Rivera v. Colvin
Filing
29
For the reasons stated in the attached ruling, plaintiffs motion to reverse the decision of the Commissioner (Doc. # 22 ) is DENIED. The Commissioners motion to affirm the decision of the Commissioner (Doc. # 23 ) is GRANTED. It is so ordered.Signed by Judge Jeffrey A. Meyer on 3/28/2018. (Lombard, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARMEN RIVERA,
Plaintiff,
No. 3:16-cv-01842 (JAM)
v.
NANCY A. BERRYHILL,
Defendant.
RULING GRANTING MOTION TO AFFIRM AND DENYING MOTION TO REVERSE
Plaintiff Carmen Rivera alleges that she is disabled and cannot work because of, among
other impairments, rheumatoid arthritis, fibromyalgia, depression, anxiety, and bipolar disorder.
Pursuant to 42 U.S.C. § 405(g), she seeks review of the final decision of the Commissioner of
Social Security denying her claim for social security disability and supplemental security
income. The parties have now filed cross-motions to reverse and affirm.1 For the reasons
explained below, I will deny plaintiff’s motion to reverse and grant the Commissioner’s motion
to affirm.
BACKGROUND
The Court refers to the transcripts provided by the Commissioner. See Doc. #18-1
through Doc. #18-9. Plaintiff filed an application for disability insurance benefits under Title II
1
At the time this case was filed, Carolyn W. Colvin was the Acting Commissioner of the Social Security
Administration. On January 23, 2017, Deputy Commissioner Nancy A. Berryhill became the Acting Commissioner.
There is some doubt about Berryhill’s current legal status in light of the recent determination by the Government
Accountability Office that her tenure has expired under the Federal Vacancies Reform Act. See U.S. Gov’t
Accountability Office, B-329853, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of
1998—Commissioner, Social Security Administration (2018), https://www.gao.gov/products/D18772#mt=e-report
(last accessed March 19, 2018). When a public officer ceases to hold office while an action is pending, the officer’s
successor is automatically substituted as a party. See Fed. R. Civ. P. 25(d). Later proceedings should be in the
substituted party’s name and the court may order substitution at any time. Ibid. The Clerk of Court shall amend the
caption in this case as indicated above.
1
on April 26, 2013, and filed an application for supplemental security income under Title XVI on
May 20, 2013. In both applications, she alleges a disability onset date of December 9, 2012.
Plaintiff most recently worked for Yale-New Haven Hospital for approximately five years in the
environmental services department and ended her employment there in early 2013. Doc. #18-6 at
17. Plaintiff’s claims were denied on August 14, 2013, and again upon reconsideration on
November 13, 2013. Plaintiff then timely filed a written demand for a hearing.
Plaintiff appeared and testified before Administrative Law Judge (ALJ) I. K. Harrington
on November 13, 2014. Plaintiff was represented by counsel. Vocational expert Albert Sabella
testified at the hearing. On March 17, 2015, the ALJ issued a decision concluding that plaintiff
was not disabled within the meaning of the Social Security Act. See Doc. #18-3 at 26-40. On
September 1, 2016, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision. Doc. #18-3 at 12. Plaintiff timely filed this federal action seeking review of the ALJ’s
decision. See Doc. #1.
To qualify as disabled, a claimant must show that she 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 [her] previous work but cannot, considering [her] 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)
2
having requirements which [a claimant] [is] able to meet with [her] physical or mental abilities
and vocational qualifications.” 20 C.F.R. § 416.966(a)–(b); see also Kennedy v. Astrue, 343 F.
App’x 719, 722 (2d Cir. 2009).
To evaluate a claimant’s disability, and to determine whether she qualifies for benefits,
the agency engages in the following five-step process:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next considers
whether the claimant has a “severe impairment” that significantly limits her 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 that is listed [in the so-called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app.
1. If the claimant has a listed impairment, the Commissioner will consider the claimant
disabled without considering vocational factors such as age, education, and work
experience; the Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity. Assuming the claimant does
not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, she has the residual functional capacity to perform her past work. Finally, if
the claimant is unable to perform her past work, the burden then shifts to the
Commissioner to determine whether there is other work which the claimant could
perform.
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122–23 (2d Cir. 2012) (alteration in original)
(citation omitted); see also 20 C.F.R. § 416.920(a)(4)(i)–(v). In applying this framework, an ALJ
may find a claimant to be disabled or not disabled at a particular step and may make a decision
without proceeding to the next step. See 20 C.F.R. § 416.920(a)(4). The claimant bears the
burden of proving the 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. See
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
The ALJ concluded that the plaintiff was not disabled within the meaning of the Social
Security Act. At Step One, the ALJ determined that plaintiff had not engaged in substantial
gainful employment activity since December 9, 2012, the date of the alleged onset of her
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disability. Doc. #18-3 at 29. The ALJ observed that plaintiff’s earning records reflected that she
earned $1,217.79 in 2013, but that the amount is below the $1,040 per month presumptive level
for substantial gainful activity. Ibid.
At Step Two, the ALJ found that plaintiff had the following “severe impairments” during
the relevant time period: major depressive disorder, generalized anxiety disorder, bipolar
disorder, fibromyalgia, and rheumatoid arthritis. Ibid. At Step Three, the ALJ determined that
plaintiff did not have an impairment or combination of impairments that met or equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 29–
30.
At Step Four, the ALJ found that plaintiff had “the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except [plaintiff] can
frequently stoop, and occasionally, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes,
and scaffolds,” but she is limited to “simple routine tasks involving no more than simple, short
instructions and simple work-related decisions with few workplace changes.” Id. at 33.
Additionally, plaintiff “can have no interaction with the general public, cannot perform tandem
tasks, and can occasionally interact with co-workers and supervisors.” Ibid.
In formulating the residual functional capacity (RFC), the ALJ accorded “substantial
weight” to the opinions of non-examining medical and psychological consultants of the state
agency. Id. at 35. The initial consultant was Rafael Wurzel, M.D., and the reconsideration
consultant was Lewis Cylus, M.D. Ibid. The medical consultants concluded that plaintiff was
capable of performing light work. Doc. #18-4 at 14, 44. They further opined that plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds, stand, walk, or sit for six to eight hours per
day, with some postural limitations, but no manipulative limitations. Id. at 10–12, 40–42. Dr.
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Cylus explained that plaintiff had a history of rheumatoid arthritis and fibromyalgia, but that
there was no evidence of active synovitis—i.e., inflammation. Id. at 41. He did note arthralgias,
but plaintiff had a normal gait, 70-degree lumbar flex, normal toe/heel gait, and a full squat. Ibid.
As to the psychological opinions, Robert Decarli, Psy.D. opined that plaintiff could
perform simple work for two-hour periods in an eight-hour day with adequate concentration and
pace, but could have occasional problems with prolonged concentration and sustained pace due
to her lowered mood. Id. at 12. He rated plaintiff’s individual sustained concentration and
persistence limitations, social interaction limitations, and adaption limitations to be either “not
significantly limited” or “moderately limited.” Id. at 11-13. On reconsideration, Deborah Stack,
Psy.D. reached the same conclusion. Id. at 42-43.
The ALJ accorded the opinion of Herbert Reiher, M.D., the physical consultative
examiner partial weight. Doc. #18-3 at 35. The ALJ accorded great weight to Dr. Reiher’s
opinion that plaintiff could sit, stand, or walk for six hours in an eight-hour work day, lift and
carry 10 pounds occasionally, and was limited in her ability to squat and reach. Ibid. She
accorded less weight to Dr. Reiher’s opinion regarding plaintiff’s limitations with respect to her
ability to lift, carry, reach, and squat, because his conclusions were inconsistent with medical
evidence of improvement. Ibid.
The ALJ accorded the opinion of Babu Kumar, M.D., plaintiff’s primary care doctor, no
weight. Doc. #18-3 at 36. Dr. Kumar’s opinion was that “[d]ue to her medical condition and
persistent symptoms, [plaintiff] will be unable to return to work for the next 12 months.” Doc.
#18-9 at 168. The ALJ explained that Dr. Kumar’s opinion merited no weight because it was a
legal conclusion reserved for the Commissioner and not a medical opinion. Doc. #18-3 at 36.
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The ALJ also gave no weight to the opinion of Kim Striegel, APRN. Nurse Striegel
opined that plaintiff could perform only less than sedentary work and would miss more than five
days of work each month. Doc. #18-9 at 169-71. She also stated that plaintiff could never bend,
stoop, balance, raise each arm above the shoulder, or finely manipulate with either hand. Id. at
170. First, the ALJ evaluated Nurse Striegel’s opinion as that of an “other source” in view of the
fact that the opinions of nurses are not acceptable medical opinions. Doc. #18-3 at 36. The ALJ
further elaborated that Nurse Striegel’s opinion was not entitled any weight because her opinion
was in the form of a checklist and was contradicted by other evidence in the record. Ibid.
The ALJ accorded little weight to the opinion of Liese Franklin-Zitzkat, Psy.D., the
psychiatric consultative examiner. Id. at 37. The ALJ explained that the opinion was rendered
only shortly after plaintiff began mental health treatment, was principally based on self-reported
symptoms, and was inconsistent with medical evidence of “noted improvement and stability”
when plaintiff was medically compliant. Ibid.
After determining plaintiff’s RFC, the ALJ concluded that plaintiff is capable of
performing past relevant work as a suture gauger, because the activities that pertain to such work
are not limited by her RFC. Id. at 38.
At Step Five, after considering plaintiff’s age, education, work experience, and RFC, the
ALJ concluded that jobs plaintiff can perform exist in significant numbers in the national
economy. Id. at 38. The ALJ relied upon the vocational expert’s testimony that plaintiff could
perform the requirements of representative occupations such as an electrical accessories
assembler, a plastic products inspector, and a sealing machine operator. Id. at 39. The ALJ
ultimately held that plaintiff was not disabled within the meaning of the Social Security Act.
Ibid.
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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); 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). Absent a legal error, this Court must uphold the
Commissioner’s decision if it is supported by substantial evidence and even if this Court might
have ruled differently had it considered the matter in the first instance. See Eastman v. Barnhart,
241 F. Supp. 2d 160, 168 (D. Conn. 2003).
Plaintiff advances four claims of error. First, she claims that the ALJ failed to develop the
administrative record in that she failed to seek and acquire an adequate medical opinion from a
treating medical source. Second, she claims that the ALJ’s determinations with respect to various
medical opinions were incorrect. Third, she claims that the ALJ improperly weighed plaintiff’s
subjective claims of pain. Finally, plaintiff claims that the ALJ’s vocational findings are
unsupported by the evidence of record. I will consider each of these arguments in order.
Failure to develop the record
Plaintiff claims that the ALJ failed in her affirmative duty to develop the administrative
record in that she did not obtain medical opinions from two of her treating physicians: Dr.
Kumar, and her psychiatrist at Catholic Charities, Michael Kligfeld, M.D.2 The ALJ has a “duty
to investigate and develop the facts and develop the arguments both for and against the granting
of benefits.” Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010) (quoting Butts v.
2
Plaintiff concedes that it was not improper for the ALJ to disregard Dr. Kumar’s conclusory opinion that
plaintiff’s impairments will preclude her from doing any work for the next 12 months.
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Barnhart, 388 F.3d 377, 386 (2d Cir. 2004)). “This duty exists even when the claimant is
represented by counsel.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
In order to fully develop the record, a medical source statement is not necessarily
required, so long as “the record contains sufficient evidence from which an ALJ can assess the
[plaintiff’s] residual functional capacity.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34
(2d Cir. 2013). Accordingly, the Second Circuit has concluded that an ALJ was not under an
obligation to further develop the record where the record contained a partially relied-upon
opinion from a consultative examiner and the treatment notes from the plaintiff’s doctors. See
Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013). More recently, the Second Circuit rejected
a challenge to the adequacy of the development of the record in a case where the ALJ
disregarded the treating physician’s opinion—the only treating source opinion—and made an
RFC determination based in part on the treating source’s notes that contained descriptions of the
plaintiff’s symptoms and contemporaneous medical assessments sufficient to assess plaintiff’s
ability to perform sustained gainful activity. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5,
8–9 (2d Cir. 2017) (“Because the ALJ reached her RFC determination based on Dr. Wolkoff’s
contemporaneous treatment notes—while at the same time rejecting his post hoc medical opinion
ostensibly based on the observations memorialized in those notes—that determination was
adequately supported by more than a mere scintilla of evidence.”).3
Here, the record contains the notes of Dr. Kumar, Nurse Striegel, and the mental health
staff at Catholic Charities, which included Dr. Kligfeld. The record also contains the consultative
examiners reports from Drs. Reiher and Franklin-Zitzkat, as well as the non-consultative
3
Plaintiff cited recent district court cases for the first time at oral argument, but none of these cases cite the
Second Circuit’s decision in Monroe.
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examinations from the state agency. There is adequate meat on the bones of this record for the
ALJ to have made a determination of plaintiff’s RFC that is supported by substantial evidence.
Weight of opinion evidence
Plaintiff disputes the weight given to various opinions by the ALJ. First, plaintiff
complaints that the ALJ gave no weight to Nurse Striegel’s opinion. The parties agree that her
opinion does not constitute a medical opinion. Rather, her opinion is regarded as an “other
source” opinion. 20 C.F.R. § 404.1513(a)(4). An ALJ should not reject the opinion of a nonmedical treating source such as a nurse practitioner based solely on the fact that the source is not
“medical.” See, e.g., Gillies v. Astrue, 2009 WL 1161500, at *6 (W.D.N.Y. 2009). Nevertheless,
the ALJ has discretion to discount such opinion evidence if it is contradicted by objective
medical evidence and opinions of medical consultants. See, e.g., Figueroa v. Astrue, 2009 WL
4496048, at *12 (S.D.N.Y. 2009).
Nurse Striegel opined that plaintiff could sit for 30 minutes at a time for two hours per
day, stand for 15 minutes at a time, and would need 15-20 minute breaks five times per day
every day. Doc. #18-9 at 170. She added that plaintiff would be absent from work five times per
month. Id. at 171. These limitations were contradicted by certain objective medical evidence. On
November 21, 2013, plaintiff’s rheumatoid arthritis was described as “stable.” Id. at 97. On
December 19, 2013, there was no evidence of active rheumatoid arthritis “on exam or in
[plaintiff’s] blood work or radiographic workup.” Id. at 92. As to plaintiff’s fibromyalgia, when
she took her medication she “tolerated it without adverse side effects and feels that she is worse
since discontinuing it.” Id. at 101. In March of 2014, plaintiff’s fibromyalgia was moderate, and
the symptoms were fairly controlled. Id. at 78. In October 2013, radiological exams of plaintiff’s
hands were unremarkable. Id. 110. An x-ray of plaintiff’s left foot revealed early joint arthritis,
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while the x-ray of the right foot revealed early enthescopathic change at the plantar region. Id. at
107-08. To be sure, Nurse Striegel observed plaintiff complain of more severe arthritic pain. See,
e.g., id. at 78, 83. But Nurse Striegel also more recently observed that the arthritis was improving
with medication and joint swelling had reduced. Id. at 67, 70.
Moreover, Nurse Striegel used a simple form when rendering her opinion of plaintiff’s
ability to work. The Second Circuit has consistently held that opinions rendered on “check-box”
forms are often the ones that offer little meaningful insight into the basis for the clinician’s
findings. See Klodzinski v. Astrue, 274 F. App’x 72, 73 (2d Cir. 2008) (finding that a
standardized multiple-choice form completed by a treating physician was only marginally
helpful); Latham v. Colvin, 2016 WL 6067848, at *4 (W.D.N.Y. 2016) (“ALJ did not err when
he disregarded Nurse Pfalzer’s ‘check-box’ form, which included no supplementary explanation
or supporting evidence to corroborate her findings”). Accordingly, I conclude that the ALJ did
not err in according no weight to Nurse Striegel’s opinion.
Plaintiff next argues that the ALJ erred by giving little weight to the opinion of Dr.
Franklin-Zitzkat, a consultative psychological examiner. Dr. Franklin-Zitzkat opined that
plaintiff would have moderate to marked difficulty sustaining concentration in a work setting,
difficulty withstanding the stresses and pressures of routine work day, and, at times, difficulty
responding appropriately to supervisors or co-workers. Doc. #18-8 at 68. She also stated that
plaintiff’s depression and anxiety could interfere with her ability to maintain attendance. Ibid.
This opinion was rendered in August of 2013.
The ALJ discounted this opinion, in part, because it was predicated on self-reported
symptoms. The ALJ’s determination to discount the opinion for this reason was supported by
substantial evidence. When plaintiff treated with Dr. Liker, she reported no nervousness,
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depression, mood disorder, or tension in December 2013. Doc. #18-8 at 116. The same month,
her psychiatrist noted that she was “doing well psychiatrically.” Doc. #18-9 at 59. In June 2014,
she reported no depressed mood, memory loss, or confusion, but complained of “nervousness”
and “stress.” Doc. #18-8 at 121. When she treated at her primary care clinic, she denied
depression or hallucinations but admitted anxiety in April 2014. Doc. #18-9 at 29. In June 2014,
her psychiatrist noted that she was “psychiatrically stable.” Id. at 57. When Nurse Striegel
treated plaintiff, she repeatedly noted that plaintiff was negative for depression or anxiety. See,
e.g., id. at 67 (May 22, 2014); id. at 78 (March 27, 2014), id. at 84 (February 20, 2014), id. at 89
(negative for anxiety, positive for depression on December 19, 2013), id. at 98 (November 21,
2013); but see id. at 102 (reported positive for anxiety and depression on Oct. 7, 2013).
Additionally, Nurse Striegel reported that plaintiff had an appropriate mood and affect on May
22 and March 27, 2014. Id. at 70, 86.
To be sure, plaintiff did appear to have some severe episodes, including in-patient
treatment at Yale-New Haven Hospital Psychiatry after presenting at the emergency department
with suicide ideation. This appears to have been attributed to the fact that she stopped taking
lithium because it caused her to gain weight. Doc. #18-9 at 48, 138. She was taking lamotrigine
at the time she was hospitalized, but not at a therapeutic dose. Id. at 122. Perhaps a different factfinder would conclude differently, but I conclude that the ALJ’s credibility determination here—
and corresponding determination to discount Dr. Franklin-Zitzkat’s opinion—was supported by
substantial evidence.
Plaintiff’s remaining complaint is about the weight given to the consultative examiner
opinions of Drs. Wurzel and Cylus whose specialties are urology and dermatology, respectively.
Doc. #22-1 at 28. Plaintiff does not cite any law that requires a consultative examiner to
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specialize in the field of medicine most closely related to a claimant’s alleged impairments. I
conclude that the ALJ permissibly relied on the consultative opinions of Drs. Wurzel and Cylus.
Plaintiff’s credibility
Plaintiff claims that the ALJ erred in concluding that plaintiff’s subjective complaints of
pain were not entirely credible, arguing that such a credibility determination was not supported
by substantial evidence. To the contrary, the ALJ supported her findings with objective medical
evidence. First, the ALJ noted that when plaintiff treated with Dr. Likener, she did not report any
musculoskeletal symptoms. Doc. #18-8 at 97, 100, 103. When treating with other providers, she
routinely reported that she was not in acute distress. Id. at 33, 38, 44, 52, 54, 82, 97, 100, 103,
158, 169; Doc. #18-9 at 32, 35. In October 2013, radiological exams of plaintiff’s hands were
unremarkable. Doc. #18-9 at 110. An x-ray of plaintiff’s left foot revealed early joint arthritis,
while the x-ray of the right foot revealed early enthescopathic change at the plantar region. Id. at
107-08. A lumbar spine x-ray did reveal mild narrowing of the L2-L3 disc, with remaining disc
spaces preserved and some facet arthopathy at L5-S1. Id. at 20.4 As noted above, on November
21, 2013, plaintiff’s rheumatoid arthritis was described as “stable.” Id. at 97. On December 19,
2013, there was no evidence of active rheumatoid arthritis “on exam or in [plaintiff’s] blood
work or radiographic workup.” Id. at 92. As to plaintiff’s fibromyalgia, when she took her
medication, she “[t]olerated it without adverse side effects and feels that she is worse since
discontinuing it.” Id. at 101. In March of 2014, plaintiff’s fibromyalgia was moderate and the
symptoms were fairly controlled. Id. at 78.
4
The ALJ notes that there are no abnormalities in plaintiff’s shoulder joints, citing Doc. #18-9 at 20. The
ALJ appears to have misunderstood the finding of “unremarkable sacrum and sacroiliac joints,” which refer to the
where the spine meets the hip, not the shoulder.
12
The ALJ also noted that plaintiff performed some work after the alleged onset of her
disabling impairments. Although not enough to amount to disqualifying substantial gainful
activity, it was an additional basis to conclude that plaintiff’s conditions were not as limiting as
plaintiff alleged. All in all, the ALJ’s credibility determination of plaintiff’s allegations of pain is
supported by substantial evidence.
ALJ’s vocational findings
Plaintiff claims that the ALJ’s vocational findings are unsupported by substantial
evidence. Plaintiff raises two arguments. First she argues that the vocational expert misidentified
one of plaintiff’s past jobs as a “suture gauger” because the definition of a suture gauger set forth
in the Dictionary of Occupational Titles (DOT) does not precisely track plaintiff’s description of
her previous job at Covidien. Second, plaintiff argues that the Step Five determination is
erroneous because the ALJ posed a hypothetical to the vocational expert that exaggerated her
physical capabilities.
“At [S]tep [F]our, a claimant bears the burden of showing that she cannot perform her
past relevant work.” Heagney-O’Hara v. Comm’r of Soc. Sec., 646 F. App’x 123, 127 (2d Cir.
2016). Even if the vocational expert misidentified the title of plaintiff’s prior work, plaintiff
testified that she formerly worked for Covidien where she threaded suture material through a
needle by wrapping the suture and needle into an “A” shape and placing it in a holder. Doc. #183 at 85-86; Doc. #22-1 at 37 n.65. On this record, plaintiff has not carried her burden of showing
she would be unable to this work. Accordingly, I conclude that the ALJ did not err at Step Four.
Even if I am wrong, any error at Step Four would be harmless, so long as the ALJ’s Step
Five finding of alternative work opportunities is supported by substantial evidence. See, e.g.,
Jimenez v. Colvin, 2016 WL 5660322, at *16 (S.D.N.Y. 2016); Mitchell v. Colvin, 2015 WL
13
5306208, at *7 (S.D.N.Y. 2015). Plaintiff’s complaint about the hypothetical posed by the ALJ is
that, like the ALJ’s RFC finding, it includes an ability to climb ropes. But even though plaintiff
cannot climb ladders, ropes, and scaffolds, these activities are not material to the kinds of jobs
the vocational expert testified plaintiff could perform: assembler of electronic accessories, plastic
products inspector, or sealing machine operator. Therefore, even if it was error to include in the
hypothetical an assumption that plaintiff could engage in climbing activity, any error was
harmless. See Mitch v. Colvin, 2016 WL 6695874, at *5 (W.D.N.Y. 2016). Accordingly, I
conclude the ALJ’s Step Five determination was supported by substantial evidence.
CONCLUSION
Plaintiff’s motion to reverse the decision of the Commissioner (Doc. #22) is DENIED.
The Commissioner’s motion to affirm the decision of the Commissioner (Doc. #23) is
GRANTED.
It is so ordered.
Dated at New Haven this 28th day of March 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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