UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christian Lambert

v. Case No. 17-cv-341-PB Opinion No.

US Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Christian Lambert challenges the denial of his application

for disability insurance benefits pursuant to

(g). He contends that the Administrative Law Judge’s (“ALJ”)

decision denying his application should be reversed because his

residual functional capacity (“RFC”) finding is not supported by

substantial evidence and fails to fully incorporate certain

manipulative limitations reflected in the medical record.

Lambert also argues that the ALJ erred by failing to resolve an

apparent inconsistency between vocational-expert testimony and

related information in the Dictionary of Occupational Titles

(“DOT”). The Acting Commissioner, in turn, moves for an order

affirming the ALJ’s decision. For the reasons that follow, I

deny Lambert’s motion and affirm the Acting Commissioner’s

decision. I. BACKGROUND

Lambert is a 45 year-old man with a high school education.

See Administrative Transcript (“Tr.”) 26, 204. He previously

worked at Walmart from 2001 to 2006, as the manager of the

electronics department, and then at Time Warner Cable from 2006

to 2015, as a customer service technician. Doc. No. 9 at 2; see

Tr. 204, 209. Lambert has allegedly been disabled since March

16, 2015, due to Charcot-Marie-Tooth disease (“CMT”), a disease

that he has had since he was 18 years-old. See Tr. 44, 46-47,

56-57. 1

Lambert’s application for benefits was initially denied in

October 2015. Tr. 86-97. His claim progressed to a hearing

before ALJ Paul G. Martin in January 2017, where Lambert was

represented by counsel. His claim was ultimately denied by the

ALJ in a written decision issued on March 1, 2017. Doc. No. 9

at 1; see Tr. 18-28. On May 31, 2017, the Social Security

Administration (“SSA”) Appeals Council denied Lambert’s request

for review of the ALJ’s decision, making it the final decision

of the Acting Commissioner and ripe for judicial review. See

Tr. 1-7. Lambert now appeals.

1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts, (Doc. No. 9). See LR 9.1. Because that joint statement is part of the court’s record, I only briefly recount the facts here. I discuss further facts relevant to the disposition of this matter as necessary below.

2 II. THE ALJ’S DECISION

The ALJ assessed Lambert’s claim under the five-step,

sequential analysis required by

. He

ultimately ended the inquiry by finding that Lambert was not

disabled at step five 2 because he “was capable of making a

successful adjustment to other work” existing in significant

numbers in the national economy. Tr. 27. At step one, the ALJ

found that Lambert had not engaged in substantial gainful

activity since March 16, 2015, his alleged disability onset

date. Tr. 20. At step two, he found that Lambert’s Charcot-

Marie-Tooth disease (“CMT”) was a severe impairment.

“[A]lso described as hereditary peripheral neuropathy,” CMT

“primarily affects the lower and upper extremities,” see

particularly Lambert’s “fine and gross motor coordination as

well as his balance and his gait.” Tr. 38. At step three, the

ALJ found that Lambert’s CMT did not qualify as a listed

impairment as set forth in 20 C.F.R. Part 404, Subpart P,

Appendix 1. Id.; see

(d), 404.1525, and

2 Step five requires a finding of “not disabled” and a denial of the claimant’s application if the Commissioner produces “evidence of specific jobs in the national economy that the applicant can still perform” given his or her RFC, education, work experience, and age. Purdy v. Berryhill,

(1st Cir. 2018); see

(a)(4)(v).

3 404.1526, which would have rendered him disabled per se. Tr.

21.

At step four, the ALJ determined that Lambert had the RFC

to perform “light work,” as defined in

(b),

except that he could only stand and/or walk for up to two hours

in an eight-hour workday, and could only sit for up to six hours

total. Tr. 21. The ALJ also found that Lambert could

“occasionally climb, stoop, kneel, crouch and crawl,” but that

he could “never balance” or “climb ladders, ropes or scaffolds.”

He further found that Lambert must “avoid hazardous

machines and heights . . . all writing other than signatures,”

and must also “avoid competitive keyboarding and repetitive

handling.”

In making his determination, the ALJ

“considered all symptoms” as evidenced by treatment notes,

clinical examinations, Lambert’s reported daily activities, and

his own subjective complaints. See Tr. 21-26. These symptoms

primarily included “tremor and hand limitations, and weakness,

numbness and pain in his lower extremities associated with

activity,” which made it difficult for him to stand, walk and,

balance. See Tr. 22. His “bilateral drop foot” caused him to

regularly “trip” over himself when walking and feel unsteady on

his feet. See Tr. 22, 51-52. Lambert also claimed to

experience loss of sensation in his hands and decreased strength

in his fingers. He testified that “due to shakiness and poor

4 motor control, he [had] difficulty gripping a pencil or doing

tasks such as opening food containers,” and that he had “poor

handwriting” that “improve[d] if he [wrote] slowly.” Tr. 22,

51-53. He also testified that he experienced difficulty typing

but said that he could use the “hunt and peck” typing method.

Tr. 22, 56, 62.

Although the ALJ found that CMT “could reasonably be

expected to cause [Lambert’s] alleged symptoms,” he found that

Lambert’s “statements concerning the intensity, persistence and

limiting effects of [his] symptoms [were] not entirely

consistent with the medical evidence and other evidence in the

record.” Tr. 22. The ALJ found that the medical record did

indicate progressive symptoms of “pain or discomfort, numbness,

tremors and weakness, as well as ankle or gait instability,”

collectively “limiting his tolerance for prolonged standing and

walking and some postural activities, as well as repetitive

handling.” Tr. 22. But the ALJ also found evidence that

Lambert retained “basic functions with the hands[,] such as

manipulating utensils and ‘hen peck’ typing,” and that he could

“manage[] short periods of standing and walking with use of

boots.” Tr. 22; see Tr. 56. Lambert’s activities of daily

living cited by the ALJ included “working part-time as a

caretaker for individuals with developmental disabilities . . .

shopping, limited yard work with help from his son, caring for

5 his dogs, taking out the trash, preparing meals, and visiting

friends . . . watching television . . . and play[ing] computer

games.” Tr. 22, 217-224. In light of these findings, and

testimony from a Vocational Expert (“VE”) considering Lambert’s

relevant description and work experience, the ALJ concluded

Lambert was unable to perform his past relevant work as a

“retail department manager and customer service representative.”

Tr. 26.

At step five, however, the ALJ concluded that Lambert was

“capable of making a successful adjustment to other work that

exist[ed] in significant numbers in the national economy,” and

that a finding of “not disabled” was therefore warranted under

(a)(4)(v). Tr. 27. The ALJ based his

conclusion on the testimony of a VE taken at the January 2017

hearing, who considered a hypothetical person with Lambert’s

age, education, work experience, and RFC. Tr. 27, 65-74. When

questioning the VE, the ALJ recited the aforementioned RFC to

the VE, placing particular emphasis on “a need to avoid all

writing other than maybe a signature or something similar,” and

a need to avoid “competitive paced keyboarding and repetitive

handling.” Tr. 68. When asked by the VE to clarify the meaning

of “repetitive handling,” i.e. whether it meant “occasional” or

“frequent,” the ALJ responded: “Repetitive in terms of—in the

truest sense of repetitive, not in terms of frequent or

6 occasional, but more the ability to do so for a long[,]

prolonged period, over and over.” Tr. 68. The VE,

understanding repetitive to mean “repeating the same types of

motion over and over again,” see Tr. 68, then opined that such a

person could perform work as a “ticket taker,” a “telephone

solicitor,” or a “final assembler [of] optical goods.” Tr. 69-

71. The VE further testified that those three jobs existed in

the national economy at levels of 73,000; 72,000; and 14,000

positions, respectively. See 69-71. The ALJ cited to this

testimony in his March 2017 decision and noted that he had

determined it to be “consistent with the information contained

in the Dictionary of Occupational Titles,” as required by Social

Security Ruling 00-4p. Tr. 27. Accordingly, in considering the

availability of those 159,000 positions consisting of either

“light” or “sedentary” work that Lambert could still perform,

the ALJ found that Lambert had not been disabled from the onset

date through the date of the decision. Tr. 27 (citing

(g)).

III. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

7 however, “to determining whether the [Commissioner] used the

proper legal standards and found facts [based] upon the proper

quantum of evidence.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000). I defer to the Commissioner’s

findings of fact, so long as those findings are supported by

substantial evidence.

Substantial evidence exists “if a

reasonable mind, reviewing the evidence in the record as a

whole, could accept it as adequate to support [her] conclusion.”

Irlanda Ortiz v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)). If

the Commissioner’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770.

If, however, the Commissioner derived her findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts,” her findings are not conclusive. Nguyen

v. Chater,

(1st Cir. 1999) (per curium).

“Issues of credibility and the drawing of permissible inference

from evidentiary facts are the prime responsibility of the

Commissioner, and the resolution of conflicts in the evidence

and the determination of the ultimate question of disability is

for her, not for the doctors or for the courts." Purdy v.

8 Berryhill,

(1st Cir. 2018) (internal quotations

and citations omitted).

IV. ANALYSIS

Lambert alleges two errors with the ALJ’s decision that he

argues warrant reversal. Doc. No. 6. First, he contends that

the ALJ’s RFC determination is not supported by substantial

evidence because it fails to “fully incorporate manipulative

limitations” reflected in Lambert’s medical record. Doc. No. 6

at 8. Second, Lambert argues that the ALJ failed to resolve

apparent inconsistencies between the VE’s testimony regarding

Lambert’s ability to perform certain light and sedentary work

and the description of those positions contained in the DOT.

Accordingly, Lambert argues that SSR 00-4p precluded the ALJ

from relying on that testimony to support his finding of “not

disabled” at step five. I address each of Lambert’s arguments

in turn.

A. Substantial Evidence Supporting the ALJ’s RFC Finding

Lambert contends that the ALJ’s step-four RFC finding is

not supported by substantial evidence. To reiterate, the ALJ

found that Lambert could perform “light work,” except that he

(i) could only stand and/or walk up to two hours in an eight-

hour workday and up to six hours total, (ii) could only

occasionally climb, stoop, kneel, crouch and crawl, (iii) could

never balance, (iv) could not climb ladders, ropes, or

9 scaffolds, (v) must avoid hazardous machines and heights, and

(vi) must avoid “all writing other than signatures,”

“competitive paced keyboarding,” and “repetitive handling.” Tr.

21. Lambert contends that ALJ erred in failing to discuss

certain medical findings in his step-four narrative related to

Lambert’s deficits in his upper extremities, and in defining too

narrowly Lambert’s manipulative limitations in constructing the

above RFC. Doc. No. 6 at 8-12. For the reasons discussed

herein, I see no legal error in the ALJ’s step-four analysis and

find that his RFC determination is supported by substantial

evidence.

A claimant’s RFC is “the most [the claimant] can still do

despite [her] limitations.”

(a). It must

be crafted by the ALJ based on all relevant evidence in the

record.

; see Lord v. Apfel,

(D. N.H. 2000); Stephenson v. Halter,

, *2.

In so doing, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments.” Stephenson,

, *2 (citing SSR 96-8p,

at *5 (S.S.A.

July 2, 1996)). This is typically done by “piec[ing] together

the relevant medical facts from the findings and opinions of

multiple physicians,” see Evangelista v. Sec'y of Health & Human

Servs.,

(1st Cir. 1987), but may sometimes

incorporate “commonsense judgments about functional capacity”

10 based upon those findings. Gordils v. Sec'y of Health & Human

Servs.,

(1st Cir. 1990). An ALJ’s written

decision, however, need not specifically address every

individual piece of evidence in the record where it would be

cumulative or unhelpful to the claimant’s position. See Grenier

v. Colvin,

; Lord, 114 F. Supp. 2d at *13; see

also Rodriguez v. Sec'y of Health & Human Servs.,

,

(1st Cir. 1990) (per curiam, table

decision) (“An ALJ is not required to expressly refer to each

document in the record, piece-by-piece.”).

Here, the ALJ formulated Lambert’s RFC by piecing together

several source opinions from the record. He first gave “great

weight” to the opinions of Dr. Peter Loeser and Dr. Elaine Hom.

Tr. 23. Dr. Loeser, a consultative physician for the state,

physically examined Lambert on September 18, 2015. See Tr. 276-

79. Although no documentation of a CMT diagnosis appeared in

the record at the time, Dr. Loeser found neurological symptoms

“consistent with [Lambert’s] reported diagnosis of CMT” and

noted that Lambert reported experiencing those symptoms at a

relatively consistent level for as long as twenty-four years.

Tr. 276. As to Lambert’s upper extremities, these symptoms

included “[m]ild tremor in the extremities both at rest and with

movement, with mild muscle spasticity with movement.” Tr. 278.

Other than that, Dr. Loeser indicated an “unremarkable upper

11 extremity examination.”

He found that Lambert had

“[n]ormal power, strength, and fine touch sensation in the upper

extremities bilaterally, including pinch, grip, dexterity, and

alternating movements.”

The ALJ recited these findings in

his step-four narrative, giving them great weight, and also

noted that Dr. Loeser “specified no hand functional

limitations.” See Tr. 23, 25. The ALJ also gave great weight

to the nonexamining opinion of Dr. Hom, a state consultative

physician who rendered an opinion on Lambert’s RFC after

reviewing his medical record on October 13, 2015, which included

Dr. Loeser’s physical exam. Tr. 25, 88-93. Dr. Hom considered

Lambert’s history of CMT, which she found caused “severe”

peripheral neuropathy and Lambert’s related functional troubles.

Tr. 89. She opined that notwithstanding his CMT impairment, he

could still stand and/or walk for a total of two hours and sit

for a total of six hours in an eight-hour workday, and that he

could occasionally lift and carry up to 20 pounds and frequently

lift and carry up to 10 pounds. Tr. 90. She also found that he

could only occasionally climb ramps and stairs, occasionally

stoop, kneel, crouch, and crawl, but could never climb ladders,

ropes, or scaffolds, and could never balance. Tr. 90-91. She

also opined that Lambert should avoid even moderate exposure to

hazardous machinery and heights, but that Lambert had no

manipulative limitations. Tr. 91. The ALJ explained that both

12 consultative opinions were entitled to “great weight” because

they were based upon the “detailed” physical examination by Dr.

Loeser, were consistent with treatment notes and Lambert’s own

reported abilities from periods both before and after the

examination and RFC opinion, and because of Dr. Hom’s SSA

“program knowledge.” Tr. 25. Consequently, the ALJ adopted Dr.

Hom’s RFC finding almost entirely, incorporating her opinions as

to Lambert’s postural and environmental limitations into his own

RFC verbatim. See Tr. 21. Thus, these opinions provide

substantial evidence supporting the ALJ’s RFC finding with

respect to Lambert’s ability to perform “light work” with the

first five limitations discussed above. See

(b) (“Light work involves lifting no more than 20 pounds

at a time with frequent lifting or carrying of objects weighing

up to 10 pounds . . . a good deal of walking or standing, or . .

. sitting most of the time with some pushing and pulling of arm

or leg controls.”).

The ALJ’s RFC only departed from Dr. Hom’s with respect to

manipulative limitations. Although Dr. Hom found no

manipulative limitations, the ALJ found that Lambert could not

write, “competitively type,” or “repetitively handle.” Tr. 21.

The ALJ determined that these limitations specifically related

to Lambert’s tremors, which were “not fully addressed” by Dr.

Hom but were raised in subsequent examination records from

13 Lambert’s treating neurologist. See Tr. 26. For instance, on

April 27, 2016, Lambert was first seen by Dr. Justin Mowchun, a

neurologist to whom he was referred after seeking medical

treatment for his suspected CMT for the first time in January

2016. Tr. 23; Doc. No. 9 at 4 (citing Tr. 286, 325-27). Dr.

Mowchun diagnosed Lambert with CMT. Tr. 325-27. In his step-

four narrative, the ALJ discussed various portions of Dr.

Mowchun’s examination notes, specifically Lambert’s reported

“numbness and tingling in his feet,” “his history of weakness

and tremor in his hands, with difficulty writing,” and the

presence of “a moderate postural tremor” when his arms were

extended, and an “action tremor” when Lambert attempted to touch

his finger to his nose. Tr. 23 (citing Tr. 325-27). He also

discussed Lambert’s strength, grip, and finger-abduction, as

tested by Dr. Mowchun, which were assessed as five-out-of-five,

four-plus-out-of-five, and four-out-of-five, respectively. Tr.

23, 326. Finally, the ALJ noted Dr. Mowchun’s conclusion that

“the exam and nerve conduction studies were consistent with CMT,

with severe generalized peripheral neuropathy,” for which Dr.

Mowchun recommended physical therapy, and discussed possible

medications to help alleviate foot pain and tremor. Tr. 23,

326-27. He also suggested podiatry as a possible means for

addressing the symptoms experienced in Lambert’s lower

extremities. Tr. 23, 326-27.

14 Consequently, Lambert began seeing podiatrist Heidi

Newkirk, DPM, in May 2016, who assessed his CMT-related

hammertoe deformities, gait abnormalities, and foot pain. See

Tr. 283-84. In July 2016, pursuant to Dr. Newkirk’s suggestion,

Lambert underwent left-foot surgery to help alleviate his

chronic pain. See Tr. 281, 308-10. Between August 2016 and

November 2016, Lambert presented to Dr. Newkirk for several

surgical follow-up examinations. See Doc. No. 9 at 6-7. In a

November 22, 2016, evaluation, Dr. Newkirk noted that Lambert’s

foot was stable, and that he should continue ambulating as

tolerated. Tr. 346. She also noted that she would be “happy to

fill out the podiatrically relevant portion” of disability

paperwork recently received by her office, and that she was

referring Lambert to physical therapist Joan Van Saun “for a

formal evaluation of [his] functional capacity.” Tr. 346-47.

Pursuant to that referral, Lambert underwent a functional

capacity evaluation on November 30, 2016, by Joan Van Saun, a

licensed occupational therapist. Tr. 351-54; see Doc. No. 9 at

7. Van Saun, began by noting Lambert’s subjective symptom

report, which for the upper extremities included “gross and fine

motor tremor,” with “[d]ifficulty zipping, buttoning, putting on

socks and shoes, cutting vegetables, [and] opening containers.”

Tr. 351. Based on Lambert’s description of his home activities,

Van Saun found less-than-normal functioning in “personal”

15 activities, such as dressing and bathing; “home maintenance”;

“general mobility”; “homemaking”; and “functional mobility.”

Tr. 352. She also performed a physical examination on Lambert,

testing for range of motion and strength in his upper and lower

extremities, lifting and carrying capacity, pushing and pulling

capacity, fine motor coordination, and positional tolerances,

inter alia. Tr. 352. As to Lambert’s upper extremities, Van

Saun found that his range of motion was within normal limits,

and that his strength was five-out-of-five “throughout except

intrinsic musculature, e.g. digits 2 through 5 abduction and

abduction 4/5 on manual muscle testing.” Tr. 352. She also

found that he had a “moderate tremor” when his hands were

extended, and that his “fine motor coordination [was]

significantly impaired.” Tr. 352. 3 Van Saun ultimately opined

that Lambert’s work capacity was “Below Sedentary . . . due to

[his] decreased upper extremity fine and gross motor

coordination, balance impairment, [and] gait abnormalities.”

Tr. 353. She explained that “[e]ven if [a] job involves

primarily sitting, limitations in upper extremity fine and gross

motor coordination would prevent him from performing tasks such

3 Lambert also completed a “nine-hole peg test” at a slow pace with “uncoordinated arm and hand movement.” Tr. 353. Van Saun further noted that Lambert had “slight difficulty with in-hand manipulation,” and “mild dysmetria with hand to nose testing.” Tr. 353.

16 as competitively-paced keyboarding, handwriting, [and]

repetitive handling tasks.” Tr. 353. On January 18, 2017, Dr.

Newkirk signed a one-line document asking her whether the

results of Van Saun’s evaluation represented “an accurate

estimate of Christian Lambert’s ability to sustain work for a

standard work week.” Tr. 355. She checked a box labeled “yes”

without further explanation or comment.

The ALJ extensively discussed the aforementioned treatment

notes and evaluation in his step-four narrative. Tr. 22-25. He

assigned “little weight” to Van Saun’s evaluation and the

opinions contained therein, as well as Dr. Newkirk’s opinion

affirming Van Saun’s conclusions. 4 Tr. 25-26. The ALJ found Van

Saun’s sub-sedentary opinions entitled to “little weight”

because “she did not specifically state the amount of weight

[Lambert could] lift and carry,” and because much of her opinion

was based on Lambert’s own “self-reported ability to work in his

current job” rather than her own “independent evaluation.” See

Tr. 25. He also found that her opinion “somewhat overstate[d]

the objective findings noted in her exam summary”; “lack[ed]

some detail about the duration and extent of testing”; and was

“inconsistent with [Lambert’s] activities of daily living, and

the signs and symptoms reflected in [his] longitudinal medical

4 Dr. Mowchun did not render an opinion regarding Lambert’s functional capacity.

17 record.” Tr. 26. The ALJ also explained, however, that he was

adopting Van Saun’s opinion with respect to the tremor-related

limitations because they were not addressed by Dr. Hom but were

consistent with Dr. Mowchun’s exam records. Tr. 26. Thus, the

components of the ALJ’s RFC finding relating to Lambert’s

inability to write, competitively type, and repetitively handle,

as taken directly from Van Saun’s evaluation, are also supported

by substantial evidence.

Lambert argues that the ALJ’s analysis was flawed for two

reasons. Both are without merit. First, he challenges the

ALJ’s consideration of Dr. Mowchun’s examination notes as

discussed above. He argues that key components of Dr. Mowchun’s

notes relating to his hand function were omitted from the ALJ’s

step-four discussion. See Doc. No. 6 at 9-10. Specifically, he

refers to the results of the Electromyogram (“EMG”) nerve

conduction studies noted by Dr. Mowchun, which showed “reduced

amplitude distally” and “significantly reduced” conduction

velocity across Lambert’s right wrist. Doc. No. 6 at 10 (citing

Tr. 342-43). Although he accurately points out that the ALJ’s

written decision does not recite every specific finding

contained in Dr. Mowchun’s examination notes, compare Tr. 23,

with Tr. 342-43, Lambert simply fails to demonstrate any legal

error in those omissions. The ALJ was not obligated to “address

every piece of evidence in the administrative record.” See

18 Lord,

. As long as an ALJ’s decision is

supported by substantial evidence, it need only “‘take into

account whatever in the record fairly detracts from its

weight.’” See Diaz v. Sec’y of Health & Human Servs.,

(D. P.R. 1992) (quoting Universal Camera Corp. v.

Nat’l Lab. Relations Bd.,

(1951)). Thus, an

ALJ need not address any particular piece of evidence if it

would be cumulative of that already discussed. See Rodriguez,

,

(per curiam, table

decision). The ALJ’s discussion of Dr. Mowchun’s examination

notes was more than sufficient to satisfy his obligations. The

ALJ devoted a full paragraph to Dr. Mowchun’s findings from his

only examination of Lambert in April 2016. Tr. 23. Although he

omitted mention of the specific results of the nerve conduction

studies, as Lambert claims, the ALJ explicitly considered Dr.

Mowchun’s conclusion that those results were “consistent with

CMT, with severe generalized peripheral neuropathy.” Tr. 23,

343. Moreover, Dr. Mowchun’s assessment of those reports was

consistent with Dr. Hom’s opinion, which was given great weight

by the ALJ, that Lambert suffered from “severe” peripheral

neuropathy in his upper extremities. See Tr. 89. Thus,

specific recitation of the underlying studies on which Dr.

Mowchun’s assessment was based would have been unnecessarily

cumulative, and I find no error. See Quigley v. Barnhart, 224

19 F. Supp. 2d. 357, 369 (D. Mass. 2002) (“[T]here is a presumption

that an ALJ has considered all of the evidence before him.”)

Lambert also argues that the ALJ erred by failing to

incorporate manipulative limitations into the RFC “that fully

encompass the severity of” Lambert’s impairment. See Doc. No. 6

at 11. This argument warrants little discussion, as Lambert has

not presented any evidence supporting further manipulative

limitations than those reflected in the ALJ’s RFC. The only

evidence in the record supporting any manipulative limitations

is Van Saun’s functional evaluation finding that Lambert’s “fine

and gross motor coordination would prevent him from performing

tasks such as competitively-paced keyboarding, handwriting,

[and] repetitive handling tasks.” Tr. 353. The ALJ accurately

incorporated those three limitations directly into his RFC. His

finding with respect to those limitations is therefore supported

by substantial evidence. To the extent Lambert argues that Van

Saun’s reference to those restrictions was only used as a series

of “examples” and that the ALJ should have “expanded” upon them

by adopting broader restrictions, his argument is unavailing.

He cites to no authority to support his assertion that an ALJ

under these circumstances is obligated to “expand” upon specific

functional limitations to make them more general. In fact, as a

lay person, an ALJ is typically unqualified to adopt functional

limitations beyond those supported by expert evidence. See

20 Manso-Pizarro v. Sec’y of Health & Human Servs.,

(1st Cir. 1996); Jenna v. Colvin,

(ALJ’s

finding that claimant was limited in use of his left hand was

unsupported by substantial evidence where no credited medical

opinion addressed hand limitations). Thus, I find no error.

B. Apparent Inconsistencies Between VE Testimony & DOT

Next, Lambert argues that the ALJ erred in relying on the

VE’s testimony to support his finding that Lambert could perform

certain representative jobs at step five because there were

apparent inconsistencies between the VE’s testimony and the

description of those jobs contained in the DOT. Although I

agree with Lambert that the ALJ erred in failing to clarify one

of those alleged inconsistencies, the error was harmless for the

reasons that follow.

In considering “occupational information,” i.e. whether

jobs exist that a claimant can perform, the SSA relies upon the

DOT and related publications “for information about the

requirements of work in the national economy.” See SSR 00-4P,

, at *2 (S.S.A. Dec. 4, 2000). It will also

typically consider vocational-expert testimony about the

requirements of a job or occupation. “When there is an apparent

unresolved conflict between” the VE’s evidence and occupational

information in the DOT, the ALJ “must elicit a reasonable

explanation” from the VE before relying on that evidence to

21 support a determination as to the claimant’s disability. See

The ALJ has an affirmative duty to ask the VE whether his

or her testimony conflicts with the DOT, and the obligation to

resolve any such conflict before relying upon the conflicted

evidence. Id. at *2, *4. Although the ALJ may resolve the

conflict in favor of the VE if a reasonable explanation is

provided, he or she may not rely upon the VE’s evidence “if that

evidence is based on underlying assumptions or definitions that

are inconsistent with [applicable] regulatory policies or

definitions.” See id. at *2-3. The ALJ must then explain how

“he or she resolved the conflict” in the written decision. See

id. at *4.

Here, Lambert alleges that there was an apparent

inconsistency between his inability to “repetitive[ly]

handl[e],” as assumed in the hypothetical considered by the VE,

and the DOT’s description of the jobs that the VE said Lambert

could still perform. Because the ALJ never affirmatively asked

the VE to clarify the inconsistency and resolved it accordingly,

Lambert argues that the ALJ erred in relying upon the VE’s

testimony and his step-five finding is therefore unsupported by

substantial evidence. The jobs discussed by the VE consisted of

telephone solicitor, eye-glass assembler, and ticket seller.

According to the DOT, each job requires the ability to perform

either occasional, frequent, or constant “handling,”

22 respectively. See DOT 299.357-014,

(“Telephone

Solicitor”); DOT 713.687-018,

(“Final Assembler,

Optical Goods”); DOT 211.467-030,

(“Ticket

Seller”).

The DOT describes how frequently job requirements must be

performed by exclusively using those three terms. In its

“companion publication,” the Selected Characteristics of

Occupations (“SCO”), see

(d); SSR 00-4P,

(Dec. 4, 2000), at *1, all three frequencies are

specifically defined. See Selected Characteristics of

Occupations Defined in the Revised Dictionary of Occupational

Therapy (“SCO”), App. C. “Occasional handling” requires the

ability to handle “up to 1/3 of the time, whereas “frequent

handling” requires the ability to handle “from 1/3 to 2/3 of the

time,” and “constant handling” requires the ability to handle

“2/3 or more of the time.”

“Repetitive handling,” which is not used in the DOT, was

defined by the ALJ at the hearing to mean “the ability to do so

for a long prolonged period, over and over,” see Tr. 68, and the

ALJ explicitly differentiated it from occasional and frequent.

Thus, as the Acting Commissioner appears to concede, see

Doc. No. 8-1 at 8-9, “repetitive handling,” as its natural

meaning would suggest, is consistent, if not synonymous with

“constant handling.” See, e.g., Cunningham v. Colvin,

Supp. 3d 26, 33-34 (D. D.C. 2014) (ALJ’s finding that claimant

must avoid “constant handling and repetitive fine manipulation”

not inconsistent with expert opinion that she should avoid

“repetitive handling”). Naturally, performing a task over and

over would amount to “2/3 or more of the time” under most

circumstances. Thus, the VE’s opinion that Lambert could work

as a ticket seller despite his inability to constantly handle

does appear to conflict with the DOT’s description of that

position, which requires constant handling. See DOT 211.467-

030,

(“Ticket Seller”). The ALJ therefore

plainly erred in failing to ask the VE to clarify that

discrepancy and in failing to resolve it in accordance with SSR

00-4p. See SSR 00-4p,

, at *2-4. Consequently,

he also erred in relying upon that evidence in making his final

disability determination. See

But, this error does not

necessarily warrant remand.

The ALJ did not solely rely upon the VE’s ticket-taker

testimony in finding that Lambert was not disabled. The VE also

opined that a hypothetical person matching Lambert’s description

could perform the representative jobs of “telephone solicitor”

and “final assembler [of] optical goods,” both existing

nationally in 72,000 and 14,000 respective positions. Tr. 70-

71; see Tr. 27. The ALJ cited this evidence in finding that

Lambert was capable of making a successful adjustment to other

24 work and was therefore “not disabled.” Tr. 27. His error in

relying upon the VE’s testimony regarding the “ticket taker”

opinion does not necessarily taint his reliance upon the opinion

regarding these two other positions. For instance, the DOT

describes telephone solicitor as requiring only “occasional

handling,” and eye-glass assembler as requiring only “frequent

handling.” See DOT 299.357-014,

(“Telephone

Solicitor”); DOT 713.687-018,

(“Final Assembler,

Optical Goods”). Because “repetitive” is essentially synonymous

with “constant,” the inability to repetitively handle would not

necessarily preclude the performance of occasional or frequent

handling, as they are both less demanding frequencies. See

Selected Characteristics of Occupations Defined in the Revised

Dictionary of Occupational Therapy (“SCO”), App. C. Not only

did the ALJ explicitly disassociate his use of the term

“repetitive” with “frequent” or “occasional,” see Tr. 68, but

even on its face, a restriction from “repetitive performance” of

an activity does not necessarily preclude “frequent” or

“occasional” performance of that activity. See, e.g., LeFevers

v. Comm’r of Soc. Sec., 476 F. Appx 610, 611 (6th Cir. 2012)

(claimant’s inability to perform “repetitive” lifting did not

preclude claimant from performing “frequent” lifting); Renfrow

v. Astrue,

(8th Cir. 2007) (“[F]requent

reaching and handling requirements are not equivalent to

25 repetitive use of the right hand.”). Thus, the VE’s opinion

that a hypothetical person matching Lambert’s description could

perform work as a telephone solicitor or eye-glass assembler

despite an inability to “repetitively handle” is not in conflict

with the descriptions of those jobs appearing in the DOT.

Accordingly, the ALJ was not precluded from relying on the VE’s

testimony with respect to those positions. 5

Furthermore, that portion of the VE’s testimony alone

establishes substantial evidence for the ALJ’s step-five

findings. At step five, the SSA need only identify a single

occupation existing in significant numbers in the national

economy that the claimant can perform to establish that he or

she is not disabled.

(b). “Significant

numbers” have been found at levels lower than 200. See, e.g.,

Brown v. Barnhart, No. 03–44–B–W,

, at *5–6 (D.

Me. Mar. 3, 2004) adopted by

(D. Me. Apr. 5,

2004) and aff'd,

(1st Cir. 2005) (collecting

cases where numbers were sufficiently “significant”). Here, the

VE testified that a person with the limitations identified in

Lambert’s RFC could perform the job of telephone solicitor and

5 Because there was no conflict between the DOT and this portion of the VE’s testimony, the ALJ’s failure to ask the VE whether any conflict existed was harmless, see Renfrow,

(8th Cir. 2007), and nothing would have prevented him from resting his holding on that evidence alone.

26 that 72,000 such positions existed nationally. Tr. 70. He also

testified that such a person could perform work as an eye-glass

assembler, and that 14,000 of those jobs existed nationally.

Tr. 70-71. This evidence of 86,000 positions nationally was

more than sufficient to establish the existence of a

“significant number” of jobs that Lambert could perform, see,

e.g., Jones v. Barnhart,

(8th Cir. 2003)

(75,000 jobs nationwide establishes existence of “substantial

gainful work which exists in the national economy), and the ALJ

explicitly cited to this testimony in support of his step-five

conclusion. See Tr. 27. Therefore, even if the ALJ had

appropriately identified the aforementioned conflict and

resolved it by finding that Lambert was unable to perform work

as a ticket taker, his finding that Lambert was capable of

making an adjustment to jobs existing in significant national

numbers would have still been supported by substantial evidence.

Accordingly, his error in failing to discover and resolve the

aforementioned ticket-taker conflict is harmless, and remand is

inappropriate under these circumstances.

V. CONCLUSION

Because I find that the ALJ’s RFC is supported by

substantial evidence and that he derived his findings

appropriately, for the reasons set forth above, I grant the

27 Acting Commissioner’s motion to affirm (Doc. No. 8), and I deny

Lambert’s motion to reverse and remand (Doc. No. 6). The clerk

is directed to enter judgment accordingly and close the case.

SO ORDERED.

/s/ Paul Barbadoro_________ Paul Barbadoro United States District Judge

September 5, 2018

cc: Craig A. Jarvis, Esq. Robert J. Rabuck, Esq.

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