Palermo v. Commissioner of Social Security
DECISION & ORDER denying # 10 Plaintiff's motion for judgment on the pleadings; and granting # 11 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 11/18/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROSEANN M. PALERMO,
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
OFFICE OF PETER M. MARGOLIUS
Counsel for Plaintiff
7 Howard Street
Catskill, NY 12414
PETER M. MARGOLIUS, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
GRAHAM MORRISON, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Roseann M. Palermo,
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 10, 11.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
Plaintiff was born on February 7, 1966. Plaintiff has a tenth grade education, and has
past work as a supermarket meat clerk and a personal care aide. Generally, Plaintiff’s alleged
disability consists of pain in the low back and bilateral legs, and anxiety.
On November 28, 2012, Plaintiff applied for a Period of Disability, Disability Insurance
Benefits, and Supplemental Security Income, alleging disability beginning March 1, 2008.
Plaintiff’s application was initially denied on February 15, 2013, after which she timely
requested a hearing before an Administrative Law Judge (“ALJ”). On March 24, 2013, Plaintiff
appeared in a hearing before the ALJ, Terence Farrell. (T. 27-63.) On May 8, 2014, the ALJ
issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 9-26.)
On June 22, 2015, the Appeals Council denied Plaintiff’s request for review. (T. 1-6.)
Thereafter, Plaintiff timely sought judicial review in this Court.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 14-22.) First, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security act through December 31, 2016, and has not engaged in
substantial gainful activity since March 1, 2008, the alleged onset date. (T. 14.) Second, the
ALJ found that Plaintiff’s lumbar degenerative disc disease, obesity, and osteopenia are severe
impairments, but that Plaintiff’s adjustment disorder is not a severe impairment. (T. 14-16.)
Third, the ALJ found that Plaintiff’s severe impairments, alone or in combination, do not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (the
“Listings”). (T. 16.) Fourth, the ALJ found that Plaintiff
has the residual functional capacity [“RFC”] to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b)1 except she can
occasionally lift, carry, push, and pull 20 pounds. She can frequently
lift, carry, push, and pull 10 pounds. She can stand about three hours
in an eight-hour workday with normal breaks with standing limited
to about 30 minutes at a time. She can sit three hours in an eighthour workday with normal breaks, with sitting limited to two hours
at a time. She can walk about two hours in an eight-hour workday
with normal breaks with walking limited to about one hour at a time.
She can frequently reach, push, and pull with each upper extremity.
She can frequently use both the right and left foot controls. She can
occasionally stoop and occasionally climb stairs and ramps. She can
never climb ladders, ropes, and scaffolds. She can never balance,
kneel, crouch, or crawl. She should never be exposed to unprotected
heights and temperature extremes. She can occasionally be exposed
to loud noise, such as noise from heavy traffic, but cannot be exposed
to very loud noise.
(T. 16.) Fifth, the ALJ found that Plaintiff has no past relevant work. (T. 20.) Sixth, and finally,
the ALJ found that there are other existing jobs in the national economy that Plaintiff can
perform. (T. 21.)
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff argues that the ALJ’s step five finding that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform is not supported by the
Dictionary of Occupational Titles (“DOT”). (Dkt. No. 10, at 3-5 [Pl.’s Mem. of Law].) More
specifically, Plaintiff disputes the vocational expert’s testimony that she can perform the
layaway clerk and order clerk positions because Plaintiff argues that she cannot perform semiskilled work. (Id.)
Light work requires the abilities to sit for six hours, stand or walk for six hours, lift up to 20
pounds at a time, and frequently lift or carry up to ten pounds during an eight-hour workday. 20 C.F.R. §§
404.1567(b), 416.967(b); SSR 83-10, 1983 WL 31251 (1983).
Generally, Defendant argues that the ALJ’s step five determination was supported by
substantial evidence. (Dkt. No. 11, at 1-6 [Def.’s Mem. of Law].)
RELEVANT LEGAL STANDARD
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering
vocational factors such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has
the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
Whether the ALJ’s Step Five Determination was Supported by Substantial
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 4-6 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
At step five of the sequential process, the burden shifts to the Commissioner to establish
that there is other work that exists in significant numbers in the national economy that a plaintiff
can perform based on the plaintiff’s RFC, age, education, and past relevant work. Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The Commissioner can usually establish that there
is other work that a plaintiff can perform by reliance on the Medical-Vocational guidelines
contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grids.”
Baldwin v. Astrue, 07-CV-6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009).
When a plaintiff suffers from nonexertional limitations that significantly limit the
plaintiff’s employment opportunities, exclusive reliance on the Grids is inappropriate. Baldwin,
2009 WL 4931363, at *27 (citing Bapp v. Bowen, 802 F.2d 601, 605 [2d Cir. 1986]). However,
“the mere existence of a non-exertional limitation does not automatically preclude reliance on
the guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (citing Bapp, 802 F.2d at
603.) A plaintiff’s range of potential employment is significantly limited when the plaintiff
“suffers from the 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 of a meaningful
employment opportunity.” Baldwin, 2009 WL 4931363, at *27.
To determine whether Plaintiff could perform other existing work in the national
economy, the ALJ provided a hypothetical to the vocational expert that was even more
restrictive than Plaintiff’s abilities and restrictions set forth in the RFC. (T. 21.) The vocational
expert testified that, based on the hypothetical RFC, and Plaintiff’s age, education, and work
experience, Plaintiff could perform jobs that exist in significant numbers in the national
economy. (Id.) More specifically, the vocational expert testified that Plaintiff could perform the
order clerk position (DOT number 209.567-014; SVP level two) and layaway clerk position
(DOT number 299.467-010; SVP level three). (T. 54-55.) The ALJ stated that, pursuant to SSR
00-4p, he determined that the vocational expert’s testimony is consistent with the information
contained in the DOT. (T. 21.) The ALJ further stated that, because the established RFC is less
restrictive than the relevant hypothetical RFC posed to the vocational expert, Plaintiff can
perform the occupations identified by the vocational expert. (Id.) Accordingly, the ALJ
concluded that there is other work that exists in significant numbers in the national economy that
Plaintiff can perform. (Id.)
Plaintiff argues that the ALJ erred in relying on vocational expert testimony that she
could perform semi-skilled work because the ALJ found that Plaintiff had a limited (tenth grade)
education and no past relevant work. (Dkt. No. 10, at 4 [Pl.’s Mem. of Law].) As an initial
matter, the Court notes that while the layaway clerk position is SVP level three, which
corresponds with semi-skilled work, the order clerk position is SVP level two, which
corresponds with unskilled work.2 (T. 54.)3 Therefore, Plaintiff’s argument that she could not
perform the order clerk position because she could not perform semi-skilled work fails.
Moreover, the Court finds that the ALJ did not err in finding that Plaintiff could perform
the semi-skilled work identified by the vocational expert. First, Plaintiff’s argument does not
cite any evidence of record demonstrating that Plaintiff had specific mental limitations that
would prevent her from performing semi-skilled work. (Dkt. No. 10, at 1-5 [Pl.’s Mem. of
Law].) Notably, Plaintiff did not dispute the ALJ’s RFC finding, which did not limit Plaintiff to
unskilled work or include any other mental limitations. (Id.)
Second, the ALJ’s determination that Plaintiff could perform the semi-skilled layaway
clerk position was supported by substantial evidence, including the mental opinions of
consultative psychiatric examiner Brett Hartman, Psy.D., and State agency psychological
consultant, Howard Ferrin, Ph.D., discussed below.
Consultative Psychiatric Examiner Dr. Hartman
On February 7, 2013, Dr. Hartman opined that Plaintiff could follow and understand
simple directions, and make appropriate decisions; and Plaintiff had a fair ability to maintain
attention and concentration, learn new tasks, and maintain a regular schedule. (T. 364.) Dr.
“A skill is knowledge of a work activity that requires the exercise of significant judgment that goes
beyond the carrying out of simple job duties and is acquired through performance of an occupation that is above the
unskilled level (requires more than 30 days to learn).” SSR 00-4P, 2000 WL 189870, at *3 (Dec. 4, 2000) (citing
SSR 82-41). Under the regulations, unskilled work corresponds to an SVP level of one or two; and semi-skilled
work corresponds to an SVP level of three or four. SSR 00-4P, 2000 WL 189870, at *3 (Dec. 4, 2000) (citing 20
C.F.R. §§ 404.1568, 416.968).
Unskilled work “is work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time. 20 C.F.R. §§ 404.1568(a), 416.968(a). Semi-skilled work “is work which needs some
skills but does not require doing the more complex work duties.” 20 C.F.R. §§ 404.1568(b), 416.968(b).
Although the ALJ’s decision misstated that the order clerk position is level four, the vocational
expert correctly identified that position as level two. (T. 21, 54); DICTIONARY OF OCCUPATIONAL TITLES,
1991 WL 671794 (4th ed., rev. 1991).
Hartman opined that Plaintiff had mild difficulty dealing appropriately with the normal stressors
of life. (Id.)
Upon examination, Dr. Hartman observed that Plaintiff was cooperative and pleasant, her
eye contact was appropriate, her speech was clear and fluent, her thought processes were
coherent and goal directed, her sensorium was clear, and she was alert and oriented times three.
(T. 362-63.) Although Dr. Hartman estimated that Plaintiff’s intellectual functioning appeared
to be somewhat below the average range, Dr. Hartman found that Plaintiff’s attention and
concentration, and recent and remote memory skills appeared to be generally intact; her insight
was fair; and her judgment was fair to good. (T. 363.) Dr. Hartman observed that Plaintiff was
able to perform counting, simple calculations, and serial threes with minimal difficulty; could
recall four out of four objects immediately, and three out of four objects after five minutes; and
could perform six digits forward and four digits backward. (Id.)
Plaintiff reported to Dr. Hartman that she had never been psychiatrically hospitalized,
never received outpatient mental health services, and never been suicidal. (T. 361-62.) Plaintiff
reported that her primary care physician prescribed BuSpar for anxiety secondary to pain, but
she stopped taking it because she did not find it helpful. (T. 15, 361.) Plaintiff further reported
that she took Trazodone to help her sleep but that it was “wearing off.” (T. 15, 362.) Plaintiff
reported that she was temporarily somewhat depressed due to the death of her mother two weeks
prior, but denied symptoms of major depression. (Id.) Additionally, Plaintiff alleged that she
had anxiety caused by pain and had rare anxiety attacks. (Id.) Plaintiff denied all other
psychiatric symptoms. (Id.) Dr. Hartman diagnosed Plaintiff with pain disorder associated with
a general medical condition and adjustment disorder with anxiety. (T. 364.)
State Agency Psychological Consultant Dr. Ferrin
On February 5, 2013, Dr. Ferrin reviewed the evidence of record regarding Plaintiff’s
mental abilities and limitations. (T. 66-69.) Dr. Ferrin opined that Plaintiff was not limited to
performing unskilled work. (T. 73.) Moreover, Dr. Ferrin adopted Dr. Hartman’s opinion of
Plaintiff’s mental RFC discussed above, finding that Dr. Hartman’s opinion was consistent with
the preponderance of the medical evidence of record. (T. 69.)
A review of the record indicates that treating sources at Columbia Memorial Hospital
reported no mental deficits upon examining Plaintiff, and indicated that Plaintiff was alert and
cooperative, had a calm and appropriate affect, spoke coherently, and was oriented times three.
(T. 247, 273, 280, 294, 300, 396, 407, 436.) Additionally, attending physician Salim Contractor,
M.D., at New York Oncology Hematology reported no mental deficits upon examining Plaintiff
and indicated that Plaintiff had “no abnormal mental status;” was oriented to person, time, and
place; her mood and affect were appropriate to the situation; she had appropriate judgement and
insight; and her memory was intact. (T. 459, 463.)
The Court notes that an ALJ is entitled to rely on the opinions of both examining and
non-examining State agency medical consultants, because those consultants are deemed to be
qualified experts in the field of social security disability. 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c), 404.1527(e), 416.912(b)(6), 416.913(c), 416.927(e); also Frey ex rel. A.O. v.
Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (“The report of a State agency medical consultant
constitutes expert opinion evidence which can be given weight if supported by medical evidence
in the record.”); Little v. Colvin, 14-CV-63, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015)
(“State agency physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are consistent with
the record as a whole.”).
Finally, the ALJ’s finding that Plaintiff could perform the semi-skilled layaway clerk
position was supported by Plaintiff’s own statements regarding her current work and activities of
daily living. Plaintiff reported that she had worked part-time as a meat clerk in a supermarket
since 2002. (T. 15, 34, 174, 207, 361.) The vocational expert noted that this job had a SVP level
of four, corresponding to semi-skilled work. (T. 53.) Plaintiff indicated that she never attended
special education classes, and reported that she could pay bills, count change, and handle a
savings account. (T. 174. 220.) Plaintiff further reported that she dresses, bathes, and grooms
herself; cares for her son; cooks, cleans, and does laundry; shops on her own; manages her
money; uses public transportation; and gets along very well with her next-door neighbor and
family members. (T. 202-03, 363.) Finally, Plaintiff reported that she spends her days working
part-time, doing household chores, collecting coupons, watching television, reading, and using
the computer, including Facebook. (T. 220, 363.)
In sum, the Court finds that the evidence of record does not establish that Plaintiff has
any mental impairments that would preclude her ability to perform semi-skilled work.
Moreover, the ALJ did not err in posing a hypothetical question to the vocational expert that did
not limit Plaintiff to unskilled work because Plaintiff’s ability to perform semi-skilled work was
supported by substantial evidence, including Dr. Ferrin’s opinion above. Dumas, 712 F.2d at
1553-54 (approving a hypothetical question to a vocational expert that was based on an
assumption supported by substantial evidence in the record). Therefore, the ALJ did not err in
relying on the vocational expert’s testimony, the ALJ’s step five determination was supported by
substantial evidence, and remand is not required on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: November 18, 2016
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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