          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).




                                            - 2 -
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


                                 - 3 -
      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).


                                    - 4 -
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).


                                                - 5 -
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.


                                        - 6 -
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


                                     - 7 -
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.


                                    - 8 -
               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.


                                             - 9 -
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


                                     - 10 -
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




                                     - 11 -
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).


                                           - 12 -
                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




                                               - 13 -
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.


                                        - 14 -
                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,


                                               - 15 -
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.


                                        - 16 -
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


                                            - 17 -
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


                                      - 18 -
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).


                                          - 19 -
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.


                                      - 20 -
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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