Kurbanova v. Colvin

Filing 20

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal of the Acting Commissioners decision is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 2/15/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FERUZA KURBANOVA,

:
:CIVIL ACTION NO. 3:16-CV-1054
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act (“Act”).

(Doc. 1.)

Plaintiff

filed this action on June 3, 2016, after the Appeals Council denied
review of the Decision issued by Administrative Law Judge (“ALJ”)
Sykle Merchan on July 24, 2014--the second Decision issued in this
matter.

(Doc.1; R. 1-5, 109-30.)

With this action, Plaintiff

identifies three errors: 1) the ALJ erred in finding that Plaintiff
“was able to ‘communicate in English’ without vocational limitation
and failing to include such limitations in the hypothetical
questions to the vocational expert”; 2) the ALJ erred in accepting
the vocational expert’s testimony as consistent with the Dictionary
of Occupational Titles (“DOT”) when two of the jobs identified had
greater demands than allowed by Plaintiff’s RFC and all jobs
identified had greater language requirements than Plaintiff could
meet; and 3) the ALJ erred in not properly evaluating the testimony

of the medical expert witness who testified at the hearing and in
accepting the hearing of the post-hearing consultative examiner.
(Doc. 17 at 14-15.)

After careful review of the record and the

parties’ filings, the Court concludes this appeal is properly
denied.
I. Background
A.

Procedural Background
Plaintiff applied for Supplemental Security Income (“SSI”)

under Title XVI of the Social Security Act on February 10, 2010.
(Doc. 17 at 5.)
(R. 109.)

She alleged disability beginning on May 28, 2008.

Following an initial denial on July 6, 2010, Plaintiff

requested reconsideration which was also denied.

(Doc. 17 at 5.)

Plaintiff then requested a hearing before an ALJ on September 10,
2010.

(Id.)

ALJ Allyn Brooks held a hearing on August 2, 2011,

and issued his unfavorable decision on August 16, 2011.

(Id.)

Plaintiff requested review by the Appeals Council, and the Appeals
Council remanded the case for a new hearing with its November 14,
2012, Order.

(Doc. 17 at 6.)

On January 14, 2014, ALJ Merchan held another hearing.

(Id.)

She issued the decision denying Plaintiff’s claim on July 24, 2014,
after concluding that Plaintiff was capable of performing jobs that
existed in significant numbers in the national economy despite
limitations related to her severe impairments of degenerative disc
disease, cervical radiculopathy, major depressive disorder, panic
2

disorder, and disruptive mood dysregulation disorder.

(R. 112-30.)

The Appeals Council denied Plaintiff’s request for review of the
hearing decision on April 11, 2016, making the ALJ’s decision the
final decision of the Acting Commissioner.

(R. 1-5.)

As noted above, Plaintiff filed her action in this Court on
June 3, 2016.

(Doc. 1.)

Defendant filed her Answer and the

administrative transcript on August 8, 2016.

(Docs. 9, 10.)

After

Plaintiff filed her supporting brief (Doc. 17) on December 19,
2016, Defendant timely filed her opposing brief (Doc. 18), and
Plaintiff timely filed a reply brief (Doc. 19).

Therefore, this

matter is fully briefed and ripe for disposition.
B.

Factual Background
Plaintiff was born on May 3, 1973, and was thirty-six years

old on the date the application was filed and forty-one years old
at the time of the 2014 ALJ Decsion.

(R. 129; Doc. 18 at 4.)

Plaintiff, who came to the United States in 2006 as a refugee, said
that she had ten years of education in Uzbekistan “where the
education system only goes to 10 years.”
18 at 4.)

(Doc. 17 at 7 & n.2; Doc.

Her interpreter at the second hearing interjected that

she had graduated and Plaintiff answered in the affirmative when
she was asked if she had finished high school.
had past relevant work as a hand packager.

(R. 18.)

(R. 129.)

In her

brief, Defendant notes that
[a]t two face-to-face disability interviews,
Plaintiff spoke Russian and her son
3

Plaintiff

translated (Tr. 280, 327). In a disability
report, Plaintiff indicated that she could
not speak and understand English, but could
read and understand English, and could write
more than her own name in English (Tr. 282).
A provider at Swedish Covenant Hospital noted
that “Patient does speak some English but her
son translates as well” (Tr. 444).
(Doc. 18 at 4.)
1.

Impairment Evidence1
Plaintiff provides a brief summary of medical evidence which

we set out here to provide context.
The plaintiff had a workplace injury at Tyson
Foods and stopped working. [Tr. 433] Multiple
MRIs showed cervical disc injury at C5-C[6].
This problem appears to have got [sic] worse
over time. In addition, MRI of the lumbarsacral area showed disk bulging at L4-L5 and
disk herniation at L5-S1. [Tr. 490] Nerve
conduction studies did not, however, confirm
radiculopathy. (See e.g. Tr. 409 et seq.)
Treatment included spinal injections (see
e.g. 435) and physical therapy (see e.g. Tr.
456). There were notes of improvement in
motion and pain (e.g. Tr. 458) as well as
other notes of increase or recurrence in pain
(see e.g. Tr. 483).
(Doc. 17 at 11-12 (footnotes omitted).)
Defendant provides a summary of evidence relevant to the
issues raised in Plaintiff’s appeal.
In April 2010, Plaintiff underwent a
psychiatric consultative examination with Ana

1

Both parties focus their medical evidence on that related to
Plaintiff’s claimed errors: Plaintiff states that she does so
primarily in the Argument section of her brief (Doc. 17 at 6);
Defendant provides a Summary of Relevant Medical Evidence in the
Background section of her brief (Doc. 18 at 4-8 & n.1).
4

Gil, M.D. (Tr. 520-23). Plaintiff spoke in
Russian and was accompanied by a translator
(Tr. 520). Plaintiff reported social
isolation, decreased energy, irritability,
increased appetite, decreased sleep,
difficulty with concentration, poor memory,
lack of motivation, and crying spells;
however, Plaintiff never received psychiatric
treatment and had no history of suicidal
ideation, psychotic or manic symptoms (Tr.
520-21). On mental status examination,
Plaintiff was cooperative; made good eye
contact; was alert and oriented in all
spheres; and was friendly, polite and related
well during the interview (Tr. 521). She
noted feeling down and helpless, but denied
suicidal ideations, intent or plan, and she
presented with no auditory, visual or tactile
hallucinations, paranoid ideation or
delusions (Tr. 522). Plaintiff could repeat
three digits forward and two in reverse, and
was able to name three objects immediately,
after one minute, three minutes, and five
minutes (Tr. 522). She demonstrated the
capacity to classify and identify
similarities and differences, abstract, and
judgement was intact (Tr. 522-23). Dr. Gil
diagnosed depressive disorder, NOS, moderate
in severity (Tr. 523).
Scott Kale, M.D., a medical expert and
internal medicine doctor, testified at the
second hearing after reviewing Plaintiff’s
medical record (Tr. 38-42). Dr. Kale
testified that Plaintiff’s complaints of pain
had no physical basis, as there was no
evidence of radiculopathy, cervical
myelopathy, spinal stenosis, or significant
arthritis (Tr. 40).2 He noted that her pain
complaints were out of portion with physical
disease (Tr. 41). On this basis, Dr. Kale
concluded that she equaled the mental listing

2

Following this testimony, Dr. Kale added that “the basis of
her complaints is consistent with soft tissue complaints of
myofascial pain, and also and more important, is consistent with
underlying depression more than any other condition.” (R. 40-41.)
5

for somatoform disorder,3 Listing 12.07 (Tr.
41).
Dr. Kale noted that he has a master’s
degree in psychology, but does not practice
it routinely (Tr. 41, 239). He was not a
psychiatrist, and was not board certified in
psychiatry (Tr. 239-40). Dr. Kale’s
curriculum vitae noted that he was an
internist with specialization in arthritis
and internal medicine (Tr. 239). Dr. Kale
admitted that there was no documented
diagnosis of somatoform disorder in the
record, and it was conclusory based on the
lack of any other basis for her complaints
(Tr. 41). Plaintiff’s attorney declined
questioning Dr. Kale (Tr. 42).
After the hearing, on May 16, 2014,
Plaintiff attended a consultative
psychological examination with Charles
LaJeunesse, Ph.D. (Tr. 622-28). Plaintiff
appeared with her son, who served as the
translator (Tr. 623). Plaintiff reported
pain in her shoulders, neck and numbness
around her arms and shoulders with lower back
pain (Tr. 622). She also endorsed depressive
symptoms and anxiety (Tr. 622-23). On mental
status examination, Plaintiff was wellgroomed; had normal posture; adequate manner
of relating and social skills; and normal eye
contact; but appeared somewhat restless (Tr.
623). There were no signs of hallucinations,
delusions or paranoia, and she reported no
suicidal thoughts (Tr. 623-24). Plaintiff’s
mood seemed dysthymic and her affect was
somewhat dysphoric (Tr. 624). Sensorium was
clear (Tr. 624). Attention was mildly
impaired due to emotionality, and she could
not do serial three subtraction without
writing it down (Tr. 624). Recent and remote
memory skills were mildly impaired due to

3

Somatoform disorder is a mental illness that causes one or
more bodily symptoms, including pain. Somatic Symptom and Related
Disorders. WebMD, http://www.webmd.com/mental-health/somatoformdisorders-symptoms-types-treatment (last visited January 6, 2017).
6

anxiety; intellectual functioning was
average; and general fund of information was
somewhat limited (Tr. 624). Plaintiff
reported performing self-care and chores with
the support of her daughter (Tr. 624). Her
son claimed that Plaintiff had no friends,
but was part of a loving family (Tr. 624).
Her only hobby was reading (Tr. 624). Dr.
LaJeunesse diagnosed disruptive mood
dysregulation disorder; major depressive
disorder and panic disorder with a rule out
diagnosis of social phobia (Tr. 625).
On May 21, 2010, state agency
psychological consultant Howard Tin, Psy.D.,
reviewed the record and completed a
Psychiatric Review Technique, and opined that
Plaintiff did not have a severe mental
impairment (Tr. 543-56).
(Doc. 18 at 5-8.)
2.

Hearing Testimony
At the January 2014 hearing held in Evanston, Illinois,

Plaintiff personally appeared as did her attorney, Richard Victor,
Vocactional Expert (“VE”) Craig Johnston, interpreter Lydia Wexler;
medical expert, Scott Kale, M.D., testified by phone.4

(R. 10.)

Plaintiff testified that she lived in Scranton with her husband and
three children who were twenty-three, twenty, and thirteen at the
time.

(R. 17.)

She also said that before she started working she

had taken English classes for “[n]o more than two months,” she had
taken her citizenship test in English two years before, and she had

4

Both hearings were held in Illinois where Plaintiff lived
when she applied for benefits. (R. 55.) Shortly after the first
hearing, Plaintiff moved to Pennsylvania and returned to Illinois
for the second hearing. (R. 15.)
7

become a citizen. (R. 18, 19.)
The ALJ asked Plaintiff if she could read and write in English
and Plaintiff responded “no, not really.”

(R. 19.)

Plaintiff

confirmed that she could write her last name and address in English
but she needed help to write a short note like a school absence
excuse–-her oldest son would help her and she would just sign her
name.

(R. 19-20.)

She said she could read in English “[i]f it’s a

very, very simple word, the sentence” and her son helped her read
things like the hearing notice.

(R. 20.)

Plaintiff testified that

she had a driver’s license and had taken the test in Russian.
21.)

(R.

When asked if she went to her youngest child’s parent-teacher

conferences to talk to his teachers, Plaintiff responded that she
did not because she doesn’t know the language so she feels
uncomfortable.

(R. 37.)

Regarding employment, Plaintiff said she last worked in 2008
at Tyson Foods as a meat packer--she worked for about a year before
she was injured in a fall on the job and her doctors told here she
could not work anymore.

(R. 23-24.)

Plaintiff’s attorney

clarified that a worker’s compensation claim was filed--it was
ultimately settled.

(R. 25-26.)

The ALJ asked Plaintiff how she

communicated with her coworkers and supervisor when she worked at
Tyson; Plaintiff said that she had some Russian-speaking coworkers
who helped with communication with the supervisor so she spoke with
him “through a translator.”

(R. 38.)

8

Following Dr. Kale’s testimony outlined above, including his
diagnosis of somatoform disorder, Plaintiff’s attorney stated that
he had no questions for Dr. Kale.

(R. 42.) VE Johnston then

testified, indicating that his testimony would be consistent with
the DOT or, if it was not consistent, he would advise the ALJ of
that fact.

(R. 42-43.)

ALJ Merchan asked VE Johnston to consider

an individual of Plaintiff’s “age, education, and work experience
who is able to do work at the sedentary exertional level, limited
to no ladders, ropes, or scaffolds; no more than occasional as to
the remaining postural activities of climbing ramps or stairs,
balancing, stooping, crawling, crouching, or kneeling; no work
above shoulder level; and no work in cold environments.”

(R. 44.)

The VE testified that Plaintiff’s past work would not be available
to such an individual but other jobs would be, including production
assembler, parts inspector, and sorter.

(R. 45.)

The VE estimated

that the number of jobs available would be reduced by fifty percent
if the individual could not lift more than five pounds though this
was not mentioned in the DOT.

(R. 45-46.)

The VE further

testified that adding no more than frequent reaching, handling, or
fingering would not affect the jobs because that was the typical
requirement for the jobs, and adding additional restrictions of no
more than simple, routine, repetitive tasks would not affect the
jobs because he had cited only unskilled jobs.

(R. 46.)

VE

Johnston stated that all jobs would be eliminated if the individual

9

were off work more than three days per month.

(Id.)

Plaintiff’s attorney then questioned VE Johnston about a
sit/stand option and the amount of time an individual would be
expected to be on task.

(R. 47.)

The VE responded that the jobs

would allow a sit/stand option and the individual would have to be
on task at least eighty-five percent of the time.

(Id.)

Plaintiff’s attorney confirmed that he had no further questions.
(Id.)
Before the hearing ended, ALJ Merchan determined that another
consultative examination by a mental health professional was
warranted because she had reservations about Dr. Kale’s testimony-he did not practice in the mental health area and there was no
other mental health treatment.

(R. 47.)

Other than clarifying

that Pennsylvania would be the best location for the consultative
exam, Plaintiff’s attorney had no further questions.
3.

(R. 47-50.)

ALJ Decision
In her July 24, 2014, Decision, ALJ Merchan made the following

findings of fact and conclusions of law:
1.

The claimant has not engaged in
substantial gainful activity since
February 12, 2010, the application date
(20 CFR 416.971 et seq.).

2.

The claimant has the following severe
impairments: degenerative disc disease;
cervical radiculopathy; major depressive
disorder; panic disorder; disruptive
mood dysregulation disorder (20 CFR
416.920(c)).

10

3.

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

4.

After careful consideration of the
entire record, I find that the claimant
has the residual functional capacity to
perform sedentary work as defined in 20
CFR 416.967(a) except the claimant
cannot lift or carry more than five
pounds, and is limited to occasional
postural activities including balancing,
stooping, kneeling, crouching, crawling
and climbing ramps and stairs. The
claimant cannot climb ladders, ropes or
scaffolds. The claimant cannot do any
work above shoulder level, or work in
cold environments. She may frequently,
but not constantly use her bilateral
arms for reaching, handling, and
fingering. She is restricted to simple,
routine and repetitive work tasks.

5.

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

6.

The claimant was born on March 3, 1973,
and was 36 years old, which is defined
as a younger individual age 18-44, on
the date the application was filed (20
CFR 416.963).

7.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 416.968).

9.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
11

national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
10.

The claimant has not been under a
disability, as defined in the Social
Security Act, since February 12, 2010,
the date the application was filed (20
CFR 416.920(g)).

(R. 112-130.)
Other relevant portions of the Decision will be discussed in
the Discussion section of this Memorandum.
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 than 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).
12

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).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

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).

As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs which existed in significant numbers

13

in the national economy.

(R. 129-30.)

III. Standard of Review
This Court’s review of the Commissioner’s final decision is
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).
means “more than a mere scintilla.

Substantial evidence

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); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
14

Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, 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.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (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. Comm’f of

Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
15

precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court 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).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

Albury v. Comm’r of Soc.

Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not precedential)
(citing Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000)
(“[O]ur primary concern has always been the ability to conduct
meaningful judicial review.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).

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.
16

Matthews

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
Plaintiff argues that remand is required for the following
reasons: 1) the ALJ erred in finding that Plaintiff “was able to
‘communicate in English’ without vocational limitation and failing
to include such limitations in the hypothetical questions to the
vocational expert”; 2) the ALJ erred in accepting the vocational
expert’s testimony as consistent with the Dictionary of
Occupational Titles (“DOT”) when two of the jobs identified had
greater demands than allowed by Plaintiff’s RFC and all jobs
identified had greater language requirements than Plaintiff could
meet; and 3) the ALJ erred in not properly evaluating the testimony
of the medical expert witness who testified at the hearing and in
accepting the hearing of the post-hearing consultative examiner.
(Doc. 17 at 14-15.)
A.

Plaintiff’s Language Abilities
With Plaintiff’s first two claimed errors, she argues that the

ALJ did not properly assess her ability to communicate in English
in several ways.

(Doc. 17 at 14-15.)

ALJ did not err on the bases alleged.

Defendant maintains that the
(Doc. 18 at 11-23.)

The

Court concludes that Plaintiff has not shown that remand is
required on the bases argued in her briefs.
Relevant to Plaintiff’s first argument that literacy in the
English language is relevant to the ALJ’s determination in this

17

case, she points to 20 C.F.R. § 416.964(b).6

(Doc. 17 at 17.)

Section 416.964 addresses “education as a vocational factor” and
explains how education is evaluated, noting that “[t]he term
education also includes how well you are able to communicate in
English since this ability is often acquired or improved by
education.”

20 C.F.R. § 416.964(b).

The regulation then sets out

several educational designations, including the “[i]nability to
communicate in English”:
Since the inability to speak, read and
understand English is generally learned or
increased at school, we may consider this an
educational factor. Because English is the
dominant language of the country, it may be
difficult for someone who doesn’t speak and
understand English to do a job, regardless of
the amount of education the person may have
in another language. Therefore, we consider
a person’s ability to communicate in English
when we evaluate what work, if any, he or she
can do. It generally doesn’t matter what
other language the person may be fluent in.
20 C.F.R. § 416.964(b)(5).

Section 416.964(b)(6) addresses

“[i]nformation about education”:
We will ask you how long you attended school
and whether you are able to speak,
understand, read and write in English and do
at least simple calculations in arithmetic.
We will also consider other information about
how much formal or informal education you may
have had through your previous work,
community projects, hobbies, and any other
activities which might help you to work.

6

Plaintiff mistakenly cites 20 C.F.R. § 916.964(b).
at 17 (emphasis added).)
18

(Doc. 17

20 C.F.R.

404.964(b)(6).

Here Plaintiff asserts the jobs identified by the VE have a
General Education Development (“GED”) level of 1 which Plaintiff
does not meet and, therefore, specific vocational testimony was
required.

(Doc. 17 at 24-26.)

In general, “GED measures those

aspects of education (formal and informal) which are required of
the worker for satisfactory job performance” and it is broken into
three categories: reading development, mathematical development,
and language development.

Zirnsak v. Colvin, 777 F.3d 607, 616 (3d

Cir. 2014) (internal quotation omitted).

Language Development is

defined at Level 1 as follows:
Reading: Recognize meaning of 2,500 (two—or
three—syllable) words. Read at a rate of
95–120 words per minute. Compare similarities
and differences between words and between
series of numbers.
Writing: Print simple sentences containing
subject, verb, and object, and series of
numbers, names and addresses.
Speaking: Speak simple sentences, using
normal word order, and present and past
tenses.
DOT, Appendix, 1991 WL 688702 (G.P.O.).
SSR 00-4p addresses conflicts regarding occupational
information provided by a VE and other vocational information.
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
19

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, at *2.

As explained in Zirnsak,

[a]s a general rule, occupational evidence
provided by a VE should be consistent with
the occupational evidence presented in the
DOT. [SSR 00-4p, 2000 WL 1898704] at *2. To
ensure consistency, courts have imposed an
obligation on ALJ’s to “[i]dentify and obtain
a reasonable explanation for any conflicts
between occupational evidence provided by
VE’s...and information in the [DOT].” Id. at
*1; Rutherford [v. Barnhart], 399 F.3d [546,]
556 [3d Cir. 2005]. Specifically, an ALJ is
required to (1) ask, on the record, whether
the VE’s testimony is consistent with the
DOT, (2) “elicit a reasonable explanation”
where an inconsistency does appear, and (3)
explain in its decision “how the conflict was
resolved.” Burns v. Barnhart, 312 F.3d 113,
127 (3d Cir. 2002). An ALJ’s failure to
comply with these requirements may warrant
remand in a particular case. Rutherford, 399
F.3d at 557. However, this Circuit has
emphasized that the presence of
inconsistencies does not mandate remand, so
long as “substantial evidence exists in other
portions of the record that can form an
appropriate basis to support the result.”
Id. (citing Boone v. Barnhart, 353 F.3d 203,
209 (3d Cir. 2004)).
777 F.3d at 617.
In Zirnsak, the Court found that the ALJ had specifically
asked about consistency between the VE’s testimony and information
in the “DOT and other relevant vocational sources,” the VE did not
note inconsistencies in GED reasoning level 3 and a limitation to
20

“simple and repetitive tasks involving routine work processes and
settings” argued by the plaintiff on appeal, and “[i]mportantly,
neither [the plaintiff] nor her attorney challenged the VE on these
points or otherwise identified any apparent inconsistency between
the VE’s testimony and the DOT.”

777 F.3d at 617.

The analysis

continued:
Because the VE did not identify the
reasoning level inconsistency at the hearing,
the ALJ did not elicit an explanation for
that inconsistency or explain in its decision
how the conflict was resolved. Burns, 312
F.3d at 127. Therefore, we must determine
whether there is substantial evidence in the
record that still supports the ALJ’s
determination. Boone, 353 F.3d at 209.
777 F.3d at 617.
Assuming arugendo that Plaintiff’s English language ability
was a vocational factor at step 5 of the sequential evaluation
process which was not directly addressed by the ALJ or VE and
Plaintiff’s English language abilities were less than those set out
in GED language level 1, the question would remain whether the case
must be remanded for further consideration of whether Plaintiff’s
English language ability would prevent her from doing the sorter
job identified by the VE.7

7

Defendant persuasively argues that even if Plaintiff could
not perform the production assembler and parts inspector positions
based on conflicts with the manipulative limitations in the RFC,
the sorter position identified by the VE remains and this job alone
satisfies Defendant’s burden at step five of showing that other
work exists in significant number in the national economy. (Doc.
18 at 18-19 (citing Wright v. Sullivan, 900 F.2d 675, 679 (3d Cir.
21

As noted above, Plaintiff argues that remand is required for
specific evidence from a VE identifying jobs in the DOT for a
person such as Plaintiff, with minimal English language skills,
because all of the DOT jobs require at least a GED of 1.
at 25.)

(Doc. 17

This argument is based on the premise that the demands of

GED language development level 1 “are far beyond the level of
Plaintiff, no matter what was used to measure her ability to
communicate in English.”

(Doc. 19 at 7-8.)

Plaintiff further

asserts that a VE’s testimony that a particular job does not
require the language skill specified by the DOT would be a
variation from the DOT which the ALJ must weigh pursuant to SSR 004p.

(Doc. 17 at 25-26.)

The second aspect of Plaintiff’s argument

infers that there is always “an apparent unresolved conflict” for
which an ALJ must always “elicit a reasonable explanation.”

SSR

00-4p, 2000 WL 1898704, at *2.
Before proceeding with further discussion of Plaintiff’s
claimed error, the Court considers Defendant’s assertion that
Plaintiff’s ability to communicate in English is irrelevant to the
outcome of the case pursuant to Grid Rules pertaining to sedentary
work (Doc. 18 at 15-16 & n.5).

Defendant relies on the following

Grid Rule:
“While illiteracy or the inability to

1990)).) Plaintiff does not refute this argument in her reply
brief. (See Doc. 19.) Therefore, the Court limits the discussion
to the sorter position identified by the VE.
22

communicate in English may significantly
limit an individual's vocational scope, the
primary work functions in the bulk of
unskilled work relate to working with things
(rather than with data or people) and in
these work functions at the unskilled level,
literacy or ability to communicate in English
has the least significance. . . . Thus, the
functional capability for a full range of
sedentary work, represents sufficient numbers
of jobs to indicate substantial vocational
scope for individuals age 18-44 even if they
are illiterate or unable to communicate in
English.”
(Doc. 18 at 16 (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
202.00(i)).)

The Court is not persuaded by Defendant’s argument

that the language issue is irrelevant: the terms of the provision
itself apply to a “full range of sedentary work” which is not
consistent with Plaintiff’s RFC (R. 44-46, 114-15); the ALJ did not
rely on the Grid Rules; and he is precluded from doing so pursuant
to Sykes v. Apfel, 228 F.3d 259, 266-71 (3d Cir. 2000), because
Plaintiff has both exertional and nonexertional impairments and
limitations.
Defendant also asserts that Plaintiff’s argument that the job
of sorter was inconsistent with her alleged inability to speak
English is without merit in part because “GED levels are merely
advisory in nature and serve only as a reference for the ALJ and
VE.”

(Doc. 18 at 20.)

Based on Zirnsak’s analysis of the claimed

step five error regarding a GED level, 777 F.3d at 617-19, the
Court cannot conclude that GED considerations are categorically
insignificant when analyzing an ALJ’s reliance on a VE’s testimony.
23

The Court concludes that, rather than the bright-line rule
suggested by Plaintiff, the Zirnsak case-specific approach
(following cases which “focused on whether a failure to inquire
about or reconcile a conflict caused any harm to the claimant when
determining whether remand is necessary,” 777 F.3d at 618) is
appropriate here and is consistent with the emphasis in this
Circuit that the presence of inconsistencies does not mandate
remand, so long as “substantial evidence exists in other portions
of the record that can form an appropriate basis to support the
result.”

777 F.3d at 617 (quoting Rutherford, 399 F.3d at 557).8

Here the ALJ recognized the “general rule, occupational
evidence provided by a VE should be consistent with the
occupational evidence presented in the DOT,”

777 F.3d at 617

(citing SSR 00-4p, 2000 WL 1898704, at *2), inquiring of the VE

8

Although Plaintiff asserts that the ALJ erred in failing to
include language limitations in her hypothetical questions to the
VE, Plaintiff does not adequately develop this issue and supports
the statement that “[i]f the plaintiff has a limited ability to use
English then it must be included in the hypothetical question asked
the vocational expert” with a single citation. (Doc. 17 at 18
(citing Zapata-Alvarez v. Colvin, Civ. A. No. 14-2830, 2015 WL
5179477 (E.D. Pa. Sept. 4, 2015)).) With this lack of development,
the Court does not further address thr matter except to note that
Zapata-Alvarez decided to remand the case on the basis asserted
without reference to the relevant authority relied upon here and
cited only Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1987),
for the proposition that “[a]n ALJ may consider the testimony of a
vocational expert in response to a hypothetical question only if
the question accurately portrays the claimant’s physical and mental
limitations,” 2015 WL 517, 9477, at *9–-a questionable proposition
where the limitation at issue is language rather than “physical or
mental.”
24

about the consistency between his testimony and the DOT.

(R. 43.)

The VE responded affirmatively and the ALJ did not ask about the
inconsistency regarding language level now alleged.

Although

Plaintiff’s attorney was given a specific opportunity to question
the VE and raised questions about hypotheticals posed by the ALJ
and positions identified by the VE (R. 47), neither Plaintiff nor
her attorney challenged the VE or the ALJ about any languagerelated matters, and Plaintiff’s attorney did not seek to elicit
information about Plaintiff’s language abilities beyond questions
asked by the ALJ.

(R. 18-20.)

Looking now to more specific factors addressed in Zirnsak, we
first consider whether Plaintiff “seriously argue[s] that she is
incapable of performing the jobs . . . recommended by the VE.”
F.3d at 619.

777

Plaintiff does not argue that she is incapable of

performing the sorter job identified by the VE.

In her reply brief

she notes that “[i]t may be that a VE, if asked, would provide
reasons why the plaintiff could do some or all of the jobs cited
even with a lower then [sic] GED 1 level.”

(Doc. 19 at 9.)

Plaintiff does not follow this observation with any assertion that
such testimony would or could be substantively refuted, but states
only that this is an administrative matter.

(Id. at 9-10.)

Beyond the lack of evidence and lack of assertion to the
contrary, the record supports that Plaintiff had sufficient
language skills to perform the position.

25

A fair inference can be

drawn from the hearing testimony that the VE took Plaintiff’s
English language ability into account when he provided exemplary
position recommendations: the VE confirmed that he had heard the
testimony presented at the hearing, he was familiar with the
vocational terms and definitions in the regulations, and he was
familiar with the jobs existing in the region and the national
economy (R. 43); the regulations specify that the term “education”
includes how well the claimant is able to communicate in English,
and the claimant’s ability to communicate in English is considered
when it is evaluated what work a claimant can do, 20 C.F.R. §
416.964(b), (b)(5); with each hypothetical question from the ALJ,
VE Johnston was asked to consider a person of Plaintiff’s “age,
education, and work experience” (R. 44-46).

Thus, when deciding

what work Plaintiff could do (including the exemplary sorter
position), the VE would have considered Plaintiff’s ability to
communicate in English including the use of an interpreter at the
hearing (see R. 10), Plaintiff’s testimony about her English
language abilities and difficulties (R. 18-20), the fact that her
ten years of formal education (high school) had been in Uzbekistan
(R. 18), and the fact that she had only two months of formal
English classes when she arrived in the United States (R. 19).
Because the ALJ made no findings at the hearing regarding
Plaintiff’s ability to communicate in English and nothing in the
hypotheticals altered the broad application of the general

26

regulatory framework with which the VE expressed familiarity, the
VE’s testimony that Plaintiff had the ability to perform the sorter
position was not influenced by the ALJ’s later conclusions in her
Decision that Plaintiff “seems to be literate in the English
language” (R. 110), and “is able to communicate in English” (R.
129).

Another aspect of the record that supports the conclusion

that Plaintiff could perform the sorter position is Plaintiff’s
testimony that she took the citizenship exam in English and
“studied well” to do so (R. 18).

Though Plaintiff highlights the

limited vocabulary associated with the exam (Doc. 18 at 20-21), the
testimony is significant beyond the accomplishment--an ability to
learn task-specific language shows a practical ability to apply
language skills and intelligence in a specific context such as the
sorter position.

Medical record notations that Plaintiff “does

speak some English” (R. 444) is further evidence supporting an
ability to perform the sorter position.
The second factor considered in Zirnsak was wether the
plaintiff’s counsel had identified any inconsistencies at the
hearing.

777 F.3d at 619.

As discussed above, Plaintiff’s counsel

did not identify any inconsistencies regarding language ability or
raise the matter inferentially.
The final Zirnsak factor was whether the jobs identified by
the VE were exemplary.

Id.

VE Johnston identified the positions

as “examples of occupations that would be available.”

27

(R. 44.)

The foregoing analysis indicates that the facts of this case
(considered in the context of relevant caselaw and regulations)
warrant the conclusion that substantial evidence exists in the
record to support the ALJ’s conclusion that Plaintiff could perform
the sorter position and Plaintiff was not harmed by the ALJ’s
failure to address the alleged inconsistency at the hearing.
Therefore, remand for reconsideration of this issue is not
required.

See, e.g., Rutherford, 399 F.3d at 557.

B. Medical Expert Opinion
Plaintiff also asserts that remand is warranted because the
ALJ erred in her evaluation of the opinion of Dr. Kale, a
testifying medical expert, that Plaintiff suffered from somatoform
disorder and in accepting the opinion of Dr. LaJeunesse, a
consultative examiner, who did not diagnose the disorder.
at 26.)

(Doc. 17

Defendant responds that substantial evidence supports the

ALJ’s evaluation of these opinions.

(Doc. 18 at 23.)

The Court

concludes Plaintiff has not shown remand is warranted on the basis
alleged.
In general, greater deference is due an examining source than
a non-examining source.

20 C.F.R. § 416.927(c)(1).

Section

416.927(c)(3) provides the following:
The more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the
more weight we will give that opinion. The
better an explanation a source provides for
an opinion, the more weight we will give that
28

opinion. Furthermore, because nonexamining
sources have no examining or treating
relationship with you, the weight we will
give their opinions will depend on the degree
to which they provide supporting explanations
for their opinions. We will evaluate the
degree to which these opinions consider all
of the pertinent evidence in your claim,
including opinions of treating and other
examining sources.
Id.
ALJ Merchan analyzed the relevant portion of Dr. Kale’s
hearing testimony as follows:
At the end of his testimony Dr. Kale
added, that the claimant has depression, and
given her disproportionate pain reports, as
compared to her physical impairments, he
opined that the claimant’s depression equaled
the requirements of listing 12.07 concerning
somatoform disorder. Dr. Kale went on to
report that he has an advanced degree in
psychology, but does not practice it
routinely (Exhibit 19B). Despite his
expertise on the subject, I could not give
any significant weight to this conclusion as
the record included no documentation of
diagnosis of a somatoform disorder, or
somatoform depression, to indicate even a
medically determinable impairment. Giving
credit to Dr. Kale’s testimony however, after
the hearing, I sent the claimant for a
psychological consultative examination to
further develop this potential theory.
Although psychologist Dr. Charles LaJeunesse,
Ph.D. acknowledged the claimant’s reports of
pain in the examination, May 6, 2014, he
notably did not diagnose a somatoform
disorder (Exhibit 16F). Consequently, I
cannot give weight to this portion of Dr.
Kale’s testimony.
(R. 114.)

This summary indicates that ALJ Merchan did not give

weight to Dr. Kale’s somatoform disorder diagnosis for two specific
29

reasons: because “the record included no documentation of diagnosis
of a somatoform disorder, or somatoform depression, to indicate
even a medically determinable impairment” and Dr. LaJeunesse did
not diagnose a somatoform disorder.

(R. 114.)

Plaintiff’s argument on this issue clearly shows that she is
displeased with ALJ Merchan’s analysis, but she does not support
her argument with any citation to authority aside from the
proposition that “some mental health condition may be diagnosed by
a doctor who is not a specialist in mental health, but in another
specialty[.]” (Doc. 17 at 31 & n. 21 (citing Cramer v. Colvin, Civ.
A. No. 3:13-CV-2665, 2014 WL 6982672 (M.D. Pa. Dec. 10, 2014);
Heinz v. Heckler, 581 F. Supp. 13 (E.D. Pa. 1983); Sprague v.
Bowen, 812 F.2d 1226 (9th Cir. 1987)).)

Following this averment,

Plaintiff asserts that “a diagnosis of somatoform disorder should
be made by someone who either has the qualifications to diagnose
both physical and mental health problems, such as Dr. Kale, or a
mental health professional who has, at the very least, been asked
to assume that the patient does not have physical conditions that
would account for her pain.”9

(Doc. 17 at 31.)

9

This conclusory

Interestingly, Plaintiff takes issue with Dr. Kale’s
assessment of Plaintiff’s physical impairments: “Dr. Kale testified
that there was no basis for the plaintiff’s physical complaints.
This ignores the MRI’s that show disc herniations. He relied, it
appears, on the back [sic] of positive electrodoagnostic [sic]
tests. He was not asked about the well known level of false
negatives in such studies.” (Doc. 17 at 27.) Plaintiff’s
observations regarding problems with Dr. Kale’s evaluation of the
evidence supporting complaints of pain inferentially undermines
30

statement and others like it do not come close to satisfying
Plaintiff’s burden to show the ALJ erred on the basis alleged.
Plaintiff does not attempt to specifically show how ALJ
Merchan ran afoul of the regulatory provision cited above.
Plaintiff cannot show that Dr. Kale’s opinion is entitled to
greater deference than that of the consultative examiner because
Dr. Kale did not examine the patient and based his opinion on his
review of medical evidence.

Plaintiff cannot show that his opinion

is entitled to greater deference on the basis of supporting
evidence because there is none in the record and the only reason he
provides for the diagnosis is that Plaintiff’s complaints of pain
were out of proportion with identified abnormalities.

(R. 41.)

Interestingly, although Plaintiff urges reliance on Dr. Kale’s
opinion regarding somatoform disorder, she takes issue with his
assessment of Plaintiff’s physical impairments: “Dr. Kale testified
that there was no basis for the plaintiff’s physical complaints.
This ignores the MRI’s that show disc herniations.

He relied, it

appears, on the back [sic] of positive electrodoagnostic [sic]
tests.

He was not asked about the well known level of false

negatives in such studies.”

(Doc. 17 at 27.)

Plaintiff’s comments

regarding problems with Dr. Kale’s evaluation of the evidence

reliance on his somatoform disorder diagnosis – if Plaintiff’s
physical complaints were attributed to diagnosed conditions, i.e,
found to be better supported, Dr. Kale’s reliance on lack of
support for physical complaints as the basis for the somatoform
diagnosis would be undermined or invalidated.
31

supporting complaints of pain inferentially undermines reliance on
his somatoform disorder diagnosis – if Plaintiff’s physical
complaints were attributed to diagnosed conditions, i.e, found to
be better supported, Dr. Kale’s reliance on lack of support for
physical complaints as the basis for the somatoform diagnosis would
be undermined or invalidated.
With no evidence in the record of somatoform disorder aside
from a testifying, non-examining source, and no diagnosis of such a
condition from any of Plaintiff’s treating or examining sources,
the Court cannot conclude that ALJ Merchan erred on the basis
alleged.
V. Conclusion
For the reasons discussed above, the Court concludes
Plaintiff’s appeal of the Acting Commissioner’s decision is
properly denied.

An appropriate Order is filed simultaneously with

this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 15, 2017

32