McKane v. Colvin

Filing 32

RULING granting 25 Motion to Reverse the Decision of the Commissioner; denying 31 Motion for Judgment on the Pleadings. The case is remanded to the Social Security Administration for further proceedings consistent with this Ruling. The Clerks O ffice is instructed that, if any party appeals to this court the decision made after this remand, any subsequent social security appeal is to be assigned to the District Judge who issued the Ruling that remanded the case. Signed by Judge Janet C. Hall on 3/7/2018. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THOMAS JOHN MCKANE,
Plaintiff,

CIVIL ACTION NO.
3:16-CV-1707 (JCH)

v.
NANCY E. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL
SECURITY, U.S.A.,
Defendant.

MARCH 7, 2018

RULING RE: CROSS MOTIONS TO REVERSE AND AFFIRM DECISION OF THE
COMMISSIONER (DOC. NOS. 25 & 31)
Plaintiff Thomas McKane (“McKane”) brings this action under title 42, section
405(g) of the United States Code, appealing from the final determination of the
Commissioner of Social Security (“the Commissioner”), which denied his application for
Title II disability insurance benefits and Title XVI supplemental security income. Motion
to Reverse the Decision of the Commissioner (“Pl.’s Mot.”) (Doc. No. 25). The
Commissioner cross-moves for an order affirming that Decision. Defendant’s Motion for
Judgment on the Pleadings (“Def.’s Mot.”) (Doc. No. 31).
For the reasons set forth below, the Motion to Reverse the Decision of the
Commissioner is GRANTED, and the Motion for Judgment on the Pleadings is DENIED.
The case is remanded to the ALJ for proceedings consistent with this Ruling.

1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is hereby substituted as
the defendant in this case, in place of the former Acting Commissioner of the Social Security
Administration, Carolyn W. Colvin. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public
officer who is a party in an official capacity . . . resigns[ ] or otherwise ceases to hold office while the
action is pending. The officer’s successor is automatically substituted as a party.”).
The Clerk of Court is directed to correct the docket to reflect this substituted party.

1

I.

RELEVANT FACTS
The court adopts the facts to which the parties stipulated, see Def.’s Mot. at 3,

and it will therefore only briefly describe the facts relevant to this opinion.
Thomas McKane was born in October 1961, making him 50 years old on his
alleged disability onset date of January 1, 2012. In 2003, while working as an
emergency room technician, McKane suffered one or more injuries to his lower back.
Certified Transcript of Record (“R.”) (Doc. No. 19) at 375–76, 397. An MRI conducted in
January 2003, reflected disc degeneration and mild disc bulging. Id. at 375–76. The
Record reflects that McKane has treated regularly with Dr. Frank Mongillo for back pain,
for which Dr. Mongillo has consistently prescribed Percocet. See, e.g., id. at 386–413,
472–76, 620–46, 652–63.
In June 2003, McKane received lumbar facet joint injections to treat lower back
pain. Id. at 397–99, 467. On July 18, 2003, Neurologist James McVeety noted that,
since receiving the facet joint injections, McKane “has had the persistent symptoms of
fatigue, lethargy, confusion, forgetfulness, right upper extremity tremor, stabbing head
pain, word finding difficulty, dyslexia and weight loss.” Id. at 467. Dr. McVeety noted
that CT scans of McKane’s head and abdomen conducted on July 6, 2003, were
“essentially normal.” Id. Dr. McVeety ordered an MRI scan of McKane’s brain, which
was “[u]nremarkable.” Id. at 372.
The Record reflects that, by 2009, McKane had been diagnosed with “Major
depressive disorder, recurrent, mild,” “generalized anxiety disorder,” “Cannabis abuse,”
and “Dependent personality disorder.” Id. at 422. He has also been diagnosed with
bipolar disorder. Id. at 672.

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In July 2009, McKane treated at New Haven Hospital, reporting chest pain. Id. at
456–64. An echocardiogram did not reflect abnormalities. Id. On June 14, 2013,
McKane saw Dr. Arumbakam Purushotham of the Connecticut Heart Group for “sharp
chest pain that lasts for days and weeks,” “palpitations and occasionally feels dizzy and
lightheaded.” Id. at 444. Dr. Purushotham concluded that “most of [McKane’s]
symptoms are related to his lifestyle and stress. He was strongly advised to stop
smoking.” Id. A chest x-ray and echocardiogram ordered by Dr. Purushotham were
normal except for “mild aortic root dilation.” Id. at 534–36.
II.

PROCEDURAL HISTORY
On March 19, 2013, McKane filed applications for disability insurance and

supplemental security income. See R. at 259–62, 263–70. In both applications,
McKane alleged disability beginning on January 1, 2012. These claims were initially
denied on July 15, 2013, and denied again upon reconsideration on March 4, 2014.
See id. at 121–36 (disability determination explanation of July 15, 2013); id. at 155–70
(disability determination explanation of March 4, 2014). McKane then requested a
hearing, which was held before Administrative Law Judge (“ALJ”) Deirdre Horton on
April 20, 2015. At the hearing, McKane testified, as did vocational expert Richard B.
Hall (“Hall”). See id. at 93–120 (transcript of hearing). McKane was represented at the
hearing by Attorney Ann Farrell.
On November 18, 2015, ALJ Horton issued an unfavorable Decision, denying
McKane’s applications. In her Decision, ALJ Horton concluded that McKane suffered
from the following severe impairments: (1) degenerative disc disease; (2) anxiety
disorder; and (3) personality disorder. Id. at 34. She noted that McKane had alleged an
impairment related to a heart condition, but found that the Record did not reflect that a
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heart condition “causes more than slight functional limitations.” Id. She found that
McKane’s impairments did not meet or medically equal the listings for a disability. Id. at
34–36. She concluded that McKane has the residual functional capacity (“RFC”) to
“perform light work . . . involving occasional bending, squatting, crawling, and climbing;
involving simple, routine tasks; and he works best on tasks alone, but can relate
appropriately to others.” Id. at 36. She noted that McKane had previously worked as a
medical technologist, as a waiter, and as a retail clerk, but found that McKane could no
longer perform any of these positions. Id. at 39. Finally, she concluded that work
existed in significant numbers in the national economy that could be performed by
McKane, and therefore found that McKane was not disabled as defined by the Social
Security Act. Id. at 41.
III.

STANDARD OF REVIEW
Under title 42, section 405(g) of the United States Code, it is not the district

court’s function to determine de novo whether the claimant was disabled. See Schaal v.
Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court is limited to two lines of
inquiry: whether the ALJ applied the correct legal standard, and whether the record
contains “substantial evidence” to support her decision. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999). “Substantial evidence” is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “To determine on appeal
whether an ALJ’s findings are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both sides, because an

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analysis of the substantiality of the evidence must also include that which detracts from
its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
IV.

ANALYSIS
In his Motion to Reverse the Commissioner, McKane makes four arguments: (1)

that ALJ Horton failed to following the treating physician rule, Pl.’s Mem. at 19–26; (2)
ALJ Horton failed to adequately develop the medical record, specifically by failing to
request treatment records from Dr. Cartwright, id. at 26–28; (3) ALJ Horton erred in her
evaluation of McKane’s testimony regarding pain, id. at 28–30; and (4) ALJ Horton’s
findings with respect to the number of jobs available in the economy that McKane can
perform were not supported by substantial evidence, id. at 30–36. The court addresses
the first two arguments together, as they are intertwined, and then addresses the
remaining arguments.
A.

Treating Physician Opinion Evidence

The Record contains treating source opinions from two physicians: Dr. Maxine
Cartwright, R. at 649–51, and Dr. Frank Mongillo, id. at 640–46 (opinion of 2013), id. at
678–80 (opinion of 2015). In her Decision, ALJ Horton discussed Dr. Cartwright’s and
Dr. Mongillo’s opinions, but gave them “little evidentiary weight.” Id. at 38–39. McKane
argues that ALJ Horton erred in her evaluation of both treating sources. Pl.’s Mem. at
19–26. With respect to Dr. Cartwright in particular, McKane argues that ALJ Horton
failed to develop the record adequately, which in turn prevented her from properly
applying the treating physician rule to Dr. Cartwright’s medical source statement. Id. at
26–30.
The treating source rule requires that a treating source’s medical opinion be
given controlling weight if it “is well-supported by medically acceptable clinical and
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laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 416.927(c)(2). Even if controlling weight is
not given, “some weight may still be attached to that opinion, and the ALJ must still
designate and explain the weight that is actually given to the opinion.” Schupp v.
Barnhart, No. 3:02-CV-103 (WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004);
see also 20 C.F.R. § 416.927(c)(2) (“Generally, we give more weight to medical
opinions from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical evidence . . . .”).
When a medical opinion is not given controlling weight, title 20, section 416.927
of the Code of Federal Regulations (“section 416.927”) mandates that ALJs consider
the following factors in assigning weight to the medical opinion: (1) whether the provider
has actually examined the claimant; (2) the treatment relationship, including the length,
frequency of examination, and nature and extent of the relationship; (3) whether the
provider presents relevant evidence to support his or her conclusions, particularly
objective evidence; (4) the degree to which the provider’s opinion is consistent with the
medical record as a whole; (5) whether the provider is a specialist giving an opinion
within his or her specialty; and (6) any other factors which support or contradict the
provider’s opinion. 20 C.F.R. § 416.927. Section 416.927 further provides, “We will
always give good reasons in our notice of determination or decision for the weight we
give [the] treating source’s medical opinion.” Id.

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1. Opinion of Dr. Cartwright
The Record contains a medical source statement completed by Maxine
Cartwright, MD, under date of November 6, 2014. R. at 649–51. Dr. Cartwright’s
medical source statement reflects that McKane has marked or extreme limitations in
nearly all work-related mental activities.2 Id. at 649–50. Dr. Cartwright stated in her
medical source statement that McKane “[i]s unable to open mail most days––he is
unable to follow through with [Activities of Daily Living]: Because of his severe medical
condition he was placed on steroids which precipitated his underlying psychiatric
condition.” Id. at 649. She described his symptoms as “overwhelming anxiety,
debilitating depression, chronic & severe pain, [and] inability to sleep because of the
pain.” Id. at 650. She also described McKane as “physically disabled,” noting that he
“[h]as difficulty standing and walking” and “is unable to sit for any length of time.” Id.
Finally, Dr. Cartwright stated that McKane “is having difficulty managing his life because
of his depression & anxiety” and opined that he would need help managing his benefits.
Id.
ALJ Horton acknowledged Dr. Cartwright’s opinions in her Decision, but elected
to give them “little evidentiary weight” on the ground that her medical source statement
was “conclusory and against the weight of the record as a whole.” Id. at 39. She further
noted that “[a] review of the exhibit file fails to identify any subjective or objective

2

Out of ten functional areas, Dr. Cartwright opined that McKane had “moderate” limitations in two
areas: (1) understanding and remembering simple instructions, and (2) making judgments on simple
work-related decisions. R. at 649. She did not categorize any of McKane’s mental functional areas as
having no limitations or mild limitations. Id. at 649–50.

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medical findings supporting a conclusion that limits the claimant as stated” by Dr.
Cartwright. Id.
In his Memorandum, McKane asserts that “the real issue” is that the Record is
devoid of contemporaneous treatment records from Dr. Cartwright, and that ALJ Horton
had an obligation to seek Dr. Cartwright’s treatment records before rejecting her
opinion. Pl.’s Mem. at 25–26. The Commissioner argues that McKane, not ALJ Horton,
had the responsibility of “gathering and presenting evidence to support his claim” and
that McKane “provides no evidence that any such records even exist,” and takes issue
with McKane’s argument that reference to “mental health people” McKane was treating
with should have alerted ALJ Horton to the absence of records. Def.’s Mot. at 15–16.
Contrary to the Commissioner’s assertions, an ALJ in a social security benefits
hearing has an affirmative obligation to develop the record adequately. See Rosa, 168
F.3d at 79. Although this obligation is heightened where the plaintiff is pro se, see
Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), the “non-adversarial
nature” of social security benefits proceedings dictates that the obligation exists “even
when . . . the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996) (“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must himself
affirmatively develop the record’ . . . .”) (quoting Echevarria, 685 F.2d at 755).
In Rosa, the Second Circuit was confronted with a case in which the ALJ had
rejected the opinion of a treating physician because the treating physician’s
contemporaneous treatment records did not reflect certain findings. 168 F.3d at 79.
The Second Circuit held that “an ALJ cannot reject a treating physician’s diagnosis

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without first attempting to fill any clear gaps in the administrative record.” Id. The
Second Circuit found that the record before the ALJ in Rosa contained “clear gaps”:
The ALJ had before her only Dr. Ergas’s sparse notes which
reflected nine visits between himself and Rosa, considerably
fewer visits than the two likely had based upon Rosa’s
testimony suggesting monthly treatment over a period of
years. Moreover, Dr. Ergas’s assessment was only one page
in length and, as the ALJ recognized, wholly conclusory.
Having nevertheless failed to request any additional records
or support from Dr. Ergas, the ALJ was left to base her
conclusions on incomplete information that was necessarily
‘conclusive of very little.’ Confronted with this situation, the
ALJ should have taken steps directing Rosa to ask Dr. Ergas
to supplement his findings with additional information.
Id. at 79–80 (internal citation omitted) (quoting Wagner v. Sec’y of HHS, 906 F.2d 856,
862 (2d Cir. 1990)). The Rosa court concluded that, “by rejecting a treating physician’s
medical assessment without fully developing the factual record, the ALJ committed legal
error.” Id. at 80.
Here, as McKane points out, there are no records whatsoever from Dr.
Cartwright. In fact, the court is aware of only two references to Dr. Cartwright in the
entire 689-page Record: Dr. Cartwright’s medical source statement, and an undated
medication list, which notes that Dr. Cartwright prescribed Abilify. R. at 351. Clearly,
then, the Record does not indicate the duration or nature of the treatment relationship,
how frequently McKane met with Dr. Cartwright, whether Dr. Cartwright’s opinions were
supported by psychological testing, and so on. Dr. Cartwright’s treatment notes (as well
as any other records pertinent to her treatment relationship with McKane) are therefore
relevant to the decision whether to give her opinion controlling weight and, if controlling
weight is not given, to the decision of how much weight to give it. See 20 C.F.R. §
416.927.
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As to whether ALJ Horton should have identified the gap in the record, the court
concludes that, regardless of whether McKane’s reference to “mental health people”
was sufficient to place ALJ Horton on notice that records were missing, the gap should
have been obvious for a more simple reason: Dr. Cartwright submitted an opinion as a
treating physician. ALJ Horton evaluated Dr. Cartwright’s opinion as a treating source
opinion. She therefore should have identified the absence of corroborating records as a
gap to be filled rather than grounds to reject Dr. Cartwright’s opinion.
The court recognizes that remand is not necessary for development of the record
in cases where the record as a whole is “adequate to permit an informed finding by the
ALJ.” Tankisi v. Comm’r of Soc. Sec., 521 Fed. App’x 29, 34 (2d Cir. 2013). In this
case, however, the Record is relatively sparse regarding McKane’s mental health status
since the alleged onset date of January 1, 2012. Of the record evidence, the records
which address McKane’s mental health in the relevant time period include the following:
a consultative examination report by Diana Badillo Martinez, PhD, dated May 1, 2013,
R. at 437–40; a consultative examination report by Yacov Kogan, MD, dated June 25,
2013, id. at 521–32; a document entitled “Medical Statement” by Dawn Lawlor,
Licensed Clinical Social Worker, id. at 647–48; and treatment records dated July 23,
2013, to August 11, 2013, from The Connection, id. at 554–619, 664–77. Upon review
of those records, the court concludes that none of them contain an evaluation of
McKane’s functional capacity, or can otherwise be said to fill the gap that exists with
respect to Dr. Cartwright’s records.
The Commissioner argues that Dr. Martinez’s opinion, upon which ALJ Horton
relied, constitutes substantial evidence to support ALJ Horton’s RFC finding. Def.’s

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Mot. at 16, see R. at 437–39. There are two problems with this argument. First, Dr.
Martinez is a non-treating physician whose evaluation was based on a single
examination. While her report is thoughtful and detailed, “a consulting physician’s
opinions or report should be given limited weight” because “consultative exams are
often brief, are generally performed without benefit or review of claimant’s medical
history and, at best, only give a glimpse of the claimant on a single day.” Cruz v.
Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (quoting Torres v. Bowen, 700 F. Supp. 1306,
1312 (S.D.N.Y. 1988)).
Second, Dr. Martinez’s opinion is not inconsistent with Dr. Cartwright’s opinion.
Dr. Martinez summarized her findings as follows:
Mr. McKane 51-year-old male reports having back pain and
spasms due to a work-related injury in 2003. This contributes
to moderate pain, spasms and difficulty changing positions or
lifting heavy objects. He feels highly limited and unable to
work. He also experiences mild anxiety, excessive worry and
has engaged in irrational activities. While the physical
conditions impress being primary one limiting his ability to
work, emotional and interpersonal behaviors and
idiosyncrasies may limit his adaptation at work and in social
situations.
R. at 438. As this summary reflects, Dr. Martinez did not explicitly make findings as to
McKane’s functional limitations, but neither did she foreclose the possibility that his
mental and emotional condition may impede his capacity to work. In other words, Dr.
Martinez’s opinion is more circumspect than Dr. Cartwright’s, but it does not conflict with
it.
For both of these reasons, Dr. Martinez’s opinion does not constitute substantial
evidence to reject Dr. Cartwright’s opinion without seeking additional record evidence.
The court concludes, therefore, that the record was not “adequate to permit an informed
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finding” with respect to Dr. Cartwright’s opinion, and remands this case to the ALJ for
further development of the record. Tankisi, 521 Fed. App’x at 34. On remand, the ALJ
should seek treatment records from Dr. Cartwright. In addition, the court recommends
that the ALJ consider contacting Dr. Cartwright for further clarification of her opinion and
the basis for her conclusions.
Having concluded that remand is necessary in this case for development of the
record, the court need not reach the merits of McKane’s additional arguments.
However, in the interests of judicial efficiency, the court considers McKane’s other
claims.
2. Opinion of Dr. Mongillo
Dr. Mongillo, who has been treating McKane since at least 2003, completed two
medical source statements. The first, completed in March 2013, states that McKane
has a preexisting condition of “low back pain” which causes “difficulty bending and
lifting.” R. at 640. Dr. Mongillo opined that, in an eight hour work day, McKane is
limited to sitting for two hours, standing for two hours, and walking for one hour. Id. at
642. Dr. Mongillo further opined that McKane can lift up to ten pounds frequently and
up to twenty pounds occasionally, and can carry up to ten pounds occasionally. Id. at
643. Dr. Mongillo indicated that McKane could bend, squat, crawl, climb, and reach
occasionally. Id. Dr. Mongillo stated that McKane could never be exposed to
unprotected heights, and could occasionally be around moving machinery, exposed to
marked changes in temperature and humidity, drive automotive equipment, and be
exposed to dust and fumes. Id. at 644. In the section of the form entitled “Please
provide objective clinical findings in the following table,” Dr. Mongillo listed “back pain”

12

as the only diagnosis and noted “tenderness” and “spasms” as symptoms, but left the
“Objective Findings” and “Supportive Test Results” blank. Id. at 642. In the section of
the medical source statement form entitled “Mental Status Information,” Dr. Mongillo
checked “yes” next to the question “Does this patient have mental health or substance
abuse issues that impact his or her ability to work?,” but left the rest of the section
blank. Id. at 644–45. Dr. Mongillo opined that McKane would be unable to work for
“twelve months or more,” the longest durational option on the form. Id. at 640.
In June 2015, Dr. Mongillo completed another medical source statement. The
form he completed was specifically a form for mental evaluation, which McKane
attributes to an error by the Hearing Office. Id. at 678–80 (Dr. Mongillo’s June 2015
medical source statement); Pl.’s Mem. at 24 (“Unfortunately, the Hearing Office sent Dr.
Mongillo the wrong form: Instead of sending him a mental residual functional capacity
questionnaire as it did, it should have sent him a physical residual functional capacity
questionnaire.”). On this form, Dr. Mongillo checked “No” next to the question “Is the
ability to understand, remember, and carry out instructions affected by the
impairment?,” as well as the question “Is ability to interact appropriately with
supervisors, co-workers, and the public, as well as respond to changes in the routine
work setting, affected by impairment?.” R. at 678–79. He also noted that McKane “has
difficulty bending and lifting” as a result of “tenderness and spasms in his low back.” Id.
at 679. Finally, he opined that McKane could manage benefits in his own best interest.
Id. at 680.
In her Decision, ALJ Horton concluded that Dr. Mongillo’s medical source
statements were “conclusory and against the weight of the record as a whole with

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regard to the physical limitations.” Id. at 38. She found that “[t]he medical evidence of
record does not support physical limitations as stated, and in fact, most records indicate
claimant’s physical symptoms are controlled with medication.” Id. She further noted
that Dr. Mongillo “indicates no mental limitations,” which conflicted with her own
conclusion that McKane does have mental limitations. Id. She therefore assigned “little
evidentiary weight” to Dr. Mongillo’s opinions. Id.
McKane asserts that Dr. Mongillo’s opinion was sought specifically because his
treatment notes were sparse, and argues that it is “circular and absurd” to request an
opinion on that basis and then reject it because it is not supported by the treatment
notes. Pl.’s Mem. at 24–25. However, the Record also contains correspondence from
ALJ Horton to Dr. Mongillo requesting additional information. Specifically, ALJ Horton
requested “a new Medical Source Statement, all additional records since November
2014, and a statement supporting your belief with reference to the records why I should
find Mr. Mckane disabled.” R. at 681. Attached to that letter is a blank medical source
statement, which specifically targets physical work-related activities. Id. at 682–87. The
letter is dated August 19, 2015, and states that Dr. Mongillo should provide information
by September 9, 2015. Id. at 681. The Record does not contain a response from Dr.
Mongillo, either in the form of updated treatment records or a new medical source
statement. Thus, ALJ Horton attempted to develop the treatment record and opinion
evidence before rejecting it. In addition, this argument by McKane oversimplifies ALJ
Horton’s analysis: as the Commissioner points out, ALJ Horton did not reject Dr.
Mongillo’s opinion evidence solely on the basis that his treatment notes did not support

14

his opinion, but rather looked to the totality of the record evidence and gaps within the
opinions themselves. See id. at 38; Def.’s Mot. at 13–14.
The court concludes that ALJ Horton’s analysis with respect to Dr. Mongillo’s
opinion evidence was supported by substantial evidence. ALJ Horton provided several
reasons for rejecting Dr. Mongillo’s opinions, all of which are supported by the record.
See R. at 38. In addition, ALJ Horton solicited updated treatment notes and further
explanation for Dr. Mongillo’s opinion, and it was not provided. Therefore, the court
concludes that ALJ Horton did not err in her application of the treating physician rule
with respect to the opinion evidence submitted by Dr. Mongillo.
In light of the fact that this case is being remanded on other grounds, however,
the court suggests that, on remand, the ALJ may want to reach out to Dr. Mongillo once
again to solicit a new––physical––medical source statement, updated treatment notes,
and additional explanation for Dr. Mongillo’s conclusions.
B.

Credibility Evaluation of McKane’s Testimony

In his Memorandum, McKane asserts that ALJ Horton erred in her evaluation of
his testimony regarding his pain. Pl.’s Mem. at 28–30. At the hearing, McKane testified
that he experiences “constant” pain in his back, which is alleviated in part by
medication. R. at 100. He testified that he had difficulty showering and performing
household chores because “every couple of months” his back goes out and he cannot
function. Id. at 101. McKane further stated that he could sit for about fifteen minutes at
a time and stand for about fifteen minutes of the time and can barely lift anything. Id. at
101–02.
In her Decision, ALJ Horton detailed McKane’s treatment history with respect to
his back pain, noting that treatment records generally reflect that McKane has suffered
15

from back pain since 2003, but it is has been controlled by medication. Id. at 36–37.
She acknowledged McKane’s testimony with respect to his functional limitations but
concluded that McKane’s medical records and activities of daily living undermined
McKane’s testimony as to the extent of his functional limitations. Her RFC
determination, however, takes McKane’s back pain into consideration to some degree,
finding that McKane is capable of no more than light work, with “occasional bending,
squatting, crawling, and climbing.” Id. at 36. Given McKane’s testimony, the medical
record, and the fact that ALJ Horton did factor pain into her RFC determination, the
court finds nothing erroneous in ALJ Horton’s evaluation of McKane’s testimony with
respect to his pain.
Of course, further development of the record on remand may compel the ALJ to
revisit this conclusion. On the current record, however, the court concludes that ALJ
Horton’s credibility determination was supported by substantial evidence.
C.

Availability of Jobs

McKane’s final challenge to ALJ Horton’s decision relates to her conclusion that
significant numbers of jobs existed in the national economy that McKane could perform.
During ALJ Horton’s examination of vocational expert Richard B. Gordon (“Gordon”),
Gordon gave the following answer to ALJ Horton’s question whether jobs existed in the
national economy that someone with McKane’s RFC could perform:
Yes, ma’am. An example is gate guard. The [Dictionary of
Occupational Titles (“DOT”)] is 372.667-010. It is light,
[specific vocational preparation (“SVP”)] 2. National number
120,000. . . . Another example is router, DOT 222.567-038.
It is light demand, SVP 2. National number 110,000. . . . A
third example is order caller, DOT 209.267-014. It is light
demand, SVP 2. National number 120,000. . . . Once again,
these are only examples.
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R. at 117.
McKane asserts that two of the three positions identified by Gordon––Router and
Order Caller––do not appear in the Dictionary of Occupational Titles under the listings
he cited, and it is therefore impossible to verify the accuracy of his testimony. Pl.’s
Mem. at 33–34. The Commissioner asserts that these positions are listed in the DOT,
albeit at listings that differ as to a single digit in each case, and attributes the listing
inaccuracies to “a typographical error” in the “administrative transcript.” Def.’s Mot. at
19. The Commissioner argues that McKane’s “statement that these jobs simply do not
exist is false and without merit.” Id.
As a preliminary matter, the court takes issue with the Commissioner’s apparent
assumption that the court reporter who transcribed––and swore to the accuracy of––the
hearing is less reliable than the vocational expert who testified. See R. at 120.
However, the Commissioner’s argument that both Router and Order Caller are listed
positions in the DOT is better taken. Particularly given that McKane cites to the online
version of the DOT in his Memorandum, the court considers McKane’s statement that
the error with respect to the listing made it “impossible to know what in the world
[Gordon] was talking about” hyperbolic. Pl.’s Mem. at 33–34.
McKane further asserts that, according to the Bureau of Labor Statistics, the
other position that Gordon identified, Gate Guard, exists in the national economy in less
than half the volume cited by Gordon, 43,220 jobs as opposed to the 120,000 jobs to
which Gordon testified. Id. at 34. The Commissioner does not dispute the accuracy of
McKane’s numerical assertions, but asserts that so long as “job numbers stated by the
[vocational expert] ‘did not introduce any meaningful uncertainty as to the number’ of

17

positions available in the local or national economy, the ALJ properly may rely on the
[vocational expert]’s testimony.” Def.’s Mot. at 19 (quoting Kennedy v. Astrue, 343 Fed.
App’x 719, 722 (2d Cir. 2009)).
The court makes no conclusion as to whether this issue would warrant remand
on its own. However, in light of the fact that this case is already being remanded for
development of the medical record, the court further orders the ALJ to elicit a basis for
the vocational expert’s conclusions as to the availability of jobs, so long as the ALJ’s
findings on remand do not obviate the need for vocational evidence. In so ordering, the
court is mindful of the Second Circuit’s holding that vocational experts are “not required
to identify with specificity the figures or sources supporting [their] conclusion[s], at least
where [they] identif[y] the sources generally.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d
Cir. 2014). Nevertheless, the Second Circuit has also held that “evidence cannot be
substantial if it is ‘conjured out of whole cloth.’” Brault v. Comm’r of Soc. Sec., 683 F.3d
443, 450 (2d Cir. 2012) (quoting Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir.
2002)). Here, Gordon did not identify the source of his testimony, and the most likely
source, namely the Bureau of Labor Statistics, apparently did not align with at least one
of the numbers that Gordon quoted. Thus, while the Second Circuit has not established
a high bar for vocational expert testimony, the court concludes that the testimony in this
case does not meet that bar.
V.

CONCLUSION
For the foregoing reasons, McKane’s Motion to Reverse the Decision of the

Commissioner (Doc. No. 25) is hereby GRANTED and the Commissioner’s Motion to
Affirm the Decision of the Commissioner (Doc. No. 31) is hereby DENIED. The case is
remanded to the Social Security Administration for further proceedings consistent with
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this Ruling. The Clerk’s Office is instructed that, if any party appeals to this court the
decision made after this remand, any subsequent social security appeal is to be
assigned to the District Judge who issued the Ruling that remanded the case.
SO ORDERED.
Dated this 7th day of March 2018 at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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