Crossman v. Colvin

Filing 20

MEMORANDUM-DECISION AND ORDER reversing and remanding action back to Commissioner. Signed by US Magistrate Judge Andrew T. Baxter on 10/13/15. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
PAUL H. CROSSMAN, JR.,
Plaintiff,
v.

3:14-CV-1294
(ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
PETER A. GORTON, ESQ., for Plaintiff
LAUREN MYERS, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
In accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and
N.D.N.Y. Local Rule 73.1, this matter was referred to me, with the consent of the
parties, for all proceedings and entry of a final judgment, by the Honorable Lawrence E.
Kahn, Senior United States District Judge, by Order dated July 27, 2015 (Docket No.
18).
I.

PROCEDURAL HISTORY
On, July 27, 2009, plaintiff protectively1 filed applications for both Disability

1

The term “protective filing” indicates that a written statement, “such as a letter,” has been
filed with the Social Security Administration, indicating the claimant’s intent to file a claim for
benefits. See 20 C.F.R. §§ 404.630, 416.340. If a statement meeting the requirements of the
regulations is filed, the Social Security Administration will use the date of the written statement as the
filing date of the application even if the formal application is not filed until a later date. In this case the
protective filing date of February 7, 2011 is listed on the first page of each of the Disability
Determination and Transmittals, dated April 15, 2011. (T. 60, 67).

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (T. 238).
Defendant alleges that plaintiff is claiming disability beginning October 28, 1984.
(Def.'s Br. at 1) (Dkt. No. 17). However, the Disability Field Report indicates
“potential” onset dates of “7/27/09” and “11/17/07.” (T. 237). Plaintiff’s counsel
indicates that although plaintiff alleges that his disabling injury occurred in 1984, his
disability for purposes of Social Security did not begin until January 1, 2008 because
plaintiff engaged in substantial gainful activity from 1984 until the end of 2007.2 (Pl.’s
Br. at 1) (Dkt. No. 13). Thus, plaintiff requests that the court consider the period
between January 1, 2008 to “DATE.” (Pl.’s Br. at 1).
Plaintiff’s claims were denied initially and on reconsideration on November 12,
2009 and March 23, 2010 respectively. (T. 114-18, 119-25, 127-32, 207-209). Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”) which was conducted
by ALJ Robert E. Gale on February 1, 2011. (T. 90-113, duplicate transcript at 537-60).
ALJ Gale held another hearing on June 23, 2011, at which Vocational Expert (“VE”)
Esperanza Distefano testified.3 (T. 33-89, duplicate transcript at 537-60). ALJ Gale
issued an unfavorable decision on September 23, 2011. (T. 13-32, duplicate decision at
473-92). The Appeals Council denied plaintiff’s request for review of the ALJ’s

2

The Disability Field Report contains this explanation for the “potential” onset date. (T. 238).

3

Plaintiff did not appear at the June 23, 2011 hearing, but his attorney was present to crossexamine the VE.
2

decision on May 8, 2012 (T. 1-6, duplicate decision at 493-98). Plaintiff appealed the
Commissioner’s final decision to the United States District Court for the Northern
District of New York, and on October 24, 2012, the parties stipulated to a remand for
further administrative proceedings. (T. 499-502). On November 27, 2012, the Appeals
Council ordered a remand to ALJ Gale for further proceedings. (T. 503-508).
On March 27, 2013, ALJ Gale held a video hearing at which plaintiff and VE
Linda Vause testified. (T. 421-72). On May 17, 2013, ALJ Gale issued an unfavorable
decision, which became the Commissioner’s final decision when the Appeals Council
denied plaintiff’s request for review on September 17, 2014. (T. 393-420, 386-90).
II.

GENERALLY APPLICABLE LAW
A.

Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or
Supplemental Security Income (“SSI”) disability benefits must establish that he or she
is “unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
3

whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the Commissioner
will consider him [per se] disabled . . . . 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.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that his impairment prevents him from performing
his past work, there is a “limited burden shift to the Commissioner” to “show that there
is work in the national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
B.

Scope of Review

In reviewing a final decision of the Commissioner, a court must determine
4

whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to
require an ALJ explicitly to reconcile every conflicting shred of medical testimony).
However, the ALJ cannot “‘pick and choose’ evidence in the record that supports his
5

conclusions.” Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III.

FACTS
Plaintiff was born on February 26, 1965 and was forty-nine years old at the time

of his most recent ALJ hearing on September 17, 2014. In 1984, when plaintiff was
nineteen years old, plaintiff sustained an injury at work in which he crushed his left
hand in a wood-splitter. (T. 750-55). The fingers on plaintiff’s left hand were severed
from his thumb to his ring finger,4 leaving only his pinky finger intact. (T. 750).
Initially, the surgeon attempted to reattach the fingers (T. 751-52), but the implants
were not successful and had to be amputated several days later at the original sites of
the injury. (T. 753-55). Plaintiff is right-hand dominant. As stated above, although
plaintiff’s application indicates that the date of onset of his disability is 1984, the
application also lists a “potential date of onset” in late 2007, and plaintiff states in his
brief that he is only requesting benefits as of the beginning of 2008 because he
acknowledges that he engaged in substantial gainful activity for many years between
1984 and 2007.5 (See Pl.’s Br. at 1).

4

The amputation was “diagonally across the left hand from about 2cm. proximal to the MP
joint of the thumb to just distal to the MP joint of the ring finger. Little finger was intact.” (T. 751).
5

Plaintiff is applying for both Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). The earliest month that SSI benefits may be paid is the month following the month in
which the application for SSI was filed. 20 C.F.R. § 416.335.) Plaintiff was “insured” for purposes of
DIB until June 30, 2013. (T. 399).
6

In addition to plaintiff’s hand injury, plaintiff suffers from a learning disorder,
borderline IQ, and depressive disorder. (T. 400). At plaintiff’s most recent hearing,
plaintiff testified that he finished the ninth grade in school and has also studied auto
mechanics. (T. 427-28). Plaintiff testified that he could still do some car repairs such as
taking out a plug, draining the oil, or replacing a filter. (T. 428). The ALJ asked
plaintiff about all of the work that he had done until 2007, including the skills and
physical requirements involved in each of the jobs. (T. 430-38). Plaintiff testified that
in 2007, he worked for a company in Kentucky. He started as a laborer, but he was
promoted to a foreman’s position in which he supervised fifteen to twenty employees.
(T. 430-32). Prior to that job, plaintiff worked for a company installing hardwood
flooring. (T. 433). Plaintiff stated that he had not worked since 2009. (T. 438).
In response to the ALJ’s questioning, plaintiff stated that the “most significant
medical condition” that keeps him from working is the amputation of the fingers in his
left hand. He specifically testified that “it’s the only thing I got to keep me from
working.” (T. 439). Plaintiff testified that he had never been hospitalized “at all” for
mental health reasons since 1984. (T. 440). He does not attend any mental health
counseling, and is not taking any prescription medications for any mental impairment.
(Id.)
He lives with his brother and sister-in-law. (T. 426-27). He helps his brother by
vacuuming. He can do his own laundry, make meals, take care of his personal hygiene
7

needs,6 and can drive a motor vehicle by himself.7 (T. 441). Plaintiff testified that he
had never been in “rehab” for alcohol, and though he claimed to only smoke marijuana
once or twice per year, he stated that he “smoked a bowl yesterday with a friend.” (T.
443).
Plaintiff testified that he does not read very well, and if he gets papers from the
Social Security Administration, he has a family member read the documents for him.
(T. 444). Plaintiff testified that he was fired from various jobs because he had
disagreements with other employees or supervisors and he often had an “attitude
problem,” particularly when he thought things at work were “unfair.” (T. 432, 445, 44647). Plaintiff claimed that he would see inequity in how people were treated and he
was chastised for mentioning it.8 (Id.) Plaintiff stated that he had a variety of “short”
jobs. (T. 447). Plaintiff also testified that he was often slower than other employees. (T.
446-47).
The VE described plaintiff’s past relevant work based on the plaintiff’s

6

Plaintiff testified that it took him longer to take care of his personal needs, like bathing,
shampooing, and shaving, but that he does it all. (T. 441).
7

In fact, plaintiff testified that the week before the hearing, he drove his brother’s 4-wheeler
around. (T. 441). However, plaintiff also testified that his license was suspended because of failure to
pay child support. (T. 426). He also testified that his “problem” with Social Services was his failure to
pay child support. (T. 447).
8

Plaintiff stated that he was fired from his foreman’s job because he went to the cafeteria when
he was told not to go, and his boss “had to let me go.” (T. 432-33). Plaintiff referred to this as an
“attitude problem.” (T. 446).
8

description of how he performed the job and upon the VE’s knowledge of how the job
is performed in the national economy. (T. 450-51). The VE testified that plaintiff had
transferable skills from his carpenter/woodworking/supervisor position as well as from
his hardwood floor installer position. (Id.) The ALJ asked a hypothetical question, in
which he asked the VE to assume that the plaintiff could lift and carry twenty pounds
occasionally and ten pounds frequently with the right dominant hand, using the left
hand primarily to steady the load being lifted and carried. (T. 452). The hypothetical
further assumed that plaintiff could sit, stand, and walk six out of eight hours; and
could push and pull ten pounds occasionally, but less than ten pounds frequently with
his left hand and upper extremity. (Id.) His right hand and finger dexterity was intact.
Plaintiff could not climb ladders, ropes or scaffolds, but could occasionally climb ramps
and stairs, stoop, kneel, crouch, and crawl. He could constantly reach overhead, and
there were no limits on feeling except for his left hand and fingers. (T. 452-53).
Plaintiff could occasionally handle and feel with his left hand, but never finger with
that hand. (T. 453).
Mentally, plaintiff had a mild limitation in understanding, remembering, and
learning new tasks. (T. 453). He has a mild difficulty with attention, attending to a
routine, and maintaining a schedule. Plaintiff could make “appropriate, simple,
decisions” and interact appropriately with others. The VE testified that plaintiff could
not perform his prior work, but could perform jobs such as bakery worker/conveyor
9

line. (T. 454). The VE testified that there were 235,910 jobs nationally, and 3,880
statewide, but there was no data available for the Binghamton area. (T. 454). The VE
also identified the job of cleaner/housekeeper. (T. 455). Nationally, there were 877,980
jobs in this category, 60,380 statewide, and 490 regionally.
In a second hypothetical, the ALJ added the limitation that plaintiff could only
“occasionally” interact with the public and co-workers, keeping all the other abilities
the same. (T. 455). The VE testified that the two jobs would still be available. (T. 456).
The third hypothetical added further mental limitations including moderate difficulties
in making judgments on simple work-related decisions, marked limitation in
understanding and remembering complex instructions, carrying out complex
instructions, making judgments on complex work-related decisions, and marked
limitations in interacting appropriately with the public. (T. 456). With these additional
limitations, the VE testified that there were no jobs that plaintiff could perform. (T.
457).
Plaintiff’s attorney then questioned the VE regarding the number of jobs that
were available from the first two hypothetical questions. (T. 461-69). The VE testified
that the cleaner/housekeeper position would require “occasional fingering.” (T. 461).
The plaintiff’s attorney asked the VE whether the required “fingering” was “bilateral.”
At first, the VE said “[t]hat would be my understanding,” but then stated that “it’s not
defined as bilateral. It just says occasional fingering.” (T. 461). Plaintiff’s attorney
10

asked/stated that if one did not have the ability to finger “bilaterally,” then “at best
there would be erosion, at worst, there wouldn’t be any jobs.” (T. 462). The VE agreed
with the attorney’s assessment. (Id.)
The plaintiff’s attorney questioned the VE on the specific number of jobs that
would available. (T. 466-67). The plaintiff’s attorney asked the VE if she had
“employment numbers for the entire census group or OES Group that this DOT number
is a part of?”9 (T. 466). The VE stated that the OES Group for the bakery worker job
was “production workers - all other,” and that nationally, there were 235,910 jobs in
this category; and statewide it was 3,880 jobs, but there was no regional data. (T. 467).
However, these numbers apply to 1,587 different DOT titles. Counsel then asked the
VE to narrow the inquiry to the one baker title out of the 1,587 that the VE said plaintiff
could perform. The VE testified that, for that one title only, there would be 261 jobs
nationally and 4 in the state. (T. 467). Plaintiff’s attorney also asked the VE to narrow
the employment numbers for the housekeeper/cleaner position. (T. 462-63). The VE
testified that there were 132,291 jobs nationally; 7,591 in the State; and 74 in the
region. (T. 463).
The plaintiff’s attorney continued to question the VE, and the VE testified that
both jobs would still be available if plaintiff had a less-than-fifth grade reading level.
(T. 468). The VE testified that a 10% reduction in pace would not affect either job, but
9

“OES” stands for “Occupational Employment Statistics.”
11

a 15% reduction in pace would eliminate both jobs. (T. 466). Plaintiff’s attorney then
asked about the bilateral nature of the handling requirements. (T. 469). When handling
was limited to “less than occasional,” the VE testified that the baker title would be
eliminated. (T. 469). Finally, the VE testified that even if plaintiff were limited to no
fingering, but occasional handling, the bakery/worker/conveyer position would still be
available. (T. 470).
Plaintiff does not have any treating physicians for his various disorders, and in
addition to the hospital records associated with plaintiff’s hand injury, the record
consists of a psychological assessment, dated in 1978, from plaintiff’s school,
discussing his learning disability, together with various mental and physical
consultative examinations that were conducted between 2009 and 2013.10 (T. 325-28,
329-31, 333-42, 375-82, 757-61, 766-70, 771-80). Rather than further detailing the
evidence at the outset, relevant details regarding the medical opinion and other
evidence, are discussed below as necessary to address the issues raised by plaintiff.
IV.

ALJ’S DECISION
After finding that plaintiff met the insured status requirement through June 30,

2013, the ALJ noted that despite alleging a disability onset of October 28, 1984,

10

The ALJ noted in his decision that this was plaintiff’s sixth application for disability benefits.
(T. 399). Thus, he has had various consultative examinations throughout the time that he has applied
for benefits.
12

plaintiff engaged in substantial gainful activity for many years after that date.11 (T.
399). The ALJ found the following severe impairments at step 2 of the disability
analysis – status post partial amputation of plaintiff’s thumb and first, second, and third
fingers of plaintiff’s left (non-dominant) hand; asthma; a learning disorder (Not
Otherwise Specified (“NOS”); borderline intellectual functioning; and depressive
disorder (NOS). (T. 400).
In determining severity at step 2, the ALJ first noted that a psychological report
from plaintiff’s school in 1978 revealed that plaintiff’s verbal IQ was 78; his
performance IQ was 92; and his full scale IQ was 84. (T. 400). The report stated that
plaintiff refused to do his assignments, was content to put forth minimal effort, and was
not eligible for placement in special classes. (Id.) The ALJ then reviewed the medical
evidence from plaintiff’s 1984 hospitalization after his hand injury, together with
plaintiff’s subsequent physical consultative examinations. (T. 400-401).
The ALJ discussed plaintiff’s mental impairments by reviewing the consultative
examiners reports by Dr. Wayne Von Bargen, Ph.D.; and Cheryl Loomis, Ph.D. (T.
401-402). The ALJ also found that plaintiff had been “medically managed” for
tendonitis in both arms; insomnia; a history of poly-substance abuse; and “smoking

11

Plaintiff’s counsel has made it clear that plaintiff is only seeking benefits as of January 1,
2008 because of plaintiff’s demonstrated ability to engage in substantial gainful activity prior to that
time. In any event, the ALJ stated that his findings addressed the periods in which plaintiff did not
engage in substantial gainful activity.
13

cessation,” but that none of these conditions were severe. (T. 402).
At step 3, the ALJ found that plaintiff’s impairments did not meet or medically
equal any Listed Impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (T. 402-403). In
making this determination, the ALJ considered Listing 1.02B (Major Dysfunction of a
Joint). (T. 403). Notwithstanding plaintiff’s amputation, he did not meet the
requirements of the listing. The ALJ also considered Listings 3.02 (chronic pulmonary
insufficiency) and 3.03 (asthma). (T. 403). The ALJ found that the plaintiff’s
respiratory condition did not result in spirometry findings that were low enough to meet
the requirements of the listings. (Id.) There was also no evidence to show that plaintiff
experienced the requisite number of asthma attacks required for a listed impairment.
(Id.)
With respect to plaintiff’s mental impairments, the ALJ considered Listings
12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), 12.05 (Intellectual
Disability), 12.06 (Anxiety-Related Disorders), and 12.09 (Substance addiction
disorders). (T. 403-406). The ALJ found that plaintiff has mild restrictions in activities
of daily living; moderate restrictions in social functioning; mild difficulties with
concentration, persistence, and pace; and no episodes of decompensation. (T. 404-405).
Because plaintiff’s mental impairments did cause two “marked” limitations or one
“marked” limitation and repeated episodes of decompensation, each of extended
duration, plaintiff did not meet the “paragraph B” criteria in Listings 12.02, 12.04,
14

12.06 and 12.09 or the “paragraph D” criteria of Listing 12.05. (T. 403). The ALJ also
considered whether plaintiff met the “paragraph C” criteria of Listings 12.02 or 12.04
which require repeated episodes of decompensation (each of extended duration) or a
condition resulting in such a marginal adjustment that even a minimal increase in
mental demands or change in environment would be predicted to cause decompensation
or that the plaintiff was unable to function outside a highly supportive living
arrangement. (T. 405). The ALJ found that plaintiff did not meet these requirements.
(Id.)
The ALJ then considered plaintiff’s cognitive impairments under Listing 12.05,
even though four consultative psychiatric examiners declined to assign a diagnosis of
mental retardation. (T. 405). The ALJ found that the listing requires that in addition to
the significantly sub-average intellectual functioning, Listing 12.05 requires that the
individual demonstrate deficits in adaptive functioning both as a child and as an adult.
(T. 405). The ALJ found that plaintiff has no limitations in adaptive functioning, thus,
he does not meet Listing 12.05. (T. 405-406).
At step 4, the ALJ found that plaintiff has the RFC to perform light work as
defined in the regulations because he is able to lift and/or carry twenty pounds
occasionally and ten pounds frequently with his dominant right hand, although he must
use his left hand primarily to steady the load he lifts with the right. (T. 406). With his
left hand and upper left extremity, however, plaintiff can only push and pull ten pounds
15

occasionally and less than ten pounds frequently. He can never finger with the left
hand. He is able to constantly reach in all directions with both arms, he cannot climb
ladders, ropes, and scaffolds. The ALJ found that plaintiff can occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl. Plaintiff can stand and/or
walk as well as sit for six hours in an eight-hour workday, but he must avoid
concentrated exposure to respiratory irritants. (T. 406). He retains the ability to
understand, remember, learn, and perform new and simple tasks. Although he has a
mild difficulty attending to a routine, maintaining a schedule, and making appropriate
simple work-related decisions, he is able to occasionally interact with the public and
co-workers. (Id.)
In making this determination, the ALJ considered plaintiff’s testimony about the
activities that he could perform, including playing games on a computer; draining the
oil and changing a filter on his car, vacuuming, doing his own laundry, preparing meals,
going shopping, driving four-wheelers, and caring for all of his personal hygiene needs.
(T. 407). Plaintiff testified that he has not participated in any mental health counseling
or treatment since 1984, he takes no medication, and he has not used an inhaler for his
asthma since the mid-1990s. The ALJ pointed out that plaintiff testified that his left
hand is the only thing that keeps him from working. (T. 407). The ALJ found that to
the extent that plaintiff alleged greater limitations, he was not fully credible.
The ALJ engaged in a detailed discussion of plaintiff’s mental impairments and
16

the limitations that they cause, but found that plaintiff has had the same mental and
physical impairments for many years and has been able to work at many different
occupations. (T. 408). The ALJ also noted that plaintiff told a consultative examiner as
late as 2013 that plaintiff “recently” worked at Five Mile Point race track “‘operating
trucks, backhoes, and heavy equipment,” and that he does this “seasonally.” (Id.) In
making his determination regarding plaintiff’s physical abilities, the ALJ relied upon
non-examining physicians, Fernando R. Montoya, M.D. and Sury Putcha, M.D., who is
a board-certified orthopedic surgeon. (T. 409). The ALJ relied upon Dr. Alan Dubro,
Ph.D.’s finding that plaintiff could follow, understand, attend to, and remember
directions and instructions, notwithstanding his mildly impaired attention and
concentration. (Id.) Dr. Dubro also found that plaintiff could interact appropriately
with others and is capable of making appropriate decisions. (Id.) Dr. Iman-Dundon
found that plaintiff was able to complete unskilled to semi-skilled work, “not working
closely with others.’” (Id.)
The ALJ also gave great weight to the school psychologist, Dr. Von Bargan and
Dr. H.M. Bacchus, due to their expertise and the relative consistency of their opinions
with the overall medical evidence. Even though these reports did not include a
function-by-function assessment, Dr. Bacchus stated only that plaintiff “may” have
difficulty with pushing, pulling, and carrying, and he opined that plaintiff retained the
ability to perform light to moderate duties using mainly his upper right extremity. (T.
17

410). Dr. Von Bargen stated that plaintiff was a better visual learner, but did not
identify any specific work-related functional limitations related to the ability to read.
(Id.)
The ALJ gave reduced weight to Dr. Justine Magurno, Dr. Loomis, and Dr.
Moore because their opinions were not fully consistent with the medical evidence and
were based on examinations occurring “well after his current application filing date of
July 27, 2009,” with no medical evidence of a worsening of his condition (Id.) The
ALJ gave no weight to the opinions of Mary Corwin because there is no evidence that
she is an acceptable medical source or that she even examined plaintiff. (T. 410).
Although at step 4, the ALJ found that plaintiff could perform his prior work, it is
conceded by all parties that this was an erroneous finding. However, the ALJ discussed
the VE’s testimony in an alternative holding. (T. 411-13). The ALJ found that plaintiff
could perform the requirements of two “representative occupations” such as Bakery
Worker, Conveyor Line and Cleaner, Housekeeping. The ALJ found that
notwithstanding the cross-examination of the VE by plaintiff’s counsel regarding the
statistics on the number of jobs available, the VE’s opinion was still sufficient evidence
that there were a significant number of jobs available that the plaintiff could perform.
(T. 412). The ALJ discussed the argument that the DOT is obsolete as a source of
vocational information, but the Social Security Regulations still mandate reliance on
the DOT, together with testimony by a VE when necessary. (Id.) Thus, the ALJ found
18

that plaintiff was not disabled.
The Appeals Council declined to accept jurisdiction over the case,
notwithstanding plaintiff’s argument that the VE’s numbers were artificially inflated.
(T. 386-87). The Appeals Council agreed with the ALJ’s finding that, notwithstanding
any possible erosion of the number of jobs mentioned by the VE, there were still
significant numbers of jobs that plaintiff could perform. (T. 387).
V.

ISSUES IN CONTENTION
Plaintiff raises the following issues for this court’s review:
(1)

The ALJ’s RFC assessment is not supported by substantial evidence. (Pl.’s
Br. at 7-17) (Dkt. No. 13).

(2)

The ALJ improperly concluded that plaintiff could perform his past
relevant work. (Pl.’s Br. at 17-20).

(3)

The ALJ erred at step 5 in determining that there were a substantial
number of jobs that plaintiff could perform. (Pl.’s Br. at 20-23).

The defendant concedes that the ALJ’s finding at step 4 that plaintiff could return
to his past relevant work was error. (Def.’s Br. at 13) (Dkt. No. 17). However,
defendant argues that the error was harmless because the ALJ made an alternative
holding at step 5 and argues that the rest of the ALJ’s determination is supported by
substantial evidence. Because the defendant has conceded that the ALJ erred at step 4,
the court will address only plaintiff’s first and third arguments. For the following
reasons, this court finds that the Commissioner’s decision at step 5 is not supported by
substantial evidence and will order a remand for the Commissioner to make a proper
19

determination of whether there are a substantial number of other jobs that plaintiff can
perform.
VI.

RFC
A.

Legal Standards

RFC is “what [the] 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. . . .” A
“regular and continuing basis” means eight hours a day, for five days a week, or an
equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL
252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
conclusory statements regarding a plaintiff’s capacities. Martone v. Apfel, 70 F. Supp.
2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v.
Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460
(W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion,
describing how the evidence supports the ALJ’s conclusions, citing specific medical
20

facts, and non-medical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL
3825629 at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p,
1996 WL 374184, at *7).
B.

Application
1.

Physical Limitations

Plaintiff argues that the ALJ erred in determining that plaintiff could pull up to
10 pounds “occasionally” or less than ten pounds “frequently” with his left hand. (Pl.’s
Br. at 8-10). Plaintiff discusses the meaning of occasionally and frequently and reduces
these abilities to number of hours per day. (Id.) Plaintiff states that “[a]s a matter of
common sense, someone with no thumb or fingers, except for the pinky finger cannot
engage in pulling, cannot pull 10 pounds, and certainly cannot do so frequently.” (Id. at
8). The ALJ did not find that plaintiff could pull 10 pounds frequently. He stated that
plaintiff could pull “up to” ten pounds “occasionally” and “less than ten pounds”
“frequently.”12
The ALJ cited a September 24, 2009 report by Dr. H.M. Bacchus13 who found
that plaintiff’s grip strength was 5/5 on the right, but 0/5 on the left. (T. 330). Plaintiff
had “minimal thumb and pincer movements on the left, and fine finger manipulation

12

Plaintiff may have miswritten the ALJ’s RFC determination in this sentence. In the first
paragraph of his brief, counsel correctly cites the determination that plaintiff could pull up to ten
pounds occasionally and less than ten pounds frequently. (Pl.’s Br. at 8).
13

Other than the surgeon who operated on plaintiff’s hand, plaintiff has no treating physicians
for either his physical or his mental impairments. All of the medical reports in this case have been
generated at the request of the agency in conjunction with plaintiff’s seven applications for disability
benefits since 2006.
21

was absent on the left. (Id.) Nonetheless, Dr. Bacchus found that plaintiff “appears to
retain the functional capacity to perform light to moderate duties, using mainly his
[right upper extremity].” (Id.) He stated that plaintiff “may” have “difficulty with
repetitive pushing, pulling, and carrying.” However, Dr. Bacchus also stated that
plaintiff “appears to have compensated well over the years.” (Id.)
Plaintiff cites Dr. Justine Magurno’s November 6, 2012 consultative report, in
which the doctor found that plaintiff had “marked limitations” for pulling and
“moderate” limitations for pushing on the left, with marked limitations for fine motor
skills on the left. (T. 761). The plaintiff states that the ALJ should have given Dr.
Magurno’s report greater weight and should have determined that plaintiff was unable
to pull with his left hand at all. In determining plaintiff’s RFC, the ALJ did consider
Dr. Magurno’s report, and he stated that “Dr. Magurno’s ‘marked’ left upper extremity
limitations have been accounted for within the above-listed [RFC] assessment.” (T.
410).
The ALJ weighed any conflicting evidence and determined that plaintiff could
pull less than ten pounds frequently. There is no question that plaintiff cannot use the
remaining pinky finger and partial thumb on his left hand to grip and pull. State
Agency reviewing physician, Dr. Fernando Montoya also noted that plaintiff had 0/5
grip strength in his left “hand,” but found 4/5 strength in his “upper extremities.” (T.
358). The ALJ’s statement implies that he did not find that Dr. Magurno’s reference to
“marked” limitations indicated a complete inability to pull. In addition, the ALJ stated
that plaintiff could pull with his left hand and upper left extremity, not only with his
22

left hand. (T. 406). Pulling does not necessarily have to occur by gripping an object,
particularly one that weighs less than ten pounds. As the ALJ stated, Dr. Magurno’s
limitations were considered and factored into the ALJ’s RFC determination.
In addition, the ALJ considered plaintiff’s work history as well as his testimony
about his daily activities. Plaintiff’s injury occurred in 1984, when he was nineteen
years old, but he continued to work at various jobs, until at least the end of 2007, most
of which required a great deal more strength than the jobs cited by the VE at the ALJ
hearing. The ALJ also cited plaintiff’s testimony that he could still drain the oil and
change the filter in his car, vacuum, do his own laundry, prepare meals, go shopping,
drive four-wheelers, and care for his own personal needs. (T. 407). In fact, during
plaintiff’s February 4, 2013 consultative intelligence evaluation by Mary Ann Moore,
Psy. D., – a report that plaintiff argues should have been given more weight – plaintiff
told Dr. Moore that, even though his last “full employment” was in 2007, “over the
summer of 2012, he worked at Five Mile Point Race Track operating trucks, backhoes,
and heavy equipment,” and that he did that “seasonally.” (T. 771). The ALJ was
entitled to take plaintiff’s statements to Dr. Moore into consideration when determining
plaintiff’s RFC and credibility.14 The ALJ noted that plaintiff’s stated activities
involved “many of the same physical and mental functions that the claimant argues that
he cannot perform in a workplace setting.” (T. 408).
It is clear that the ALJ took the conflicting information into consideration when
14

Although plaintiff does not have a specific section of his brief in which he argues that the
ALJ’s credibility determination was flawed, the court notes that plaintiff’s “partial” credibility played a
part in the ALJ’s RFC determination. (T. 407, 408).
23

he determined plaintiff’s RFC, both physical and mental. Weighing conflicting
evidence in making an RFC determination is the province of the ALJ. Veino v.
Barnhart, 312 F.3d at 578, 588 (2d Cir. 2002). In this case, the ALJ analyzed the
conflicting evidence, and his determination that plaintiff could still pull less than ten
pounds frequently with his left hand and upper extremity is supported by substantial
evidence.
2.

Mental Limitations

Plaintiff argues that the ALJ did not properly analyze and include in his RFC, the
limiting effect of plaintiff’s mental impairment when determining that plaintiff could
engage in substantial gainful activity. Plaintiff claims that he has greater than “mild”
limitations in his ability to attend to a routine, maintain a schedule, make appropriate
workplace decisions, and interact with the public and co-workers. Plaintiff also argues
that he cannot adequately deal with workplace stress. In making these arguments,
plaintiff claims that the ALJ improperly weighed the medical opinions. (Pl.’s Br. at 1017).
In determining that plaintiff could make appropriate workplace decisions, the
ALJ relied upon the January 4, 2011 consultative assessment of Dr. Alan Dubro, Ph.D.
(T. 375-82). The ALJ also relied upon the November 19, 2012 non-examining
consultative review by Dr. Iman Dunton, M.D., who found that plaintiff could complete
unskilled to semi-skilled work, not working with others. (T. 532, 762-63). The ALJ
also gave significant weight to the school psychologist, Dr. VonBargen, who performed
intelligence testing when plaintiff was in high school. (T. 323-28, 409-410).
24

The ALJ stated that his RFC determination was consistent with, and supported
by, the observations of the medical sources in the record. (T. 409). Plaintiff does not
question his IQ scores, rather he states that the more recent evidence shows that he has
trouble getting along with co-workers and cannot make appropriate decisions in a work
environment. Plaintiff argues that the ALJ erred in giving more weight to Dr. Dubro’s
2011 report than on the more recent psychological examinations by Dr. Cheryl Loomis
and Dr. Moore. The ALJ gave reports by Dr. Loomis and Dr. Moore less weight
because they were not consistent with the longitudinal medical evidence, and were
based on examinations long after plaintiff’s 2009 application date “with no medical
evidence of a worsening in his condition.” (T. 410). In addition, the ALJ noted that the
limitations in Dr. Loomis’s and Dr. Moore’s reports were taken into consideration in
the RFC evaluation, that the limitation on plaintiff’s socialization does not rise to the
“marked” level, and that the record shows that he interacts well with the medical
personnel during examinations. In addition plaintiff has not received, and does not
currently receive any mental health treatment. (T. 410).
The ALJ’s determination, and the weight that he gave to the doctors’ reports, is
supported by substantial evidence. On January 4, 2011, Dr. Dubro found that plaintiff
could follow, understand, attend to, and remember simple instructions, his attention
span and concentration were “mildly” impaired as was his memory, and his ability to
regularly attend to a routine and maintain a schedule. (T. 377). Dr. Dubro found that
plaintiff was capable of making appropriate decisions. (Id.) Dr. Dubro noted that
plaintiff displayed a history of “moderate” learning disability, but could perform daily
25

tasks independently on a regular basis. (Id.) Dr. Dubro stated that plaintiff “does
interact appropriately with others.” (Id.)
Dr. Loomis’s November 6, 2012 report states that the plaintiff was “cooperative”
though “slightly hostile,” however she found that he had “adequate overall social
skills.” (T. 767). He was coherent and “goal directed” with no evidence of thought
disorder. (T. 768). His attention and concentration were “intact,” and his recent and
remote memory skills were only “mildly impaired.” (Id.) His intellectual functioning
was average to below average, with an “appropriate to experience” fund of knowledge.
(Id.) Dr. Loomis stated that plaintiff “reportedly socializes with friends and family on
occasion,” but that he typically stays home and smokes cigarettes. (Id.) His family
relationships were “okay,” although he did not see his children often, and he reported a
“good” relationship with his brother and sister-in-law. (T. 769).
Dr. Loomis found that plaintiff could follow and understand simple directions
and instructions and perform simple, but not complex, tasks independently. That is not
inconsistent with Dr. Dubro’s report or with the ALJ’s RFC. It is unclear how Dr.
Loomis then determined that plaintiff could not make appropriate decisions, relate
adequately with others, or appropriately deal with stress because in the next paragraph,
she states that “[t]he results of the present examination appear to be consistent with
psychiatric and cognitive problems, but in itself [sic], these do not appear to be
significant enough to interfere with the claimant’s ability to function on a daily basis.”
(T. 769). Dr. Loomis recommended individual psychological therapy, vocational

26

rehabilitation, and possible CASC15 evaluation.
Three months later, on February 4, 2013, psychologist, Dr. Moore consultatively
examined plaintiff. (T. 771-76 (narrative report), 777-80 (mental RFC)). In the
“Background Information” section of Dr. Moore’s report, she wrote that plaintiff
reported working at a race track in 2012, where he operated trucks and heavy
equipment, but that he had an argument with the manager and became “physically
aggressive,” when the manager pushed him. (T. 771). Plaintiff reported that he lost
“numerous” jobs because of his attitude, “throwing objects,” and becoming verbally
aggressive.
The court notes that this is the first time that plaintiff has reported such
aggression. While he testified that he lost jobs due to his “attitude,” he testified at his
2011 hearing that he lost his foreman job in 2007 because he wanted to go and say
goodbye to some women when he was told not to go.16 (T. 100). He also testified at his
2013 hearing that he would develop an “attitude” problem when he thought that he and
others were not being treated fairly. (T. 446-47). Plaintiff also reported for the first
time to Dr. Moore, contrary to all other reports, that he “believes” that he was
psychiatrically hospitalized in the early 1990s after an attempted overdose. (T. 771).
He told Dr. Moore that he was hospitalized for “a week or two,” and given medication,
the name of which he could not remember. (Id.) However, plaintiff then stated that he

15

“CASC” refers to “Credentialed Alcoholism and Substance Abuse Counseling. https:/www.
oasis.ny.gov/sqa/credentialing/CASACreq.cfm.
16

Plaintiff testified that he was fired because he “didn’t listen.” (T. 100).
27

never received any outpatient counseling or psychiatric treatment after that time. (Id.)
Plaintiff’s statements about his overdose attempt, psychiatric hospitalization, and
substance abuse were contrary to all the previous statements that he made to medical
personnel. In the section of Dr. Loomis’s report entitled “PSYCHIATRIC HISTORY,”
the first entry reads – “Hospitalizations: None.” (T. 766). He also told Dr. Loomis that
he drank alcohol on occasion and “rarely” used marijuana and cocaine “years ago,”
while he told Dr. Moore that he began drinking as a teenager, and that in the 1990s, he
drank from “sun up to sun down,” including at work, where he would often drive heavy
machinery while intoxicated. (T. 767). Dr. Dubro also reported that plaintiff’s only
hospitalization was for his hand injury, and his inability to work was due to his
“learning disability.” (T. 375). Plaintiff told Dr. Moore that he had “anger issues,” and
that was part of the psychological reason that he could not work. (T. 771). Plaintiff also
told Dr. Moore and Dr. Loomis that he spent 18 months in jail for robbery in 1984,
while he denied any “Legal History” in Dr. Dubro’s report.17 (T. 376).
Plaintiff’s counsel argues that plaintiff’s mental health has gotten worse.
However, it appears that what was getting worse was the description of his mental
health history to the psychologists. The plaintiff’s new explanation of why he was fired
from previous jobs and the description of his allegedly violent legal past could certainly
influence the psychologists’ findings regarding plaintiff’s ability to relate to others, his
insight, his judgment, and his ability to make appropriate decisions.
17

Plaintiff testified in his 2011 hearing tht he had been convicted of Robbery and spent 18
months in prison. (T. 108-109). Plaintiff also told Dr. Loomis and Dr. Moore that he spend 30 days in
jail for failure to pay child support. (T. 767, 772).
28

The ALJ weighed the medical opinions, and in addition to weighing the opinions,
determined that plaintiff was only partially credible. The ALJ did not doubt that
plaintiff had physical and psychiatric symptoms, he simply doubted the extent and the
intensity of those symptoms. The ALJ noted that in Dr. Moore’s opinion, she stated
that although plaintiff’s eye contact was “poor initially,” it “became more appropriate
as the session progressed.” (T. 772). Dr. Moore stated that plaintiff was “generally
cooperative,” and although he appeared “somewhat irritable” and cursed occasionally,
it was “never directed toward [Dr. Moore].” (T. 773). He completed all the tasks
without questioning, and “he did not evidence significant emotional distress during the
evaluation.” (Id.) Dr. Moore determined that plaintiff was functioning in the borderline
range of intellectual ability. (T. 774).
Dr. Moore concluded that plaintiff could follow and understand simple directions
and instructions, could perform simple rote tasks with supervision, and could
consistently perform simple tasks. He showed difficulty with attention and
concentration, and his memory was impaired, but he could learn simple tasks. She
stated that he “may” have difficulty with complex tasks.
Although Dr. Moore stated that plaintiff became “easily overwhelmed” and had
“difficulty dealing with stress,” that statement is not consistent with her observation
that plaintiff completed all tasks without questioning and did not evidence significant
emotional distress during the evaluation. There is no statement that plaintiff ever
became “overwhelmed” during the examination. Dr. Moore noted that her opinion
regarding plaintiff’s difficulty relating adequately with others was based on his reported
29

“long history of anger and verbal and physical aggression toward others.” His “anger”
as well as his learning disability “may” cause problems with making appropriate work
decisions and maintaining a regular schedule. (T. 775). Plaintiff’s “long history” was
evidenced only by his own description. Plaintiff’s characterization of his previous
symptoms seemed to get increasingly serious every time he spoke to a new
psychological evaluator. Dr. Loomis and Dr. Moore’s contemporaneous observations
did not support many of their conclusions regarding plaintiff’s mental health
limitations.
It is true that the ALJ did not consider plaintiff’s alleged inability to deal with
workplace stress. The court notes that Dr. Loomis and Dr. Moore found that plaintiff
could not adequately deal with stress, and Dr. Moore found that plaintiff was easily
overwhelmed. However, as stated above, the ALJ gave reduced weight to these two
reports. The court finds that although both psychologists found that he could not
handle stress and/or became easily overwhelmed, neither psychologist observed such a
condition during the examination. In fact, Dr. Moore noted that although plaintiff
needed repetition of some questions, his style of responding was “at times careful, at
times careless, at times he worked with a great deal of reflection. At other times he
worked more rapidly. He did show some distractability. . . . He did not evidence
significant emotional distress during the evaluation.” (T. 773). There is no evidence
that plaintiff was overwhelmed during the testing or during any part of the evaluation.
Thus, it is unclear how Dr. Moore determined that plaintiff was easily overwhelmed.
Dr. Dubro did not mention that plaintiff would have trouble with stress in his
30

2011 report. Dr. Dubro stated that plaintiff was mildly impaired in recent and remote
memory skills secondary to distractibility “associated with nervousness evident when
the claimant was asked to perform these tasks.” (T. 377). Notwithstanding this
distractibility and nervousness, Dr. Dubro found that plaintiff’s insight was “good” and
his judgment was fair. (T. 377). Dr. Dubro found that plaintiff could follow
instructions, and could perform simple and complex tasks, and that he interacted
appropriately with others. Secondary to his “learning disability,” he might have mild
difficulty in his ability to regularly attend to a routine and maintain a schedule.
Because the ALJ gave Dr. Dubro’s report great weight, the ALJ did not include a
reference to stress in his RFC. However, given the description of plaintiff’s abilities in
the RFC, the ALJ clearly determined based upon Dr. Dubro’s report, that plaintiff could
handle the “stress” of working. Neither Dr. Dubro, nor Dr. Loomis found that
plaintiff’s impairment interfered with his ability to function on a daily basis. (T. 37778). Plaintiff cites Social Security Ruling (“SSR”) 85-15, which states that “[a]ny
impairment-related limitations created by an individuals response to the demands of
work must be reflected in the RFC. However, Dr. Dubro did not find that plaintiff was
limited by stress, and the ALJ did not err in failing to include such a limitation in his
RFC.
SSR 85-15 is entitled “The Medical-Vocational Rules as a Framework for
Evaluating Solely Nonexertional Impairments.” It has been held that SSR 85-15 does
not apply in cases, such as this one, where both exertional and non-exertional
limitations are present. See Slattery v. Colvin, No. 14-CV-6402, 2015 WL 3961159, at
31

*12 (W.D.N.Y. June 29, 2015) (citing Roma v. Astrue, 468 F. App’x 16, 20 (2d Cir.
2012)). In any event, even if 85-15 were applicable to this case, the ALJ included
plaintiff’s possible stress-based limitations in his RFC by limiting him to jobs involving
simple tasks and only occasional contact with the public and co-workers. (T. 406). In
Slattery, the ALJ’s RFC limited the plaintiff to unskilled work involving simple
instructions where interactions with others are routine, superficial, and incidental to the
work performed. The court found this assessment was “consistent” with the doctor’s
opinion that plaintiff would have difficulty performing complex tasks, relating
adequately with others, and appropriately dealing with stress. Id. at *13. In Slattery, the
court held that the ALJ was not required to specifically and separately address
plaintiff’s ability to handle stress when the stress-based limitations were reflected in the
RFC.
Plaintiff has never had any psychiatric treatment, thus, there are no treating
physicians in this case. All of the psychological reports were submitted by consultative
medical sources. Although plaintiff argues that the opinions of Dr. Loomis and Dr.
Moore should be given greater weight because their reports are more “recent,” the
plaintiff is requesting benefits as of 2008, three years before Dr. Dubro’s report, four
years prior to Dr. Loomis and Dr. Moore’s reports.18 Dr. Dubro’s report is within the
time period of plaintiff’s application and thus, the ALJ was justified in considering it
and giving it the weight that he did. The ALJ’s RFC is supported by substantial
evidence.
18

As stated above, Dr. Loomis’s and Dr. Moore’s reports were written only three months apart.
32

VII. VE/SIGNIFICANT NUMBER OF JOBS
A.

Legal Standards

If a claimant is unable to perform a full range of a particular exertional category
of work, or the issue is whether a claimant’s work skills are transferable to other jobs,
then the ALJ may utilize the services of a vocational expert. 20 C.F.R. §§ 404.1566,
416.966. A vocational expert may provide testimony regarding the existence of jobs in
the national economy and whether a particular claimant may be able to perform any of
those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176,
180 (8th Cir. 1988); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983).
If the ALJ utilizes a VE at the hearing, generally, the VE is generally asked a
hypothetical question that incorporates plaintiff’s limitations. Although the ALJ is
initially responsible for determining the claimant’s capabilities based on all the
evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a
hypothetical question that does not present the full extent of a claimant’s impairments
cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of
Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.
Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be
“substantial record evidence to support the assumption upon which the vocational
expert based [her] opinion.” Dumas, 712 F.2d at 1554. See also Peatman v. Astrue, No.
5:10-CV-307, 2012 WL 1758880, at *7 n.5 (D. Vt. May 16, 2012) (the hypothetical
question posed to the VE must accurately portray the plaintiff’s physical and mental
impairments) (citations omitted); Green v. Astrue, No. 08 Civ. 8435, 2012 WL
33

1414294, at *18 (S.D.N.Y. April 24, 2012) (citing Dumas, 712 F.2d at 1553-54).
B.

Application

As stated above, the ALJ initially found that plaintiff could perform his prior
work, which all parties agree was error. However, the ALJ also proceeded to step 5 of
the sequential analysis and utilized a VE to determine that plaintiff could perform a
significant number of occupations in the national economy. Plaintiff argues that the
number of jobs cited by the VE for one occupation was not a “significant number,” and
argues that the plaintiff cannot perform the physical requirements of the other
occupation.
1.

Number of Jobs

Courts have held that a “significant number” of jobs is “fairly minimal.” Rosa v.
Colvin, No. 3:12-CV-170, 2013 WL 1292145, at *9 (N.D.N.Y. March 27, 2013) (citing
Fox v. Comm’r of Soc. Sec., No. 6:02-CV-1160, 2009 WL 367628, at *20 (N.D.N.Y.
Feb. 13, 2009)). Defendant argues that in Bavaro v. Astrue, the Second Circuit held
that the Commissioner need only show “one” job existing in the national economy that
plaintiff could perform. Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011).
Bavaro does not support defendant’s argument in this case. While it is true that the
court in Bavaro held that the Commissioner need only show that plaintiff could perform
one type of job, the court was not discussing whether the particular job existed in
“significant numbers” in the national economy. Id. See also Sullivan v. Astrue, No. 08CV-6355, 2009 WL 1347035, at *15 & n.15 (W.D.N.Y. May 13, 2009) (single job is
sufficient if it exists in “significant numbers”).
34

Although the court in Bavaro did hold that the Commissioner need only show
one job existing in the national economy, the court stated that “[a] vocational expert
testified to the existence of such jobs at the national and regional level.” Id. Thus,
although the court was referring to one occupation (photo counter clerk), that one
occupation existed in significant numbers in the regional and national economy. The
court never mentioned how many of the photo counter clerk positions there were in the
national and regional economy. Id. Apparently, the numbers were significant,
notwithstanding “the [alleged] decline of the photofinishing industry.” 413 F. App’x at
384.
In this case, at the 2013 hearing, the VE discussed two jobs that she determined
that plaintiff could perform with the RFC as stated in the ALJ’s hypothetical question –
Bakery Worker, and Housekeeper/Cleaner, both light work jobs. As to the Bakery
Worker, plaintiff claims that the ALJ misrepresented the number of jobs that were
available to plaintiff. (Pl.’s Br. at 20). The VE originally testified that the “employment
numbers for this occupational group nationally is 235,910, and statewide is 3,880,” but
there was no data available for the Binghamton region where plaintiff lives. (T. 454).
Plaintiff’s counsel questioned the VE further, and she ultimately testified that the
numbers she gave were for the 1,587 different job titles within the DOT classification.
(T. 467). Plaintiff’s counsel asked if there were numbers for just the one baker title out
of 1,587 that plaintiff could perform, and the VE stated that the national number for the
one job was 261, and the state-wide number was 4. (Id.)
Plaintiff argues that this number is not substantial. This court agrees. In
35

Koutrakos v. Colvin, Magistrate Judge Joan Margolis discussed the “significant
numbers issue” and reviewed the some of the case law discussing whether “significant
numbers” existed. Koutrakos v. Colvin, No. 3:13-CV-1290, 2015 WL 1190100, at *2022 (D. Conn. Mar. 16, 2015). Magistrate Judge Margolis first pointed out that
“[n]either the Social Security Act, nor the Commissioner’s Regulations or Rulings
provide a definition for a ‘significant’ number of jobs.” Id. at *21. The court is
generally guided by numbers that have been found “significant” in other cases. Id.
(citing Schadenfroh v. Colvin, No. 09-CV-223, 2014 WL 1260123 (S.D. Ind. Mar. 27,
2014)).
Significant numbers include 408 jobs in the regional economy and 98,008 jobs in
the national economy; and 180 jobs in the regional economy and 40,027 jobs
nationally. Barbato v. Astrue, No. 09-CV-6530, at *7 (W.D.N.Y. July 7, 2010) (citing
Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993) (1400 jobs was significant)19 (citing
cases); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (174 jobs in the local
economy, 1600 in the state, and 80,000 in the national economy were significant);
Dumas v. Schweiker, 712 F.2d 1545, 1549, 1553-54 (2d Cir. 1983) (150 jobs in the
local economy and 112,000 in the national economy)). In Fox, supra, the court found
that 200 surveillance system monitor jobs in the Central New York Region were
significant. See also Roe v. Colvin, No. 1:13-CV-1065, 2015 WL 729684, at *7

19

Although the court in Lee did not specify that it was referring to the “local” economy, the
case that it cited for the proposition that 1350 jobs was “significant” was a case in which the number
was referring to numbers in the local economy. 988 F.2d at 794 (citing Hall v. Bowen, 837 F.2d 272,
275 (6th Cir. 1988)).
36

(N.D.N.Y. Feb. 19, 2015) (630 jobs locally and 44,000 nationally was significant);
McCusker, 2014 WL 6610025, at *3 (100 jobs in the Capital Region; 2,250 in New
York State, and 74,470 nationally was significant); Gray v. Colvin, No. 12-CV-6485,
2014 WL 4146880, at *6 (W.D.N.Y. Aug. 19, 2014) (60 jobs regionally, but over
16,000 nationally was significant).
In Vining v. Astrue, 720 F. Supp. 2d 126, 136 (D. Me. 2010), the court found that
“assuming” that 30 jobs in the state of Maine is not a “significant” number in the region
where plaintiff lives,” 11,000 nationwide was a “significant number in several other
regions of the country.” However in Leonard v. Heckler, 582 F. Supp. 389, 391 (M.D.
Pa. 1983), the court held that 4,000 to 5,000 jobs nationwide was not a significant
number, given that it was “a minuscule fraction of the number of jobs existing in the
national economy.” The court in Vining estimated that “numbers of jobs in the ballpark
of 10,000 to 11,000 nationwide have been held ‘significant.’” 720 F. Supp. 2d at 136
(citing inter alia Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (200 jobs in Iowa
and 10,000 nationally was significant); McGee v. Astrue, No. 08-831, 2009 WL
2841113, at *6 n.14 (W.D. La. Aug. 28, 2009) (150 jobs in Louisiana and 18,760
nationally was found significant)). In Beltran v. Astrue, 700 F.3d 386, 389-90 (9th Cir.
2012), the court found that 135 regional jobs and 1,680 national jobs was not
significant. The court specifically stated that “[a]lthough 1,680 jobs might seem a
‘significant number’ standing alone, distributing these jobs between several regions
across the nation shows that it is not ‘significant’ after all.”
Based upon the case law above, 261 jobs nationally would not be considered a
37

significant number. Plaintiff argues that the ALJ did not even mention the reduced
number to which the VE testified. While the ALJ did not mention the reduced numbers
specifically, he stated that he gave “due consideration to the cross-examination of the
[VE] by the claimant’s representative.” (T. 412). The ALJ concluded that “even though
the statistics regarding the available number of jobs cited by the [VE] apply to large
classifications containing multiple job titles, the [VE’s] opinion is still sufficient
evidence that there are a significant number of jobs in the national economy that
claimant could perform.” (Id.) Thus, it is clear that the ALJ did consider the reduction
in jobs to which the VE testified, and although this court finds that the bakery worker
numbers are not significant, even the “reduced” numbers for the Housekeeper/Cleaner
position are significant.20
20

Recent cases have extensively discussed the issue of a “significant number of jobs.” See
Vandermark v. Colvin, No. 3:13-CV-1467, 2015 WL 1097391, at *12-17 (N.D.N.Y. Mar. 11, 2015)
(adopting Rep.-Rec.) In Vandermark, the plaintiff challenged the number of jobs cited by the VE. The
court noted that the DOT “lists skills and occupations and establishes skill levels and exertional
capacities required to perform . . . jobs.” Id. at *12. The DOT codes are useful for determining the
“type” of work that a disability applicant can still perform, but the DOT only defines jobs, it does not
report how many such jobs are available in the national economy, and a VE must obtain additional
information to determine whether the positions exist in the national economy in significant numbers.
Id. (citing Brault, 683 F.3d at 446-48). The methods by which this additional information is obtained
has been challenged in other circuits. Vandermark, 2015 WL 1097391 at *13 (citing Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)). However, in Bayliss, the court determined that the
VE’s expertise provides the necessary foundation for accepting his or her testimony. Id. The court in
Brault ultimately determined that the ALJ did not have to find specific numbers of jobs, all he had to
do was find that “substantial positions exist.” Id. (citing Brault, 683 F.3d at 450). In Kennedy v.
Astrue, 343 F. App’x 719, 722 (2d Cir. 2009), the court noted that although the VE acknowledged that
the data on which she relied in determining the existence of ‘charge account clerk’ positions in the
DOT “also encompassed approximately 59 other DOT titles, viewed in context, it is apparent that the
expert arrived at her figures for charge-account clerk positions by discounting from the total number
for all 60 DOT titles.” Id. (emphasis in original). In Fox v. Commissioner of Soc. Sec., No. 6:02-CV1160, 2009 WL 367628, at *3 (N.D.N.Y. Feb. 13, 2009), Magistrate Judge Randolph Treece found for
the Commissioner where the VE testified that he could not report the exact number of surveillance
system monitor jobs available in the economy because no publication listed that figure although
38

With respect to the Housekeeper/Cleaner position, the national number for the
“one” DOT code identified by the VE was 132,291, the state-wide number was 7,594,
and the regional number was 74. (T. 463). Although this was certainly a reduction from
the original numbers which were 877,980 jobs in the national economy, 50,380 jobs
state-wide, and 490 jobs in the region, the new numbers were still a significant amount
of jobs for purpose of step 5 of the disability analysis. See e.g. Dumas, 712 F.2d at
1549, 1553-54 (150 jobs in the local economy and 112,000 in the national economy);
Roe, No. 1:13-CV-1065, 2015 WL 729684, at *7 (630 jobs locally and 44,000
nationally was significant).
2.

Ability to Perform Housekeeper/Cleaner Job

Plaintiff recognizes that the numbers for the Housekeeper/Cleaner are significant.
However, plaintiff also argues that the VE “testified” that the housekeeper/cleaner job
required occasional fingering that would be “bilateral and constant.” (Pl.’s Br. at 22).
Plaintiff argues that because he obviously could not finger with his left hand, the entire
DOT title would be eliminated. (Id.) Plaintiff claims that the VE agreed that if plaintiff
could occasionally handle with the left hand, but never finger with the left hand, the
housekeeping jobs would be eliminated. (Pl.’s Br. at 22) (citing T. 469, 470).
The court would point out that the ALJ’s hypothetical question took into account

surveys conducted by the Department of Labor and the State showed 132,980 “protective service” jobs
in the national economy and 200 in New York State. The VE in Fox stated that based upon his best
estimate, the number of “surveillance system monitor” jobs was a “‘small percentage lower.’” Id.
Judge Treece found that even if the number of jobs cited by the VE were reduced by a “small
percentage,” the number would still be significant. Id. In this case, however, the revised number stated
by the VE in response to counsel’s question regarding the Bakery Worker position was not
“significant” according to previous case law.
39

plaintiff’s inability to finger with the left hand and only occasionally handle with the
left hand, while having the ability to constantly handle, finger, and feel with the right
hand. (T. 453). In fact, the ALJ repeated “occasionally handle and feel with the left
hand, but no fingering with the left hand.” (T. 453). With these clear limitations, the
VE specified the bakery worker, conveyer belt and housekeeper/cleaner jobs. (T. 45455).
Plaintiff’s counsel’s first question asked the VE to assume greater mental
limitations, to which the VE responded that the jobs would be eliminated. However, as
stated above, the ALJ’s RFC regarding plaintiff’s mental limitations is supported by
substantial evidence, and plaintiff’s attempt to add “marked” limitations to the
hypothetical cannot succeed. Then plaintiff’s counsel asked about the amount of
“fingering” required in the housekeeper/cleaner job. (T. 461). The VE stated that
fingering would be “occasional.” Plaintiff’s counsel asked: “Okay, and that’s bilateral,
correct?” To which the VE first responded “That would be my understanding . . . .
constantly.” (Id.)
However, the VE then stated: “Well – that depends, I guess. I can’t – I – I can’t –
it’s not defined as bilateral. It just says occasional fingering.” (Id.) (emphasis added).
Then the VE agreed that if plaintiff could not occasionally finger with his left hand,
“there would be erosion, at worst, there wouldn’t be jobs, correct?” (T. 462). The VE
stated that this was “correct,” and plaintiff’s counsel asked/stated “And there would be
no way to say how much the erosion was, is that correct?” The VE agreed that was
correct. (Id.)
40

Later, plaintiff’s counsel attempted to further limit the RFC by asking the VE if
the housekeeper/cleaner job would still be available if plaintiff could not occasionally
“handle” with his left hand. (T. 469). In this case, the VE stated that the inability to
occasionally “handle” with his left hand would “eliminate the housekeeper/cleaner job.
(T. 469). The ALJ then attempted to clarify the VE’s testimony and asked about
handling with the left hand. He asked the VE whether there would be “any significant
erosion” to those two jobs if the individual had no limitation on the right, could
occasionally handle with the left, but never finger with the left. (T. 469-70). The VE
testified that the Bakery worker/conveyer line would “still be a job” that would fit into
the RFC. (T. 470). The VE never specifically answered the question about whether
there would be “significant erosion,” of the Housekeeper/Cleaner jobs. Instead the VE
stated that the bakery worker job would still be available, which could imply that the
Housekeeper/Cleaner positions were either significantly eroded or “eliminated.”
When plaintiff raised this issue in the Appeals Council, the Administrative
Appeals Judge stated that “the vocational expert testified that the occupation base
would only be eroded but not eliminated.” (T. 387) (citing Hearing Recording at
4:49:40 p.m.) Although it is unclear where to what exact testimony the Appeals
Council is citing because the court does not have the recording, and the transcript does
not have exact time references, the VE testified as follows:
Q

So if he can’t do that with his left hand then at best
there would be erosion, at worst, there wouldn’t be any
jobs, correct?

A.

Correct.
41

Q

And there would be no way to say how much the
erosion was, is that correct?

A.

Correct.

(T. 462). Later, in the testimony, counsel again brought up the issue of handling with
the left hand. (T. 468-469). In an attempt to clarify the situation, the ALJ also asked
additional questions:
ALJ: Okay, well again, to just cover this handling with
the left hand? Would jobs that – the two jobs
that you identified if they could occasionally
handle with the left and and the only limitation is
fingering to the left hand could never, and there’s
no limitation to the right hand, would there be
any significant erosion to those two jobs based
on your professional opinion?
VE: Okay, so you’re limiting – I’m sorry, you’re limiting –
there’s – you’re saying there’s no fingering, but
occasional handling?
ALJ: And feeling, to the left hand?
VE: And feeling, okay. Bakery worker/conveyer line would
be – still be a job. That would – fit into that RFC. Let
me check real quick. Okay, and you’re saying
occasional?
ALJ: Yes.
VE: Feeling. I just want to make sure I’m clear before I
give my –
(T. 470). The rest of the discussion involved the VE attempting to make sure that the
Bakery worker position would still be available, and the ALJ stated that with the left

42

hand there was only occasional handling and feeling, but no fingering, while he could
constantly do all of these functions with his right hand. (T. 470). The VE again
mentioned that there was no defining “which hand,” and the ALJ told the VE not to
“speculate.” (T. 471). The VE then stated that she was “not really able to identify that
based on that.” (Id.)
There was no further questioning either by the ALJ or by plaintiff’s counsel. (T.
471). As stated above, there are not significant numbers of bakery worker jobs, and
there would have to be a very significant erosion to eliminate the Housekeeper/Cleaner
classification as having a significant number of jobs. However, based on the equivocal
testimony of the VE, it is impossible to determine whether the number of jobs cited by
the VE would be significantly eroded or eliminated, given plaintiff’s inability to finger
with the left hand. Thus, the Commissioner’s determination at step 5 is not supported
by substantial evidence and must be reversed.
VIII. NATURE OF REMAND
A.

Legal Standards

Remand to the Commissioner for further development of the evidence is
appropriate when there are gaps in the administrative record or where the ALJ has
applied an improper legal standard. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.
1999). Reversal for calculation of benefits is appropriate only if the record contains
persuasive proof of disability and a remand for further evidentiary proceedings would
serve no useful purpose. Id.

43

B.

Application

In this case, although the ALJ’s “alternative” step 5 determination is not
supported by substantial evidence, it is completely unclear that plaintiff would not be
able to return to some substantial gainful activity, given his stated activities and his
ability to work for many years after his injury. Even though the VE’s numbers for one
particular Bakery worker job were not substantial, it is not clear that the VE believed
that plaintiff could only perform one job out of the more than 1,500 jobs in the related
DOT category. The testimony regarding the Housekeeper/cleaner position became very
confused, and based upon counsel’s cross-examination, it appeared that plaintiff could
not perform the job. However, it is not clear that there are no other categories of jobs
that plaintiff could perform with only one hand, or that do not require both hands at all
times. The court notes that the loss of one arm or one hand, by itself, does not
necessarily rise to the level of disability for purposes of the act. See Laine v. Comm’r of
Soc. Sec., No. 07 Civ. 1251, 2013 WL 2896968, at *16, 23 (S.D.N.Y. June 13, 2013)
(VE first testified that the lack of bilateral dexterity would narrow the base of light
work, but there were still jobs that plaintiff could perform. The VE also testified that
his answer would not change even if the individual had “no use at all of the right upper
extremity,” because the VE chose jobs which “a person could perform with one arm.);
McAndrew v. Heckler, 562 F. Supp. 1227, 1232 n.2 (S.D.N.Y. 1983) (citing cases).
Thus, this court will order a remand for additional vocational testimony.21
21

The court understands that the ALJ found that plaintiff could “pull” less than ten pounds
frequently with his left hand and upper extremity, indicating that plaintiff would not necessarily need
to use his hand to pull small objects weighing less than ten pounds. However, on remand, the
44

WHEREFORE, based on the findings above, it is
ORDERED, that the decision of the Commissioner is REVERSED, and the
plaintiff’s case is REMANDED PURSUANT TO SENTENCE FOUR OF 42 U.S.C.
§405(g) for further vocational evidence as discussed above, and it is
ORDERED, that the Clerk enter judgment for PLAINTIFF.
Dated: October 13, 2015

Commissioner should also consider and weigh any specific evidence regarding plaintiff’s ability to pull
with his left upper extremity and discuss that limitation with the VE in addition to asking the VE to
consider in the alternative, whether there are a significant number of jobs that plaintiff could perform if
he had the use of only the right hand for pulling, or if he had the use of one hand alone for all functions
(i.e. no pulling or pushing with the left hand).
45