Priest v. Commissioner of Social Security
MEMORANDUM & ORDER affirming the Commissioner's decision. Signed by Judge William G. Young on 5/17/16. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT COURT OF NEW YORK
RASHAUN ISIAH PRIEST,
CAROLYN W. COLVIN,
Social Security Administration,
WILLIAM G. YOUNG, U.S. District Judge 1
May 17, 2016
MEMORANDUM & ORDER
This is an action under Section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
Compl. ¶ 4, ECF No. 1.
plaintiff-claimant, Rashaun Isiah Priest (“Priest”), seeks
review of the denial of his application for social security
disability insurance benefits and supplemental security income
payments (collectively, “benefits”) by the Acting Commissioner
of the Social Security Administration (the “Commissioner”).
¶¶ 1, 2.
Priest argues that the decision of the Administrative
Of the District of Massachusetts, sitting by designation.
ECF No. 14.
Law Judge (“the hearing officer”) 2 is not supported by
substantial evidence and is contrary to law.
Mem.”) 2, 3, ECF No. 11.
Priest requests the reversal of the
Commissioner’s decision and the grant of the benefits for which
Id. at 1.
The Commissioner argues that the hearing
officer applied the appropriate legal standards and that the
hearing officer’s factual findings are supported by substantial
Mem. Law Supp. Def.’s Mot. J. Pleadings (“Def.’s
Mem.”) 9, 19, ECF No. 13.
The Commissioner accordingly requests
this Court enter judgment affirming the Commissioner’s decision.
Id. at 21.
On January 4, 2012, Priest applied for benefits.
Administrative R. (“Admin. R.”) 11, ECF No. 10. 3
For an explanation of this term, see Vega v. Colvin, No.
CV 14-13900-WGY, 2016 WL 865221, at *1 n.1 (D. Mass. Mar. 2,
2016). Some of the critiques of the Social Security Appeals
process discussed in Vega appear to have been addressed by the
government, at least somewhat. See Gerald K. Ray & Jeffrey S.
Lubbers, A Government Success Story: How Data Analysis by the
Social Security Appeals Council (With a Push from the
Administrative Conference of the United States) is Transforming
Social Security Disability Adjudication, 83 Geo. Wash. L. Rev.
1575, 1576 (2015) (asserting that there have been “significant
improvements in the quality and consistency of disability case
The record of the administrative proceedings in this case
is split across several docket entries, labeled 10-1 through 109. For the sake of clarity, this memorandum will cite to page
numbers in the continuously paginated record as a whole rather
Administration denied his application on February 15, 2012.
On March 7, 2012, Priest requested a hearing.
Priest appeared and testified at such a hearing, which was
held on May 10, 2013.
Id. at 29.
On May 31, 2013, the hearing
officer denied Priest’s application for benefits.
Id. at 25.
Priest then requested that the Appeals Council (the “Council”)
review the hearing officer’s decision.
Id. at 5-6.
denied Priest’s request on June 27, 2014, and the hearing
officer’s decision thus became the Commissioner’s final
Id. at 3-4.
On August 25, 2014, Priest filed a complaint under 42
U.S.C. § 405(g) seeking review of the Commissioner’s decision,
Compl. ¶ 4, which the Commissioner answered on December 8, 2014,
Def.’s Answer, ECF No. 9.
reassigned to this session.
On May 5, 2015, the case was
Reassignment Order 1, ECF No. 14.
The hearing officer’s factual findings are not in dispute,
as Priest’s appeal focuses instead on the hearing officer’s
application of a particular legal standard in evaluating his
credibility, and a vocational expert’s testimony.
For the facts as found by the hearing officer, see
Admin. R. 13-24.
than to individual docket entries that correspond to parts of
Standard of Review
Pursuant to Section 205(g) of the Social Security Act, this
Court has the “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”
42 U.S.C. § 405(g).
“The Court’s role in reviewing a social security disability
case is to determine whether appropriate legal standards were
applied and assess whether the administrative officer’s findings
of fact are supported by substantial evidence.”
Astrue, 882 F.Supp.2d 306, 314 (N.D.N.Y. 2012) (internal citation
omitted); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
2009) (internal citation omitted).
There is legal error “where
there is a reasonable basis for doubting whether the Commissioner
applied the appropriate legal standards.”
Martone v. Apfel, 70
F.Supp.2d 145, 148 (N.D.N.Y. 1999).
To determine whether an applicant is disabled under the
Act, the Commissioner employs a five-step analysis.
Second Circuit summarized, the steps are:
(1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant
has a severe impairment or combination of impairments;
(3) whether the impairment meets or equals the
severity of the specified impairments in the Listing
of Impairments; (4) based on a “residual functional
capacity” assessment, whether the claimant can perform
any of his or her past relevant work despite the
impairment; and (5) whether there are significant
numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual
functional capacity, age, education, and work
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20
C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
burden of proof is on the claimant in the first four steps, and
the burden is on the Commissioner with respect to the final
Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)
(internal citations omitted). 4
III. THE HEARING OFFICER’S DECISION
At the first step, the hearing officer determined that
Priest had not engaged in substantial gainful activity since
January 4, 2012.
Admin. R. 13.
At the second step, the hearing
officer found that Priest suffered from a mood disorder,
cannabis abuse, and alcohol abuse.
At the third step, the
hearing officer concluded that Priest’s impairments did not meet
the severity of the impairments listed in the regulations.
At the fourth step, the hearing officer determined that
There is an additional doctrine relating to substance
abuse that was employed by the hearing officer, see infra note
5, but the hearing officer’s application of it to the facts in
this case is not an issue on appeal.
Priest’s impairments could reasonably be expected to cause his
alleged symptoms, but that Priest’s statements concerning the
intensity, persistence, and limiting effects of his symptoms
were not credible “to the extent they [were] inconsistent with
[his] residual functional capacity assessment . . ..”
The hearing officer then determined that Priest had the
residual functional capacity (“RFC”) to perform “a full range of
work at all exertional levels,” subject to a wide variety of
See id. at 16.
At the fifth and what is usually the final step, the
hearing officer concluded that no jobs existed in significant
numbers in the national economy that Priest could perform.
As this case involved substance abuse, however, the hearing
officer next considered whether Priest would be disabled were he
not using drugs. 5
Id. at 21.
First, the hearing officer
concluded that, if Priest quit using drugs, his remaining
In cases involving substance abuse, a claimant first must
satisfy the five-step analysis and then prove that substance
abuse is not “a contributing factor material to the
Commissioner’s determination that the individual is disabled.”
42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J) . Substance abuse is a
contributing factor where the claimant would not be disabled “if
[the claimant] stopped using drugs or alcohol.” 20 C.F.R. §§
404.1535(b)(1), 416.935(b)(1). The burden of proof is on the
claimant to establish disability without drug use. Cage v.
Comm’r of Soc. Sec., 692 F.3d 118, 123-25 (2d Cir. 2012).
impairments would not meet the severe impairment requirement.
Second, the hearing officer determined that, if Priest quit
using drugs, he would retain the functional capacity “to perform
a full range of work at all exertional levels” with nonexertional limitations of only “perform[ing] simple, repetitive
tasks in low stress occupations defined as those having no more
than occasional decision[-]making . . . and no more than
occasional changes in the work setting and . . . no interaction
with the public and no more than occasional interaction with coworkers.”
Id. at 22.
Third, the hearing officer concluded
that, if Priest refrained from using drugs, a significant number
of jobs would exist in the national economy that he could
Id. at 23–24.
The hearing officer determined that Priest’s drug abuse was
a contributing factor material to the determination that Priest
Id. at 24.
Accordingly, the hearing officer
concluded that Priest was not disabled under the Act.
Priest makes two arguments: (1) that the hearing officer
failed to apply the correct legal standard in evaluating his
credibility, Pl.’s Mem. 3-5; and (2) that the hearing officer’s
decision incorporated the erroneous testimony of a vocational
expert, id. at 5-8.
Priest first argues that the hearing officer “failed to
apply the correct legal standard in assessing [his] subjective
complaints of pain[.]”
Pl.’s Mem. 3.
Priest’s entire argument rests on the hearing officer’s
conclusion that Priest’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not
credible to the extent they are inconsistent with the [hearing
officer’s] residual functional capacity assessment for the
reasons stated below.”
Admin. R. 19.
Priest is correct that
various courts in this Circuit have acknowledged that a hearing
officer’s discrediting of a claimant’s testimony because of its
inconsistency with a hearing officer’s residual functional
capacity determination is improper, because the latter is based,
in part, on the extent to which the hearing officer finds the
See, e.g., Gehm v. Astrue, No. 3:10-CV-1170,
2013 WL 25976, at *5 (N.D.N.Y. Jan. 2, 2013) (“[I]t is improper
to question the plaintiff's credibility because it is
inconsistent with the [residual functional capacity] determined
by the [hearing officer.]”) (internal footnote omitted); Torres
v. Comm’r of Social Sec., No. 13-CV-330, 2014 WL 69869, at *14
(E.D.N.Y. Jan. 09, 2014) (same).
This Court joins this chorus of
disapproval and notes that, generally, a hearing officer’s
statement that a “claimant's statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not
credible to the extent they are inconsistent with [her] residual
functional capacity assessment” is “conclusory and unhelpful.”
Abdulsalam v. Comm’r of Soc. Sec., No. 5:12-CV-1631 MAD, 2014 WL
420465, at *8 (N.D.N.Y. Feb. 4, 2014).
Here, however, the hearing officer did not simply rely on
this conclusory assertion; instead, she followed it by laying out
a catalog of inconsistencies between Priest’s claimed medical
impairments and his daily activities, Admin. R. 19, and between
his testimony and various objective reports, id. at 20.
noted Priest’s failure to follow prescribed treatment plans and
inability to attend therapy sessions, id. at 19, and medical
opinions that were contrary to the severity Priest claimed, id.
Priest does not challenge these factual findings, and,
since they constitute substantial evidence supporting the hearing
officer’s credibility determination, the Court affirms the
hearing officer’s determination even though she improperly
phrased that determination.
See, e.g., Abdulsalam, 2014 WL
420465, at *8 (“[W]hile this [phrasing] is inadequate, by itself,
to support a credibility finding, its use, does not make a
credibility determination invalid.’”) (quoting Crofoot v. Comm’r
of Soc. Sec., No. 1:12–cv–521, 2013 WL 5493550, *11 (N.D.N.Y.
Sept. 30, 2013)) (additional internal citation omitted).
Vocational Expert Testimony
Next, Priest argues that the hearing officer “failed to
resolve multiple apparent conflicts between occupational
evidence that the vocational expert (“VE”) provided and the
occupational information supplied by the Dictionary of
Occupational Titles (the “Dictionary”).”
Pl.’s Mem. 5.
The parties agree that the VE testified that Priest could
work as a kitchen helper, cleaner, or auto detailer.
Pl.’s Mem. 6, with Def.’s Mem. 20.
The parties also agree that
there is an unresolved inconsistency between the VE’s testimony
and the Dictionary regarding whether the cleaner occupation is
an unskilled or semi-skilled occupation, and that not resolving
this discrepancy was error.
Compare Pl.’s Mem. 6-7, with Def.’s
The Commissioner argues that this error was harmless,
however, because there was no unresolved conflict as to the VE’s
testimony regarding the occupations of kitchen helper or auto
detailer, jobs requiring level-2 reasoning.
Def. Mem. 20.
Priest claims this error was not harmless, because someone with
the hypothetical RFC presented to the VE could not perform an
occupation requiring level-2 reasoning.
Pl.’s Mem. 6 (“None of
the occupations to which the VE testified comply with the
reasoning level prescribed by the RFC.”). 6
Priest ostensibly claims that the VE’s testimony with
regard to these occupations also contained unexplained
inconsistencies with the Dictionary’s description of the kitchen
helper and auto detailer occupations, and thus a remand is
The dispute before the Court, then, is whether the hearing
officer erred in adopting the VE’s testimony that someone with
this hypothetical RFC could perform occupations requiring level2 reasoning was in error.
Priest points to the Dictionary’s
necessary. Pl.’s Mem. 6. Along these lines, he argues that
Social Security Ruling 00-4p is instructive here. Id. It
Occupational evidence provided by a VE or VS
generally should be consistent with the occupational
information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence
and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE
or VS evidence to support a determination or decision
about whether the claimant is disabled. At the
hearings level, as part of the adjudicator's duty to
fully develop the record, the adjudicator will
inquire, on the record, as to whether or not there is
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.
SSR 00-4P, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000).
The hypothetical RFC presented to the VE was of someone
“limited to performing simple, repetitive tasks in low[-]stress
occupations . . . [with] no more than occasional decision-making
required and no more than occasional changes in the work
setting.” Admin. R. 46. Priest argues that the VE’s testimony
that someone with this hypothetical RFC would be able to work as
a kitchen helper or auto detailer, which require a reasoning
level of 2,6 was in error. Pl.’s Mem. 6-7.
This asserted error, however, does not originate in a
conflict between the VE’s testimony regarding “occupational
evidence” and the Dictionary: the Commissioner notes that the
VE’s testimony on these two occupations is consistent with the
Dictionary definition, because they both classify these
occupations as unskilled work. Def.’s Mem. 21 (citing
Dictionary of Occupational Titles Job Codes Nos. 318.687-010 and
915.687-034 (4th ed. rev. 1991)).
statement that level-2 reasoning means that a worker can “apply
commonsense to carry out detailed but uninvolved written or oral
instructions[,] [and d]eal with problems involving a few
concrete variables in or from standardized situations.”
Priest claims that such detail and variability is
inconsistent with the hypothetical RFC -- “limited to performing
simple, repetitive tasks in low[-]stress occupations . . .
[with] no more than occasional decision-making required and no
more than occasional changes in the work setting[,]” Admin. R.
46. -- presented to the VE, and that someone with that RFC would
only be able to perform jobs that require level-1 reasoning,
meaning following “simple one- or two-step instructions.”
Work requiring a reasoning level of 2 may nonetheless be
“simple, routine and repetitive[,]” however.
Edwards v. Astrue,
No. 5:07-CV-898(NAM/DEP), 2010 WL 3701776, at *15 (N.D.N.Y.
Sept. 16, 2010) (emphasis added).
Here, Priest’s limitations
are similar to those discussed in Cross v. Astrue, No. 08-CV0425(VEB), 2009 WL 3790177, at *8 (N.D.N.Y. Nov. 12, 2009),
where the claimant was restricted to work that was “simple, lowstress, and entry-level, with no complex decision-making, no
planning, scheduling or report writing, no multi-tasking, little
change in the work environment, and infrequent interaction with
the public or co-workers.”
Id. at *8.
The Court agrees with
the Cross court that a VE, and thus, a hearing officer, is
entitled to conclude that someone with these limitations is
nonetheless capable of performing work that involves level-2
The Court thus affirms the Commissioner’s
decision, even though, consistent with Priest’s argument, it
would have been reasonable for the VE, and thus, the
Commissioner, to have found someone with that RFC capable of
only level-1 reasoning.
See, e.g., Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982) (“[F]actual issues need not have been
resolved by the [Commissioner] in accordance with what we
conceive to be the preponderance of the evidence.
instructed us that the factual findings of the [Commissioner],
if supported by substantial evidence, shall be conclusive.”)
(citing 42 U.S.C. §§ 405(g), 1383(c)(3)) (additional internal
citation omitted). 7
For the aforementioned reasons, the decision of the
Commissioner is affirmed.
Priest also notes that Mr. Belchick described all three
jobs -- cleaner, auto-detailer, and kitchen helper -- as “light
work,” when they are all, in fact, “medium” work. Pl.’s Mem. 7.
Though this testimony is in conflict with the Dictionary, it is
of no note because the hearing officer determined that Priest
could perform work at all exertional levels, not just “light
work.” See Admin R. 22.
/s/ William G. Young
WILLIAM G. YOUNG
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