Purdy v. Berryhill

United States Court of Appeals
For the First Circuit
No. 16-2242
RITA PURDY,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Sarah H. Bohr, with whom Francis M. Jackson was on brief,
for appellant.
Molly E. Carter, Special Assistant United States Attorney,
with whom Richard W. Murphy, Acting United States Attorney, was
on brief, for appellee.
April 3, 2018

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. This is an appeal from the
district court’s affirmance of an administrative law judge’s
finding that the appellant, Rita Purdy, was not disabled and was
thus not entitled to Supplemental Security Income (SSI)
benefits. Although the record of her attempts to demonstrate
disability is a complicated interplay of medical testimony, the
facts to be considered in this appeal may be stated with
relative economy, so far as they bear on the two issues raised
before us: Whether the administrative law judge (ALJ) lapsed
into error in according only slight weight to the testimony of a
physician who treated Purdy for a non-displaced fracture of her
left femur, and whether the ALJ was entitled to rely on evidence
presented by the appellee Commissioner about available jobs that
Purdy was qualified to perform. We affirm on both issues.
I
An applicant for SSI benefits1 bears the burden of
proof at the first four steps of a five-step procedure
1
The Social Security Administration administers two
separate benefits programs for the disabled: the Social Security
Disability Insurance (SSDI) program under Title II of the Social
Security Act and the SSI program under Title XVI of the Act.
Whereas “[e]ligibility for SSDI depends on the insured person’s
contributions and insured status, SSI provides a minimum income
for disabled people based on need.” Dion v. Sec’y of Health &
Human Servs., 823 F.2d 669, 670 (1st Cir. 1987) (citations
omitted).
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established to determine whether an applicant is entitled to
disability benefits. Freeman v. Barnhart, 274 F.3d 606, 608
(1st Cir. 2001) (“The applicant has the burden of production and
proof at the first four steps of the process.”). An applicant
for SSI benefits is disabled “if he is unable 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 twelve months.”
42 U.S.C. § 1382c(a)(3)(A). The impairment must be “of such
severity that [the applicant] 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.” Id. § 1382c(3)(B).
The five-step sequence employed by the Social Security
Administration (the SSA) proceeds as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or
combination of impairments, the application is denied;
3) if the impairment meets the conditions for one of
the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if
the applicant’s “residual functional capacity” is such
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that he or she can still perform past relevant work,
then the application is denied; 5) if the applicant,
given his or her residual functional capacity,
education, work experience, and age, is unable to do
any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (quoting 20
C.F.R. § 416.920 (2001)).
Put differently, even if an applicant fails to show
disability at Step 3 because his impairment does not meet the
conditions of a “listed” impairment in the Federal Regulations,
he may still be eligible for benefits. In particular, if the
applicant’s “residual functional capacity”2 is such that he
cannot perform jobs he performed in the past, “the Commissioner
then has the burden at Step 5 of coming forward with evidence of
specific jobs in the national economy that the applicant can
still perform,” or else a finding of disability is required.
Freeman, 274 F.3d at 608.
II
On October 10, 2011, Purdy filed an application for
SSI benefits, alleging disability due to a total knee
replacement in April 2011; thoracic and lumbar spine
degenerative disc disease; right shoulder rotator cuff bone
spurs; severe migraines, nerve damage, and throat problems;
attention deficit hyperactivity disorder (ADHD) and attention
2An applicant’s residual functional capacity “is the most
[he or she] can still do despite [his or her] limitations.” 20
C.F.R. § 416.945(a)(1).
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deficit disorder; post-traumatic stress disorder; panic
disorder; substance abuse; and learning difficulties. Purdy’s
claim was initially denied on March 19, 2012, and again on
reconsideration. In November 2012, Purdy filed a request for a
hearing, which took place on February 11, 2014. On February 27,
2014, the administrative law judge who presided over Purdy’s
hearing issued a decision finding that Purdy was not disabled
within the meaning of the Social Security Act and denying her
claim.3
At Step 1, the ALJ found that Purdy had not engaged in
substantial gainful activity since filing her application. At
Step 2, the ALJ found that Purdy had the following severe
impairments (i.e., impairments significantly limiting her
ability to perform basic work activities, see 20 C.F.R.
§ 416.922): “status post knee replacement; degenerative disc
disease; right shoulder rotator cuff bone spurs; chronic pain;
dysthymia; anxiety disorder; ADHD; [and] history of substance
abuse in remission.” Addendum to Appellant’s Amended Initial
3
The SSA employs a four-step administrative-review process.
First, the SSA makes an initial determination of eligibility for
benefits. If dissatisfied with that determination, the
applicant may seek reconsideration. If dissatisfied with the
reconsideration determination, the applicant may request a de
novo hearing before an administrative law judge. Finally, the
applicant may appeal the administrative law judge’s
determination to the Appeals Council, which has the discretion
to deny review. See 20 C.F.R. §§ 416.1400, 416.1467. Once the
applicant has exhausted his administrative remedies, he may seek
review in federal court. 42 U.S.C. § 405(g).
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Br. (Add.) 21. The ALJ noted that although Purdy had been
diagnosed with a left hip stress fracture in April 2013,4 the
impairment was not “severe” as there was “no evidence in the
record that it ha[d] persisted or [was] expected to persist for
12 consecutive months as required by 20 CFR §§ 404.1509 and
416.909.” Id. at 21-22.5 At Step 3, the ALJ found that Purdy
did not have an impairment or combination of impairments that
met the conditions for one of the “listed” impairments in the
Social Security regulations. 20 C.F.R. § 416.920(d).
Having determined that Purdy’s impairments did not
meet the conditions for a listed impairment, the ALJ’s next task
was to determine Purdy’s “residual functional capacity based on
all the relevant medical and other evidence in [the] case
record.” 20 C.F.R. § 416.920(e). The ALJ determined that Purdy
retained the residual functional capacity to perform sedentary
work in unskilled jobs with simple instructions and occasional
interaction with others. The ALJ further determined that Purdy
“should never climb ladders, ropes or scaffolds,” “must not use
foot controls,” “must avoid exposure to hazards, such as
unprotected heights,” and could engage in “rare balancing,
4
Presumably, a reference to the injury Purdy’s treating
physician called a fracture of the “left femur.” See 8, infra.
5
The ALJ determined that Purdy’s alleged mental impairments
resulted in only mild or moderate difficulties and did not
entitle her to benefits at Step 3. Add. 22-23. Purdy does not
challenge those determinations here.
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crouching, crawling, kneeling, and climbing of ramps or stairs.”
Add. 23-24.
The ALJ explained that though Purdy claimed that she
was unable to lift, bend, sit, stand, walk, or kneel without
suffering extreme pain, Purdy’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms
[were] not entirely credible.” Add. 25. In particular, Purdy’s
October 2011 “Function Report” indicated that she was able to
cook meals, perform all household chores, go out alone, use
public transportation, shop in stores, manage her finances,
socialize with friends, and attend meetings. These activities,
the ALJ reasoned, established Purdy’s ability to perform
sedentary tasks. The ALJ also observed, based on the notes from
an emergency room visit in April 2012, that “[i]t seems [Purdy]
exaggerates her symptoms and engages in opiate seeking
behavior.” Add. 26.
Significantly for purposes of this appeal, the ALJ
accorded little weight to the opinion of Dr. Michael Kessler as
provided on an SSA-issued form that Dr. Kessler completed
regarding Purdy’s ability to perform work-related activities.
Dr. Kessler found that Purdy could lift or carry less than 10
pounds occasionally (and nothing frequently); could stand or
walk for less than two hours in an eight-hour workday; could sit
for about six hours in an eight-hour workday; was limited in her
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ability to push or pull with her lower extremities; could not
climb, balance, kneel, crouch, crawl, or stoop; and could endure
only limited exposure to vibration and humidity. Dr. Kessler
attributed these limitations in Purdy’s functioning to a
“fracture of [the] left femur [with] delayed union.”
In the ALJ’s view, Dr. Kessler’s opinion was
conclusory and unsubstantiated: Dr. Kessler had “simply check
marked boxes indicating [Purdy] had limitations that would
increase the likelihood of [her] obtaining benefits[,] but did
not explain why those limitations were chosen; in particular, he
gave no examples of objective laboratory findings, symptoms or
other medical evidence to support the conclusions.” Add. 27.
By contrast, the ALJ accorded evidentiary weight to
the findings of the State agency’s non-examining medical and
psychological consultants.6 Those physicians had agreed, based
on their analysis of the evidence in January and September 2012,
respectively, that Purdy was capable of performing sedentary
work within the limitations identified by the ALJ.
6 Pursuant to SSA regulations, State agencies may (and often
do) make the initial disability determination. 20 C.F.R.
§§ 404.1610, 1611, 1613. A medical or psychological consultant
“is a member of a team that makes disability determinations in a
State agency, or . . . a member of a team that makes disability
determinations for [the SSA].” Id. § 404.1616(a),(c) (citations
omitted). The “consultant completes the medical portion of the
case review and any applicable residual functional capacity
assessment.” Id.
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The ALJ completed Step 4 by finding that Purdy had no
past relevant work and went on to Step 5, where she determined
that there were jobs existing in significant numbers in the
national economy that Purdy could perform. That determination
was based on the testimony of an impartial vocational expert
(VE). The ALJ asked the VE to consider whether jobs were
available in the national economy for someone with Purdy’s age
and education who could lift 10 pounds frequently and 20 pounds
occasionally; could stand and walk for two hours in a workday;
could sit for six hours in a workday; could rarely balance,
crouch, crawl, kneel, or climb; could not work around hazards;
could not climb ladders, ropes, or scaffolds; could not operate
foot controls; and who could perform only simple jobs with
simple instructions, limited changes, and only occasional
interaction with the public.7 The VE testified that such an
individual could perform the sedentary, unskilled jobs of
surveillance system monitor (of which she estimated there were
7
The ALJ’s residual functional capacity determination, as
reflected in the hypothetical she posed to the VE, differed from
Dr. Kessler’s in two key respects. First, whereas Dr. Kessler
indicated that Purdy could not frequently lift or carry weight,
the ALJ determined that she could carry up to 10 pounds with
frequency. The ALJ’s determination in that regard was
consistent with that of the agency’s non-examining physicians.
Second, whereas Dr. Kessler indicated that Purdy could stand or
walk for less than two hours in an eight-hour workday, the ALJ
indicated that Purdy could stand or walk for two hours in an
eight-hour workday. These differences were material to the VE,
who testified that if Dr. Kessler’s opinion were accepted and
accurate, there would be no jobs available for Purdy to perform.
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11,000 jobs in the national economy); document preparer (20,000
jobs in the national economy); and stem mounter (1,400 jobs in
the national economy). On the basis of that testimony, the ALJ
found that Purdy was not disabled within the meaning of the
Social Security Act and denied her application.
The SSA’s Appeals Council denied Purdy’s request for
review, rendering the ALJ’s decision the Commissioner’s final
determination, which Purdy then appealed by bringing this action
in federal district court. The magistrate judge recommended
affirming the Commissioner’s decision, and the district court,
on de novo review, adopted the recommendation.
III
We review the district court’s decision to affirm or
reverse a final decision of the Commissioner de novo and the
Commissioner’s underlying decision for substantial evidence and
conformity to relevant law. Seavey, 276 F.3d at 9 (citing 42
U.S.C. § 405(g)). Substantial-evidence review is more
deferential than it might sound to the lay ear: though certainly
“more than a scintilla” of evidence is required to meet the
benchmark, a preponderance of evidence is not.
Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56
(1st Cir. 2003) (internal quotation marks omitted). Rather,
“[w]e must uphold the [Commissioner’s] findings . . . if a
reasonable mind, reviewing the evidence in the record as a
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whole, could accept it as adequate to support [her] conclusion.”
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981) (per curiam). “[I]ssues 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.” Id. (internal quotation marks
omitted).
As mentioned before, Purdy’s first claim of error is
that the ALJ assigned inadequate weight to the opinion of her
treating orthopedic physician, Dr. Kessler, as to her physical
limitations. The ALJ’s factual findings must be supported by
substantial evidence and the legal standards must be correct.
The relevant legal standard for a claim filed before March 27,
2017 (as Purdy’s was) is the rule that a treating physician’s
opinion is controlling if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. § 416.927(c)(2). And even if not
deemed controlling, a treating physician’s opinion is entitled
to weight that reflects the physician’s opportunity for direct
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and continual observation. Id.8 There was, however, no error in
the ALJ’s determination to give “little” weight to Dr. Kessler’s
opinion.
To begin with, Dr. Kessler’s opinion as reflected on
the SSA-issued form made little sense on its face. Dr. Kessler
indicated both that Purdy had experienced the same physical
limitations since 2011 and that the cause of her limitations was
the 2013 femur injury. Moreover, Dr. Kessler provided no
discussion or analysis of his own prior observations, as the ALJ
noted when she described his submission as merely checking the
right boxes. That itself goes a long way toward supporting the
ALJ’s determination to accord Dr. Kessler’s opinion little
weight. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)
(“The ALJ need not accept an opinion of a physician-even a
treating physician-if it is conclusionary and brief and is
unsupported by clinical findings.”).
8
The agency has eliminated the treating-physician rule for
purposes of claims filed on or after March 27, 2017. The agency
no longer “defer[s] or give[s] any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [an
applicant’s] medical sources.” 20 C.F.R. § 416.920c(a).
Instead, medical opinions and findings are evaluated for their
persuasiveness according to a uniform set of considerations.
Id. § 416.920c(c). These include the source’s relationship with
the claimant, but most important under the new regulations are
supportability and consistency with the rest of the record. Id.
§ 416.920c(b)(2).
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But even more significant were Dr. Kessler’s
examination and treatment notes. Quite simply, Dr. Kessler’s
medical records of treating Purdy were at odds with his
conclusions purporting to support Purdy’s application. Purdy
was diagnosed with a probable stress fracture in April 2013.
Dr. Kessler’s notes tracking the progress of the fracture made
it clear that her prognosis was good. In July 2013, for
example, Dr. Kessler noted that “there is a very, very strong
chance that she will heal satisfactorily with no surgery.”
There was no displacement of the bone, and the required
treatment was to avoid stress on the area so nature could take
its course. The last mention of the femur in Dr. Kessler’s
records was on November 5, 2013, some three months before
Purdy’s hearing before the ALJ, and then Dr. Kessler noted that
Purdy had a good range of motion in both hips and walked with
minimal to no limp and without a cane (despite his
recommendation). Though Purdy was continuing to experience
pain, Dr. Kessler noted that “chances [were] she [would] end up
getting away without having any surgery,” and that even if the
fracture did “fall apart,” which Dr. Kessler labelled a “very
small” risk, it could be fixed with surgery. Dr. Kessler’s
notes regarding Purdy’s three further appointments before her
hearing before the ALJ focused on a wrist injury and do not
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mention the stress fracture, or any pain associated with it, at
all.
No one could reasonably read these records as support
for finding or predicating a twelve-month duration of any
impairment from the fracture. The contrary is true. There was
therefore no legal error in refusing to treat Dr. Kessler’s
opinion as controlling or in according it little weight for
purposes of determining whether the fracture constituted a
severe impairment.9 For the same reasons, the ALJ did not err in
according Dr. Kessler’s opinion little weight for purposes of
determining Purdy’s residual functional capacity. Based on the
record and the particular circumstances of this case, the ALJ
was entitled to make a “common-sense judgment[]” that the
healing stress fracture did not preclude Purdy from performing
some sedentary work. Gordils v. Sec’y of Health & Human Servs.,
921 F.2d 327, 329 (1st Cir. 1990). An applicant’s residual
functional capacity is, after all, an administrative finding
reserved to the Commissioner. 20 C.F.R. §§ 416.927(d)(2),
416.946.
9
The appellant also takes the ALJ to task for suggesting
that Dr. Kessler’s unsupported opinion reflected personal
sympathy for his patient. It is true, as the Commissioner
concedes, that this was error, in the sense that the governing
regulations do not list suspicions of sympathy as grounds for
discounting a physician’s opinion. But the error was
insignificant in the context of this case: sympathy or no
sympathy, the doctor’s records just described do not support his
findings as to Purdy’s physical limitations.
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As her second issue, Purdy says it was error for the
ALJ to rely on the testimony of a VE to conclude that there were
particular numbers of jobs that Purdy could perform, thus
precluding (at Step 5) a conclusion that she was disabled. The
nub of the objection is that the VE testified on the basis of
numbers supplied by Job Browser Pro software available from a
concern called SkillTRAN.
SkillTRAN’s software has been recognized by at least
one district court to be widely relied upon by vocational
experts in estimating the number of relevant jobs in the
national economy. See, e.g., Wood v. Berryhill, No. 17 Civ.
5430, 2017 WL 6419313, at *3 (W.D. Wash. Nov. 17, 2017)
(describing Job Browser Pro as “the commonly accepted software
used by . . . vocational experts”). The software takes as its
starting point the Dictionary of Occupational Titles (the DOT),
a Department of Labor publication that identifies thousands of
jobs by name and describes the skills and capacity for physical
exertion required to perform each.10 The DOT “just defines
10
The DOT, which has not been updated since 1991, has been
criticized by some courts as “obsolete.” Herrmann v. Colvin,
772 F.3d 1110, 1113 (7th Cir. 2014). Nevertheless, the Social
Security Administration continues to treat the DOT as a
“reliable” source of job data and takes administrative notice of
its contents. 20 C.F.R. § 404.1566(d)(1). The Social Security
Administration is “developing a new Occupational Information
System . . ., which will replace the DOT as the primary source
of occupational information SSA staff use in [their] disability
adjudication process.” Occupational Information System Project,
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jobs,” however; “[i]t does not report how many such jobs are
available in the economy.” Brault v. Soc. Sec. Admin., Comm’r,
683 F.3d 443, 446 (2d Cir. 2012) (per curiam). And while the
Government collects job data, it does so at an aggregated group
level, rather than by DOT occupation, which renders estimating
the number of jobs available in the economy for a given DOT
occupation no easy task. SkillTRAN’s software attempts to
address that shortcoming through its interpretation of the
available data.
The objection to the evidence given by the VE rested
on her testimony that she did not know what precise analysis
SkillTRAN followed to produce the job-number estimates she gave
for jobs that Purdy could perform. On the basis of that
testimony, and the third-party source for all figures used in
the computations, Purdy argues that the VE’s testimony should
not be treated as expert evidence, but simply as parroting
numbers immune to effective challenge by an applicant for
benefits.
At the threshold, Purdy faces high hurdles.
Admissibility of evidence before an ALJ presiding over Social
Security proceedings is not subject to the Federal Rules of
SSA,
https://www.ssa.gov/disabilityresearch/occupational_info_systems
.html. It plans to roll out the system in 2020 and to update it
every five years. Id.
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Evidence, and an ALJ is given express authority to assess the
reliability of evidence offered. See 42 U.S.C. § 405(b)(1)
(“Evidence may be received at any hearing before the
Commissioner of Social Security even though inadmissible under
rules of evidence applicable to court procedure.”); 20 C.F.R.
§ 404.950(c) (“[T]he administrative law judge may receive any
evidence at the hearing that he or she believes is material to
the issues . . . .”); see also Richardson v. Perales, 402 U.S.
389, 400 (1971) (“[S]trict rules of evidence, applicable in the
courtroom, are not to operate at social security hearings so as
to bar the admission of evidence otherwise pertinent[,] and
. . . the conduct of the hearing rests generally in the
examiner’s discretion.”).
To be sure, in spite of the breadth of judgment thus
open to an ALJ, there have developed, not one, but two schools
of thought for assessing the reliability of evidence in
proceedings like this one. Drawing inspiration from Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Federal Rule of Evidence 702, the Seventh Circuit has charged
ALJs with a version of the gate-keeping role that federal courts
must play when considering whether to admit expert testimony.
While recognizing that Rule 702 does not formally apply in
Social Security proceedings, the Seventh Circuit has reasoned
that “because an ALJ’s findings must be supported by substantial
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evidence, an ALJ may depend upon expert testimony only if the
testimony is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910
(7th Cir. 2004). And “[i]f the basis of the vocational expert’s
conclusions is questioned at the hearing . . . then
the ALJ should make an inquiry (similar though not necessarily
identical to that of Rule 702) to find out whether the purported
expert’s conclusions are reliable.” Donahue v. Barnhart, 279
F.3d 441, 446 (7th Cir. 2002) (emphasis removed). Thus, in
McKinnie, where the vocational expert’s proffered basis for her
job-estimate figures was vague and unsubstantiated by
documentation, the Seventh Circuit held that the ALJ erred by
not enquiring into the reliability of the vocational expert’s
opinion. 368 F.3d at 911.
The Seventh Circuit stands alone, however, in imposing
a Daubert-like requirement on ALJs in Social Security cases.
The Ninth Circuit has disclaimed any such standard for testing
the reliability of a VE’s testimony regarding the number of
relevant jobs in the national economy. Rather, that court has
explained that “[a] VE’s recognized expertise provides the
necessary foundation for his or her testimony.” Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). And the Second
Circuit, too, has cast significant doubt on the Seventh
Circuit’s approach. In particular, in Brault, the Second
Circuit responded to a challenge similar to the one lodged here
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with the observation that the Seventh Circuit’s approach was
inconsistent with Congress’s clear determination that the
Federal Rules of Evidence not apply in Social Security
proceedings, see 42 U.S.C. § 405(b)(1), Richardson, 402 U.S. at
400–01, and deemed it puzzling that the “the Seventh Circuit
would acknowledge . . . that ALJs are not bound by the Rules of
Evidence, but then turn around and require ALJs to hew so
closely to Daubert’s principles,” Brault, 683 F.3d at 449. For
that matter, the Second Circuit was not persuaded that a
Daubert-like hearing would be useful given the pertinent
standard of review. The “substantial evidence” standard, the
court noted, is “extremely flexible,” “giv[ing] federal courts
the freedom to take a case-specific, comprehensive view of the
administrative proceedings, weighing all the evidence to
determine whether it was ‘substantial.’” Brault, 683 F.3d at
449. The Second Circuit “thus affirmed, not on any Daubert
basis, but instead on typical ‘substantial evidence’ grounds.”
Id. at 450.11
We fail to see an adequate answer to the Second
Circuit’s argument. This is not to say that we could go to the
11
Ultimately, the Second Circuit in Brault declined to
resolve the extent to which an ALJ must ever test a VE’s
testimony, simply noting its agreement with the Seventh Circuit
to the extent that “evidence cannot be substantial if it is
‘conjured out of whole cloth.’” 683 F.3d at 450
(quoting Donahue, 279 F.3d at 446).
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extreme of approving reliance on evidence of the software
numbers offered by a witness who could say nothing more about
them than the name of the software that produced them.12 But
that is not the case here. The VE, whose qualifications Purdy
did not challenge, testified that the job numbers were from the
Bureau of Labor Statistics and were stated in reference to job
descriptions in the DOT; that is, they were specific to jobs,
not to broad amalgams of jobs, some of which an applicant might
be able to perform but not others. The VE testified that the
software’s conclusions on the described basis were generally
accepted by those who are asked to give the sort of opinions
sought here. She testified, in other words, to a reliable and
practical basis of fact on which analysis was performed, and to
a wide reputation for reliability. Given the broad discretion
on the part of an ALJ, and the complete lack of any competing
evidence or critique, it is hard to see an abuse of discretion
in the judge’s refusal to demand, say, that a VE perform her own
data-gathering field work, or be a statistician capable of
duplicating the software analysis of the basic material. See
Pena v. Comm’r of Soc. Sec., 489 Fed. App’x 401, 403 (11th Cir.
2012) (rejecting similar challenge because “ALJ was entitled to
12 Nor do we foreclose the possibility that an applicant
could demonstrate the methodology employed by Job Browser Pro
(or any other software) to be so unreliable that it cannot
constitute substantial evidence. No such attempt was made here.
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rely upon the VE’s testimony without requiring the VE to provide
a comprehensive statistical explanation of how he arrived at
. . . job number figures.”). Nor does Purdy seriously confront
the question of what more might be required. Rather, she simply
couches her objection in the general terms that more personal
“knowledge, experience or expertise” ought to be required of a
VE relying on Job Browser Pro. At this level of generality, the
argument is too ethereal to carry the day in demonstrating legal
error in the ALJ’s judgment to rely on the testimony here.13
IV
The ALJ’s determination that Purdy was not disabled
within the meaning of the Social Security Act was supported by
substantial evidence. We affirm.
13Purdy also contends that the ALJ mischaracterized the
statements of a physician who examined her in 2012 and
improperly credited the opinions of the State agency non-
examining physicians. Purdy did not adequately present these
arguments in her objections to the magistrate judge’s
recommended decision. They are therefore waived. See Keating
v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.
1988).
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