Torres v. Colvin

Filing 28

RULING ON CROSS MOTIONS TO REVERSE AND AFFIRM DECISION OF THE COMMISSIONER OF SOCIAL SECURITY: For the reasons set forth in the attached ruling, plaintiff's motion to reverse the Commissioner's decision (Doc. # 22 ) is GRANTED, and defendan t's motion to affirm the Commissioner's decision (Doc. # 25 ) is DENIED. Because I conclude that the ALJ's step-five error on its own warrants reversal, I need not reach the other claims of error raised by plaintiff. The case is remanded solely for calculation and payment of benefits. It is so ordered. Signed by Judge Jeffrey A. Meyer on 5/3/2017. (Levenson, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

HECTOR MANUEL TORRES,
Plaintiff,
v.
No. 3:16-cv-00809(JAM)
CAROLYN W. COLVIN, COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.

RULING ON CROSS MOTIONS TO REVERSE AND AFFIRM DECISION
OF THE COMMISSIONER OF SOCIAL SECURITY
Plaintiff Hector Manuel Torres alleges that he is disabled and cannot work as a result of a
combination of physical and mental health impairments, including major depressive disorder,
polysubstance abuse, a left shoulder injury, asthma, and obesity. He has brought this action
pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of defendant Commissioner of
Social Security denying his claim for disability insurance benefits and supplemental security
income benefits. For the reasons that follow, I will grant plaintiff’s motion to reverse the
Commissioner’s decision (Doc. #22), deny defendant’s motion to affirm the Commissioner’s
decision (Doc. #25), and remand the case for calculation and payment of benefits.
BACKGROUND
The Court refers to the transcripts provided by the Commissioner. See Doc. #12-1
through Doc. #12-41. Plaintiff is a 55-year-old man who was born in Puerto Rico and cannot
read or write in English. He previously worked in landscaping and construction but has not
worked since November 1, 2009. His medical records reveal a variety of physical impairments
and serious mental health issues, including hallucinations and multiple suicide attempts.

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Administrative Law Judge (ALJ) Robert DiBiccaro initially denied plaintiff’s claim for
benefits on September 23, 2011. On appeal, the District Court (Underhill, J.) adopted Magistrate
Judge Garfinkel’s recommended ruling and remanded the case because the ALJ’s determination
of plaintiff’s residual functional capacity (RFC) was not supported by substantial evidence. See
Torres v. Colvin, 3:13-cv-00553 (D. Conn. 2014), Docs. #17, #18.
On remand, the ALJ again denied plaintiff’s claim for benefits. In his decision of March
22, 2016, the ALJ determined that plaintiff did not engage in substantial gainful activity during
the relevant time period; that plaintiff suffered from several severe impairments, including major
depressive disorder, polysubstance abuse in early remission, left shoulder biceps tendon rupture,
and asthma; that plaintiff had the RFC to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c), with a number of additional limitations;1 and that plaintiff was
unable to perform any of his past relevant work. Doc. #12-14 at 12–14. Nevertheless, the ALJ
concluded that there were jobs that existed in significant numbers in the national economy that
plaintiff could perform, and therefore plaintiff was not disabled within the meaning of the Social
Security Act. Id. at 18.
After the Appeals Council denied plaintiff’s request for review, plaintiff filed this second
federal action asking the Court to reverse the Commissioner’s decision. Doc. #22. In his
memorandum, plaintiff argues that (1) the ALJ’s finding that plaintiff could perform jobs that
exist in significant numbers in the national economy was not supported by substantial evidence,
(2) plaintiff’s obesity was not properly evaluated, (3) the ALJ erred in failing to seek medical

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These additional limitations included “occasional use of the non-dominant left upper extremity for
reaching overhead and frequent use in other directions; he should avoid concentrated exposure to dust, fumes, gases,
chemicals and other environmental irritants; he is limited to occasional interaction with supervisors and co-workers;
he should have no interaction with the public; and the job should require less than 30 days to learn, involve only
simple instructions and routine, repetitive tasks, and no strict time or production quotas.” Doc. #12-14 at 14.

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source statements, and (4) the ALJ’s RFC finding was not supported by substantial evidence.
Doc. #22-1. In response, the Commissioner moved to affirm the Social Security Administration’s
final decision. Doc. #25. On May 1, 2017, this Court heard oral argument on the parties’
motions.
DISCUSSION
The Court may “set aside the Commissioner’s determination that a claimant is not
disabled only if the factual findings are not supported by substantial evidence or if the decision is
based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation
marks and citation omitted); see also 42 U.S.C. § 405(g). Substantial evidence is “more than a
mere scintilla” and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per
curiam).
To qualify for disability insurance benefits, a claimant must show that he is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months,” and “the impairment must be ‘of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.’” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting
42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists
in significant numbers either in the region where [a claimant] live[s] or in several other regions
of the country,” and “when there is a significant number of jobs (in one or more occupations)
having requirements which [a claimant] [is] able to meet with his physical or mental abilities and

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vocational qualifications.” 20 C.F.R. § 404.1566(a)–(b); see also Kennedy v. Astrue, 343 F.
App’x 719, 722 (2d Cir. 2009).
To evaluate a claimant’s disability and determine whether he or she qualifies for benefits,
the agency engages in a well-established five-step process. See Cage v. Comm’r of Soc. Sec., 692
F.3d 118, 122–23 (2d Cir. 2012). The claimant bears the burden of proving his case at steps one
through four; at step five, the burden shifts to the Commissioner to demonstrate that there is
other work that the claimant can perform, based on the claimant’s RFC, age, education, and past
relevant work. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). Specifically, “the
Commissioner must determine [at step five] that significant numbers of jobs exist in the national
economy that the plaintiff can perform. An ALJ may make this determination either by applying
the Medical Vocational Guidelines or by adducing testimony of a vocational expert. An ALJ
may rely on a vocational expert’s testimony regarding a hypothetical as long as there is
substantial record evidence to support the assumption[s] upon which the vocational expert based
his opinion.” Id.
Here, plaintiff contends that the ALJ’s step-five conclusion—that there was significant
work in the national economy that plaintiff could perform—was not supported by substantial
evidence. I agree and find that the Commissioner plainly did not carry her burden. At step five,
the ALJ purported to rely on the testimony of vocational expert Susan Howard, who testified on
December 2, 2015. The ALJ cited Howard’s testimony that an individual with plaintiff’s age,
education, work experience, and RFC, plus an additional right upper extremity limitation,
“would be able to perform the requirements of representative occupations such as: laundry
laborer.” Doc. #12-14 at 18. In his decision, the ALJ asserted that Howard “used her professional

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experience to reduce the numbers [of laundry laborer jobs available nationally] to 50,000 to
account for the possibility of exposure to chemicals.” Ibid.
The ALJ did not accurately portray Howard’s testimony. Although Howard did initially
estimate the number of available laundry laborer jobs at 50,000, after further questioning she
ultimately revised her estimate to a mere 756 laundry laborer jobs available nationally and that
would be suitable for plaintiff. See id. at 63–64 (“Q: All right. And so, so basically you’re saying
laundry laborer positions are, at your best estimate would be 756 jobs based on the direct
proportionality of the, of the numbers? A: Yes. . . . I think it’s reasonable to expect that there
would be at least that many laundry laborers in the national economy that work in hospitals or
hotels where they are not exposed to chemicals as they would be at a laundromat.”). Thus, the
ALJ’s assertion that Howard estimated the number of suitable laundry laborer jobs at 50,000 was
not accurate.
The ALJ’s step-five conclusion was not otherwise supported by Howard’s testimony.
Although the ALJ noted in his opinion that there could potentially be “additional jobs for the
claimant’s residual functional capacity,” id. at 19, Howard did not identify any such jobs that
would be appropriate for plaintiff considering his limitations. Howard initially discussed the job
of sandwich board operator but indicated that this job would not be appropriate for someone
limited to no interaction with the public. Id. at 48. Howard also initially identified the job of
dining room attendant, but she later eliminated this as a possibility given plaintiff’s limitations,
because it requires “constant reaching and handling,” as well as occasional interaction with the
public. Id. at 57, 70.
Although “the term ‘significant number’ is not statutorily defined and courts have
generally found that what constitutes a ‘significant’ number is fairly minimal,” Rodriguez v.

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Astrue, 2013 WL 3753411, at *3 (S.D.N.Y. 2013), it is clear to me that 756 laundry laborer jobs
nationally does not constitute a significant number. See, e.g., Hamilton v. Comm’r of Soc. Sec.,
105 F. Supp. 3d 223, 231 (N.D.N.Y. 2015) (5,160 jobs nationally not a significant number);
Hanson v. Comm’r of Soc. Sec., 2016 WL 3960486, at *13 (N.D.N.Y. 2016) (“Courts have held
that numbers varying from 9,000 upwards constituted ‘significant.’”), report and
recommendation adopted sub nom. Hanson v. Colvin, 2016 WL 3951150 (N.D.N.Y. 2016);
Leonard v. Heckler, 582 F. Supp. 389, 391 (M.D. Pa. 1983) (4,000 to 5,000 jobs nationwide not
a significant number); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (“the
ALJ’s finding that 25,000 national jobs is sufficient presents a close call”).
Surprisingly, the Commissioner maintains that 756 jobs would constitute a significant
number of jobs. But the cases that the Commissioner cites in support of this position address
what constitutes a significant number of jobs in the local economy, not the national economy,
and are therefore inapposite here. See Doc. #25 at 6 n.4.
Having concluded that the Commissioner did not carry her burden at step five, I must
next decide whether to remand the case for further evidentiary proceedings, or to reverse the
Commissioner’s decision and remand solely for calculation and payment of benefits. Where
there are gaps in the administrative record or the ALJ has applied an improper legal standard, a
remand for further development of the evidence is appropriate. But where “the record provides
persuasive proof of disability and a remand for further evidentiary proceedings would serve no
purpose,” the Court may reverse and remand solely for calculation and payment of benefits.
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
I find that reversal and remand solely for the calculation and payment of benefits is
warranted here. “The Second Circuit has consistently emphasized the importance of the

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Commissioner’s burden to support her step-five determination with substantial evidence, and has
held that a reversal with a remand only to calculate damages is warranted when the ALJ has
failed to meet that burden.” Cabreja v. Colvin, 2015 WL 6503824, at *17 (S.D.N.Y. 2015). See
also Butts v. Barnhart, 416 F.3d 101, 104 (2d Cir. 2005) (holding that it was not an abuse of
discretion to remand for further proceedings where Commissioner failed to meet her burden at
step five, but noting that “the ordering of a benefits calculation was hardly out of the question”);
Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000) (remanding for sole purpose of calculating
benefits where Commissioner failed to meet step-five burden), superseded by statute on other
grounds; Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir. 1998) (same, and noting that
Commissioner must show good cause for failure to incorporate evidence in prior proceeding);
Sanchez v. Colvin, 2015 WL 4390246, at *18 (E.D.N.Y. 2015) (collecting cases and explaining
that “if the court determines that a claimant has met his burden of showing disability at the first
four steps, and the Commissioner has failed to meet her burden of rebuttal, a court may remand
for further proceedings or may remand solely for calculation of benefits.”); Fortier v. Astrue,
2012 WL 3727178, at *17 (D. Conn. 2012) (remanding solely for calculation of benefits when
“the Court has the benefit of testimony from the vocational expert that there are no jobs existing
in significant numbers in the national economy for someone with Plaintiff's limitations to
perform”), report and recommendation adopted, No. 10–CV–1688 (D. Conn. May 29, 2012)
(unpublished ruling and order).
Plaintiff’s claim has been pending for more than seven years and was already remanded
by the District Court once before. I am not persuaded that the Commissioner deserves a third
opportunity to carry her burden. See, e.g., Marble v. Barnhart, 2006 WL 407551, at *3
(E.D.N.Y. 2006) (finding that fairness required remand solely for calculation of benefits, where

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Commissioner had failed to carry her burden at step five and claim was ten years old); Curry,
209 F.3d at 124 (noting that plaintiff’s application had been pending more than six years);
Balsamo, 142 F.3d at 82 (noting that plaintiff’s application had been pending for more than four
years).
CONCLUSION
Plaintiff’s motion to reverse the Commissioner’s decision (Doc. #22) is GRANTED, and
defendant’s motion to affirm the Commissioner’s decision (Doc. #25) is DENIED. Because I
conclude that the ALJ’s step-five error on its own warrants reversal, I need not reach the other
claims of error raised by plaintiff. The case is remanded solely for calculation and payment of
benefits.
It is so ordered.
Dated at New Haven this 3rd day of May, 2017.

/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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