Minichino v. Astrue

Filing 13

MEMORANDUM This case exemplifies the difficult nature of Social Security proceedings. Recognizing the challenges faced by the Social Security Administration (particularly the ALJ where a hearing has been conducted) and the complex legal framework wi thin which claims are analyzed, we must also keep in mind the reasons for the detailed obligations governing SSA decisions-real people with real problems deserve careful scrutiny of their claims. Plaintiff is clearly a claimant with multiple physica l problems, some psychological problems, and substance dependence issues. Her records indicate some long-term difficulties but also many short-term exacerbations of long-term problems and multiple accident/incident related problems. The number of t reating physicians, overlapping visits and reports, and inferences which can be derived from some reports portray a picture of a pleasant, though sometimes difficult patient. (See, e.g., R. 575, 879, 1090.) The ALJs analysis of Plaintiffs claim and complex record is in most respects thorough and his findings well-supported. However, our consideration of the intricate requirements related to the step five determination, particularly as they apply to VE testimony, prevent affirmance.Because we have found the VEs testimony on each of the suggested positions unreliable, because the ALJ relied on the VEs testimony to determine at step five that Plaintiff could make an adjustment to other work and was not disabled (R. 32-33), and because we fi nd no other evidence in the record to support the ALJs decision at step five, the ALJs conclusion that Plaintiff in not disabled is not supported by substantial evidence. Thus, Plaintiffs appeal of the Commissioners denial of benefits (Doc. 1) is granted, and the case is remanded for further consideration consistent with this Memorandum. An appropriate Order is entered simultaneously with this Memorandum. (See Memorandum)Signed by Honorable Richard P. Conaboy on 6/28/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALISSA MINICHINO,

:
:CIVIL ACTION NO. 3:12-CV-625
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN, ACTING
:
COMMISSIONER OF SOCIAL SECURITY,1 :
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider an appeal from the Commissioner’s denial of
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-433, 1381-1383f.

(Doc. 1.)

For the

reasons discussed below, we conclude remand to the Commissioner is
required.
I. Background
A. Procedural Background
Plaintiff applied protectively for DIB and SSI on May 29,
2008, alleging disability since March 26, 2008.

(R. 204, 208.)

Plaintiff listed her illnesses, injuries, or conditions that
limited her ability to work as “back problems and shorter leg,
broken arms with numerous surgeries.”
1

(R. 237.)

She stated that

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Substitution of Carolyn W. Colvin
for Michael J. Astrue is appropriate pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure and the last sentence of 42 U.S.C.
§ 405(g).

these things affect her ability to work in that she is unable to
carry or lift things, unable to sit or stand for too long and has a
“[h]ard time walking, bad limp.”

(R. 237.)

Plaintiff’s claims

were initially denied on May 13, 2009, because it was determined
she was not disabled under Social Security rules.

(R. at 96, 102.)

Plaintiff requested a hearing before an administrative law judge
(“ALJ”) (R. 120), and a hearing was held before ALJ Daniel Myers on
June 9, 2010 (R. 40).

Plaintiff, who was represented by counsel,

appeared and testified at the hearing.

(R. 40-67.)

The ALJ found

Plaintiff was not disabled under the Act and denied her
application.

(R. 18-33.)

A timely appeal was taken to the Appeals

Council, and on February 17, 2012, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the
decision of the Commissioner.

(R. 1.)

On April 4, 2012, Plaintiff filed a Complaint with this Court
objecting to the Commissioner’s final decision and requesting an
award of benefits or remand to the Commissioner.
Defendant filed an answer on June 5, 2012.

(Doc. 1.)

(Doc. 7.)

Pursuant to Local Rules 83.40.4 and 83.40.5 Plaintiff filed
her brief in support of her appeal of the denial of her claim on
July 18, 2012.

(Doc. 9.)

Plaintiff identifies three errors: 1)

the ALJ did not comply with Social Security Ruling (“SSR”) 00-4p in
that he failed to resolve a conflict between the vocational
expert’s (“VE”) testimony and the Dictionary of Occupational Titles

2

(“DOT”); 2) the ALJ improperly relied on the VE’s testimony because
that testimony was inaccurate and incredible; and 3) the ALJ failed
to give a good reason for rejecting the opinion of Dr. VanGeisen
who concluded that Plaintiff was able to sit for four hours per day
and stand/walk for an hour or less over the course of an eight-hour
workday.

(Doc. 9 at 4.)

Defendant filed her brief on August 17, 2012.

(Doc. 10.)

Defendant maintains Plaintiff’s asserted errors are without merit.
(Id.)
Plaintiff filed a reply brief on August 22, 2012. (Doc. 11.)
With this filing, Plaintiff again asserts the previosly identified
errors (elaborating on some) and concludes there are multiple
harmful defects in the ALJ’s decision.

(Id.)

B. Factual Background
Plaintiff was born in November 30, 1961, and was forty-eight
years old when the Decision was issued.
grade she completed was tenth grade.

(R. 15, 396.)

(R. 44.)

The highest

Plaintiff left

school after being hit by a car and suffering a fractured pelvis
and broken femur.

(R. 51.)

She had no additional education or

training after she left high school.

(R. 57.)

Plaintiff has prior

work experience as a school bus driver and dump truck operator.
(R. 278.)

She last worked as a dump truck driver and spent several

weeks out of work following a cervical discectomy and fusion on
February 12, 2009.

(R. 62, 1084.)

3

Given Plaintiff’s lengthy medical history and voluminous
medical records (see R. 288-1323), our recitation of Plaintiff’s
impairment related background focuses on her identified impairments
from the claimed date of onset, March 26, 2008 (R. 204, 208).
1.

Shorter Leg Impairment
The shorter leg impairment noted by Plaintiff (R. 237) is a

result of the broken pelvis and femur which she sustained in the
car accident while she was in high school.

(R. 52.)

At the ALJ

hearing, Plaintiff’s attorney asked Plaintiff whether “there is
anything residual, any kind of pain or anything.”

(R. 52.)

Plaintiff responded “[w]hen the weather’s been – yeah, just in my
lower back and my pelvic bones mainly.”

(R. 52.)

She added that

it was numb where the scar is located and, as she grew older, she
started having back pain.”
2.

(Id.)

Back Problems
Plaintiff’s “back problems” (R. 237) have resulted in “a long

history of chronic neck pain and chronic low back pain with pain
extending into her legs.”
1022-23).)

(Doc. 9 at 5 (citing R. 960, 977, 1016,

Plaintiff alleges documented degenerative disc disease

with radiculopathy in both cervical and lumbar spine.

(Doc. 9 at 5

(citing R. 1078, 1280).)
a.

Lower Back Pain and Treatment
Evidence cited relates to the alleged disability time frame

beginning with a York Memorial Hospital Outpatient Emergency
4

Department Record on March 8, 2008, when Plaintiff presented with
left lower back pain with radiation to her left gluteal and
posterior thigh regions.

(R. 1022.)

Plaintiff reported she had

been moving some heavy boxes a week before her hospital visit and
experienced some mild discomfort which resolved.

(R. 1022.)

She

had again done some “mild moving of similar objects” which resulted
in the presenting symptoms.

(Id.)

The report also states that

Plaintiff has a history of degenerative disc disease, a condition
treated by Dr. Nachtigall.2

(Id.)

She had been using Tylenol

arthritis medication with minimal relief.
heat helped to resolve the symptoms.
portion of the report is blank.

(Id.) She stated that

(Id.)

(R. 1023.)

The “Treatment”
“Clinical Impression”

indicates lumbar radiculopathy and sciatica.

(Id.)

On March 10, 2008, Plaintiff saw Asit P. Upadhyay, D.O., at
York Rehab & Pain Consultants, Inc.

(R. 570.)

Dr. Upadhyay

treated Plaintiff with injections and prescribed high dose steroids
and Dilaudid for more severe pain.

(Id.)

Plaintiff continued to

receive lumbar spine injections from Dr. Upadhyay, at least through
February 2010.

(Doc. 10 at 2-3 (citing R. 552-71, 751-91, 949-

1000, 1135-1250).)

On March 31, 2008, Plaintiff saw Dr. Upadhyay

2

Upon referral of Kieran P. Knapp, D.O., Dean A. Nachtigall,
D.O., began treating Plaintiff on November 27, 2007, for low back
pain and radicular right leg pain. (R. 1016.) At the time, Nr.
Nachtigall treated Plaintiff with a corticosteroid injection “to
optimistically break the acute exacerbation.” (Id.)
5

for follow-up evaluation of back pain.

(R. 781.)

She reported an

“aching stabbing sensation” and also reported that previous
injections significantly reduced pain.

(Id.)

On March 13, 2008, Plaintiff saw Dr. Nachtigall.

(R. 659.)

He reported acute exacerbation over the past week, severe pain,
positive straight leg raising.
the pain.

(Id.)

(Id.)

He offered her Percoset for

Plaintiff’s treatment plan included Vicodin for

pain, an MRI and x-rays for further evaluation, and physical
therapy for assessment and assistance with ambulation and a back
exercise program.

(Id.)

On March 14, 2008, Plaintiff returned to the hospital
reporting the acute onset of pain had occurred one week previously
after moving some boxes.

(R. 414.)

The pain had not been relieved

with an epidural injection or narcotic medications so Dr.
Nachtigall admitted her to the hospital for pain control and
further evaluation.

(Id.)

On April 1, 2008, Dr. Nachtigall reported that the epidural
cortisone injection resulted in improvement of her left leg
symptomology and her MRI study revealed a bulging disc.

(R. 653.)

He offered Plaintiff prescriptions for Vicoden and Soma and also
encouraged walking for back strengthening.

(Id.)

On June 24, 2008, Dr. Nachtigall’s notes referred to the acute
exacerbation of Plaintiff’s low back problem (which occurred after
lifting an air conditioner) and stated that the MRI study of March

6

17, 2008, showed no evidence that surgical intervention was
required.

(R. 652.)

On June 25, 2009, Dr. Upadhyay documented that Plaintiff
described her pain “as an aching constant pain, a 6 on average,
better with heat, worse with cold.”

(R. 960.)

He reported she was

“doing well on her current medications on NSAID combined with antiinflammatories and muscle relaxers.”
b.

(Id.)

Cervical Spine Pain and Shoulder Injury
Following a fall which occurred on December 27, 2008,

Plaintiff was seen by Orthopaidic & Spine Specialists, P.C., on
December 29, 2008, and diagnosed with a greater tuberosity fracture
with minimal displacement.

(R. 1075.)

The report states Plaintiff

was employed as a truck driver at the time.

(Id.)

At her two-week follow-up appointment, Plaintiff was seen by
Michael J. Moritz, M.D.

(R. 1077.)

Dr. Moritz noted the

tuberosity fracture was healing well and also noted “[p]ossible
cervical radiculopathy, affecting right arm.”

(R. 1077.)

On

January 26, 2009, Dr. Moritz again saw Plaintiff who complained of
persisting left hand numbness with pain radiating down her arm.
(R. 1078.)

Following x-rays of the cervical spine, Dr. Moritz

diagnosed cervical disc degeneration and cervical radiculopathy,
left arm.

(Id.)

Plaintiff was given a soft collar and

recommended moist heat.

(Id.)

She requested narcotics, but the

strongest pain medication Dr. Moritz would prescribe was Darvocet.

7

(Id.)

He also ordered an MRI of the spine to determine the

severity of the disc problem in her neck.

(Id.)

On February 2, 2009, Dr. Moritz saw Plaintiff for follow-up of
her cervical MRI.

(R. 1082.)

Finding that the MRI showed

significant disc problems, he determined referral to a cervical
surgeon to be appropriate.

(Id.)

On February 3, 2009, Plaintiff was seen by Kamran Majid, M.D.,
who noted historically that Plaintiff had neck pain for one year
and did not recall an injury.

(R. 1080.)

Plaintiff was laid off at the time.

(Id.)

He also noted that
Diagnostic studies

revealed Plaintiff had “C5-6 spondylosis with a moderate amount of
cord compression and a left-sided disk herniation.”

(R. 1081.)

Dr. Majid discussed nonoperative and operative management with
Plaintiff.

(Id.)

Plaintiff chose operative intervention.

(Id.)

Dr. Majid performed a cervical discectomy and fusion on
February 12, 2009, to treat her cervical spondylosis.
85.)

(R. 1084-

At her February 20, 2009, follow-up appointment, Plaintiff

reported some numbness on the left side of her neck and continued
right shoulder pain but her hand symptoms had resolved.

(R. 1083.)

At her next appointment on March 10, 2009, Dr. Majid treated
Plaintiff’s continuing shoulder pain with an injection, lifted her
restrictions, allowed her to drive, prescribed physical therapy,
and gave her prescriptions for Soma and Percocet.

(R. 1089.)

On March 27, 2009, Plaintiff’s chief complaint was right

8

shoulder pain.

(R. 1090.)

She reported no improvement following

the injection during her previous visit.

(Id.)

Dr. Majid further

noted that Plaintiff “is also taking Vicodin and taking muscle
relaxants for pain.

She reports that she is not real interested to

return to work yet and that she has not recovered 100%.”

(Id.)

Dr. Magid decided to request an evaluation and treatment by a
sports specialist at Orthopaedic and Spine Specialists, PC,
regarding her right shoulder pain.

(Id.)

involvement of a chronic pain specialist.

He also requested the
(Id.)

She is currently taking narcotic medications
and does not wish to wean off them. I am
requesting an evaluation and treatment by a
chronic pain specialist because I feel the
patient may require long-term narcotic
medications due to dependence. I will see
the patient again at 6 weeks. At that time I
will advise her that she should make
arrangements to return to work; however, she
does not wish to work right now. At 6 weeks
I will have to send her back to work;
otherwise, long-term disability will have to
be worked out with her family physician.
(R. 1090.)
On March 30, 2009, Dr. Moritz saw Plaintiff for a follow-up
regarding her right shoulder.
looked excellent.

(Id.)

(R. 1091.)

He noted that her x-rays

He stated that an MRI would be

appropriate “to make sure the cuff is okay before saying everything
is ok.”

(Id.)

Dr. Moritz added “[w]e did give her another

prescription for Percocet #20.

She said the Vicodin made her sick.

I think she does have a dependency problem, and she is made aware

9

of that.”

(Id.)

Dr. Moritz concluded his report by stating that

“[t]he patient may return to full duties at work on 4/6/09.”

(R.

1092.)
Dr. Moritz again saw Plaintiff on April 9, 2009, for a followup on the MRI study of her right shoulder which was done on April
6, 2009.
severe.

(R. 919, 1093.)
(R. 1093.)

The MRI showed impingement which was not

Dr. Moritz injected the shoulder with Depo-

Medrol and Xylocaine.

(Id.)

He told Plaintiff he did not need to

see her again unless she had continued trouble.
her to follow up with Dr. Majid for her neck.

(Id.)
(Id.)

Status,” Dr. Moritz noted that Plaintiff is working.

He advised

Under “Work
(R. 1094.)

At Plaintiff’s April 24, 2009, appointment, in the history
portion of the record Dr. Moritz noted that Plaintiff was still in
the postop period for her neck and Dr. Majid was at a loss to do
much else for Plaintiff.

(R. 879.)

He further noted that he

thought Plaintiff had an addictive personality and that she was
addicted to narcotics at the time–-he discussed this openly with
Plaintiff.

(Id.)

Dr. Moritz added

[s]he has had significant psychological
trauma, including death of a child and her
husband. I think the realities are this is a
significant situation for her. We may not
ever help her completely but I think at this
point, we should not deny her surgery if we
think it could help her.
(R. 879.)

Dr. Moritz opined that her right shoulder problems all

started with the December 2008 tuberosity fracture and she did well

10

with that healing but, based on the MRI, he thought “she probably
has a little small tear and a degeneration of the insertion with
impingement.”

(R. 879.)

Noting Plaintiff’s symptoms were “all

when she reaches out to the side,” he added that she reported a
component of pain with rest.

(Id.)

Dr. Moritz felt an

arthroscopic evaluation and decompression would be appropriate with
the biggest concern being difficulty with rest pain postop.

(Id.)

Dr. Moritz further noted that if her neck is an issue, it would
give her trouble in the postop period.

(Id.)

On May 6, 2009, Dr. Moritz performed arthroscopy of
Plaintiff’s right shoulder with debridement, acromioplasty and
acromioclavicular joint resection with no complications.

(R.

1099.)
On June 3, 2009, Plaintiff saw Dr. Moritz for a follow-up
visit.

(R. 1065.)

He found Plaintiff was doing “quite well” in

relation to her shoulder, stating “[w]e are really finished as far
as our activities.”

(Id.)

He noted the mild discomfort she was

experiencing was most likely referred from the neck.

(Id.)

The

clinical exam showed the following: full range of motion; no
weakness detected;
grip strength.
activity.

bicep, tricep and abduction normal; and normal

(Id.)

(Id.)

Dr. Moritz encouraged active use and normal

The “Work Status” portion of the report noted

that Plaintiff was on temporary disability and could return to work
on July 4, 2009, “full duties.”

(Id.)
11

3.

Broken Arms
Plaintiff’s reported “broken arms with numerous surgeries” (R.

237) relate to both arms having been broken and numerous surgeries
on her left arm.

(Doc. 9 at 5 (citing R. 674, 1003, 1008).)

Plaintiff reports the bone did not heal correctly so it had to be
broken again.

(R. 54.)

January 24, 2007.

Dr. Nachtigall performed the surgery on

(R. 674.)

While the left arm was in a cast, she

fell and broke her right arm.

(R. 54.)

Plaintiff also reports

that both arms ache when the weather is cold and rainy.
4.

(R. 54.)

Other Impairments of Record
Though not noted in the disability form filled out by

Plaintiff (R. 237), Plaintiff identifies Hepatitis B and C and
severe depression with suicide attempts as additional impairments.
(Doc. 9 at 5, 6.)
a.

Hepatitis
Plaintiff states that she has Hepatitis B and C.

(citing R. 53, 736-37).)

(Doc. 9 at 5

A review of the record citations shows

that Plaintiff confirmed at the ALJ hearing that she had been
diagnosed with Hepatitis B and C but she did not identify any
related effects or limitations.

(R. 53.)

Similarly, the other

record citation provided by Plaintiff is diagnostic only.

(R. 736-

37.)
b.

Depression
Plaintiff states that in addition to her physical impairments

12

she suffers from severe depression with multiple suicide attempts
and periods of mental decompensation.
60, 526, 1004).)

(Doc. 9 at 7 (citing R. 59-

She received inpatient treatment based on

suicidal thoughts and substance abuse following a second DUI on
October 29, 2009.

(Doc. 9 at 7 (citing R. 1131-32).)

The record citations include Plaintiff’s testimony that she
had mental health problems since she was a child but never
recognized them, that she had multiple suicide attempts, that she
was in treatment at the time, and that her drinking was selfmedicating at a time when she was taken off morphine and Vicodin
was not helping.

(R. 59.)

“Depression” was an impression found at

Plaintiff’s October 8, 2007, visit to Dr. Kieran Knapp.3

(R. 526.)

In the history portion of the record, Dr. Knapp recorded “[o]ff
work since last week, ‘nerves shot’, can’t keep anything down for 2
weeks, no appetite, can’t concentrate, crying all the time, not
able to sleep, feeling down all the time, unable to function with
daily activities.”

(R. 526, 1004.)

At her follow-up visit two weeks later on October 22, 2007,
“Anxiety-depression” was an impression found and the record
contains the notation that Plaintiff “is not crying anymore but
does not feel her depression is resolved or improved, tired all the
time.”

(R. 526, 1004.)

Depression and/or anxiety is not noted in

records of Plaintiff’s office visits to Kr. Knapp on August 26,
3

Dr. Knapp appears to have been Plaintiff’s treating general
practitioner based on office visits of record. (R. 524-27).
13

2006, March 7, 2007, and May 30, 2008.

(R. 526-27.)

In the Bureau

of Disability Determination letter to Dr. Knapp requesting records,
Dr. Knapp was asked whether he would be willing to perform an
additional examination or test on Plaintiff should either be needed
to complete her disability claim.
“no.”

(R. 525.)

Dr. Knapp answered

(Id.)

In support of her severe depression claim, Plaintiff also
points to the record of the Wellspan Behavioral Health Psychiatric
Evaluation dated January 14, 2010.

(R. 1131-32.)

She was admitted

to Roxbury Treatment Center from October 30, 2009, to November 10,
2009, and diagnosed with “MDD, Recurrent, PTSD; Alcohol Dependence;
opiate dependence.”

(R. 1131.)

given a GAF score 45-50.
5.

On January 14, 2010, Plaintiff was

(R. 1132.)

Consultative Reports
The record contains a consultative report from Peter

VanGeisen, M.D., who examined Plaintiff on November 12, 2008.
728.)

The record also contains a non-examining report dated May 8,

2009, from Jay Shaw, M.D.
a.

(R.

(R. 865.)

VanGeisen Report
Dr. VanGeisen, a physician with Orthopaedic and Spine

Specialists, provided a disability examination at the request of
the Bureau of Disability.

(R. at 726-34.)

On the Range of Motion

Chart, Dr. VanGeisen recorded that Plaintiff measured 0-150 degrees
on both right and left on an elbow flexion-extension scale of 0-150

14

degrees.

(R. 731.)

On 0-80 degree supination and pronation

scales, Plaintiff measured 0-70 on both right and left.

(Id.)

Examination of the lumbar spine showed 0-80 degree flexion and
extension on a scale of 0-90 degrees.

(R. 732.)

was 0-10 degrees on a scale of 0-20 degrees.

Lateral flexion

(Id.)

Dr.

VanGeisen’s assessment of Plaintiff’s ability to perform workrelated physical activities includes the following findings:
Plaintiff could lift and carry two to three pounds frequently and
ten pounds occasionally; she had the capacity to stand for one hour
or less and sit for four hours; she was limited in her upper and
lower extremity ability to operate hand and/or foot controls;
Plaintiff could occasionally bend, kneel, stoop, crouch, balance,
and climb; she had limitations in her reaching, handling,
fingering, and feeling abilities; and in the “Environmental
Restriction” category “humidity” was identified.

(R. 730.)

Where

asked to describe the nature and degree of an identified
limitation, Dr. VanGeisen did not do so.

(R. 730-31.)

Where the

questionnaire requests that the examiner provide “[s]upportive
medical findings, if not included in report,” Dr. VanGeisen
provided no supportive data.

(R. 730.)

In his report, Dr. VanGeisen confirmed that he had “reviewed
the Medical Historoy Questionnaire which includes review of
systems, past medical, social, and family history dated 11/10/08.”
(R. 729.)

His objective findings included that Plaintiff could

15

“go from a sitting to a standing position without difficulty.”
729.)

(R.

ankles.

She could also bend at the waist with fingertips to her
(Id.)

In the “Diagnostic Studies” section of the report,

Dr. VanGeisen stated his review of the records showed Plaintiff had
an MRI of the lumbar spine dated March 15, 2008, which demonstrated
“degenerative disc disease at L2-3 to L5-S1 with degenerative
endplates at L5-S1.”

(R. 729.)

This section of the report also

notes that an MRI of the left wrist was essentially normal.

(Id.)

Dr. VanGeisen provided a diagnosis of low back pain and
degenerative disc disease.

(R. 729.)

He recommended vocational

rehabilitation, sedentary work, continued follow-up with pain
management for her low back and strengthening activities, and antiinflammatory agents of choice.
b.

(R. 729.)

Shaw Report
Jay Shaw, M.D., provided a non-examining report dated May 8,

2009.

(R. 865.)

In the “Exertional Limitations” category, Dr.

Shaw made the following findings: Plaintiff could lift up to twenty
pounds occasionally and ten pounds frequently; she could stand
and/or walk for about six hours in an eight-hour day; she could sit
for about six hours in an eight-hour day; Plaintiff’s pushing and
pulling ability are unlimited other than the lift and carry
restrictions; she could occasionally climb, balance, stoop, kneel,
crouch, and crawl; and she had no established manipulative, visual,
communication, or environmental limitations.

16

(R. 867-68.)

Dr. Shaw’s report noted that Plaintiff alleged disability due
to back problems, shorter leg, broken arms with numerous surgeries
and neck fusion.

(R. 870.)

He also states that Plaintiff reports

severe pain and alleges that her symptoms result in limitations in
standing, walking, lifting, carrying, and bending.

(Id.)

Dr. Shaw concluded the medical evidence established a
medically determinable impairment of degenerative disc disease.
(R. 870.)

In evaluating this condition, he noted Plaintiff’s

February 12, 2009, C5-6 discectomy and fusion postoperative
evaluations were indicative of good results, but, at the same time
she had new allegations of right shoulder pain.

(Id.)

He noted

that the orthopaedic surgeon reviewing the shoulder MRI diagnosed
Plaintiff with tendonitis.4

(Id.)

Regarding her lumbar spine

complaints, Dr. Shaw found that the March 15, 2008, MRI was not
supportive of severe degenerative changes or presence of neuronal
compression.

(R. 870.)

Dr. Shaw found the evidence of record did not support
Plaintiff’s statements of the severity of pain.

(R. 870.)

The

allegations were found to be not credible due to her narcotic
dependence and lack of objective evidence.
Concerning Dr. VanGeisen’s report, Dr. Shaw acknowledged the

4

From the content and timing of Dr. Shaw’s report, it
appears he did not review Plaintiff’s records after April 9, 2009–the appointment where Dr. Moritz told Plaintiff he would not need
to see her again unless she had continued trouble. (R. 1093.)
17

differing opinions.

(R. 870.)

Dr. Shaw viewed some of Dr.

VanGeisen’s opinions to be an overestimate of the severity of the
functional restrictions which were not consistent with the evidence
in the claims folder.

(R. 870-71.)

Dr. Shaw opined that Dr.

VanGeisen relied heavily on Plaintiff’s subjective reports of
symptoms and limitations.
6.

(R. 871.)

Vocational Expert Testimony
Vocational Expert Sheryl Bustin testified at the ALJ hearing.

(R. 79.)

The ALJ first posed a hypothetical question as to whether

an individual with certain limitations could perform Plaintiff’s
past work as a school bus driver or dump truck driver.

(R. 79-81.)

Well, I would like you to assume . . . a
hypothetical individual who is 48 years old
and does not have a high school education,
but rather has completed 10th grade and most
of 11th grade; who has the exertional
standing, and walking, and sitting abilities
that are equivalent to sedentary, but who
requires the ability to sit, stand, move
about at will, or change position at will.
So that ability is to sit or stand at will,
not to move about; who can lift and carry ten
pounds occasionally, and two to three pounds
frequently; who is limited in both in [sic]
lifting –- I mean, I’m sorry, who is limited
in pushing and pulling with both the upper
and the lower extremities to only occasional
as opposed to frequent; who is limited to
occasional . . . [b]ending, kneeling,
stooping, crouching, balancing, and climbing;
who is limited to occasional manipulations
with handling, fingering, and who’s reaching
is also limited to occasional; who should be
limited to only occasional exposure to
humidity. This person also should be limited
to understanding, remembering, and carrying
out simple instructions; should not be
18

exposed -- or should not be required to
engage in arithmetic other than single digit.
Can interact appropriately with the public,
coworkers, and supervisors on a frequent but
not constant basis. Can that individual,
hypothetical individual, perform either of
the positions of school bus driver or truck
driver heavy?
(R. 80-81.)

The Vocational Expert (“VE”) testified that the

hypothetical individual could not perform either job.

(R. 81.)

The ALJ then asked if there were jobs in the regional and
national economy which the hypothetical individual could perform.
(R. 82.)

The VE identified four positions: receptionist

information clerk, security system monitor, bakery worker conveyor
line, and table worker quality control, adding some qualifications
regarding the receptionist information clerk and security system
monitor jobs in her initial response.

(R. 82-83.)

After the VE

explained the bakery worker conveyor line position, the ALJ added
that the VE should also assume that the hypothetical individual
cannot work around the production of food.

(R. 83.)

There was no

further discussion of this position.
Plaintiff’s attorney then questioned the VE, inquiring whether
the jobs identified require reaching, handling, and fingering.
84.)

(R.

The VE initially stated the security monitor involves no use

of the hands but adjusted that to occasional.

(Id.)

She stated

the information clerk involves only occasional use of the hands and
the table worker quality control requires occasional handling,
reaching and fingering.

(Id.)
19

Plaintiff’s attorney also asked whether the hypothetical
individual could perform any of the identified jobs if the VE
assumed the hypothetical person could stand for one hour and sit
for four hours total in a day.
negative.

(R. 84-85.)

(R. 84.)

The VE answered in the

The VE also stated that an individual with

a GAF score under 50 would not be able to work.

(R. 86.)

Similarly, an individual who had to take an unscheduled nap twice
daily would not be able to perform the identified jobs.

(R. 87.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.5

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely

5

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
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, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
20

impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

The instant decision was decided at the fifth step of the
process.

(R. 32.)

The ALJ found there are jobs that exist in the

national economy that Plaintiff could perform.

(Id.)

In his decision issued on July 1, 2010, the ALJ identified the
following specific findings of fact and conclusions of law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2012.

2.

The claimant engaged in substantial
gainful activity during the following
periods: July 2008 through January 2009
(20 CFR 404.1520(b), 404.1571 et seq.,
21

416.920(b) and and 416.971 et seq.).
3.

[T]here has been a continuous 12-month
period(s) during which the claimant did
not engage in substantial gainful
activity. The remaining findings
address the period(s) the claimant did
not engage in substantial gainful
activity.

4.

The claimant has the following severe
impairments: depression, cervical
degenerative disc disease with
radiculopathy; osteoarthritis; uneven
leg length; status post cervical
diskectomy and fusion of C5-C6; status
post open reduction and internal
fixation with plating of the left ulna;
and status post debridement,
acromioplasty, and acromioclavicular
joint resection of the right shoulder
(20 CFR 404.1520(c) and 416.920(c)).

5.

The claimant does not have an impairment
or combination of impairments that meets
or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

6.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a)
and 416.967(a) except the following: can
lift 10 pounds occasionally and 2-3
pounds frequently; must be able to sit
and stand at will; limited to occasional
pushing and pulling with upper and lower
extremities; limited to postural
activities on an occasional basis;
limited to occasional handling,
fingering, and reaching; limited to
occasional exposure to humidity; and
understand, remember, and carry out
simple, not detailed instructions;
22

limited to single digit math; and can
interact with the public, coworkers, and
supervisors on a frequent, but not
constant basis.
7.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565 and
416.965).

8.

The claimant was born on November 30,
1961 and was 46 years old, which is
defined as a younger individual age 4549, on the alleged disability onset date
(20 CFR 404.1563 and 416.963).

9.

The claimant has a limited education and
is able to communicate in English (20
CFR 404.1564 and 416.964).

10.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

11.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).

12.

The claimant has not been under a
disability, as defined in the Social
Security Act, from March 26, 2008,
through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(R. 20-33.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
23

limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

A reviewing court is

“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
mere scintilla.

Plummer v. Apfel, 186 F.3d

Substantial evidence means “more than a

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 (1971); Plummer, 186 F.3d at 427
(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).

Therefore, we will not set aside the Commissioner’s final

decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.

Hartranft, 181

F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

24

An ALJ’s decision can

only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.

Matthews

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).

See Dobrowolsky v.

These proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove his
claim.

Id.

“These proceedings are extremely important to the

claimants, who are in real need in most instances and who claim not
charity but that which is rightfully due as provided for in Chapter
7, Subchapter II, of the Social Security Act.”

Hess v. Secretary

of Health, Education and Welfare, 497 F. 2d 837, 840 (3d Cir.
1974).

As such, the agency must take extra care in developing an

administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.

Further, the court in Dobrowolsky

noted “the cases demonstrate that, consistent with the legislative
purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it be strictly construed.”
25

Id.

Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.

If he has not done so

and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”

Dobrowolsky, 606 F.2d at 407.

In Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), the Circuit
Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected.

“Since it is apparent that the ALJ cannot

reject evidence for no reason or the wrong reason, an explanation
from the ALJ of the reason why probative evidence has been rejected
is required so that a reviewing court can determine whether the
reasons for rejection were improper.”

Id. at 706-07.

However, the

ALJ need not undertake an exhaustive discussion of all the
evidence.
2000).

See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

“There is no requirement that the ALJ discuss in its

opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).

Hur v.

Only where the ALJ

rejects conflicting probative evidence must he fully explain his
reasons for doing so.

See, e.g., Walker v. Comm’r of Soc. Sec., 61

F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d110, 114 (3d Cir. 1983)).

Further, the ALJ does not need to

26

use particular language or adhere to a particular format in
conducting his analysis.
Cir. 2004).

Jones v. Barnhart, 364 F.3d 501, 505 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
B.

Plaintiff’s Alleged Errors
As noted above, Plaintiff identifies three errors:

1) the ALJ

did not comply with SSR 00-4p in that he failed to resolve a
conflict between the VE’s testimony and the DOT; 2) the ALJ
improperly relied on the VE’s testimony because that testimony was
inaccurate and incredible; and 3) the ALJ failed to give a good
reason for rejecting the opinion of Dr. VanGeisen who concluded
Plaintiff was able to sit for four hours per day and stand/walk for
one hour or less over the course of an eight-hour workday.
at 4.)

(Doc. 9

We will discuss each in turn.

1.

Social Security Ruling 00-4p

a.

Sit/Stand Option
Plaintiff claims the ALJ’s step five determination is error in

that the ALJ relied on the VE testimony and the conflict between
that testimony and the DOT regarding the sit/stand option in
Plaintiff’s RFC violates SSR 00-4p with the result that the step
five determination is not based on substantial evidence.

27

(Doc. 9

at 11.)

We conclude the ALJ did not err on this basis because this

limitation was adequately addressed regarding two of the four
positions suggested for Plaintiff.
SSR 00-04p addresses conflicts between VE testimony and the
DOT.
When there is an apparent unresolved conflict
between the VE . . . evidence and the DOT,
the adjudicator must elicit a reasonable
explanation for the conflict before relying
on the VE . . . evidence to support a
determination or decision about whether the
claimant is disabled. At the hearings level,
as part of the adjudicator’s duty to fully
develop the record, the adjudicator will
inquire, on the record, as to whether or not
there is such consistency.
SSR 00-4p, 2000 WL 1898704 (S.S.A. Dec. 4)
As noted above, with this claimed error Plaintiff’s challenge
to the ALJ’s compliance with SSR 00-4p relates to the sit/stand
option included in the RFC and presented to the VE in the ALJ’s
hypothetical.

(Doc. 9 at 12.)

The conflict allegedly arises

because the sit/stand option is not referenced in the DOT.6

(Id.)

6

In Emery v. Astrue, Civ. A. No. 07-2482, 2008 WL 5272454,
at *5 (E.D. Pa. Dec. 18, 2008), it was noted that the VE testified
“there is not a sit stand option in the DOT and of the 12,000 jobs
that are listed, there is no reference to a sit stand option.” The
explanation provided was that “the reason there is no sit stand
option is that the DOT leaves room for VE interpretation based on
experience and other reference materials.” Id.
Though not directly applicable to this case, SSR 83-12
provides commentary on a claimant’s need to alternate between
sitting and standing positions, highlighting the difficulties
associated with this limitation. SSR 83-12, 1983 WL 31253, at *4;
see also Martin v. Barnhart, 240 F. App’x 941, 945 (3d Cir. 2007)
28

Plaintiff asserts the ALJ recognizes the conflict in his Decision
but did not elicit the required testimony at the hearing.

(Id.)

We do not agree with Plaintiff’s assessment of the situation
presented here.

In his RFC determination, the ALJ found Plaintiff

has the capacity to perform sedentary work with limitations,
including that she must be able to sit and stand at will.

(R. 24.)

In his hypothetical to the VE, the ALJ included this limitation by
saying that the hypothetical individual could perform work at a
sedentary level but was further restricted on several bases,
including that she “requires the ability to sit, stand, move about
at will.”

(R. 80.)

A full reading of the VE’s response indicates

she implicitly acknowledged that the relevant DOT sections for the
receptionist information clerk and surveillance system monitor
positions did not expressly contain sit/stand options when she
found that the overall numbers would be eroded (by about fifty
percent) with such an option.

(R. 82.)

In general terms, the VE’s

observation that these positions allow change of position at will,
is appropriately viewed as a vocational expert’s application of her
expertise, her “knowledge, experience, and observations” in the
words of the ALJ.

(See R. 33.)

Her reduction in the number of

positions based on the conflict is similarly appropriate.
Viewed in this context, the ALJ does not run afoul of SSR 00-

(not precedential); Boone v. Barnhart, 353 F.3d 203, 201-11 (3d
Cir. 2004).
29

4p regarding the receptionist information clerk and surveillance
monitor positions because he was not presented with an “apparent
unresolved conflict.”

Rather, a fair reading of the colloquy here

is that the ALJ was presented with a conflict (made apparent by the
VE’s testimony) and the VE resolved the conflict to the ALJ’s
satisfaction in the course of her testimony.

In this context, the

ALJ would be under no obligation to elicit further testimony from
the VE on the sit/stand issue for the two positions for which the
VE testified a reduction in numbers would be appropriate based on
this limitation–-the receptionist information clerk and
surveillance monitor positions.

Importantly, the ALJ acknowledges

in his Decision that the VE’s testimony is inconsistent with the
DOT and further states there is a “reasonable explanation” for the
discrepancy, identifying how it is accounted for.

(R. 33.)

While a more detailed analysis would be preferable both in the
dialogue between the ALJ and VE at the ALJ hearing and in the ALJ’s
Decision, we reject Plaintiff’s urging to adopt an interpretation
of SSR 00-4p which would preclude allowing an ALJ to make
reasonable assumptions and preclude a VE from using shorthand
language in matters about which the ALJ and VE are well versed.
The approach we adopt to these difficult proceedings and technical
matters is warranted both by commonsense and Third Circuit caselaw
which clearly does not require formulaic language, see, e.g.,
Rutherford v. Barnhart, 399 F.3d 546, 557-58 (3d Cir. 2005);

30

Sargent v. Comm’r of Social Security, 476 F. App’x 977, 980-81 (3d
Cir. 2012) (not precedential).7
Importantly, our conclusion regarding the sit/stand option
does not apply to the bakery worker and table worker positions
because the VE made no mention of the sit/stand option in relation
to these jobs.

Thus, based on the reasoning set out above, any

conflict related to these positions remained unresolved.
Defendant asserts generally that “the VE acknowledged a
potential conflict and resolved it by reducing her estimates of
jobs available in the identified occupations to the extent
required.”

(Doc. 10 at 12.)

However, in support of the assertion

Defendant points only to the VE testimony regarding the information
clerk and security system monitor jobs.

(Id.)

As noted above,

because Defendant does not show, and the record does not reveal,
any acknowledgment of the conflict regarding the sit/stand option
for the bakery worker and table worker positions, any reliance on
the VE’s testimony that Plaintiff could perform these positions
would not be substantial evidence supporting the ALJ’s decision.8

7

Because we conclude remand to the Commissioner is
appropriate on other bases, and because, as noted in the text, a
more full explanation of the sit/stand option issue would be
preferable, upon remand the Commissioner is directed to address the
sit/stand option in conjunction with any occupation(s) which are
suggested as compatible with Plaintiff’s RFC.
8

Plaintiff rightly asserts in her reply brief that this is
not a situation like that discussed in Rutherford where the
positions identified by the VE were by way of example with the
31

However, as Rutherford points out, because the
inconsistencies did not exist as to all of the jobs, the SSR 00-4p
violation as to some of the jobs does not render the ALJ’s decision
devoid of substantial evidence.

399 F.3d at 557.

Of the four jobs

the VE originally identified as existing in significant numbers in
the regional and national economy that an individual with
Plaintiff’s RFC could perform, two survive Plaintiff’s sit/stand
SSR 00-4p challenge–-the receptionist information clerk and
surveillance monitor positions.

Other challenges to the ALJ’s

reliance on these positions will be discussed below.
b.

Mathematical Development Levels
In her reply brief, Plaintiff asserts that Defendant

acknowledges Plaintiff’s RFC limitation to single-digit math is
lower than the most basic math level provided for in the DOT.9

result that the inconsistencies did not cause the ALJ determination
at step five to be devoid of substantial evidence. 399 F.3d at
557. While the observation is valid, the principle is not a fit
here because, as noted previously in the margin, no position in the
DOT references a sit/stand option. Even assuming this were not the
case, here neither the ALJ’s questions nor the VE’s responses
indicate that the information sought or given were exemplary in
nature. (See R. 82-84.)
9

The GED math level was identified as an issue after
Defendant noted that Plaintiff’s GED reasoning level arguments
proffered in relation to certain identified positions did not apply
to the RFC limitations concerning simple instructions, math, and
public contact. (Doc. 10 at 17-18.) Plaintiff obviously agreed
with Defendant that math reasoning levels are addressed separately
in the DOT. We concur with this assesment. Our review of the GED
reasoning levels set out in Appendix C of the DOT shows that they
relate to instructional levels but not to math or public contact
limitations.
32

(Doc. 11 at 6.)

Plaintiff further asserts that the VE’s testimony

violates SSR 00-4p based on consideration of the GED math reasoning
level because all the jobs cited by the VE include the most basic
math level.

(Id.)

Defendant acknowledges that the DOT lists a math level of 2
for the receptionist information clerk position and a math level of
1 for the surveillance system monitor position.

(Doc. 10 at 19

(citing DOT § 237.367-018, 1991 WL 672187; § 379.367-010, 1991 WL
673244).)

Defendant also recognizes these math levels generally

require more than the single-digit math limitation in Plaintiff’s
RFC.

(Doc. 10 at 19.)

However, Defendant does not find this

discrepancy problematic, asserting “the VE’s testimony in response
to the ALJ’s hypothetical specifying a limitation to one-digit
arithmetic is substantial evidence that Plaintiff can indeed
perform these jobs with a limitation to single-digit arithmetic.”
(Doc. 10 at 19.)
We are not persuaded that Defendant’s position is consistent
with the requirements of SSR 00-4p.

Considering a GED mathematical

level of 1 (the most basic) which applies to the

surveillance

system monitor position (see Doc. 10 at 19 (citing DOT § 379.367010, 1991 WL 673244)), and Level 1's two-digit number requirement,
DOT App’x C, 1991 WL 688702, the ALJ’s limitation to single digit
math presents a conflict.

Defendant’s conclusion that the VE’s

testimony satisfies relevant requirements (Doc. 10 at 19) is not

33

supported by the record, relevant caselaw, or administrative
provisions.

As discussed above, conflicts between the DOT and a

VE’s testimony are addressed in SSR 00-4p.

Recognizing this,

Defendant notes
[t]he DOT lists the maximum requirements of
occupations as generally performed, not the
range of requirements of a particular job as
it is performed in specific settings and it
is the function of the VE to provide more
specific information about the demands of
jobs in the local and national economy in
order to supplement the generic descriptions
of jobs in the DOT. SSR 00-4p, 2000 WL
1898704, at *3 (emphasis added).
(Doc. 10 at 19.)

Importantly, Defendant does not point to any VE

testimony resolving the conflict between the surveillance system
monitor position’s two-digit math requirement and the ALJ’s
limitation in Plaintiff’s RFC to single-digit math.

Contrary to

Defendant’s conclusion, the VE’s mere identification of the
position in response to the ALJ’s hypothetical is not enough--the
VE to provide “more specific information about the demands of
jobs.”

SSR 00-4p, 2000 WL 1898704, at *3 (emphasis added).

Unlike the sit/stand option discussed above where the VE
accounted for the discrepancy and adjusted her calculations
accordingly (R. 82-83), the discrepancy between the RFC math
limitation (a very specific finding in the ALJ’s RFC determination
(R. 24)), and the GED math levels for relevant positions was not
addressed at all, either by the VE or ALJ.

Therefore, the

reasoning applied above to the conclusion that the sit/stand option
34

and related testimony did not run afoul of SSR 00-4p does not apply
to the math reasoning level discrepancy.
Regarding consistency between the DOT and VE testimony, SSR
00-4p provides in part: “At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the adjudicator
will inquire, on the record, as to whether or not there is such
consistency.”

Here the ALJ did not ask the VE whether such

consistency existed.

(See R. 79-89.)

The only dialog relating to

discrepancy was in the context of the sit/stand option discussed
above.
The next question is whether this omission requires remand.
The Third Circuit Court of Appeals has found that an apparent or
actual violation of SSR 00-4p’s inquiry requirement does not always
require remand.

Failure to ask the question is not grounds for

remand where the error is harmless.

See, e.g., Tisoit v. Barnhart,

127 F. App’x 572, 575, n.1 (3d Cir. 2005) (not precedential).

As

an initial impression, here we cannot say the error is harmless
because the DOT requirements for all of the positions identified
require greater math skills than those in the RFC.

(See R. 24.)

More specifically, in Rutherford, the Third Circuit Court
found no violation because the VE did not describe the requirements
of the jobs he believed the claimant could perform.
556-57.

399 F.3d at

In Jackson v. Barnhart, 120 F. App’x 904 (3d Cir. 2005)

(not precedential), the Court stated: “[b]y its langauge, SSR 00-4p

35

requires the ALJ to inquire about potential conflicts only

where

the VE ‘provides evidence about the requirements of a job or
occupation.’”

Id. at 905-06.

Unlike Rutherford and Jackson, here

the VE provided evidence about the jobs identified.

(R. 82-84.)

Therefore, the ALJ was not relieved of the obligation to inquire
about potential conflicts.10
Jackson noted that, even if it was error for the ALJ to fail
to solicit testimony about potential conflicts between the DOT and
the VE’s testimony, reversal is not warranted where the error is
harmless because other substantial evidence of record supports the
ALJ’s opinion.

120 F. App’x at 906 (citing Boone v. Barnhart, 353

F.3d 203, 209 (3d Cir. 2003); Jones v. Barnhart, 364 F.3d 501, 506
(3d Cir. 2004)).

Here remand cannot be avoided on this basis

Because the ALJ’s decision at step five relied on the VE’s
testimony (R. 32-33) and we find no other evidence of record which
would provide substantial evidence of a significant number of jobs
that Plaintiff can perform.11

10

Although we found it appropriate to make certain inferences
regarding the sit/stand option colloquy between the ALJ and VE, we
do not find it would be proper to make the further finding that all
potential conflicts were inferentially addressed in the shorthand
exchange regarding the sit/stand limitation. In other words, in
the circumstances presented here, the brief exchange regarding the
sit/stand option limitation did not relieve the ALJ of SSR 00-4p’s
general inquiry requirement.
11

Our review of the record shows that evidence supports a
finding that Plaintiff is able to work, particularly reports from
her treating physicians and a consultative physician. (See, e.g.,
R. 865-71, 1065, 1090.) However, an opinion that someone is
36

Other Circuit Courts have found additional bases upon which to
affirm an ALJ’s decision in the SSR 00-4p context.

The Seventh

Circuit has ruled that “SSR 00-4p requires the ALJ to obtain an
explanation only when the conflict between the DOT and VE’s
testimony is ‘apparent.’”

Terry v. Astrue, 580 F.3d 471 (7th Cir.

2009) (citing Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008)).
Terry added that when the plaintiff did not identify any conflict
at the hearing, “she would have to show that the conflict was
‘obvious enough that the ALJ should have picked up on [it] without
any assistance.’”

Id. (quoting Overman, 546 F.3d at 463).

Overman

described the first step in the SSR 00-4p inquiry to be the “ALJ’s
‘affirmative obligation’ to ask whether a vocational expert’s
evidence “conflicts with information provided in the DOT,” 546 at
462, and concluded the ALJ had satisfied this step by asking the VE
if his testimony was consistent with the DOT, id. at 463.
wrongly answered that it was.

Id.

The ALJ

It was in this context that

Overman concluded where plaintiff’s counsel failed to identify
conflicts at the time of the hearing, she would have to show the

capable of work does not equate with the step five requirement that
there are jobs that exist in significant numbers in the national
and regional economy that the claimant can perform. The ALJ
reviewed this evidence and determined the appropriate RFC
limitations–-limitations in some instances greater than those these
physicians found. Thus, this is not a case where an unexplained
conflict between a VE’s testimony and the DOT does not necessarily
require remand because other substantial evidence supports the
ALJ’s opinion.
37

conflicts were obvious.

Id.

Terry appears to have dispensed with

the requirement that the ALJ satisfy the first step of the SSR 004p process in that the ALJ in Terry did not ask the VE if his
testimony conflicted with the DOT.

580 F.3d 471.

Defendant would benefit from the Terry approach, but we
decline to adopt it here.

First, the Third Circuit has not adopted

the Terry approach or directly addressed the issue.

Second, the

initial duty to inquire about consistency is not limited by the
work “apparent.”

See SSR 00-4p.

Finally, the Terry approach in

some applications could run counter to the remedial nature of
social security proceedings in that a defendant could prevail where
a significant (though not “apparent”) conflict exists and the ALJ
(either unintentionally or intentionally) failed to ask the initial
question of whether a conflict exists.

This result is unacceptable

given the Social Security Administration’s general obligation to
assist an applicant in proving her claim, Dobrowolsky, 606 F.2d at
406, and an ALJ’s affirmative obligation to fully develop the
record, see, e.g., Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.
1995) (citations omitted).
In sum, the ALJ did not comply with SSR 00-4p regarding the
GED mathematics reasoning level and this error applied to all
positions identified by the VE.

Because we find no basis upon

which to excuse compliance, remand for further consideration of
this issue is necessary.

38

2.

Accuracy and Credibility of Vocational Expert’s Testimony
In addition to the SSR 00-4p discrepancy issues discussed

above, Plaintiff argues the VE’s testimony was too inaccurate and
too incredible to constitute substantial evidence.

(R. 14.)

Plaintiff alleges specific problems associated with each position
identified by the VE.

Although we have found remand necessary on

the basis set out above, we will address Plaintiff’s remaining
arguments to identify the parameters of matters to be considered on
remand.
a.

Receptionist Information Clerk
Plaintiff asserts that the VE’s association of the

receptionist information clerk position with “the person who gives
the yellow tags downstairs” (R. 82) renders the VE’s numbers of
jobs available unreliable.

(Doc. 9 at 14.)

Plaintiff adds that

the GED reasoning level of 4 for the position exceeds Plaintiff’s
RFC limitation to simple, not detailed instructions, single-digit
math, and not constant exposure to the public.

(Doc. 9 (citing R.

24).)
Although there may be some merit in Defendant’s argument that
the similarities between the positions render the VE’s testimony
“substantial evidence” (Doc. 10 at 15-16), there is also merit in
Plaintiff’s position that the differences render the VE’s testimony
regarding the number of positions available unreliable (Doc. 9 at
14).

Because the Commissioner bears the burden of proof at step

39

five to show that the claimant who has been determined at step four
to be unable to return to her past relevant work, can “make
adjustment to other work in the national economy,” 20 C.F.R. §
404.1520(a)(4)(i)-(v), Smith v. Comm’r of Social Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Social Sec.,
474 F.3d 88, 92 (3d Cir. 2007)), and because the VE did not cite
the DOT number and job as exemplary, see Rutherford, 399 F.3d at
557, this issue should be further considered upon remand.
We turn now to Plaintiff’s argument that the GED reasoning
level of 4 for the position exceeds Plaintiff’s RFC limitation to
simple, not detailed instructions, single-digit math, and not
constant exposure to the public.

(Doc. 9 (citing R. 24).)

As noted previously, the GED reasoning level applies only to the
instructions limitation.

Reasoning level 4 requires an individual

to be able to “[a]pply principles of rational systems to solve
practical problems and deal with a variety of concrete variables in
situations where only limited standardization exists [and]
[i]nterpret a variety of instructions furnished in written, oral,
diagrammatic, or schedule form.”

DOT App’x C, 1991 WL 688702.

Examples of the “rational systems” referred to are “bookkeeping,
internal combustion engines, electric wiring systems, house
building, farm management, and navigation.”

Id.

Clearly the

requirements of reasoning level 4 exceed Plaintiff’s RFC limitation
to carrying out simple, not detailed instructions (R. 24).

40

As with

the mathematics limitation discussed above, the GED reasoning level
of 4 called for in the DOT description of the receptionist
information clerk position and the VE’s identification of this
position for an individual who is limited to carrying out simple,
not detailed instructions creates a discrepancy which has not been
properly addressed pursuant to SSR 00-4p.
Plaintiff’s averment regarding exposure to the public also
warrants attention.

Plaintiff asserts that the job as described in

the DOT is entirely based on contact with the public “and the VE
made no distinction as to how busy the prospective worksites
Minichino might work in could be in order to account for that
limitation in the RFC.”

(Doc. 9 at 15.)

Defendant acknowledges

the “people-focused” nature of the position.

(Doc. 10 at 15.)

There is no question that Plaintiff’s RFC indicates a
limitation as to her interaction with the public.

(R. 24.)

Defendant asserts that the limitation to “frequent, but not
constant contact” (id.) was accounted for when the VE cited this
position in response to the ALJ’s hypothetical.
20.)

(Doc. 10 at 19-

However, because the description of this position in the DOT

describes duties which all involve interaction with the public (see
DOT §237.367-018, 1991 WL 672187), the position arguably involves
more than “frequent” contact (described as one-third to two-thirds
of an eight-hour day (see R. 865)) which would be beyond

41

Plaintiff’s RFC.12

Because we have determined remand is required,

the issue should be directly addressed if a VE asserts Plaintiff is
capable of performing a job which, by definition, is based entirely
on interaction with the public.
b.

Security System Monitor
Plaintiff maintains that the VE’s testimony regarding the

security system monitor position is inaccurate because the VE
stated that the job “involves no use of the hands” and the DOT
description indicate the position clearly involves some use of the
hands.

(Doc. 9 at 15.)

Plaintiff adds the GED 3 reasoning level

appears to exceed the limitations provided in the RFC.

(Id.)

Plaintiff’s assertion related to the inaccuracy of the VE’s
assessment of the security system monitor position related to use
of the hands is without merit.

A review of the VE’s testimony on

this issue shows some contradiction, but we conclude these
contradictions by themselves do not render the testimony
unreliable.

Plaintiff’s attorney asked the VE the following

question: “For the jobs you described, . . . do they not require
reaching, handling, and fingering?”

(R. 84.)

The VE responded

that “the security system monitor I had reaching, handling, fingers

12

A review of the DOT Appendix B - Explanation of Data,
People, and Things cited by Defendant (Doc. 10 at 19 (citing DOT
App’x B, 1991 WL 688701)) does not help to resolve the matter
because the Appendix provides information on the relationship
between workers and people in a generic occupation but does not
address frequency of contact. DOT App’x C, 1991 WL 688702.
42

occasional.

These are all at–-the security system monitor involves

no use of the hands.”

(Id.)

While the VE’s response is not a

model of clarity, clearly her testimony indicates that the security
system monitor position involves at most occasional reaching,
handling, and fingering.

This is consistent with the RFC

determined by the ALJ since the limitations on Plaintiff’s
sedentary work include that it is “limited to occasional handling,
fingering and reaching.”

(R. 24.)

Thus, we find no problem with

the ALJ’s reliance on the VE’s testimony regarding this RFC
limitation.
Plaintiff says only that the GED 3 reasoning level appears to
exceed the RFC limitations.

(Doc. 9 at 15.)

She does not

elaborate on the statement.

As discussed previously, the GED

reasoning level would relate to the simple, not detailed
instruction limitation but does not relate to the math or public
contact limitation.

A GED reasoning level of 3 calls for the

individual to “[a]pply commonsense understanding to carry out
instructions furnished in written, oral, or diagramatic form,’
[and] [d]eal with problems involving several concrete variables in
or from standardized situations.”

DOT App’x C, 1991 WL 688702.

By

way of comparison, reasoning level 2 calls for the individual to
“[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions [and] [d]eal with problems
involving a few concrete variables in or from standardized

43

situations,” id., and reasoning level 1 calls for the individual to
“[a]pply commonsense understanding to carry out simple one- or twostep instructions [and] [d]eal with standardized situations with
occasional or no variables in or from these situations encountered
on the job,” id.
The ALJ’s RFC states Plaintiff can “understand, remember, and
carry out simple, not detailed instructions.”13

(R. 24.)

Given the

fact that level 2 requires an individual to carry out detailed
instructions, level 3 reasoning would surpass Plaintiff’s RFC
limitation.

This discrepancy and the apparent limitation of

Plaintiff to positions requiring only level 1 reasoning (the only
level which does not require the ability to carry out detailed
instructions) should be addressed on remand.
Given the direct correlation of GED reasoning levels to
abilities regarding instructions, we do not find persuasive
Defendant’s argument that the DOT’s specific vocational preparation
(SVP) levels govern this inquiry (Doc. 10 at 18).

Thus, we will

not further discuss Defendant’s assertion that the SVP level of 2
for the Security Monitor position indicates the position is
consistent with the limitation regarding simple, not detailed
instructions.

(Id.)

Finally, regarding the limitation on contact with the public

13

In the ALJ’s question to the VE, the hypothetical
individual was “limited to understanding, remembering, and carrying
out simple instructions.” (R. 81.)
44

to a frequent (not constant) basis, insofar as the surveillance
system monitor position requires the same level as the receptionist
information clerk, reliance on the VE’s testimony is problematic.
As discussed regarding the receptionist information clerk position,
the limitation to “frequent, but not constant contact” (R. 24)
should be directly addressed when a VE asserts that the claimant is
capable of performing a job which is completely based on
interaction with the public.

Simply identifying the position in

response to a hypothetical is not enough.
3.

Bakery Worker Conveyor Line
As noted above, based on the VE’s testimony and the ALJ’s

addition to the hypothetical that the individual cannot work around
the production of food (R. 83), we conclude that the VE did not
find that Plaintiff could perform this job with the limitations
presented by her hepatitis.
4.

Table Worker Quality Control
Plaintiff asserts the VE’s testimony that there were 500,000

such positions nationally and 700 locally is not reliable because
the DOT code is for inspecting tiles and the VE “strayed from the
definition in the code she provided, as she suggested the job
included inspecting small machine parts.”

(Doc. 9 at 15-16.)

Defendant counters that this argument is without merit:
The table worker job fundamentally represents
a quality control job, whether it involves
working with “small machine parts, examining
them for the coating or [to see if they are]
45

painted correctly, or have any rough edges,”
as described by the VE, or “examining squares
(tiles) of felt-base linoleum material
passing along on conveyor and replac[ing]
missing and substandard tiles,” as noted in
the DOT narrative description (Tr. 83). DOT
§ 739.687-182, 1991 WL 680217.
(Doc. 10 at 16.)

While Defendant’s commonsense observation has

some merit, for basically the same reasons as our decision
regarding the VE’s testimony about the number of receptionist
information clerk jobs available, we conclude this issue should be
clarified on remand.
3.

Rejection of Consultative Examiner Limitations
Plaintiff’s final claimed error is that the ALJ failed to

provide a good reason for rejecting Dr. VanGeisen’s opinion that
she could not work an eight-hour day.

(Doc. 9 at 16.)

Defendant

counters that substantial evidence supports Dr. VanGeisen’s
opinion.

(Doc. 10 at 21.)

We conclude the ALJ’s consideration of

the opinion is not error.
Dr. VanGeisen is not a treating physician.

As a one-time

examining physician he is not entitled to treating physician
deference.

See 20 C.F.R. §§ 404.1527(c), 416.927(c).

Of

particular note is Dr. VanGeisen’s assessment in his report dated
October 27, 2008, that Plaintiff could sit for four hours and
stand/walk for one hour or less in the course of an eight-hour
workday and his recommendation that Plaintiff could do sedentary
work.

(R. 729-30.)

Plaintiff asserts that the recommendation for

46

sedentary work does not mean she is capable of sedentary work for
eight hours a day in light of Dr. VanGeisen’s standing/walking and
sitting limitations.

(Doc. 9 at 17.)

Plaintiff further avers that

the assessment and recommendation are not contradictory, relying on
SSR 96-5p for the proposition that “‘[a]djudicators must not assume
that a medical source using terms such as ‘sedentary’ and ‘light’
is aware of our definitions of these terms.’” (Doc. 9 at 17
(quoting SSR 96-5p).)
We need not discuss what Dr. VanGeisen may have meant when he
opined that Plaintiff could do sedentary work because we conclude
the ALJ properly considered the opinion and was entitled to reject
some findings and accept others in his assessment of the report’s
consistency with the entire medical record.

(See R. 30.)

Noting

Dr. VanGeisen’s standing/walking and sitting restrictions and his
recommendation for sedentary work, the ALJ stated the report
“appears to contain insconsistencies, and the inconsistent aspects
are accordingly rendered less persuasive.”

(R. 30.)

Importantly,

the ALJ did not end there–-he credited aspects of the opinion which
were “consistent with objective medical evidence as a whole.”
(Id.)

Seen contextually, the ALJ would not have rejected the

standing/walking and sitting limitations if they were supported by
objective medical evidence as a whole.14

14

Moreover, the ALJ’s

As set out in the Background section of this Memorandum,
where asked in the form report to describe the nature and degree of
an identified limitation, Dr. VanGeisen did not do so. (R. 73047

Decision provided a detailed review of the record, including Dr.
Moritz’s and Dr. Magid’s opinions that Plaintiff could return to
work, opinions by treating physicians which post date Dr.
VanGeisen’s report.

(R. 30-31.) The ALJ also cited the lack of

evidence that these treating physicians ever recommended permanent
restrictions due to Plaintiff’s impairments.

(R. 30-31.)

The ALJ

noted Plaintiff’s treating physicians’ reports indicated some short
term periods of disability but these periods were less than twelve
months in duration.

(Id.)

In his reference to Dr. Shaw’s report,

the ALJ concluded the State Disability Determination Services nonexamining source supported a finding of “not disabled.”

(R. 31.)

The ALJ recognized the report was not entitled to the weight of the
treating and examining physicians, but found some weight
appropriate due to the report’s consistency with other evidence.
(R. 31.)

These citations to the ALJ’s decision exemplify the

validity of the ALJ’s reason for rejecting parts of Dr. VanGeisen’s
opinion.

Thus, Plaintiff’s claimed error on this issue is without

merit.
V.Conclusion
This case exemplifies the difficult nature of Social Security
proceedings.

Recognizing the challenges faced by the Social

31.) Where the form requests that the examiner provide
“[s]upportive medical findings, if not included in report,” Dr.
VanGeisen provided no supportive data. (R. 730.)
48

Security Administration (particularly the ALJ where a hearing has
been conducted) and the complex legal framework within which claims
are analyzed, we must also keep in mind the reasons for the
detailed obligations governing SSA decisions–-real people with real
problems deserve careful scrutiny of their claims.
Plaintiff is clearly a claimant with multiple physical
problems, some psychological problems, and substance dependence
issues.

Her records indicate some long-term difficulties but also

many short-term exacerbations of long-term problems and multiple
accident/incident related problems.

The number of treating

physicians, overlapping visits and reports, and inferences which
can be derived from some reports portray a picture of a pleasant,
though sometimes difficult patient.
1090.)

(See, e.g., R. 575, 879,

The ALJ’s analysis of Plaintiff’s claim and complex record

is in most respects thorough and his findings well-supported.
However, our consideration of the intricate requirements related to
the step five determination, particularly as they apply to VE
testimony, prevent affirmance.
Because we have found the VE’s testimony on each of the
suggested positions unreliable, because the ALJ relied on the VE’s
testimony to determine at step five that Plaintiff could “make an
adjustment to other work” and was not disabled (R. 32-33), and
because we find no other evidence in the record to support the
ALJ’s decision at step five, the ALJ’s conclusion that Plaintiff in

49

not disabled is not supported by substantial evidence.

Thus,

Plaintiff’s appeal of the Commissioner’s denial of benefits (Doc.
1) is granted, and the case is remanded for further consideration
consistent with this Memorandum.

An appropriate Order is entered

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: June 28, 2013

50