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Rosado v. Berryhill

United States District Court, E.D. Virginia, Newport News Division

January 22, 2018

REINALDO CHERBONY ROSADO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard Judge.

         Plaintiff Reinaldo Cherbony Rosado ("Plaintiff) filed a complaint, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), that seeks judicial review of the final decision of the Defendant, Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner"), which denied Plaintiffs claim for Disability Insurance Benefits ("DIB") pursuant to Title II, and his claim for Supplemental Social Security Income ("SSI") pursuant to Title XVI, of the Social Security Act. Both parties have filed Motions for Summary Judgment, ECF Nos. 16 and 20, with briefs in support, ECF Nos. 17 and 21, which are now ready for recommended resolution.

         This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS the Commissioner's Motion for Summary Judgment, ECF No. 20, be DENIED, Plaintiffs Motion for Summary Judgment, ECF No. 16, be GRANTED to the extent it seeks reversal and remand of the Commissioner's decision, and DENIED to the extent that it seeks entry of an order directing the award of benefits, and the Commissioner's decision be VACATED and REMANDED.

         I. PROCEDURAL BACKGROUND

         Plaintiff filed an application for a period of disability and disability insurance benefits on February 18, 2015, alleging that he became disabled on May 3, 2014 due to diverticulitis[1], posttraumatic stress disorder ("PTSD"), degenerative disc disease ("DDD") of the cervical and lumbar spine, and muscle spasms. R. at 13, 105-06, 219-33, 268.[2] Plaintiffs application was initially denied on May 28, 2015, R. at 132-42, and denied again upon reconsideration on June 23, 2015, R. at 144-50. Plaintiff requested a hearing in front of an Administrative Law Judge, which was held on October 28, 2015 before Administrative Law Judge Tom Duann ("the ALJ"). R. at 13, 71-104. A supplemental hearing was held on March 21, 2016. R. at 37-70. The ALJ issued his decision on May 17, 2016, denying Plaintiffs application. R. at 10-36. On September 20, 2016, the Appeals Council for the Office of Disability and Adjudication ("Appeals Council") denied Plaintiffs request for review of the ALJ's decision. R. at 1-3. After exhausting his administrative remedies, Plaintiff filed his Complaint for judicial review of the Commissioner's final decision on December 14, 2016.[3] ECF No. 1. The Commissioner filed an Answer on February 27, 2017. ECF No. 8. Both parties filed Motions for Summary Judgment, ECF Nos. 16 and 20, and Plaintiff filed a Reply in support of his Motion, ECF No. 22, and the matter is now ripe for recommended adjudication.

         II. RELEVANT FACTUAL BACKGROUND

         In his application, filed February 18, 2015, Plaintiff alleges disability due to diverticulitis, post-traumatic stress disorder ("PTSD"), degenerative disc disease of the lumbosacral and cervical spine, muscle spasms, insomnia, major depressive disorder, paralysis of sciatic nerve, sleep apnea, degenerative arthritis of the spine, and second degree burns, with a disability onset date of May 3, 2014. R. at 13, 283.[4] At the time of the ALJ's May 17, 2016 decision, Plaintiff was an English-speaking, forty seven year old man with a high school education who served in the United States Army from October 16, 1990 until his retirement and Honorable Discharge on January 31, 2011. R. at 75, 77, 227, 412, 42l.[5] At the first hearing held on October 28 2015, Plaintiff appeared, was represented by an attorney, Beverly Taylor, and supplemented his medical records by providing additional information via testimony. An impartial Vocational Expert ("VE"), Robert Edwards ("Mr. Edwards") also testified. R. at 71-104. On November 13, 2015, Plaintiff filed written objections to the testimony of Mr. Edwards, R. at 342-67, after indicating the intention to lodge such objections at the beginning of the October 28, 2015 hearing, R. at 94. At the supplemental hearing[6] on March 21, 2016, Plaintiff was represented by Jacqueline Hartley, [7] an attorney employed by Citizens Disability, LLC. R. at 37-70. Plaintiff was present but did not testify at the supplemental hearing, however Paula Santagati[8], an employee of Citizens Disability, LLC, did appear telephonically to provide vocational expert testimony in support of Plaintiff s claim. R. at 37-49. Mr. Edwards also appeared and provided supplemental testimony. R. at 50-70. The record included the following factual background for the ALJ to review:

         Plaintiff resides in Newport News, Virginia with his wife, Samantha Cherbony and one of his four children. R. at 107, 228, 414, 421. He is a high school graduate and has completed at least two years of college. R. at 421. During his career in the United States Army, Plaintiff served as a cargo specialist, in a position known as a "stevedore." R. at 77. Plaintiff served in five combat deployments from 2003 through 2008. Plaintiff reported being deployed on four tours to Iraq and one tour to Afghanistan in 2005, resulting in at least two instances of head injury. R. at 412, 421, 496. In May or June of 2003, while on deployment in Iraq, Plaintiff was in a Humvee that flipped over, resulting in a self-reported loss of consciousness, but Plaintiff did not require treatment and/or evaluation by either a combat lifesaver or a hospital. R. at 496. The second instance occurred in or about February 2006, while Plaintiff was stationed in Afghanistan. Plaintiff was again a passenger in a Humvee when a roadside IED exploded, after which Plaintiff reportedly lost consciousness, felt dazed for about a week, and was discharged after a few hours of being seen in the hospital at Camp Anaconda. R. at 496. The medical records also include Plaintiffs report of falling of a crane in 2004, but provide no further details. R. at 453, 587. Plaintiff eventually returned to the United States and underwent lumbar surgery (L5-S1 hemilaminectomy) in 2004 to treat his chronic lower back pain, R. at 457, 468, after which Plaintiff was given a "permanent profile, a P3" and placed on "light duty" with "no physical training and no lifting, " a status which remained in place for the duration of his career until his retirement and Honorable Discharge in January 2011 as an E7. R. at 86-87, 490. Plaintiff underwent cervical spine stabilization surgery on December 13, 2012. R. at 574. Plaintiff testified that he struggles with chronic neck and back pain[9], nerve pain, his legs "giving out, " memory issues, difficulty concentrating, nightmares, flashbacks, blackouts, and daily migraines, and takes medication for anxiety and depression. R. at 76-90, 93. His lapses in memory and blackouts are worsened by loud noises and the presence of other people, including his own children, whose names he sometimes forgets. R. at 80-82. Plaintiff attends therapy sessions through the Department of Veteran Affairs ("VA") to deal with his PTSD, depression, and insomnia, and receives additional support and mentorship through the Wounded Warriors program and participation in a Fort Eustis church. R. at 93. Plaintiffs wife helps him with ninety to ninety-five percent of his daily care, including driving him to appointments, showering, shaving, dressing, chores, and using the bathroom, etc. R. at 85-89. Following his retirement from the Army in January 2011 and until May 2014, Plaintiff worked as a biomedical technician for DaVita Dialysis, performing preventative maintenance and repairs on the medical equipment aboard ships. R. at 79, 90. Plaintiff testified that he stopped working because his memory failures rendered him incapable of appropriately performing his job duties, and because he was missing many days of work because Plaintiff required days to recuperate from the exertion of both the actual work and medical appointments and treatments, and the pain and absences became progressively worse. R. at 79-80, 90-92.

         Department of Veteran Affairs ("VA") Disability Ratings

         Between February 1, 2011 and December 11, 2012, Plaintiffs disability rating was seventy percent (70%). R. at 255. Between December 12, 2012 and March 1, 2013, Plaintiffs disability rating was one hundred percent (100%).[10] R. at 255. Between March 1, 2013 and June 26, 2014, a time period which included the commencement of his alleged disability period on May 3, 2014 and during which time Plaintiff worked as a biomedical technician, Plaintiff received a total disability rating of eighty percent (80%). R. at 255. Subsequently, on June 26, 2014, Plaintiffs disability rating was increased to ninety percent (90%) with an additional individual seventy percent (70%) rating for Plaintiffs PTSD. R. at 255, 410, 416. On or about September 8, 2015, the VA assigned disability ratings of seventy percent (70%) to PTSD, fifty percent (50%) to sleep apnea, forty percent (40%) to DDD of the lumbar spine, twenty percent (20%) to DDD of the cervical spine, forty percent (40%) to right leg radiculopathy, resulting in a total disability rating of one hundred percent (100%) commencing May 21, 2015. R. at 249-56. When explaining the seventy percent (70%) rating for PTSD, the VA indicated that Plaintiff would have difficulty adapting to work, difficulty in establishing and maintaining effective work and social relationships, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. R. at 254.

         Medical Records - Physical Health

         Plaintiffs medical records reveal a copious history of treatment with the Emergency Room, Primary Care Providers, and other related treatment at the VA Medical Center in Hampton, Virginia ("VAMC"), the bulk of which occurred after May 3, 2014, Plaintiffs alleged onset disability date.[11] On January 2, 2014, Plaintiff presented to the Emergency Room where he reported chronic, throbbing lower back pain (6 out of 10). R. at 564-67 (Exhibit IF). Plaintiff was discharged with a note excusing him from work until January 6, 2014, prescriptions for pain killers and muscle relaxers, and was instructed to follow up with his primary care provider if symptoms did not improve and to return to the Emergency Room if the symptoms worsened. R. at 559-62. On July 22, 2014, Plaintiff presented to VAMC Primary Care Clinic for treatment with Shubhada Iruvanti ("Dr. Iruvanti") complaining of chronic neck and back pain and depression. Dr. Iruvanti diagnosed Plaintiff with cervical and lumbosacral DDD, carpal tunnel syndrome, trigeminal neuralgia, sleep apnea, and depression. R. at 551-54. That day, x-rays of Plaintiffs cervical and lumbar spine were taken and revealed no acute cervical status change post C3-C7 fusion, but did indicate degenerative changes in his lumbar spine at ¶ 2-L3 and L5-Sl. R. at 500-02.

         On October 16, 2014, and at the request of Dr. David Powell ("Dr. Powell"), Plaintiff presented to Kenneth Waller, M.D., Staff Neurologist and Spinal Cord Injury Physician[12] ("Dr. Waller") for a polytrauma consult during which he reported memory difficulty, recounted the two Humvee incidents, and self-reported symptoms such as headaches, vertigo, intermittent vision loss, tinnitus, bilateral leg weakness and numbness/tingling, depression, lack of energy, feelings of guilt/helplessness/worthlessness, poor sleep, poor concentration, suicidal ideation and abnormal psychomotor activity. R. at 495-509. Dr. Waller's impressions were that Plaintiff suffered from migraine headaches, healed concussions/traumatic brain injuries, obstructive sleep apnea, PTSD, and urged Plaintiff to quit smoking. R. at 508-09.

         On November 17, 2014, Plaintiff returned to the VAMC Primary Care Clinic pursuant to a walk-in referral from the Emergency Room, complaining of chronic lower back pain (8 out of 10), but he was able to ambulate without assistance. R. at 478-84. Dr. Iruvanti directed Plaintiff to have an MRI of his lumbar spine performed, provided Plaintiff with a prescription for increased dosage of meloxicam (a NSAID - nonsteroidal anti-inflammatory drug), as well as a muscle relaxer to help with muscle spasms, and counseled Plaintiff on the possible sedative results due to interaction with Plaintiffs other four prescriptions for antidepressant/mood stabilizer medications. Dr. Iruvanti also offered Plaintiff a toradol injection for the back pain, which Plaintiff declined. R. at 478. Pursuant to Dr. Iruvanti's directive, Plaintiff submitted to an MRI of his lumbar spine on December 11, 2015 which revealed broad-based disc protrusion and moderate to severe foraminal narrowing. R. at 468, 471.

         On March 6, 2015, Plaintiff visited Dr. Mikiso Mizuki, Jr., a VAMC physiatrist ("Dr. Mizuki") for a physical medicine rehab consultation[13], at which time Plaintiff reported chronic neck and back pain, as well as constant paresthesia in bilateral lower extremities, aggravated by prolonged sitting, standing, and ambulation, resulting in tripping and dragging of his left foot. Dr. Mizuki noted that Plaintiff exhibited a "mildly depressed" and "more frustrated" affect and lumbar spine tenderness. R. at 464-68. Following his evaluation of Plaintiff, Dr. Mizuki documented the following impressions: With regards to Plaintiffs cervical pain, Dr. Mizuki found "[n]o evidence of radiculopathy prior to his 2012 cervical surgery" and indicated that Plaintiff was a candidate for "ongoing conservative treatment of his pain." R. at 467. With respect to Plaintiffs chronic lower back pain ("CLBP"), Dr. Mizuki found no evidence of lumbar radiculopathy, but recommended against invasive procedures, in light of the failure of at least twelve epidural steroid injections ("ESI") (administered between 2008 and 2012) to provide any pain relief. R. at 465, 467. Dr. Mizuki noted that Plaintiff was positive for tobacco dependence, sleep disturbance, and dysthymia.[14] R. at 467. Dr. Mizuki also prescribed Plaintiff multiple pain relief medications, including Tramadol and Vicodin, and recommended yoga three to five times a week as well as a home exercise program focusing on developing core strength. R. at 467.

         On June 30, 2015, Plaintiff returned to Dr. Iruvanti complaining of worsening back pain that radiated to his lower extremities and to report that the current pain medication regime was not working. R. at 660-70 (Exhibit 4F). At that time, Plaintiff and his wife communicated their disagreement with Dr. Mizuki's plan of care, and Dr. Iruvanti referred Plaintiff to a non-VA neurosurgical consult with Hampton Roads Neurosurgical and Spine Specialists. R. at 664. Pursuant to that referral, Plaintiff presented to Nurse Practitioner Cindy Kirkland ("NP Kirkland") and Dr. Jackson Salvant, Jr. ("Dr. Salvant") on August 27, 2015. R. at 636-38 (Exhibit 3F). NP Kirkland and Dr. Salvant found that Plaintiffs MRI was abnormal and discussed alternative treatment options to include surgery, but found that at least a trial period of lumbar ESI was "indicated as part of conservative care for his condition." R. at 638. Plaintiff was also provided a one-time prescription for Percocet to be taken "as needed" based on NP Kirkland's observation that Plaintiff was "extremely uncomfortable today." R. at 638.

         Medical Records - Mental Health

         Plaintiffs medical records are also significant for mental health treatment through VAMC, the majority of which occurred subsequent to May 3, 2014.[15] On June 12, 2014, Plaintiff presented to his case manager and social worker, Noel Craig ("Mr. Craig"), where he exhibited a "depress [sic] mood" and requested therapy for PTSD. R. at 558. During the visit, Plaintiff indicated that he was struggling with memory issues, and was short-tempered and angry and became tearful when recounting his combat experiences. R. at 558.

         Plaintiff was referred to Dr. Courtney Podesta, VAMC Staff Psychologist ("Dr. Podesta") for "depression." R. at 539. On or about August 7, 2014, Plaintiff presented to Dr. Podesta's office for an intake assessment at which time Plaintiff expressed his chief complaints with "memory loss" as his main concern and sleep difficulty, anxiety, and depression as secondary concerns. R. at 539. During the assessment, Plaintiff shared that the onset of his mental health symptoms occurred in 2010 after returning from a deployment, and included suicidal ideations on at least two occasions, difficulty sleeping, memory lapses/forgetfulness, depression, low mood, and the presence of auditory hallucinations manifesting as hearing someone speaking to him while he was in the bathroom. R. at 539-45. Dr. Podesta diagnosed Plaintiff with PTSD and recurrent Major Depressive Disorder ("MDD"), unspecified. In addition to developing a treatment plan which included a referral to PCT (VAMC's outpatient PTSD clinic)[16] for mental health assessment/treatment and providing Plaintiff with crisis prevention numbers, Dr. Podesta referred Plaintiff to a Neuropsychologist due to Plaintiffs self-reported ongoing memory impairment. R. at 544.

         On or about September 4, 2014, pursuant to Dr. Podesta's referral, Plaintiff saw Margaret R. Johnson, LCSW ("Ms. Johnson") for a mental health consultation/evaluation, R. at 527-31, at which time Plaintiffs chief complaint was memorialized as "I need to sleep, " R. at 527. Plaintiff relayed specific military related traumatic stressors including dead Iraqi children. R. at 527. Ms. Johnson's diagnosis impressions included chronic PTSD and moderate, recurrent MDD. R. at 530. Ms. Johnson's initial treatment plan included recommended enrollment in the PCT clinic, continued therapy with Ms. Johnson, and making a medication management appointment. R. at 530. Between September and October 2014, Plaintiff participated in three PTSD therapy sessions with Ms. Johnson, R. at 492-93, 511-14 (September 11, 2014), and in October 2014, Ms. Johnson reported that Plaintiff was "making progress towards his goals, " R. at 493 (October 23, 2014), 512 (October 8, 2014). Plaintiff did not attend any group therapy sessions in November 2014. R. at 484. It appears that Plaintiff attended his next therapy session on May 8, 2015. R. at 612-13. Plaintiff attended three out of four scheduled therapy sessions in August with Dr. Joanne Shovlin Saal, Staff Psychologist ("Dr. Shovlin"). R. at 658-59 (August 4, 2015), 656-57 (August 11, 2015), 655-56 (August 25, 2015). Dr. Shovlin indicated Plaintiff was "making progress towards goals." R. at 657.

         On or about September 9, 2014, pursuant to the referral from Dr. Podesta, Plaintiff presented to Dr. Powell, a Rehabilitation Neuropsychologist for the purpose of undergoing a Neuropsychological Evaluation. R. at 519-26. Dr. Powell diagnosed Plaintiff with a personal history of traumatic brain injury, insomnia with sleep apnea (unspecified), chronic headache disorder, and post-traumatic stress disorder and recommended that Plaintiff maintain regular follow-up appointments with Ms. Johnson, prompt referral for medication evaluation given severity of presenting symptoms and past medial history related to pain, referral for a Polytrauma Consult to further screen his concussive history and obtain further clinical guidance regarding his chronic headaches, but Dr. Powell did not recommend follow-up or repeated neuropsychological evaluations based on current results unless subsequent treatment efforts proved ineffective in mitigating attentional weaknesses and improving daily function. R. at 526.

         On September 11, 2014, Plaintiff presented to the Emergency Room for a psychological medication evaluation with Psychiatric Nurse Practitioner Catherine Stuart, ("NP Stuart"), R. at 515-18., pursuant to Dr. Powell's directive, R. at 526. NP Stuart found Plaintiff to be "solidly depressed" and in "need [of] SSRI on board ... to stop the night terrors."[17] R. at 516-17. Plaintiff returned to NP Stuart on October 8, 2014 while on his way to a group therapy session to advise NP Stuart of his improvement in energy and reduction in tearfulness and nightmares. R. at 510.

         On October 28, 2014, Plaintiff Dr. Hasan Memon, Resident Psychiatrist ("Dr. Memon") and Barin Vyas, Supervising Staff Psychiatrist ("Dr. Vyas") assumed psychiatric care of Plaintiff through the PCT outpatient clinic. R. at 486-92. Dr. Memon reaffirmed Plaintiffs previous diagnoses of PTSD and recurrent MDD, unspecified, R. at 490, and quoted Plaintiffs chief complaint as being "I lose track of things, " R. at 488. Pursuant to the providers' stated goal of stabilizing Plaintiffs "behavioral, cognitive, emotional and/or physical symptoms while increasing the ability to function on a daily basis, " the PCT clinic providers effectuated a treatment plan which included switching medication for management of PTSD and MDD, prescribing additional medication for insomnia, commencing of lidocaine gel for management of back pain, ordering basic labs for evaluation of Plaintiffs mood, and began Plaintiff on a smoking cessation plan to include nicotine patches and gum replacement. R. at 490.

         On January 27, 2015, Plaintiff returned to Dr. Memon for a follow-up visit for "medication management and supportive psychotherapy." R. at 471. Plaintiff reported severe pain in his back that was "so bad he doesn't know whether to live or not sometimes." R. at 471. Plaintiffs wife also informed Dr. Memon that Plaintiff continued to have "PTSD related symptoms including intrusive thoughts and nightmares" and also reported that Plaintiffs "irritability remained high." R. at 471.

         State Agency Medical Opinions

         Two state agency physician expert medical consultants, Dr. Joseph Familant, M.D. ("Dr. Familant") and Dr. Bert Spetzler, M.D. ("Dr. Spetzler") reviewed evidence in May and June 2015, respectively, and offered opinions regarding Plaintiffs physical functional ability. R. at 112-13, 123-24. Both Dr. Familant and Dr. Spetzler opined that Plaintiff could perform light work (including lifting/carrying twenty pounds frequently and ten pounds occasionally, and sit and stand or walk for at least six hours in a workday), but was limited to occasional stooping, kneeling, crouching, or crawling and no climbing ladders, ropes, and scaffolding. R. at 112-13, 123-24. With respect to Plaintiffs psychological functional ability, two state agency expert psychiatric/psychological consultants, Dr. Hillery Lake, M.D. ("Dr. Lake") and Dr. Jo McClain, PsyD ("Dr. McClain") reviewed the evidence in May and June 2015, respectively. R. at 112-13, 125-26. Both Dr. Lake and Dr. McClain agreed that Plaintiff could perform at least simple, routine tasks and interact in a non-demanding social environment despite some limitations in concentration and irritability. R. at 113, 126.

         Vocational Expert Testimony

         As previously noted, the ALJ held two hearings in this matter. At the first, on October 28, 2015, Mr. Edwards appeared as an impartial vocational expert witness, and was presented with three hypotheticals from the ALJ. R. at 94-102. In the first hypothetical, the ALJ asked Mr. Edwards whether, assuming a hypothetical individual with the same age, education, and work experience of Plaintiff, who could perform light work involving no climbing of ladders, ropes, or scaffolds, occasionally stooping, kneeling crouching, and crawling, simple, routine, repetitive tasks due to limitations in concentration, persistence, and pace, and had the ability to occasionally interact with the public, co-workers, and supervisors, employment opportunities were available to such an individual. R. at 98. Mr. Edwards responded affirmatively and provided examples of light unskilled jobs including that of a sorter, an office helper, or a small products assembler. R. at 98-99. For the second hypothetical, the ALJ asked Mr. Edwards to advise whether any jobs were available if the same limitations applied, but with the additional limitations that "the individual can only remain off task, frequently, in a typical day, due to mental symptom flare ups, " to which Mr. Edwards responded that there were none, citing the need to maintain at least eighty-five percent (85%) productivity with no more than thirty total minutes of "off task activity." R. at 99 ("No, your honor."). For the third hypothetical, the ALJ asked Mr. Edwards to assume the same limitations as in the first hypothetical (light work involving no climbing of ladders, ropes, or scaffolds, occasionally stooping, kneeling crouching, and crawling, simple, routine, repetitive tasks due to limitations in concentration, persistence, and pace, and had the ability to occasionally interact with the public, co-workers, and supervisors), but with the additional limitation of only occasional grasping and fingering. R. at 100-02. Mr. Edwards testified that there were several light, unskilled jobs available including as an information clerk, as an unarmed security guard (unskilled due to the lack of contact with people), and as an inspector. R. at 101-02. Mr. Edwards also testified that like the second hypothetical, if an individual needed to be off task for more than thirty minutes, then the jobs stated in response to the third hypothetical would be similarly unavailable. R. at 102.

         At the supplemental hearing on March 21, 2016, Plaintiff presented the testimony of Ms. Santagati, who opined that based on her experience, the limitation of only occasional interaction with the public, co-workers, and supervisors would preclude Plaintiffs performance of all work given that in "most if not all companies" and "even the most entry level jobs have a probationary period" for new employees that requires more than occasional social interaction during which they work closely with co-workers and supervisors to receive training and guidance. R. at 44-48. Ms. Santagati was also asked whether the descriptions of the six jobs suggested by Mr. Edwards' previous testimony, (including a sorter, an office helper, a small products assembler, an information clerk, an unarmed security guard, and an inspector) had undergone recent changes or updates. R. at 44-46. Ms. Santagati testified that for those stated jobs, the last update was to unarmed security guard, which was updated in 1988, whereas the other position descriptions had been last updated in 1977 (information clerk) and 1981 (assembler, office helper, sorter). R. at 45. Ms. Santagati stated that the failure to update these positions meant that practically, the job duties had expanded beyond the outdated Dictionary of Occupational Titles ("DOT") descriptions because companies needed even unskilled or low skilled workers to do more than the discrete tasks outlined by the DOT, and that with respect to assembler and sorter positions, many of these human positions had been replaced by automated machinations. R. at 46-48.

         Mr. Edwards was asked to address Ms. Santagati's testimony regarding the probationary periods, to which Mr. Edwards responded that for simple jobs such as sorter, inspector, small product assembler and office helper, the simplistic, unskilled nature of the position necessarily meant that the probationary or training period would be relatively short and require minimal communication. R. at 50-54, 58-61, 68. Additionally, Mr. Edwards reduced the number of available jobs to account for jobs like a sorter which require slightly greater communication than the minimal communication requirement under the DOT. R. at 52.

         III. THE ALJ'S FINDINGS OF FACT AND ...


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