Vanbenschoten v. Commissioner of Social Security

Filing 15

DECISION AND ORDER denying # 11 Plaintiff's motion for judgment on the pleadings; and granting # 12 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 4/21/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
SALLY A. VANBENSCHOTEN,
Plaintiff,
v.

1:16-CV-0057 (GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER M. MARGOLIUS
Counsel for Plaintiff
7 Howard Street
Catskill, NY 12414

PETER M. MARGOLIUS

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

FERGUS J. KAISER, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Sally A. Vanbenschoten
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. No. 11, 12.) 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 granted. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1982, making her 27 years old at the alleged onset date and 32 years
old at the date of the final Agency decision. Plaintiff has a ninth grade education, and past work
as a server, food preparation worker, and waitress. Plaintiff was insured for disability benefits
under Title II until December 31, 2012. Generally, Plaintiff alleges disability consisting of low
back pain and a hearing impairment that is worse in her right ear.
B.

Procedural History

Plaintiff applied for Title II Disability Insurance Benefits on December 11, 2012, and
Title XVI Supplemental Security Income on December 12, 2012. In both applications, Plaintiff
alleged disability beginning November 1, 2009. Plaintiff’s application was initially denied on
February 21, 2013, after which she timely requested a hearing before an Administrative Law
Judge (“ALJ”). On April 28, 2014, Plaintiff appeared at a hearing before ALJ Robert Wright.
On July 24, 2014, the ALJ issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 11-27.) On November 5, 2015, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 13-21.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since November 1, 2009, the alleged onset date. (T. 13.) Second, the ALJ found
that Plaintiff’s degenerative disc disease of the lumbar spine is a severe impairment, while her
hearing impairment, knee pain, asthma, carpal tunnel syndrome, depression, anxiety, and obesity
are not severe. (T. 13-14.) Third, the ALJ found that Plaintiff’s severe impairment does not
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meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 16.) More specifically, the ALJ considered Listing 1.00 (musculoskeletal
impairments). (Id.) Fourth, the ALJ found that Plaintiff has the residual functional capacity
(“RFC”) to perform
semi-skilled work with the ability to sit four hours in an eight-hour
day, stand and walk four hours in an eight-hour day with no work
on ladders or scaffolding, no crouching or crawling and only
occasional stooping, kneeling, climbing, working with moving
machinery, exposure to temperature extremes, dust or fumes, and
she would need to change position every hour.
(T. 16.) Fifth, the ALJ found that Plaintiff has past work as a server, food preparation worker,
and waitress, though the ALJ also found that Plaintiff is unable to perform this past work based
on the restrictions in the RFC. (T. 20-21.) Sixth, and finally, the ALJ determined that there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform,
including telemarketer, customer service representative, and information clerk. (T. 21-22.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts two arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the RFC determination was not supported by substantial
evidence. More specifically, Plaintiff argues that substantial evidence did not support the ALJ’s
finding that Plaintiff could perform semi-skilled work because the ALJ acknowledged that
Plaintiff only had a limited education. (Dkt. No. 11, at 3 [Pl. Mem. of Law].) As a corollary,
Plaintiff also challenges whether she would be able to perform the General Education
Development (“GED”) requirements 1 of some of the provided jobs based on her ninth grade

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General Education Development requirements indicate the level of ability an individual
needs to possess in the educational areas of Reasoning Development, Mathematical
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education. (Dkt. No. 11, at 4-6 [Pl. Mem. of Law].) Second, Plaintiff argues that the ALJ’s
conclusion at Step Five that Plaintiff could perform certain semi-skilled occupations conflicts
with his hypothetical questions to the vocational expert that assumed a restriction to unskilled
work. (Dkt. No. 11, at 3-4 [Pl. Mem. of Law].)
Generally, Defendant asserts two arguments in support of her motion for judgment on the
pleadings. First, Defendant argues that the ALJ’s finding that Plaintiff could perform semiskilled work was supported by her work history and the lack of any mental impairment that
would prevent her from performing semi-skilled work. (Dkt. No. 12, at 6-7 [Def. Mem. of
Law].) Defendant also argues that there was no inconsistency between the RFC and the GED
requirements of the identified occupations. (Dkt. No. 12, at 9 [Def. Mem. of Law].) Second,
Defendant argues that there was no error in relying on the vocational expert’s identification of
semi-skilled occupations in response to a hypothetical question that assumed a restriction to
unskilled work because the ALJ ultimately found that Plaintiff could perform semi-skilled work.
(Dkt. No. 12, at 8-9 [Def. Mem. of Law].)
II.

RELEVANT LEGAL STANDARD
A.

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

Development, and Language Development in order to be able to perform a certain occupation.
See Dictionary of Occupational Titles, App. C(III) (DEPT. OF LABOR, 1999).
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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.
1982).
“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).

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B.

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).

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III.

ANALYSIS
A.

Whether the ALJ Erred in Finding Plaintiff Was Capable of Performing
Semi-skilled Work Due to Her Limited Education

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 6-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
RFC is defined as “what an individual can still do despite his or her limitations.” SSR
96-8p, 1996 WL 374184 (July 2, 1996). In assessing a claimant’s RFC, the ALJ “must consider
only limitations and restrictions attributable to medically determinable impairments.” Id. SSR
96-8p more specifically indicates that “[i]t is incorrect to find that an individual has limitations
or restrictions beyond those caused by his or her medical impairment(s) including any related
symptoms, such as pain, due to factors such as age or height, or whether the individual had ever
engaged in certain activities in his or her past relevant work.” Id.
Plaintiff’s argument asserting a lack of substantial evidence to support an ability to
perform semi-skilled work is not availing. Plaintiff does not allege that she has a mental
impairment that would prevent her from performing semi-skilled work or that the effects of her
physical impairments or pain medications produce such a limitation. Instead, Plaintiff asserts
that the mere fact that she has a ninth grade education is substantial evidence to support a finding
that she is limited to unskilled work. (Dkt. No. 11, at 3-4 [Pl. Mem. of Law].) However,
Plaintiff does not provide any legal support for this assertion. To the contrary, SSR 96-8p
indicates that the ALJ is allowed to consider only limitations stemming from medically
determinable impairments when assessing the RFC, not other factors such as age, past work, or
education. SSR 96-8p, 1996 WL 374184. Plaintiff has not shown that her ninth grade education
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was due to or related to the effects of a medically determinable impairment. She has not alleged
or shown the existence of a cognitive impairment that would impact her ability to perform semiskilled work. She testified at the hearing that she had been in regular classes when in school and
reported she was working towards obtaining her general equivalency diploma. (T. 48.) While
there is some mention that Plaintiff had symptoms of depression and anxiety, there is little
evidence of any treatment for these impairments and no evidence that they imposed any
limitations on her mental functioning, either in the medical record or her own reports. (T. 1516.) Because the fact that Plaintiff had a ninth grade education is not a sufficient basis for a
conclusion that she has an RFC limitation to unskilled work, her argument is rejected.
Similarly, the Court is not persuaded by Plaintiff’s argument that she was unable to
perform the semi-skilled jobs identified by the vocational expert because of an asserted
inconsistency between Plaintiff’s ninth grade education and the GED levels for those jobs.
Again, Plaintiff does not cite to any legal authority that supports her assertion. Although
Plaintiff has only a ninth grade education, she was working on obtaining her general equivalency
diploma and she had previously worked in a job that had a specific vocational preparation of five
(which is classified as skilled work), supporting an ability to perform semi-skilled work. (T. 21,
48.) There is no evidence that she has since that time developed any impairment impacting her
ability to perform mental demands in a workplace. See Jackson v. Astrue, No. 06-CV-6372,
2007 WL 1428442, at *9 (W.D.N.Y. Apr. 25, 2007) (finding that it was not evident that the
plaintiff would be unable to perform jobs with Reasoning Development of up to 4, Mathematical
Development up to 2, and Language Development up to 2 where she had completed eleven years
of education and had general life experience including raising children, working, handling
money, and maintaining a household). As indicated previously, there was no error in the ALJ’s
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finding that Plaintiff remained able to perform semi-skilled work and Plaintiff has not
demonstrated how a person able to perform semi-skilled work would be unable to perform the
GED requirements of the jobs listed by the vocational expert.
For all these reasons, the RFC determination regarding Plaintiff’s ability to perform semiskilled work was supported by substantial evidence, and remand is not required on this basis.
B.

Whether the Vocational Expert’s Testimony Based on Hypothetical
Questions Including a Restriction to Unskilled Work Provided Substantial
Evidence to Support the Step Five Finding

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 8-9 [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). “‘Courts have generally held that what constitutes a
‘significant number’ is fairly minimal.’” Rosa v. Colvin, No. 3:12-CV-0170, 2013 WL 1292145,
at *9 (N.D.N.Y. Mar. 27, 2015) (quoting Fox v. Comm’r of Soc. Sec., No. 6.02-CV-1160, 2009
WL 367628, at *3 (N.D.N.Y. Feb. 13, 2009)). “The ‘proper use of vocational testimony
presupposes both an accurate assessment of the claimant’s physical and vocational capabilities,
and a consistent use of that profile by the vocational expert in determining which jobs the
claimant may still perform.’” Pardee v. Astrue, 631 F.Supp.2d 200, 211 (N.D.N.Y. 2009)
(quoting Lugo v. Chater, 932 F.Supp. 497, 503 (S.D.N.Y. 1996)). There also “must be
‘substantial evidence to support the assumption upon which the vocational expert based his
opinion.’” Pardee, 631 F.Supp.2d at 212 (quoting Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d
9

Cir. 1983)). “If a hypothetical question does not include all of a claimant’s impairments,
limitations, and restrictions, or is otherwise inadequate, a vocational expert’s response cannot
constitute substantial evidence to support a conclusion of no disability.” Pardee, 631 F.Supp.2d
at 211 (citing Melligan v. Chater, No. 94-CV-944S, 1996 WL 1015417, at *8 (W.D.N.Y. Nov.
14, 1996)).
While Plaintiff is correct that the ALJ’s hypothetical questions to the vocational expert
specifically assumed that she would be limited to unskilled work, this fact does not create an
inconsistency with the ALJ’s ultimate RFC finding that would constitute reversible error. It is an
inconsequential difference because an individual who can perform semi-skilled work is logically
also capable of performing unskilled work; therefore, with a semi-skilled RFC, Plaintiff would
have still been able to perform any unskilled jobs that would have been produced according to
the ALJ’s hypotheticals. See SSR 82-41, 1982 WL 31389 (noting that semi-skilled occupations
are more complex than unskilled work). In any event, the ALJ specifically asked the vocational
expert, “if my RFC was not limited to sedentary but it was limited to semi-skilled, those jobs [of
telemarketer, customer service representative, and information clerk] would be applicable, is that
correct?” to which the vocational expert responded in the affirmative. (T. 37.) The ALJ and the
vocational expert therefore reconciled what Plaintiff asserts is a conflict, affirmatively indicating
that these three jobs could still be performed if the hypothetical question was altered to an ability
to perform semi-skilled work. There is therefore no inconsistency between the ALJ’s
hypothetical questioning, the vocational expert’s testimony, and the RFC assessment that would
prevent the vocational expert’s testimony from constituting substantial evidence to support the
ALJ’s Step Five finding.

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Although neither of the parties argued the matter, there is a corollary matter that requires
attention to ensure an adequate review of the case by this Court. All of the occupations
identified by the vocational expert (and accepted by the ALJ at Step Five) are classified by the
Dictionary of Occupational Titles as semi-skilled positions. (T. 22, 34-37.) SSR 83-10 indicates
that the “[a]bility to perform skilled or semiskilled work depends on the presence of acquired
skills which may be transferred to such work from past job experience above the unskilled level
or the presence of recently completed education which allows for direct entry into skilled or
semiskilled work.” SSR 83-10, 1983 WL 31251. Some courts have determined that, in order for
an ALJ to consider semi-skilled positions at Step Five, he must first find that the plaintiff has
transferable skills from past work that would enable her to perform more than unskilled work.
See Clark v. Colvin, No. 14-CV-6782, 2016 WL 1254024, at *10 n.5 (E.D.N.Y. Mar. 31, 2016)
(declining to decide this specific issue, but noting multiple out-of-circuit precedents that lent
some support to the plaintiff’s argument regarding the need for transferable skills in order to
perform semi-skilled work at Step Five, and indicating that these out-of-circuit cases were
consistent with SSR 83-10).
The ALJ in this case did not find that Plaintiff had transferable skills from any of her past
work; he specifically declined to make a transferability analysis because he found that
“[t]ransferability of job skills is not material to the determination of disability.” (T. 21.) The
ALJ did find that Plaintiff had past relevant work as a server, food preparation worker, and
waitress; however, only one of these jobs (food preparation worker) is classified above the
unskilled level and therefore this would be the only past work from which transferable skills
could arise. (T. 34.). See also Draegert v. Barnhart, 311 F.3d 468, 473 (2d Cir. 2002) (quoting
SSR 82-41, 1982 WL 31389) (“‘Skills are not gained by doing unskilled jobs.’”). However, it is
11

not wholly clear that this job meets the definition of past relevant work outlined in the
regulations; if it does not, Plaintiff could not have acquired transferable skills from that job under
the regulations. 2 See SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000) (“Skills are acquired in [past
relevant work] and may also be learned in recent education that provides direct entry into skilled
work.”). This raises the question of whether Plaintiff would have had transferable skills from her
past work as a food preparation worker that would be applicable to the office-type work of the
jobs identified by the vocational expert, if this Court were to accept that a finding of transferable
skills is required where the ALJ relies on semi-skilled jobs at Step Five.
However, based on the circumstances of this case, the Court need not answer the question
of whether transferable skills were required to support the Step Five finding. Although all of the
jobs the vocational expert provided were classified in the Dictionary of Occupational Titles as
semi-skilled with specific vocational preparation (“SVP”) levels of three or four, the vocational

2

In order to qualify as past relevant work for consideration at Steps Four and Five, the
work must have been performed within the past 15 years, for a sufficient duration for the
individual to learn the job, and be substantial gainful activity. SSR 82-62, 1982 WL 31386.
Plaintiff’s work history reports indicate that the job in which she performed this food preparation
work occurred when she was doing kitchen and housework duties at the Blackthorne Resort from
March 2009 to October 2009. (T. 181.) (Additional work as a deli worker was reported in June
2007 to January 2008, but the vocational expert specifically found this work to be under a
separate Dictionary of Occupational Titles number. (T. 34.)) Earnings records show that
Plaintiff made $4,127 in 2009 from Blackthorne, an amount which is well below the presumptive
amount of substantial gainful activity for eight months of work in 2009. See Substantial Gainful
Activity, SOCIAL SECURITY ADMINISTRATION, https://www.ssa.gov/oact/cola/sga.html (indicating
that the monthly substantial gainful activity earnings amount for 2009 was $980 for non-blind
individuals). However, “‘[a]lthough earnings below the guidelines will ‘ordinarily’ show that an
employee has not engaged in substantial gainful activity, earnings below the guidelines will not
conclusively show that any employee has not engaged in substantial gainful activity.’”
Richardson v. Colvin, No. 15-CV-6276, 2016 WL 3179902, at *11 (W.D.N.Y. June 8, 2016)
(quoting Pickner v. Sullivan, 985 F2.d 401, 403 (8th Cir. 1993)). Therefore, without any other
explanation from the ALJ, there is a question as to whether Plaintiff’s past work as a food
preparation worker constituted past relevant work based on her earnings.
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expert also testified that the job of telemarketer was, in his practical experience, “a very
unskilled position because the people typically read from the same script over and over again,”
and he noted his opinion differed from the Dictionary of Occupational Titles in that respect. (T.
38.) The ALJ is entitled to rely on a vocational expert’s testimony that conflicts with the
Dictionary of Occupational Titles where the vocational expert provides an explanation to
reconcile the conflict. See SSR 00-4p, 2000 WL 1898704 (noting that it is the ALJ’s
responsibility to ask if vocational expert testimony conflicts with the information provided in the
Dictionary of Occupational Titles and, if it does conflict, obtain a reasonable explanation for the
apparent conflict); Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 446 (2d Cir. 2012) (noting
that “a VE whose evidence conflicts with the DOT must provide a ‘reasonable explanation’ to
the ALJ for the conflict”); Brodbeck v. Astrue, No. 5:05-CV-0257, 2008 WL 681905, at *9
(N.D.N.Y. Mar. 7, 2008) (“If a conflict exists between the evidence provided by the expert and
the DOT, the ALJ must determine whether the expert’s explanation for the conflict is reasonable
and whether a basis exists for relying on the expert rather than the DOT.”); see also Abar v.
Colvin, No. 7:15-CV-0095, 2016 WL 1298135, at *11 (N.D.N.Y. Mar. 31, 2016) (noting that
SSR 00-4p sets forth examples of reasonable explanations for conflicts that may provide a basis
for the ALJ to rely on a vocational expert’s evidence conflicting with the Dictionary of
Occupational Titles, including where there are aspects of the job not listed in the Dictionary of
Occupational Titles and “a vocational expert may have additional information about a particular
job’s requirements based on the vocational expert’s experience”).
Additionally, the vocational expert testified that there were 245,550 telemarketer
positions in the national economy and 11,210 such positions in New York State. (T. 35-36.)
Therefore, the vocational expert’s testimony provided substantial evidence that there were a
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significant number of what, in the vocational expert’s opinion, constituted unskilled jobs in the
national economy that Plaintiff could perform. See Roe v. Colvin, No. 1:13-CV-1065, 2015 WL
729684, at *7 (N.D.N.Y. Feb. 19, 2015) (indicating that 630 jobs locally and 44,000 jobs
nationally were a significant number); Fox, 2009 WL 367628, at *3 (upholding the magistrate
judge’s finding that the ALJ had shown a significant number of jobs existed where, even though
the only occupation identified was that of surveillance systems monitor, the VE testified the
amount of these jobs was “a small percentage lower” than 132,980 nationally and 200 in the
central New York region); see also Hamilton v. Comm’r of Soc. Sec., 105 F.Supp.3d 223, 229-31
(N.D.N.Y. 2015) (collecting cases in which the specific number of occupations in the regional
and national economy provided by the vocational experts were or were not held to be a
‘significant number’). Therefore, there is no need to determine whether the ALJ’s reliance on
semi-skilled work at Step Five without making a transferable skills determination was legal
error, because, based on the vocational expert’s testimony, the telemarketer occupation would
satisfy the Commissioner’s burden at Step Five regardless of that determination.
For all these reasons, the ALJ’s Step Five finding 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. 11) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
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ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: April 21, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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