Sanfilipo v. Astrue
Filing
20
ORDER DENYING DEFENDANT SOCIAL SECURITY COMMISSIONER'S 13 Motion for Judgment on the Pleadings; GRANTING PLAINTIFF'S 15 Motion for Judgment on the Pleadings AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS -- For the reasons set for th in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the Commissioner's motion for judgment on the pleadings is denied, Plaintiff's cross-motion is granted, and this matter is REMANDED to the Commissioner, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further administrative proceedings consistent with the Attached Written Memorandum and Order. The Commissioner is further directed to insure that the additional administrative proceedings are conducted without any undue delay. The Clerk of the Court is directed to close this case and to enter judgment. SO ORDERED by Judge Dora Lizette Irizarry on 7/5/2011. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY SANFILIPPO,
:
Plaintiff,
:
:
-against:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,
:
:
Defendant.
:
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DORA L. IRIZARRY, United States District Judge:
MEMORANDUM & ORDER
10-CV-0987 (DLI)
Plaintiff Anthony Sanfilippo filed an application for disability insurance benefits (“DIB”)
under the Social Security Act (“Act”) on August 17, 2007. Plaintiff’s application was denied
initially and on reconsideration. Plaintiff testified at a hearing held before an Administrative Law
Judge (“ALJ”) on July 29, 2008. By a decision dated October 1, 2008, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Act. On December 28, 2009, the ALJ’s
decision became the Commissioner’s final decision when the Appeals Council denied Plaintiff’s
request for review. Plaintiff filed the instant action seeking judicial review of the denial of
benefits. The Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c), seeking affirmation of the denial of benefits. Plaintiff cross-moves for judgment on the
pleadings, seeking remand for further administrative proceedings.
For the reasons set forth below, the Commissioner’s motion is denied, Plaintiff’s motion is
granted, and this matter is remanded to the Commissioner for further administrative proceedings
consistent with this Order.
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DISCUSSION
A.
Standard of Review
A district court, reviewing the final determination of the Commissioner, must determine
whether the correct legal standards were applied and whether substantial evidence supports the
decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). The former determination
requires the court to ask whether the claimant has had “a full hearing under the [Commissioner’s]
regulations and in accordance with the beneficent purposes of the Act.” Echevarria v. Sec’y of
Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotations omitted). The
latter determination requires the court to ask whether the decision is supported by “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)).
B.
Disability Claims
To receive disability benefits, claimants must be disabled within the meaning of the Act.
See 42 U.S.C. § 423(a), (d). ALJs must adhere to a five-step inquiry to determine whether a
claimant is disabled under the Act as set forth in 20 C.F.R. § 404.1520. If at any step, the ALJ
finds that the claimant is either disabled or not disabled, the inquiry ends there. First, the claimant
is not disabled if he or she is working and performing “substantial gainful activity.” 20 C.F.R. §
404.1520(b). Second, the ALJ considers whether the claimant has a severe impairment, without
reference to age, education or work experience. Impairments are severe when they significantly
limit a claimant’s physical or mental “ability to conduct basic work activities.” 20 C.F.R. §
404.1520(c). Third, the ALJ will find the claimant disabled if his or her impairment meets or
2
equals an impairment listed in Appendix 1. 1 See 20 C.F.R. § 404.1520(d).
If the claimant does not have a listed impairment, the ALJ makes a finding about the
claimant’s residual functional capacity (“RFC”) in steps four and five. 20 C.F.R. § 404.1520(e),
(f). In the fourth step, the claimant is not disabled if he or she is able to perform “past relevant
work.” 20 C.F.R. § 404.1520(e). Finally, in the fifth step, the ALJ determines whether the
claimant could adjust to other work existing in the national economy, considering factors such as
age, education, and work experience. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(f).
At this fifth step, the burden shifts to the Commissioner to demonstrate that the claimant could
perform other work. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citing Carroll
v. Sec’y of Health & Human Servs, 705 F.2d 638, 642 (2d Cir. 1983)).
C.
ALJ’s Decision
ALJ Jordan took account of the five-step sequential analysis laid out in 20 C.F.R. §
404.1520. First, ALJ Jordan found that Plaintiff had not engaged in substantial gainful activity
since June 30, 2006, the date of the alleged onset of disability. (Record at 10.) At step two, ALJ
Jordan determined that Plaintiff had severe impairments of traumatic femoral neuropathy, carpel
tunnel syndrome, obesity, and disorders of the right knee and back. (Id.) At step three, ALJ
Jordan found that none of Plaintiff’s impairments, either in isolation or in combination, met or
equaled impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 12.) At step
four, ALJ Jordan determined that Plaintiff possessed the RFC to “perform less than a full range of
light work” and ultimately Plaintiff could perform “his past relevant work as a
telecommunications sales and advertisement person as it is generally performed in the national
1
20 C.F.R. pt. 404, subpt. P, app. 1.
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economy.” (Id. at 17.) At step five, ALJ Jordan found, based on the testimony of a vocational
expert, and taking into consideration Plaintiff’s age, education, work experience, and RFC, that
Plaintiff was also able to work as an office helper and library helper. (Id.) In short, ALJ Jordan
found that Plaintiff was not disabled from June 30, 2006 through October 1, 2008, the date of the
decision. (Id.)
D.
Application
The Commissioner seeks judgment on the pleadings, contending that the ALJ’s decision is
supported by substantial evidence and based upon sound legal conclusions. Plaintiff opposes,
cross-moves for judgment on the pleadings, and seeks remand for further administrative
proceedings, arguing that: (1) the ALJ gave improper weight to Plaintiff’s treating physician; (2)
the ALJ followed “unreliable” vocational expert testimony; and (3) there exists new and material
evidence not considered by the ALJ.
1.
Treating Physician Rule
A treating source’s medical opinion regarding the nature and severity of an impairment is
given controlling weight when supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record. Schisler
v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993) (citing 20 C.F.R. § 404.1527(d)). When a treating
source’s opinion is not given controlling weight, the proper weight accorded depends upon
several factors, including: (i) the frequency of examination and the length, nature, and extent of
the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s
consistency with the record as a whole; and (iv) whether the opinion is from a specialist. Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)).
Additionally, the ALJ must always give good reasons in his decision for the weight accorded to a
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treating source’s medical opinion. Id. There are, however, certain decisions reserved to the
Commissioner. Such decisions include the determination that a claimant is disabled or unable to
work. 20 C.F.R. § 404.1527(e)(1). That means that the Social Security Administration considers
the data that physicians provide but draws its own conclusions as to whether those data indicate
disability.
“A treating physician’s statement that the claimant is disabled cannot itself be
determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
The ALJ did not give controlling weight to the opinion of Plaintiff’s treating neurologist,
Dr. Glenn Waldman, finding that his opinion was “not supported by objective medical evidence,”
nor was it “consistent with the other evidence of record.”
(Record at 16.)
Dr. Waldman
diagnosed Plaintiff with traumatic femoral neuropathy2 and lumbar radiculopathy, 3 and in his
final report prior to the hearing before the ALJ, found that Plaintiff “can sit for a total of four
hours within an eight-hour workday but no more than one hour at one time, cannot stand
continuously for any length of time, can walk for a total of one hour but no more than 4-5 blocks
continuously, can occasionally lift and carry up to 10 pounds, never stoop, squat, climb or reach,
and needs to intermittently lie down during the day to alleviate pain as needed.” (Id. at 14-16.)
ALJ Jordan decided to give Dr. Waldman’s opinion “little weight.” (Id. at 16.) However,
despite his brief consideration of some of the applicable § 404.1527(d) factors, ALJ Jordan did
not fulfill his duty to consider all of the factors. See Clark, 143 F.3d at 118 (§ 404.1527(d) factors
2
3
Pathological changes in the nerves of the thigh; nerve disorder involving the femoral nerve. 2
CH-F J.E. Schmidt, Attorneys’ Dictionary of Medicine and Word Finder F-51 (Matthew
Bender, 2010).
An intervertebral disk (a disk between adjacent vertebrae) in which the pulpy or soft center has
been pushed out and through the surrounding tougher part, thus forming a protruding mass. 3
G-L J.E. Schmidt, Attorneys’ Dictionary of Medicine and Word Finder H-115 (Matthew
Bender, 2010) (cited as Herniated Disk).
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“must” be considered when a treating physician’s opinion is not given controlling weight). For
example, although ALJ Jordan generally noted that Dr. Waldman has been Plaintiff’s physician
“since 2007,” the ALJ failed to adequately acknowledge the frequency, nature and extent of the
relationship beyond the January 3, 2007 visit, even though the record indicates at least seven
separate visits from January 2007 to July 2008. (Record at 174-83, 248-77.) Further, ALJ Jordan
makes no mention of Dr. Waldman being a neurologist specifically, or a specialist generally.
More weight is generally given to the “opinion of a specialist about medical issues related to his
or her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. §
404.1527(d)(5). This is especially relevant in this case because Plaintiff was diagnosed with a
neurological condition by a treating neurologist. An ALJ “must” consider the § 404.1527(d)
factors, and ALJ Jordan’s failure to do so mandates remand.
2.
Vocational Expert
Where a claimant’s impairments are such that he cannot perform his past work, the burden
shifts to the Commission to prove that there are other jobs that the claimant is capable of
performing. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Commissioner is required to
“produce evidence to show the existence of alternative substantial gainful work which exists in
the national economy,” taking account of age, education and training. Id. at 77-78.
The
Commissioner can meet his burden by resorting to the applicable medical vocational guidelines,
but when the guidelines fail to encompass the extent of claimant’s physical limitations, the
Commissioner must seek the testimony of a vocational expert, or other similar evidence, that
there are jobs in the national economy that the claimant is able to obtain and perform. Id. at 78.
The vocational expert can rely on information contained in government and other publications,
including the Dictionary of Occupational Titles (“DOT”).
6
See
20
C.F.R.
§
404.1566(d).
However, the ALJ has the responsibility to determine the claimant’s capabilities based on all of
the evidence. See Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983).
In reaching the conclusion that Plaintiff could perform other work, ALJ Jordan relied on
the testimony of vocational expert Andrew Pasternak. ALJ Jordan laid out a pair of hypothetical
scenarios for the vocational expert to consider (Record at 63-64), and the vocational expert
testified that Plaintiff could work as an office helper, library helper, and inside messenger clerk.
(Record at 65.) The vocational expert later testified that a claimant in the hypothetical position
laid out by ALJ Jordan could not perform the job of an inside messenger clerk because it requires
frequent fingering and handling. (Record at 67.)
Plaintiff asserts that ALJ Jordan erred in relying on the testimony of the vocational expert,
arguing that the testimony was “unreliable” because it was inconsistent with the Dictionary of
Occupational Titles (“DOT”), the expert did not own a copy of the Selected Characteristics of
Occupations (“SCO”), and he was unfamiliar with the SCO requirements of the jobs identified for
Plaintiff. The Commissioner argues that “the ALJ appropriately resolved the inconsistency by
obtaining additional information from the vocational expert regarding his knowledge of the jobs .
. . .” (Def. Reply at 3.)
Social Security Ruling 00-4p states the standards for the use of a vocational expert as
follows:
Occupational evidence provided by a VE or VS [vocational expert or vocational
specialist] generally should be consistent with the occupational information
supplied by the DOT. When there is apparent unresolved conflict between VE or
VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for
the conflict before relying on the VE or VS evidence to support a determination or
decision about whether the claimant is disabled. At the hearings level, as part of
the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on
the record, as to whether or not there is such a consistency.
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Neither the DOT nor the VE or VS evidence automatically “trumps” when there is
a conflict. The adjudicator must resolve the conflict by determining if the
explanation given by the VE or VS is reasonable and provides a basis for relying
on the VE or VS testimony rather than on the DOT information.
Here, the inconsistencies between the vocational expert’s opinion and the DOT were
resolved on the record. First, the vocational expert discussed his disagreement with the DOT and
SCO definition of office helper by explaining that “the range of work . . . covered by this
particular job [is so vast] it may not require frequent fingering and handling.” (Record at 67.)
ALJ Jordan then addressed the inconsistency, and the vocational expert testified that the number
of jobs available to an individual with the RFC stated would be reduced by two-thirds, i.e.,
somewhere between 2,000 and 10,000 jobs remaining. (Record at 68.) The vocational expert
attributed his opinion to “experience over the years of working in situations with various office
jobs.” (Record at 68.) The vocational expert also addressed his disagreement with the SCO
regarding library helper, claiming to have “very intimate knowledge and having worked in a
project with the Queens Borough Public Library . . . .” (Record at 69.) ALJ Jordan inquired of
the expert as to the extent his previous estimate of available jobs would be reduced. Again, the
vocational expert reduced his estimate by two-thirds. (Record at 70-71). Thus, the ALJ resolved
the conflicts on the record and did not commit error in relying on the expert’s testimony. On
remand, if a vocational expert again provides evidence, the ALJ is directed to again comply fully
with his duties under SSR 00-4p.
3.
Evidence Not Before the ALJ
Again, because this matter is being remanded, the court need not address the evidence
before the appeals council (June 26, 2009 MRI of Plaintiff’s right hip and March 25, 2009 report
from Dr. Andrew Brown) or the new evidence submitted to this court (August 2, 2010 report by
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Dr. Asaf Gave and December 1, 2009 report by Dr. Lana Kang), none of which was submitted to
the ALJ in the original hearing. On remand, the ALJ is directed to consider this evidence to the
extent warranted.
CONCLUSION
For the reasons set forth above, the Commissioner’s motion is denied, Plaintiff’s motion is
granted, and this matter is remanded to the Commissioner, pursuant to the fourth sentence of 42
U.S.C. § 405(g), for further administrative proceedings consistent with this Order.
SO ORDERED
DATED:
Brooklyn, New York
July 5, 2011
____________/s/_____________
DORA L. IRIZARRY
United States District Judge
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