MATTA v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION filed. Signed by Judge Brian R. Martinotti on 03/31/2021. (jdb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRACEY MATTA
v.

Plaintiff,

Case No. 3:19-cv-09574
OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MARTINOTTI, DISTRICT JUDGE
Before the Court is Plaintiff Tracey Matta’s (“Matta”) appeal from the final decision of the
Commissioner of Social Security (“Commissioner”), denying her application for Social Security
Disability Benefits. Having reviewed the administrative record and the submissions filed in
connection with the appeal pursuant to Local Civil Rule 9.1, and having declined to hold oral
argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and
for good cause shown, the Commissioner’s decision is AFFRIMED.
I.

BACKGROUND
A. Procedural History
Matta filed an application for disability insurance benefits on September 24, 2015, alleging

that he became disabled on April 16, 2013. Administrative Transcript (“Tr.”) 12. Her date of last
insured was December 31, 2013 (Tr. 371.) 1 Her claim was initially denied on January 8, 2016.

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To qualify for disability insurance benefits, Plaintiff must show that her alleged disability
occurred before her insured status expired. See 42 U.S.C. §§ 423(a), (c); 20 C.F.R. §§ 404.101(a),
404.131(a).
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(Id.) After timely requesting reconsideration from the Agency, her claim was again denied on
March 7, 2016. (Notice of Request for Reconsideration, Tr. 90-93.)
On May 3, 2016, Matta requested that an Administrative Law Judge (“ALJ”) review her
claim. (Tr. 94.) On December 14, 2017, that hearing took place in Newark, New Jersey before
the Hon. Meryl Lissek. (Tr. 12; Hr. Trans., Tr. 24-66.) Matta testified at that hearing and was
represented by counsel. (Id.) Also testifying was Joseph Pearson, an impartial vocational expert.
(Id.) On February 23, 2018, ALJ Lissek issued a decision concluding that Matta was not disabled
within the meaning of the Social Security Act. (Tr. 9-23.)
On April 23, 2018, Matta timely filed a Request for Review of the ALJ's decision to the
Appeals Council. (Voorhees Letter, Tr. 145-46.) On February 12, 2019, the Appeals Council
denied Matta’s Request for Review, at which point the Agency’s decision became final. (Notice
of Appeals Council Action, Tr. at 1-6.) Her administrative remedies exhausted, Matta filed an
appeal with this Court on April 11, 2019. (Compl. (ECF No. 1).) This Court has jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
B. General Background
Matta was 54 years old when she applied for disability insurance benefits. (Tr. 149.) Matta
is high school educated and performed past relevant work as a customer service representative.
(Tr. 35, 168, 183-86.) She alleged disability from arthritis in her left hand and right knee, a right
leg length discrepancy, scoliosis caused by the discrepancy in leg lengths, fractured pelvis and left
shoulder, osteoporosis, depression, and deafness in her left ear. (Tr. 14.) She has not engaged in
substantial gainful activity since the alleged onset date through the date last insured on December
31, 2013. 20 C.F.R. § 404.1571.

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II.

STANDARD OF REVIEW
On a review of a final decision of the Commissioner of the Social Security Administration,

a district court “shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel,
239 F.3d 589, 592 (3d Cir. 2001). The Commissioner's decisions regarding questions of fact are
deemed conclusive by a reviewing court if supported by “substantial evidence in the record.” 42
U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). This Court must affirm an
ALJ's decision if it is supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)). To determine whether an ALJ's decision is
supported by substantial evidence, this Court must review the evidence in its totality. Daring v.
Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However, this Court may not “weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (citation omitted). Accordingly, this Court may not set an ALJ's decision aside,
“even if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358,
360 (3d Cir. 1999) (citations omitted).
III.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
Under the Act, the Social Security Administration is authorized to pay Social Security

Insurance to disabled persons. 42 U.S.C. §§ 423(d)(1)(A), 1382(a). A claimant is “disabled” if
she “is unable to engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A). A person is unable to engage in substantial gainful activity when her physical or
mental impairments are “of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
Regulations promulgated under the Act establish a five-step process for determining
whether a claimant is disabled. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a)(1). First, the ALJ
determines whether the claimant has shown that he or she is not currently engaged in “substantial
gainful activity.” Id.; §§ 404.1520(b), 416.920(b); see Bowen v. Yuckert, 482 U.S. 137, 146-47
n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If a claimant is presently engaged in any form of
substantial gainful activity, he or she is automatically denied disability benefits. See 20 C.F.R. §
404.1520(b); see also Bowen, 482 U.S. at 140. Second, the ALJ determines whether the claimant
has demonstrated a “severe impairment” or “combination of impairments” that significantly limits
his physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c);
see Bowen, 482 U.S. at 146-47 n.5. Basic work activities are defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1522(b). These activities include physical functions
such as “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” 20
C.F.R. § 404.1522(b)(1). A claimant who does not have a severe impairment is not considered
disabled. 20 C.F.R. § 404.1520(c); see also Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999).
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the
“Impairment List”). See 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or

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her impairments are equal in severity to, or meet those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See 20 C.F.R. §§
404.1520(d), 416.920(d); see also Bowen, 482 U.S. at 146-47 n.5. If the specific impairment is
not listed, the ALJ will consider in his or her decision the impairment that most closely satisfies
those listed for purposes of deciding whether the impairment is medically equivalent. See 20
C.F.R. § 404.1526(a). If there is more than one impairment, the ALJ then must consider whether
the combination of impairments is equal to any listed impairment. See 20 C.F.R. § 404.1526(b)(3).
An impairment or combination of impairments is basically equivalent to a listed impairment if
there are medical findings equal in severity to all the criteria for the one most similar. Williams,
970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the “residual functional capacity” (“RFC”) to perform his or her past relevant work. See 20 C.F.R.
§§ 404.1520(e)-(f), 416.920(e)-(f); see also Bowen, 482 U.S. at 141. Step four involves three substeps: (1) the ALJ must make specific findings of fact as to the claimant's RFC; (2) the ALJ must
make findings of the physical and mental demands of the claimant's past relevant work; and (3)
the ALJ must compare the RFC to the past relevant work to determine whether claimant has the
level of capability needed to perform the past relevant work. Burnett v. Comm'r of Soc. Sec., 220
F.3d 112, 120 (3d Cir. 2000) (citations omitted). When determining RFC, “[a]n ALJ may reject a
treating physician’s opinion outright only on the basis of contradictory medical evidence, but may
afford a treating physician’s opinion more or less weight depending upon the extent to which
supporting explanations are provided.” Hoyman v. Colvin, 606 F. App'x 678, 679-80 (3d Cir.
2015) (quoting Plummer, 186 F.3d at 429). Unsupported diagnoses are not entitled to great weight.

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Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). Moreover, an administrative law judge must
provide the reason for providing more or less weight to the evidence. See Fargnoli v. Massanari,
247 F.3d 34, 42 (3d Cir. 2001).
The claimant is not disabled if his RFC allows him to perform his past relevant work. See
20 C.F.R. § 416.920(a)(4)(iv). However, if the claimant's RFC prevents him from doing so, an
administrative law judge proceeds to the fifth and final step of the process. (Id.) The final step
requires the administrative law judge to “show [that] there are other jobs existing in significant
numbers in the national economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and [RFC].” Plummer, 186 F.3d at 428. In
doing so, “[t]he ALJ must analyze the cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work and is not disabled.” (Id.) (citation
omitted.)) Notably, an administrative law judge typically seeks the assistance of a vocational
expert at this final step. (Id.) (citation omitted.))
The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step
three involves a conclusive presumption based on the listings.” (Id. at 263 n.2) (citing Bowen, 482
U.S. at 146-47 n.5.)) The Commissioner bears the proof burden for step five. (See id. at 263.)
IV.

DECISION
Matta makes six arguments contesting the Commissioner’s final decision. Her first three

arguments challenge the ALJ’s decision on substantial evidence grounds. She claims the ALJ
erred by classifying her past work as a customer service representative as a skilled position, erred
in determining that her “communication skills” were transferable to other jobs, and failed include
all of her impairments in hypotheticals presented to the VE at the hearing. (Tr. 12-14.) Her fourth

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argument claims the ALJ failed to “adequately” consider treatment records from April 2013
through December 31, 2013. (Tr. 14-15.) She next argues that the matter should be revered and
remanded because the ALJ did not consider her impairments in combination with Listing 14.09—
Inflammatory Arthritis. (Tr. 15-17.) Finally, she avers that the ALJ erred by failing to ask the VE
whether possible inconsistencies existed between the VE’s testimony and the DOT pursuant to
SSR 00-4p. While at times difficult to discern, Matta’s arguments range from step-three to stepfive objections. The Court addresses each of these arguments in turn.
A.

The Classification of Matta’s Past Relevant Work

Matta first appeals the ALJ’s determination in what appears to be a step-four argument.
She claims the ALJ erred by classifying her past work as a customer service representative as a
skilled position as defined by the Dictionary of Occupational Titles (“DOT”) 241.367-014. (Pl.’s
Br. in Supp. of App. (ECF 11) at 12 (citing Tr. 34)). Fundamentally, she argues that her position
as a customer service representative should not have been classified as “skilled” work by the VE
because the VE supposedly lacked necessary information about Matta’s prior work. (Id.) She
avers that the ALJ’s classification was based solely on: (1) a “Work History Report” Matta
completed and (2) the testimony she gave at the hearing “that it was a seated job on the telephone.”
(Hr. Trans., Tr. 34.) She complains that there was no development of the record that explains, for
example, the types of “machines, tools or equipment” that she indicated she used on her Work
History Report.

(Id.)

According to Matta, the record also does not contain “information

whatsoever” about her daily work duties. (Id.) By “not request[ing] further information regarding
the job functions or requirements” of the job, Matta argues the VE’s testimony classifying her
past-relevant work as skilled is not supported by substantial evidence.” (Id.) The Commissioner
contends the ALJ reviewed the vocational information provided by Matta including Matta’s own

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testimony describing her past work and properly considered that evidence. (Def’s Br. (ECF 14) at
8). The Court rejects Matta’s contention that the ALJ improperly categorized her past work as
skilled. The argument is, ultimately, a red herring.
First, while Matta “indicated” that her job required the use of other machines, tools or
equipment, she fails to argue here what those supposed items were. Beyond her reporting that she
used a telephone and computer, nothing else was specified in the documents or testimony she
provided. (Tr. 184.) In her Work History Report, when asked if she used “machines, tools or
equipment,” Matta answered “yes” and wrote “computer.” (Id.) She also reported she performed
customer service “by phone” and wrote “Data entry.” (Id.) Notably, she did not identify any other
items that she used during work. She also testified as to her then-daily work activities. She
affirmed that her job was performed mostly in the seated position, using a telephone, applying
technical knowledge and completing reports. (Tr. 34, 184-85.)
The ALJ found that Matta could not perform her past relevant skilled work as a customer
service representative. However, the ALJ did find that Matta could perform the work of an
Information Clerk, DOT 237.367.022, and characterized it as a “semi-skilled” position. (Tr. 19.)
She makes no attempt to argue that she could not perform the work of an information clerk and
instead complains her past relevant work—work the ALJ did not find she could perform any
longer—was mischaracterized as skilled. Regardless, the VE affirmed that he had “adequate
information” to characterize Matta’s past work as performing the work of a customer service
representative. (Tr. 35.) He noted that the job is “considered a skilled job . . . and rated at the
sedentary level of exertion.” (Id.) Matta did not question the VE’s classification during the
hearing. (Tr. 35-36.) The foregoing constitutes substantial evidence on which the ALJ based her
decision on and credibly determined that Matta’s past relevant work was skilled work. The ALJ’s

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explanation of the administrative record provides this Court with “more than a mere scintilla” of
evidence to support her decision. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (defining
substantial evidence as “less than a preponderance of the evidence but more than a mere
scintilla.”). Therefore, the Court finds no error.
B.

Matta’s Transferable Skills

Matta next contends that the VE erroneously testified that her communication skills were
transferable to other jobs because such skills are “aptitudes common to most people” rather than
skills she acquired while working as a customer service representative. (Pl’s Br. in Supp. of App.
(ECF 11) at 13-14.) The Court interprets this as a step-five argument. She submits that
communication skills are aptitudes required for the vast majority of occupations in the national
economy and not transferable vocational skills. (Id.) This argument, however, lacks merit.
“When a finding is made that a claimant has transferable skills: (1) the acquired work skills
must be identified, (2) the specific occupations to which the acquired work skills are transferable
must be cited, and (3) evidence that these specific skilled or semi-skilled jobs exist in significant
numbers in the national economy should be included.” Gaddis v. Comm’r of Soc. Sec., 417 F.
App’x 106, 107-08 (3d Cir. 2011) (citing SSR 82-41)). The ALJ here did just that.
The VE testified that Matta acquired “effective communication” skills as a customer
service representative that are learned “by actually doing the work for a certain amount of time . . .
most employers provide some type of training on how to effectively communicate with
customers.” (Hr. Trans., Tr. 64.) Matta performed customer service occupations at FedEx from
September 1980 to March 2000 regarding “Shipping” services and Bristol Myers-Squibb from
September 2000 to March 2007 regarding “[m]edical [p]roducts.” (Tr. 32-34, 183.) She also
performed a brief four-month customer service position at John Wiley & Sons—as a book

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distributer—from April to August of 2008. (Tr. 183.) The VE testified that there were over
185,000 information clerk positions available in the national economy after eroding that number
by twenty-five percent to account for Matta’s hearing impairment. (Hr. Trans., Tr. 62; Tr. 19.)
The ALJ was entitled to rely on the VE’s testimony and find that Matta’s demonstrated
communication skills and experiences translated to a semi-skilled, sedentary position as an
Information Clerk, DOT 237.367.022. (Tr. 18-19.); See 20 C.F.R. § 404.1566(e); see also 20
C.F.R. § 404.1568(d)(1). The Court does not agree with Matta’s argument that the record contains
insufficient evidence “to sustain the VE’s testimony.” Her broad and unsupported assertion that
communications skills are “required for the vast majority of occupations” lacks evidentiary
support. Even if the Court finds the ALJ erred Matta does not allege how she was harmed by the
supposed error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009) (claimant bears burden of
showing that an error was harmful)). She does not argue that she cannot communicate with
customers in a customer service role or in the role as an information clerk. She merely disagrees
with the ALJ’s decision without pointing out how she was harmed. Accordingly, the Court finds
no error in the ALJ’s reliance on the VE’s testimony, and her decision that Matta acquired
transferable communication skills through her previous jobs is supported by substantial evidence.
The ALJ’s decision is sustained on this ground.
C. The ALJ’s Hypotheticals
Matta’s third argument challenges the hypothetical questions posed by the ALJ to the VE
at the hearing. Specifically, Matta argues that the ALJ did not include her supposed struggles to
maintain concentration, persistence, and pace “despite her testimony that her depression caused
. . . lethargy in general” and impeded her ability to “handle customer calls quickly enough.” (Pl’s
Br. in Supp. of App. (ECF 11) at 14) (citing Tr. 32, 45.))

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The Third Circuit in Rutherford v. Barnhart, set the standard for hypothetical questions to
vocational experts:
[T]he directive in Podedworny is that the hypotheticals posed must
“accurately portray” the claimant’s impairments and that the expert
must be given an opportunity to evaluate those impairments “as
contained in the record.” [...] Fairly understood, such references to
all impairments encompass only those that are medically
established. And that in turn means that the ALJ must accurately
convey to the vocational expert all of a claimant’s credibly
established limitations.
399 F.3d 546, 553 (3rd Cir. 2005) (citations omitted). The “credibly established limitations” are
those that are in the RFC determination and supported by substantial evidence. Despite Matta’s
contention that the matter should be remanded to consider her ability to maintain consistency,
persistence, and pace while working, the record here shows that the ALJ’s hypotheticals and
decisional RFC reasonably incorporated any such limitation.
The ALJ addressed Matta’s depression and ability to maintain concentration, persistence,
and pace. (Tr. 16.) The RFC included Matta being off-task five percent of a workday and allowed
one absence from work per month to account for her “symptoms of anxiety and depression.” (Id.)
The record is replete with reports from examining physicians indicating that Matta denied
depression, anxiety, and describing her “good” mood. (Tr. 278, 281, 297, 301, 311, 1055.) These
same reports described her as alert and oriented. (Tr. 240, 278, 281, 289, 297, 301, 312.) Reports
note she displayed intact attention and concentration, memory, and normal executive functions
“when asked to perform simple tasks.” (Tr. 312.) The ALJ found Matta’s mental impairments
moderately limited her ability to concentrate, apply information, concentrate, persist, or maintain
pace and showed no marked limitations in any of these areas. (Tr. 15.) Significantly, outside of
referencing her testimony that she lacked energy due to depression, Matta does not argue that her
mental depression causes marked or extreme limitations to meet the requirements of Listing 12.04.
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The ALJ concluded that the evidence failed to establish the presence of “at least two ‘marked’
limitations or one ‘extreme’ limitation” required under the “paragraph B” criteria for Listing
12.04—Depressive Disorders. (Tr. 15.) The ALJ then explained that the RFC reflected “the
degree of limitation the undersigned has found in the ‘paragraph B’ mental functional analysis.”
(Tr. 16.)
Also, the hypotheticals presented to the VE at the hearing and decisional RFC included
Matta’s credibly established limitations. In the third hypothetical she gave to the VE, the ALJ
described a person performing work that did “not involve talking on a telephone. And based on
pain and symptoms of depression and anxiety will be off task for five percent of an eight-hour day
and absent once per month.” (Hr. Trans., Tr. 63.) The VE testified that the information clerk job
“would remain available within this RFC.” (Id.) Despite Matta’s arguments to the contrary, the
foregoing demonstrates that the ALJ reasonably accounted for Matta’s depression and ability to
maintain concentration, persistence, and pace in the RFC. Her decision is based on substantial
evidence and is, therefore, affirmed.
D.

The ALJ’s Consideration of Matta’s Treatment Records—April 2013 through
December 2013

Matta’s next substantial-evidence argument claims the ALJ did not “adequately” consider
treatment records from April 2013 through December 31, 2013—the last date of insured. (Pl.’s
Br. in Supp. of App. (ECF 11) at 15). The substance of those treatment records, according to her,
“clearly contradict” the ALJ’s findings that Matta could sit for six hours and stand for two hours
in an eight-hour workday. (Id.) The Court, however, disagrees.
First, the Court notes that Matta does not provide support for her argument. She does not
cite to specific treatment records, nor does she explain how these uncited treatment records
supposedly contradict the ALJ’s findings. She does not explain why her alleged restrictions are
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greater than the restrictions the ALJ found and included in the RFC. Nevertheless, the ALJ
acknowledged Matta’s complaints that she suffered pain in her hip and pelvis as reasons why she
could not return to work. (Tr. 16-17.) The ALJ also explains that Matta reported “some difficulty”
ambulating but that her daily activities included cooking simple meals, light cleaning, driving,
shopping and engaging “in social activity.” (Tr. 17.) The ALJ noted that Matta “estimated she
could lift up to 15 pounds.” (Id.) The ALJ also explicitly referenced medical documents detailing
her hospitalization “for a fall in April 16, 2013, and suffered a left shoulder fracture and hip
contusion.” (Id.)
The ALJ then explained that “records indicate” Matta underwent surgery on her shoulder
and reported that physical therapy resulted in “some gradual improvement.” (Id.) Despite Matta’s
broad statement that the ALJ did not adequately consider her treatment records during the period
in question, the ALJ found Matta’s “pain persisted” and that she “developed stiffness in the left
arm and numbness in her fingers.” (Id.) Further undermining Matta’s argument, the ALJ then
gave little weight to the opinions of two State Agency medical consultants who concluded there
was insufficient medial evidence to support a finding of disability “prior to the expiration of the
Date of Last Insured of December 2013.” (Id.) (citing Tr. 67-73, 75-81.)) The ALJ disagreed
with the consultants and instead found that the medical evidence “supports severe musculoskeletal
impairments.” (Id.) Accordingly, the Court finds that the ALJ properly and adequately considered
Matta’s treatment records for the period in question. Her decision here is supported by substantial
evidence and the Court will defer to her findings.
E.

Inflammatory Arthritis Under Listing 14.09

For her next argument, Matta claims that had the ALJ combined her severe impairments
against Listing 14.09, Inflammatory Arthritis, she would have met that listing. (Pl.’s Br. in Supp.

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of App. (ECF 11) at 16). The Commissioner contends that the ALJ did not need to consider that
listing and argues the record does not establish that Matta suffers from this “autoimmune disorder.”
(Def’s Br. (ECF 14) at 17). See 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 14.00A, D6. “Autoimmune
disorders are caused by dysfunctional immune responses directed against the body’s own tissues,
resulting in chronic, multisystem impairments that differ in clinical manifestations, course, and
outcome. They are sometimes referred to as rheumatic diseases, connective tissue disorders, or
collagen vascular disorders.” 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 14.00A(2). For the claimant
to show that her impairment matches a listing, she “must meet all of the specified medical criteria.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
In general, Listing 14.09(D) covering inflammatory arthritis states:
Clinically, inflammation of major peripheral joints may be the
dominant manifestation causing difficulties with ambulation or fine
and gross movements; there may be joint pain, swelling, and
tenderness. The arthritis may affect other joints, or cause less
limitation in ambulation or the performance of fine and gross
movements. However, in combination with extra-articular features,
including constitutional symptoms or signs (severe fatigue, fever,
malaise, involuntary weight loss), inflammatory arthritis may result
in an extreme limitation.
(20 C.F.R. pt. 404, Subpt. p App. 1, 14.00D(6)(a).)
The regulations further state that listing-level severity for 14.09(D) is shown by:
various combinations of complications of one or more major
peripheral joints or other joints, such as inflammation or deformity,
extra-articular features, repeated manifestations, and constitutional
symptoms or signs.
(20 C.F.R. pt. 404, Subpt. p App. 1, 14.00D(6)(e)(ii).)
While Matta points to Listing 14.09, she does not attempt to demonstrate that she meets
the requirements of that listing. See 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 14.09(A)-(D). She
offers no support for her bare assertion that the ALJ should have considered Listing 14.09. There
14

is evidence, as the Commissioner points out, that cuts against Matta’s argument. An examining
rheumatologist in November 2015 did not find evidence “clinically or serologically” that Matta
suffers from “rheumatoid arthritis, lupus, or any other autoimmune rheumatic disorder.” (Tr. 887.)
There is also evidence of consulting physicians who opined that Matta has a history of “significant”
arthritis. (Tr. 274.) Other reports from examining physicians indicate that Matta had “mild
tenderness” or “no tenderness or palpation” in her left hip, “pain with ROM (range of motion)”,
no joint instability and a “5/5” for strength. (Tr. 278, 281, 298, 302, 331-32.) Matta invites the
Court to scavenge for evidence in the record she herself does not point to so that the evidence may
be reweighed and applied to the requirements of 14.09. This the Court cannot do. Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Accordingly, Matta fails to meet her heavy burden
of demonstrating that she meets the requirements of Listing 14.09.
F.

Whether Inconsistencies Existed Between the Vocational Expert’s Testimony
and the Dictionary of Occupational Titles

Matta’s final argument fares no better. She claims the ALJ failed to ask the VE whether
possible inconsistencies existed between the VE’s testimony and the DOT pursuant to SSR 00-4p.
The ALJ specifically “determined that the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles.” (Tr. 19.) The VE made several
references during his testimony to the DOT regarding the information clerk job. (See Tr. 35, 6162.) Considering the DOT and evidence before him, the VE “eroded” the number of available
information clerk positions nationwide by twenty-five percent to account for Matta’s hearing loss.
(Tr. 62.) Also, Matta does not allege that she was harmed by this supposed error. Besides arguing
that the ALJ did not ask the VE whether conflicts existed between the VE’s testimony and the
DOT, Matta does not specify what those supposed conflicts are. In other words, even assuming
Matta is correct, she does not claim that the outcome would have been different had the ALJ asked
15

this specific question. It is not enough that Matta points to an error committed by ALJ; she must
also show that she was harmed by the error. Shinseki, 556 U.S. at 409-10 (2009); see also Jackson
v. Barnhart, 120 F. App’x 904, 906 (3d Cir. 2005) (“[E]ven if it was error for the ALJ to fail to
solicit testimony about potential conflicts between this portion of the VE’s testimony and the DOT,
the error was harmless. Where substantial evidence supports the ALJ’s opinion and where the
failure to solicit the testimony contemplated in SSR 00-4p is harmless, this court will not reverse
the ALJ’s decision.”). Having earlier found that the ALJ’s decision at step four is supported by
substantial evidence, the alleged error here, at most, was harmless. The Court will not disturb the
ALJ’s decision on this ground.
III.

CONCLUSION
For the foregoing reasons, the determination of the Commissioner is AFFIRMED.

Date: March 31, 2021

/s/Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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