Kellogg v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Kellogg's complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 9/1/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES KELLOGG,
Plaintiff,

6:15-cv-471
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Steven R. Dolson
126 North Salina Street, Suite 3B
Syracuse, NY 13202

FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

STEVEN R. DOLSON, ESQ.

SANDRA M. GROSSFELD
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff James Kellogg challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. § 405(g).1
(Compl., Dkt. No. 1.) After reviewing the administrative record and
carefully considering Kellogg’s arguments, the Commissioner’s decision is
affirmed and the complaint is dismissed.
II. Background
On December 29, 2011, Kellogg filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging an onset date of
December 26, 2011. (Tr.2 at 115-126.) After his applications were denied,
(id. at 69-74), Kellogg requested a hearing before an Administrative Law
Judge (ALJ), (id. at 77-79), which was held on May 31, 2013, (id. at 28-55).
On December 23, 2013, the ALJ issued an unfavorable decision finding
Kellogg not disabled and denying the requested benefits, (id. at 10-27),
1

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.
2

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

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which became the Commissioner’s final determination upon the Appeals
Council’s denial of review, (id. at 1-6).
Kellogg commenced this action by filing his complaint on April 20,
2015 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. 10, 14.)
III. Contentions
Kellogg contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 10 at 2-5.)
Kellogg’s sole argument is that the ALJ erred because she did not seek the
testimony of a vocational expert to determine whether a significant number
of jobs exist in the economy that Kellogg could obtain and perform despite
his vision impairment. (Id.) The Commissioner responds that the ALJ’s
decision was supported by substantial evidence and that she properly
relied on the Medical-Vocational Guidelines to support her finding. (Dkt.
No. 14 at 6-10.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
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the ALJ. (Dkt. No. 10 at 1-2; Dkt. No. 14 at 1; Tr. at 15-22.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, 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 *1-3 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Vocational Expert Testimony
At step five of the sequential analysis, the burden shifts to the

Commissioner to produce evidence that an alternative job exists which
Kellogg is capable of performing. See Balsamo v. Chater, 142 F.3d 75, 80
(2d Cir. 1998); Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638,
642 (2d Cir. 1983); see also 20 C.F.R. § 404.1560(c)(2). To that end, the
Commissioner must show a job existing in significant numbers in the
national economy that Kellogg could perform based on his residual
functional capacity (RFC), age, education, and prior vocational experience.
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See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c)(2).
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. § 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275
n.1 (2d Cir. 2009). However, when the claimant’s nonexertional
impairments3 “significantly limit the range of work permitted by his
exertional limitations,” the Commissioner “must introduce the testimony of
a vocational expert (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); see also Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir.
2010). “A nonexertional impairment significantly limits [the] claimant’s
range of work when it causes an additional loss of work capacity beyond a
negligible one or, in other words, one that so narrows [the] claimant’s
possible range of work as to deprive him of a meaningful employment

3

Nonexertional impairments are “[l]imitations or restrictions which affect [the
claimant’s] ability to meet the demands of the jobs other than the strength demands.” 20
C.F.R. § 404.1569a(a).

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opportunity.” Zabala, 595 F.3d at 410-11 (internal quotation marks and
citation omitted). However, “the mere existence of a nonexertional
impairment does not automatically require the production of a vocational
expert nor preclude reliance on the guidelines.” Bapp, 802 F.2d at 603.
Here, the ALJ found that conditions resulting from Kellogg’s loss of
his left eye were nonexertional impairments. (Tr. at 20-21.) Based on
these impairments as well as others, the ALJ determined that Kellogg had
the RFC to perform sedentary work with limitations to avoid unprotected
heights, climbing ladders, and moving machinery because of his lack of
depth perception. (Id. at 18.) However, the ALJ determined that these
limitations had little to no effect on the occupational base, and, thus, were
not significantly limiting. (Id. at 21-22.) Therefore, the ALJ did not call
upon a vocational expert and instead relied on the Guidelines for her
finding of no disability. (Id. at 21.)
Kellogg challenges the ALJ’s failure to use a vocational expert to
determine whether there were significant jobs in the economy that he could
perform. (Dkt. No. 10 at 3-5.) Kellogg contends that his visual impairment
significantly diminished his ability to work because he was not able to
perform the full range of sedentary work. (Id. at 4.) The testimony of a
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vocational expert is not needed if the additional limitations on the
claimant’s RFC would have little to no effect on the occupational base.
See Zabala, 595 F.3d at 410; Stevenson v. Colvin, No. 1:13-CV-1177,
2015 WL 1246033, at *3 (N.D.N.Y. Mar. 18, 2015). The ALJ correctly
recognized that Kellogg’s additional limitations, which prevented him from
climbing ladders or moving machinery, “would not usually erode the
occupational base for a full range of unskilled sedentary work significantly
because those activities are not usually required in sedentary work.” SSR
96-9p, 61 Fed. Red. 34,478, 34,482 (July 2, 1996); (Tr. at 22.) For this
reason, the ALJ did not need to hear testimony from a vocational expert to
make her disability finding at step five of the sequential analysis and did
not err by instead relying on the Guidelines. See Zabala, 595 F.3d at 410;
Bapp, 802 F.2d at 603, 605.
B.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Kellogg’s complaint (Dkt. No. 1) is DISMISSED; and it is further
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ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 1, 2016
Albany, New York

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