Iqbal v. Commissioner of Social Security

Filing 12

MEMORANDUM-DECISION AND ORDER: that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9 ) is Denied; that Defendant's motion for judgment on the pleadings (Dkt. No. 11 ) is Granted; that Defendant's decision denying Plaintiff disability benefits is Affirmed and that Plaintiff's Complaint (Dkt. No. 1 ) is Dismissed. Signed by Magistrate Judge Christian F. Hummel on 08/11/2017. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
BONNIE IQBAL,
Plaintiff,

1:16-CV-0722
(CFH)

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF STEVEN R. DOLSON
Counsel for Plaintiff
126 North Salina Street, Suite 3B
Syracuse, New York 13202

STEVEN R. DOLSON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

SUSAN J. REISS, ESQ.

CHRISTIAN F. HUMMEL,
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court, in this Social Security action filed by Bonnie Iqbal
(“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. Nos. 9, 11.) For the reasons set forth below, Plaintiff’s motion for judgment on the

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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. 1

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1961, making her 52 years old at the application filing date
and amended alleged onset date, and 53 years old at the date of the ALJ’s decision.
Plaintiff reported completing school to the ninth or tenth grade without obtaining a GED.
The ALJ found she has past relevant work as a cashier-checker and office helper.
Generally, Plaintiff alleges disability consisting of knee problems, lower back problems,
neck problems, and high blood pressure.

B.

Procedural History

Plaintiff applied for Disability Insurance Benefits and Supplemental Security
Income on July 15, 2013. Plaintiff’s application was initially denied on October 17,
2013, after which she timely requested a hearing before an Administrative Law Judge
(“ALJ”). (T. 2 92-99, 102-03). Plaintiff appeared at a hearing before ALJ Dale BlackPennington on February 4, 2015, at which time she amended her alleged onset date to
August 13, 2013. (Id. at 25-69). On August 3, 2015, the ALJ issued a written decision
finding Plaintiff not disabled under the Social Security Act. (Id. at 10-20.) On May 26,

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The parties consented to the undersigned’s jurisdiction of this matter pursuant to 28 U.S.C. § 636(c).
Federal Rule of Civil Procedure 73, Local Rule 72.2(b), and General Order 18. Dkt. No. 6.
2
The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative Transcript will be
referenced as “T.” The Bates-stamped page numbers set forth therein will be followed, rather than the
page numbers assigned by the Court’s CM/ECF electronic filing system.

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2016, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. (Id. at 1-3.)

C.

The ALJ’s Decision

Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff had not engaged in substantial gainful activity from August 13, 2013, the alleged
onset date, through September 30, 2014, the date last insured. (T. 12.) The ALJ found
that Plaintiff has not engaged in substantial gainful activity since the alleged onset date.
(Id.) The ALJ found at step two that plaintiff had the severe impairments of
degenerative disc disease of the lumbar and cervical spine, osteoarthritis of the bilateral
knees, hypertension status-post mild stroke, and obesity. (Id. at 12-13.) At step three,
the ALJ determined that Plaintiff’s severe impairments do not meet or medically equal
one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (Id.
at 13.) The ALJ considered Listings 1.00 (musculoskeletal system), 4.00
(cardiovascular system), and 11.00 (neurological disorders). (Id.) The ALJ then
concluded that Plaintiff has the residual functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except [she] can occasionally climb stairs and ramps; [is]
occasionally able to bend or twist; able to frequently, but not
repetitively, crouch or reach, except able to occasionally
reach overhead; must avoid rapid head movements; can
perform frequent, but not continuous, fingering and handling
with both hands; and has a limited reading ability.
(Id.) At step four, the ALJ found that Plaintiff remained able to perform her past relevant
work as a cashier-checker and office helper with the limitations set forth in the RFC. (Id.
at 19.) Thus, the ALJ determined that Plaintiff was not disabled.

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D.

Arguments

Plaintiff argues that the ALJ’s RFC as it relates to her reading abilities was not
sufficiently specific. (Dkt. No. 9, at 4-5 [Pl. Mem. of Law].) Plaintiff argues that this lack
of specificity renders the ALJ’s conclusion that Plaintiff could perform her past relevant
work as a cashier-checker and office helper unsupported by substantial evidence, as
both jobs have a Language Development level of 2. 3 (Id. at 5) Plaintiff also argues that
the ALJ erred in failing to resolve a conflict between the RFC limitation for occasional
overhead reaching with the Dictionary of Occupational Titles (“D.O.T.”) specifications
that show Plaintiff’s past work generally requires constant (cashier-checker) or frequent
(office helper) reaching. (Id. at 6-7) Plaintiff also asserts that there is an unresolved
conflict between the RFC limitation for only frequent handling and fingering and the
requirements of her past work as a cashier-checker as the D.O.T. indicates that jobs
requires constant handling and fingering. (Id. at 8).
Generally, Defendant asserts two arguments in support of her motion for
judgment on the pleadings. First, Defendant argues that the ALJ sufficiently explained
her findings relating to Plaintiff’s reading ability by acknowledging her education level,

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A Language Development level of two corresponds to an ability to perform the following:
Reading:
Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words
per minute. Read adventure stories and comic books, looking up
unfamiliar words in dictionary for meaning, spelling, and pronunciation.
Read instructions for assembling model cars and airplanes.
Writing:
Write compound and complex sentences, using cursive style, proper end
punctuation, and employing adjectives and adverbs.
Speaking:
Speak clearly and distinctly with appropriate pauses and emphasis,
correct pronunciation, variations in word order, using present, perfect,
and future tenses.
General Educational Development, The Revised Handbook of Analyzing Jobs, Chap. 7 (Dept. of Labor,
1991), available at http://www.skilltran.com/rhaj/rhaj7.pdf (last visited June 16, 2017).

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daily activities, and the lack of evidence substantiating the presence of a mental or
cognitive impairment that could limit her reading ability. (Dkt. No. 11, at 14-15 [Def.
Mem. of Law].) Defendant also notes that the vocational expert testified that Plaintiff
remained able to perform these jobs despite a reading limitation included in the
hypothetical question. (Id. at 15-16). Defendant contends that, although Plaintiff bore
the burden, she provided no evidence to support an inability to read at the level required
to perform her past work. (Id. at 16)
Second, Defendant argues that whether there were conflicts with the D.O.T. is
not dispositive because the ALJ may find an individual not disabled at Step Four based
on a retained ability to perform her past work either as generally performed (as
described in the D.O.T.) or as actually performed by the individual in the past. (Def.
Mem. of Law at 16-17) Defendant also argues that, even if there was a conflict with the
job of cashier-checker with relation to handling and fingering, that same conflict did not
eliminate Plaintiff’s ability to perform her past work as an office helper. (Id. at 17-18).
Lastly, Defendant argues that the ALJ was entitled to rely on the vocational expert’s
testimony because the RFC presented a complex situation that did not neatly fall into a
particular exertional category. (Id.)

II.

RELEVANT LEGAL STANDARDS
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

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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. 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

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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).

B.

Disability Standard

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 (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

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be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).

III.

ANALYSIS

A. Reading Ability
Residual functional capacity is defined as “‘what an individual can still do despite
his or her limitations . . . Ordinarily, RFC is the individual’s maximum remaining ability to
do sustained work activities in an ordinary work setting on a regular and continuing
basis.’” Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). “In making a residual functional capacity
determination, the ALJ must consider a claimant’s physical abilities, mental abilities,
[and] symptomology, including pain and other limitations which could interfere with work
activities on a regular and continuing basis.” Id. at 210 (citing 20 C.F.R. § 404.1545(a)).
“Ultimately, ‘[a]ny impairment-related limitations created by an individual’s response to
demands of work . . . must be reflected in the RFC assessment.’” Hendrickson v.
Astrue, No. 5:11-CV-0927, 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting
SSR 85-15, 1985 WL 56857, at *8). When assessing the limitations of an individual’s
RFC, the adjudicator is restricted to considering “only limitations and restrictions
attributable to medically determinable impairments.” SSR 96-8p, 1996 WL 374184, at
*2 (S.S.A. July 2, 1996).
Plaintiff does not challenge the majority of the RFC determination, but solely
argues that the ALJ erred in failing to make the limitation accounting for her reported
difficulties with reading more specific. (Dkt. No. 9, at 4-6 [Pl. Mem. of Law].) However,

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whether or not the ALJ’s inclusion of a notation that Plaintiff has “a limited reading
ability” is sufficiently specific to provide a useful description of the extent of Plaintiff’s
work-related functional abilities is immaterial in this case because Plaintiff has not
shown that her alleged difficulties with reading stem from any medically determinable
impairment. As noted, SSR 96-8p instructs Social Security Administration adjudicators
to consider only limitations that are attributable to medically determinable impairments
when formulating the RFC assessment. SSR 96-8p, 1996 WL 374184, at *2. Because
the evidence in the record does not establish a medically-determinable cognitive,
intellectual, or other impairment that would cause Plaintiff’s reading difficulties, pursuant
to SSR 96-8p, the ALJ need not even have considered those alleged limitations when
assessing the RFC. However, the ALJ’s failure to strictly follow SSR 96-8p is harmless,
as a correct application of the law would result in the removal of the reading limitation
from the RFC and would have no impact on the ultimate outcome of Plaintiff’s claim.
See Camarata v. Colvin, No. 6:14-CV-0578 (MAD/ATB), 2015 WL 4598811, at *16
(N.D.N.Y. July 29, 2015) (denying the request for remand because application of the
correct legal standard would not change the outcome); Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987) (conceding that “where application of the correct legal principles
to the record could lead to only one conclusion, there is no need to require agency
reconsideration.”) (citations omitted).
Additionally, even if this Court were to assume the presence of a medicallydeterminable impairment causing Plaintiff’s reading difficulties, the evidence in the
record does not support the degree of restrictions that Plaintiff alleges. When
discussing Plaintiff’s allegations of poor reading ability, the ALJ noted, “in the light most

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favorable to the claimant, the undersigned [ALJ] finds that the claimant may have some
difficulties reading, as it is reflected in the [RFC] below. However, the record does not
support any diagnosis indicative of ongoing or consistent mental medically determinable
impairment.” (T. 13.) It is clear from the ALJ’s own explanations that he found little, if
any, evidence to substantiate Plaintiff’s allegations of reading difficulties, and that the
inclusion of such a limitation was the result of giving the claimant the benefit of the
doubt. Plaintiff does not point to any evidence other than her own subjective allegations
that would support her assertions that she was unable to perform the requirements of
the Language Development level two that are necessary to allow her to perform her
past relevant work. The ALJ found that Plaintiff’s allegations as a whole were not
entirely credible – a finding that Plaintiff does not specifically challenge in her appeal –
thus, any decision to decline to adopt the full extent of Plaintiff’s reported limitation is
consistent with that credibility finding. Moreover, Plaintiff does not adduce any evidence
that her reading ability declined since the time when she was previously able to perform
her past relevant work, that her reading limitations lead to her termination, or that she
was unable to properly perform her past relevant work because of her reading ability.
There is nothing in the record to support reading limitations preventing the performance
of Plaintiff’s past relevant work even if this Court were to overlook the absence of a
medically-determinable impairment causing these alleged limitations. Consequently,
Plaintiff’s argument that the reading limitation included in the RFC was not sufficiently
specific must be rejected. For the above reasons, the ALJ did not err in failing to
include a more specific statement of the extent of Plaintiff’s reading limitations in the
RFC; thus, remand is not warranted on this ground.

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B.

Inconsistencies between Vocational Expert’s Testimony
and Dictionary of Occupational Titles

The burden to show disability is on the claimant from steps one through four of
the sequential evaluation analysis, though the burden shifts to the Agency at Step Five,
at which point the adjudicator must provide evidence that a significant number of jobs
exist in the national economy that the claimant is able to perform. See McIntyre v.
Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d
443, 445 (2d Cir. 2012)). “An ALJ may rely on a vocational expert’s testimony regarding
a hypothetical as long as ‘there is substantial record evidence to support the
assumption[s] upon which the vocational expert based his opinion’” and the hypothetical
“accurately reflect[s] the limitations and capabilities of the claimant involved.” McIntyre
v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (quoting Dumas v. Schweiker, 712 F.2d
1545, 1553-54 (2d Cir. 1983)).
Plaintiff’s argument centers around what she asserts is the ALJ’s failure to seek
and obtain explanations for certain conflicts between the vocational expert’s testimony
and the descriptions in the D.O.T. of Plaintiff’s past jobs of cashier-checker and office
helper. (Pl. Mem. of Law at 6-8). However, Plaintiff’s argument ignores the fact that
these allegedly unresolved conflicts exist at step four of the sequential evaluation in this
case, rather than at step five, as in many of the cases Plaintiff cites. 4 As Defendant

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For example, plaintiff cites Bevens v. Colvin, No. 5:13-CV-0470 (LEK), 2015 WL 5750083
(N.D.N.Y. Sept. 30, 2015) as a relevant case from this Court in which remand was granted based on the
ALJ’s failure to (1) obtain a reasonable explanation from the vocational expert for a deviation in her
testimony regarding reaching from the DOT, and (2) show a basis for relying on the vocational expert’s
testimony over the DOT. Pl Mem. of Law at 7-8. However, Bevens involved a denial at step five of the
sequential evaluation. The case currently before the Court, by contrast, is a step four denial where the
claimant was found capable of performing past relevant work as it was actually performed. Id. at *10. As
there are different considerations relevant to making a determination at Step Four and making a
determination at step five, including the issue of how a claimant actually performed past relevant work --

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correctly notes, Plaintiff bears the burden at step four of showing that she is unable to
perform her past relevant work, and the ALJ is entitled to find Plaintiff is not disabled if
she can perform her past relevant work either as generally performed in the national
economy or as she actually performed it in the past. (Dkt. No. 11, at 17 [Def. Mem. of
Law].) As the D.O.T. only speaks to how jobs are generally performed in the national
economy, an inconsistency with the D.O.T. between how jobs are generally performed
and how a claimant performed them in the past is not determinative if substantial
evidence supports a finding that the plaintiff remained able to perform her past relevant
work as it was actually performed. See Albano v. Colvin, 99 F. Supp. 3d 355, 367-68
(E.D.N.Y. 2015) (“‘[A]t the fourth stage of the [SSA] inquiry, the claimant has the burden
to show an inability to return to her previous specific jobs and an inability to perform her
past relevant work generally.”) (alteration and emphasis in original) (quoting Jasinski v.
Barnhart, 341 F.3d 182, 185 (2d Cir. 2003)); Grogg v. Comm’r of Soc. Sec., No. 11-CV1381 (NAM/TWD), 2014 WL 1312325, at *13 (N.D.N.Y. Mar. 31, 2014) (noting that it
was not necessary to determine whether the plaintiff could perform her past relevant
work as actually performed because the ALJ’s finding that she could perform it as
generally performed was “sufficient to negate a finding of disability at step four[.]”) (citing
Jasinski, 341 F.2d at 185); Pagnani v. Comm’r of Soc. Sec., No. 1:12-CV-1287, 2014
WL 1268912 (NAM/VEB), at *9 (N.D.N.Y. Mar. 26, 2014) (noting that “[a]t step four of
the sequential evaluation, the claimant will be found not disabled if she can perform her
past relevant work, either as she actually performed it, or as it is generally performed in

as opposed to strictly focusing on the DOT description of that job -- Bevens does not direct the outcome
in this case. Id.

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the national economy.”) (emphasis in original) (citing Jock v. Harris, 651 F.2d 133, 135
(2d Cir. 1981)).
In making the step four determination, the ALJ explicitly found that Plaintiff was
“able to perform her past work as actually and generally performed,” and he included a
recitation of the description of the tasks and duties related to the actual performance of
these jobs that Plaintiff had given during the hearing testimony. (T. 19.) Therefore, it is
clear that the ALJ’s step four finding included a determination that Plaintiff remained
able to perform her past work as actually performed. The most relevant inquiry then
becomes whether Plaintiff’s reports of how she actually performed the jobs of cashierchecker and office helper conflict with the limitations included in the RFC assessment.
At the hearing, Plaintiff testified regarding how she performed these two jobs.
Regarding her work as a cashier-checker at a casino, Plaintiff testified that she put out
products for sale, sold cigarettes, stocked shelves, interacted with customers, accepted
money and provided change, stood most of the time, and lifted five-to-ten pounds
regularly. (T. 59-60.) Regarding her work as an office helper in a law firm, Plaintiff
testified that she sat most of the time; lifted less than five pounds; and she put stickers
on files: she took the file out of a box, put it on the desk, put a sticker on it, and then put
it to the side, and someone else carried the box of files to and from her station. (Id. at
60-62.) These descriptions were elicited while the vocational expert was present for the
hearing and in response to the vocational expert’s request for more information about
the specifics of Plaintiff’s past work. (Id. at 58-62.) Following Plaintiff’s descriptions of
how she performed these jobs, the vocational expert classified her past work in terms of
the D.O.T., noting that Plaintiff’s work as an office helper, which was described as light

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in the D.O.T., but sedentary as performed. (Id. at 62.) In response to the ALJ’s first
hypothetical question, the vocational expert testified that Plaintiff could perform the
office helper position “both as she performed it and as performed in the general labor
market”; she also testified that Plaintiff could perform her past relevant work as a
cashier-checker, but did not specify whether she could complete this work as it was
actually performed and as generally performed. (Id. at 63.) The ALJ’s responses to the
subsequent light-level hypothetical questions with additional non-exertional limitations
only indicate that Plaintiff “would still be able to work in the cashier checker position and
the office helper position” without specifying whether Plaintiff could complete this work
as it was actually performed, generally performed, or both. (Id. at 63-64.) Lastly, in
response to a hypothetical question that reduced the exertional level to sedentary, the
vocational expert testified that Plaintiff could perform work as an office helper “as she
performed it, but not as performed in the general labor market.” (Id. at 64.)
The totality of the testimony recounted indicates that, although the vocational
expert did not clearly and specifically testify that Plaintiff remained able to perform her
past work both as actually and as generally performed for each and every hypothetical
question, when providing her testimony, the vocation expert understood and considered
how Plaintiff actually performed these jobs. It was reasonable, based on the testimony
as a whole, for the ALJ to interpret the less-specific portions of the vocational expert’s
testimony as indicating an ability to perform these jobs both as actually and as generally
performed. Because the ALJ’s interpretation of the vocational expert’s testimony was
reasonable, this Court will not substitute its own interpretation. See Hart v. Astrue, 32
F. Supp. 3d 227, 235 (N.D.N.Y. 2012) (“To the extent [the doctor’s] opinion is capable of

14

more than one reasonable interpretation, this Court must defer to the interpretation of
the ALJ and may not substitute its own opinion.”); Brouillette v. Astrue, 901 F. Supp. 2d
328, 333 (N.D.N.Y. 2012) (“If the evidence is deemed susceptible to more than one
rational interpretation, then the Commissioner’s conclusion must be upheld.”).
Substantial evidence supports the ALJ’s finding that Plaintiff remained able to perform
her past relevant work as a cashier-checker and office helper as those jobs were
actually performed.
As substantial evidence supports the ALJ’s finding that Plaintiff remained able to
perform her past relevant work as actually performed, whether conflicts existed with the
D.O.T. definitions showing how those jobs are generally performed in the national
economy is immaterial to the issue of whether Plaintiff is disabled. Notably, Plaintiff
bore the burden to show that she was unable to perform her past relevant work both as
actually and as generally performed, but Plaintiff has not challenged the finding that she
is able to perform her past work as actually performed. See Pl’s Mem. of Law at 6-8;
see also Cobb v. Comm’r of Soc. Sec., No. 5:13-CV-0591, 2014 WL 4437566, at *10
(N.D.N.Y. Sept. 9, 2014) (finding the ALJ’s step four finding supported by substantial
evidence because, “[r]egardless of how the Dictionary of Occupational Titles
categorizes this custodial position, Plaintiff actually performed it at a light level, and she
has not met her burden to show that she could not perform the work as she actually
performed it.”). Consequently, Plaintiff’s citation to possible conflicts with D.O.T. is not
sufficient in this case to suggest that the ALJ’s Step Four finding was erroneous. For all
the above reasons, the Step Four finding is supported by substantial evidence

15

regardless of any potential inconsistencies with the D.O.T., and remand is not
warranted on this basis.

IV. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) 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 Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED;
IT IS SO ORDERED.
Dated: August 11, 2017
Albany, New York

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