MEMORANDUM DECISION AND ORDER

SHARON L. GLEASON, District Judge.

Roy Eason initiated this Social Security action in federal district court after exhausting his administrative remedies. Mr. Eason seeks the reversal of an unfavorable disability determination by the Commissioner of Social Security. The matter has been fully briefed.1 Oral argument was not requested and was not necessary to the Court's determination.

For the reasons discussed below, the Commissioner's determination will be affirmed.

BACKGROUND

Mr. Eason is 47 years old and has nine years of formal education.2 He alleges that he is disabled due to back pain, diabetes, high cholesterol, obesity, and major depressive disorder.3 Mr. Eason was employed between 1996 and 2006 "fabricating [and] building springs" and has also worked for brief periods of time as a car detailer, seafood processor, and agricultural worker.4 He self-reports no employment after March 2007.5 According to his medical records, Mr. Eason was injured in a fall while working in 2007, which has caused pain in his back and lower extremities.6

I. Mr. Eason's Application for Social Security Benefits

On January 30, 2012, Mr. Eason applied for disability insurance benefits under Titles II and XVI of the Social Security Act, alleging a disability onset date of November 5, 2011.7 On May 4, 2012, the Social Security Administration determined that Mr. Eason was not disabled.8 Mr. Eason promptly requested a hearing before an administrative law judge ("ALJ").9 The hearing was held on November 14, 2012 before ALJ Paul Hebda.10

II. The Administrative Record

The record before the ALJ reflected the following:

A. Medical Evidence

The ALJ had before him approximately 90 pages of medical records documenting Mr. Eason's treatment, primarily for back pain and diabetes.11 Those records are summarized in the following paragraphs.

In January 2010, Mr. Eason was seen at the Alaska Spine Institute on referral for pain and numbness in his lower back and extremities.12 Records from that consultation indicate that a December 2009 MRI of the lumbar spine showed "moderate lumbrosacral epidural lipmatosis causing moderate central spinal canal stenosis at L2-L3 throughout."13 At that January 2010 visit, Mr. Eason reported his medications as "Glipizide, hydrochlorothiazide, lisinopril, lovastatin, metformin, nortriptyline, Norvasc, TriCor, [and] amlodipine."14 Alaska Spine Institute referred Mr. Eason for a neurosurgical opinion.15

In February 2010, Mr. Eason was seen at Alaska Neuroscience Associates by Dr. Paul Jensen.16 Dr. Jensen ordered a CT scan, which "corroborate[d] the known diagnosis of facet arthropathy at L4-5 and L5-S1. There were early bridging steophytes at 5-1 and some diastatic changes at 4-5. This again was more focal geographically with the location of his reported pain. In terms of the findings higher in the lumbar spine at L2-3, he does not have a consistent history of an effort-type pain where he stands and/or walks with ensuing back pain, and obtains relief by sitting."17

The administrative record also included medical records from Providence Alaska Medical Center documenting several visits by Mr. Eason including visits for back pain in December 2009 and February 2010, knee pain in July 2010, flu-like symptoms in October 2010, and stroke symptoms in January 2011.18

On October 13, 2011, Mr. Eason presented to Dr. Juliana Shields for a medication refill. At that visit he admitted to "ongoing depression and dysthymia," but denied "frank suicidal ideation." The record also indicates that Mr. Eason reported that he "has been walking intermittently but not getting a significant amount of exercise. He continued to complain of low back pain." At that visit, Dr. Shields prescribed or refilled medications to treat back pain, diabetes, hypertension, and depression.19

On December 1, 2011, Mr. Eason returned to Dr. Shields. At that visit he requested that Dr. Shields complete a Capacity Assessment form for SSI/Disability. Dr. Shields summarized Mr. Eason's status, noting:

Under "Assessment Plan," Dr. Shields wrote

On March 15, 2012, Mr. Eason was seen by Dr. Sarah Roberts for a medication refill. Dr. Roberts noted that while Mr. Eason indicated that "he can afford his meds," he had been "out of `all' of his meds for about 2.5 months. He continues to have chronic back pain, but is seeking disability for this."22 On March 19, 2012, Mr. Eason was seen by Dr. Jacquelyn Serrano as a follow-up for high blood pressure. Dr. Serrano indicated that Mr. Eason "reports that he had run out of his medicines and that's why his blood pressure was so high. He was given a refill and he started taking his medications. Now his blood pressures have improved."23 Dr. Serrano also noted that Mr. Eason "is checking his blood sugars as directed. He denies episodes of hypoglycemia. He continues to have chronic daily back pain."24 Dr. Serrano also noted that Mr. Eason "walks with a cane" and "moves very slowly as if in pain."25

On March 21, 2012, Mr. Eason underwent a "Physical Work Performance Evaluation," a two hour testing regimen conducted by an occupational therapist.26 The summary of that evaluation states:

The evaluator also stated:

Under "Subjective Pain Statements," the evaluator noted that Mr. Eason "states he is in pain all the time at home; his pain wakes him up; he is not comfortable sleeping; he uses his cane while walking due to pain and posture; he states his pain makes him angry." Under "Pain Behaviors and their Impacts on Test Results," the evaluator noted "[c]ursing; facial grimacing; pain comments; position changes. He was clearly uncomfortable even before we started the testing." And under "Body Mechanics and Movement Patterns," the evaluator noted that Mr. Eason "demonstrated impaired body mechanics and movement patterns during the test due to pain and tightness/stiffness in his back and legs."29 After detailing the individual tests and their results, the evaluator concluded that the "test suggests he can work at the light level with a job that allows moving between sitting, standing and walking. Unfortunately, all the jobs he's had have been medium or higher jobs, and he does not have a good skills set for office work. He has not graduated from high school."30

On April 27, 2012, Mr. Eason was again examined by Dr. Shields. Although presenting for "hypertension, diabetes hyperlipidemia and depression," the visit focused largely on Mr. Eason's mental health, and Dr. Shields requested an immediate evaluation for depression.31 Mr. Eason was examined that same day by Dr. Parret, a psychologist. Dr. Parret recorded that Mr. Eason reported "feeling depressed and isolating himself from family." She added that Mr. Eason reported that he had "thought about hurting himself in the past and always has a plan, but has never acting [sic] on the plan." Dr. Parret referred Mr. Eason to counseling. Dr. Parret's assessment stated:

On June 20, 2012, Mr. Eason received a follow-up exam by Dr. Shields. Dr. Shields directed Mr. Eason to call his pharmacy to refill his medications for hypertension and diabetes. Dr. Shields noted that Mr. Eason "has ongoing difficulty with depression" and arranged for him to contact the counseling department to schedule an appointment. Dr. Shields also refilled Mr. Eason's Tramadol prescription for back pain.33

The administrative record includes counselor's notes for four counseling sessions that Mr. Eason attended between June and November 2012.34 Of note is Mr. Eason's "Behavior Health Intake Assessment" of June 26, 2012. On that date, he reported depression from his inability to find work due to his back injury and thoughts of self-harm. However, Mr. Eason also reported on that date that "he could never kill himself because he loves his three children too much."35

On September 18, 2012, Mr. Eason was examined by Dr. Susan Hayner for medication refills and "blisters on his feet." Dr. Hayner noted that Mr. Eason "doesn't check his sugar because he doesn't have a meter and doesn't like to check blood sugars. He is very afraid of needles."36 Dr. Hayner concluded that the blisters were likely friction blisters, provided refills of Mr. Eason's pain medication, and referred him to massage therapy for his lower back pain.37

B. Testimony of Mr. Eason

Mr. Eason attended the November 14, 2012 administrative hearing with counsel. Under examination by his attorney, Mr. Eason testified that he had painful blisters on the bottom of his feet that caused a burning pain and indicated that he needed to take insulin to remedy the condition.38 He testified that he was not taking insulin because he did not have any, and that he did not expect to be able to pay for it in the future.39

Mr. Eason also testified that it helps with his discomfort when he lies down. He testified that he could sit for "an hour" and then needed to "get up and move around, walk around a bit" with the help of a cane prescribed by a doctor.40 He testified that he uses the cane "all the time" and can stand with it for an hour but "not long" without it and can walk approximately 50 feet with a tolerable amount of pain.41 Mr. Eason added that his back pain affects his sitting and standing and is "throbbing pain, all the time."42 Mr. Eason also testified that his medications make him drowsy; as a result he does not always take them because he is a caregiver for his two teenage boys.43 He added that his back pain makes his legs numb.44

Mr. Eason also testified that he sleeps most of the day and doesn't sleep well at night when he takes his medication.45 He testified that his high blood pressure makes him dizzy, and sometimes requires multiple medications to control.46 And he testified that while his medical records noted that he had not taken his blood pressure medication in the past, of late he had been taking it and as a result, he no longer had dizziness or nosebleeds.47 Mr. Eason testified that he has a ninth grade education and that he "cannot read at all" and relies on his sons to help with taking his medications.48

C. Testimony of Betty Ann Lees

At the hearing, Betty Ann Lees, an independent vocational expert, requested that the ALJ ask Mr. Eason about his ability to count money and make change, given his asserted illiteracy. Mr. Eason responded that he could count money and differentiate between the denominations of bills.49

Ms. Lees then testified to Mr. Eason's previous employment and the associated DOT classifications.50 The ALJ then posed to Ms. Lees the following hypothetical:

Ms. Lees testified that such an individual would not be able to perform any of Mr. Eason's past relevant work history.52 But she then testified that such a person could perform the DOT-described jobs of a thread cutter tender, a bobbin stripper, or a small products assembler in the existing national economy. Ms. Lees noted that the latter two jobs each had an estimated 50 positions available in the Alaska economy.53 Ms. Lees also testified that if a one-hour sitting and standing interval was introduced, the number of available jobs would be reduced by 50%.54 And Ms. Lees testified that if the hypothetical individual's residual functional capacity was changed from "light" to "sedentary," there would not be any jobs that the individual could perform.55

III. The ALJ's Decision and Mr. Eason's Appeal

On December 20, 2012, the ALJ issued a decision finding Mr. Eason had not been under a disability within the meaning of the Social Security Act since November 5, 2011, the date his application was filed.56 Mr. Eason timely requested review by the Social Security Appeals Council.57 On February 11, 2014, the Appeals Council denied that request for review.58

Mr. Eason then sought judicial review of the ALJ's findings by this Court pursuant to 42 U.S.C. § 405(g).59

DISCUSSION

I. The Disability Determination Process and the ALJ's Findings

The Social Security Act provides for the payment of benefits to disabled individuals who satisfy certain income and resource eligibility criteria.60 Disability is defined as an inability "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 12 months."61

The Social Security Commissioner has established a five-step process for determining disability.62 At Steps 1 through 4, the claimant bears the burden of proving his entitlement to disability benefits; at Step 5, the burden shifts to the Social Security Commissioner to show there is gainful activity the claimant can perform.63

At Step 1, the claimant must show he is not currently engaged in substantial gainful activity.64 At Step 2, the claimant must demonstrate that his impairment is "severe," i.e., an impairment that "significantly limits [his] physical or mental ability to do basic work activities" that has lasted or is expected to last for at least twelve months.65 At Step 3, if the claimant proves his impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, then the ALJ must conclude the claimant is disabled.66 If not, then the ALJ determines the claimant's residual functional capacity ("RFC"), which is the most work the claimant can still do despite his limitations.67 At Step 4, the ALJ uses the RFC to determine whether the claimant is capable of performing his past relevant work.68 If the claimant proves he cannot perform his past relevant work, then at Step 5 the Social Security Commissioner must show—based on the claimant's RFC, age, education, and work experience—that the claimant is capable of performing other work that exists in significant numbers in the national economy.69 If the claimant can make an adjustment to such other work, he is not disabled. If he is not able to do any other work, then he is considered disabled.70

In this case, prior to applying the five-step approach, the ALJ concluded that due to Mr. Eason's deepening depression, the presumption of continuing non-disability that would otherwise result from his prior denial of benefits did not apply.71 At Step 1, the ALJ found that Mr. Eason had not engaged in substantial gainful activity since the alleged onset date of November 5, 2011.72 At Step 2, the ALJ found that Mr. Eason had the following severe impairments: facet arthropathy of the lumbar spine, diabetes mellitus, hypertension, obesity, and depression.73 At Step 3, the ALJ found that Mr. Eason did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.74 The ALJ then determined that Mr. Eason had the RFC to

In making his finding, the ALJ discussed Mr. Eason's alleged impairments and symptoms, including those he self-reported. Although the ALJ found that Mr. Eason's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," he did not find Mr. Eason's "statements concerning the intensity, persistence, and limiting effects of these symptoms wholly credible."76 At Step 4, the ALJ found that Mr. Eason was unable to perform any past relevant work.77 At Step 5, the ALJ found that "considering [Mr. Eason's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Mr. Eason] can perform."78 Specifically, based on the testimony of Ms. Lees, the ALJ found that Mr. Eason could perform the jobs of thread-cutter tender, bobbin stripper, or small product assembler.79 Accordingly, the ALJ determined that Mr. Eason had not been under a disability, as defined by the Social Security Act, since November 5, 2011.80

II. Standard of Review

The ALJ's denial of benefits to Mr. Eason should be set aside "only if it is not supported by substantial evidence or is based on legal error."81 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support [the ALJ's] conclusion."82 An ALJ's determination is based on legal error if the ALJ failed to apply the proper legal standard.83 This Court "review[s] only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."84

III. Analysis

Mr. Eason presents four arguments in this appeal. First, Mr. Eason asserts that the ALJ erred in formulating the RFC by failing to account for Mr. Eason's use of a cane. Second, Mr. Eason asserts that the RFC failed to account for Mr. Eason's asserted need to alternate positions. Third, Mr. Eason asserts that the RFC failed to account for the ALJ's finding that Mr. Eason experienced moderate limitations of concentration, persistence, and pace. Fourth, Mr. Eason asserts that the ALJ erred in making findings as to the jobs that Mr. Eason could perform in the national economy because the ALJ improperly relied on the testimony of the Vocational Expert regarding the number of steps in a job that Mr. Eason could perform.

A. Formulation of Mr. Eason's RFC

i. Use of a cane

Mr. Eason asserts that the ALJ clearly erred by failing to include or account for Mr. Eason's need to use a cane in the RFC. Mr. Eason identifies the following evidence in support of his need for a cane: the medical evidence that Mr. Eason suffers from back pain and has difficulty walking; the observation of Dr. Shields that Mr. Eason was using a cane; the Third Party Function Report submitted by Mr. Eason's longtime friend; and Mr. Eason's own testimony that he uses a cane that was prescribed for him by his prior primary care physician.85 Mr. Eason asserts that the ALJ erred because "an ALJ must always include all of the limitations demonstrated in the record in his RFC finding or explain why they were excluded."86 The Commissioner responds that the ALJ set forth reasons to discredit Mr. Eason's testimony and the third party report, and adequately explained that although the "medical evidence shows that [Mr. Eason] did use a cane some of the time, [it] did not establish he actually needed to use a cane."87

Mr. Eason asserts that unambiguous agency policy requires the ALJ to address Mr. Eason's use of a cane in the RFC, citing Social Security Ruling 96-9p's statement that "the RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to perform work-related activities."88 However, an ALJ is not obligated to analyze an alleged physical limitation in the RFC when substantial evidence in the record as a whole does not support that the alleged limitation is, in fact, a limitation.89 Rather, the ALJ is obligated to adequately explain his consideration of the evidence in the record and then formulate an RFC based on that evidence.90 Here, there was no medical source testimony that the cane was prescribed or medically necessary.91 And Mr. Eason's counsel did not seek testimony from the Vocational Expert regarding the impact of the use of a cane and did not advocate to the ALJ that the cane was an additional limitation.92 Mr. Eason's use of a cane was noted by the ALJ as part of Mr. Eason's subjective severity of symptoms testimony.93 The ALJ found that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms."94 However, the ALJ went on to reject some of Mr. Eason's statements as to the severity of his symptoms.

"[T]he ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so."95 "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints."96 Here, the ALJ addressed why Mr. Eason's testimony was given limited weight.97 After discussing the medical records regarding Mr. Eason's back injuries, the ALJ found that "[c]onsidering the radiographic evidence, the EMG/NCV report, the lack of consistent clinical examination findings, the conservative nature of the treatment, and the evidence suggesting the claimant did not give a full effort during examinations, I find that the claimant's allegations of back pain and lower extremity symptoms are not wholly credible."98 And after discussing Mr. Eason's medical records regarding diabetes, the ALJ found that "[c]onsidering the lack of supporting objective evidence, the lack of persistent symptoms, and the claimant's refusal to follow his doctor's recommendations, I find no credible evidence that the claimant experiences disabling . . . lower extremity pain and numbness."99 Although the ALJ did not specifically reject Mr. Eason's testimony that he requires a cane to function, the ALJ presented clear and convincing reasons for rejecting Mr. Eason's subjective testimony as to the severity of those symptoms that would require him to use a cane. In light of the ALJ's adverse credibility determination and paucity of medical source evidence demonstrating that the cane was a medical necessity,100 the Court finds that the ALJ did not err in not including Mr. Eason's use of a cane as a limitation in the RFC. And as a consequence, Mr. Eason's arguments that the ALJ's job findings constituted clear error because the RFC failed to include mobility limitations due to use of a cane are likewise unpersuasive.

ii. Failure to include a limitation of physically alternating positions through the day

Mr. Eason asserts that the ALJ erred by failing to include as a limitation in the RFC a need for Mr. Eason to physically alternate positions throughout the workday. He cites to a portion of the Physical Work Performance Evaluation that states that "[d]ue to [Mr. Eason's] limited ability to walk and stand, he would have to alternate between standing, walking, and other tasks as listed in the task performance table to be able to tolerate the Light level of work for the 8-hour day/40 hour week."101 But that assessment also states "[p]lease note that the tolerance for the 8-hour day was significantly influenced by [Mr. Eason's] self-limiting behavior and indicates his minimal rather than his maximal ability."102

The ALJ noted both the evaluator's finding and Mr. Eason's self-limiting behavior during the evaluation in his decision.103 And the ALJ elicited testimony from the Vocational Expert on "a sit/stand option . . . allowing the individual to alternate sitting or standing positions at one hour intervals throughout the day."104 The Vocational Expert testified that the additional restriction would "erode the numbers" of available jobs in the national economy by "approximately 50 percent."105 In light of the Vocational Expert's testimony that there would still be suitable positions for Mr. Eason with a sit/stand limitation, the failure to expressly include an alternating-positions restriction in the RFC, if in error, was harmless.106

iii. Failure to account for finding of moderate limitation of concentration, persistence, and pace

Mr. Eason's RFC specified that he is "limited to work involving 1- to 2-step tasks with few workplace changes and providing verbal rather than written instructions."107 Mr. Eason asserts that the ALJ erred because the RFC failed to adequately reflect the ALJ's finding that "[w]ith regard to concentration, persistence or pace, the claimant has moderate difficulties."108 Specifically in this regard, the ALJ found that:

In Stubbs-Danielson, the Ninth Circuit upheld an RFC that limited a claimant to "simple, routine, repetitive sedentary work" to reflect medical evidence that the claimant had "a slow pace, both in thinking & actions" and had "several moderate limitations in other mental areas."110 The Circuit Court noted that "[t]he ALJ translated [the claimant's] condition, including the pace and mental limitations, into the only concrete restrictions available to him—[a doctor's] recommended restriction to `simple tasks.'"111 Citing similar holdings in two other circuits, the Ninth Circuit held that "an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony."112

Here, unlike in Stubbs-Danielson, the nature of Mr. Eason's cognitive limitations are only evidenced in the record by Mr. Eason's self-reporting to his medical providers and testimony at the administrative hearing.113 And while there is significant medical source evidence that Mr. Eason suffered from depression, the ALJ found that "[c]onsidering the lack of treatment for depression related symptoms until well after the alleged disability onset date, the lack of significant clinical findings suggesting limitations, and the apparent effectiveness of treatment, I do not find the claimant's depression related allegations wholly credible."114 With limited evidence of cognitive limitations before him, the ALJ concluded that the fact that Mr. Eason's "depression interferes with his ability to sustain concentration, persistence or pace to some degree" supported an RFC limitation of "limited to work involving 1- to 2-step tasks with few workplace changes and providing verbal rather than written instructions." After reviewing that evidence, the Court finds that the ALJ's approach is consistent with Stubbs-Danielson and adequately captured the nature of Mr. Eason's mental limitations in the RFC.115

B. The ALJ's reliance on the Vocational Expert's evidence to identify jobs Mr. Eason could perform

Mr. Eason asserts that each of the three jobs the Vocational Expert identified as jobs Mr. Eason could perform given his RFC require more than 1 to 2 steps. Accordingly, Mr. Eason asserts that the ALJ erred in relying on the Vocational Expert's testimony without addressing the discrepancy between the DOT descriptions of those positions and Ms. Lees's testimony that Mr. Eason could perform those jobs.116 In her opposition brief, the Commissioner concedes that the job of thread cutter tender, with a reasoning level of 3, "may be precluded in this case" due to Mr. Eason's alleged illiteracy.117 But the Commissioner asserts that for the other two jobs, Mr. Eason conflates the number of tasks required by each job with the number of steps required to perform any given listed task.118

The Court finds that one of the jobs identified by Ms. Lees—bobbin stripper—has a DOT description that requires tasks of more than 1 to 2 steps.119 The "task" in the description of that job is the overall tending of the stripper, which clearly involves numerous sequential steps.120 The ALJ provided no explanation for the conflict between his determination that Mr. Eason's RFC required him to perform light work involving 1- to 2-step tasks, Ms. Lees's determination that Mr. Eason could perform the work of bobbin stripper, and the DOT's description of those tasks as requiring more than one or two steps. Because Social Security regulations require such an explanation before the ALJ may rely on a Vocational Expert's evidence, the ALJ erred in relying on the Vocational Expert's evidence that Mr. Eason could perform the bobbin stripper job. And without consideration of the evidence of the Vocational Expert, the Court finds that the ALJ's determination that Mr. Eason could perform the job of bobbin stripper was not supported by substantial evidence.121

Unlike the description for bobbin stripper, the DOT description for "small products assembler" describes a series of discrete, repetitive tasks that such a worker might engage in.122 However, Mr. Eason asserts that the ALJ erred in finding that Mr. Eason's RFC permitted him to perform that job because Mr. Eason's RFC limits him to workplaces "with few workplace changes and providing verbal rather than written instructions," while the small products assembler position notes that a worker "may be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor."123 However, the Court agrees with the Commissioner that the DOT description contemplates "routine variations in the same job" and does not directly conflict with Mr. Eason's RFC.

Mr. Eason raises an additional challenge to the finding that he can perform the duties of a small products assembler. He asserts that the DOT description of small products assembler has a "reasoning level" of 2, and therefore the job is "plainly inconsistent with a limitation to 1-2 step tasks; jobs requiring 1-2 step tasks are explicitly defined in the DOT as `reasoning level 1.'"124 The Commissioner responds that numerous district and circuit courts have held that a limitation to 1- to 2-step tasks in a claimant's RFC does not limit the claimant to only those jobs having a reasoning level of 1. Upon review of those cases, the Court agrees that no inherent conflict exists between the small products assembler position's reasoning level of 2 and the RFC's 1- to 2-step task limitation.125 Because substantial evidence supports the determination that Mr. Eason can perform the job of a small products assembler with a limitation of physically alternating positions, a job which exists in significant numbers in the national economy, the Commissioner's finding that Mr. Eason was not disabled will be affirmed.

CONCLUSION

For the reasons set forth above, the Commissioner's finding that Mr. Eason was not disabled, as defined under the Social Security Act, is AFFIRMED. The Clerk of Court shall enter judgment in favor of the Commissioner.