Walker v. Colvin
Filing
16
MEMORANDUM-DECISION & ORDER that pltf's motion for judgment on the pleadings be GRANTED and that the matter be remanded to the Commissioner for additional proceedings pursuant to sentence four of 42 U.S.C. 405(g) for further proceedings consistent with this Memorandum-Decision & Order. Signed by Magistrate Judge Christian F. Hummel on 9/13/2016. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOSEPH WALKER,
Plaintiff,
v.
No. 3:15-CV-465
(CFH)
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
APPEARANCES:
OF COUNSEL:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089
Attorneys for Plaintiff
PETER A. GORTON, ESQ.
Social Security Administration
Office of Regional General Counsel
Region II
26 Federal Plaza, Rm. 3904
New York, New York 10278
Attorneys for Defendant
GRAHAM MORRISON, ESQ.
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER
Plaintiff Joseph Walker brings this action pursuant to 42 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of Social Security (“Commissioner” or
“defendant”) denying his applications for supplemental security income benefits (“SSI”)
and disability insurance benefits. Dkt. No. 1 “Compl.”). Plaintiff moves for a finding of
disability, and the Commissioner cross moves for a judgment on the pleadings. Dkt.
Nos. 11, 13. For the following reasons, the matter is remanded to the Commissioner
for proceedings consistent with this Memorandum-Decision and Order.
I. Background
Plaintiff, born on November 20, 1997, dropped out of high school after the ninth
grade, where he was enrolled in special education classes. T at 48. Plaintiff does not
have a GED, certificates, or licenses, and has limited reading ability. Id. Plaintiff is
married, and has five children who, at the time of the hearing, ranged in age from five to
thirteen. Id. at 63-64. Plaintiff last job worked as a part-time short-order cook in
December 2010. Id. at 49. Previous to that, he worked full time as a short-order cook
at various diners and also held employment that involved “test[ing] computer boards on
a computer.” Id. at 50, 55. Plaintiff protectively1 filed a Title II application for a period of
disability and disability insurance benefits and a Title XVI application for supplemental
security income on December 6, 2011. T 2 at 82-96. Plaintiff alleged a disability onset
date of February 1, 2010. These applications were denied on January 27, 2012. Id. T
at 1-7. Plaintiff requested a hearing before an administrative law judge (“ALJ”), and a
1
“When used in conjunction with an ‘application’ for benefits, 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. Allen v. Comm'r of
Soc. Sec., No. 5:14-CV-1576 (DNH/ATB), 2016 WL 996381, at *1 (N.D.N.Y. Feb. 22, 2016), report and
recommendation adopted sub nom., 2016 WL 1020858 (N.D.N.Y. Mar. 14, 2016).
2
References to “T” stand for pages in the administrative transcript and reflect the pagination on
the lower right hand corner of the pages, rather than the pagination at the header generated by CM/ECF.
2
hearing was held on September 5, 2013, and vocational expert testimony was taken on
December 12, 2013. 3 Id. at 8, 44-70, 73-81. On January 14, 2014, ALJ Elizabeth W.
Koennecke issued her decision where in she concluded that plaintiff was not disabled.
Id. at 13-24. Plaintiff’s timely request for review by the Appeals Council was denied,
making the ALJ’s findings the final determination of the Commissioner. Id. at 1-6. This
action followed. Dkt. No. 1 (“Compl.”).
II. Discussion
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning
that in the record one can find “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31
(2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is “a very deferential standard of review
3
A hearing was originally scheduled for June 10, 2013, but that hearing was postponed to allow
plaintiff an opportunity to obtain representation. T at 30-42.
3
. . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683
F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (internal quotation marks omitted).
Where there is reasonable doubt as to whether the Commissioner applied the proper
legal standards, the decision should not be af firmed even though the ultimate
conclusion reached is arguably supported by substantial evidence. Martone v. Apfel,
70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987)). However, if the correct legal standards were applied and the ALJ’s
finding is supported by supported by substantial evidence, such finding must be
sustained, “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation
omitted); Venio v. Barnhart, 213 F.3d 578, 586 (2d Cir. 2002).
B. Determination of Disability4
“Every individual who is under a disability shall be entitled to a disability . . .
benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
4
Although the SSI program has special economic eligibility requirements, the requirements for
establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)(SSI) and Title II, 42 U.S.C. § 423(d) (Social
Security Disability Insurance (“SSDI”)), are identical, so that “decisions under these sections are cited
interchangeably.” Donato v. Sec ‘y of Health and Human Services, 721 F.2d 414, 418 n.3 (2d Cir. 1983)
(citation omitted).
4
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available
to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based [upon] objective medical facts, diagnoses or medical opinions inferable from
[the] facts, subjective complaints of pain or disability, and educational background, age,
and work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 W L 399458,
at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a ‘severe impairment’ which
significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the regulations.
If the claimant has such an impairment, the [Commissioner]
will consider him [or her] disabled without considering
vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who
is afflicted with a ‘listed’ impairment is unable to perform
substantial gainful activity.
5
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity to
perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). The plaintiff bears the initial burden of proof to
establish each of the first four steps. DeChirico v. Callahan,134 F.3d 1177, 1179-80
(2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step,
the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in
gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
“In addition, an ALJ must set forth the crucial factors justifying his findings with
sufficient specificity to allow a court to determine whether substantial evidence supports
the decision.” Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y.
2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court
cannot substitute its interpretation of the administrative record for that of the
Commissioner if the record contains substantial support for the ALJ's decision. See
Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner’s finding is
supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g), as amended;
Halloran, 362 F.3d at 31. If supported by substantial evidence, the Commissioner's
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court's independent analy sis of the evidence may differ
from the [Commissioner's].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.
1992). The Court must afford the Commissioner's determination considerable
6
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
C. ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff met the insured status requirements of the Social Security Act through
September 30, 2012, and has not engaged in substantial gainful activity since February
1, 2010, the alleged onset date. T at 16. The ALJ found at step 2 of the sequential
evaluation that during the period in question plaintiff had the severe impairment of
degenerative joint disease of the right ankle with recurrent right ankle sprain. Id. At
step 3, the ALJ determined that plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of Listing 1.02A. Id. at 18. The
ALJ then concluded that plaintiff retained the residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 C.F.R. 404.1567(a)
and 416.967(a), because the claimant is able to lift and/or
carry twenty pounds occasionally and ten pounds frequently,
stand and/or walk for two hours in an eight-hour workday,
and sit for six hours in an eight-hour work day. The claimant
is able to occasionally climb stairs, squat, and kneel, but the
claimant cannot climb ladders. The claimant is limited to
unskilled work but can perform all of the basic mental
demands required of unskilled work.
Id. At step 4, the ALJ concluded that plaintif f was unable to perform his past relevant
work. Id. at 21. The ALJ, after hearing testimony from vocational expert (“V.E.”) David
Festa, and considering plaintiff’s age, education, work experience, and RFC, concluded
7
that jobs existed in significant numbers in the national economy that plaintiff could
perform. Id. at 22. These jobs included the titles of: final assembler (DOT # 713.687018), waxer (DOT # 779.687-038), and lens inserter (DOT # 713.687-026). 5 Id.
Therefore, the ALJ concluded that plaintiff “has not been under a disability, as defined
under the Social Security Act, from March 1, 2011, through the date of the decision.”
Id. at 23.
D. The Parties’ Arguments
Plaintiff argues that the ALJ committed reversible error insofar as (1) the
Commissioner did not sustain her burden of demonstrating that there are a significant
number of jobs in the national economy that plaintiff could perform within his RFC; (2)
the conclusion that plaintiff had the ability to perform sedentary work was unsupported
by the record, and (3) her credibility assessment erroneously considered his
conservative treatment history. Defendant argues (1) the Commissioner may properly
“rely on the VE’s testimony regarding the number of positions available in a broader
occupational group, which is available in the DOT,” (2) the ALJ properly concluded that
medical evidence, including Dr. Wiesner’s opinions, did not support a finding that
plaintiff could stand/walk for less than two hours in an eight-hour work day, and (3) the
ALJ properly assessed plaintiff’s credibility. Dkt. No. 12 at 7, 9-11.
5
“The Dictionary of Occupational Titles, published by the United States Department of Labor, is a
comprehensive listing of job titles in the United States. Detailed descriptions of requirements for each job
include assessments of exertional level and reasoning ability necessary for satisfactory performance of
the work.” Thomas v. Astrue, No. 3:11-CV-589, 2012 WL 5364275, at *3 n.7 (N.D.N.Y. Sept. 19, 2012).
8
1. Step Five Determination
As noted, although the claimant bears burden at steps one through four of the
sequential evaluation, it is the Commissioner’s burden to prove that there are jobs that
exist in significant numbers in the national economy that the claimant can perform. 20
C.F.R. § 416.920(g); DeChirico,134 F.3d at 1180. Plaintiff contends that the
Commissioner did not meet this burden because the jobs numbers the ALJ relied on for
the VE’s suggested positions of final assembler, waxer, and lens inserter were numbers
for occupational classifications that included as many as 1,500 other DOT titles such
that the VE testified he had no way to determine how many of those 218,740 or
419,840 jobs were available for either the lens inserter, final assembler, or waxer titles.
Dkt. No. 11 at 8-9. Defendant contends that the ALJ properly relied on the VE’s
proposed job titles because an ALJ “may rely on a VE’s testimony regarding the
number of positions available in a broader occupational group which is available in the
DOT . . . even where a claimant can perform just one DOT code job, out of many, in the
broader occupational category.” Dkt. No. 12 at 7 (citing Fox v. Commissioner of Soc.
Sec., 6:02-CV-1160 (FJS/RFT), 2009 WL 367628 (N.D.N.Y. Feb. 13, 2009)).
Under the Social Security Regulations, “[w]ork exists in the national economy
where there is a significant number of jobs (in one or more occupations) having
requirements which you are able to meet with your physical or mental abilities and
vocational qualifications.” 20 C.F.R. §§ 404.1566(b), 416.966(b). “[W ]ork exists in the
national economy when it exists in significant numbers either in the region where [the
claimant] live[s] or in several other regions of the country.” 20 C.F.R. § 416.966(a).
9
“Courts have generally held that what constitutes a ‘significant’ number is fairly
minimal.” Fox, 2009 WL 367628, at *20. However, requiring proof of a “significant”
number of jobs “assures that individuals are not denied benefits on the basis of
‘[i]solated jobs that exist only in very limited numbers in relatively few locations outside
of the region where [the claimant] lives.’” Peterson Moore v. Colvin, 14-CV-583-JTC,
2016 WL 1357606, at *5 (W.D.N.Y. Apr. 6, 2016)(quoting 20 C.F.R. § 416.966(b));
Titles II and XVI: Basic Disability Evaluation Guides, SSR 82-53, 1982 W L 31374, at *3
(1982) (noting that requiring work in significant numbers is meant “to emphasize that . .
. a type(s) of job which exists only in very limited numbers or in relatively few
geographic locations may not be said to ‘exist in the national economy.’”). A vocational
expert may “testify as to the existence of jobs in the national economy and as to the
claimant's ability to perform any of those jobs, given her functional limitations,” but the
testimony “is useful only if it addresses whether the particular claimant, with her
limitations and capabilities, can realistically perform a particular job.” Marvin v. Colvin,
No. 3:12-CV-1779 (GLS), 2014 W L 1293509, at *10 (N.D.N.Y. Mar. 31, 2014) (citations
omitted).
Several cases within this Circuit, and specifically within this District have
addressed the exact question raised by plaintiff – whether a VE’s testimony amounts to
substantial evidence where it identifies the job numbers set forth in a general DOT
occupational group, but does not identify the number of jobs attributable to the specific
10
job titles the VE identified – suffices to meet the Commissioner’s burden at step five.6
For the reasons that follow, the undersigned concludes that, in this case, it does not.
In Marvin v. Colvin, the plaintiff7 argued that the Commissioner failed to meet the
step five burden because the job numbers to which the VE testified “pertained to a
broad range of positions, including jobs that Marvin cannot perform based on her RFC.”
2014 WL 1293509, at *10. The ALJ addressed the plaintiff’s concerns within her
decision, concluding that:
(1) “the use of government statistics and the testimony of a
[VE] to prove the existence of significant numbers of jobs
which a claimant can perform is administratively noticed, and
therefore deemed as valid and sufficient from an evidentiary
standpoint”; (2) “the claimant is found not disabled within the
framework of Medical–Vocational Rules, which take
administrative notice of the existence in significant numbers
in the national economy of unskilled, entry level jobs within
the sedentary, light, and medium occupational categories”;
and (3) “[p]roving significant numbers of existing jobs does
not necessarily require proof of the exact number of existing
jobs.”
Id. at *10, n.11. The Court disagreed with the ALJ’s reasoning, concluding that “the
VE’s testimony was hardly clear as to the number of jobs available to Marvin in the local
or national economy.” Id. Thus, the Court determined that the Commissioner failed to
meet her burden at step five, and remanded for further proceedings. Id.
In Rosa v. Colvin, also a case involving the same VE who testified in the case
herein, the plaintiff raised an identical argument in response to the ALJ’s reliance on the
6
As plaintiff points out, some of these cases involve the same vocational expert, David Festa, or
the same Administrative Law Judge, Elizabeth Koennecke. Dkt. No. 11 at 8-9.
7
The plaintiff in Marvin v. Colvin was represented by the same counsel who represents plaintiff in
the case currently before the undersigned, Peter A. Gorton, Esq. Marvin, 2014 WL 12933509, at *1.
11
VE’s job numbers. Rosa v. Colvin, No. 3:12-CV-0170 (LEK/TWD), 2013 WL 1292145,
at *9 (N.D.N.Y. Mar. 27, 2013).8 In Rosa, the VE testified that the plaintiff could perform
the jobs of lens inserter and final assembler but that job numbers represent all the
occupations in the same standardized occupational code provided by the Bureau of
Labor Statistics and New York State Department of Labor, rather than the number of
lens inserter and final assembler jobs. Id. at *4. The VE, in response to cross
examination by the plaintiff’s attorney, testified that “he did not have the specific
numbers such as a breakdown job analysis for the lens inserter and final assembler
jobs.” Id. at *5. The Court determined that because the VE cited to a “broad categ ory
of jobs that Plaintiff would not be able to perform because of his functional limitations”
and “could not say how many lens inserter and final assembler positions existed,” the
VE’s testimony “was hardly clear as to the number of jobs available to Plaintiff in the
local or national economy[,]” and, thus, his testimony did not constitute substantial
evidence. Id. (citing Johnston v. Barnhart, 378 F. Supp. 2d 274, 283 (W .D.N.Y. 2005)
and Kennedy v. Astrue, 343 F. App’x 719, 722 (2d Cir. 2009)).
Nearly identical arguments have been raised and Courts have remanded on that
ground in additional cases within this District and others. Snow v. Colvin, 3:15-CV-694
(FJS), 2016 WL 2992145 (N.D.N.Y. May 20, 2016)9(remanding after concluding that the
Commissioner did not meet her step five burden where the vocational expert’s
8
The plaintiff in Rosa v. Colvin was represented by the same attorney who represents plaintiff in
the case currently before the undersigned, Peter A. Gorton, Esq. Rosa, 2013 WL 1292145, at *1.
9
The plaintiff in Marvin v. Colvin was represented by the same counsel who represents plaintiff in
the case currently before the undersigned, Peter A. Gorton, Esq. Snow, 2016 WL 2992145, at *1.
12
proposed job numbers were “not specific to the job titles, but instead are representative
of broad occupation groups which include hundreds of other job titles – many of which
are not available to the Plaintiff due to his limitations,” and where the vocational expert
“knew of no other way to determine how many individual jobs would be available to
Plaintiff other than a labor market survey,” the vocational expert “made no attempt to
adjust the broad national numbers to approximate how many positions exist for the
specific job titles discussed.”); Peterson Moore, 2016 W L 1357606 (remanding to
Commissioner after concluding that Commissioner did not meet her step five burden
where the VE testified to broad ranges of positions, but “could not even provide a
‘ballpark estimate’ of the number of jobs she testified that plaintiff could perform” and
“the ALJ failed to make any inquiry into the foundation and reliability of the job numbers
provided by the VE.”).
However, as the Commissioner recognizes, not every case in which a similar
argument was raised has resulted in remand. First, in Fox, the VE – the same VE as
testified in the case at bar – testified that the plaintiff could perform jobs that were within
the broad occupational group of “protective service workers,” but when considering the
VE’s testimony and the plaintiff’s functional limitations, the plaintiff could perform only
one title within that group, a surveillance system monitor. Fox, 2009 WL 367628, at
*17. The VE was unable to identify the number of jobs available for the surveillance
system monitor title. Id. Thus, the plaintiff argued that the Commissioner could not
demonstrate that there were jobs that existed in significant numbers in the national
economy, and failed to meet the step-five burden. Id. The VE could not testify as to
13
the specific number of jobs available as a surveillance system monitor, but noted that
“surveys conducted by the Department of Labor and the State showed 132,980
Protective Service Occupation jobs in the national economy and 200 in the Central New
York region. Based upon his best estimate, however, the VE testified that the number
of surveillance system monitor jobs was ‘a small percentage lower.’” Id. at *20 (internal
record citations omitted). The Court concluded that the Commissioner met the step five
burden because: (1) what constitutes a ‘significant’ number of jobs is “fairly minimal”;
and (2) “the number of jobs identified by the VE, even if diminished by a small
percentage in his estimation, constitutes a significant number of jobs, which the ALJ
properly relied upon in finding that work existed in the national and regional economy
that Plaintiff could perform . . . .” Id.
Similarly, in Vandermark v. Colvin,10 cross examination revealed that the VE’s
job-incidence numbers “did not reflect the actual number of positions available for each
specific DOT job code.” 3:13-CV-1467 (GLS/ESH), 2015 W L 1097391, at *10
(N.D.N.Y. Mar. 11, 2015). When asked how he arrived at the job numbers he provided
on direct examination, the VE testified that
he derived them as a product of his own judgment formed
after consulting several sources, a publication identified in
the transcript as “employment stats quarterly,” a computer
program titled “Job Browser Pro,” unidentified “source
documents” from the Department of Labor and the state’s
Employment Security Office and collaborative efforts with
other vocational experts to come up with a reasonable
10
The plaintiff in Vandermark v. Colvin was represented by the same counsel who represents
plaintiff in the case currently before the undersigned, Peter A. Gorton, Esq. Vandermark, 2016 WL
1097391, at *1.
14
number. He then made adjustments twice a year, having
recently lowered his numbers based on current high
unemployment rates. He could not recite or recalculate that
formula, however, during the administrative hearing.
Id. (footnotes and citations to administrative transcript omitted). In Brault v. Soc. Sec.
Admin., 683 F.3d 443, 446 (2d Cir. 2012) acknowledged that because the DOT codes
do not report the number of available jobs in the national economy, VEs “must obtain
additional information to assess whether positions exist for the occupations disability
claimants can still perform.” Id. at *12. There, the Court acknowledged that “vocational
experts’ methods for associating SOC or similarly based employment numbers to DOTbased job types have been challenged,” but “left for another day in a closer case” “the
extent to which administrative law judges must test vocational experts’ testimonies.” Id.
(quoting Brault, 683 F.3d at 450). Brault “emphasized . . . that the deferential
substantial-evidence standard is extremely flexible, and gives reviewing federal courts
freedom to take a case-specific, comprehensive view of administrative proceedings,
weighing all evidence to determine whether it is substantial.” Id. at *14 (citing Brault,
683 F.3d at 449). Finally, Brault observed “the marked absence of any applicable
regulation or decision requiring a vocational expert to identify with greater specificity the
source of his figures or provide supporting documentation,” and concluded that the ALJ
“did not need to find specific numbers of jobs – all he was required to do was find that
‘substantial’ positions exist.” Id. at *13 (quoting Brault, 683 F.3d at 450).
Vandermark also noted that “Brault was a focal point” in Kennedy v. Astrue, 343
F. App’x 719, 722 (2d Cir. 2009) (summary order), wherein the VE testified that the data
on which she relied in reaching her conclusion on job titles the plaintiff could perform
15
“also encompassed approximately 59 other DOT titles.” In Kennedy, the Second Circuit
noted that,
viewed in context, it is apparent that the expert arrived at her
estimated figures for charge-account clerk positions by
discounting from the total numbers for all 60 DOT titles.
Thus, the expert’s testimony on this point did not introduce
any meaningful uncertainty as to the number of charge
account clerk positions available in the local or national
economy.
Id. at *14. The Court in Vandermark ultimately affirmed the Commissioner’s
determination, concluding that the VE’s testimony, which “accounted for the fact that
the statistical groups on which he relied included more jobs than a person with
Vandermark’s limitations can perform” and “adjusted those incident number
accordingly” by reducing reported incidence numbers by a certain percentage to “‘factor
out specific jobs.’” Id. at *17. The Court concluded that, although the VE’s “adjustments
were not made through application of formal theory or use of mechanical or
technological aids,” the VE’s “panoptic experience permitted him to form a reliable
opinion based on judgment, instinct and effort.” Id.
Here, the VE testified that the number of jobs for each job title “are the total
number of jobs for all the separate DOT titles within the . . . standard occupational . . .
[c]lassification” and that there were approximately 1,500 different DOT titles within that
standard occupational classification for which lens inserter and final assembler, and
550 separate DOT titles in the standard occupational classification for waxer. Id. at 7879. The VE confirmed that he had “no way of accurately extrapolating” the number of
jobs that would be available out of the 218,740 jobs in the standard occupational
16
classification for the titles of final assembler or lens inserter or the number of jobs
available out of the 419,840 jobs in the standard occupational classif ication for the
waxer title. Id. at 80.
The undersigned finds that the Commissioner did not meet her step five burden
of demonstrating that there are a substantial number of jobs that exist in the national
economy that the plaintiff can perform. The undersigned recognizes that the ALJ,
absent a rule or regulation otherwise, need not demonstrate the exact number of jobs
available for specific titles or the source for her figures, so long as he or she
demonstrates that the job titles are available to plaintiff in “significant” numbers. Brault,
683 F.3d at 449; Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 407 at n.13 (D. Conn.
2012). However, unlike in some of the cases discussed herein, where the reviewing
Court affirmed the Commissioner’s decision, the VE in this case did not reduce the
overall numbers to account for jobs within that classification that plaintiff could not
perform nor provide an estimation of the numbers of jobs available in the proposed
titles. Kennedy, 343 F. App’x at 722 (affirming the Commissioner’s decision where the
VE “discounted from the total numbers for all 60 DOT titles” to reach an estimate
number of jobs available in specific titles); Vandermark, 2015 WL 1097391, at *10
(affirming the Commissioner’s decision where VE reduced job numbers to factor out
jobs the plaintiff could not perform); Fox, 2009 WL 367628, at *3 (affirming the
Commissioner’s decision the VE testified that, based on his best estimate, the number
of surveillance system monitor jobs in the Central New York was a “small percentage
lower” than the 200 jobs in the protective service occupation); Dugan v. Soc. Sec.
17
Admin. Com’r, 501 F. App’x 24 (2d Cir. 2012) ((affirming the Commissioner’s decision
where the VE testified that there were 225 positions in one job title and 375 positions in
another title within the state).
To be clear, the Court’s concern is not with a lack of formal methodology in
reaching job numbers, as was the concern in many of the cases reviewed above;
rather, the concern lies in the lack of any attempt to demonstrate that the identified jobs
titles were available to plaintiff. The VE acknowledged that the numbers he provided
applied to the entire categories of jobs, which included over 550 jobs titles for one
general classification, and over 1500 job titles for the classification. T at 78-80. These
classifications would necessarily include job titles that plaintiff is not capable of
performing under the ALJ’s RFC. This general testimony amounts to “incidence
testimony based on broad occupational groupings without accounting for the fact that
such groupings include more jobs that [sic] a particular claimant can perform, without
adjusting those incident numbers accordingly or when they otherwise inject meaningful
uncertainty as to how adjustments are made.” Vandermark, 2015 WL 1097391, at *16.
Had the VE been able to provide a reduction in the overall numbers of the job titles to
provide more certainty that there are jobs available in the national economy that plaintiff
could perform in the distinct job titles identified, the Court may not have found fault with
such testimony. See Wheeler v. Comm'r of Soc. Sec., No. 3:15-CV-105, 2016 W L
958595, at *12 (N.D.N.Y. Mar. 7, 2016) (“[G]enerally, 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.”) (citing Blake v. Colvin, No. 2:14-CV-52,
18
2015 WL 3454736, at *9 (D. Vt. May 29, 2015)). However, the VE here was unable to
provide such an estimate.
Although the ALJ acknowledged the concerns raised by plaintiff’s counsel during
cross-examination, the ALJ attested that the Commissioner met her burden because:
(1) “reliance on the DOT and testimony of a vocational expert as valid methods to prove
the existence of significant numbers of jobs that a claimant can perform is
administratively noticed, and therefore deemed valid and sufficient from an evidentiary
standpoint,” (2) “[p]roving significant numbers of existing jobs does not necessarily
require proof of the exact number of existing jobs” and the Commissioner’s “burden is
satisfied by proof of numbers which, although somewhat approximate, can be
reasonably deemed significant, even with allowances for part-time jobs, jobs that do not
exactly match the claimant’s functional or vocational parameters, and other reductions.”
T at 22-23. The Court disagrees with the ALJ’s reasoning because, although the DOT
has been deemed “valid” and courts have determined that exact numbers of existing
jobs is not required, there still must be a demonstration that there are jobs that exist in
significant numbers in the national economy. See Marvin, 2014 WL 1293509, at *10.
The Court is not holding the Commissioner to an “impossible burden” nor is it
concluding that an exact number is required, T at 23; rather, it is holding the
Commissioner to the standard set forth within the regulations – to demonstrate that jobs
existed in significant numbers that plaintiff was capable of performing. Requiring at
least an estimate of jobs in specific titles, where that estimate is either based on
sources/literature or the VE’s experience/consultation is consistent with the regulations
19
and “assures that individuals are not denied benefits on the basis of ‘[i]solated jobs that
exist only in very limited numbers in relatively few locations outside of the region where
[the claimant] lives.’” Peterson Moore, 2016 WL 1357606, at *5 (quoting 20 C.F.R. §
416.966(b)); see Robinson v. Astrue, No. 08-CV-4747 (RJD), 2009 W L 4722256, at *2
(E.D.N.Y. Dec. 9, 2009) (“while the Social Security Act does not specify any precise
formula for determining whether a particular number of jobs is sufficiently ‘significant,’ a
number of courts have suggested that [200 local jobs and 3,000 national jobs] w ould
not qualify as sufficiently significant.”).
Thus, the Court finds that VE’s testimony, adopted by the ALJ, did not provide a
“fair estimate of the jobs available” that plaintiff can perform. Jones-Reid, 934 F. Supp.
2d at 407 n.13. Accordingly, it is determined that the Commissioner failed to meet her
burden at step five, and remand is necessary to further address whether jobs exist in
significant numbers in the national economy that plaintiff can perform.
2. RFC: Sedentary Work
Plaintiff argues that the ALJ’s RFC, insofar as it concludes that he has the ability
to perform sedentary work, is unsupported by the record. Dkt. No. 11 at 9. Plaintiff
contends that “[t]here is only one medical opinion of record (from Dr. Wiesner), and it
does not support the ability to do sedentary work” as it demonstrates that plaintiff
cannot stand for more than one hour in an eight-hour work day. Id.11 The
11
Plaintiff’s brief mentions the other proposed limitations that Dr. Wiesner indicated in the
questionnaire, but sets forth arguments only regarding plaintiff’s ability to stand. Dkt. No. 11 at 10-11.
20
Commissioner argues that the ALJ’s conclusion that plaintiff could perform sedentary
work was proper, as the ALJ properly rejected Dr. Wiesner’s conclusions regarding
plaintiff’s standing limitations.12 Dkt. No. 12 at 8.
Sedentary work
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.11567(a).
Lawrence Wiesner, D.O., performed an orthopedic independent medical
examination on June 28, 2013. T at 370. Dr. Wiesner reviewed plaintiff’s medical
records, noting “an MRI of the ankle with a chronic fracture fragment near the lateral
malleolus. A torn anterior talofibular ligament, moderately severe localized, irregular
ankle joint chondral degeneration, four loose bodies, and a segmental longitudinal split
tear and degeneration and tenosynovities involving peroneus brevis tendon.” Id. at 371.
Dr. Wiesner’s impression was “[c]hronic right ankle pain with degenerative changes and
chronically torn ligaments.” Id. Dr. Wiesner concluded that plaintiff was “moderately to
significantly limited with regard to his right ankle” and “is unable to lift, push, pull, or
carry items greater than 20 pounds and not repetitively due to increased stress in the
12
The Commissioner also suggests that the opined standing limitations set forth in Dr. Wiesner’s
questionnaire, as he failed to answer whether plaintiff would need to alternate between sitting and
standing, “likely” indicate that “Dr. Wiesner’s opinion was addressing Plaintiff’s ability to stand continuously
. . . .” Dkt. No. 12 at 9. Although this may have been Dr. Wiesner’s intention, the Court has no way of
confirming such, and declines to do so as reaching such a conclusion merely from the fact that Dr.
Wiesner left one question unanswered would require undue speculation.
21
ankle.” Id. Plaintiff “should not climb ladders[,]” and “would have difficult squatting and
kneeling due to increased stress on his ankle.” Id.
Also on June 28, 2013, Dr. W iesner completed a “questionnaire.” T at 376. Dr.
Wiesner indicated that plaintiff suffered “[r]ecurrant sprains right ankle.”13 Id. Dr.
Wiesner provided that plaintiff would need more than one ten-minute rest period per
hour. Id. He opined that plaintiff’s pain would have a moderate – “a limitation of
function . . . of 20% or greater but not precluding function” – impact on his
concentration, and ability to sustain work pace. Id. Dr. Wiesner indicated that plaintiff
would be off task 30% of the time. Id. The side effects of plaintiff’s medication were
difficulty concentrating and fatigue. Id. at 377. Dr. Wiesner provided that plaintiff could
sit for six hours in an eight-hour work day, and stand or walk for one hour in an eighthour work day. Id. Dr. Wiesner did not answer whether plaintiff needed to alternate
between sitting and standing or estimate how frequently plaintiff should change
positions. Id.
Although it appears that the ALJ made several requests, there are no medical
source statements in the administrative transcript from any of plaintiff’s treating
providers. T at 20, 21. 14 The ALJ gave “significant weight” to Dr. Wiesner’s findings in
the Orthopedic IME “due to his examination of the claimant and the relative consistency
13
The Questionnaire is handwritten, and the remainder of Dr. Weisner’s answer to question 1 is
illegible. T at 376.
14
“[T]he lack of a medical source statement from a treating physician, will not, by itself,
necessarily render the record incomplete.” Beach v. Commissioner of Soc. Sec., 7:13-CV-323 (GLS),
2014 WL 859167, at *3 (N.D.N.Y. Mar. 5, 2014) (citing 20 C.F.R. 404.1513(b)(6); Pellam v. Astrue, 508 F.
App’x 87, 90 (2d Cir. 2013).
22
of these opinions with the longitudinal medical evidence in the record.” Id. However,
the ALJ accorded “reduced weight to Dr. Wiesner’s hand-written answers to the
questionnaire created by the claimant’s representative, because the opinions are not
consistent with the overall medical evidence, including clinical findings.” Id. at 20-21.
The ALJ concluded that the opinions in the questionnaire “that the claimant needs more
than one ten minute rest period per hour, has difficulty with concentration, work place,
and staying on-task, and stand/walk for one hour in an eight-hour workday contradict
Dr. Wiesner’s own report, in which he did not identify these limitations.” Id. at 21. The
ALJ further determined that the answers in Dr. Weisner’s questionnaire “also contradict
consistent clinical findings of good ambulation with the assistance of a brace as well as
consistent medical recommendations to increase exercise . . . .” Id.
The ALJ reviewed medical records from Dr. Kiran Talati, MD, a physician at
Lourdes Hospital. T at 20, 318-21, 347-50. She observed that Dr. Talati noted that
plaintiff “had trace edema and minimal tenderness in the ankle” and “recommended
that the claimant increase his exercise activity.” Id. at 20. The ALJ also referenced
records from Dr. Kamlesh S. Desai of Orthopedic Associates, who, in October 2011,
“noted that, despite swelling and a limited range of motion, the claimant had satisfactory
gait and full weight-bearing in the lower right extremity; he also noted that the claimant
ambulated satisfactorily with the support of a brace.” T at 21. The ALJ also noted a
May 2012 visit where Dr. Desai “noted that the claimant had tenderness of the right
ankle with stable ligaments; he recommended conservative treatment, including the
intermittent use of a brace.” Id. Finally, the ALJ referenced treatment notes from nurse
23
practitioner Scott Rosman, who “stated that the claimant reported ankle pain but had
not received orthopedic care in four or five months,” and, at one visit wherein plaintiff
requested he complete disability paperwork, NP Rosman “noted that plaintiff was
“wearing sandals today and reports he is working side jobs mowing lawn[s] . . . I find it
hard to prove total disability,” would complete the disability paperwork to the best of his
ability, and suggested that plaintiff also have Dr. Desai complete the paperwork. Id. at
20.
Plaintiff asserts that the ALJ must accept Dr. Wiesner’s statement of plaintiff’s
limitations because there is no other medical opinion in the record regarding plaintiff’s
abilities. Dkt. No. 11 at 10. The undersigned concludes that the ALJ did not commit
reversible error in assigning significant weight to Dr. Wiesner’s orthopedic independent
medical examination but reduced weight to his questionnaire answers. T at 20-21.
“There is no requirement that the agency accept the opinion of a consultative examiner
concerning a claimant’s limitations. . . .” Pellam v. Astrue, 508 F. App’x 87, 89-90 (2d
Cir. 2013). Indeed, an ALJ may properly “credit those portions of a consultative
examiner’s opinion which the ALJ finds supported by substantial evidence of record and
reject portions which are not so supported.” Viteritti v. Colvin, No. 14-6760 (DRH), 2016
WL 4385917, at *11 (E.D.N.Y. Aug. 17, 2016) (citing Pellam, 508 F. App’x at 89). This
is true even where the ALJ relies on a consultative examiner’s examination findings, but
rejects the consultative examiner’s medical source statement setting forth “moderate to
severe limitations.” Pellam, 208 F. App’x at 90.
Although Dr. Wiesner’s questionnaire sets forth very restrictive limits on plaintiff’s
24
ability to stand or walk, this limitation is contradicted by other record evidence even
absent another medical source statement in the record. Further, during Dr. Wiesner’s
physical examination of plaintiff, Dr. Wiesner identified certain physical limitations, such
as a limited ability to carry items over twenty pounds, climb ladders, squat, or kneel, but
did not identify any limitations with standing. T at 371. Although there is no opinion
regarding plaintiff’s physical abilities or limitations from any treating provider, treatment
notes provide insight into plaintiff’s condition and amount to substantial evidence in
support of the ALJ’s RFC. In August 2013, NP Rosman noted that plaintiff reported
working side jobs mowing lawns and observed that plaintiff was wearing sandals. Id. at
401. NP Rosman also noted that he “f[ou]nd it hard to prove total disability[.]” Id. In
October 2011, Dr. Desai noted that plaintiff had a satisfactory gait, had full weight
bearing ability in his lower extremity, and successfully ambulated with a brace. Id. at
335. In May 2012, Dr. Desai observed that plaintiff was “not using any brace for the
ankle.” Id. at 333. Further, medical professionals recommended that plaintiff exercise
in order to lose weight and reduce the stress on his ankle. Id. at 319, 333-34. Further,
plaintiff testified at the hearing that he performed activities of daily living that are
inconsistent with his argument that he is unable to perform sedentary work: he performs
some childcare duties for his five children, including watching his children while his wife
goes to the grocery store; he sometimes goes to the grocery store with his wife; he
cooks dinner for his family one to two nights per week; he prepares meals for himself;
he occasionally vacuums; he takes out the trash; and he puts away a few dishes. Id. at
63-67.
25
As the Second Circuit has made clear, “‘under the substantial evidence standard
of review, it is not enough for Plaintiff to merely disagree with the ALJ's weighing of the
evidence or to argue that the evidence in the record could support her position. Plaintif f
must show that no reasonable factfinder could have reached the ALJ's conclusions
based on the evidence in record.’” McAllister v. Colvin, 3:14-CV-01488 (TWD), 2016
WL 1122059, at *12 (N.D.N.Y. Mar. 22, 2016) (citing Brault, 683 F.3d at 448). Here,
“the record demonstrates that the [ALJ] carefully reviewed the entire record . . .and
declined to adopt those [limitations] that were unsupported.” See Cosme v. Colvin, 15CV-6121P, 2016 WL 4154280, *12 (W.D.N.Y. Aug. 5, 2016). The undersigned finds
that the ALJ’s conclusion that plaintiff had the RFC to perform sedentary work, including
standing or walking for a maximum total of two hours in an eight-hour work day, is
supported by substantial evidence as the objective medical evidence and plaintiff’s
testimony do not support Dr. Wiesner’s questionnaire answer indicating that plaintiff is
unable to stand for more than a total of one hour in an eight-hour day, must take more
than one ten-minute rest per hour, and would be off task more than thirty percent of the
time. T at 376. Thus, reconsideration of this matter on remand is not required.
3. Credibility
Plaintiff argues that the ALJ erred in relying on his history of conservative
treatment in assessing his credibility. Dkt. No. 11 at 12. Defendant does not address
this exact argument, but instead contends that the ALJ’s credib ility assessment was
26
proper insofar as plaintiff’s complaints of pain were “not entirely credible.” Dkt. No. 12
at 10-11.
Once an ALJ determines that the claimant suffers from a “medically
determinable impairment[ ] that could reasonably be expected to produce the
[symptoms] alleged,” he or she “must evaluate the intensity and persistence of those
symptoms considering all of the available evidence; and, to the extent that the
claimant's [subjective] contentions are not substantiated by the objective medical
evidence, the ALJ must engage in a credibility inquiry.” Meadors v. Astrue, 370 F.
App'x 179, 183 (2d Cir. 2010) (internal quotation marks and citations omitted). In
making this assessment, the ALJ is to “consider the entire case record and g ive specific
reasons for the weight given to the [claimant's] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2,1996). In addition to the objective medical evidence, the ALJ
must consider: “1) daily activities; 2) location, duration, frequency and intensity of any
symptoms; 3) precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6) other
measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV-444, 2012 W L
514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R. § 404.1529(c)(3) (i)-(vi)).
“[A] plaintiff may be deemed less credible ‘if the level or frequency of treatment is
inconsistent with the level of complaints.’” Phelps v. Commissioner of Soc. Sec., 1:15CV-0499 (GTS), 2016 WL 3661405, at *8 (N.D.N.Y. July 5, 2016) (quoting SSR 96-7p,
1996 WL 174186, at *8 (July 2, 1996); Sickles v. Colvin,12-CV-0774, 2014 WL 795978,
at *22 (N.D.N.Y. Feb. 27, 2014); Church v. Colvin, __ F. Supp. 3d __, 2016 W L
27
3944481, at *5 (N.D.N.Y. July 18, 2016) (determining, where the ALJ noted that the
plaintiff’s treatment for musculoskeletal problems was conservative insofar as the
plaintiff declined injections and surgery, that the consideration was not improper as
there was substantial evidence in the record to support the ALJ’s finding that the
plaintiff’s symptoms were not as disabling as alleged).
Here, although the ALJ did refer to plaintiff’s conservative treatment, the ALJ did
not rest her credibility determination solely on this factor. The ALJ also reviewed
plaintiff’s medical records and noted that “multiple radiology reports reveal degenerative
changes in the right ankle” and that plaintiff was reported by treating medical providers
as having satisfactory gait and ambulation and the ability to fully bear his weight with his
lower extremity. T at 19-20. Further, the ALJ pointed to medical records suggesting
that plaintiff was more active – taking “side jobs” mowing lawns – than he testified as
being, and had not seen his orthopedic care provider for period of four to five months.
Id. at 20; Jaworski v. Colvin, 3:15-CV-510 (GLS), 2015 WL 5750041, at *7 (N.D.N.Y.
Sept. 30, 2015) (quoting SSR 96-7, 61 Fed. Reg. at 34,386) (“Information about a
claimant’s daily activities recorded by medical sources and reported in the medical
evidence ‘can be extremely valuable in the adjudicator’s evaluation of an individual’s
statements about pain or other symptoms.’”).
Further, the ALJ took note of plaintiff’s ability to perform some child care tasks,
and cook meals for his family, albeit with his foot propped up. Id. at 19. Thus, the
Court finds that the ALJ’s consideration of plaintiff’s conservative treatment history did
not amount to reversible error. Moreover, even if the ALJ had not considered plaintiff’s
28
conservative treatment, the ALJ’s credibility assessment would still be supported by
substantial evidence due to the inconsistency between plaintiff’s claims of near total
disability and his engagement in activities that would appear less restrictive than those
he claimed capable of performing. See Phelps, 2016 WL 3661405, at *8 (citing
Schlicting v. Astrue, 11 F. Supp. 3d 190, 206-07 (N.D.N.Y. 2012) (concluding that, even
if the ALJ erred in considering the plaintiff’s conservative treatment in assessing
credibility, such would be harmless error where other substantial evidence supported
the ALJ’s credibility determination).
Accordingly, the Court concludes that the ALJ properly complied with the
regulations, and properly set forth the inconsistencies that she relied on in assigning
less credit to plaintiff’s allegations of pain and limitations. Thus, the Court finds that
there is no reason to disturb the ALJ’s credibility assessment, as the assessment is
supported by substantial evidence, and remand on this basis is not needed.
III. Conclusion
Having reviewed the administrative transcript and the ALJ’s findings, the
undersigned concludes that the Commissioner’s determination is not supported by
substantial evidence insofar as the Commissioner failed to meet her burden at step five
of the sequential evaluation, and that remand for further administrative action consistent
with this Memorandum-Decision and Order is needed. Accordingly, it is hereby:
ORDERED that plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) be
29
GRANTED and that the matter be remanded to the Commissioner for additional
proceedings pursuant to sentence four of 42 U.S.C. 405(g) for further
proceedings consistent with this Memorandum-Decision and Order; and it is
further
ORDERED that the Clerk of the Court serve copies of the MemorandumDecision and Order on the parties in accordance with the Court’s Local Rules.
IT IS SO ORDERED.
Dated: September 13, 2016
Albany, New York
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