McCusker v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and McCusker's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 11/20/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARIE LINDA MCCUSKER,
Plaintiff,

1:13-cv-1074
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter M. Margolius
7 Howard Street
Catskill, NY 12414
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

PETER M. MARGOLIUS, ESQ.

GRAHAM MORRISON
DAVID L. BROWN
Special Assistant U.S. Attorneys

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Marie Linda McCusker challenges the Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking judicial review under 42
U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering McCusker’s arguments, the
Commissioner’s decision is affirmed and McCusker’s complaint is
dismissed.
II. Background
On March 23, 2011 and March 29, 2011, McCusker filed applications
for DIB and SSI, respectively, under the Social Security Act (“the Act”),
alleging disability since July 26, 2006. (Tr. 1 at 67-68, 175-81, 182-88.)
After her applications were denied, (id. at 123-38), McCusker requested a
hearing before an Administrative Law Judge (ALJ), (id. at 139), which was
held on April 30, 2012, (id. at 39-64). On June 1, 2012, the ALJ issued an
unfavorable decision denying the requested benefits, (id. at 14-38), which
became the Commissioner’s final determination upon the Social Security
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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Administration Appeals Council’s denial of review, (id. at 1-6).
McCusker commenced the present action by filing her complaint on
August 30, 2013, wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (Dkt. Nos. 7, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 12,
13.)
III. Contentions
McCusker contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No.12 at 1,
3-6.) Specifically, McCusker claims that the ALJ erred in his step five
determination because: (1) the Commissioner did not meet her burden of
proof that jobs exist in significant numbers in the national economy; and (2)
the vocational expert’s (VE) testimony is not consistent with the Dictionary
of Occupational Titles (DOT). (Id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and his decision is also
supported by substantial evidence. (Dkt. No. 13 at 2-8.)

IV. Facts
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The court adopts the parties’ undisputed factual recitations. (Dkt. No.
12 at 1-3; Dkt. No. 13 at 2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
Before addressing McCusker’s contentions, which are limited to the
ALJ’s step five analysis and determinations, the court briefly summarizes
the ALJ’s decision for context. As an initial matter, the ALJ determined that
McCusker met the insured status requirements of the Act through
December 31, 2012. (Tr. at 19.) At step one of the sequential analysis, the
ALJ determined that McCusker had not engaged in substantial gainful

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Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As such, parallel
citations to the regulations governing SSI are omitted.

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activity since July 26, 2006—her alleged disability onset date. ( Id.) At step
two, the ALJ determined that McCusker’s chronic left knee pain, status post
arthroscopic surgery, and adjustment disorder with depressed mood were
severe impairments. (Id. at 19-20.) At step three, the ALJ determined that
McCusker does not have an impairment or combination of impairments that
meets or medically equals the severity of Listings 1.02 and 12.04 of the
listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. (Id. at 20-22.)
The ALJ then determined that McCusker has the residual functional
capacity (RFC):
to perform sedentary work as defined in 20 [C.F.R.
§§] 404.1567(a) and 416.967(a) except . . . limited to
sedentary work that is simple and routine with a
[specific vocational preparation] level of [one] or [two]
with only occasional decision-making and changes in
the work setting; lift and cary [ten] pounds frequently
and [twenty] pounds occasionally; no working at
heights or around moving machinery; would need to
change positions every [thirty] minutes; and
occasionally elevate legs for [fifteen] minutes at a time
to waist level.
(Id. at 22-30.) At step four, the ALJ determined that McCusker is unable to
perform any of her past relevant work. (Id. at 30.) Finally, at step five, the
ALJ determined, with the aid of VE testimony, that there were a significant
number of jobs that McCusker could perform, such as surveillance system
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monitor, and, therefore, McCusker is not disabled within the meaning of the
Act. (Id. at 30-32.) As discussed below, McCusker takes issue only with the
ALJ’s step five determination.
A.

Step Five Determination
McCusker claims that the ALJ’s step five determination is legally

deficient and unsupported by substantial evidence for two reasons,
specifically: (1) the Commissioner did not meet her burden of proof that
jobs exist in significant numbers in the national economy; and (2) the VE’s
testimony is inconsistent with the DOT. (Dkt. No. 12 at 1, 3-6.) The
Commissioner counters, and the court agrees, that jobs exist in significant
numbers that McCusker can perform, and that the VE’s testimony was
consistent with the DOT. (Dkt. No. 13 at 4-9.)
Where a claimant is able to demonstrate that her impairments
prevent a return to past relevant work, as is the case here, (Tr. at 30), the
burden then shifts to the Commissioner to prove that a job exists in the
national economy which the claimant is capable of performing. See
Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998); see also 20 C.F.R.
§ 404.1560(c). Moreover, in making a step five ruling, an ALJ may rely on
the Medical-Vocational Guidelines found in 20 C.F.R. pt. 404, subpt. P,
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app. 2, as long as the claimant’s age, education, work experience, and
RFC coincide with the criteria of a rule contained in those Guidelines. See
20 C.F.R. § 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275
n.1 (2d Cir. 2009). However, when a claimant’s nonexertional impairments
“significantly limit the range of work permitted by h[er] exertional
limitations,” the Commissioner “must introduce the testimony of a [VE] (or
other similar evidence) that jobs exist in the economy which [the] claimant
can obtain and perform.” Bapp v. Bowen, 802 F.2d 601, 603, 605 (2d Cir.
1986) (internal quotation marks and citation omitted).
The VE may testify as to the existence of jobs in the national
economy and as to the claimant’s ability to perform any of those jobs, given
her functional limitations. See Colon v. Comm’r of Soc. Sec., No.
6:00CV0556, 2004 WL 1144059, at *6 (N.D.N.Y. Mar. 22, 2004). A VE’s
testimony is useful only if it addresses whether the particular claimant, with
her limitations and capabilities, can realistically perform a particular job.
See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). The ALJ is
responsible for determining the claimant’s capabilities based on all the
evidence, and the hypothetical questions must present the full extent of the
claimant’s impairments to provide a sound basis for the VE’s testimony.
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Colon, 2004 WL 1144059, at *6. However, there must be “‘substantial
record evidence to support the assumption upon which the [VE] based [her]
opinion.’” Id. (quoting Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir.
1983)).
1.

Work Which Exists in the National Economy

As relevant here, “‘work which exists in the national economy’ means
work which exists in significant numbers either in the region where the
individuals live or in several regions of the country.” SSR 82-53, 1982 WL
31374, at *3 (1982) (emphasis removed). This definition is designed “to
emphasize that . . . a type(s) of job which exists only in very limited
numbers or in relatively few geographic locations may not be said to ‘exist
in the national economy.’” Id. “Courts have generally held that what
constitutes a ‘significant’ number is fairly minimal.” Fox v. Comm’r of Soc.
Sec., No. 6:02-CV-1160, 2009 WL 367628, at *20 (N.D.N.Y. Feb. 13,
2009).
Here, the VE testified that a claimant of McCusker’s age, education,
work experience, and RFC can perform the job of surveillance system
monitor, and, relying on this testimony, the ALJ agreed. (Tr. at 31-32, 5860.) Again relying on the VE’s testimony, the ALJ concluded that there are
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74,470 jobs in the nation, 2,250 jobs in New York State, and 100 jobs in the
Capital District, which includes Albany, Schenectady, Troy, Renssalaer
County, and Saratoga County. (Id. at 31, 59-60.) Citing no authority, legal
or otherwise, McCusker claims that the Commissioner has not met her
burden of proving that jobs exist in the national economy because the VE
was only able to cite one job that McCusker could perform, when VE’s
typically “cite at least three occupations that are a match,” and because the
VE testified that there were no numbers recorded for the position of
surveillance system monitor in Greene County, where McCusker resides. 3
(Dkt. No. 12 at 3-4.)
As to McCusker’s contention that the Commissioner has not met her
burden because the VE was only able to identify one job that McCusker
could perform, the regulations provide that “[w]ork exists in the national

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Also citing no authority, legal or otherwise, McCusker argues that, despite being
described as sedentary in the DOT, the position of surveillance system monitor is no longer a
sedentary position because “[v]ery few, if any, employers ask employees to simply sit and
watch a bank of monitors all day long,” and, instead, “employers ask surveillance system
monitors to do a wider variety of security-related tasks.” (Dkt. No. 12 at 4.) McCusker also
contends that, despite being identified as unskilled in the DOT, the position of surveillance
system monitor is no longer unskilled because, “in the post 9/11 world, experienced and
trained workers are needed,” and, because many employees doing surveillance work are
employed by the gambling and gaming industries, “[e]ffective monitoring in [those industries]
requires training beyond what would be considered required for unskilled work.” (Id.) Given
the lack of citation to any authority, the court is left to believe that these conclusions are based
on nothing other than McCusker’s own speculation and assumptions, and the court, therefore,
does not consider them further.

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economy when there is a significant number of jobs (in one or more
occupations) having requirements which you are able to meet with your
physical or mental abilities and vocational qualifications.” 20 C.F.R.
§ 404.1566(b) (emphasis added). Interpreting this regulation, the Second
Circuit has stated that its language “suggests that a single occupation may
constitute a sufficient occupational base to permit a claimant to make a
work adjustment.” Nix v. Sullivan, No. 90-2988, 1991 U.S. App. LEXIS
13707 at *12 (2d Cir. June 10, 1991); see Gray v. Colvin, No. 12-CV6485L, 2014 WL 4146880, at *5 (W.D.N.Y. Aug. 19, 2014) (“[C]ourts have
repeatedly held that where a VE testifies that surveillance system monitor
is the sole position a claimant can perform, the Commissioner’s step [five]
burden to show that the claimant could perform work existing in significant
numbers has been satisfied.”).
Further, as to McCusker’s point that the Commissioner has not met
her step five burden because there are no reported surveillance system
monitor positions available in Greene County, the regulations provide that,
in determining whether work exists in the national economy, “[i]t does not
matter whether . . . [w]ork exists in the immediate area in which you live.”
20 C.F.R. § 404.1566(a)(1). Indeed, several courts have held that the step
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five burden has been met when the VE identified a significant number of
surveillance system monitor positions available regionally. See, e.g., Gray,
2014 WL 4146880, at *5 (holding that step five burden was met where the
VE testified that there were 16,763 surveillance system monitor jobs in the
national economy and sixty-three in the Finger Lakes region); Fox, 2009
WL 367628, at *3 (concluding that the step five burden was met by
surveillance system monitor position, with “a small percentage” less than
132,980 jobs nationally and 200 regionally); Colon, 2004 WL 1144059, at
*8 (holding that the step five burden was satisfied by testimony that the
claimant could perform a surveillance system monitor position, with
100,000 jobs nationally and 100 jobs regionally). Thus, the VE’s testimony
that there are 74,470 jobs in the nation, 2,250 jobs in New York State, and,
more specifically, 100 jobs in the Capital District, is sufficient to establish
that work exists in the national economy which McCusker can perform, and
the Commissioner has met her burden at step five.
2.

The VE’s Testimony and the DOT

Finally, McCusker argues that the ALJ improperly relied on VE
testimony that conflicts with the DOT. (Dkt. No. 12 at 4-6.) On the other
hand, the Commissioner argues that the VE’s testimony was consistent
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with the information contained in the DOT, and, further, the ALJ’s step five
determination is supported by substantial evidence. (Dkt. No. 13 at 6-8.)
Again, the court agrees with the Commissioner.
Social Security Ruling 00-4p sets forth that the “[o]ccupational
evidence provided by a VE . . . generally should be consistent with the
occupational information supplied by the DOT.” 65 Fed. Reg. 75,759,
75,760 (Dec. 4, 2000). In the event of a conflict between the two, “the
adjudicator must elicit a reasonable explanation for the conflict before
relying on the VE . . . evidence to support a determination or decision about
whether the claimant is disabled.” Id.
Again, here, the VE testified that a claimant of McCusker’s age,
education, work experience, and RFC can perform the job of surveillance
system monitor. (Tr. at 58-60.) McCusker, however, argues that the ALJ’s
RFC finding that McCusker was limited to sedentary work that is simple
and routine, with a specific vocational preparation (SVP) of one or two, and
with only occasional decision making and changes in the work setting, ( id.
at 22), was inconsistent with the DOT definition that work as a surveillance
system monitor requires reasoning at a level of three, meaning that the
person must “[a]pply commonsense understanding to carry out instructions
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furnished in written, oral, or diagrammatic form[, and d]eal with problems
involving several concrete variables in or from standardized situations,”
Dictionary of Occupational Titles, Code 379.367-010, 1991 WL 673244 (4th
ed., 1991). (Dkt. No. 12 at 4-6.) According to McCusker, such reasoning
requirements conflict with her restriction to simple, routine, and low stress
work, with only occasional decision making and changes in the work
setting. (Id.; Tr. at 22.)
As an initial matter, consistent with the ALJ’s RFC determination, the
DOT classifies the surveillance system monitor occupation as having an
SVP of two, which is anything beyond short demonstration, up to and
including one month. (Tr. at 22); Dictionary of Occupational Titles, Code
379.367-010, 1991 WL 673244 (4th ed., 1991). Further, a number of
courts have held that jobs with DOT reasoning levels of two or three are
compatible with limitations to simple and low stress work. See, e.g.,
Reynolds v. Comm’r of Soc. Sec., No. 1:11-cv-00778, 2012 WL 2050410,
at *6 (N.D.N.Y. June 6, 2012) (holding that a limitation to “simple work”
does not preclude a job that has a reasoning development level of two or
three); Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 408-09 (D. Conn.
2012), aff’d, 515 F. App’x 32 (2d Cir. 2013) (holding that reasoning levels of
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two and three are not inconsistent with a limitation to short, simple
instructions); Cross v. Astrue, No. 08-CV-0425, 2009 WL 3790177, at *8
(N.D.N.Y. Nov. 12, 2009) (finding no error in the ALJ’s conclusion that a
claimant limited to simple, low-stress, and entry-level work, with no
complex decision-making, could perform jobs with a reasoning level of two
or three); see also Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)
(holding that level three reasoning was not inconsistent with the ability to
perform only “simple work”); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir.
2007) (finding that two unskilled, level three reasoning jobs were not
“complex”).
Further, McCusker completed high school and two years of college.
(Tr. at 43, 501.) In addition, consultative examiner Dr. Claude Schleuderer,
Ph.D., opined that McCusker did not demonstrate “any difficulty with
intellectual functioning,” her “[m]emory and concentration w[ere] good,” she
“certainly has residual skills that could be exploited vocationally,” and she
has “no psychiatric disability that limits her employability.” (Id. at 501-02.)
Further, psychiatric consultant Dr. H. Ferrin opined that McCusker is not
significantly limited in understanding, remembering, and carrying out simple
and detailed instructions, maintaining attention and concentration for
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extended periods, maintaining regular attendance and performing activities
within a schedule, completing a normal workday and workweek without
interruptions, or in responding appropriately to changes in the work setting.
(Id. at 604-07.) Based on the foregoing, the job identified by the VE is not
incompatible with the limitations established by the ALJ, and the ALJ’s step
five determination is supported by substantial evidence.
B.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
McCusker’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
November 20, 2014
Albany, New York

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