Sczepanski v. Saul

19‐185
Sczepanski v. Saul
United States Court of Appeals
for the Second Circuit
_______________
A
UGUST TERM, 2019
(Argued: November 25, 2019 Decided: January 7, 2020
Docket No. 19‐185
_______________
B
RITTANY N. SCZEPANSKI,
Plaintiff‐Appellant,
—v.—
A
NDREW SAUL, Commissioner of Social Security,
Defendant‐Appellee.
1

_______________
Before: K
ATZMANN, Chief Judge, CALABRESI and LOHIER, Circuit Judges.
_______________
Plaintiff‐appellant Brittany N. Sczepanski appeals from a judgment of the
United States District Court for the Western District of New York (Schroeder, M.J.),
affirming the Commissioner of Social Security’s denial of her application for
Supplemental Security Income. On appeal, Sczepanski argues that the
administrative law judge who revie
wed her claim, and whose decision the
Commissioner adopted, erred in assuming that Sczepanski’s ability to complete a
1
The Clerk of Court is respectfully directed to amend the caption as set forth
above.
19-185
Sczepanski v. Saul

2
probationary period was irrelevant to her ability to perform significant numbers
of jobs in the national economy. We agree, and we VACATE the district court’s
judgment with instructions to REMAND the matter to the Commissioner for
further development of the evidence.
_______________

T
IMOTHY HILLER, Law Offices of Kenneth Hiller, PLLC, Amherst,
NY,
for Plaintiff‐Appellant.

P
ETER W. JEWETT, Special Assistant U.S. Attorney (Ellen E. Sovern,
Acting Regional Chief Counsel—Region II, Office of the
General Counsel, Social Security Administration, on the brief),
for James P. Kennedy, Jr., United States Attorney, Western
District of New York, Buffalo, NY, for Defendant‐Appellee.
_______________

K
ATZMANN, Chief Judge:
This case calls upon us to determine whether, in the context of consideration
of an application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., the ability to complete a probationary
period is relevant to a claimant’s
disability status.
Plaintiff‐appellant Brittany N. Sczepanski challenges the Social Security
Commissioner’s denial of her application for SSI. An administrative law judge
(“ALJ”) determined that Sczepanski was not disabled after finding that she could
perform significant numbers of jobs in the national economy, and a federal district
court affirmed that
decision. On appeal, Sczepanski argues that the ALJ erred

3
because it assumed that Sczepanski’s inability to complete a probationary period
at the identified jobs was irrelevant to the ALJ’s disability determination. We
agree, and we therefore VACATE the district court’s judgment affirming the
Commissioner’s denial of Sczepanski’s application. However, because the
Commissioner should be given the opportunity to show
that Sczepanski can
perform significant numbers of jobs in the national economy, we instruct the
district court to REMAND the matter to the Commissioner for further
development of the evidence.
B
ACKGROUND
On February 27, 2013, Sczepanski filed an application for SSI under Title XVI
of the Social Security Act, 42 U.S.C. § 1381 et seq.
2
In her application, Sczepanski
stated that she had been disabled since March 1, 2009. After Sczepanski’s claim
was initially denied, she requested a hearing before an ALJ. The hearing was held
on March 13, 2015, and Sczepanski was represented by a non‐attorney.
3
Sczepanski

2
Sczepanski and the Commissioner both characterize February 27, 2013 as
Sczepanski’s application date. Sczepanski scheduled an appointment with the
Social Security Administration on that date, and the Administration completed her
application on March 22, 2013.

3
Although the hearing transcript refers to Sczepanski’s representative as an
attorney, the appointment of representative form indicates otherwise.

4
testified that she suffered from social anxiety and depression, and that her
symptoms were exacerbated by social interaction and stress. In addition,
Sczepanski testified that she suffered from selective mutism and auditory
processing problems, and that she was unable to concentrate in environments with
background noise.
A vocational expert also
testified at the hearing. The ALJ asked the expert
whether there would be any jobs available to a hypothetical person of Sczepanski’s
age, education, and work experience who had no exertional limitations and who
“should have essentially no contact with the general public and no more than
occasional contact with
supervisors or co‐workers, no fast paced or assembly line
or high quota work and no significant noise at the work place.” Certified
Administrative Record 53 (“CAR”). The expert responded that the hypothetical
individual would be able to work as a laundry laborer, of which there were 419,840
jobs in the
national economy, an industrial cleaner, of which there were 2,097,380
jobs in the national economy, and a shirt folder, of which there were 426,670 jobs
in the national economy.
Sczepanski’s representative also questioned the vocational expert. The
representative asked how much absenteeism was typically tolerated at a

5
sedentary, unskilled, entry‐level job, and the expert responded, “[n]o more than
two days per month every single month.” Id. at 59. Sczepanski’s representative
also asked how much absenteeism or tardiness was typically tolerated during a
probationary period, and the expert responded, “[d]uring the probationary period
of 90 to 120
days there is typically no tolerance for absence.” Id. at 58. Regarding
this latter point, the ALJ interjected to say, “we don’t really look at probationary
issues. We just, the job, doing the job.” Id. The ALJ then reiterated that
“probationary time doesn’t really make any difference in the determination
of
disability under our regulations.” Id. And when Sczepanski’s representative
responded that “it does go to ability to sustain employment if [Sczepanski] can’t
make it through a probationary period,” the ALJ responded:
I actually don’t see that. The question is whether or not they can do a
job. If they can’t
do it they can’t do it. If they can do it but can’t do it
for a continuous period of time, say, 90 days or 180 days then they
can’t do it but if they can do the job then probationary period, I don’t
see makes any difference.

Id. at
59 (quotation reproduced verbatim from hearing transcript).
On May 26, 2015, the ALJ issued a decision denying Sczepanski’s
application. The ALJ’s decision followed the Social Security Administration’s five‐
step sequential evaluation process for determining whether an adult is disabled.

6
See 20 C.F.R. § 416.920(a). As relevant here, the ALJ found that Sczepanski suffered
from severe impairments of anxiety, depression, and selective mutism. The ALJ
also found that Sczepanski:
ha[d] the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional

limitations: [Sczepanski] can have no contact with the general public;
no more than occasional contact with coworkers or supervisors; no
fast‐paced or assembly line or other high quota work; no more than
mild exposure to loud noises; and, [Sczepanski] should be able to miss
up to one day of
work per month.

CAR 19–20. Notwithstanding these limitations—which mirrored the hypothetical
posed to the vocational expert, except with the added limitation that Sczepanski
be able to miss up to one day of work per month—the ALJ found that Sczepanski
was not disabled because there were significant numbers of jobs in
the national
economy that she could perform. Specifically, the ALJ explained that the
vocational expert at the hearing had testified that someone of Sczepanski’s “age,
education, work experience, and residual functional capacity,” id. at 27, could
perform the jobs of laundry laborer, industrial cleaner, and shirt folder. Based on
the
availability of these jobs, the ALJ concluded that Sczepanski was not disabled
within the meaning of the Social Security Act. The ALJ did not mention
probationary periods in its written decision.

7
Sczepanski sought review of the ALJ’s decision, and the Appeals Council
denied the request on December 2, 2016. Sczepanski then challenged the decision
in a civil action filed on February 2, 2017 in the Western District of New York.
Sczepanski moved for judgment on the pleadings on August 17,
2017, arguing,
inter alia, that her “need to miss one day of work per month during the
probationary period, coupled with vocational expert testimony stating that
employers at unskilled positions have no tolerance for absences[,] directed a
finding of disability.” Sczepanski v. Berryhill, No. 17‐CV‐100(HKS) (W.D.N.Y. Aug.
17,
2017), ECF No. 12‐1, at 13. The Commissioner cross‐moved for judgment on
the pleadings on December 29, 2017, arguing that “probationary periods are not
relevant under the Social Security Act and Regulations.” Sczepanski v. Berryhill,
No. 17‐CV‐100(HKS) (W.D.N.Y. Dec. 29, 2017), ECF No. 14‐1, at
7.
On January 15, 2019, the district court denied Sczepanski’s motion and
granted the Commissioner’s cross‐motion. As relevant here, the court reasoned
that Sczepanski’s disability status depended on whether “jobs would
accommodate [her residual functional capacity] and vocational qualifications
only,” not on “[o]utside factors such as probationary periods for
an individual
employer, the existence of a specific vacancy, or whether [Sczepanski] would be

8
hired.” Sczepanski v. Colvin, No. 17‐CV‐100(HKS), 2019 WL 210842, at *3 (W.D.N.Y.
Jan. 15, 2019). Because Sczepanski could perform work as a laundry laborer,
industrial cleaner, and shirt folder, the court held that the ALJ’s decision was
supported by substantial evidence. Id. at *1, *3.
The district
court entered judgment on January 17, 2019, and Sczepanski
timely appealed.
D
ISCUSSION
I. Standard of Review
“When deciding an appeal from a denial of disability benefits, we focus on
the administrative ruling rather than the district court’s opinion.” Moran v. Astrue,
569 F.3d 108, 112 (2d Cir. 2009).
4
“On appeal, we conduct a plenary review of the
administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner’s decision and if the correct legal
standards have been applied.” Id. “Substantial evidence means more than a mere
scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.

4
Unless otherwise indicated, in quoting cases, all internal quotation marks,
alterations, emphases, footnotes, and citations are omitted.

9
II. Whether an Applicant’s Ability to Complete a Probationary Period Is
Relevant to Her Disability Status
For purposes of SSI eligibility under Title XVI of the Social Security Act, a
claimant is considered disabled if she “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). A claimant’s impairment must prevent her from engaging in
“substantial gainful work which
exists in the national economy, regardless of
whether such work exists in the immediate area in which [she] lives, or whether a
specific job vacancy exists for [her], or whether [she] would be hired if [she]
applied for work.” Id. § 1382c(a)(3)(B). Moreover, a claimant is not disabled if her
“residual
functional capacity and vocational abilities make it possible for [her] to
do work which exists in the national economy, but [she] remain[s] unemployed
because of . . . [her] inability to get work,” or because of “[t]he hiring practices of
employers,” or because the claimant “would not actually be hired
to do work [she]
could otherwise do.” 20 C.F.R. § 416.966(c)(1), (3), (7).

10
To determine whether a claimant is disabled, the Social Security
Administration has prescribed a “five‐step sequential evaluation process,” id.
§ 416.920(a)(4), pursuant to which the Commissioner considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of
impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers
of jobs in the national economy that the claimant
can perform given the claimant’s residual functional capacity, age,
education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “The claimant has the general
burden of proving that he or she has a disability within the meaning
of the Act,
and bears the burden of proving his or her case at steps one through four. At Step
Five, the burden shifts to the Commissioner to show there is other work that the
claimant can perform.” Id.
As noted above, the ALJ found that Sczepanski suffered from severe

impairments of anxiety, depression, and selective mutism. The ALJ also
determined that Sczepanski’s residual functional capacity included a limitation
that she “should be able to miss up to one day of work per month.” CAR 20. The
ALJ nevertheless concluded, based on the vocational expert’s testimony, that there

11
remained significant numbers of jobs available to Sczepanski as a laundry laborer,
industrial cleaner, and shirt folder.
5

On appeal, we are asked to consider only whether the ability to complete a
probationary period is relevant to a claimant’s ability to perform significant
numbers of jobs in the national economy at step five. Sczepanski argues that she
cannot perform the jobs identified by the vocational expert given the
expert’s
testimony that employers typically have no tolerance for absences during
probationary periods. The Commissioner responds that probationary periods are
irrelevant to disability determinations because probationary periods “relate to an
employer’s hiring practices,” Appellee’s Br. 26, and claimants are not disabled if
they can otherwise perform work but “remain unemployed because
of . . . hiring
practices,” 20 C.F.R. § 416.966(c)(3). We disagree with the Commissioner, and we
accordingly vacate the district court’s judgment affirming the denial of
Sczepanski’s application.

5
Regarding the other steps in the sequential evaluation process, the ALJ
found that Sczepanski was not currently engaged in substantial gainful activity,
that her impairments did not meet or equal the severity of those in the Listing of
Impairments, and that she had no past relevant work.

12
It appears that no court of appeals has addressed whether the ability to
complete a probationary period is relevant to a claimant’s disability status.
Multiple district courts have passed on the question, however, and nearly all have
answered it in the affirmative.
6
This widespread agreement makes sense, as a

6
See, e.g., Mosher v. Saul, No. 5:18cv109/EMT, 2019 WL 3779995, at *6 (N.D.
Fla. Aug. 12, 2019) (“It thus appears that Plaintiff cannot perform the
representative occupations identified by the [vocational expert] because she
would not be able to maintain employment during the probationary period(s) for
these occupations, due
to the requirement in her [residual functional capacity
(RFC)] that she miss one day of work per month.”); McLaughlin v. Comm’r of Soc.
Sec., No. 3:17‐cv‐424, 2019 WL 125761, at *3 (S.D. Ohio Jan. 8, 2019) (“[A] person
with Plaintiff’s RFC would be unable to complete the probationary
period. . . .
[B]ecause an individual with Plaintiff’s RFC could not perform jobs that exist in
the national economy, the record adequately establishes Plaintiff’s entitlement to
benefits.”), report and recommendation adopted, 2019 WL 1902749 (S.D. Ohio Apr. 29,
2019); Ricker v. Berryhill, No. 3:16‐CV‐00121‐JAJ‐CFB, 2018
WL 4520225, at *1 (S.D.
Iowa Mar. 5, 2018) (holding that substantial evidence did not support the ALJ’s
determination that the claimant could perform a significant number of jobs in the
national economy where a “vocational expert . . . testified that employers would
tolerate no more than two unscheduled
breaks per week, no more than one
absence per month, and no absences in the probationary period,” and the ALJ
failed to address whether the claimant’s need to attend medical appointments
would cause her to incur more absences than employers would permit); Merritt v.
Comm’r of Soc. Sec., No. 6:16‐
cv‐00244‐CL, 2017 WL 4570296, at *8 (D. Or. Oct. 12,
2017) (“[T]he Commissioner’s own vocational expert testified that being away
from the workstation for up to an hour in addition to normal breaks would prevent
Plaintiff from passing a probationary period at a new job, even if the work
was
highly skilled. This would eliminate her ability to perform past work and also any
alternative work.”); Shelton v. Colvin, No. 1:14‐cv‐01920‐SEB‐TAB, 2015 WL
13739358, at *3 (S.D. Ind. Oct. 13, 2015) (“These jobs require a worker to go through
a probationary period during which he
must have more than brief, superficial

13
probationary period is generally just the first phase of a job, after an employee has
been hired, but before she has attained permanent employee status.
7
The ability to
complete a probationary period is thus tantamount to the ability to keep a job, and
as multiple circuits have recognized, the ability to keep a job is a necessary
prerequisite to the ability to engage in substantial gainful activity.
8

interaction with supervisors and co‐workers. Yet, according to the ALJ, Shelton is
not able to do that. . . . This dichotomy compels the conclusion that Shelton will be
unable to get through the required probationary period at each of the jobs used to
deny his claim.”).

7
See, e.g., Mark A. Rothstein et al., Employment Law § 1:2 (Westlaw 2019)
(“Many private and public sector employees must successfully complete a
probationary period before becoming a permanent employee.”); Paul H. Tobias,
Litigating Wrongful Discharge Claims § 7:3 (Westlaw 2019) (“The term
‘probationary’ employee ordinarily refers to a newly
hired employee in his or her
initial period of employment. During this time, the company may not provide all
the rights and privileges of regular employees.”).

8
See, e.g., Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999)
(“We are persuaded by the reasoning of our sister circuits that substantial gainful
activity means more than merely the ability to find a job and physically perform
it; it also requires the ability
to hold the job for a significant period of time.”); Dix
v. Sullivan, 900 F.2d 135, 138 (8th Cir. 1990) (“A condition that does not allow a
person to work on a regular basis precludes substantial gainful activity.”); Pagan
v. Bowen, 862 F.2d 340, 350 (D.C. Cir. 1988) (“The critical
question is not whether
the claimant has been stable enough to work for short periods, but whether he or
she is able to hold whatever job he finds for a significant period of time.”); Singletary
v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986) (“A finding that a claimant is
able to
engage in substantial gainful activity requires more than a simple determination
that the claimant can find employment and that he can physically perform certain

14
We are not persuaded by the Commissioner’s arguments to the contrary.
First, the Commissioner argues that substantial evidence supports the ALJ’s
disability finding because “the ALJ presented a hypothetical question to the
vocational expert that mirrored the undisputed residual functional capacity for a
range of work at all exertional levels
and Sczepanski’s vocational profile,” and the
expert identified three types of jobs that Sczepanski could perform, and based on
this testimony, the ALJ “determined that there was work in significant numbers
in the national economy that Sczepanski could perform.” Appellee’s Br. 16–17. But
the ALJ’s hypothetical to the vocational expert—unlike
the ALJ’s ultimate
determination of Sczepanski’s residual functional capacity—did not include the
key limitation that Sczepanski be able to miss up to one day of work per month.
Second, the Commissioner cites case law and legislative history for the
proposition that “impediments to working that do not reflect an inability to

perform the functional demands of a job are simply not considered” in disability
determinations. Id. at 31. But this argument begs the question whether
Sczepanski’s inability to complete a probationary period renders her incapable of

jobs; it also requires a determination that the claimant can hold whatever job he
finds for a significant period of time.”); see also Washington v. Shalala, 37 F.3d 1437,
1442 (10th Cir. 1994) (same).

15
performing the functional demands of a job. Moreover, the sources that the
Commissioner cites are inapposite. For example, the Commissioner points to the
Fifth Circuit’s decision in Cornett v. Astrue, 261 F. App’x 644 (5th Cir. 2008), for the
proposition that a claimant’s “criminal history [is] irrelevant to the
determination
of disability even though such history would preclude [the claimant] from
working at the jobs found by the ALJ.” Appellee’s Br. 30. But a claimant’s criminal
history, unlike Sczepanski’s need to miss up to one day of work per month, is not
part of her residual functional capacity. The Commissioner
also relies on an array
of district court decisions that held that claimants were not disabled simply
because they were unable to obtain work. But unlike the claimants in these cases,
Sczepanski does not argue that she is unable to obtain work. Instead, Sczepanski
argues that she would be unable
to keep a job after being hired because of her
inability to complete the probationary period.
Likewise, the Commissioner’s reliance on legislative history is misplaced.
The Commissioner cites to the House and Senate Reports on the Social Security
Amendments of 1967, which amended the Social Security Act’s definition of
“disability” to
clarify that a claimant’s impairments must prevent him from
engaging in “substantial gainful work which exists in the national economy,

16
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.”
Pub. L. No. 90‐248, § 158, 81 Stat. 821, 868 (1968) (emphasis added). As
the Reports
explain, the amendment was intended to overrule judicial decisions that had
expanded the definition of “disability” to encompass not only whether a claimant
could perform work, but also “whether there is a reasonably firm basis for
thinking that this particular claimant can obtain a job within a reasonably
circumscribed
labor market.” H.R. Rep. No. 90‐544, at 29 (1967); S. Rep. No. 90‐
744, at 48 (1967). According to the Reports, this judicially expanded definition
improperly “put the burden of proof on the Government to identify jobs for which
the [claimant] might have a reasonable opportunity to be hired,
rather than
ascertaining whether jobs exist in the economy which he can do.” Id. By narrowing
the definition, Congress sought to “reemphasize the predominant importance of
medical factors in the disability determination,” and “provide a definition of
disability which can be applied with uniformity and consistency throughout the
Nation, without regard
to where a particular individual may reside, to local hiring
practices or employer preferences, or to the state of the local or national economy.”
H.R. Rep. No. 90‐544, at 30; S. Rep. No. 90‐744, at 48–49.

17
For substantially the same reasons discussed above, this legislative history
does not suggest that probationary periods are irrelevant to disability
determinations. Unlike the claimants in the decisions cited by the House and
Senate Reports, Sczepanski does not contend that local employer practices have
deprived her of a reasonable opportunity to
be hired. Moreover, she is not
challenging the Commissioner to prove that she can obtain a job within a
reasonably circumscribed labor market—a burden that would understandably be
onerous given the diverse labor dynamics that exist throughout the country.
Instead, Sczepanski is asking the Commissioner to identify, at the national
level,
jobs that she can perform. And she is arguing, based on the ALJ’s residual
functional capacity determination, that she can perform only those jobs that permit
her to miss up to one day of work per month (whether during the probationary
period or otherwise). As such, her position is fully
consistent with the text and
history of the Social Security Act.
The Commissioner tries to resist this conclusion by arguing that
probationary periods can qualify as “hiring practices” even though they occur
after an employee has been hired. The Commissioner argues, for example, that
Social Security regulations preclude a finding
of disability if “a claimant is able to

18
do work, but remains unemployed due to . . . technological changes in the
industry in which she has worked, and cyclical economic conditions[,] . . .
situations [that] implicate the time period before and after the potential first day
on the job.” Appellee’s Br. 29; see 20 C.F.R. §
416.966(c)(4)–(5). And the
Commissioner contends that “the cases that Congress sought to overturn through
[the 1967 Amendments] were concerned with issues of real or perceived
absenteeism, as well as other issues, such as insurance costs or medical
examinations, that would occur after an employee would be hired.” Appellee’s Br.
33.
Again, however, we think the Commissioner misses the mark, as the cited
regulations and legislative history concern the inability to obtain work, whereas
Sczepanski’s argument rests on her failure to perform work after being hired.
9
If
Sczepanski had argued that employers would refuse to hire her out of fear that she
could not complete a probationary period, when in fact she could, then the
Commissioner’s position would have merit. But that is not what Sczepanski has
argued.

9
The subsection of the regulation cited by the Commissioner is even titled
“Inability to obtain work.” 20 C.F.R. § 416.966(c).

19
Finally, the Commissioner makes several additional arguments that were
not raised before the district court. Accordingly, these arguments have been
forfeited. Although we have the discretion to consider forfeited arguments “where
necessary to avoid a manifest injustice, the circumstances normally do not militate
in favor of an exercise of
discretion to address new arguments on appeal where
those arguments were available to the parties below and they proffer no reason
for their failure to raise the arguments below.” In re Nortel Networks Corp. Sec. Litig.,
539 F.3d 129, 133 (2d Cir. 2008) (per curiam); see United States v. Olano,
507 U.S. 725,
733 (1993). The Commissioner has given no reason for its failure to raise these
arguments below, and we therefore decline to consider them.
III. The Appropriate Remedy
Because the ALJ erred in assuming that Sczepanski’s ability to complete a
probationary period was irrelevant to her disability status,
we vacate the district
court’s judgment affirming the denial of Sczepanski’s application. We will not
accept Sczepanski’s invitation, however, to remand solely for the calculation of
benefits. Such a remedy is appropriate where there is “no apparent basis to
conclude that a more complete record might support the Commissioner’s
decision.” Rosa
v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999).

20
In the instant case, the Commissioner should be given the opportunity to
show on remand that there are significant numbers of jobs in the national economy
that Sczepanski can perform. As noted above, the vocational expert at Sczepanski’s
hearing identified nearly 3 million jobs available to a hypothetical person of

Sczepanski’s age, education, and work experience who had no exertional
limitations and who “should have essentially no contact with the general public
and no more than occasional contact with supervisors or co‐workers, no fast paced
or assembly line or high quota work and no significant noise at the work
place.”
CAR 53. This hypothetical mirrored the ALJ’s ultimate determination of
Sczepanski’s residual functional capacity in all relevant respects except that the
hypothetical did not include a limitation regarding the ability “to miss up to one
day of work per month.” Id. at 20. If the Commissioner can show on remand
that
even a fraction of the 3 million jobs identified by the vocational expert do not have
probationary periods (or permit absences during their probationary periods), then
the Commissioner may be able to show that there are significant numbers of jobs
in the national economy that Sczepanski can perform. The
appropriate remedy is
therefore to remand to the Commissioner for further development of the evidence.
See Rosa, 168 F.3d at 82–83.

21
C
ONCLUSION
For the reasons above, we VACATE the district court’s judgment with
instructions to REMAND the matter to the Commissioner for further development
of the evidence.