Provisero v. Colvin

Filing 22

MEMORANDUM of DECISION & ORDER: SO ORDERED that the Court grants in part and denies in part the Plaintiff's motion under Fed. R. Civ. P. 12(c) for judgment on the pleadings; and grants in part and denies in part the Commissioner's analogous cross-motion. In particular, the Court finds that the portion of the Underlying Decision which found the Plaintiff to be capable of meeting the exertional demands of medium work during the Relevant Time Period was supported by substantial evidence i n the record. However, the portion of the Underlying Decision which found that there were jobs that existed in significant numbers in the national economy that the Plaintiff could have performed was unsupported by substantial evidence in the record. Accordingly, the ALJ's February 6, 2013 decision is vacated in part, and this matter is remanded for additional administrative proceedings to determine, and address on the record, whether, during the Relevant Time Period, the Plaintiff's ca pability to perform the full range of medium work was significantly diminished by the combined effects of his exertional and nonexertional limitations. If so, the ALJ is directed to develop the record with a view toward eliciting proof, through the t estimony of a vocational expert or other similar source, regarding the existence of jobs in the national economy that an individual with the Plaintiff's impairments and limitations, both exertional and nonexertional, could reasonably be expected to obtain and perform. Finally, after conducting this analysis, the ALJ is directed to reevaluate whether a departure from the Grids is warranted in determining the Plaintiff's disability status. The Clerk of the Court is respectfully directed to close this case. Ordered by Judge Arthur D. Spatt on 8/8/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SAMUEL H. PROVISERO,

FILED 
CLERK 

8/8/2016 9:49 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
-againstCAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration,

Memorandum of
Decision & Order
14-cv-1830 (ADS)

Defendant.
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APPEARANCES:
Christopher J. Bowes, Esq.
Attorney for the Plaintiff
54 Cobblestone Drive
Shoreham, NY 11786
United States Attorney’s Office, Eastern District of New York
Attorneys for the Defendant
610 Federal Plaza, 5th Floor
Central Islip, NY 11722
By:
Vincent Lipari, Assistant U.S. Attorney
SPATT, District Judge:
On March 19, 2014, the Plaintiff Samuel H. Provisero (the “Plaintiff”) commenced this action
pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405 et seq., challenging a final
determination by the Defendant Acting Commissioner of Social Security Carolyn W. Colvin (the
“Defendant” or “Commissioner”), that he is ineligible to receive Social Security disability insurance
benefits.
Presently before the Court are the parties’ cross-motions, pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 12(c), for judgment on the pleadings. For the reasons that follow, the
Plaintiff’s motion is granted in part and denied in part; the Commissioner’s motion is granted in part
and denied in part; and this matter is remanded for additional administrative proceedings.
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I.

BACKGROUND

After serving in the Army during the Vietnam War, the Plaintiff worked as a crane operator
for approximately 36 years. Between September 2001 and May 2004, he operated a crane at the
World Trade Center recovery and cleanup site. The Plaintiff continued in this line of work until
May 2006, when he was injured in a fall from his crane and required stitches. He returned to work
for only two weeks after this incident, eventually claiming that that he was disabled due to asthma,
sleep apnea, and depression.
On May 18, 2007, the Plaintiff applied for Social Security disability insurance benefits,
alleging a disability onset date of May 1, 2006. On or about September 7, 2007, the Social Security
Administration (“SSA”) denied his application.
On reconsideration, including a hearing held on May 7, 2008, Administrative Law Judge
Seymour Raynor (the “ALJ”) agreed with the SSA’s initial determination. In particular, in a June 6,
2008 written opinion, the ALJ concluded that, to the extent the Plaintiff was still capable of
performing his past work as a crane operator, he was not disabled for purposes of the Act.
On August 29, 2009, the Appeals Council denied a request for further review of the ALJ’s
determination, making the ALJ’s decision the final decision of the Commissioner.
On October 29, 2009, the Plaintiff filed a civil appeal in the Eastern District of New York,
seeking district court review of the ALJ’s decision. The matter was assigned to United States
District Judge Joanna Seybert, who, by Memorandum & Order dated February 15, 2012, remanded
the matter to the ALJ for additional administrative proceedings.
In light of Judge Seybert’s order, on August 24, 2012, the Appeals Council issued an
Affirmation and Order vacating the ALJ’s June 6, 2008 decision and officially remanding the matter
for further proceedings. However, the Appeals Council noted that, on December 3, 2010, while his
civil appeal was on submission, the Plaintiff had actually filed a second application for Social

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Security disability benefits. Apparently, based on the medical evidence submitted in support of the
second application, the SSA determined that the Plaintiff was disabled as of June 7, 2008.
Therefore, with respect to the first application, the sole issue to be addressed on remand was
whether the Plaintiff was disabled during the period of time from May 1, 2006, i.e., the alleged
disability onset date, to June 7, 2008, i.e., the date the SSA acknowledged that he was disabled for
purposes of the second application. For purposes of this opinion, the period of time from May 1,
2006 to June 7, 2008 is defined as the “Relevant Time Period.”
Following another hearing held on January 22, 2013, the ALJ concluded that the Plaintiff was
not disabled during the Relevant Time Period. In particular, the ALJ found that, although the
Plaintiff could no longer perform his past work as a crane operator, he nevertheless maintained the
residual functional capacity (“RFC”) to perform the full range of “medium work,” as that term is
defined in 20 C.F.R. 404.1567(c). Given his age, education, and work experience, the ALJ concluded
that he could perform jobs that existed in significant numbers in the national economy.
On January 31, 2014, after receiving written objections to the ALJ’s decision from the
Plaintiff, the Appeals Council denied administrative review.
On March 19, 2014, the Plaintiff commenced this civil appeal.
A.

The Non-Medical Evidence
As noted above, the Plaintiff testified about his alleged disabilities in two separate hearings

before the ALJ.
1.

The May 7, 2008 Hearing

On May 7, 2008, the Plaintiff appeared by counsel and testified that he had been under active
medical treatment for asthma and depression since approximately May 16, 2006, which was also the
last date that he worked. At the time of the hearing, the Plaintiff was taking multiple medications
daily, including Ibuprofen, Spiriva, Prevacid, Lamictal, and Mirtazapine.

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The Plaintiff testified that in May 2006 he fell off of his crane and sustained injuries that
required stitches. He was placed on “light duty” for approximately two weeks after this incident,
and then stopped working completely.
With regard to his mental condition, the Plaintiff testified that he suffered from depression
and experienced “fears of everything,” including “working,” “seeing people,” and “being social.” He
stated if he stopped taking his antidepressants, he would not be “a very good, useful person” and
would not be “a very social person.” However, at the time of the hearing, the Plaintiff admittedly
was under no stress or strain; stated that he “still can function and work with people”; and indicated
that his prescribed medications “seem[ed] to be working.”
In fact, at the May 7, 2008 hearing, the Plaintiff stated that his asthma, and not his
depression, was “the problem.”
In this regard, the Plaintiff testified that he had become progressively inactive due to
shortness of breath. For example, he stated that he loses his breath and feels lightheaded after
walking one block; after climbing the steps to his house; or after doing “any type of work.” In this
regard, he testified that it could take him half a day to wash his car because he has to take so many
breaks.
Nonetheless, the Plaintiff testified that his wife suffers from Parkinson’s disease, and so,
although they had a cleaning service clean their home once a week, the Plaintiff assumed many of the
household chores, such as “cooking and washing.” He also testified that he does the shopping for the
household; does the laundry; does the dishes; takes out the garbage; sweeps and mops the floors; and
sometimes makes the beds. He stated that he is unable to perform these chores “all at once,” and
instead, has to complete them in steps. Still, he testified that he is able to shower by himself, dress
himself, button buttons, buckle a belt, zip a zipper, tie a bow, comb his hair, shave his face, and put
on a coat. He can open doors and drawers, and can eat with a fork and knife. He uses a telephone

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and computer, and can write with a pen. He testified that he drives; goes to the bank and the post
office; uses ATMs; and pays the bills.
He does not walk with a cane and estimated that he can stand for up to an hour. He also
stated that he can sit uninterrupted for “a long time,” and can lift 50 or 60 pounds at one time,
although he is out of breath after doing so. He can lift about ten pounds without respiratory
symptoms.
The Plaintiff testified that he had not been hospitalized or visited the emergency room for
any asthma-related conditions. However, he developed two lung infections that required treatment
with antibiotics in 2007 and 2008.
Also, the Plaintiff testified that, after returning home from his military service in Vietnam, he
became addicted to heroin. However, he has not used drugs since approximately 1975. The Plaintiff
also struggled with alcohol abuse until approximately 1997, but now attends Alcoholics Anonymous
meetings and does not drink.
2.

The January 22, 2013 Hearing

The Plaintiff testified before the ALJ for a second time on January 22, 2013.
He testified that during the Relevant Time Period, he felt unable to work because he became
dizzy while operating the crane and believed himself to be a danger to himself and others. He
explained that operating a crane required the simultaneous manipulation of hand levers and foot
pedals. In addition, his job responsibilities required him to climb stairs and ladders, which rendered
him weak and tired.
The Plaintiff testified that, during the Relevant Time Period, he spent his time on an average
day babysitting his grandchildren, and doing light housework and cooking. He testified that he
consumes oxygen during the day to “pick up a little bit” and treats his sleep apnea with a Bilevel
Positive Airway Pressure (“BiPAP”) machine.

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B.

The Medical Evidence
1.

Treating Physician Stanley L. Rabinowitz, M.D.

The Plaintiff first began seeing Dr. Rabinowitz, a pulmonologist affiliated with Island
Pulmonary Associates, PC, in December 2004.

In his earliest available treatment notes, Dr.

Rabinowitz noted that the Plaintiff, then 57 years old, experienced wheezing and severe dyspnea on
exertion, i.e., shortness of breath and/or difficulty breathing. Dr. Rabinowitz also noted that the
Plaintiff had been smoking a pack of cigarettes per day for 30 years.
During a December 29, 2004 visit, Dr. Rabinowitz noted that the Plaintiff’s chest was clear
to auscultation, but reported that he claimed to be “addicted” to Afrin, a medicated nasal spray, due
to a severe nasal obstruction.

He also observed that the Plaintiff suffered from significant

gastroesophageal reflux disease (“GERD”), which woke him up at night, and he had occasional
difficulty swallowing, or dysphasia.
A January 2005 pulmonary function test showed a mild obstructive ventilatory impairment
without significant response to inhaled bronchodilators. During a follow-up visit in March of that
year, Dr. Rabinowitz again observed that the Plaintiff’s throat and chest were clear, with no
significant murmurs, gallops, or rubs. He diagnosed the Plaintiff with “World Trade Center
syndrome,” which presented in the form of restrictive airways disease, acid reflux, nasal congestion,
post-traumatic stress disorder, and depression. Dr. Rabinowitz prescribed Prevacid for his GERD,
Spiriva to control his pulmonary symptoms, and recommended that he quit smoking.
In December 2006, Dr. Rabinowitz reported that the Plaintiff had developed symptoms
suggestive of sleep apnea, including snoring, frequent awakening, and daytime sleepiness. Dr.
Rabinowitz referred him for a sleep study and another pulmonary function study. However, upon
physical examination, the Plaintiff’s throat and chest were clear. Dr. Rabinowitz continued the
Plaintiff on Prevacid and prescribed Combivent, another inhalant used to control pulmonary
symptoms.
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During a follow-up visit on December 6, 2006, Dr. Rabinowitz noted that the results of the
pulmonary function study actually showed improvement from the Plaintiff’s similar January 2005
study. In particular, the results were mostly normal, showing only a “very minimal obstructive
ventilatory impairment.”
Also, the results of the sleep study revealed obstructive sleep apnea, for which Dr.
Rabinowitz referred the Plaintiff for a continuous positive airway pressure (“C-PAP”) titration
study.
On February 13, 2007, Dr. Rabinowitz declared the Plaintiff to be “generally improved,”
specifically noting that a previous bout of bronchitis had resolved. Also, he noted that the Plaintiff’s
sleep apnea had been “successfully titrated” during the C-PAP titration study, meaning that the
study successfully determined the amount of air pressure needed to prevent the Plaintiff’s airways
from becoming blocked in his sleep. Thus, Dr. Rabinowitz prescribed a home-use BiPAP machine,
calibrated to allow the Plaintiff to control his breathing at night.
Three days later, on February 16, 2007, on a form submitted to the New York State Workers’
Compensation Board, Dr. Rabinowitz indicated that the Plaintiff was not disabled from performing
his regular duties. See R. 387 (pertaining to 2/13/07 office visit).
The Plaintiff was not seen by Dr. Rabinowitz again until May 16, 2007. However, on March
8, 2007, Dr. Rabinowitz filed several additional forms with the Workers’ Compensation Board
purportedly relating to prior office visits dating back to December 2006. Of relevance, despite
having completed the February 16, 2007 form within days of treating the Plaintiff and indicating that
he was not disabled, in each of these new backdated forms, Dr. Rabinowitz indicated that the
Plaintiff was, in fact, partially disabled, and had been unable to perform his regular duties since
December 2006. See R. 381 (pertaining to 12/4/06 office visit); R. 382-83 (pertaining to 12/6/06 office

7

visit); R. 384 (pertaining to 12/12/06 office visit); R. 385 (pertaining to 1/23/07 office visit); R. 386
(pertaining to 2/2/07 office visit).
In any event, during the May 16, 2007 follow-up visit, Dr. Rabinowitz reported that the
Plaintiff had not been using his BiPAP machine as directed, and noted a continued cough and
occasional wheeze. Dr. Rabinowitz added Albuterol spray, a bronchodilator, to his usual course of
medications.
Two days later, on May 18, 2007, Dr. Rabinowitz completed another form for the Workers’
Compensation Board, in which he indicated that the Plaintiff was partially disabled and unable to
perform his regular duties. See R. 388 (pertaining to 5/16/07 office visit).
Several months later, on August 8, 2007, Dr. Rabinowitz noted that the Plaintiff appeared to
be doing “generally well,” as he had begun using his BiPAP machine regularly and was experiencing
less daytime sleepiness. However, the Plaintiff still experienced shortness of breath upon moderate
exertion and needed to pace himself in order to complete the activities of daily living. Nevertheless,
his throat and chest were clear to auscultation, and a recent pulmonary function test showed no
evidence of significant obstructive ventilatory impairment or restriction.
On October 31, 2007, Dr. Rabinowitz diagnosed the Plaintiff with acute bronchitis and an
acute upper respiratory infection and prescribed a course of antibiotics. One week later, on
November 7, 2007, Dr. Rabinowitz completed a form for the Workers’ Compensation Board, in
which he again indicated that the Plaintiff was partially disabled and unable to perform his regular
duties. See R. 377 (pertaining to 10/31/07 office visit).
On March 25, 2008, Dr. Rabinowitz diagnosed “acute tracheobronchitis with purulent
sputum,” which, apparently, describes a condition characterized by an inflammation in the Plaintiff’s
air passages that caused certain matter, namely, pus or mucus, to be expectorated – that is, coughed
up or spit out. See STEDMAN’S MEDICAL DICTIONARY 1681-82 & 1851 (27th ed. 2000). Again, the
Plaintiff was placed on a course of antibiotics in addition to his usual medications, and was also
8

prescribed a steroid treatment known as a Medrol dose pack to reduce the bronchial inflammation.
Also, again, on March 31, 2008, Dr. Rabinowitz completed a form for the Workers’ Compensation
Board, in which he again indicated that the Plaintiff was partially disabled and unable to perform his
regular duties. See R. 380 (pertaining to 3/25/08 office visit).
In a July 16, 2008 narrative report – which, the Court notes, was created after the Relevant
Time Period – Dr. Rabinowitz opined that the Plaintiff’s prognosis for further improvement was
poor, and, for the first time, concluded that he was “completely disabled due to severe World Trade
Center Syndrome.”

Dr. Rabinowitz noted that the Plaintiff had stopped smoking cigarettes

sometime within the past year.
Dr. Rabinowitz created a second narrative report on or about April 12, 2010, in which he
concluded that the Plaintiff was “completely disabled from returning to work to his typical
construction site and as a crane operator.” Further, Dr. Rabinowitz opined that the Plaintiff was
“completely disabled for any occupation in the construction industry and he is unable to tolerate
extremes in temperatures or inhalation of any pulmonary irritants.” He noted that, in order to
control the Plaintiff’s respiratory symptoms, he required daily doses of Prevacid, Spiriva, and
Albuterol, as well as nightly use of the BiPAP machine. He also noted that the Plaintiff had lost
approximately 40 pounds dieting, but still experienced shortness of breath upon exertion.
2.

Consultative Examiner Dr. Jonathan Wahl, M.D.

On referral from the SSA’s Division of Disability Determination, the Plaintiff visited Dr.
Wahl on July 3, 2007 for a consultative internal medicine examination. The associated report
indicates that the Plaintiff, then 60 years old, stood six feet tall and weighed 261 pounds. His chief
complaint was mental, not physical: “Depression with focus of attention, concentration deficits,
sleep/appetite/mood changes.” Dr. Wahl noted that the Plaintiff also had asthma, which was
diagnosed in 2002, and which was asymptomatic with no known exacerbating or alleviating factors.

9

At the time of this visit, the Plaintiff was taking the medications prescribed by Dr.
Rabinowitz – namely, Prevacid, Spiriva, Albuterol, and the BiPAP machine – as well as Lamictal,
Remeron, and Prozac for depression and mood swings. He gave his activities of daily living as
cooking, cleaning, laundry, shopping, showering, bathing, dressing, and grooming, all without help.
He also indicated that he spent his time watching television, listening to the radio, and reading.
Upon physical examination, Dr. Wahl noted that the Plaintiff was in no apparent distress;
had a normal gait; was able to walk on his heels and toes without difficulty; and could squat fully.
He required no assistive devices to ambulate; needed no help changing clothes for his examination;
and could get on and off the exam table without assistance. He rose from a seated position without
difficulty.
Dr. Wahl observed the Plaintiff’s nose and throat to be normal, and his chest to be clear with
normal percussion. He diagnosed asthma, depression, and social phobia, all by history, and opined
that the Plaintiff would benefit from a psychological evaluation. He recommended that the Plaintiff
avoid “intensely strenuous exercise,” as well as “environments known to have dust and respiratory
irritants.” Dr. Wahl identified no other occupational limitations or restrictions.
3.

Consultative Examiner Judith Shaw, Ph.D.

On July 12, 2007, again on referral from the SSA, the Plaintiff visited Dr. Shaw for a
psychological evaluation. The associated report indicates that he drove himself the fifteen miles to
the appointment; that he was pleasant and cooperative with good social skills; that he maintained
appropriate eye contact; that he was neatly dressed and appeared well-groomed; and that he
appeared to be of average intellectual ability, demonstrating fair insight and good judgment. When
asked what problems affected his ability to work, the Plaintiff stated that his “asthma is the
important thing and the depression.” In this regard, he stated that he experiences fear and prefers
not to be around other people.

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Dr. Shaw noted that the Plaintiff had no history of psychiatric hospitalizations, but that he
had previously received unspecified treatment from a Dr. Malanmud; and that since 2002 he had
been treated bimonthly by a Dr. Reiben. She also noted his prescriptions for antidepressants,
including Remeron, Prozac, and Lamictal.
Dr. Shaw reported that the Plaintiff claimed to have felt depressed for four years, although he
could not identify a cause of his depression and stated that he has no reason to be depressed.
Similarly, he claimed to feel anxious, but could neither identify any symptoms of anxiety that he
experienced, nor specify anything in his life about which he felt anxious. He described being subject
to irritability and becoming socially withdrawn, but reported improvement with the aid of
medication.
Relevant here, with respect to the Plaintiff’s vocational functional capacity, Dr. Shaw opined
that:
[The Plaintiff] should be able to follow and understand simple directions and instructions,
perform simple tasks independently, maintain his attention and concentration at least for
short periods of time, maintain a regular schedule, learn new tasks, perform complex tasks
independently, make basic appropriate decisions, relate adequately with others and
appropriately deal with stress. . . . The results of the present evaluation appear to be
consistent with some psychiatric problems but in itself this does not appear to be significant
enough to interfere with the claimant’s ability to function on a daily basis.
Dr. Shaw’s diagnoses included depressive disorder and asthma.

Accordingly, she

recommended continuing his then-current psychiatric treatment and suggested cognitive behavioral
psychotherapy “to help him acquire some specific techniques for the more effective management of
feelings of depression and anxiety.”
4.

Non-Examining Physician E. Gagan, M.D.

On August 7, 2007, again on referral from the SSA’s Division of Disability Determinations,
the Plaintiff’s medical records were evaluated by a consulting psychiatrist identified only as
“E. Gagan, M.D.” for the purpose of furnishing an opinion on the Plaintiff’s residual functional

11

capacity (previously defined as “RFC”). The Court notes that Dr. Gagan did not personally examine
the Plaintiff.
Dr. Gagan concluded that the Plaintiff’s file supported diagnoses of depressive disorder and
opioid dependence, which resulted in only mild restrictions on his activities of daily living; mild
difficulties maintaining social functioning; and mild difficulties maintaining concentration,
persistence, or pace. In sum, Dr. Gagan concluded that the Plaintiff was under no significant
occupational limitations in his ability to understand, remember, and carry out basic instructions and
work-related procedures. Her only remarkable findings were moderate limitations on the Plaintiff’s
ability to carry out “detailed” instructions and respond appropriately to changes in the work setting.
As for Dr. Gagan’s assessment of the Plaintiff’s RFC, she noted that although he claimed to
be depressed, the SSA had been unable to obtain records from his treating psychiatrist, and the
findings of Dr. Shaw, the consulting psychiatrist, were unremarkable.

Dr. Gagan also noted the

Plaintiff’s asthma, but observed that his activities of daily living were “good” and that he would
nevertheless be able to understand, remember, and carry out simple instructions; maintain
concentration, pace, and persistence; and interact in and adapt to a workplace.
C.

The February 6, 2013 Decision of the ALJ
In this action, the Plaintiff challenges the ALJ’s findings contained in a February 6, 2013

written decision (the “Underlying Decision”).
In the Underlying Decision, the ALJ found that, during the Relevant Time Period, the
Plaintiff suffered from asthma, depression, and anxiety disorders, which constitute severe,
medically-determinable impairments that may cause more than minimal limitations on the Plaintiff’s
ability to perform basic work activities.
Nevertheless, the ALJ concluded that the Plaintiff retained the RFC to perform the full range
of medium work. In reaching this conclusion, the ALJ determined that the Plaintiff could sit and/or

12

stand and/or walk for up to six hours in an eight-hour day; and that he could lift and/or carry up to
25 pounds frequently, and up to 50 pounds occasionally.
The ALJ accorded little weight to the conclusion expressed by Dr. Rabinowitz in his
narrative reports that the Plaintiff was “completely disabled”:
In Workers’ Compensation Attending Doctors’ Reports, submitted by Dr. Rabinowitz and
Island Pulmonary Associates, for the relevant time period, the claimant was felt to be unable
to perform regular duties of work and had a “partial” impairment. In correspondence dated
July 16, 2008, after the relevant time period, Dr. Rabinowitz briefly summarized the
treatment provided to the claimant and opined that he remains “completely disabled” due to
severe World Trade Center Syndrome. To the extent that Dr. Rabinowitz opined that the
claimant was precluded from all work during the relevant time period, such an opinion is not
consistent with the treatment records, which for the relevant period include physical
examinations that were generally unremarkable. During the period at issue, the claimant
usually had normal oximetry [a method of assessing lung function by determining blood
oxygen levels] and his chest was clear to auscultation. Pulmonary function tests revealed
normal to mild findings. As for sleep apnea, on August 8, 2007, the claimant was “doing
well” with regularly use [sic] of the BiPAP machine. There is a suggestion that the claimant
is able to perform activities of daily living with pacing. There are no restrictions or
limitations noted in the treatment record for the period at issue. Workers’ compensation
reports suggest that the claimant is “partially,” not completely disabled. The opinion offered
is conclusory, providing little explanation of the evidence relied upon in forming the opinion.
Further, the opinion is without substantial support from other evidence in the record.
Therefore, the undersigned accords limited weight to the opinion of Stanley Rabinowitz,
M.D.
R. 417.
By contrast, the ALJ accorded “considerable weight” to the opinion of Dr. Wahl, whose
opinion that the Plaintiff should only avoid respiratory irritants and intensely strenuous exercise the
ALJ found to be consistent with the Plaintiff’s history and the results of his physical examination. In
particular, Dr. Wahl noted a history of asthma, which was asymptomatic at the time of the visit, and
the ability to independently perform a “wide range” of activities of daily living. As noted above, his
clinical findings included no evidence that the Plaintiff was in distress; had a clear chest with normal
percussion and diaphragmatic motion; had no musculoskeletal or neurologic deficits; had full
bilateral grip strength; and had intact hand and finger dexterity.

13

Further, the ALJ accorded “great weight” to the opinion of Dr. Shaw, who concluded that the
Plaintiff’s psychiatric problems were not sufficient to interfere with his ability to function on a daily
basis. The ALJ found this opinion to also be consistent with the Plaintiff’s reported symptoms and
Dr. Shaw’s clinical findings, including the following, which the Court also described above:
During the examination, the claimant had an appropriate appearance, adequate speech, a
coherent and goal[-]directed thought process, full range of affect, neutral mood, mildly
impaired attention and concentration, intact memory, average cognitive functioning, fair
insight and good judgment. . . . The claimant socializes with family, helps his wife, who has
Parkinson’s disease, and takes his wife to go see their children. Dr. Shaw opined that the
claimant should be able to follow and understand simple directions and instructions,
perform simple tasks independently, maintain his attention and concentration at least for
short periods of time, maintain a regular schedule, learn new tasks, perform complex tasks
independently, make basic appropriate decisions, relate adequately with others and
appropriately deal with stress.
R. 417-18.
After weighing the evidence in the record, including the ALJ’s own assessment of the
Plaintiff’s testimony over the course of two hearings, he concluded that the Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of his physical and mental impairments
were not entirely credible.
Therefore, given the Plaintiff’s age – 58 to 61 years old during the Relevant Time Period; his
high school education; his ability to communicate in English; his prior work history; and his capacity
to perform medium work, the ALJ determined that there were jobs that existed in significant
numbers in the national economy that the Plaintiff could have performed. According to the ALJ, this
remained true despite the existence of certain occupational limitations, namely, the need to avoid
respiratory irritants, perform low stress work, and limit contact with supervisors, coworkers, and
the public. Accordingly, the ALJ concluded that the Plaintiff was not disabled during the Relevant
Time Period for purposes of entitlement to Social Security disability benefits.

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D.

The Present Appeal
In this appeal, the Plaintiff sets forth a twofold argument for overturning the ALJ’s

conclusion that he was not disabled during the Relevant Time Period.
First, the Plaintiff contends that he lacked the so-called “exertional” capabilities needed to
perform medium work. In this context, “exertional” relates to “the ‘strength’ requirements of jobs,”
Sergenton v. Barnhart, 470 F. Supp. 2d 194, 202 (E.D.N.Y. 2007), such as the Plaintiff’s ability to sit,
stand, walk, lift, carry, push, and pull, see 20 C.F.R. § 404.1545(b). According to the Plaintiff, the
exertional limitations of his impairments preclude the performance of medium work. Allegedly, this
remains true despite the documentary and testimonial evidence about the Plaintiff’s ability to
perform the activities of daily living. He contends that the ALJ’s contrary conclusion lacked a
substantial evidentiary basis.
Second, the Plaintiff contends that he has significant “nonexertional” limitations, which
further limit his capacity to perform medium work. “Non-exertional limitations are those that do not
implicate the strength required to perform a particular task, such as mental, sensory, and skin
impairments that may impose environmental restrictions on where a person may work.” Gonzalez v.
Astrue, No. 06-cv-5403, 2008 U.S. Dist. LEXIS 75722, at *24 (E.D.N.Y. Sept. 30, 2008) (emphasis
supplied). In this regard, the Plaintiff contends that the ALJ failed to properly consider his
nonexertional limitations – namely, his need to avoid dust and respiratory irritants; to perform low
stress work; and to limit contact with coworkers, supervisors, and the public – in determining that
there were jobs that existed in significant numbers in the national economy that the he could have
performed during the Relevant Time Period.
The Commissioner contends that these arguments lack merit; that the ALJ applied the
proper legal standards; and that substantial evidence in the record supports her denial of benefits.

15

II.
A.

DISCUSSION

The Standard of Review
It is well-settled that a district court may set aside the Commissioner’s determination that a

claimant is not disabled where the factual findings underlying the decision are not supported by
substantial evidence or if the decision is based on legal error. See Bitz v. Colvin, No. 14-cv-7453, 2016
U.S. Dist. LEXIS 52799, at *10 (E.D.N.Y. Apr. 20, 2016) (Spatt, J.) (quoting Burgess v. Astrue, 537 F.3d
117, 127 (2d Cir. 2008)); see also Koffsky v. Apfel, 26 F. Supp. 475, 478 (E.D.N.Y. Nov. 16, 1998) (Spatt, J.)
(observing that “[j]udicial review of the denial of disability benefits is narrow” and “[t]he Court will
set aside the Commissioner’s conclusions only if they are not supported by substantial evidence in
the record as a whole or are based on an erroneous legal standard”).
Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279 F.R.D. 201,
205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if supported by
substantial evidence, are conclusive,” id., and “the only issue before the Court is whether the ALJ’s
finding that [the] Plaintiff was not eligible for benefits was ‘based on legal error or not supported by
substantial evidence,’ ” id. (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)); see Brault v. SSA, 683
F.3d 443, 448 (2d Cir. 2012) (observing that the “substantial evidence” standard is “very deferential”
to the Commissioner, and allows courts to reject the ALJ’s findings “ ‘only if a reasonable factfinder
would have to conclude otherwise’ ” (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)
(emphasis in original)). This standard applies not only to factual determinations, but equally to
inferences and conclusions drawn from such facts.” Pena v. Barnhart, No. 01-cv-502, 2002 U.S. Dist.
LEXIS 21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
1966)).
In this context, “ ‘[s]ubstantial evidence’ means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Burgess,
16

537 F.3d at 128 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). An ALJ’s findings may
properly rest on substantial evidence even where he or she fails to “recite every piece of evidence that
contributed to the decision, so long as the record ‘permits [the Court] to glean the rationale of [his or
her] decision.’ ” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1040 (2d Cir. 1983)). This remains true “even if contrary evidence exists.” Mackey v.
Barnhart, 306 F. Supp. 337, 340 (E.D.N.Y. 2004) (citing DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d
Cir. 1998) for the proposition that an ALJ’s decision was affirmed where there was substantial
evidence for both sides).
Further, the Court is prohibited from substituting its own judgment for that of the
Commissioner, even if it might justifiably have reached a different result upon a de novo review. See
Koffsky, 26 F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
B.

As to Whether Substantial Evidence Supported the ALJ’s Determination that the
Plaintiff Retained the Functional Capacity to Perform the Full Range of Medium Work
As noted above, the first issue in this case is whether substantial evidence in the record

supported the ALJ’s conclusion that the Plaintiff’s exertional limitations did not prevent him from
performing the full range of medium work during the Relevant Time Period.
1.

The Applicable Law

“A claimant is disabled under the Social Security Act when he is unable ‘to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.’ ” Felix v. Astrue, No. 11-cv-3697, 2012 U.S. Dist. LEXIS
102949, at *16-*17 (E.D.N.Y. July 25, 2012) (quoting 42 U.S.C. § 423(d)(1)(A)).
Relevant here, under the five-step sequential framework promulgated by the SSA, a claimant
is not disabled if, given his or her impairment, there nevertheless exists another type of work that he
or she can do. See Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
17

2003)). In this regard, the Commissioner bears the burden of showing that, “in light of the
claimant’s RFC, age, education, and work experience, the claimant is ‘able to engage in gainful
employment within the national economy.’ ” Felix, 2012 U.S. Dist. LEXIS 102949, at *19 (quoting
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997)).
Usually, the Commissioner meets her burden by resorting to the applicable MedicalVocational guidelines, commonly referred to as the “grids” (hereinafter, the “Grids”). See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2). “The [G]rids
‘take[ ] into account the claimant’s residual functional capacity in conjunction with the claimant’s
age, education and work experience,’ ” Rosa, 168 F.3d at 78 (quoting Zorilla v. Chater, 915 F. Supp. 662,
667 (S.D.N.Y. 1996)), and, “[b]ased on these considerations, . . . indicate whether the claimant can
engage in any substantial gainful work existing in the national economy.” Id.
“The [G]rids divide work into five categories based on the exertional requirements of the
different jobs.” Samuels v. Barnhart, No. 01-cv-3661, 2003 U.S. Dist. LEXIS 8173, at *35-*36 (S.D.N.Y.
May 14, 2003). “Specifically, the [G]rids divide work into sedentary, light, medium, heavy and very
heavy, based on the extent of requirements in the strength activities of sitting, standing, walking,
lifting, carrying, pushing, and pulling.” Id. at *36 (citing 20 C.F.R. § 416.969a(a)); see Rios v. Comm’r,
No. 12-cv-5102, 2015 U.S. Dist. LEXIS 69855, at *20-*21 n.1 (E.D.N.Y. May 29, 2015) (noting that
“[a]n exertional limitation occurs ‘[w]hen the limitations and restrictions imposed by [a claimant’s]
impairment(s) and related symptoms, such as pain, affect only [his] ability to meet the strength
demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)” (citation
omitted)).
In this case, the ALJ used the SSA’s five-step methodology to determine that, based on
application of the Grids, the Plaintiff was capable of performing the full range of medium work
during the Relevant Time Period. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, R. 201.15. The SSA has
18

explained that the exertional demands of medium work require lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25 pounds. See Social Security Ruling
(“SSR”) 83-10, available at 1983 SSR LEXIS 30, at *15-*16 (citing 20 C.F.R. § 404.1567(c)). In this
context, “ ‘frequent’ means occurring from one-third to two-thirds of the time.” Id. at *14.
Further, “[a] full range of medium work requires standing or walking, off and on, for a total
of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting
or carrying objects weighing up to 25 pounds.” Id. at *15. “Sitting may occur intermittently during
the remaining time,” but “[u]se of the arms and hands is necessary to grasp, hold, and turn objects.”
Id.
2.

There is Substantial Evidence that the Plaintiff Could Perform the Exertional
Demands of Medium Work

It is the opinion of the Court that substantial evidence in the record supports the ALJ’s
conclusion that the Plaintiff retained the functional capacity to meet the exertional demands of
medium work during the Relevant Time Period.
On May 7, 2008, approximately two years after the alleged disability onset date, the Plaintiff
admitted that he could stand uninterrupted for an hour; that he could remain seated for “a long
time”; that he could lift 50 or 60 pounds at one time; and that he could lift about ten pounds without
any respiratory symptoms. This uncontroverted testimony is consistent with the ALJ’s findings, and
none of the objective medical records compel a contrary result.
In particular, at no point during the Relevant Time Period did Dr. Rabinowitz, the Plaintiff’s
treating physician, render an opinion that the results of clinical testing were consistent with a
complete disability. Nor did he identify any relevant occupational restrictions or limitations. Nor is
there any evidence that any physician, treating or otherwise, limited the Plaintiff’s ability to lift
and/or carry any amount of weight, or to sit and/or stand for any amount of time. On the contrary, in
the Court’s view, the record as a whole lends substantial support for the ALJ’s RFC determination.
19

Although the Plaintiff undeniably suffered from asthma, physical examinations at the hands
of Dr. Rabinowitz were consistently unremarkable, with his chest and throat regularly appearing
clear, and his symptoms well-controlled by conservative treatment with prescription
bronchodilators. Although he developed two lung infections in as many years, the evidence shows
that they were successfully treated with antibiotics and did not result in persistent symptoms.
Similarly, occasional bouts of bronchitis were successfully resolved without complication.
With respect to sleep apnea, the record demonstrates that this condition was also wellcontrolled by home use of a BiPAP machine, and did not generate any consistently remarkable
symptoms during the Relevant Time Period. In fact, the Plaintiff was not diagnosed with symptoms
of sleep apnea until December 2006, namely, seven months after the alleged disability onset date. As
recently as May 2007, he had failed to use the BiPAP machine as directed by Dr. Rabinowitz. It was
not until August 2007 that the Plaintiff actually followed his pulmonologist’s recommendations in
this regard, and subsequent treatment records indicate that he began doing “generally well” and
experiencing less daytime sleepiness as a result.
As for the diagnostic evidence, although pulmonary function testing from before the
Relevant Time Period had showed a mild respiratory impairment, Dr. Rabinowitz noted that the
results of subsequent testing showed improvement, and were mostly normal, except for a “very
minimal” obstruction for which it appears no additional treatment was recommended. Again, in
February 2007, Dr. Rabinowitz declared the Plaintiff to be “generally improved.”
The Plaintiff takes issue with the ALJ’s observation that, “[d]uring the period at issue, the
claimant usually had normal oximetry and his chest was clear to auscultation.” R. 417. In particular,
quoting from a publication entitled Social Security Disability Tests, the Plaintiff asserts, and the
Commissioner does not dispute, that “[n]ormal oximetry reading levels are from 95-99 percent.” See
Pl. Br. at 19. However, the evidence in the record shows that the Plaintiff’s oxygen saturation during
the Relevant Time Period fluctuated between 90% and 96%, producing a slightly below-normal
20

average reading of 93.33%. See R. 339-47. Based on this diagnostic evidence, the Plaintiff contends
that his oximetry readings were not “usually” normal, as the ALJ had reasoned. However, to the
extent the Plaintiff suggests that this discrepancy materially erodes the evidentiary basis for the
ALJ’s decision, the Court disagrees.
It is apparently true that, during the Relevant Time Period, the Plaintiff, on average,
registered a below-normal oxygen saturation level. However, the Court finds it to be relevant that
additional oximetry testing was performed immediately prior to the Relevant Time Period – namely,
during the final six months of the Plaintiff’s employment, when he claims he experienced dizziness
and daytime sleepiness due to low oxygen levels. However, those tests revealed normal oxygen
saturation of 97%.
Also, a sampling of oximetry readings taken at semiregular intervals throughout the Relevant
Time Period – namely, on December 4, 2006; February 13, 2007; May 16, 2007; and March 25, 2008 –
reveal consistently normal oxygen levels between 95% and 96%.
Contrary to the Plaintiff’s contentions, it appears that the below-normal median of the
available oximetry readings is anchored, in substantial part, by a flurry of testing performed during a
relatively brief period from December 12, 2006 to February 2, 2007. During this approximately
seven-week period, three separate oximetry tests showed oxygen saturation levels between 90% and
92%. However, almost immediately thereafter, on February 13, 2007, the Plaintiff’s levels returned to
normal, namely, 95%.
In this regard, there appears to be no evidence or legal authority to support the conclusion
that an average blood saturation level that is two percentage points below normal is sufficient to
compel a finding that a claimant lacks the functional capacity to perform medium work.
In any event, in the Court’s view, the slightly below-normal average of the Plaintiff’s
oximetry readings is not necessarily representative of his true condition during the Relevant Time
Period. On the contrary, the results of the oximetry testing, viewed as a whole, are consistent with,
21

and provide reasonable support for the ALJ’s statement that the Plaintiff’s oxygen levels were
usually normal. See Cichocki, 729 F.3d at 178 n.3 (noting that the substantial evidence standard is
satisfied where the record as a whole permits the Court to glean the rationale of the ALJ’s decision).
This is particularly true given that the oximetry testing was one of several objective measures – in
addition to physical examinations, chest auscultation, and pulmonary function testing – that the
ALJ, drawing on Dr. Rabinowitz’s treatment records, relied upon in reaching his ultimate conclusion
that the Plaintiff was not disabled under the Act.
Further, the ALJ’s decision is consistent with the Workers’ Compensation forms submitted
by Dr. Rabinowitz throughout the Relevant Time Period, in which he never indicated that the
Plaintiff was completely disabled. On the contrary, on February 16, 2007 – approximately eight
months after the alleged disability onset date – Dr. Rabinowitz submitted a form to the Workers’
Compensation Board stating that the Plaintiff was not disabled from performing his regular duties as
a crane operator. In a series of similar forms submitted during the Relevant Time Period, Dr.
Rabinowitz invariably stated that the Plaintiff was partially, not completely disabled.
Further, the Commissioner contends, and the Plaintiff does not dispute, that even Dr.
Rabinowitz’s indication that the Plaintiff was partially disabled for purposes of Workers’
Compensation benefits is not determinative in this appeal because the standard for what constitutes
a “disability” under the Social Security Act is more stringent. See Comm. Reply Br. at 2 (citations
omitted); see DeJesus v. Chater, 899 F. Supp. 1171, 1177 (S.D.N.Y. 1995) (noting that “[t]he issue [in a civil
appeal of the Commissioner’s denial of disability benefits] is whether a person is disabled as that
term is defined under the Social Security Act, not whether a person is ‘disabled’ or ‘partially disabled’
for purposes of workers’ compensation”).
The ALJ’s evaluation of the treating source records, and his RFC determination, are also
consistent with the Plaintiff’s hearing testimony. In particular, the Plaintiff testified that he had

22

never been hospitalized or visited the emergency room for any asthma-related symptoms. He
walked without a cane; cooked and cleaned; performed the household shopping; did the laundry; did
the dishes; took out the garbage; swept and mopped the floors; and sometimes made the beds. He
showered by himself; dressed himself; used a telephone and a computer; drove; went to the bank and
the post office; used ATMs; and paid the bills. At the time of the hearing, the Plaintiff admittedly
was under no stress or strain, and stated that he “still [could] function and work with people.”
In support of his claim for benefits, the Plaintiff relies heavily on Dr. Rabinowitz’s narrative
reports of July 2008 and April 2010, in which he apparently concludes that the Plaintiff was
completely disabled. However, the Court finds that the ALJ did not err in according little weight to
these opinions – both of which were prepared after the Relevant Time Period – as they were clearly
inconsistent with Dr. Rabinowitz’s own treatment records, clinical findings, conservative course of
recommended treatment, and repeated submissions to the Workers’ Compensation Board during
the Relevant Time Period.
In particular, neither of Dr. Rabinowitz’s later narrative reports identifies any additional
clinical findings discovered after the Plaintiff’s last office visit in March 2008. Therefore, the
conclusion that the Plaintiff “remains completely disabled” is plainly inconsistent with the medical
evidence, which previously warranted only findings of being partially disabled or not disabled at all.
Dr. Rabinowitz’s opinions were also inconsistent with the findings of the consultative
examiner, Dr. Wahl. During an internal medicine evaluation, Dr. Wahl noted that the Plaintiff’s
asthma was asymptomatic; that he was in no acute distress; and that he displayed an ability to
perform a wide range of physical tasks, including walking on his heels and toes without difficulty;
squatting fully; ambulating without an assistive device; getting on and off the exam table without
help; and rising from a seated position without difficulty. Similar to Dr. Rabinowitz’s physical
examinations, Dr. Wahl observed the Plaintiff’s chest and throat to be clear. With respect to the
Plaintiff’s ability to lift and/or carry objects, Dr. Wahl’s physical examination revealed full muscle
23

strength in the Plaintiff’s extremities; no muscle atrophy; no motor or sensory deficits; and full fine
motor activity in his hands. The only exertional limitation recommended by Dr. Wahl was the
avoidance of “intensely strenuous exercise.”
The Plaintiff argues that Dr. Wahl’s recommendation that he avoid “intensely strenuous
exercise” actually supports his position because “intensely strenuous exercise” necessarily includes
the performance of medium work. However, this conclusion appears to be based solely on the lay
opinion of the Plaintiff’s counsel, and is unsupported by evidence in the record or pertinent legal
authority. See Pl. Br. at 20 (stating, without authority, “[w]e submit that medium work . . . certainly
includes strenuous exertion and it would be intensive at times”).

In the Court’s view, this

contention provides an insufficient basis for challenging the ALJ’s decision.
Further, the Plaintiff argues that Dr. Wahl’s opinion is entitled to limited weight because the
term “intensely strenuous exercise” is impermissibly vague, and does not provide a valid basis for the
ALJ’s RFC determination. The Court disagrees.
In making his point, the Plaintiff mischaracterizes caselaw that he contends exemplifies the
Second Circuit’s generally “critical” view of “vague” terminology by non-treating physicians. See Pl.
Reply Br. at 3.

However, in the Court’s view, the cases relied upon by the Plaintiff are

distinguishable from the facts of this case and do not support the relief sought.
For example, contrary to the Plaintiff’s contentions, in Selian v. Astrue, 708 F.3d 409 (2d Cir.
2013), the court did not express across-the-board skepticism of vaguely-worded medical opinions.
Instead, on the facts of that case, it held that the medical opinion at issue, namely, that the claimant
“should be able to lift . . . objects of a mild degree of weight on an intermittent basis,” was
“remarkably vague” because it left the meanings of the terms “mild degree” and “intermittent” to the
“sheer speculation” of the ALJ. Thus, the court found that this opinion did not lend substantial
support for the ALJ’s specific determination that the claimant could lift up to 20 pounds
occasionally and 10 pounds frequently. In particular, among other things, the court noted that the
24

ALJ’s conclusion, which was based solely on the questionable medical opinion, had been
contradicted by the claimant’s own testimony that his fibromyalgia prevented him from carrying
even an eight-pound gallon of milk.
By contrast, unlike in Selian, the ALJ in this case did not base his RFC determination, namely,
that the Plaintiff could perform the exertional demands of medium work, solely on Dr. Wahl’s
recommendation that he avoid only “intensely strenuous exercise.” On the contrary, as discussed
above, the ALJ’s findings were supported by other substantial evidence in the record, including the
Plaintiff’s treating source records; diagnostic evidence; and the Plaintiff’s own testimony regarding
his exertional capabilities. Although the ALJ apparently accepted Dr. Wahl’s recommendation that
the Plaintiff avoid “intensely strenuous exercise,” as noted above, there does not appear to have been
any evidence or other authority to compel the ALJ to conclude that the Plaintiff was therefore
precluded from medium work.
The Court is similarly unpersuaded by the Plaintiff’s reliance on the matters of Burgess v.
Astrue, 537 F.3d 117 (2d Cir. 2008) and Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), which the Plaintiff
cites for the proposition that a medical expert’s opinion may be given diminished weight where it is
“ ‘so vague as to render it useless in evaluating’ the claimant’s residual functional capacity.” See
Burgess, 537 F.3d at 128-29 (quoting Curry, 209 F.3d at 123). In this case, the Court finds that Dr.
Wahl’s recommendation that the Plaintiff avoid “intensely strenuous exercise” is not so vague as to
render it, or his broader medical opinion, useless. Nor did the ALJ commit error by according Dr.
Wahl’s opinion considerable weight, as it was largely consistent with the objective evidence in the
record, including Dr. Rabinowitz’s treatment records from the Relevant Time Period.
Accordingly, in view of the record as a whole, the Court finds that, to the extent the
Underlying Decision found the Plaintiff capable of meeting the exertional demands of medium work
during the Relevant Time Period, it was supported by substantial evidence.

25

C.

As to Whether Substantial Evidence Supported the ALJ’s Determination that the
Plaintiff Could Have Performed Medium Work Jobs that Existed in Significant
Numbers in the National Economy
The second issue in this case is whether substantial evidence in the record supported the

ALJ’s conclusion that, given the Plaintiff’s RFC, age, education, and work experience, there were
medium work jobs that existed in significant numbers in the national economy that he could have
performed during the Relevant Time Period.
1.

The Applicable Law

As noted above, under the relevant five-step sequential analysis, it is the Commissioner who
bears the burden of showing that, “in light of the claimant’s RFC, age, education, and work
experience, the claimant is ‘able to engage in gainful employment within the national economy.’ ”
Felix, 2012 U.S. Dist. LEXIS 102949, at *19 (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y.
1997)). Also, as discussed above, the Commissioner generally carries this burden by relying on the
Grids to determine whether a claimant can engage in any other substantial gainful work which
exists in the national economy. See Samuels, 2003 U.S. Dist. LEXIS 8173, at *36.
However, exclusive reliance on the Grids is not appropriate in all cases. “Generally speaking,
if a claimant suffers only from exertional impairments, e.g., strength limitations, then the
Commissioner may satisfy her burden by resorting to the applicable [G]rids.” Pratts v. Chater, 94 F.3d
34, 38-39 (2d Cir. 1996).

But, “exclusive reliance on the [G]rids is inappropriate where the

guidelines fail to describe the full extent of a claimant’s physical limitations.” Rosa, 168 F.23 at 78; see
Heckler v. Campbell, 461 U.S. 458, 462 n.5, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1983) (observing that the
Grids will only be applied where they accurately describe a claimant’s abilities and limitations). For
example, as in this case, “ ‘sole reliance on the [G]rid[s] may be precluded where the claimant’s
exertional impairments are compounded by significant nonexertional impairments that limit the
range of [ ] work that the claimant can perform.’ ” Id. (quoting Bapp, 802 F.2d at 603).

26

As noted above, “[a] ‘nonexertional impairment’ is defined as a limitation or restriction
which ‘affect[s] [a claimant’s] ability to meet the demands of jobs other than the strength demands,
that is, demands other than sitting standing, walking, lifting, carrying, pushing or pulling are
considered nonexertional.’ ” Baker v. Apfel, No. 97-cv-757, 1998 U.S. Dist. LEXIS 15444, at *4 n.3
(W.D.N.Y. Aug. 10, 1998) (quoting 20 C.F.R. § 416.969a(a)). Examples of nonexertional limitations
include “mental . . . impairments” or “environmental restrictions such as ‘difficulty tolerating dust or
fumes’ due to asthma.” Williams v. Astrue, No. 09-cv-3997, 2010 U.S. Dist. LEXIS 130273, at *41
(E.D.N.Y. Dec. 9, 2010) (quoting Burgos v. Barnhart, No. 01-cv-10032, 2003 U.S. Dist. LEXIS 14407, at
*51 (S.D.N.Y. Aug. 30, 2003)).
Where, as here, a claimant has both exertional and nonexertional limitations, the Grids are
merely to be used as a framework in the disability determination, and the “ALJ ‘must consider and
address on the record the combined effects of the claimant’s exertional and non-exertional
limitations and the advisability of additional testimony before resorting to the [Grids].” Id. at *43*44 (quoting Nigino v. Astrue, No. 04-cv-3207, 2009 U.S. Dist. LEXIS 27595, at *15 (E.D.N.Y. Mar. 30,
2009)); see Jerome v. Astrue, No. 08-cv-98, 2009 U.S. Dist. LEXIS 104374, at *32 (D. Vt. Nov. 6, 2009)
(noting that “where nonexertional limitations are involved, the ALJ must ‘go beyond the grid[s]’ and
‘make findings relating to the severity of [the claimant’s] nonexertional limitations and the effects of
such limitations on [the claimant’s] residual functional capacity before making a determination
granting or denying benefits’ ” (quoting Munks v. Heckler, 580 F. Supp. 871, 874-75 (N.D. Ill. 1984))).
If the ALJ finds that the claimant’s nonexertional limitations “significantly diminish the
range of work the claimant can perform,” he “must hear testimony from a vocational expert or seek
out similar evidence that that there are jobs ‘in the national economy which the claimant can obtain
and perform.’ ” Williams, 2010 U.S. Dist. LEXIS 130273, at *44 (quoting Nigino, 2009 U.S. Dist. LEXIS
27595, at *15). For purposes of applying this standard, “[t]he range of work is significantly

27

restricted by nonexertional limitations when a claimant suffers an ‘additional loss of work capacity
beyond a negligible one or, in other words, one that so narrows a claimant’s possible range of work
as to deprive him [or her] of a meaningful employment opportunity.’ ” Id. (quoting Bapp, 802 F.2d at
606).
2.

The ALJ Erred in Failing to Expressly Consider Whether the Plaintiff’s
Nonexertional Limitations Significantly Diminished the Range of Medium
Work that He Could Perform

It is the opinion of the Court that the ALJ failed to appropriately consider the Plaintiff’s
nonexertional limitations, and their impact, if any, on the range of medium work jobs the Plaintiff
could obtain and perform, before directly applying the Grids to make a disability determination.
The Plaintiff contends that the ALJ’s direct reliance on the Grids, which mandated a finding
that he was not disabled, was improper because the Plaintiff’s nonexertional limitations – that is, his
need to avoid dust and respiratory irritants; to perform low stress work; and to limit contact with
supervisors, coworkers, and the public – substantially diminished the number of medium work jobs
that he could realistically perform.
Thus, the question presented is whether substantial evidence in the record supported the
ALJ’s determination that, during the Relevant Time Period, the Plaintiff’s nonexertional limitations
did not significantly diminish the range of medium work he could have performed. The Court
answers this question in the negative.
A review of the Underlying Decision reveals an insufficient effort on the part of the ALJ to
develop the record and address this aspect of the required analysis.

In particular, the ALJ

determined that the Plaintiff retained the functional capacity to meet the exertional demands of
medium work, while directly acknowledging that he “should avoid respiratory irritants and can
perform low stress work, which includes limited contact with supervisors, co-workers and the
public.” R. 415. However, at the final step of the sequential analysis, the ALJ did not consider at all
whether the Plaintiff’s nonexertional limitations were likely to compound his exertional
28

impairments to such a degree as to materially diminish the range of work he could perform. Instead,
the ALJ directly applied the Grids to arrive at a finding of not disabled:
[During the Relevant Time Period], considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in significant
numbers in the national economy that the claimant could have performed (20 CFR 404.1569
and 404.1569(a)).
. . . When the claimant . . . has nonexertional limitations, the medical-vocational rules
[Grids] are used as a framework for decision-making . . . If the claimant has solely
nonexertional limitations, section 204.00 in the Medical-Vocational Guidelines provides a
framework for decision-making (SR 85-15).
Based on a residual functional capacity for the full range of medium work, the undersigned
concludes that, through the date last insured, considering the claimant’s age, education, and
work experience, a finding of “not disabled” is directed by Medical-Vocational Rule 203.15
and Rule 203.17.
R. 418-19.
The Court agrees with the Plaintiff that this was improper. See Pl. Br. at 22 (arguing that the
ALJ erroneously “accepted the [nonexertional] limitation but offered no analysis of why it would
have no impact on the medium workbase”).
In reaching this conclusion, the Court reiterates that where, as here, a claimant has both
exertional and nonexertional limitations, the ALJ must consider and address on the record the
combined effects of the claimant’s exertional and nonexertional limitations, and the advisability of
additional testimony before resorting to the Grids. See Williams, 2010 U.S. Dist. LEXIS 130273, at *43-*44.
If, after performing this antecedent analysis, the ALJ finds that the claimant’s nonexertional
limitations do, in fact, significantly diminish the range of potential work, he must hear testimony
from a vocational expert or seek out similar evidence regarding the amount of jobs in the national
economy which the claimant can reasonably obtain and perform. See id. at *44.
In this case, despite noting multiple nonexertional limitations, the ALJ apparently did not
consider, and certainly did not address on the record, their compounding effect, if any, on the
Plaintiff’s exertional impairments. Nor did he indicate whether the combined effect of these
29

impairments significantly diminished the Plaintiff’s range of potential work, or the advisability of
eliciting additional evidence on that subject before resorting to the Grids. Thus, the ALJ never
reached the question of whether vocational testimony or other similar evidence should have been
introduced to determine whether the Plaintiff’s nonexertional limitations so narrowed his possible
range of work as to deprive him of a meaningful employment opportunity.
A similar situation was presented in Williams, No. 09-cv-3997, 2010 U.S. Dist. LEXIS 130273
(E.D.N.Y. Dec. 9, 2010), where, after finding that the claimant maintained the functional capacity to
meet the exertional demands of light work, the ALJ directly relied on the Grids to find her not
disabled.

On appeal, the district court (Matsumoto, J.) found that, as here, the claimant’s

nonexertional limitations had been well-documented in the record. However, despite recognizing
that, in the presence of nonexertional limitations the Grids are merely advisory, the ALJ nevertheless
failed to explicitly consider whether the claimant’s nonexertional limitations significantly
diminished the range of work that she could perform. Further, to whatever extent the ALJ did find
that the claimant’s nonexertional limitations diminished her range of work, “he erred by failing to
identify or include evidence in the record, via testimony from a vocational expert or a similar source,
that a significant number of jobs that plaintiff could perform exist[ed] in the national economy.”
2010 U.S. Dist. LEXIS 130273, at *75-*76. As set forth above, in the Court’s view, a similar result is
warranted here.
The Court further notes that, with respect to an appropriate remedy, the Plaintiff argues in
favor of reversing the Underlying Decision and adjudging him “disabled” under the Act for the
Relevant Time Period. He contends that the Court should not remand this matter for any additional
proceedings. However, it is well-settled that “application of the grid guidelines and the necessity for
expert testimony must be determined on a case-by-case basis,” Bapp, 802 F.2d at 605, and whether a
claimant’s impairments significantly diminish his employment opportunities is not a question for

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the district court on appeal, but “is a determination that must be made on the record by ALJ,”
Williams, 2010 U.S. Dist. LEXIS 130273, at *78 (citing Nigino, 2009 U.S. Dist. LEXIS 175295, at *15).
Thus, in Williams, the court remanded the matter for the ALJ to “determine on the
record . . . whether the effects of all of plaintiff’s nonexertional limitations preclude reliance on the
Grid[s],” and, “[t]o the extent the ALJ determines that the nonexertional limitations significantly
diminish plaintiff’s employment opportunities, [to] introduce evidence into the record, via testimony
from a vocational expert or a similar source, that a significant number of jobs that plaintiff could
perform exist in the national economy.” Id. at *79; see also Bapp, 802 F.2d at 606 (finding that the ALJ
failed to adequately consider whether the range of work the claimant could perform “was so
significantly diminished as to require the introduction of vocational testimony” and thus directed a
remand in order for the ALJ to (i) reevaluate whether the claimant’s capability to perform the full
range of light work was significantly diminished by his nonexertional limitations, and if so, then (ii)
require the Commissioner to sustain her burden of proof through the testimony of a vocational
expert or other similar evidence regarding the existence of jobs in the national economy within the
claimant’s limitations). Under the facts and circumstances of this case, the Court finds remand to be
appropriate and warranted.
Accordingly, the Court finds that the portion of the Underlying Decision which found that
there were jobs that existed in significant numbers in the national economy that the Plaintiff could
have performed was not supported by substantial evidence in the record. The Court further finds
that remand for additional administrative findings consistent with this opinion, and not outright
reversal, is the appropriate remedy.
III.

CONCLUSION

Based on the foregoing, the Court grants in part and denies in part the Plaintiff’s motion
under Fed. R. Civ. P. 12(c) for judgment on the pleadings; and grants in part and denies in part the
Commissioner’s analogous cross-motion.
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In particular, the Court finds that the portion of the Underlying Decision which found the
Plaintiff to be capable of meeting the exertional demands of medium work during the Relevant Time
Period was supported by substantial evidence in the record.
However, the portion of the Underlying Decision which found that there were jobs that
existed in significant numbers in the national economy that the Plaintiff could have performed was
unsupported by substantial evidence in the record.
Accordingly, the ALJ’s February 6, 2013 decision is vacated in part, and this matter is
remanded for additional administrative proceedings to determine, and address on the record,
whether, during the Relevant Time Period, the Plaintiff’s capability to perform the full range of
medium work was significantly diminished by the combined effects of his exertional and
nonexertional limitations. If so, the ALJ is directed to develop the record with a view toward
eliciting proof, through the testimony of a vocational expert or other similar source, regarding the
existence of jobs in the national economy that an individual with the Plaintiff’s impairments and
limitations, both exertional and nonexertional, could reasonably be expected to obtain and perform.
Finally, after conducting this analysis, the ALJ is directed to reevaluate whether a departure from the
Grids is warranted in determining the Plaintiff’s disability status.
The Clerk of the Court is respectfully directed to close this case.
It is SO ORDERED.
Dated:

Central Islip, New York
August 8, 2016

/s/ Arthur D. Spatt_______________________
ARTHUR D. SPATT
United States District Judge

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