeals Council vacated the Commissioner’s final decision
and remanded the case to an ALJ for “further proceedings consistent with the order of the court.”
R. 454.1 The Appeals Council further directed the ALJ to offer Plaintiff “the opportunity for a
hearing, take any further action needed to complete the administrative record and issue a new
decision.” Id.
On December 27, 2017, the same ALJ who had conducted the first administrative hearing
held a second administrative hearing at which Plaintiff, who was again represented by counsel,
again appeared and testified, as did a vocational expert. R. 340–66. In a decision dated February
23, 2018, the ALJ concluded that Plaintiff was not disabled at any time since August 29, 2012,
i.e., the date on which Plaintiff’s first application was filed (“the ALJ’s second decision”). R.
326–34. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On
December 7, 2018, Plaintiff consented to disposition of the matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF
No. 10. 2 On March 12, 2020, the case was reassigned to the undersigned. ECF No. 23. The
matter is now ripe for disposition.
The Appeals Council also found that Plaintiff’s subsequent SSI claim filed on October 30,
2015, was duplicative in light of the remand of the first-filed claim and directed that the claims
be consolidated and that the ALJ issue a new decision on the consolidated claims. Id.
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The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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II.
LEGAL STANDARD
A.
Standard of Review
In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,
No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less
than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.
Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
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Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the administrative decision must contain “sufficient
development of the record and explanation of findings to permit meaningful review.” Jones v.
Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
119 (3d Cir. 2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] 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.” Cotter, 642 F.2d at 705-06; see Burnett, 220
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F.3d at 121 (“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some
indication of the evidence which [s/]he rejects and [the] reason(s) for discounting such
evidence.”) (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not
required to supply a comprehensive explanation for the rejection of evidence; in most cases, a
sentence or short paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such
articulation, the Court “cannot tell if significant probative evidence was not credited or simply
ignored.” Id. at 705. As the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] 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, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
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omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.
Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation for determining
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. § 416.920(a)(4). “The
claimant bears the burden of proof at steps one through four, and the Commissioner bears the
burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010)
(citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 416.920(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 416.920(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
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416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 416.909. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 416.920(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 416.920(g). If the ALJ determines that the plaintiff can do so,
then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.
THE ALJ’S SECOND DECISION AND APPELLATE ISSUES
The Plaintiff was 47 years old on the date on which he filed his application. R. 333. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from August
29, 2012, his alleged disability onset date, through the date of the decision. R. 328.
At step two, the ALJ found that Plaintiff’s lumbar spine disorder was a severe
impairment. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination
of impairments that met or medically equaled the severity of any Listing. R. 328–29.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to
various additional limitations. R. 329–32. The ALJ also found that Plaintiff had no past
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relevant work. R. 332.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
20,000 jobs as a sealing machine operator; approximately 60,000 jobs as a microfilm mounter;
approximately 30,000 jobs as a weld inspector—existed in the national economy and could be
performed by an individual with Plaintiff’s vocational profile and RFC. R. 333. The ALJ
therefore concluded that Plaintiff was not disabled within the meaning of the Social Security
Act since August 29, 2012, the date on which his application for benefits was filed. R. 334.
Plaintiff disagrees with the ALJ’s findings at steps four and five and contends that the
ALJ’s second decision ignores 2016 Court Order; he asks that the second decision of the
Commissioner be reversed and remanded with directions for the granting of benefits beginning
August 20, 2015, with the remaining period prior to that date remanded for a new hearing and
decision. Plaintiff’s Brief, ECF No. 21. The Commissioner takes the position that his decision
should be affirmed in its entirety because the ALJ’s decision correctly applied the governing
legal standards, reflected consideration of the entire record, and was supported by sufficient
explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 22.
IV.
DISCUSSION
A.
Subjective Complaints
Plaintiff challenges the ALJ’s evaluation of Plaintiff’s subjective complaints, contending
that the ALJ failed to comply with the 2016 Court Order or with the applicable regulation and
Ruling. Plaintiff’s Brief, ECF No. 21, pp. 16, 19, 27–32. Plaintiff’s arguments are not well taken.
“Subjective allegations of pain or other symptoms cannot alone establish a disability.”
Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §
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416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective
complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20
C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a
claimant’s subjective complaints. SSR 16-3p, 2016 WL 1119029 (March 16, 2016). First, the
ALJ “must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain.” Id. “Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms limit
an individual’s ability to perform work-related activities[.]” Id.; see also Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or
symptom and the extent to which it affects the ability to work] obviously requires the ALJ to
determine the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.”) (citing 20 C.F.R. § 404.1529(c)). In this evaluation, an ALJ
considers objective medical evidence as well as other evidence relevant to a claimant’s
symptoms. 20 C.F.R. § 416.929(c)(3) (listing the following factors to consider: daily activities;
the location, duration, frequency, and intensity of pain or other symptoms; precipitating and
aggravating factors; the type, dosage, effectiveness, and side effects of any medication you take
or have taken to alleviate pain or other symptoms; treatment, other than medication, currently
received or have received for relief of pain or other symptoms; any measures currently used or
have used to relieve pain or other symptoms; and other factors concerning your functional
limitations and restrictions due to pain or other symptoms).
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Finally, an ALJ is vested with “wide discretion to weigh the claimant’s subjective
complaints, Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them
where they are unsupported by other relevant objective evidence.” Miller, 719 F. App’x at 134
(citing 20 C.F.R. § 416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d
Cir. 2006) (“[A] reviewing court typically defers to an ALJ’s credibility determination so long as
there is a sufficient basis for the ALJ’s decision to discredit a witness.”). 3
Here, the ALJ followed this two-step evaluation process. The ALJ found that Plaintiff’s
medically determinable impairments could reasonably be expected to cause symptoms, but that
Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record
for the reasons explained in this decision.” R. 330. The ALJ specifically considered Plaintiff’s
hearing testimony regarding back pain that permits him to walk only half a block and stand and
sit for only 15 to 20 minutes before he experiences a backache, and his testimony that he is most
comfortable lying down, and that his medications reduce his pain but cause drowsiness and
difficulty focusing. R. 329–30. The ALJ also detailed years of record evidence with citation to
specific records that did not support Plaintiff’s allegations of disability, including, inter alia, the
following evidence:
•
An October 2012 MRI of the lumbar spine which revealed disc desiccation indicating
degeneration of intervertebral discs at L4-L5 and L5-Sl; a broad-based disc bulge at L4-L5
and L5-S1 with mild lateral recess narrowing at L4-L5 and mild to moderate left lateral
recess narrowing at L5-5l contacting the left S1 nerve root; patent neural foramina;
paravertebral soft tissues within normal limits; no compression fracture; and displacement
disease at LI-L5 and L5-51, R. 330 (citing Exhibit B10F, R. 300–01);
SSR 16-3p superseded SSR 96-7p on March 26, 2016, and eliminated the use of the term
“credibility.” SSR 16-3p. However, “while SSR 16-3P clarifies that adjudicators should not
make statements about an individual’s truthfulness, the overarching task of assessing whether an
individual’s statements are consistent with other record evidence remains the same.” Levyash v.
Colvin, No. CV 16-2189, 2018 WL 1559769, at *8 (D.N.J. Mar. 30, 2018).
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3
•
February 2012 records from St. Joseph’s Hospital emergency department relating to
complaints of low back pain, which revealed reported mild pain in the low back area,
normal range of motion in the back, no vertebral tenderness, and only mild paravertebral
tenderness on the lower back and, after Plaintiff had been administered acetaminophen and
Toradol, he was discharged home the same day in good condition, id. (citing Exhibit B5F,
pages 11–13, R. 277–79);
•
Records from Paterson Community Health Center from 2012 through 2017 that reflected
decreased range of motion in the back with some tenderness and back spasm with the
ability to ambulate slowly, and indicating that the back impairment had been treated with
conservative, routine care and that, in December 2012, Plaintiff reported that he had
experienced some improvement in his back pain from his medications, which included
oxycodone, Tramadol, Flexeril, Gabapentin, and Lidoderm patches, id. (citing Exhibits
B8F, B11F, and B13F, R. 285–98, 302–22, 574–635);
•
Assigning “little weight” to the August 27, 2012, opinion of Plaintiff’s treating primary
care physician, Waldemar E. Silva, M.D., in which Dr. Silva opined that Plaintiff was
unable to work due to back pain, on the basis that the opinion is conclusory and does not
provide specific vocational limitations and because whether an individual is disabled is
reserved to the Commissioner and beyond Dr. Silva’s purview, R. 331;
•
Assigning “little weight” to Dr. Silva’s August 18, 2012, opinion that Plaintiff could not
work and had limitations in standing, walking, climbing, stooping, bending, lifting, and use
of his hands because Dr. Silva does not provide specific vocational limitations, id.;
•
The report from state agency physician Ronald Bagner, M.D., who performed a
consultative physical examination in February 2016 which revealed that Plaintiff
ambulated slowly with moderate difficulty without a cane, was not uncomfortable in the
seated position during the interview, had no difficulty getting on and off the examining
table, could dress and undress himself without assistance, and was able to walk on his heels
and toes and indicating that, while the pain was reported on movement of the lower back,
examination revealed normal range of motion in the cervical and lumbar spine, hips,
shoulders, knees, ankles, elbows, forearms, wrists, and fingers, no pain on straight leg
raising, no motor or sensory abnormality in the lower or upper extremities, 5/5 grip strength
bilaterally, and ability to make a fist and oppose the thumbs, id. (citing Exhibit B12F, R.
569–73); and
•
The opinions of state agency reviewing physicians who found that Plaintiff could lift or
carry up to 10 pounds frequently and 20 pounds occasionally, sit up to 6 hours in an 8 hour
day, stand or walk up to 4 hours in an 8 hour day, occasionally climb ramps or stairs, never
climb ladders, ropes, or scaffolds, occasionally balance and stoop, frequently kneel, never
crouch nor crawl, id. (citing Exhibits B1A and B3A, R. 52–59, 61–68).
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See generally, R. 330-31. The ALJ went on to specifically acknowledge the criteria for assessing
Plaintiff’s subjective complaints under 20 C.F.R. § 416.929(c), R. 331–32, and explained why
the evidence in the record rendered those complaints “less compelling,” R. 332:
The claimant’s reported daily activities are greater than one might expect, given his
allegations of physical disability. In his Adult Function Report, the claimant stated
that he spends 2 to 3 hours a day with his grandsons and watches television for
several hours (Exhibit B11E at 2). He helps out around the house and is able to do
laundry, dishes, set the table for dinner and clean up after, approximately three
times a week with the cleaning (id. at 3). He goes out 4 or 5 times a month and
travels by walking, riding in a car, or using public transportation (id. at 4-5). He
shops for food and clothing in stores 2 to 3 times a month (id. at 5). He goes out to
eat or to the movies with friends and family 2 to 3 times a month and regularly goes
to church, the movies, and the store (id.). He does not need someone to accompany
him (id.). In addition, … treatment records dated September 2013 showed that the
claimant was able to travel to Puerto Rico for two weeks the prior month (Exhibit
B11F at 2).
As for the claimant’s reports of symptoms, the claimant’s allegations regarding the
location, duration, frequency, and intensity of his pain or other symptoms reported
and the alleged effects from his medications are not corroborated by treatment
records (Exhibit B8F, B11F, B13F).4 His alleged need for frequent, prolonged rest
breaks is inconsistent with the level of daily functioning that he reported elsewhere
in the record.
The course of treatment does not support the claimant’s allegation of disability. As
discussed in detail above, the claimant has had only conservative treatment
consisting of routine office visits and medication management. The claimant has
not required hospitalization for exacerbation of his symptoms. He has not had any
surgical intervention. Moreover, the claimant acknowledged at the hearing that his
medications reduce his pain.
For these reasons, the claimant’s allegations and testimony are rendered less
compelling.
In sum, the overall record does not support the severity of the claimant’s
allegations. The clinical and diagnostic evidence related to the claimant’s lumbar
spine impairment provides support for the residual functional capacity for light
The Court notes that these records, which cover Plaintiff’s treatment from 2012 through 2017,
R. 285–98, 302–22, 574–635, reveal that Plaintiff was in no acute distress upon examination. R.
287, 289, 291, 305, 307, 309, 312. The records also indicate that Plaintiff’s pain was controlled
by medication and that he was doing well on his current medication. R. 289, 577, 599, 601, 605,
610, 615, 619, 621, 624, 626, 628, 632, 634.
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exertion with the additional postural limitations noted above. However, the
claimant’s own reports of a relatively broad range of daily activities and the lack of
more substantial treatment for his allegations of persistent pain and limited mobility
establish that no further restrictions are justified.
R. 332. The Court finds no error with the ALJ’s analysis in this regard.
Plaintiff, however, contends that this analysis fails to comply with the 2016 Court Order,
which required the ALJ to consider Plaintiff’s subjective complaints of pain and limitations
resulting from “‘acknowledged nerve damage and disc disease in his back.’” Plaintiff’s Moving
Brief, ECF No. 21, p. 19 (quoting 2016 Court Order, R. 450). Plaintiff argues that “nothing was
fixed and nothing was acknowledged as needing fixing” because the ALJ included in the ALJ’s
second decision the same paragraph 5 criticized by the District Court in 2016 on the basis that it
purported “to establish the RFC and reject the extent of plaintiff’s symptomatology all at once.”
Id. (citing R. 332, 374, 436–38 (reflecting the Court’s concern during oral argument on October
The paragraph in the ALJ’s first administrative decision to which Plaintiff refers reads as
follows:
The undersigned has reviewed and analyzed all evidence of record, including
medical records, whether or not they have been specifically discussed in the
decision. In sum, the above residual functional capacity assessment is supported by
the objective medical evidence contained in the record. Treatment notes in the
record do not sustain the claimant’s allegations of a disabling impairment. The
credibility of the claimant’s allegations is weakened by inconsistencies between his
allegations and the medical evidence of record. The undersigned finds that the
claimant experienced some limitations but only to the extent described in the
residual functional capacity above.
R. 374. The paragraph in the ALJ’s second decision issued in February 2018, to which Plaintiff
refers reads as follows:
In sum, the overall record does not support the severity of the claimant’s
allegations. The clinical and diagnostic evidence related to the claimant’s lumbar
spine impairment provides support for the residual functional capacity for light
exertion with the additional postural limitations noted above. However, the
claimant’s own reports of a relatively broad range of daily activities and the lack of
more substantial treatment for his allegations of persistent pain and limited mobility
establish that no further restrictions are justified.
R. 332.
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31, 2016, regarding the analysis in the ALJ’s first administrative decision)). 6
Plaintiff’s argument is not well taken. The ALJ’s reasoning for discounting Plaintiff’s
subjective complaints was not limited to that single summary paragraph appearing on R. 332.
Notably, the ALJ’s reasoning in the ALJ’s second decision is longer and more detailed than the
reasoning in the first administrative decision. Compare R. 330–32, with R. 373–74. As set forth
above, in the ALJ’s second decision, the ALJ considered several years’ worth of objective
medical evidence, with specific citations to the record, which reflect the ALJ’s consideration of
the relevant factors set out in 20 C.F.R. § 416.929(c) and SSR 16-3p. R. 330–32. This analysis
complies with the Court’s 2016 Order, R. 450, and sufficiently addresses Judge Hayden’s
concerns regarding the reasoning in the first administrative decision. R. 436, 438. Moreover, the
analysis contained in the ALJ’s second decision permits meaningful review by this Court. See
Jones, 364 F.3d at 505.
Plaintiff nevertheless goes on to argue that the ALJ did not comply with SSR 16-3p and
20 C.F.R. § 416.929(c) because he did not fully consider Plaintiff’s medications and the side
Plaintiff refers to the following statements by the Court regarding the reasoning from the
paragraph in the ALJ’s first decision:
The problem I have is, the same body of evidence with those categories that are in
the next to the last paragraph and indicate that what he’s saying is exaggerating,
that same body of evidence is used in a completely different setting, which is to
support that he does have some limitations and then used to support what those
limitations are. It’s that aggregate approach to findings of great significance to the
outcome of the decision that I believe is the focus of Mr. Alter’s point and certainly
my point; is this opinion written the way it has to be to support or permit meaningful
review.
R. 436.
Generalizations. The categories of generalizations, that conclusions are generalized
categories. And that’s really not what I think an ALJ is supposed to do. An ALJ is
supposed to say, you know, these specific treatment notes, look at what they say,
look at what they recommend and look at what he’s complaining about and there’s
no match-up.
R. 438.
15
6
effects of that medication. Plaintiff’s Moving Brief, ECF No. 21, pp. 27–32 (complaining, inter
alia, that the ALJ refers only once to Plaintiff’s medications at R. 330). This Court disagrees.
The ALJ specifically considered Plaintiff’s testimony that he experienced drowsiness and
difficulty focusing as side effects of his medications, which included oxycodone, Tramadol,
Flexeril, Gabapentin, and Lidoderm patches. R. 330. However, the ALJ found that Plaintiff’s
“alleged effects from his medications are not corroborated by treatment records[.]” R. 332 (citing
Exhibit B8F, B11F, B13F, R. 285–98, 302–22, 574–635 (reflecting treatment from 2012
through 2017, and which does not reflect that Plaintiff ever complained about side effects from
medications, and a July 2016 record, R. 597, which appears to indicate that Plaintiff did not
suffer side effects from his medications (“He is taking medication wo se [without side
effects].”))). Notably, “[d]rowsiness [that] often accompanies the taking of medication, …
should not be viewed as disabling unless the record references serious functional limitations.”
Burns v. Barnhart, 312 F.3d 113, 131 (3d Cir. 2002). Although Plaintiff cites to his own hearing
testimony, he points to no objective evidence in the record establishing complaints of side effects
or any limitations caused by his medications. See generally Plaintiff’s Moving Brief, ECF No.
21. Accordingly, the ALJ reasonably discounted Plaintiff’s alleged side effects from his
medications as uncorroborated. See Grandillo v. Barnhart, 105 F. App’x 415, 419 (3d Cir. 2004)
(holding that where a claimant has “not cited to any medical evidence demonstrating that she
suffered adverse side effects from her medication . . . her own conclusory statements [do] not
establish a sufficient ongoing struggle with any side-effects to undermine the ALJ’s
determination”); Dennis-Orshak v. Berryhill, No. 3:18-CV-15987, 2020 WL 4364330, at *7
(D.N.J. July 30, 2020) (“However, [the claimant] has failed to provide any evidence of such
conditions outside of her own conclusory testimony, which is insufficient to undermine the
16
ALJ’s decision and warrant a reversal and remand.”) (citations omitted); Williams v. Comm’r of
Soc. Sec., No. CV 18-8769, 2019 WL 2223748, at *2 (D.N.J. May 23, 2019) (“Plaintiff has
pointed to no evidence save her own testimony that might establish that medication side effects
limit her ability to focus or concentrate. The ALJ therefore did not err in concluding that this
subjective complaint (difficulty concentrating due to medication side effects) was not entirely
consistent with the medical evidence.”).
In short, this Court concludes that the ALJ has sufficiently explained his reasoning in
assessing Plaintiff’s subjective complaints and that his findings in this regard are supported by
substantial evidence in the record. The ALJ’s evaluation of Plaintiff’s subjective complaints and
of this opinion evidence is therefore entitled to this Court’s deference. See 20 C.F.R. §
416.927(c)(3), (4), (6); Brunson, 704 F. App’x at 59–60; Chandler, 667 F.3d at 361; Miller, 719
F. App’x at 134; SSR 16-3p; cf. Hock v. Comm’r Soc. Sec. Admin., 646 F. App’x 171, 174 (3d
Cir. 2016) (“In addition to relying on evidence that Ms. Hock independently performed many
activities of daily living, such as running errands outside her house, babysitting, and answering
phones at her father's shop, the ALJ relied on the absence of evidence in the record to
corroborate the more severe limitations to which Ms. Hock testified.”); Malloy v. Comm’r of Soc.
Sec., 306 F. App’x. 761, 765 (3d Cir. 2009) (“Credibility determinations as to a claimant’s
testimony regarding pain and other subjective complaints are for the ALJ to make.”) (citing Van
Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis v. Comm’r Soc. Sec., 105 F. App’x
319, 322 (3d Cir. 2004) (finding that the ALJ sufficiently evaluated the plaintiff’s testimony
where “the ALJ devoted two pages to a discussion of claimant’s subjective complaints and cited
Claimant’s daily activities and objective medical reports”).
17
B.
RFC
Plaintiff also argues that the RFC determination in the ALJ’s second decision does not
comply with the 2016 Court Order and does not take into account his nerve damage or reliance
on opioid pain relief. Plaintiff’s Moving Brief, ECF No. 21, pp. 15–20, 27–32. This Court
disagrees.
A claimant’s RFC is the most that the claimant can do despite the claimant’s limitations.
20 C.F.R. § 416.945(a)(1). At the administrative hearing stage, an ALJ is charged with
determining the claimant’s RFC. 20 C.F.R. §§ 416.927(e), 416.946(c); see also Chandler
v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining
physicians or State agency consultants—must make the ultimate disability and RFC
determinations.”) (citations omitted). When determining a claimant’s RFC, an ALJ has a duty to
consider all the evidence. Plummer, 186 F.3d at 429. However, the ALJ need include only
“credibly established” limitations. Rutherford, 399 F.3d at 554; see also Zirnsak v. Colvin, 777
F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to exclude from the RFC “a
limitation [that] is supported by medical evidence, but is opposed by other evidence in the
record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence of a limitation for
an unsupported reason” and stating that “the ALJ also has the discretion to include a limitation
that is not supported by any medical evidence if the ALJ finds the impairment otherwise
credible”).
Here, the ALJ determined that Plaintiff had the RFC to perform a limited range of light
work, as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except lift or carry up to 10 pounds frequently and 20 pounds
occasionally; sit up to 6 hours in an 8 hour day; stand or walk up to 4 hours in an 8
18
hour day. He can perform occasional postural maneuvers except he can frequently
kneel and never climb ladders, ropes, or scaffolds, crouch, or crawl. He would be
off task 10 percent of the workday and miss one day per month.
R. 329.7 In making this determination, the ALJ detailed with specific citations to the record the
years of record evidence and testimony as noted above, including, inter alia, emergency
department records from 2012 that reflected mild pain in the low back area, normal range of
motion in the back, no vertebral tenderness, and only mild paravertebral tenderness in the lower
back that markedly improved once acetaminophen and Toradol were administered; treatment
records from 2012 through 2017 that reflected decreased range of motion in the back with some
tenderness and back spasm, but that his back impairment was treated with conservative, routine
care, that he was able to ambulate without assistance, and that Plaintiff’s back pain was
controlled with medication and he reported no side effects from this medication; the report from
Dr. Bagner’s February 2016 consultative examination which indicated that Plaintiff ambulated
without a cane, was not uncomfortable in the seated position during the interview, had no
difficulty getting on and off the examining table, could dress and undress himself without
assistance, and was able to walk on his heels and toes and, although pain was reported on
movement of the lower back, there was normal range of motion in the cervical and lumbar spine,
hips, shoulders, knees, ankles, elbows, forearms, wrists, and fingers, no pain on straight leg
raising, no motor or sensory abnormality in the lower or upper extremities, 5/5 grip strength
In the ALJ’s first decision, the ALJ determined that Plaintiff had the RFC to perform light work
with some additional limitations as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except the claimant is limited to standing and walking for 4 hours
in an 8 hour day. The claimant can perform occasional postural maneuvers but no
climbing ladders, ropes, or scaffolds, crouching or crawling. In addition, the
claimant is limited to unskilled work.
R. 15.
19
7
bilaterally, and ability to make a fist and oppose the thumbs; the opinions of the state agency
reviewing physicians that Plaintiff could lift or carry up to 10 pounds frequently and 20 pounds
occasionally, sit up to 6 hours in an 8 hour day, stand or walk up to 4 hours in an 8 hour day,
occasionally climb ramps or stairs, never climb ladders, ropes, or scaffolds, occasionally balance
and stoop, frequently kneel, never crouch nor crawl; that Plaintiff’s daily activities included
spending two to three hours a day with his grandsons, watching television for several hours,
helping around the house by doing laundry and dishes, setting the table for dinner and cleaning
up afterwards; cleaning three times a week; going out four or five times a month without
someone accompanying him and traveling by walking, riding in a car, or using public
transportation; going out to eat or to the movies with friends and family two to three times a
month; regularly attending church; and traveling to Puerto Rico for two weeks in August 2013.
R. 329–32. The record unquestionably contains substantial evidence to support this RFC
determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer, 186 F.3d at
429.
Plaintiff, however, contends that the RFC determination in the ALJ’s second decision is
“vague” and as defective as that previously rejected by this Court. Plaintiff argues that this RFC
finding therefore does not comply with the 2016 Court Order, which required the ALJ to
“articulate specific references to which and what evidence supports whatever plaintiff’s
exertional abilities . . . ultimately found to be[.]” Plaintiff’s Moving Brief, ECF No. 21, pp. 15–
20. Plaintiff’s argument is not well taken.
The 2016 Court Order required the ALJ to reconsider the RFC determination, making
“specific references to the evidence resulting in findings with respect to plaintiff’s exertional
capacities to walk, stand, lift, carry and sit.” R. 450. As previously discussed, the ALJ detailed
20
the record evidence in a narrative discussion throughout several single-spaced pages with
specific citations to the record, explicitly considered Plaintiff’s functional limitations, and crafted
an RFC that reflected those limitations. R. 329–32; see also Chandler, 667 F.3d at 361–62
(stating that the ALJ, not physicians, is charged with the ultimate disability and RFC
determinations and that an ALJ “is not precluded from reaching RFC determinations without
outside medical expert review of each fact incorporated into the decision”); Jones v, 364 F.3d at
505 (stating that an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis[;]” instead, the ALJ’s decision must contain “sufficient
development of the record and explanation of findings to permit meaningful review”); Diciano v.
Comm’r of Soc. Sec., No. 1:18-CV-17383, 2019 WL 6696523, at *5 (D.N.J. Dec. 9, 2019) (“The
RFC is a function-by-function assessment based on all of the relevant evidence of an individual’s
ability to do work-related activities, but an ALJ does not need to use particular language or
adhere to a particular format in conducting his RFC analysis.”) (citations omitted). Notably, the
ALJ explicitly considered evidence of Plaintiff’s ability to walk on his heels and toes without a
cane, R. 331 (citing Exhibit B12F, R. 569–73), and the fact that Plaintiff was not uncomfortable
in a seated position throughout his consultative examination and that he had no motor or sensory
abnormality in the lower or upper extremities, and 5/5 grip strength bilaterally, id.; the ALJ also
accorded “[s]ignificant weight” to the state agency reviewing physicians’ opinions that Plaintiff
was capable of lifting or carrying up to 10 pounds frequently and 20 pounds occasionally, sitting
up to 6 hours in an 8 hour day, standing or walking up to 4 hours in an 8 hour day, id. (citing
Exhibit B1A, R. 52–59, and Exhibit B3A, R. 61–68). Based on this record, this Court concludes
that the ALJ complied with the Court’s 2016 Order.
21
Plaintiff goes on to argue that the RFC determination is flawed because it does not
incorporate Plaintiff’s reliance on opioid pain relief. Plaintiff’s Moving Brief, ECF No. 21, pp.
29–32. However, as previously discussed, Plaintiff offered nothing other than his own testimony
when explaining the side effects of his medication and did not cite to any medical evidence
corroborating limitations arising from such side effects. Notably, the ALJ was required to
include only “credibly established” limitations. Rutherford, 399 F.3d at 554; Zirnsak, 777 F.3d at
615. Accordingly, the ALJ did not err when he did not include in the RFC any limitations arising
from side effects from Plaintiff’s medications. See Morris v. Comm’r of Soc. Sec., No. CV 1817531, 2020 WL 529204, at *5 (D.N.J. Jan. 31, 2020) (“Plaintiff does not cite any evidence
documenting medication side effects or functional limitations that are not accounted for in her
RFC.”); Pucciarello v. Colvin, No. CV 15-3719, 2016 WL 3912851, at *16–17 (D.N.J. July 19,
2016) (“Plaintiff here has failed to present ‘evidence of any functional limitation’ related to his
alleged drowsiness and clouded mental focus and, therefore, the ALJ’s implicit decision to
discount these claimed side-effects is supported by substantial evidence.”) (citations omitted).
In short, the Court concludes that the ALJ’s RFC determination sufficiently complies
with the 2016 Court Order, is consistent with the record evidence, and enjoys substantial support
in the record.
C.
Step Five
Plaintiff also challenges the ALJ’s determination at step five, arguing that the
determination does not comply with the requirements of the 2016 Court Order and that the
vocational expert’s testimony is inconsistent with the Dictionary of Occupational Titles
(“DOT”). Plaintiff’s Moving Brief, ECF No. 21, pp. 19–26. Plaintiff’s arguments are not well
taken.
22
“[A] vocational expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous
work[.]” 20 C.F.R. § 416.960(b)(2). “While ‘the ALJ must accurately convey to the vocational
expert all of a claimant’s credibly established limitations,’ . . . ‘[w]e do not require an ALJ to
submit to the vocational expert every impairment alleged by a claimant.’” Smith v. Comm’r of
Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (quoting Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005)). “[T]o accurately portray a claimant’s impairments, the ALJ must include all
‘credibly established limitations’ in the hypothetical.” Zirnsak v. Colvin, 777 F.3d 607, 614 (3d
Cir. 2014) (citing Rutherford, 399 F.3d at 554). Credibly established limitations are limitations
“that are medically supported and otherwise uncontroverted in the record.” Rutherford, 399 F.3d
at 554. Finally, a “vocational expert’s testimony concerning a claimant’s ability to perform
alternative employment may only be considered for purposes of determining disability if the
[ALJ’s hypothetical] question accurately portrays the claimant’s individual physical and mental”
limitations. Podedworny, 745 F.2d at 218.
“As a general rule, occupational evidence provided by a [vocational expert] should be
consistent with the occupational evidence presented in the DOT.” Zirnsak, 777 F.3d at 617
(citing SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). “To ensure consistency, courts
have imposed an obligation on ALJs to ‘[i]dentify and obtain a reasonable explanation for any
conflicts between occupational evidence provided by [vocational experts] . . . and information in
the [DOT].’” Id. (quoting SSR 00-4p at *1). “Specifically, an ALJ is required to (1) ask, on the
record, whether the [vocational expert’s] testimony is consistent with the DOT, (2) ‘elicit a
reasonable explanation’ where an inconsistency does appear, and (3) explain in its decision ‘how
23
the conflict was resolved.’” Id. (quoting Burns, 312 F.3d at 127). “An ALJ’s failure to comply
with these requirements may warrant remand in a particular case[,]” but “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.’” Id. (quoting
Rutherford, 399 F.3d at 557).
Finally, a vocational expert may rely on his or her own experience in addition to the DOT
when determining whether an individual is capable of performing any jobs. Horodenski v.
Comm’r of Soc. Sec., 215 F. App’x 183, 189–90 (3d Cir. 2007) (finding the ALJ did not err in
relying on a vocational expert who based his opinion on thirty years of his experience); Butler v.
Colvin, No. CIV. 13-7488, 2015 WL 570167, at *9 (D.N.J. Feb. 11, 2015) (noting that Judges in
the Third Circuit “have encouraged” vocational experts “to rely on their experiences rather than
solely on the DOT”).
Here, the 2016 Court Order remanded this case for a new hearing and, inter alia,
additional testimony from a vocational expert. R. 450. The Court further ordered that the “ALJ
shall incorporate the Commissioner’s understandings as published in SSR 83-10 regarding the
requirements of unskilled jobs when questioning the vocational expert.” Id. That Ruling
provides, in pertinent part, as follows:
Light work. The regulations define light work as lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted in a particular light job may be very little, a job is in this
category when it requires a good deal of walking or standing--the primary
difference between sedentary and most light jobs. A job is also in this category
when it involves sitting most of the time but with some pushing and pulling of armhand or leg-foot controls, which require greater exertion than in sedentary work;
e.g., mattress sewing machine operator, motor-grader operator, and road-roller
operator (skilled and semiskilled jobs in these particular instances). Relatively few
unskilled light jobs are performed in a seated position.
24
“Frequent” means occurring from one-third to two-thirds of the time. Since frequent
lifting or carrying requires being on one’s feet up to two-thirds of a workday, the
full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may occur intermittently
during the remaining time. The lifting requirement for the majority of light jobs can
be accomplished with occasional, rather than frequent, stooping. Many unskilled
light jobs are performed primarily in one location, with the ability to stand being
more critical than the ability to walk. They require use of arms and hands to grasp
and to hold and turn objects, and they generally do not require use of the fingers for
fine activities to the extent required in much sedentary work. . . .
*
*
*
*
1. Unskilled work. 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. The job may
or may not require considerable strength. For example, we consider jobs unskilled
if the primary work duties are handling, feeding, and offbearing (that is, placing or
removing materials from machines which are automatic or operated by others), or
machine tending, and a person can usually learn to do the job in 30 days, and little
specific vocational preparation and judgment are needed. A person does not gain
work skills by doing unskilled work.
SSR 83-10, 1983 WL 31251, at *5–7 (emphasis added).
At step five, the hypothetical question posed by the ALJ to the vocational expert
assumed a claimant with Plaintiff’s vocational profile and the RFC for a limited range of light
work ultimately found by the ALJ. R. 355. The vocational expert responded that the jobs of
sealing machine operator, microfilm mounter, and weld inspector—all jobs identified in the DOT
as light—would be appropriate for such an individual. R. 355–56. The ALJ went on to question
the vocational expert as follows:
Q All these jobs are light. Could you harmonize the fact that the RFC provides,
limited to only four hours of standing and walking in the workplace? How does that
jive with these three jobs that you gave?
A Well, these jobs are classified as light in the DOT, Your Honor. The fact of the
matter is that, you know, from my experience with the jobs, essentially I know that
they’re done from a seated position for most of the day. The operator has the
opportunity to stand if they wish, but they could be done from a seated position. So
that the walking and standing that the person does is really, you know, somewhat
limited in these jobs.
25
R. 356. Plaintiff’s counsel then questioned the vocational expert at length regarding the duties
required in these three jobs, the classification of the jobs as light, and how a claimant who is
limited to standing and walking up to four hours a day and sitting up to six hours a day can
perform these light jobs. R. 356–66. The vocational expert explained that the sealing machine
operator “is using their hands and their feet in rapid succession. That is also classified as . . . light
work activity. The individual would be similar to the sewing machine operator, that’s seated
most of the time, but uses a foot pedal.” R. 356–57; see also R. 360 (testifying that the sealing
machine operator is “primarily seated”). The vocational expert next testified that the duties of
microfilm mounter can be done either standing or sitting and is classified as light “because the
person . . . does have move about[] and get up periodically to get new reels of film to put into the
. . . splicer.” R. 357; see also R. 360–61 (testifying further that the microfilm mounter sits on a
high stool). The vocational expert also explained that the weld inspector would have to pick up
between five to fifteen pounds to inspect components, id., and that “when they are actually doing
the inspecting they’re doing it . . . generally from a seated position. They can stand, but they can
do it from a seated position as well.” R. 360. The vocational expert also testified that he was
familiar with these three jobs and had seen them performed. Id. The ALJ relied on the vocational
expert’s testimony and found that, despite Plaintiff’s impairments, he could perform work that
exists in significant numbers in the national economy and was therefore not disabled. R. 333–34.
Based on this record, this Court concludes that the ALJ complied with the 2016 Court Order and
did not err in relying on the vocational expert’s testimony when finding that jobs exist in
significant numbers in the national economy that Plaintiff could perform consistent with his
RFC. R. 333–34, 356–66; see also Podedworny, 745 F.2d at 218; Horodenski, 215 F. App’x at
189–90; SSR 83-10.
26
Plaintiff, however, argues that the ALJ should have, but did not, resolve a conflict
between the vocational expert’s testimony that the three identified jobs were consistent with the
ability to sit for up to six hours and the DOT’s identification of these jobs at the light exertional
level. Plaintiff’s Moving Brief, ECF No. 21, pp. 19–26. Plaintiff specifically argues that the 2016
Court Order “was intended to avoid allowing the Commissioner to satisfy his step 5 burden by
producing VE [vocational expert] testimony which identifies light work jobs that don’t fit the
Commissioner’s understanding of light work as adopted” from the DOT “merely because some
VE claims that he/she knows the job or has seen it done without standing and walking all day or
allows lifting and carrying all day from the seated position.” Id. at 20–21.
Plaintiff’s arguments are not well taken. The 2016 Court Order required the ALJ to
include the guidelines in SSR 83-10 when questioning the vocational expert, R. 450, which, as
set forth above, is precisely what happened here. R. 355–66. Moreover, to the extent that any of
the vocational expert’s testimony might be characterized as inconsistent with the DOT, the
vocational expert sufficiently resolved any such conflict by explaining the relevant job duties
based on his experience and seeing them performed. R. 356–61. While Plaintiff complains that
the Commissioner does not meet his burden “merely because some VE claims that he/she knows
the job or has seen it done[,]” a vocational expert may rely on his or her own experience when
determining whether an individual is capable of performing any jobs and an ALJ does not err
when relying on a vocational expert who bases his or her opinion on that experience.
Horodenski, 215 F. App’x at 189–90; Butler, 2015 WL 570167, at *9; Knight v. Colvin, No. CV
16-1816, 2018 WL 1400077, at *1 n.1 (W.D. Pa. Mar. 20, 2018) (“The ALJ’s reliance on this
[vocational expert testimonial] evidence was reasonable, especially in light of the fact that the
DOT provides the maximum requirements for occupations as generally performed, not the
27
requirements for a specific job in a specific setting. A VE can provide more specific information
about a specific job, which is precisely what happened here.”). Notably, Plaintiff’s counsel did
not object at the hearing to either the vocational expert’s qualifications or to his testimony
regarding the three jobs identified in the DOT as requiring light exertion. See generally R. 354–
66; cf. Brown v. Comm’r of Soc. Sec., No. CV 19-2110, 2020 WL 1244186, at *5 (E.D. Pa. Mar.
16, 2020) (“Brown’s counsel did not object to either the VE’s qualifications or to her testimony
in this respect. . . . Therefore, the ALJ did not err in relying on the VE’s testimony.”) (citations
omitted). In short, the ALJ reasonably relied on the vocational expert’s testimony, which
provided substantial support to the ALJ’s step five determination.
V.
CONCLUSION
For all these reasons, the Court AFFIRMS the Commissioner’s decision.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.
Date: March 12, 2021
s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
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