Wheeler v. Colvin

Filing 16

MEMORANDUM-DECISION and ORDER. It is ORDERED that the Commissioner's decision be REVERSED, and the case be REMANDED pursuant to sentence four of 42 U.S.C. 405(g) for further administrative proceedings. Signed by U.S. Magistrate Judge Andrew T. Baxter on 3/7/2016. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DAVID WHEELER,
Plaintiff,
v.

3:15-CV-105
(ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

PETER A. GORTON, ESQ., for Plaintiff
DAVID L. BROWN, Special Asst. U.S. Attorney, for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
by the Honorable Mae A. D’Agostino, United States District Judge, by Order dated July
24, 2015 (Dkt. No. 14), in accordance with the provisions of 28 U.S.C. § 636(c), Fed.
R. Civ. P. 73, N.D.N.Y. Local Rule 73.1, and the consent of the parties.
I.

PROCEDURAL HISTORY
On October 16, 2012, plaintiff filed an application for Disability Insurance

Benefits (“DIB”), claiming disability beginning on May 24, 2012. (Administrative
Transcript (“T”) 147-48). The application was denied initially, and plaintiff requested a
hearing which was held on January 8, 2014, before Administrative Law Judge (“ALJ”)
F. Patrick Flannagan. (T. 27-74). On June 27, 2014, ALJ Flannagan issued a decision
denying benefits. (T. 10-20). The ALJ’s decision became the final decision of the

Commissioner when the Appeals Council (“AC”) denied plaintiff’s request for review
on January 6, 2015. (T. 1-4).
II.

GENERALLY APPLICABLE LAW
A.

Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that he 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
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
2

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 disabled without considering
vocational factors such as age, education, and work experience . . . .
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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 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 her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
B.

Scope of Review

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

3

“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 explicitly analyze every piece of conflicting evidence
in the record. 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 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’s brief includes a summary of most of the medical and testimonial

evidence in the record. (Pl.’s Br. at 1-5) (Dkt. No. 13). Defendant has only
incorporated the “procedural statement” contained in the first two pages of plaintiff’s
brief, and has instead relied heavily on the ALJ’s findings. (Def.’s. Br. at 1, 3-4). The
4

court will incorporate the facts as stated by both plaintiff and the ALJ with additions
and exceptions as noted below in discussing the specific issues raised by plaintiff.
IV.

ALJ’S DECISION
The ALJ determined that plaintiff met the insured status requirement for

disability benefits through December 31, 2015. After finding at step one of the
disability analysis, that the plaintiff has not engaged in substantial gainful activity since
the alleged May 24, 2012 onset date, the ALJ found that plaintiff had the following
severe impairments at step two: degenerative disc disease of the cervical and lumbar
spine, degenerative joint disease of the left knee, degenerative joint disease of the right
shoulder, status post September 2012 arthroscopic shoulder repair, and chronic
obstructive pulmonary disease (“COPD”). (T. 12).
The ALJ found that although plaintiff has been “medically managed” for alcohol
abuse, cirrhosis of the liver, history of alcoholic cardiomyopathy, abdominal pain, right
wrist fracture, unspecified sleep apnea, gastroesophageal reflux disease (“GERD”),
syncope secondary to dehydration, and acute eye injury due to bleach, these
impairments were not “severe” within the meaning of the regulations.1 (T. 13). Finally,
1

Plaintiff had a “mildly” enlarged liver, with diffuse fatty infiltration, but there was no
evidence of a “focal mass,” his cirrhosis was “stable,” and his abdominal pain was “improved.” (T. 13)
(citing Ex. 2F at 18, T. 376). Plaintiff had no history of jaundice, bleeding episodes, or any other liver
complications. (T. 13) (citing Ex. 5F at 1, T. 430). Plaintiff’s wrist fracture had fully healed, Dr.
Gilbert Jenouri’s consultative examination showed that plaintiff’s hand and finger dexterity were
intact, and he had full bilateral grip strength. (T. 13) (citing Ex. 5F at 1, 4, T. 430, 433). Plaintiff’s
sleep apnea was never investigated or medically determined. (T. 13) (citing Ex. 2F at 18, 36, T. 376,
394).
5

the ALJ found that plaintiff’s depression was “minor,” and it did not impair his
“functionality.” (T. 13) (citing Ex. 4F at 1-5, T. 425-429). The ALJ did state that, even
though he found that some of plaintiff’s impairments were not “severe,” the “limiting
effects of all of the claimants’ physical impairments were considered in determining the
claimant’s [RFC].” (T. 13). With respect to plaintiff’s mental impairment, the ALJ
considered the “four broad functional areas” listed in the regulations for evaluating
mental disorders and found that plaintiff’s mental impairment caused no more than
“mild” limitations in the first three areas, with no episodes of “decompensation” for the
fourth area. (T. 14-15).
At step three, the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or equaled the severity of a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1. (T. 15-16). The ALJ compared plaintiff’s
impairments to Listing 1.02A or 1.02B (major dysfunction of a joint), 1.04 (disorders of
the spine), 3.02 (chronic pulmonary insufficiency), and 3.03 (asthma). (T. 16).
The ALJ determined that plaintiff had the RFC to perform light work because he
could lift and/or carry twenty pounds occasionally and ten pounds frequently.2 (T. 16).
Plaintiff could stand and/or walk for six hours in an eight-hour work day and could sit
for six hours in an eight-hour work day. (Id.) Plaintiff could occasionally climb,

2

As discussed below, the ALJ expressed a slightly different RFC with respect to lifting when
he asked the VE his hypothetical question at step five.
6

balance, stoop, kneel, crouch, and crawl. He could not reach overhead with his right
upper extremity, but he could occasionally reach in all other directions with the right
upper extremity. Finally, the ALJ found that plaintiff must avoid concentrated
exposure to respiratory irritants such as fumes, odors, dust, and gases. (Id.)
The ALJ called a Vocational Expert (“VE”) to testify at plaintiff’s hearing. The
VE’s testified that plaintiff could not perform his past relevant work. The ALJ found
that plaintiff also had impairments which would “impede” the ability to perform all or
substantially all the requirements of light work.3 (T. 19). In response to a hypothetical
question outlining plaintiff’s limitations, the VE testified that plaintiff would still be
able to perform jobs that exist in significant numbers in the national economy. (T. 1820).
VI.

ISSUES IN CONTENTION
Plaintiff raises the following arguments:
1.

3

The ALJ’s RFC determination is not supported by substantial

Under 20 C.F.R. § 404.1567(b), light work involves:
[L]ifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity
or inability to sit for long periods of time.
7

evidence. (Pl.’s Br. at 5-11) (Dkt. No. 13).
2.

The ALJ failed to properly consider the limitations caused by
plaintiff’s COPD/Emphysema. (Pl.’s Br. at 11-13).

3.

The ALJ’s step five determination is not supported by substantial
evidence because the VE’s opinion was based on an incomplete
hypothetical question. (Pl.’s Br. at 13-16).

Defendant argues that the Commissioner’s determination was supported by substantial
evidence and should be affirmed. (Dkt. No. 15). This court finds that the ALJ’s RFC
determination regarding plaintiff’s capacity for prolonged walking, standing, and sitting
is not supported by substantial evidence. Although other aspects of the ALJ’s RFC
determination are supported by substantial evidence, I am constrained to order remand
for further evaluation of plaintiff’s RFC.
V.

RFC/TREATING PHYSICIAN
A.

Legal Standards
1.

RFC

In rendering a residual functional capacity (“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). An ALJ must specify the functions plaintiff is capable of
performing, and may not simply make conclusory statements regarding a plaintiff’s
capacities. Id. (citing, inter alia, Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir.
1984)). RFC can only be established when there is substantial evidence of each
8

physical requirement listed in the regulations. Id. (citing LaPorta v. Bowen, 737 F.
Supp. 180, 183 (N.D.N.Y. 1990)). The RFC assessment must also include a narrative
discussion, describing how the evidence supports the ALJ’s conclusions, citing specific
medical facts, and non-medical evidence. Trail v. Astrue, 5:09-CV-1120 (DNH/GHL),
2010 WL 3825629, at *6 (N.D.N.Y. Aug. 17, 2010) (citing SSR 96-8p, 1996 WL
374184, at *7).
Social Security Ruling (“SSR”) 83-10 elaborates on the requirements of light
work:
Since frequent lifting or carrying requires being on one’s feet
up to two-thirds of a workday, the full range of light work
requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may
occur intermittently during the remaining time. . . . Many
unskilled light jobs are performed primarily in one location,
with the ability to stand being more critical than the ability to
walk.
2.

Treating Physician

While a treating physician’s opinion is not binding on the Commissioner, the
opinion must be given controlling weight when it is well supported by medical findings
and not inconsistent with other substantial evidence. See Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the treating
physician’s opinion is contradicted by other substantial evidence, the ALJ is not
required to give the opinion controlling weight. Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004). The ALJ must, however, properly analyze the reasons that a report of a
treating physician is rejected. Id. An ALJ may not arbitrarily substitute his/her own
9

judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.
1999). When controlling weight is not given, the ALJ should consider the following
factors to determine the proper weight assigned to a treating physician's opinion: (1)
frequency of the examination and the length, nature, and extent of the treatment
relationship; (2) the evidence in support of the opinion; (3) the opinion’s consistency
with the record as a whole; and (4) whether the opinion is from a specialist. See 20
C.F.R. § 404.1527(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
B.

Application

In this case, plaintiff argues that the ALJ erred in determining that plaintiff could
perform light work. Plaintiff argues that the ALJ’s determination fails to “account for
the full extent of Plaintiff’s limitations caused by the impairments to his knee, back, and
shoulder,”4 and in doing so has given insufficient weight to the treating physician’s
RFC assessment. (Pl.’s Br. at 6). Specifically, plaintiff argues that the ALJ erred in
giving “significant weight” to consultative physician Dr. Gilbert Jenouri, while giving
“no” weight to Dr. Cherilyn White, plaintiff’s treating physician. (Id.)
Dr. White has been plaintiff’s treating internist at least since 2011,5 and plaintiff

4

Although plaintiff begins his argument by alleging that the ALJ failed to take account of the
full extent of the limitations caused by plaintiff’s knee, back, and shoulder, the plaintiff focuses his
argument on the limitations allegedly caused by plaintiff’s shoulder, which plaintiff refers to as “the
most significant impairment in this case.” (Pl.’s Br. at 7, 5-11). This court will analyze plaintiff’s
argument with respect to all the limitations which resulted in the ALJ’s RFC determination.
5

In a medical report, signed by Dr. White on December 24, 2011, she states that plaintiff was
an “established patient,” but that she had not seen him in “at least three years.” (T. 411). When
plaintiff had his ATV accident in 2012, plaintiff’s “PCP” was listed as Dr. Robert T. McClelland from
the Guthrie Clinic in Sayre, PA, even though plaintiff’s address was listed as Waverley, NY. (T. 271).
Dr. White is in Cortland, NY. (T. 447). Medical records from 2006 also list Dr. McClelland as
10

testified in 2014, that he had been seeing Dr. White “for more than ten years.” (T. 43).
On September 1, 2014, Dr. White responded to a “Questionnaire,” which appears to
have been sent to Dr. White by plaintiff’s counsel, in which the doctor checked boxes
indicating that plaintiff could lift only 0-5 pounds up to three hours per day and should
never lift anything over five pounds. (T. 463). Dr. White stated that plaintiff could sit
for “approximately” less than one hour out of an eight-hour day and could stand/walk
for “approximately” less than one hour out of an eight-hour day. In addition, plaintiff
would have to change positions approximately every fifteen minutes. (Id.) Dr. White
checked boxes indicating that plaintiff could use his right hand for fine motor activity
only up to one third of each working day, but could use his left hand for “more than
[one third] of every working day.” (T. 464). Plaintiff could use his right arm and hand
for reaching and handling less than one third of every work day, but could use his left
arm and hand for reaching and handling for more than one third of every working day.
(T. 464).
The Questionnaire also asked about the effects of plaintiff’s medical conditions.
Dr. White checked boxes indicating that plaintiff’s conditions would cause pain and
fatigue. (T. 462) She also answered “yes” to questions asking whether the plaintiff’s
conditions, his pain, or the side effects6 of his medications would diminish plaintiff’s
concentration and work pace. Dr. White also answered “yes” to a question asking
whether plaintiff’s conditions would also cause him to need a “rest at work.” (Id.) The

plaintiff’s primary care physician. (T. 272). It is clear that Dr. White is plaintiff’s current PCP.
6

Side effects were listed as fatigue, constipation, and decreased reaction time. (T. 463).
11

Questionnaire then asked whether pain, fatigue, diminished concentration, diminished
work pace, or need to rest would lead plaintiff to be “off task” during the work day. (T.
462). Dr. White answered that plaintiff would be “off task” for “[m]ore than 33% of
the day. (Id.) Plaintiff would have “good and bad” days, and the “bad” days would
cause plaintiff to likely miss work more than four days per month. (T. 463).
By contrast, Dr. Jenouri found that plaintiff had only a “mild restriction to heavy
lifting and carrying and activities requiring fine and gross motor activity using the right
upper extremity.” (T. 433). Dr. Jenouri also examined plaintiff’s hands and fingers,
finding that plaintiff’s dexterity was “intact,” and his grip strength was 5/5 bilaterally.
(T. 433). Dr. Jenouri also found that the plaintiff should avoid smoke, dust, or other
respiratory irritants.7 (Id.) Dr. Jenouri did not comment on any limitations to plaintiff’s
ability to sit, stand, or walk and did not mention any limitations on plaintiff’s left upper
extremity. (T. 433).
The ALJ gave Dr. White’s 2014 RFC no weight because it was inconsistent with
the “overall medical evidence,” Dr. Jenouri’s report, and Dr. White’s own treatment
notes. (T. 18). The ALJ stated that Dr. White’s opinion that plaintiff could not stand
for more than one hour at a time was inconsistent with her treatment notes, in which she
found that plaintiff had normal gait and station and normal alignment and mobility of
the spine. (T. 18). The ALJ found that Dr. White did not explain her statement that
plaintiff required frequent position changes or engage in activities higher than waist
7

Dr. White did not mention any limitations with respect to plaintiff’s COPD, but the court
notes that the Questionnaire did not address plaintiff’s COPD or ask about limitations associated with
that impairment. (T. 462-64).
12

level because “there is no evidence of an impairment with the claimant’s dominant
upper left extremity.” (Id.)
The ALJ’s decision to afford no weight to Dr. White’s very restrictive 2014 RFC
is supported by substantial evidence. Dr. White’s most recent report prior to the RFC
evaluation is dated July 12, 2013.8 (T. 447-52). A review of Dr. White’s office notes
show that none of these severe restrictions are mentioned. (T. 359-422, 446-48). In her
July 12, 2013 report, she found that although his “[s]houlder was back to kill him
again,” and complained of “joint pain,” he had full range of motion in his neck, his gait
and station were “normal,” his head and neck had “normal alignment and mobility,” and
his spine, ribs, and pelvis had “normal alignment and mobility [with] no deformity.” (T.
449-50).
With respect to his right upper extremity, although the report states that plaintiff
had “[p]ain with movement in any direction more than 90 degrees,” flexion was “fine to
120 deg.,” extension to 50 degrees, abduction to 100 degrees, internal rotation was
normal, and external rotation was to 40 degrees. (T. 450). Plaintiff’s left upper
extremity had normal range of motion and strength. Plaintiff had normal sensation, and
had no impairment in his coordination. (T. 450). In the section entitled “Depression
Screening,” the report states that plaintiff denied any depression at all. (T. 447).
The July 2013 report states that coordination tests showed that plaintiff had no
dysmetria (poor control of his range of movement), had normal rapid alternating

8

There are no actual medical reports in the record from Dr. White between July 12, 2013 and
the September 1, 2014 Questionnaire.
13

movements, his finger-to-nose and heel-to-shin testing were within normal limits, and
he had a negative Romberg9 test. (T. 450). The court notes that this is totally
inconsistent with plaintiff’s testimony that he cannot keep his balance and is constantly
falling.10 (T. 55). At the hearing, plaintiff stated that he never mentioned his alleged
balancing problem to Dr. White, but clearly her coordination testing showed that
plaintiff did not lose his balance. In her July 12, 2013 report, other than the statement
about normal alignment and mobility, Dr. White never mentioned examination of, or
any limitations related to, plaintiff’s back. There is also no mention of any dexterity or
grip strength tests of either hand, thus, it is unclear how she determined that plaintiff
would only be able to use his right hand for fine motor activity only one third of the
day.11
Although the “depression screening” was positive in Dr. White’s February 5,
2013 report, suggesting that plaintiff’s “functionality was impaired,” and although he
9

A Romberg test is a balancing test, in which the individual stands with his or her heels
together and eyes closed. If the individual loses his or her balance, the test is positive. https://
informatics.med.nyu.edu/modules/pub/ neurosurgery/coordination.html.
10

The court notes that the ALJ found that plaintiff was not “fully credible” and analyzed his
credibility extensively. (T. 17-18). The ALJ did not question that plaintiff suffered from a degree of
pain; rather, the ALJ found that the plaintiff’s statements concerning the intensity, persistence, and
limiting effects of his symptoms were not fully credible. (T. 17). Plaintiff does not specifically
challenge the ALJ’s credibility determination, and the court finds that the ALJ’s determination is
supported by substantial evidence.
11

In any event, it is unclear what impairment would have been associated with this alleged loss
of fine motor activity. The shoulder impairment affected plaintiff’s ability to reach, but as the ALJ
pointed out, plaintiff’s wrist fracture was completely healed and examination revealed intact hand and
finger dexterity. (T. 13). Any limitation on dexterity would have been due to plaintiff’s wrist, not his
shoulder. Dr. White never discussed or examined plaintiff’s wrist, nor did she assess any limitations
due to his wrist. Thus, the ALJ was correct in rejecting Dr. White’s findings regarding plaintiff’s
motor activity.
14

stated that his condition would make it “very difficult” to get along with others,
plaintiff denied feeling “bad” about himself” and denied trouble “concentrating.” (T.
454). Despite complaints of “joint pain,” plaintiff “denied back pain,” joint swelling,
body aches, muscle cramps, muscle weakness, stiffness, or recent injury. (Id.) Once
again, plaintiff’s gait and station were “normal,” and his spine, ribs, and pelvis were all
in normal alignment, had “normal mobility,” and no deformity. (T. 456). The plaintiff
was able to touch the back of his head with his right upper extremity, but it “catches on
the way down.” (Id.) There was “crepitus” mid-rhomboid with flexion and extension,
and plaintiff had pain on internal rotation. However, there was no clubbing, cyanosis,
edema, or varicosities. (Id.) Plaintiff did have shoulder pain, and it was listed as
“unchanged,” but his COPD was listed as “improved.” (T. 457).
In November of 2012, Dr. White indicated that plaintiff’s shoulders were a bit
forward, his right arm was in a sling after his rotator cuff surgery, he had a flattened
lordosis, and his hips rocked forward. However, there was no indication that plaintiff
moved slowly12 or the he lost his balance. (T. 362). Dr. White noted that although he
had shoulder pain, the pain, his COPD, his alcohol abuse, and his smoking had
“improved.”
(T. 263). In October of 2012, plaintiff’s gait and station were the same, he did have
shoulder pain, but his COPD was asymptomatic except for a cough. (T. 370). In
September of 2012, plaintiff denied back pain, joint swelling, muscle aches, cramps,
12

Plaintiff also testified that although he could only sit for fifteen minutes at a time, it would
take him twenty minutes to get up and thirty minutes to go upstairs to the bathroom. He had to have
his grandson help him around. (T. 50-51).
15

weakness or stiffness. (T. 374). The court notes that Dr. White never estimated what
functions plaintiff would or would not be able to perform, nor did she discuss any
limitations from his impairments until the January 2014 Questionnaire.
With respect to the lifting requirement for light work, Dr. White stated in the
2014 Questionnaire, that plaintiff could not lift more than five pounds, but did not
specify whether this limitation was “bilateral.” There is no impairment in plaintiff’s
left shoulder, and the ALJ found that plaintiff could not reach overhead with his right
upper extremity. (T. 16). And although the RFC in the ALJ’s decision does not
differentiate between left and right with respect to plaintiff’s ability to lift, the court
notes that the hypothetical question that the ALJ asked the VE specifically stated that
plaintiff could “lift 20 pounds occasionally and 10 pounds frequently with . . . the
dominant left arm and hand,” could do no overhead lifting with the non-dominant right
arm and could occasionally use the non-dominant right arm for other reaching, but
could frequently handle finger and feel with the right hand.13 (T. 63).
The ALJ did address the limitations imposed by plaintiff’s shoulder impairment
on the right side,14 and his finding regarding plaintiff’s ability to lift is supported by

13

Any error in the ALJ’s written opinion is harmless because the hypothetical question posed to
the VE did have the appropriate limitations expressed. The hypothetical question made it clear that the
lifting of 20 pounds frequently and 10 pounds occasionally would be performed by the dominant left
hand which was not injured, and the impaired right upper extremity would be used only for occasional
reaching (except overhead) and frequent handling, fingering and feeling. (T. 62-63).
14

Plaintiff argues that Dr. Jenouri could not have assessed the limitations imposed by his right
shoulder because at the time of Dr. Jenouri’s evaluation, plaintiff’s shoulder was in still in a sling and
immobile after rotator cuff surgery. Plaintiff is correct that Dr. Jenouri states he did not examine
plaintiff’s right shoulder due to “immobility,” but as stated herein, the ALJ addressed plaintiff’s
shoulder impairment by limiting the plaintiff’s lifting to his left arm, noting that plaintiff could not lift
16

substantial evidence. Thus, to the extent that Dr. White’s RFC was inconsistent with
her own treatment notes and with Dr. Jenouri’s report, the ALJ’s failure to give it any
weight is not in violation of the treating physician rule and is supported by substantial
evidence.15 However, this does not end the analysis.16
Notwithstanding the fact that many aspects of the ALJ’s RFC determination were
supported by substantial evidence, his findings regarding plaintiff’s capacity for
prolonged standing, walking, and sitting were not adequately supported by the medical
opinion evidence. Dr. Jenouri did not comment on any limitations on plaintiff’s ability
to sit, stand, or walk.17 There are no other RFC evaluations from examining physicians,
other than Dr. White’s restrictive Questionnaire, opining on plaintiff’s ability to
perform these functions. The one RFC in the record which states that plaintiff can
perform the sitting, standing, and walking requirements of light work appears to be

overhead on the right, and stating that he only needed the right side to occasionally reach as well as to
frequently handle, finger, and feel. (T. 63).
15

16

Dr. Jenouri found that plaintiff would have "mild restriction to heavy lifting and carrying and
activities requiring fine and gross motor activity using the right upper extremity." (T. 433) (emphasis
added). This finding is not inconsistent with the ability to engage in the lifting requirements of light
work, and because there are no impairments to plaintiff's left upper extremity, it would be logical for
Dr. Jenouri to omit any limitations for plaintiff's left arm.
17

The court notes that the plaintiff finds fault in Dr. Jenouri’s opinion for failing to mention
plaintiff’s knee surgery, stating that this makes his examination “questionable at best.” (Pl.’s Br. at 6).
However, plaintiff’s treating physician, Dr. White does not even list plaintiff’s knee or his surgery as a
“problem” in her November 12, 2012 list of “problems,” nor does she state that she examined
plaintiff’s knees in her examination notes. (T. 416-19). In fact, in the Questionnaire, Dr. White did not
list plaintiff’s knee in the “conditions” for which she examined him. (T. 462). Dr. Jenouri did examine
plaintiff’s knees and found “full ROM of knees and ankles bilaterally.” (T. 432). Thus, the fact that
Dr. Jenouri failed to mention a surgery that was performed years ago is not an error, and it does not
diminish the value of his report.
17

authored by a “single decision maker” (“SDM”) who is not a physician, and who does
not appear to have seen any of the treating physician’s records. (T. 81-84).
The omission of any conclusion by a consultative examiner regarding prolonged
sitting or standing could not have been reasonably construed by the ALJ as a
conclusion that plaintiff satisfied the sitting or standing requirements of light work,
without seeking clarification from the doctor. See, e.g., Vongsouvanh v. Comm’r of
Soc. Sec., No. 6:13-CV-1581 (TJM/ATB), 2015 WL 926200, at *10 (N.D.N.Y. Mar. 3,
2015) (the omission of any conclusion from the consulting examiner regarding
prolonged sitting could not have been reasonably construed by the ALJ as a conclusion
that plaintiff could sit for six hours in an eight-hour day); DiVetro v. Comm’r of Social
Sec., No. 5:05-CV-830 (GLS/DEP), 2008 WL 3930032, at *12 (N.D.N.Y. Aug. 21,
2008) (the record lacks any assessment from either a treating source or a consultant
supporting a finding of plaintiff could sit for eight hours in a given workday; this
portion of the ALJ’s RFC determination was not well-supported); Tricic v. Astrue, No.
6:07-CV-997 (NAM), 2010 WL 3338697, at *3-4 (N.D.N.Y. Aug. 24, 2010) (the ALJ’s
determination that plaintiff could stand/walk and sit for about six hours in an eight-hour
workday was not supported by substantial evidence where two treating doctors opined
that plaintiff should avoid prolonged sitting and/or standing, and no examining doctor
provided a specific opinion about plaintiff’s ability to sit or stand for particular periods
of time). It is possible that Dr. Jenouri could have intended the interpretation made by
the ALJ, but without further support, the case law dictates that such interpretation is
insufficient. Because the ability to stand and walk is critical to the finding that plaintiff
18

can perform light work, the case must be remanded for further evaluation of plaintiff’s
ability to sit, stand, and walk.18
Plaintiff also alleges that the ALJ failed to properly address the “effect” of
plaintiff’s COPD. Plaintiff argues that although Dr. Jenouri found that plaintiff should
“avoid” smoke, dust, or other known respiratory irritants, his RFC stated that plaintiff
must avoid “concentrated” exposure to respiratory irritants such as fumes, odors, dust,
and gases. (T. 16, 433). Plaintiff interprets the term “avoid” as the “ability to tolerate
very little irritants,” which according to plaintiff has “a considerable impact on the
occupational base.” (Pl.’s Br. at 12) (citing SSR 85-15). Plaintiff argues that the ALJ
gave the incorrect environmental restriction to the VE.
This court does not agree. In support of his argument, plaintiff cites Long v.
Colvin, 3:13-CV-578, 2013 WL 3051601, at *6 (N.D.N.Y. June 17, 2013) for the
proposition that a restriction to avoid exposure to odors or dust “directs that evaluations
must be conducted on an individual basis.” (Pl.’s Br at 12) (citing Long, supra
(emphasis in original) & SSR 85-15). However, the court in Long stated that where a
person has a medical restriction to avoid “excessive” amounts of “noise, dust, etc.” the
impact on the ability to work would be minimal because most job environments do not
contain those environmental irritants. But, where an individual can tolerate “very little”
noise, dust, or other irritants, the impact on the ability to work would be considerable,

18

The court notes that although the plaintiff has the burden of proof during the first four steps
does not mean that the ALJ may find an RFC without substantial evidence to support it. Staggers v.
Colvin, No. 3:14-CV-717, 2015 WL 4751123, at *4 (D. Conn. Aug. 11. 2015) (citing Selian v. Astrue,
708 F.3d 409, 421 (2d Cir. 2013)).
19

and where the restriction falls somewhere in between, “resolution of the issue will
generally require consultation of occupational reference materials or the services of [a
VE].” Id. (citing SSR 85-15).
In this case, the ALJ used a VE, and there is no indication that the ALJ’s
interpretation of Dr. Jenouri’s statement was incorrect. This is particularly so because,
notwithstanding Dr. White’s suggestion that plaintiff quit smoking, he has not done so
for years. While plaintiff testified at the January 8, 2014 hearing that he was “down to”
one or two cigarettes per day, in November of 2012, plaintiff was still smoking 20-40
cigarettes per day; in February of 2013, he estimated that he smoked 40 cigarettes per
day; and on July 12, 2013, he was still smoking 20-40 cigarettes per day. (T. 56, 447,
453). Yet, Dr. White never assessed any limitations based on plaintiff’s COPD.19
Thus, the ALJ’s determination that plaintiff should avoid “concentrated” exposure to
environmental irritants is supported by substantial evidence.
VII. VOCATIONAL EXPERT/HYPOTHETICAL QUESTION
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

19

The court also notes that Dr. White’s reports indicate both that plaintiff smokes and that he is
subject to “passive smoke exposure,” meaning that someone else in his home smokes, but apparently
has not stopped despite plaintiff’s COPD. (T. 447, 453). On July 12, 2013, Dr. White found that
plaintiff still smoked 20-40 cigarettes per day, notwithstanding that he was told to quit. (T. 449).
20

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 questioned using a
hypothetical question that incorporates plaintiff’s limitations. See Aubeuf v. Schweiker,
649 F.2d 107, 114 (2d Cir. 1981). 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). Conversely, the ALJ may rely on a VE’s testimony regarding the availability of
work as long as the hypothetical facts the expert is asked to consider are based on
substantial evidence and accurately reflect the plaintiff’s limitations. Calabrese v.
Astrue, 358 F. App’x 274, 276 (2d Cir. 2009). Where the hypothetical is based on an
ALJ’s RFC analysis, which is supported by substantial facts, the hypothetical is proper.
Id. at 276-277.
B.

Application

Plaintiff argues that the ALJ asked an incomplete hypothetical, in which the RFC
was not supported by substantial evidence. This court finds that because the ALJ’s
finding with respect to plaintiff’s ability to sit, stand, or walk was not supported by
substantial evidence, the hypothetical question was similarly flawed. On remand the
21

ALJ must formulate hypothetical questions to a VE so that they conform to an RFC
determination that is supported by substantial evidence.
Plaintiff also argues that in addition to the alleged errors in the hypothetical
question, the VE’s answer did not identify jobs existing in “significant numbers” in the
national economy. (Pl.’s Br. at 15-16). In 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. 3:13CV-1290, 2015 WL 1190100, at *20-22 (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)20 (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

20

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)).
22

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 (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 Koutrakos v. Colvin, the court questioned whether 85 jobs in the state of
Connecticut were a “sufficient number” of surveillance system monitor jobs. However,
the VE in Koutrakos also testified that there were 1,296 information clerk jobs in
Connecticut and 152,000 nationally, which was a significant number. 2015 WL
1190100, at *22 (citing inter alia Durante v. Colvin, No. 13-CV-1298, 2014 WL
4843684, at *5 (D. Conn. Sept. 29, 2014) (finding that 660 positions in the state of
Connecticut is a significant number); Dugan v. Soc. Sec. Admin. Comm’r, 501 F. App’x
24, 25 (2d Cir. 2012) (noting VE’s testimony that there were two jobs with a total of
600 positions in Vermont and 344,000 nationwide)). Because of the additional job with
a more extensive number of positions in the state of Connecticut, the court in
Koutrakos affirmed the Commissioner’s determination and found that the VE had cited
significant numbers of jobs that the plaintiff could perform.
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
23

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.”
In this case, the ALJ identified three job categories: Work Ticket Distributor,
with 278,490 jobs in the national economy; Usher, with 106,860 jobs in the national
economy; and Ironer, with 218,740 jobs in the national economy. (T. 19-20). At the
hearing, the VE testified that these numbers were Occupational Employment Statistics
(“OES”) figures that apply to broader job classifications which include multiple job
titles. (T. 66). The VE then looked up the “individual numbers” for each particular job
title, which he stated were only “estimated” numbers. (T. 67). For the Work Ticket
Distributor, the number was 177, and for the Usher, the number was 4,803. (T. 67).
24

The “SkillTRAN” computer program used by the VE did not have a specific number for
the Ironer job title. (T. 67). The VE did not clarify whether the “individual” numbers
for the particular job classification related to the national economy or some subset
thereof.21
The ALJ found that “[e]ven though the [VE] listed limited actual job numbers for
specific DOT titles, the numbers were only estimates that were not from any job
databases. I rely upon the numbers listed above from the OES job categories.” (T. 20).
The ALJ determined that, even though the OES statistics applied to job classifications
containing multiple job titles, the VE’s opinion was still sufficient evidence that there
was a significant number of jobs in the “national economy” that the plaintiff could
perform. (Id.)
Generally, the OES numbers in this case are sufficient. There are over 200,000
jobs in two of the categories that the VE listed and over 100,000 in the third category.
In Williams v. Colvin, No. 5:13-CV-180, 2014 WL 1681707, at *13 (D. Vt. Apr. 28,
2014), adopting Rep. Rec.), the court found “no error in the VE’s reliance on OES
numbers instead of DOT numbers, particularly when one of the OES categories only
had one DOT code, and thus, no reduction of the OES numbers was required. The
court in Williams also cited Brault, for the proposition that it was sufficient that the VE
identified “the sources he generally consulted to determine [the job numbers],” and

21

While state and local figures are not required because the regulation specifically states that
“work exists in the national economy when it exists in significant numbers either in the region where
you live or in several other regions of the country,” (20 C.F.R. § 404.1566(a)), often the state and local
numbers are listed in addition to national figures.
25

noting the “marked absence of any applicable regulation or decision of th[e] Court
requiring a vocational expert to identify with greater specificity the source of his
figures or provide supporting documentation.” Id. (quoting Brault, 683 F.3d at 450;
Galiotti v. Astrue, 266 F. App’x 66, 68 (2d Cir. 2008) (internal quotations omitted,
alterations in original)). However, the “individual” numbers as to which the VE
testified, depending on what they actually represent, appear to fall into the category that
the above-cited cases found to be “insufficient.”
The VE’s testimony is unclear regarding what the “individual” job estimates
covered. Finally, the VE testified that there was no “estimate” for the third job, but that
does not appear to mean that there are “no” jobs for that position.22 Because the
original OES numbers are so large, the reduced numbers do not seem to make sense,
and the court will not speculate upon what the VE was attempting to convey. In his
decision, the ALJ relied only upon the stated OES numbers when finding that there
were sufficient numbers of jobs in the national economy, even though he mentioned
that there were other numbers without actually discussing the difference. (T. 20).
As stated above, there is substantial debate in the case law about the statistics as
stated by the VE, but generally, the courts have determined that a VE’s experience
allows him or her to form a reliable opinion on whether significant numbers of jobs
exist in the national economy. See e.g. Blake v. Colvin, No. 2:14-CV-52, 2015 WL
3454736, at *9 (D. Vt. May 29, 2015) (discussing inter alia Vandermark, supra).

22

The VE specifically stated that “again, judge, these are just DOT employment estimates . . . .
from the SkillTRAN program.” (T. 67).
26

Although it appears that there were significant number of jobs to which the VE testified
in the case, if the RFC changes based on additional review, the ALJ will need to
address the issue with a new VE. Even if the RFC does not change, the ALJ should
clarify the job numbers with a VE because the testimony below was not completely
clear.
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.
B.

Application

This court has found that the ALJ’s decision is not supported by substantial
evidence. In this case, the court concludes that further review is necessary to make a
proper determination of plaintiff’s RFC, but that a remand for calculation of benefits is
not appropriate. Depending upon the resolution of the RFC issue, it may be necessary
to utilize the services of a VE.
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision be REVERSED, and the case be
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
27

administrative proceedings consistent with this opinion.
Dated: March 7, 2016

28