Wyman v. Colvin

Filing 12

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with this Order. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 3/29/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CLARENCE R. WYMAN,
Plaintiff,

5:16-cv-25
(GLS)

v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

HOWARD D. OLINSKY, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

1

The Clerk is directed to amend the caption and substitute Nancy Berryhill as the
Acting Commissioner of Social Security. See Fed. R. Civ. P. 25(d).

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Clarence R. Wyman challenges the Commissioner of Social
Security’s denial of supplemental security income (SSI), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Wyman’s arguments, the
Commissioner’s decision is reversed and remanded for further
proceedings.
II. Background
On October 15, 2013, Wyman filed an application for SSI under the
Social Security Act (“the Act”). (Tr.2 at 96, 178-83.) After his application
was denied, (id. at 114-21), Wyman requested a hearing before an
Administrative Law Judge (ALJ), (id. at 122-24), which was held on March
31, 2015, (id. at 26-55). On July 8, 2015, the ALJ issued an unfavorable
decision finding Wyman ineligible for SSI and denying the requested
benefits, (id. at 10-25), which became the Commissioner’s final
determination upon the Appeals Council’s denial of review, (id. at 1-5).

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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

Wyman commenced this action by filing his complaint on January 6,
2016 wherein he sought review of the Commissioner’s determination. (See
generally Compl.) The Commissioner filed an answer and a certified copy
of the administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 9, 10.)
III. Contentions
Wyman contends the ALJ erred because he did not find that his
hypertension was a severe impairment and substantial evidence did not
support either his evaluation of the medical opinion evidence or the
residual functional capacity (RFC) assessment. (Dkt. No. 9 at 6-12.)
Additionally, Wyman argues the Commissioner did not meet her burden at
step five to prove that there is work in the national economy that Wyman
could perform. (Id. at 13-14.) In response, the Commissioner asserts that
the ALJ’s decision is legally sound and supported by substantial evidence.
(Dkt. No. 10 at 10-21.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 9 at 2; Dkt. No. 10 at 1-3; Tr. at 15-20.)
V. Standard of Review

The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 is well established and will not be repeated here. For
a full discussion of the standard, the court refers the parties to its previous
decision in Christiana v. Comm’r of Soc. Sec. Admin., No. 1:05-CV-932,
2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
VI. Discussion
A.

Step Five Determination
Wyman contends that the ALJ erred by failing to consult a vocational

expert despite evidence of significant nonexertional limitations.4 (Dkt.
No. 9 at 13-14.) The Commissioner argues that the ALJ properly relied on
the Medical-Vocational Guidelines to determined that there were a
significant number of unskilled jobs that Wyman could perform. (Dkt.
No. 10 at 20-21.)
At step five, the burden shifts to the Commissioner to “show that
there is work in the national economy that the claimant can do.” Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). To that end, the

3

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.
4

Exertional limitations “affect[] [the] ability to meet the strength demands of jobs,”
whereas nonexertional limitations “affect [the] ability to meet the demands of jobs other than
the strength demands.” 20 C.F.R. § 416.969a(a).

Commissioner must show a job existing in significant numbers in the
national economy that Wyman could perform based on his RFC, age,
education, and prior vocational experience. See 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. § 416.960(c).
In making a step five ruling, an ALJ may rely on the
Medical–Vocational Guidelines found in 20 C.F.R. pt. 404, subpt. P, app. 2,
as long as the claimant's age, education, work experience, and RFC
coincide with the criteria of a rule contained in those Guidelines. See 20
C.F.R. § 416.969; see also Calabrese v. Astrue, 358 F. App’x 274, 275 n.1
(2d Cir. 2009). However, when a claimant's nonexertional impairments
“significantly limit the range of work permitted by his exertional limitations,”
the Commissioner “must introduce the testimony of a [VE] (or other similar
evidence) that jobs exist in the economy which [the] claimant can obtain
and perform.” Bapp v. Bowen, 802 F.2d 601, 603, 605 (2d Cir. 1986)
(internal quotation marks and citation omitted).
In the RFC assessment, the ALJ found that Wyman could perform
light work. (Tr. at 16.) The ALJ also determined that Wyman had
additional nonexertional impairments which restricted him from climbing
ladders or scaffolding as well as crawling and that he could only
occasionally kneel, crouch, climb stairs, work at unprotected heights, and

be exposed to dust, odors, fumes, and pulmonary irritants. (Id.) At step
five, the ALJ relied on guidance from SSR 85-15 to determine that
Wyman’s nonexertional impairments would not significantly limit his ability
to perform light work. (Id. at 19-20.) Thus, the ALJ used the Guidelines to
find that jobs exist in significant numbers in the national economy that
Wyman could perform. (Id.)
The ALJ’s reliance on SSR 85-15, however, was misplaced. SSR
85-15 applies if a claimant only suffers from nonexertional limitations and
not where a claimant suffers from a combination of exertional and
nonexertional limitations. See Prince v. Colvin, No. 13 Civ. 7666, 2015 WL
1408411, at *21 (S.D.N.Y. Mar. 27, 2015); see also Roma v. Astrue, 468 F.
App’x 16, 20 (2d Cir. 2012) (“SSR 85-15, descriptively titled ‘The MedicalVocational Rules as a Framework for Evaluating Solely Nonexertional
Impairments,’ does not apply to a case, such as this one, in which the
claimant suffers from a combination of exertional and non-exertional
impairments.” (emphasis in the original)). Here, the ALJ found that Wyman
had exertional limitations for light work as well as nonexertional limitations
for postural-manipulative impairments and environmental conditions. (Tr.
at 16.) Because Wyman had both exertional and nonexertional limitations,
the ALJ’s reliance on SSR 85-15 was legal error.

Furthermore, the ALJ did not explain his conclusion that “the
additional limitations have little or no effect on the occupational base of
unskilled light work.” (Id. at 19.) By relying on the Guidelines, rather than
the testimony of a vocational expert, the ALJ was required to explain his
finding that Wyman’s nonexertional limitations had only a negligible impact
on the range of work permitted by his exertional limitations. See Selian v.
Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (“We have explained that the ALJ
cannot rely on the [Guidelines] if a non-exertional impairment has any more
than a ‘negligible’ impact on claimant’s ability to perform the full range of
work, and instead obtain the testimony of a vocational expert.”). For this
additional reason, the ALJ’s failure to elaborate on or explain his
conclusion that a vocational expert’s testimony was not necessary in
Wyman’s case is legal error that warrants remand. See, e.g., Seals v.
Colvin, No. 15-CV-387, 2016 WL 3996718, at *4 (W.D.N.Y. July 25, 2016);
Prince, 2015 WL 1408411, at *21-22.
On remand, the ALJ should provide a clear explanation regarding the
extent to which Wyman’s nonexertional limitations diminish his ability to

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perform light, unskilled work.5 If the ALJ concludes that Wyman’s
nonexertional limitations are more than negligible, then he should consider
vocational expert testimony to determine the existence of jobs in the
national economy that an individual with Wyman’s limitations could
perform. See Selian, 708 F.3d at 421. Although the court finds that the
ALJ did not commit legal error and substantial evidence supports his
conclusions on Wyman’s remaining contentions, see supra note 5, the
court does not intend to limit the scope of the ALJ’s review on remand.
See Marvin v. Colvin, No. 3:15-cv-74, 2016 WL 2968051, at *2-3 (N.D.N.Y.
May 20, 2016) (“[I]f the court intends to so limit the Commissioner[’s scope
of review] it will do so expressly.”). Wyman is free to introduce new
evidence to support his disability claim, which the ALJ shall evaluate
according to the sequential analysis. See id. at *3 (explaining that an ALJ
is not bound by the law of the case when presented with compelling
reasons such as new evidence); Calderon v. Astrue, 683 F. Supp. 2d 273,
5

Wyman also argues that the ALJ failed to consider his hypertension to be a severe
impairment, failed to properly weigh the medical opinion evidence, and failed to support the
RFC assessment with substantial evidence. (Dkt. No. 9 at 6-13.) The court has reviewed
these arguments against the ALJ’s decision and underlying record and finds that the ALJ has
not committed any legal error and substantial evidence supports his determination. See 20
C.F.R. §§ 416.921, 416.927(c), 416.945(a)(3); SSR 85-28, 1985 WL 56856, at *3 (1985);
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); Farrell v. Comm’r, No. 7:12-cv-418, 2-13 WL 4455697, at *2 (N.D.N.Y. Aug. 16, 2013).

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276-77 (E.D.N.Y. 2010); see also Ali v. Mukasey, 529 F.3d 478, 490 (2d
Cir. 2008) (noting that cogent and compelling reasons for rejecting the law
of the case doctrine include “an intervening change in controlling law, the
availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” (internal quotation marks and citation omitted)).
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 29, 2017
Albany, New York

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