Daragjati v. Colvin
MEMORANDUM OPINION. The Clerk is directed to enter judgment remanding the case for a further hearing before the ALJ solely to expand the record to comply with SSR 00-4p, if it can be reconciled, and for the ALJ to make findings based on that hearing. Ordered by Judge Brian M. Cogan on 1/31/2015. (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
14 Civ. 2727 (BMC)
COGAN, District Judge.
In this social security disability case, plaintiff claims he is disabled as a result of severe
orthopedic impairments in his back, knees, neck and shoulders. He raises three points of error
with respect to the decision of the Administrative Law Judge denying him disability benefits: (1)
the ALJ failed to consider plaintiff’s morbid obesity; (2) the ALJ improperly disregarded the
report of plaintiff’s treating physician that plaintiff was disabled; and (3) the opinion of job
availability identified by the testifying vocational expert did not take into account plaintiff’s
By short form Order, I have granted plaintiff’s motion for judgment on the pleadings and
denied the Commissioner’s cross-motion. This Memorandum explains the basis for that
This case followed a somewhat unusual path to a determination, and one that did not help
plaintiff in meeting his burden to prove disability. The timing was simply too attenuated and
there is limited evidence of medical treatment during the key period. Specifically, plaintiff filed
his application for benefits on June 13, 2011. But he had stopped working and claims the onset
of disability nearly 21 years earlier, on December 30, 1990. Based on his earnings record, he
had acquired sufficient coverage to remain insured through December 31, 1995. This meant that
he had to prove to the ALJ, in 2011, that he became disabled sometime between December 30,
1990 and December 31, 1995 (the “insured period”).
The question naturally arose, and the ALJ raised it, why plaintiff had waited 16 years to
apply for benefits. His explanation was that he had previously received social security disability
benefits for left knee pain based on a service-related injury starting in 1977, but his disability
benefits ended, which means he was found no longer disabled, in 1982. Then, in 1995, he
received notice that he was a class member in Dixon v. Shalala, 54 F.3d 109 (2d Cir. 1995),
which reopened over 200,000 previously denied disability claims. Before the ALJ, plaintiff
claimed that he had received some paperwork in May, 1995 (perhaps the claim form); that he
completed it, returned it, and, according to him, received an acknowledgment that the Social
Security Administration was considering it, but the Administration never got back to him. After
waiting to hear for 16 years, plaintiff filed his new application in 2011. 1
Of course, this description did not really answer the question. If plaintiff was as disabled
in 1995 as he was in 2011 (and in fact the record is pretty clear that – as of 2011 – he was), it is
hard to imagine why he would simply wait for 16 years before making any inquiries. People
may expect government agencies to move slowly, but when dealing with their own benefits, they
don’t typically expect them to move that slowly. The ALJ made some adverse findings about
plaintiff’s credibility, and while he did not expressly mention this peculiar timetable in the
Plaintiff’s attorney opines that plaintiff’s submission of the 1995 paperwork means that “[i]t presumably remains
an open request waiting for a response.” That is a glass-half-full perspective if there ever was one.
context of credibility, he did repeatedly press the question to plaintiff and could not get a
But the timeline gave plaintiff a bigger problem than credibility. He had very few
medical records for the insured period. Plaintiff attributed this to house floods, doctors dying or
retiring, and practices closing. But that is what can happen when you wait 16 years to make a
claim. The result was that there were almost no medical records obtained that pertained to the
The only medical records of any probative value that the ALJ could find from the insured
period were created right before the end of it, from September to November, 1995. Principal
among these were an x-ray report which showed a narrowing of the medial joint compartment,
osteoarthritic changes of the left knee, and a small suprapatellar spur. Plaintiff also had two
MRIs in October, 1995, which showed left knee abnormalities – meniscus tears, bowing of the
ACL, some osteoarthritis, and cartilage inflammation. He also had an outpatient surgical
procedure on his knee in November, 1995 (we have only the billing documents, not any surgical
records). The records from the insured period showed a moderately impaired knee, and no more.
After 1995, plaintiff had very little medical care or diagnosis until right before he filed
the disability application at issue here in 2011. For the six years after the end of the insured
period, there are no diagnostic records that could support a finding of disability. He apparently
did have a CT scan in 2001, some injections into his knee in 2002, and some x-rays in 2003, but
we only have the bills, and don’t know what was behind those procedures. No other medical
examinations were considered or performed until some months before plaintiff filed his 2011
application for disability benefits.
To bridge the gap in his insured period medical records, plaintiff relied on old records
predating that period by more than a decade, and new records post-dating that period by more
than a decade. The ALJ found that this was not very probative evidence. As to the former, the
The claimant attempts to link physical impairments established decades earlier in
the 1970’s to his physical difficulties in the present, despite the fact that the
claimant was able to pursue substantial gainful activities as late as 1990. Such
inconsistency and selectivity suggests that the claimant’s symptoms are not as
severe as he alleges.
As to the post-insured period, the ALJ drew the fairly logical conclusion that what x-rays and
MRIs showed in late 2010 and 2011, as plaintiff was preparing his disability application, was not
all that helpful to understanding his condition 16-21 years earlier.
In determining that plaintiff had sufficient residual functional capacity (“RFC”) to do
sedentary work with restrictions, as the ALJ did, the ALJ essentially had to choose between two
competing physicians. First, plaintiff proffered Dr. Joseph Suarez as his treating physician. Dr.
Suarez, now retired, was an orthopedist in a medical group called Healthcare Associates in
Medicine (“HAM”), a multi-disciplinary practice. The record shows that plaintiff had visited
HAM between 1977-1983, but in the more recent era, he was referred there for pain management
in December of 2010. The pain management specialist for HAM, Dr. Germaine Rowe, had an
MRI done on him in February, 2011, and then turned him over to Dr. Suarez, who first saw him
on June 22, 2011.
In that initial meeting, Dr. Suarez found very severe impairments in both knees and back.
He created a detailed history and treatment note. I do not think there is any question that Dr.
Suarez’ findings in that note would mean that plaintiff was disabled as of that date, but the issue
was whether he was disabled as of December 31, 1995, nearly sixteen years earlier. There
wasn’t much in the note as to that question; the only statement touching on it was: “A case can
be made that his lumbosacral spine pain, according to history, started to develop after the left
knee with so many problems and surgeries.” Dr. Suarez went on to give an opinion of current
disability – i.e., as of the date of the examination: “He has a chronic problem. He cannot sit for
long periods of time or stand. He cannot use the upper extremities. Because of the persistent
pain from the cervical spine, he has a total disability and this is permanent. He will not
Dr. Suarez continued to see plaintiff every two to four months after the initial session on
June 22, 2011. His treatment notes after the initial session are less detailed, but consistent with
his initial note, and all repeat the finding of total disability set forth above. One note that stands
out is from April 4, 2012, both because it speaks to plaintiff’s history with Dr. Suarez and
because it tied the 2011 findings to 1995. It first stated:
The patient comes into the office today. The patient continues with bilateral knee
pain, left worse than right. Cervical spine and lumbosacral spine pain is
persisting. He is now complaining of bilateral hip pain. He again brings in
reports that we reviewed back from the 70s. Recently, we found a document
where he was seen in our office on March 1, 1983. Our records unfortunately did
not go back that far, but the patient had a document where he requested
documents from us regarding his case and this was in 1983. So, he must have
been followed in our office back in 1983.
The end of the note concluded that plaintiff “has a permanent and total disability and he is unable
to perform any type of gainful employment. The patient was followed in our office in 1983 and
was definitely disabled before 1995 since his symptomatology was present already in 1983.”
The only other document from Dr. Suarez worth noting is a “Multiple Impairment
Questionnaire” dated May 1, 2012. The Questionnaire lists the date of first treatment as “1983.”
The diagnosis is “bilateral o.a.,” which I assume is osteoarthritis, and “Deg [degenerative] disc
disease with foraminal stenosis cervical and lumbar spine.” He gave plaintiff a prognosis of
“poor.” I cannot read all of his answer to the question which asked him to identify the positive
clinical findings that support his diagnosis (his handwriting is consistent with the handwriting
reputation of his profession), but what I can read says “knees – deformed. Limited flexion pain
[illegible]. Cervical and lumbar spine [illegible].”
The ALJ gave Dr. Suarez’ opinion “no weight” because it only pertained to the 2011
period. The ALJ, instead, preferred the opinion of a medical expert, Dr. Thomas Scott, a board
certified orthopedist, who testified (by telephone) at the hearing. He had reviewed plaintiff’s
records, such as they were, but had not examined plaintiff. The ALJ asked him, carefully
limiting his questioning to the insured period, if plaintiff met the “listings” of impairments; Dr.
Scott answered in the negative. He also testified that during that period, plaintiff was limited in
his ability to repeatedly bend, lift, stoop, climb, or take long walks, but that he could do these
things occasionally. In addition, Dr. Scott testified that during the insured period, plaintiff could
walk for one hour; sit without limitation; lift ten pounds; and occasionally climb stairs and
ramps. On cross-examination, Dr. Scott acknowledged that it was reasonable, based on the
objective evidence, for plaintiff to have testified that when he would sit, he would have needed to
elevate his legs.
As noted above, the ALJ, in his decision, relied in part on plaintiff’s acknowledgment
that he had worked from 1984 through 1990. Until 1989, his employer was a company called
Motion Camera Supply, and his title was Maintenance Manager. According to plaintiff’s
description, it was a mostly supervisory, sedentary job. His responsibility was to monitor a fivefloor building undergoing repairs, take work estimates and job bids, and supervise a crew of
seven people to do the repair work. He testified that the owners of the company made
accommodations for him because of his impairment, like allowing him to recline and elevate his
legs, but that he could not stay in that reclined position too long because he had to move around.
Then, in 1990, he left Motion Camera Supply and got a construction job, where he worked for
nine months, but found it too physically demanding. In addition, the ALJ cited plaintiff’s
acknowledgment that he was still able to drive, attend church services, and engage in personal
Finally, the ALJ obtained testimony from a vocational expert, Ms. Karen Simone. She
first testified that plaintiff’s RFC was not sufficient to allow him to perform his past relevant
work. She then testified, in response to several hypotheticals presented by the ALJ based on
plaintiff’s actual condition, that an individual of plaintiff’s age (at the time), education,
experience, and RFC would be able to perform the requirements of several sedentary jobs such
as order clerk, charge account clerk, and printer circuit board taper. Critically, she noted that
these jobs all were classified by the Department of Labor’s Dictionary of Occupational Titles
(“DOT”) as requiring an exertion level of “sedentary.” She did not testify that any of the jobs
she mentioned, in particular, required less than that exertion level. The ALJ found, based on this
testimony, that plaintiff “was capable of making a successful adjustment to other work that
existed in significant numbers in the national economy.”
Familiarity with the five-step framework for analyzing disability claims is assumed. See
generally 20 C.F.R. § 404.1520(a)-(c). Rather than set them out, I will instead proceed to
consider each of plaintiff’s alleged points of error.
I. Failure to consider obesity
Obesity is defined by an individual's Body Mass Index (“BMI”). It can be a severe
impairment on its own or when combined with other impairments. SSR 02–1p. The ALJ is
required to evaluate the impact of plaintiff’s obesity as follows:
The combined effects of obesity with musculoskeletal impairments can be greater
than the effects of each of the impairments considered separately. Therefore,
when determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a claim at other
steps of the sequential evaluation process, including when assessing an
individual’s residual functional capacity, adjudicators must consider any
additional and cumulative effects of obesity.
20 C.F.R. § 404 app. 1, 1.00Q. The regulations also require an ALJ to “consider any additional
and cumulative effects of obesity” when determining a claimant’s RFC regarding a
cardiovascular impairment. Id. § 404 app. 1, 4.001(1).
Despite this mandatory directive, the ALJ’s obligation “diminishes where evidence in the
record indicates the claimant's treating or examining sources did not consider obesity as a
significant factor in relation to claimant’s ability to perform work related activities.” Farnham v.
Astrue, 832 F. Supp. 2d 243, 261 (W.D.N.Y. 2011) (citing Rockwood v. Astrue, 614 F. Supp. 2d
252, 276 (N.D.N.Y. 2009); Day v. Commissioner of Social Sec., No. 5-cv-1271, 2008 WL
2331401, *5 (N.D.N.Y. June 3, 2008)).
Assuming that plaintiff met the definition of obesity, the cited cases pretty much dispose
of his claim that the ALJ had a duty to consider it. There is not a single reference in any medical
record, let alone in a record in or close to the insured period, to plaintiff’s obesity as either
constituting a disabling impairment or contributing to any other impairment. There are scattered
references that could reasonably be construed as referring to obesity – in 2001, according to a
letter that his wife wrote to the Social Security Administration, plaintiff had a gastric bypass, and
plaintiff testified before the ALJ that his weight in late 1995 was 385 pounds. (We have no
medical records to support either assertion.) There is also at least one note from late 1995 in
which the former Veterans Administration described plaintiff as “obese.” But there is no record
of a doctor who ever listed obesity as a diagnosis or said anything like “this is making plaintiff’s
other problems worse.”
The point of the cases cited above is that if the doctors do not identify obesity as a
problem, then the ALJ does not have to consider it. This is only logical; if the ALJ concluded
that the addition of obesity created a disabling combination of impairments, he would be making
that up. There could be no basis for him to reach such a conclusion if no doctor has so opined, or
at least suggested that obesity was an aggravating factor.
What plaintiff was asking the ALJ to do was make a diagnosis that no doctor had made
and then determine that, either alone or in combination with his other impairments, it rendered
him disabled when no doctor had expressed that opinion. Especially considering that the record
shows substantial weight fluctuations over the protracted time period, at least one of which
would make plaintiff non-obese, that was asking the ALJ to act outside of his role.
II. Disregard of treating physician’s opinion
In weighing the medical opinion evidence, the ALJ is obligated to adhere to the rules set
forth in 20 C.F.R. § 416.1527(c) (2012). These rules indicate that, generally, more weight is
given to the following: (1) opinions provided by physicians who have actually examined a
claimant; (2) opinions provided by a claimant’s treating physicians; (3) opinions supported by
objective relevant evidence; (4) opinions that are more consistent with the record evidence as a
whole; (5) opinions of specialists about medical impairments related to their area of expertise;
and (6) opinions that may be supported by any other factors the claimant brings to the
Commissioner’s attention. Id. The second factor requires that the Commissioner must give a
treating physician's opinion “controlling weight” if his or her opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the claimant’s] case record.” Id. at § 416.1527(c)(2). This is
known as the “treating physician rule.” See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
I cannot fault the ALJ for giving no weight to Dr. Suarez’ opinion. First, although Dr.
Suarez ”treated” plaintiff, he did not do so during the insured period and his opinion is therefore
not entitled to the controlling weight that it would if he had. See Arnone v. Bowen, 882 F.2d 34,
41 (2d Cir. 1989). Plaintiff contends that in the Questionnaire, Dr. Suarez affirmed that he had
treated plaintiff starting in 1983, but that is a more than a small mischaracterization. Dr. Suarez’
other notes make it clear that he met plaintiff for the first time on June 22, 2011. When Dr.
Suarez listed 1983 on the Questionnaire, he was clearly referring to plaintiff’s having seen other
health care providers at the multi-disciplinary HAM practice in the early 1980s – we don’t know
who they were, or even that they were orthopedists – not that Dr. Suarez had known or treated
plaintiff since that time. 2
Of course, Dr. Suarez had started treating plaintiff by the time of the hearing. And, as
plaintiff correctly points out, there is nothing wrong with a treating physician giving a
retrospective opinion. See, e.g., Rivera v. Sullivan, 923 F.2d 964, 968 (2d Cir. 1991). But when
a doctor treats a patient for a year, and then gives a retrospective opinion for a time period 16-21
Dr. Suarez testified that “[o]ur records unfortunately did not go back that far, but the patient had a document where
he requested documents from us regarding his case and this was in 1983. So, he must have been followed in our
office back in 1983.” The manner in which Dr. Suarez reached this conclusion shows that he had no personal
knowledge of plaintiff before June 22, 2011.
years prior with no continuity with the patient during the interim, that is not what the treating
physician rule has in mind.
The reason deference is given to a treating physician is that he has worked with the
patient through, or at least near to, the period of alleged disability, and thus has a better
knowledge of the patient’s impairments than someone who comes upon the patient cold. See
Arnone, 882 F.2d at 41. Here, Dr. Suarez came upon the patient in 2011 as cold as would any
medical consultant or medical expert. He examined the patient, read the file (such as it was), and
then came up with a diagnosis. Indeed, given the 16-21 year gap and the dearth of records
during the insured period, one could almost assert that Dr. Suarez’s retrospective opinion was
more akin to that of a pathologist than a treating physician. I therefore do not believe the ALJ
had to apply the treating physician rule with the same vigor that it usually commands.
In fact, although plaintiff stresses the ability of Dr. Suarez, as treating physician, to offer
a retrospective opinion, there is very little about his notes and reports that qualifies as
retrospective, and what there is shows how speculative the exercise was in which he engaged.
Almost everything Dr. Suarez noted described plaintiff’s then-current (i.e., 2011-2012)
condition, including his repeated refrain that plaintiff is “totally disabled.” The only
retrospection Dr. Suarez offers is this: “The patient was followed in our office in 1983 and was
definitely disabled before 1995 since his symptomatology was present already in 1983.” By its
reliance on symptomatology from 1983, the reasoning is exposed as fallacious, because it
ignores that fact that plaintiff did fairly substantial work – including nine months of construction
work – in the six years prior to the alleged onset date in 1990, despite being “followed in our
office in 1983.” So how would Dr. Suarez know that plaintiff became disabled between 1990
and 1995, as opposed to, for example, 1996? Or 1997? Or 1998 – still a dozen years before he
The answer that leaps out is that Dr. Suarez undoubtedly knew that plaintiff had a
disability benefits case pending and knew that plaintiff had to prove a disability before the end
of 1995, for it seems most unlikely that Dr. Suarez’ selection of an unspecified date “before
1995” was an orthopedic coincidence. This conclusion is buttressed by the fact that plaintiff first
saw Dr. Suarez nine days after he filed his disability benefits application. It is further buttressed
by the initial observation, the first day that Dr. Suarez met plaintiff, that “[a] case can be made
that his lumbosacral spine pain, according to history, started to develop after the left knee with so
many problems and surgeries.” It is hard to avoid the conclusion about what “case” Dr. Suarez
was talking about “making.”
The only potentially viable aspect of plaintiff’s argument is that the ALJ never referred
specifically to the retrospective opinion quoted above, relying instead on the fact that the
opinions in the Questionnaire appeared entirely current. That is true, and the ALJ probably
should have referred to the April 4 treatment note. But the reasoning of the retrospective opinion
here was so obviously flawed, for the reasons set forth above, that I cannot see how it would
have made any difference in the ALJ’s determination that the treating physician rule did not
compel determinative deference.
If there was any infirmity to the ALJ’s rejection of Dr. Suarez’ opinion, it was that Dr.
Scott’s was not much better. At least Dr. Suarez had examined plaintiff. Moreover, Dr. Scott’s
opinion was entirely conclusory; he did not offer, and the ALJ did not inquire, how he reached
his conclusions as to plaintiff’s RFC, or what he based them on. But with Dr. Suarez’
examination occurring some 16 years after the end of the insured period, and the near total
absence of records for that period, both physicians had to engage in an unusual degree of
speculation. The ALJ’s decision is sustainable based on substantial evidence in comparative
terms – and therefore should be affirmed in this respect – because there was so little evidence at
all. The poor quality of the evidence is chargeable to plaintiff, not necessarily because he waited
so long to pursue his claim, but more importantly, because he had the burden of proof. See
Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984).
III. Plaintiff’s ability to do sedentary work – with limitations
Plaintiff attacks the ALJ’s finding that there were sufficient jobs in the national economy
that plaintiff could have done during the insured period on the ground that the testifying
vocational expert gerrymandered the requirements for those jobs to fit plaintiff’s abilities.
Specifically, plaintiff asserts that the DOT requires the ability to stand or walk for two hours for
“sedentary” jobs, whereas Ms. Simone testified that plaintiff could do certain clerical, sedentary
jobs even though, as Dr. Scott testified, the ALJ found, and Ms. Simone assumed, he can only
stand or walk for one hour, not two hours. Plaintiff contends that under the Policy Interpretation
for SSR 00-4p, the ALJ had an obligation to elicit an adequate basis from Ms. Simone as to why
her view was inconsistent with the DOT before accepting her testimony.
It is true that the SSR 00-4p requires a reconciliation of differences between a vocational
expert’s testimony and the DOT. Specifically, SSR 00-4p, 2000 WL 1898704, *2 (2000), states:
Occupational evidence provided by a [vocational expert] generally should be
consistent with the occupational information supplied by the DOT. When there is
an apparent unresolved conflict between [vocational expert] evidence and the
DOT, the adjudicator must elicit a reasonable explanation for the conflict before
relying on the [vocational expert’s] evidence to support a determination 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.
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.
The DOT defines “Sedentary Work,” in part, as follows: “Sedentary work involves sitting
most of the time, but may involve walking or standing for brief periods of time. Jobs are
sedentary if walking and standing are required only occasionally and all other sedentary criteria
are met.” U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. 1991). “Occasional”
is defined as an “activity or condition [that] exists up to 1/3 of the time.” Id. The Social
Security Administration has adopted both of these definitions, and refined somewhat the
definition of “occasional.” As to the definition of “sedentary work,” 20 C.F.R. § 404.1567 states
that it has “the same meaning as [it has] in the Dictionary of Occupational Titles . . . .” As to the
definition of “occasional,” SSR 83-10 states: “Since being on one's feet is required
‘occasionally’ at the sedentary level of exertion, periods of standing or walking should generally
total no more than about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.”
As a technical matter, plaintiff’s point is valid. When Ms. Simone opined, for example,
in response to the ALJ’s hypothetical that included a one-hour limit on standing or walking, that
plaintiff could work as an order clerk, and that there were “19,580 jobs in the national economy;
767 in the State of New York; and 569 in the region,” she was talking about jobs which,
according to the DOT, might require as much as two hours standing during the day – something
plaintiff could not do. The effect on her assessment was the same as if she had decreased the
definition of “occasional” from 1/3 of the workday to 1/8 of the workday. And the ALJ did not
ask her the basis for doing that.
The Commissioner’s response to this argument is not persuasive. She first asserts that
the ALJ solved this problem by phrasing his question in terms of “sedentary work or a
framework of sedentary work specifically” including plaintiff’s one-hour cap. But because of the
way Ms. Simone answered that inquiry – strictly with sedentary jobs listed by the DOT as
requiring as much as two hours – the Commissioner’s argument does not explain how Ms.
Simone got from Point A – jobs requiring as much as two hours of walking or standing – to Point
B – jobs requiring only one hour of standing or walking.
The Commissioner next suggests, without using the term, that plaintiff waived this
argument by not raising it before the ALJ, which would have given the ALJ an opportunity to
close the gap in Ms. Simone’s testimony, or cross-examining Ms. Simone himself. The
Commissioner notes that plaintiff was represented by counsel, and that counsel did in fact crossexamine Ms. Simone, but not on this point. However, I am reluctant to find a waiver in the nonadversarial context of a disability benefits hearing. And the authority that the Commissioner
cites, Brault v. Social Security Administration, Commissioner, 683 F.2d 443 (2d Cir. 2012), did
not involve the mandatory duty of inquiry imposed by SSR 00-4p to reconcile contradictions
between the DOT and a vocational expert’s testimony because, in fact, the expert’s testimony in
Brault had more basis than simply the DOT. Brault, instead, discussed whether an ALJ has a
general duty of inquiry of a vocational expert to uncover infirmities in the expert’s opinion.
Finally, the Commissioner contends that, like the expert in Brault, Ms. Simone testified
that she had personal knowledge of the particular occupations about which she thought plaintiff
could perform, which was adequate to reconcile the discrepancy with the DOT. That overstates
her testimony. On cross-examination, she was asked if employers of the one of the occupations
she identified would let employees put their feet up on a stool. She said she had personal
experience with that issue to know that they would, and briefly explained why. That suggests
that, if Ms. Simone had been asked the question, she would have been able to describe her
experience sufficiently to opine that some or all of the positions she named only require one hour
of standing or walking, not two, despite the DOT. But she was not asked the question, and the
ALJ’s failure to make the record did not comply with the mandate – “the adjudicator must elicit
a reasonable explanation for the conflict” – contained in SSR 00-4p.
It does seem awfully inefficient to remand the case on this basis. For one thing, we are
hardly dealing with precise numbers. When Dr. Scott opined that plaintiff could only stand or
walk one hour a day, it was not as if he was saying that plaintiff has a battery that runs out at
precisely 60 minutes every day at which point plaintiff has to stop walking or standing and sit
down. Some days it may be 45 minutes; others it may 90 minutes; indeed, it may 90 minutes
every day. That would be quite close to the “about two hours” contemplated by SSR 83-10.
Moreover, the tolerable standing/walking times in the DOT and the SSR rulings are
themselves approximations. The DOT says “occasionally” means 1/3 of the workday, which for
an eight hour workday, is 2.67 hours. SSR 83-10 reduces that to “generally” totaling “about 2
hours,” which is actually itself inconsistent with the DOT, as it reduces the 1/3 of the workday in
the DOT definition to 1/4. Ms. Simone’s testimony, based on the hypothetical, reduced it further
to 1/8 of the workday, but to a layperson, a “sedentary” job that requires standing or walking two
hours out of eight hours might not seem all that sedentary, and Ms. Simone’s testimony may be a
better approximation of the average amount of standing for the DOT positions in the real world.
Add to this, as suggested above, that Ms. Simone has personal knowledge of the positions
about which she was testifying, and it is hard to avoid the conclusion that she would testify on
remand that there are a significant number of the jobs classified as “sedentary” in the DOT which
in fact require only one hour of standing/walking, and that she could set forth an acceptable basis
for reaching that conclusion.
Nevertheless, I am compelled to remand the case for further testimony from a vocational
expert. SSR 00-4p is written in mandatory language, and the majority of decisions in this Circuit
apply it according to the way it is written. See, e.g., Patti v. Colvin, No. 13-cv-1123, 2015 WL
114046, *5-6 (W.D.N.Y. Jan. 7, 2015), citing Diaz v. Astrue, No. 11-cv-317, 2012 WL
3854958, at *6 (D. Conn. Sept.5, 2012) (“SSR 00–4p requires the ALJ to afford no room for
conjecture where there is an apparent conflict between the VE’s testimony and the DOT and a
resolution by this Court would be unduly conjectural in the absence of clarification from the
ALJ”); Molina v. Colvin, No. 13-cv-6532, 2014 WL 4955368, *9 (W.D.N.Y. Oct. 2, 2014);
Gallegos v. Colvin, No. 13-cv-393, 2014 WL 4635418, *3-5 (D. Conn. Sept. 11, 2014);
Pettaway v. Colvin, No. 12-cv-2914, 2014 WL 2526617, *12-13 (E.D.N.Y. June 4, 2014); King
v. Commissioner of Social Security, No. 12-cv-277, 2013 WL 3967928, *4-7 (D. Vt. July 31,
2013); but see Wellington v. Astrue, No. 12-cv-3523 (S.D.N.Y. May 9, 2013) (failure to explain
absence of sit/stand option in DOT as compared to VE’s opinion was harmless error).
If I were to affirm this case, it would have to be because of my own sense that the
missing testimony from the vocational expert would definitely be supplied on remand and
therefore the error was harmless. I may think the missing testimony is likely, but that is not an
adequate basis to affirm on a factual issue on which the Commissioner, unlike the other issues,
has the burden of proof. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). It
may seem to me as a matter of common sense that a significant number of the occupations
identified at the last hearing require only one hour of standing/walking, but the record gives me
no ability to make a factual determination of that and, more fundamentally, it is not my
determination to make.
The Clerk is directed to enter judgment remanding the case for a further hearing before
the ALJ solely to expand the record to comply with SSR 00-4p, if it can be reconciled, and for
the ALJ to make findings based on that hearing.
Digitally signed by Brian M. Cogan
Dated: Brooklyn, New York
January 31, 2015
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