Cogdell v. Commissioner of Social Security

Filing 39

RULING denying 25 plaintiff's Motion for Order Reversing the Commissioner's Decision and granting 31 Motion to Affirm the Decision of the Commissioner. Signed by Judge Holly B. Fitzsimmons on 3/28/2017. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
TASHIA NANETTE COGDELL
:
:
v.
: Civ. No. 3:14CV1334 (HBF)
:
CAROLYN W. COLVIN, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
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RULING ON CROSS MOTIONS1
Plaintiff Tashia N. Cogdell brings this action pursuant to
42 U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security which denied her application for
Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §401 et seq. (“the Act”) and
Supplemental Security Income (“SSI”) under Title XVI of the Act,
42 U.S.C. §423(a)(1)(E) and §1382(a)(1). Plaintiff has moved to
reverse and remand the case for a rehearing. The Commissioner
has moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Order Reversing the Commissioner’s Decision [Doc. #25] is

A recommended ruling was filed on March 8, 2017 [Doc. #33]. The
Court entered an order vacating the recommended ruling on March
28, 2017, [doc. #38] in light of the parties’ consent to proceed
before a United States Magistrate Judge [doc. #23] with appeal
to the Court of Appeals. Fed. R. Civ. P. 73(b)-(c).
1

1

DENIED. Defendant’s Motion for an Order Affirming the Decision
of the Commissioner [Doc. #31] is GRANTED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.
Plaintiff filed an application for DIB and SSI on March 26,
2010, alleging disability as of May 1, 2003.2 [Certified
Transcript of the Record, Compiled on May 2, 2015, Doc. #15
(hereinafter “Tr.”) 18, 181]. Plaintiff’s claims were denied
initially and on reconsideration. [Tr. 181].
On October 25, 2011, plaintiff, represented by counsel,
appeared before Administrative Law Judge (“ALJ”) Deirdre Horton
for an administrative hearing. [Tr. 36-68]. A second hearing was
held before ALJ Horton on November 2, 2012, after remand from
the Appeals Council. [Tr. 195-98; 69-114]. Vocational Expert
(“VE”) Kathleen Regan, testified by telephone at the hearing.
[Tr. 102-113]. On December 14, 2012, ALJ Horton found that
plaintiff was not disabled, and denied her claim. [Tr. 15-33].
Plaintiff’s January 17, 2013, request for review of the hearing
decision was denied on July 22, 2014. [Tr. 1-7; 8-9]. The case
is now ripe for review under 42 U.S.C. §405(g).

Plaintiff’s date last insured was December 31, 2012. [Tr. 20].
To qualify for DIB under Title II, plaintiff must be found
disabled on or before March 31, 2004. [Tr. 20]. Plaintiff can be
awarded SSI if she was disabled at the time of her application
for SSI benefits March 26, 2010, and remained disabled for a
year after.
2

2

Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse the Commissioner’s decision.
II.

STANDARD OF REVIEW
The review of a social security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
3

evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
(internal citations omitted).
It is important to note that, in reviewing the ALJ’s
4

decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1). To qualify for supplemental security
income, an individual must be eligible on the basis of income
and resources. 42 U.S.C. §1381a.
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that she is
unable to work after a date specified “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.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A).
5

Such impairment or impairments must be “of such severity that
[s]he is not only unable to do h[er] previous work but cannot,
considering h[er] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy[.]” 42 U.S.C. §423(d)(2)(A); see also 20 C.F.R.
§404.1520(c)(alterations added) (requiring that the impairment
“significantly limit[] ... physical or mental ability to do
basic work activities” to be considered “severe”); 42 U.S.C.
§1382c(a)(3)(B), 20 C.F.R. §416.920(c).
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
6

Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from his physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”

7

Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial
statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
IV.

THE ALJ’S DECISION
Following the above-described five step evaluation process,

ALJ Horton concluded that plaintiff was not disabled under the
Social Security Act. [Tr. 18-28]. At step one, the ALJ found
that plaintiff had engaged in substantial gainful activity
between October 2009 through June 2010. [Tr. 21]. The ALJ found
that there has been a continuous twelve month period(s) during
which plaintiff did not engage in substantial gainful activity.
Id. Her findings address the period(s) plaintiff did not engage
in substantial gainful activity. Id.
At step two, the ALJ found that plaintiff had the severe
medical impairments of degenerative disc disease of the lumbar
spine and bipolar disorder. Id.
At step three, the ALJ found that plaintiff’s impairments
or combination of impairments did not meet or medically equal
the severity of one of the listed impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d)
and 416.920(d)), specifically listings 1.04 (musculoskeletal for
disorders of the spine) and 12.04 (depressive disorder). Id. The
8

ALJ also conducted a psychiatric review technique and found that
plaintiff had mild limitations in her activities of daily
living, and moderate limitations in social functioning,
concentration, persistence and pace, and no episodes of extended
duration decompensation. [Tr. 21-22].
Before moving on to step four, the ALJ found that plaintiff
had the RFC to perform
light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b), and can sit, stand, and walk for 6 hours in
an 8 hour day. She can lift and carry 25 pounds
occasionally and 10 pounds occasionally and 10 pounds
frequently. She is able to understand, remember, and
carry out instructions; she would do better at working
in her own or in small groups; she should avoid working
with the public. She can maintain attention and focus to
complete simple tasks; however, she would occasionally
have difficulties maintaining focus for complex tasks.
[Tr. 22].
At step four, the ALJ found plaintiff was unable to perform
her past relevant work as a nurse’s aide. [Tr. 26]. At step
five, considering plaintiff’s age, education, work experience
and RFC, the ALJ found that jobs existed in significant numbers
in the national economy that plaintiff could perform. [Tr. 2628].
V.

DISCUSSION
On appeal, plaintiff asserts the following arguments in

favor of remand.
1. The ALJ’s step three finding was error;

9

2. The ALJ’s application of the treating physician’s rule was
error;
3. The ALJ’s credibility assessment was not supported by
substantial evidence;
4. The ALJ did not properly evaluate the duration,
persistence, location and severity of plaintiff’s pain;
5. The ALJ’s analysis of plaintiff’s residual functional
capacity was not supported by substantial evidence;
6. The ALJ’s step five determination was not supported by
substantial evidence.
A.

Substantial Evidence Supports the ALJ’s Step Three
Findings

The plaintiff challenges the ALJ’s findings at Step Three,
arguing that she meets Listings 1.04, and 12.04. As the
defendant correctly asserts, the plaintiff bears the burden of
proof at Step Three. Talavera, 697 F.3d at 151 (“The applicant
bears the burden of proof [at this stage] of the sequential
inquiry[.]”). At Step Three, an applicant is required to
identify a particular listing under which she may qualify. “For
a claimant to show that [her] impairment matches a listing, it
must meet all of the specified medical criteria.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990) (emphasis in original).
1.

Listing 1.04A

Plaintiff contends that her impairments meet the

10

requirements of Listing 1.04A, which addresses disorders of the
spine:
Disorders of the spine (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straightleg raising test (sitting and supine)[.]
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04A.
The medical evidence of record fails to support a finding
of nerve root compression. For example, an MRI of plaintiff’s
lumbar spine dated June 15, 2006 revealed “[g]eneralized disc
protrusion at L5-S1 with a small disc extrusion extending
posterior to L5 vertebrae. This has improved significantly in
appearance when compared to the examination of 6/15/05.” [Tr.
581]. “[N]o significant mass effect upon the thecal sac or exit
foramina” was noted. Id.; see also Tr. 583 (MRI dated 6/15/05).
Plaintiff also does not cite to any such proof. Because there is
no medical evidence of record that plaintiff suffers from nerve
root compression, she cannot meet this Listing.
Accordingly, the Court finds that substantial evidence
supports the ALJ’s finding that plaintiff did not meet Listing
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1.04A.
2.

Listing 12.04

Plaintiff also contends that her mental impairments meet
the requirements of Listing 12.04, which addresses affective
disorders:
Affective disorders: Characterized by a disturbance of
mood, accompanied by a full or partial manic or
depressive syndrome. Mood refers to a prolonged emotion
that colors the whole psychic life; it generally
involves either depression or elation.
The required level of severity for these disorders is
met when the requirements in both A and B are satisfied,
or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous
or intermittent of one of the following:
...
AND
B. Resulting in at least two of the following:
1. Marked restriction in activities of daily living;
or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episode of decompensation, each of
extended duration[.]
20 C.F.R. Pt. 404, Subpt. P App. 1, Listing 12.04 (emphasis
added). “A marked limitation may arise when several activities
or functions are impaired, or even when only one is impaired, as
long as the degree of limitation is such as to interfere

12

seriously with your ability to function independently,
appropriately, effectively, and on a sustained basis.” Id. at
12.00C (citing 20 C.F.R. §§404.1520a and 416.920a).
Plaintiff argues that she meets the section B requirements
of Listing 12.04 because she allegedly suffered from marked
impairments in her activities of daily living, social
functioning, and ability to maintain concentration, persistence
or pace. [Doc. #25-1 at 11-13]. The ALJ, by contrast, found that
plaintiff was only mildly restricted in her activities of daily
living and moderately restricted in social functioning, and
ability to maintain concentration, persistence or pace, and that
she suffered from no periods of extended duration
decompensation. [Tr. 22]. The Court finds that substantial
evidence supports the ALJ’s conclusion.
Plaintiff contends that she is markedly impaired in
activities of daily living. This argument is solely based on
APRN Susan Denisco’s Mental Impairment Questionnaire dated
November 2, 2010 and Medical Source Statement dated August 16,
2011.3 [Doc. #25-1 at 12; Tr. 495-99; 596-98]. However,

A Medical Source Statement of Ability to do Work-Related
Activities (Mental) was completed by APRN Susan Denisco on
August 16, 2011. [Tr. 596-98]. APRN Denisco opined that
plaintiff had a “moderate” impairment in her ability to
understand and remember and carry out simple instructions, and
understand and remember complex instructions and “marked”
impairment in her ability to make judgments on simple workrelated decisions, carry out complex instructions, and make
3

13

substantial evidence supports that ALJ’s finding. Dr. Murphy
reported in 2010 that plaintiff was “neat[,] clean, and had
well-maintained and appropriate clothing” and the visiting nurse
reports from 2012 failed to note any difficulties in this area.
[Tr. 22; 483; 654-892]. APRN Denisco found in 2010 that
plaintiff had “a slight problem” with caring for her physical
needs. [Tr. 497]. Plaintiff reported in her May 7, 2010
Activities of Daily Living Questionnaire that she prepared her
own meals, shopped for food and completed most household chores,
worked Monday through Friday from 9:00 AM to 3:00 PM and
attended church three times a week. [Tr. 415-18]. Plaintiff
reported working 5-6 hours a day 6 days a week during the 2010
consultative examination with Dr. Murphy. [Tr. 482].
Furthermore, the state reviewing, non-examining psychologists
each opined that plaintiff was not restricted in this regard.
[Tr. 131; 143]. Simply, plaintiff’s activities of daily living

judgments on complex work related decisions. [Tr. 596]. The
nurse stated “[t]his patient suffers from Bipolar Depression’
functions at a hypomanic level, poor judgment; hypo[],
impulsive. H/o chronic low back pain; sees orthopedist [and]
attends p.t.” [Tr. 596]. APRN Denisco opined that plaintiff had
“marked” limitations to interact appropriately with the public,
supervisor(s), co-workers, and respond appropriately to unusual
work situations and to changes in a routine work setting. [Tr.
597]. “Pt is impulsive; has poor boundaries, defensive;
difficulty taking direction from authority.” Id. The nurse
recommended a psychiatric evaluation which was conducted at
Southwest Community Health Center on January 26, 2012. [Tr. 597;
599-617].
14

were not impaired to a “marked” degree, as that term is defined
by the Listings.
Plaintiff also contends that she is markedly impaired in
social functioning. [Doc. #25-1 at 13]. However, as noted by the
ALJ, plaintiff does in fact leave the house to participate in
daily activities [Tr. 22], and plaintiff’s own description of
her normal daily routine involves her leaving the house to
socialize, attend church and shop. See Tr. 417-18; 615
(reporting she could engage with others). Treatment records from
Family Care Visiting Nurse also state that plaintiff was not
home bound and that she left the house from 2-5 hours a day 3-7
days a week to socialize and/or shop. [Tr. 643-898].

Again, the

state reviewing, non-examining psychologists each opined that
plaintiff experienced only moderate difficulties in this regard.
[Tr. 131, 143]. As set forth above, Plaintiff reported working
5-6 hours a day 6 days a week during the 2010 consultative
examination with Dr. Murphy. [Tr. 482]. A SCHC psychosocial
evaluation dated January 26, 2012, found plaintiff oriented to
time, place, and person. [Tr. 604]. Her affect, thought
processes and content, attention, memory, insight, judgment, and
impulse control were normal or appropriate. [Tr. 604].
Accordingly, substantial evidence supports a finding that
plaintiff’s social functioning was not impaired to a “marked”
degree, as that term is defined by the Listings.
15

Last, plaintiff argues that she is markedly impaired in
memory, concentration, persistence and pace. [Doc. #25-1 at 1213]. This argument, however, is not supported by the record.
Plaintiff stated that she could follow written and spoken
instructions “very well” and could pay attention for twenty to
thirty minutes. [Tr. 419]. Plaintiff further reported she was
able to pay bills, count change and handle a savings and
checking account. [Tr. 417]. In a 2010 evaluation by the
consultative examiner, Dr. Murphy, it was noted that plaintiff
“was able to remember most details of her history and her memory
appeared within normal limits;” “[t]here was no indication of
delusions or paranoid thinking;” “thoughts were consistent with
her mood;” and there was “no indication of psychosis.” [Tr.
483]. Plaintiff scored in the normal range of cognitive
functioning and the doctor found she had the “ability to carry
out simple instructions.” Id. Dr. Murphy concluded that “her
cognitive weakness may improve over time when her emotional
issues are treated. With proper psychological treatment, she may
see some improvement in cognitive functioning.” [Tr. 485-86]. In
a January 26, 2012 Psychosocial Evaluation plaintiff indicated
that she was able to read, write, retain information, engage
others, define needs, seek treatment, express feelings, and has
a supportive family. [Tr. 615].

Mental health treatment records

from Family Care Visiting Nurse in 2012, consistently report
16

that plaintiff’s mood was stable, with full range affect,
anxious, labile mood, neat appearance-sometimes disheveled,
clear and coherent thought process/speech, appropriate thought
content-sometimes noting poor insight and judgment, perception
was within normal limits and her behavior was cooperativesometimes noting that she was agitated, guarded or withdrawn.4
There was no indication of suicidal or homicidal ideation. [Tr.
643-898; see Tr. 632-42; 899-908; Treatment Records from
Southwest Community Health Center (Tr. 899 (“Client did not
report any significant psychiatric issues this week.”); 904
(Mood and affect appropriate. “[S]table on her medications.”);
906-8 (noted that mood and affect were appropriate)]. The state
reviewing non-examiners each also found plaintiff to suffer only
moderate difficulties in this area. [Tr. 131, 143]. Accordingly,

The treatment records from Family Care Visiting Nurse range
from June 28 through November 2, 2012, offering assistance to
plaintiff with medication compliance including pouring
medications. [Tr. 643-898]. The initial psychosocial evaluation
on January 26, 2012, from Southwest Community Health Center
assigned a GAF score of 48. [Tr. 614]. “GAF rates overall
psychological functioning on a scale of 0–100 that takes into
account psychological, social, and occupational functioning.”
Zabala v. Astrue, 595 F.3d 402, 406 n.1 (2d Cir. 2010)(citing
Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders 34 (“DSM-IV),(4th ed. 2000). “A GAF in the
range of 41 to 50 indicates ‘[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).’” Id. at
n.2 (quoting DSM-IV, at 34). Consultative Examiner Dr. Murphy
assigned a GAF score of 50 in June 2010. [Tr. 485].
4

17

substantial evidence supports a finding that plaintiff’s
concentration, persistence or pace were not impaired to a
“marked” degree, as that term is defined by the Listings.
Finally, there is no evidence that plaintiff experienced
episodes of decompensation.
Accordingly, the Court finds that substantial evidence
supports the ALJ’s finding that plaintiff did not meet Listing
12.04.
B.

The ALJ Correctly Applied the Treating Physician Rule

Plaintiff next contends that the ALJ erred in his
application of the treating physician rule.
Pursuant to 20 C.F.R. §404.1527(c)(2), a treating source’s
opinion will usually be given more weight than a non-treating
source. If it is determined that a treating source’s opinion on
the nature and severity of a plaintiff’s impairment is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” the opinion is given
controlling weight. 20 C.F.R. §404.1527(c)(2). If the opinion,
however, is not “well-supported” by “medically acceptable”
clinical and laboratory diagnostic techniques, then the opinion
cannot be entitled to controlling weight. Id. If the treating
source’s opinion is not given controlling weight, the ALJ
considers the following factors in weighing the opinion: length
18

of treatment relationship, frequency of examination, nature and
extent of the treatment relationship, relevant evidence used to
support the opinion, consistency of the opinion with the entire
record, and the expertise and specialized knowledge of the
source. See 20 C.F.R. §404.1527(c)(2)-(6); SSR 96-2P, 1996 WL
374188, at *2 (S.S.A. July 2, 1996). If the treating physician’s
opinion is not supported by objective medical evidence or is
inconsistent with other substantial evidence in the record, the
ALJ need not give the opinion significant weight. See Poupore,
566 F.3d at 307.
1.

Susan Denisco, DNP, APRN, FNP-BC

Plaintiff first argues that the ALJ erred by assigning
“some weight” to the opinion of Family Nurse Practitioner Susan
Denisco. With respect to these opinions, the ALJ stated:
A medical source statement submitted by Susan Denisco,
FNP-BC, dated November 2010, indicated that she had been
treating the claimant since 2001. She noted a slight
improvement. Ms. Denisco noted intermittent complaints
of anxiety and depression, with no hospitalizations. The
claimant was reported to have pressured speech,
obsessive thoughts, and an expansive affect. Ms. Denisco
opined that the claimant had manic behaviors which would
prevent her from getting along well with others. She
also noted poor coping skills and poor social skills
(Exhibit 5F). The undersigned has given some weight to
this opinion, despite being from a family nurse
practitioner, and in doing so has provided the following
limitations into the residual functional capacity: she
would do better at working in her own or in small groups;
she should avoid working with the public.
In August 2011, Ms. Denisco completed another medical
19

source statement, indicating that the claimant was
impulsive and hypomanic (Exhibit 13F). She noted that
her treatment for depression began in June 2009. The
undersigned has given some weight to Ms. Denisco’s
opinions, but does not find that the claimant has marked
levels of functioning, given that she worked for over a
year, in at least one demanding and stressful job.
Moreover, it does not appear that the claimant’s
depression became an issue until 2010. An incomplete
Social Services form in June 2012 noted the claimant’s
diagnoses as bipolar and back pain, but the rest of the
form was not completed (Exhibit 16F).
[Tr. 25 (emphasis added)].
Social Security Ruling 06–03p clarifies how the
Commissioner will consider opinions from sources that are not
“acceptable medical sources.” SSR 06–03p distinguishes between
“acceptable medical sources” and “other sources” because (1)
“acceptable medical sources” are necessary to provide evidence
of medically determinable impairments; (2) only “acceptable
medical sources” can give medical opinions; and (3) only
“acceptable medical sources” can be treating sources whose
medical opinions can be afforded controlling weight. SSR 06–03p,
2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006).
An Advanced Practice Registered Nurse (APRN) does not fall
within the category of “acceptable medical sources.” See id. at
*2. Nonetheless, all relevant evidence in the case record is
required to be considered. Id. at *4; 20 C.F.R. §404.1527(b).
The weight accorded the evidence varies based on the following
factors: length and frequency of treatment relationship,

20

consistency with other evidence, degree to which relevant
evidence is offered in support of an opinion, how well the
source explains an opinion, whether the source has expertise
related to the impairment, and other relevant information. SSR
06–03p, 2006 WL 2329939, at **4-5.
Here, Ms. Denisco offered no explanation for her opinions
and cited no relevant evidence in support of it despite a
treating relationship since 2001. [Tr. 25]. In determining that
Ms. Denisco’s opinion be afforded some weight, the ALJ expressly
indicated that Ms. Denisco was not an acceptable medical source,
assigning “some weight to [her] opinions, but [did] not find
that the claimant [had] marked levels of functioning, given that
she worked for over a year, in at least one demanding and
stressful job.” [Tr. 25]. “The ALJ's remarks were a proper
application of SSR 06–03p in determining the weight given to
other sources that are not acceptable medical sources.” JonesReid v. Astrue, 934 F. Supp. 2d 381, 401 (D. Conn. 2012), aff'd,
515 F. App'x 32 (2d Cir. 2013).
The Court also notes that there are no treatment records
from Ms. Denisco to support her opinions and plaintiff cites to
none. Nothing in the record indicates that Ms. Denisco had any
expertise as to plaintiff's mental limitations. As set forth
above, the record shows that plaintiff’s mental health improved
with consistent treatment and compliance with her medications.
21

[Tr. 643-898; see Tr. 632-42; 899-908; Treatment Records from
Southwest Community Health Center (Tr. 899 (“Client did not
report any significant psychiatric issues this week.”); 904
(Mood and affect appropriate. “[S]table on her medications.”);
907-8 (noted that mood and affect were appropriate)].
Accordingly, the Court finds that the ALJ's determination that
Ms. Denisco’s opinions be given some weight was well supported.
2.

Consultative Examiner Dr. Annmarie Murphy

With respect to consultative examiner Dr. Annmarie
Infantino Murphy, plaintiff asserts that that the ALJ erred in
assigning “significant weight” to the doctor’s opinion.
“State agency medical and psychological consultants ... are
highly qualified physicians who are experts in Social Security
disability evaluation, 20 C.F.R. §404.1527(f), and, as the
Second Circuit has held, the opinions of non-examining sources
can override the treating sources opinions provided they are
supported by evidence in the record.” Mitchell v. Astrue,
3:10CV00902(CSH), 2011 WL 9557276, at *15 n.22 (D. Conn. May 24,
2011), report and recommendation adopted, 3:10CV00902(CSH), 2012
WL 6155797 (D. Conn. Dec. 11, 2012) (citing Schisler v.
Sullivan, 3 F.3d 563, 567 (2d Cir. 1993)) (internal citation and
quotation marks omitted).
Here, Dr. Murphy examined plaintiff on June 4, 2010 and
administered a clinical interview, Slossan Test of Intelligence22

Revised, TONI-2, WAIS-IV Processing and Working Memory Subtests,
Selected Subtests of the Weschsler Memory Test,
Neuropsychological Symptoms Checklist, Mental Status Exam, Beck
Psychological Inventory, 15-Item Malingering Test, and Selected
Items of the Miller Test of Malingering. [Tr. 481-86]. The
evaluation included a detailed psychosocial and medical history
and historical evaluations provided by plaintiff. [Tr. 481-82].
The ALJ accurately found that plaintiff
reported that she was working 6 days a week for 5 hours
a day as a CNA, and had cut back due to back pain . . .
She was described as neat, clean, well-maintained and in
appropriate clothing. Her memory appeared to be within
normal limits. She had a mildly depressed mood but was
animated. A mini mental exam was normal. Dr. Murphy
performed cognitive tests, in which claimant scored a
full scale IQ of 70-80, but Dr. Murphy qualified this
finding of borderline intellectual functioning by saying
that it was a tentative diagnosis of cognitive ability,
as the test performed was not as comprehensive as the
WAIS-IV. Moreover, Dr. Murphy indicated that the
cognitive functioning could be improved by psychological
treatment for emotional issues. Dr. Murphy recommended
that the Bureau of Rehabilitative Service provide job
coaching to maintain the claimant’s current employment.
The undersigned has given significant weight to Dr.
Murphy’s findings, which did not preclude unskilled
work.
[Tr. 25, 482-86]. These findings are supported by Dr. Murphy’s
observations and test findings and are not disputed. Instead,
plaintiff emphasizes other findings contained in Dr. Murphy’s
report and contends that the “ALJ engaged in prohibited cherrypicking” and selective consideration of the record. However, as
set forth above, the opinions expressed in Dr. Murphy’s
23

psychological evaluation were consistent with the remainder of
the record. [Tr. 643-898; see Tr. 632-42; 899-908; Treatment
Records from Southwest Community Health Center (Tr. 899 (“Client
did not report any significant psychiatric issues this week.”);
904 (Mood and affect appropriate. “[S]table on her
medications.”); 906-8 (noted that mood and affect were
appropriate)]. Here, the ALJ evaluated Dr. Murphy’s evaluation
and adequately articulated the facts relied on in assigning
weight to the doctor’s opinion. SSR 96-5P, 1996 WL 374183, at *5
(S.S.A. July 2, 1996) (“Adjudicators must weigh medical source
statements under the rules set out in 20 C.F.R. §§404.1527 and
416.927, providing appropriate explanations for accepting or
rejecting such opinions.”).

Moreover, “[g]enuine conflicts in

the medical evidence are for the Commissioner to resolve.”
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing
Richardson v. Perales, 402 U.S. at 399).
Accordingly, the Court finds that the ALJ did not err in
her application of the treating physician rule.
C.

The ALJ Properly Determined the Plaintiff’s
Credibility

Plaintiff next argues that the ALJ erred in her credibility
determination. The ALJ is required to assess the credibility of
the plaintiff’s subjective complaints. See generally 20 C.F.R.
§404.1529. The courts of the Second Circuit prescribe a two-step

24

process. First, the ALJ must determine whether the record
demonstrates that the plaintiff possesses a medically
determinable impairment that could reasonably produce the
alleged symptoms. 20 C.F.R. §404.1529(b). Second, the ALJ must
assess the credibility of the plaintiff’s complaints regarding
the intensity of the symptoms. 20 C.F.R. §404.1529(c). To do
this, the ALJ must determine if objective evidence alone
supports the plaintiff’s complaints; if not, the ALJ must
consider other factors laid out at 20 C.F.R. §404.1529(c). See
Skillman v. Astrue, No. 08CV6481, 2010 WL 2541279, at *6
(W.D.N.Y. June 18, 2010). These factors include: “(1) the
claimant’s daily activities; (2) the location, duration,
frequency and intensity of the claimant’s pain; (3) any
precipitating or aggravating factors; and (4) the type, dosage,
effectiveness, and side effects of any medication taken by
claimant to alleviate the pain.” Id. (citations omitted). The
ALJ must consider all the evidence in the case record. SSR 163P, 2016 WL 1119029, at *2 (S.S.A. March 16, 2016). Furthermore,
the “determination or decision must contain specific reasons for
the weight given to the individual's symptoms, be consistent
with and supported by the evidence, and be clearly articulated
so the individual and any subsequent reviewer can assess how the
how the adjudicator evaluated the individual's symptoms. Id. at
*9.

“Put another way, an ALJ must assess subjective evidence in
25

light of objective medical facts and diagnoses.” Williams, 859
F.2d at 261.
After summarizing plaintiff’s testimony, the ALJ made the
following statement regarding plaintiff’s credibility:
After careful consideration of the evidence, the
undersigned
finds
that
the
claimant’s
medically
determinable impairments could reasonably be expected to
cause the alleged symptoms; however the claimant’s
statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual
functional capacity assessment. (SSR 96-7P). The
claimant started receiving visiting nursing services in
June 2012. Despite her testimony, the records reveal
that she was able to dress and bathe independently;
toilet and ambulate. Her pain was described as mild, as
a 3/10 and interfered less than often with her daily
activities. She had no mobility limitations and was
walking frequently. She left home for socializing and
shopping, at least 5 days a week. At times she denied
pain, and indicated that her mood was a 5/10. She was
also traveling to Florida (Exhibit 19F; see pgs. 54, 62,
74, 76).
Despite the claimant’s allegations, the claimant has
actually worked somewhat consistently since the alleged
onset date of disability in 2003. Between 2007 and 2010,
the claimant worked as a certified nursing assistan[t].
She testified that she would go to patients’ homes and
straighten up the house, do dishes, and make sure
patients got meals. The claimant testified that she had
to help patients get in and out of chairs, and would
have to help keep them from falling. Prior to doing inhome nursing care, the claimant worked in several
nursing home facilities between 2003 and 2004.
Additionally, the claimant also testified that between
2004 and 2007 the claimant was doing in-home day care.
She testified that she cared for 5-6 children at a time.
The undersigned notes that caring for upwards of six
children is no easy task, and is certainly challenging,
both mentally and physically. Overall, the claimant has
shown an ability to work since the alleged onset date.
26

This work history is inconsistent with allegations of a
disabling condition.
[Tr. 26; Tr. 45-50; 76-81; 397-412; 417-18; 550; 696-98; 710-12;
718; 659-982]. The ALJ conducted a detailed analysis of the
objective and other medical evidence of record supporting this
finding. [Tr. 22-26].
Plaintiff first takes issue with the ALJ’s use of
“boilerplate language,” which she claims “conflicts with the
agency’s own regulations . . . .” [Doc. #25-1 at 19]. This
argument, however, is without merit as the ALJ’s credibility
analysis was not limited to boilerplate language. Indeed, as
noted above, she engaged in an extensive analysis of the record
and found plaintiff not credible based on a number of different
factors including: plaintiff’s work history since her alleged
onset disability date; visiting nurses treatment records since
June 2012; gaps in treatment since the alleged onset date; and
inconsistencies between her testimony and the medical evidence
of record.5 [Tr. 23-26]. Accordingly, the ALJ’s use of
boilerplate language does not constitute error, where she has

The Court further recognizes that the ALJ had an opportunity to
personally observe plaintiff at the hearing. Cf. Suarez v.
Colvin, No. 14CV6505(AJP), 2015 WL 2088789, at *23 (S.D.N.Y. May
6, 2015) (“[C]ourts must show special deference to an ALJ's
credibility determinations because the ALJ had the opportunity
to observe plaintiff’s demeanor while [the plaintiff was]
testifying.” (quoting Marquez v. Colvin, No. 12CV6819(PKC),
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013))).
5

27

adequately explained her credibility findings. See Halmers v.
Colvin, No. 12CV00288(MPS), 2013 WL 5423688, at *7 (D. Conn.
Sept. 26, 2013) (“[T]he use of boilerplate language is not an
error [] ‘if the ALJ has otherwise explained his conclusion
adequately[.]’”)(quoting Filus v. Astrue, 694 F.3d 863, 868 (7th
Cir. 2012)).
Next, plaintiff contends that the ALJ did not properly
consider her complaints of pain. The Court disagrees. A close
review of the ALJ’s decision reflects that she did in fact
consider plaintiff’s allegations of pain, their consistency or
inconsistency with the objective medical evidence, gaps in
treatment and how such complaints of pain generally did not
result in functional limitations. See Tr. 23-26. Although “the
subjective element of pain is an important factor to be
considered in determining disability,” Mimms v. Heckler, 750 F.2d
180, 185 (2d Cir. 1984) (citation omitted), an ALJ is not
“required to credit [plaintiff’s] testimony about the severity of
her pain and the functional limitations it caused.” Rivers v.
Astrue, 280 F. App’x 20, 22 (2d Cir. 2008). Indeed, “[t]he ALJ
has discretion to evaluate the credibility of a claimant and to
arrive at an independent judgment, in light of medical findings
and other evidence, regarding the true extent of the pain alleged
by the claimant.” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979); Snell, 177 F.3d 128, 135 (2d Cir. 1999). This is precisely
28

the evaluation performed by the ALJ here.

Accordingly, the Court

finds no error.
Moreover, the ALJ had the opportunity to personally observe
plaintiff and her testimony, something the Court cannot do.
Accordingly, the Court finds no error in the ALJ’s assessment of
plaintiff’s credibility.
D.

The ALJ’s RFC Determination.

Plaintiff next argues that the ALJ failed to properly
determine her RFC. The ALJ found that plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) and can sit, stand, and walk for 6 hours
in an 8 hour day. She can lift and carry 25 pounds
occasionally and 10 pounds frequently. She is able to
understand, remember, and carry out instructions; she
would do better at working [on] her own or in small
groups; she should avoid working with the public. She
can
maintain attention and focus to complete simple
tasks; however, she could occasionally have difficulties
maintaining focus for complex tasks.
[Tr. 22].
Plaintiff first claims that “it is unclear what the ALJ
relied on to get the RFC description[.]” [Doc. #25-1 at 21]. The
Court construes this as an argument that the ALJ’s RFC is not
supported by substantial evidence.
The regulations define light work as follows:
Light Work. Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some
29

pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of
light work, you must have the ability to do substantially
all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as
loss of fine dexterity or inability to sit for long
periods of time.
20 C.F.R. §§404.1567(b), 416.967(b). Despite plaintiff’s
arguments to the contrary, the ALJ’s RFC determination is
supported by substantial evidence of record. Specifically, the
ALJ conducted a detailed review of the relevant evidence of
record, including plaintiff’s testimony, treatment notes from
plaintiff’s medical providers, and the medical opinions of
record. [22-26]. As noted by the ALJ, there are considerable
gaps in treatment for alleged physical impairments. [Tr. 24].
Despite seeking treatment for leg pain in July 2006, she did not
return for treatment until July 2007.6 [Tr. 24; 531-33].
Plaintiff sought sporadic treatment for complaints of back
and/or neck pain at SCHC on August 18, 2008; June 16, 2009; July
7, 2009; and January 25, 2010, and sought chiropractic treatment
five times between December 2003 and September 2007. [Tr. 24;
471-74; 510-11]. Moreover, treatment records do not establish
that she was physically unable to work. In July 2009, plaintiff
could ambulate without difficulty. [Tr. 24; 473]. In 2010,

Plaintiff sought treatment on April 2, 2007, for a cold. [Tr.
532].
6

30

plaintiff reported she was working 5 hours a day 6 days a week.
[Tr. 482]. In March 2011, plaintiff exhibited no pain to
palpation of the cervical and lumbar spine, and had full range
of motion with only “some discomfort” and no neuropathic pain.
[Tr. 24; 513]. In 2012, treatment records from Family Care
Visiting Nurse consistently noted that plaintiff’s physical
assessment was within normal limits, she was independently
mobile, with fair endurance and denied pain.7

See Tr. 877 (7/9/12); Tr. 875 (7/10/12); Tr. 873 (7/11/12); Tr.
871 (7/12/12); Tr. 869 (7/13/12); Tr. 867 (7/16/12); Tr. 854
(7/26/12); Tr. 852 (7/27/12); Tr. 850 (7/31/12); Tr. 847
(8/1/12); Tr. 845 (8/2/12); Tr. 843 (8/3/12); Tr. 841 (8/6/12);
Tr. 839 (8/7/12); Tr. 835 (8/9/12); Tr. 831 (8/13/12); Tr. 827
(8/15/12); Tr. 825 (8/16/12); Tr. 823 (8/17/12); Tr. 828
(8/18/12); Tr. 819 (8/21/12); Tr. 817 (8/22/12); Tr. 815
(8/23/12); Tr. 813 (8/24/12); Tr. 811 (8/27/12); Tr. 809
(8/28/12); Tr. 807 (8/29/12); Tr. 804 (8/30/12); Tr. 802
(8/31/12); Tr. 799 (9/4/12); Tr. 797 (9/5/12); Tr. 795 (9/6/12);
Tr. 793 (9/7/12); Tr. 791 (9/10/12); Tr. 789 (9/11/12); Tr. 787
(9/12/12); Tr. 785 (9/13/12); Tr. 783 (9/14/12); Tr. 780
(9/18/12); Tr. 777 (9/20/12); Tr. 775 (9/21/12); Tr. 773
(9/22/12); Tr. 771 (9/24/12); Tr. 769 (9/25/12); Tr. 767
(9/26/12); Tr. 765 (9/27/12); Tr. 763 (9/28/12); Tr. 761
(10/1/12); Tr. 759 (10/2/12); Tr. 757 (10/3/12); Tr. 755
(10/4/12); Tr. 753 (10/5/12); Tr. 735 (10/9/12); Tr. 749
(10/10/12); Tr. 743 (10/16/12); Tr. 741 (10/17/12); Tr. 791
(10/18/12); Tr. 737 (10/19/12); Tr. 733 (10/22/12); Tr. 731
(10/23/12); Tr. 729 (10/24/12); Tr. 727 (10/25/12); Tr. 725
(10/26/12); Tr. 723 (10/30/12); Tr. 721 (10/31/12); 719
(11/1/12); Tr. 717 (11/2/12).
7

On June 29, 2012, and July 2, 4, 17 and 19, 2012, plaintiff
reported back pain on a scale of 2 out of 10. [Tr. 861; 865;
883; 887; 889]. On July 3, 2012, plaintiff reported back pain on
a scale of 3 out of 10. [Tr. 885]. On July 6, 18 and 20 and
October 8, 2012, plaintiff reported back pain on a scale of 4
out of 10. [Tr. 751; 859; 863; 879]. On August 9, 2012,
plaintiff reported back pain at a level 5 on a scale of 10. [Tr.
31

As previously discussed, the ALJ permissibly placed
“significant weight” on the opinion of consultative examiner Dr.
Murphy. Moreover, the ALJ also considered the State Agency
opinions and found that plaintiff’s limitation were “more
commensurate with light work, rather than a medium exertional
capacity” assessed in their opinions. [Tr. 25-26]. Other
substantial evidence of record, recited in the Court’s
discussion above, also supports the ALJ’s findings.
Finally, plaintiff argues that the ALJ failed to address
pain to her back, neck, arm, wrist, hip, leg or foot and the
limitations caused by these conditions. [Doc. #25-1 at 21-21].
The Court finds this argument without merit. As previously
stated, the ALJ’s decision reflects that she did in fact
consider plaintiff’s allegations of pain, their consistency or
inconsistency with the objective medical evidence, and how such
complaints of pain generally did not result in functional
limitations. See, e.g., Tr. 23 (noting plaintiff’s 2006 back MRI
showed improvement since June 2005); Tr. 23 (noting normal
pelvic x-ray);

Tr. 23-24 (noting normal x-rays to hand and

833]. On October 15, 2012, the nurse noted that plaintiff
reported pain to her back/hips at a level 8 on a scale of 10.
[Tr. 745]. On August 31, 2011, October 24, 2011, May 8, 2012 and
June 28, 2012 and October 12, 2012, plaintiff complained of back
pain at a level 9 on a scale of 10. [Tr. 619; 621-22; 747; 893].
She was taking Flexeril and reported moderate pain relief. [Tr.
745-51; 833; 859; 861; 865; 879; 883; 885; 887; 889; 895].
32

wrist); Tr. 24 (noting gaps in treatment for leg/calf pain); Tr.
24 (summarizing treatment for back pain). She further conducted
an extensive credibility analysis and permissibly found
plaintiff’s claims of pain not credible. See Tr. 23-26.
Plaintiff has otherwise failed to demonstrate how her
alleged back, neck, arm, wrist, hip, leg or foot pain affect the
ALJ’s RFC finding. Accordingly, the Court finds no error.
E.

There is Substantial Evidence Supporting the ALJ’s
Step Five Determination.

Plaintiff next contends that the ALJ erred at Step Five of
the sequential evaluation because he failed to present credible
evidence of jobs which plaintiff could perform with her “actual”
RFC. [Doc. #25-1 at 23-25]. Substantial evidence supports the
ALJ’s determination that the plaintiff is able to perform a
significant number of jobs in the national economy. As
discussed, the ALJ properly weighed the medical evidence at
issue, and his RFC and credibility findings are supported by
substantial evidence of record. As to whether there are jobs
that the plaintiff can perform, the VE testified that given the
RFC determined by the ALJ, the plaintiff would be able to
perform occupations such as laundry sorter, electronics swapper
and price marker. [Tr. 25, 104-05]. As the testimony of the VE
is consistent with the findings of the ALJ and the evidence in
the record, there is substantial evidence supporting the ALJ’s

33

determination that the plaintiff can perform a significant
number of jobs that exist in the national economy. Accordingly,
this argument is without merit. See, e.g., Calabrese v. Astrue,
358 F. App’x 274, 276 (2d Cir. 2009) (citations omitted) (“An
ALJ may rely on a vocational expert’s testimony regarding a
hypothetical so long as the facts of the hypothetical are based
on substantial evidence, and accurately reflect the limitations
and capabilities of the claimant involved.”).
As noted earlier, the Court’s role in reviewing a
disability determination is not to make its own assessment of
the plaintiff’s capabilities; it is to review the ALJ’s decision
for any reversible error. Whether there is substantial evidence
supporting the plaintiff’s view is not the question here.
Finally, plaintiff makes a claim of error that the ALJ and
VE mistakenly employed the incorrect DOT Code Number when
describing the job of laundry sorter. [Doc. #25-1 at 23-24].
However, the VE cited to two additional jobs, electronics
swapper and price marker, and their correct DOT codes. [Tr. 10405]. Even if there were an error in relation to the laundry
sorter job, plaintiff has not challenged the reliability of the
VE’s testimony as to the existence of jobs in significant
numbers in Connecticut for electronics swapper and price marker.
“[E]ven one available job may meet the commissioner’s burden at
Step 5. Thus, elimination of one job would not constitute
34

harmful error.” Hatt v. Soc. Sec. Admin. Comm’r, No. 1:13-cv00335-NT, 2014 WL 4411600, at *4, n.2 (D. Me. Sept. 5, 2014)
(citation omitted); see also Brown v. Astrue, 852 F. Supp. 2d
543, 557 (D. Del. 2012) (“In order to meet the burden of
production at step five of the sequential analysis, the
Commissioner needs to identify at least one occupation that
exists in significant numbers in the national economy that a
claimant can perform.”) (citation omitted); Rios v. Astrue, 848
F. Supp. 2d 1283, 1290 (D. Colo. 2012) (holding that any error
in one of three jobs identified by VE as available to plaintiff
was harmless if no error shown as to other two).
Accordingly, the Court finds no error in the ALJ’s reliance
on the vocational expert’s testimony in support of her
determination at step five.
VI.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Order

Reversing the Commissioner’s Decision [Doc. #25] is DENIED.
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner [Doc. #31] is GRANTED.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [doc. #26] on
November 16, 2015, with appeal to the Court of Appeals.

35

Fed. R.

Civ. P. 73(b)-(c).
SO ORDERED at Bridgeport this 28th day of March 2017.
____/s/______________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

36