Phillips v. Commissioner of Social Security
MEMORANDUM-DECISION and ORDER: that Plaintiff's motion for judgment on the pleadings (Dkt. No. 10 ) is Denied; that Defendant's motion for judgment on the pleadings (Dkt. No. 14 ) is Granted; that Defendant's unfavorable determination is Affirmed and that Plaintiff's Complaint (Dkt. No. 1 ) is Dismissed. Signed by Magistrate Judge William B. Carter on 4/11/2018. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARK PATRICK PHILLIPS,
COMMISSIONER OF SOCIAL SECURITY,
LAW OFFICES OF STEVEN R. DOLSON
Counsel for Plaintiff
126 North Salina St., Ste. 3B
Syracuse, NY 13202
STEVEN R. DOLSON, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278
DANIELLA CALENZO, ESQ.
William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and 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. (Dkt. Nos. 4, 5.).
Currently before the Court, in this Social Security action filed by Mark Patrick
Phillips (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-
motions for judgment on the pleadings. (Dkt. Nos. 10, 14.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.
Plaintiff was born in 1974. (T. 61.) He completed three years of college. (T.
162.) Generally, Plaintiff’s alleged disability consists of multiple sclerosis (“MS”) and
depression. (T. 161.) His alleged disability onset date is January 1, 2009. (T. 60.) His
date last insured is March 31, 2015. (T. 13.) He previously worked as an electronic
products maintenance mechanic. (T. 21, 162.)
On February 27, 2014, Plaintiff applied for a period of Disability Insurance
Benefits (“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title
XVI, of the Social Security Act. (T. 60.) Plaintiff’s applications were initially denied,
after which he timely requested a hearing before an Administrative Law Judge (“the
ALJ”). On October 6, 2015, Plaintiff appeared before the ALJ, F. Patrick Flanagan. (T.
28-59.) On November 18, 2015, ALJ Flanagan issued a written decision finding Plaintiff
not disabled under the Social Security Act. (T. 10-27.) On April 5, 2017, the Appeals
Council (“AC”) denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial
review in this Court.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 15-23.) First, the ALJ found Plaintiff met the insured status
requirements through March 31, 2015 and Plaintiff had not engaged in substantial
gainful activity since January 1, 2009. (T. 15.) Second, the ALJ found Plaintiff had the
severe impairments of MS and affective disorder. (Id.) Third, the ALJ found Plaintiff did
not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 16.) Fourth, the ALJ found
Plaintiff had the residual functional capacity (“RFC”) to perform less than a full range of
sedentary work. (T. 17-18.) 1 The ALJ found Plaintiff could lift and/or carry ten pounds
occasionally, sit for six hours in an eight hour day, and stand and/or walk for two hours
in an eight hour day. (T. 17.) The ALJ found Plaintiff should avoid exposure to
temperatures higher than 80 degrees. (Id.) The ALJ found Plaintiff could understand,
remember, and carry out simple instructions/tasks, maintain attention and concentration
to perform simple tasks, accept instructions from supervisors, work cooperatively with
coworkers, and greet customers and public. (Id.) The ALJ found Plaintiff was capable
of no more than occasional decision making and was not capable of a job involving
interactions requiring negotiation, conflict resolution, working as part of a team, or fast
paced productions rate tasks. (T. 17-18.) Fifth, the ALJ determined Plaintiff was
incapable of performing his past relevant work; however, there were jobs that existed in
significant numbers in the national economy Plaintiff could perform. (T. 22.)
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
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. §§ 404.1567(a), 416.967(a).
Plaintiff makes two separate arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues the ALJ failed to apply the treating physician rule
and therefore the RFC was not based on substantial evidence. (Dkt. No. 10 at 4-9 [Pl.’s
Mem. of Law].) Second, and lastly, Plaintiff argues the ALJ failed to find a significant
number of jobs exists in the national economy Plaintiff could perform. (Id. at 9-11.)
In response, Defendant makes two arguments. First, Defendant argues the ALJ
properly weighed the opinion of Plaintiff’s treating physician. (Dkt. No. 14 at 9-15 [Def.’s
Mem. of Law].) Second, and lastly, Defendant argues substantial evidence supported
the ALJ’s finding that Plaintiff could perform a significant number of jobs. (Id. at 15-18.)
RELEVANT LEGAL STANDARD
Standard of Review
A court reviewing a denial of disability benefits 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. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and has been defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
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 analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
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).
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
A. Treating Source, Taseer Minhas, M.D.
The Second Circuit has long recognized the treating physician rule set out in 20
C.F.R. §§ 404.1527(c) and 416.927(c) 2. “ ‘[T]he opinion of a claimant's treating
physician as to the nature and severity of the impairment is given ‘controlling weight’ so
long as it is ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case
record.’ ” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008)). There are situations where the treating physician's
opinion is not entitled to controlling weight, in which case the ALJ must “explicitly
consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the
amount of medical evidence supporting the opinion; (3) the consistency of the opinion
Effective March 27, 2017, many of the Regulations cited herein have been amended, as
have SSRs cited herein. Nonetheless, because Plaintiff’s social security application was filed before the
new Regulations and SSRs went into effect, the Court reviews the ALJ's decision under the earlier
regulations and SSRs.
with the remaining medical evidence; and (4) whether the physician is a specialist.' ”
Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)).
However, “[w]here an ALJ's reasoning and adherence to the Regulations is clear, she is
not required to explicitly go through each and every factor of the Regulation.”
Blinkovitch v. Comm'r of Soc. Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4
(N.D.N.Y. Jan. 23, 2017), report and recommendation adopted by 2017 WL 782901
(N.D.N.Y. Feb. 28, 2017) (citing Atwater v. Astrue, 512 F. App’x. 67, 70 (2d Cir. 2013)).
After considering these factors, “the ALJ must ‘comprehensively set forth [his] reasons
for the weight assigned to a treating physician's opinion.’ ” Greek, 802 F.3d at 375
(quoting Burgess, 537 F.3d at 129). “The failure to provide ‘good reasons for not
crediting the opinion of a claimant's treating physician is a ground for remand.’ ” Greek,
802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-130).
Plaintiff’s treating neurologist, Dr. Minhas, treated Plaintiff from 2011 through
2014. (T. 232.) On August 4, 2014, Dr. Minhas completed a “Medical Examination for
Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction
Determination” form for the New York State Office of Temporary and Disability
Assistance. (T. 251-252.) Dr. Minhas indicated Plaintiff was “moderately limited” in his
ability to: walk; stand; lift, carry; push, pull, bend; and do “stairs or other climbing.” (T.
252.) He indicated Plaintiff had “no evidence of limitations” in his ability to sit, see, hear,
or speak. (Id.)
The ALJ afforded Dr. Minhas’s opinion “some weight.” (T. 20.) The ALJ
acknowledged Dr. Minhas as Plaintiff’s treating source, and a specialist; however, the
ALJ stated there was no evidence in the medical record to support the opined bending
limitations. (Id.) The ALJ also noted Plaintiff told Dr. Minhas he had no problems using
stairs. (Id.) The ALJ concluded that the remainder of Dr. Minhas’s opinion was
supported by the evidence in the record and consistent with Plaintiff’s reported activities
of daily living. (Id.)
Plaintiff asserts Dr. Minhas’s opinion was entitled to controlling weight because
the opinion was well supported and because there were no other contrary medical
opinions in the record. (Dkt. No. 10 at 7 [Pl.’s Mem. of Law].) 3 Here, the ALJ adopted
the majority of Dr. Minhas’s opinion and only rejected the doctor’s opinion that Plaintiff
was limited in his ability to bend and climb stairs. (T. 20.) The ALJ provided good
reasons for rejecting bending and climbing limitations. Indeed, Plaintiff indicated he was
able to go up and down stairs without any problem. (T. 234.) Further, as stated by the
ALJ, there was no suggestion in Plaintiff’s medical records that he had limitations for
bending. (T. 20, T. 232-238, 254-258, 260-262.) Therefore, the ALJ provided good
reasons for rejecting the doctor’s bending and climbing limitations.
In the alternative, any error the ALJ may have made in failing to include bending
and climbing limitations in the RFC determination was harmless. At step five the ALJ
determined Plaintiff could perform the occupations of addresser and charge account
clerk. (T. 22.) According to the Dictionary of Occupational Titles (“DOT”), neither
occupation requires bending (kneeling, stooping, and/or crouching) 4 or climbing. DOT
209.587-010, DOT 205.367-014. Because the occupations of addresser and charge
Of note, Plaintiff does not question the ALJ’s mental RFC determination.
Bending may include: to bend the legs alone (kneel); to bend the spine alone (stoop) or bend both the
spine and legs (crouch). SSR 85-15. The DOT provides activity levels for stooping, kneeling, and
account clerk do not require bending or climbing, any error in failing to include a
limitation in the RFC was harmless.
Plaintiff also asserts the ALJ failed to address all of the factors outlined in 20
C.F.R. §§ 404.1527(c) and 416.927(c) in his analysis of Dr. Minhas’s opinion. (Dkt. No.
10 at 8 [Pl.’s Mem. of Law].) As stated herein, “[w]here an ALJ's reasoning and
adherence to the Regulations is clear, she is not required to explicitly go through each
and every factor of the Regulation.” Atwater, 512 F. App’x. at 70. To be sure, the ALJ
did not explicitly go through each factor outlined in the Regulation; however, the ALJ’s
adherence to the Regulations was clear. The ALJ acknowledged Dr. Minhas as
Plaintiff’s treating neurologist and a specialist. (T. 20.) The ALJ also thoroughly
summarized Dr. Minhas’s treatment notations, and treatment notations from other
providers, concerning Plaintiff’s MS. (T. 18-20.) In his evaluation of Dr. Minhas’s
opinion, the ALJ cited evidence in the record which he determined was inconsistent with
the doctor’s bending and climbing limitations. (T. 20.) Therefore, the ALJ did not
commit legal error because his reasoning and adherence to the Regulations was clear.
Plaintiff asserts the ALJ discounted Dr. Minhas’s opinion, which was the only
medical source statement in the record, and therefore the ALJ based his RFC
determination on bare medical findings. (Dkt. No. 10 at 8 [Pl.’s Mem. of Law].) To be
sure, the ALJ is “not permitted to substitute his own expertise or view of the medical
proof for the treating physician's opinion or for any competent medical opinion.” Greek,
802 F.3d at 375. However, the Second Circuit has held that where, “the record contains
sufficient evidence from which an ALJ can assess the [claimant's] residual functional
capacity,” Tankisi v. Comm'r of Soc. Sec., 521 Fed.App’x. 29, 34 (2d Cir. 2013)
(summary order), a medical source statement or formal medical opinion is not
necessarily required, see id.; cf Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013)
(summary order) (upholding ALJ's RFC determination where he “rejected” physician's
opinion but relied on physician's findings and treatment notes). Monroe v. Comm'r of
Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017).
Contrary to Plaintiff’s assertion, the ALJ did not reject the entirety of Dr. Minhas’s
opinion. The ALJ adopted the majority of the doctor’s opinion and only rejected his
opined limitations regarding bending and climbing. Therefore, the ALJ formulated his
RFC based on Dr. Minhas’s statement, as well as objective evidence in the record, and
Plaintiff’s testimony. As further outlined below, substantial evidence in the record
supported the ALJ’s RFC determination.
Plaintiff argues in the alternative, Dr. Minhas’s “moderate” limitations did not
support the ALJ’s RFC determination because the term “moderate” was not defined on
the form and therefore the ALJ was obligated to recontact Dr. Minhas for clarification.
(Dkt. No. 10 at 9 [Pl.’s Mem. of Law.) To be sure, the form completed by Dr. Minhas did
not define the term “moderate.” (T. 252.) The form provided three categories of
functional limitations: no evidence of limitations; moderately limited; and very limited.
(Id.) Although the term moderate was not defined, Dr. Minhas’s statement, along with
other substantial evidence in the record, supported the ALJ’s RFC determination for a
reduced range of sedentary work.
In general, courts have held that although a medical opinion may use terminology
that, on its face, is vague, such language does not render the opinion useless in all
situations. Zongos v. Colvin, No. 5:12-CV-1007, 2014 WL 788791, at *10 (N.D.N.Y.
Feb. 25, 2014) (“[W]hether an [ALJ's] reliance on a consultative examiner's vague
opinion is reversible error is contextual rather than per se. Reviewing courts must
weigh the impact of vague opinion in its unique factual circumstance.”).
Courts have held that a medical opinion was not impermissibly vague where the
conclusion was “well supported by [the doctor’s] extensive examination.” Waldau v.
Astrue, No. 5:11-CV-925, 2012 WL 6681262, at *4 (N.D.N.Y. Dec. 21, 2003); Mauzy v.
Colvin, No. 5:12-CV-866, 2014 WL 582246, at *9 (N.D.N.Y. Feb. 13, 2014). Courts
have also held that medical source statements from examiners which provide vague
language may be rendered “more concrete” by the facts in the underlying opinion and
other opinion evidence in the record. Davis v. Massanari, No. 00-CV-4330, 2001 WL
1524495, at *8 (S.D.N.Y. Nov. 29, 2001) (a consultative examiner's opinion was not too
vague where “the facts underlying that opinion and the other medical opinions in the
record lend it a more concrete meaning”); see Sweeting v. Colvin, No. 12-CV-0917,
2013 WL 5652501, at *8 (N.D.N.Y. Oct. 15, 2013) (plaintiff's contention that consultative
examiner's use of the term “moderate” in his opinion was vague lacked merit as
consultative examiner made specific findings based on physical examination of plaintiff);
Melton v. Colvin, No. 13-CV-6188, 2014 WL 1686827, at *13 (W.D.N.Y. Apr. 29, 2014)
(substantial evidence supported ALJ's RFC determination that plaintiff could perform
sedentary work where consultative examiner opined plaintiff had moderate limitations in
lifting and carrying and other objective evidence in the record to supported this
determination). Here, the ALJ’s determination that Plaintiff could perform sedentary
work was supported by Dr. Minhas’s opinion, objective evidence in the record, and
Sedentary work generally requires sitting for a total of about six hours in an eight
hour workday. SSR 96-6p (S.S.A. July 2, 1996). There is no question from the record
that Plaintiff was able to perform the sitting requirements of sedentary work. Dr. Minhas
opined Plaintiff had no limitations in his ability to sit. (T. 252.) Plaintiff stated in his
Function Report that he had no problems sitting. (T. 173.) At the hearing Plaintiff
testified he was currently working at a position where they allowed him to sit to perform
his duties. (T. 38.) Therefore, the opinion of Dr. Minhas, together with Plaintiff’s
testimony, supported the ALJ’s determination that Plaintiff could perform the sitting
requirements of sedentary work.
The overall evidence in the record supported the ALJ’s determination that
Plaintiff could perform the standing/walking requirements of sedentary work. Sedentary
work required standing/walking generally no more than about two hours total in an eight
hour workday. SSR 96-9p. Plaintiff testified being on his feet and walking was difficult
for him (T. 45) and Dr. Minhas’s opined Plaintiff had moderate limitations in his ability to
stand and/or walk (T. 252). The ALJ took Plaintiff’s testimony and Dr. Minhas’s opinion
into consideration and limited Plaintiff to no more than two hours of walking/standing in
a workday. Objective medical observations in the record supported the ALJ’s
determination as well. Dr. Minhas observed Plaintiff had a normal gait with “some gait
ataxia” on one occasion (T. 233) and noted a normal gait on other visits (T. 237, 253,
256). Another provider noted Plaintiff’s gait had some extensor spasticity, some
scissoring, and he wobbled with Romberg, but did not fall. (T. 261.) At subsequent
appointments the provider noted Plaintiff had “some gait instability”; however, described
Plaintiff’s gait as “fairly normal.” (T. 262.) The ALJ’s RFC determination took into
account Plaintiff’s difficulty walking and/or standing and reasonably limited him to
perform those activities for no more than two hours in a workday. Therefore, despite
complaints of instability, substantial evidence supported the ALJ’s determination Plaintiff
could perform the standing/walking requirements of sedentary work.
Substantial evidence further supported the ALJ’s determination that Plaintiff
perform the lifting and carrying requirements of sedentary work. 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. 20 C.F.R. §§ 404.1567(a),
416.967(a). Plaintiff testified at the hearing he was currently working and lifted and
carried “industrial sized” bags of flour and sugar approximately half an hour out of his
workday. (T. 39.) Dr. Minhas opined Plaintiff had moderate limitations lifting and
carrying. (T. 252.) Therefore, the doctor’s opinion, and Plaintiff’s testimony, supported
the determination Plaintiff could perform the minimal lifting requirements of sedentary
The ALJ was not obligated to recontact the doctor for further clarification because
the record contained sufficient evidence, as outlined above, for the ALJ to make a
determination. See Janes v. Berryhill, 710 F. App’x 33 (2d Cir. 2018) (ALJ not required
to develop record any further when the evidence already presented is adequate for the
ALJ to make a determination); see Morris v. Berryhill, No. 16-2672-CV, 2018 WL
459678, at *2 (2d Cir. Jan. 18, 2018) (duty to recontact arises only if the ALJ lacks
sufficient evidence in the record).
Overall, the ALJ adhered to the treating physician rule and provided good
reasoning for rejection a portion of the treating source’s opinion. The ALJ’s RFC
determination for less than a full range of sedentary work was supported by Dr.
Minhas’s medical opinion, Plaintiff’s testimony, and objective medical evidence in the
record. The ALJ was not required to recontact Dr. Minhas because there was sufficient
evidence in the record upon which he could make his determination.
B. The ALJ’s Step Five Determination
At step five in the sequential evaluation, the ALJ was required to perform a two
part process to first assess Plaintiff's job qualifications by considering his physical
ability, age, education, and work experience, and then determine whether “other work”
existed in the national economy he could perform. See 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. §§ 404.1520(f), 416.920(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct.
1952, 1954, 76 L.Ed.2d 66 (1983). “Other work” must exist in “significant numbers in
the national economy (either in the region where [Plaintiff] live[s] or in several regions in
the country).” 20 C.F.R. §§ 404.1560(c)(1)-(2), 404.1566, 416.960(c)(1)-(2), 416.966.
Neither the Regulations nor the Social Security Rulings define “significant
number.” Koutrakos v. Colvin, No. 3:13-CV-1290, 2015 WL 1190100, at *20-22
(D.Conn. Mar. 16, 2015). Courts have held that a “significant number” of jobs is “fairly
minimal.” Hamilton v. Comm'r of Soc. Sec., 105 F. Supp. 3d 223, 229 (N.D.N.Y. 2015)
(citing Rosa v. Colvin, No. 12-CV-0170, 2013 WL 1292145, at *9 (N.D.N.Y. March 27,
2013)). Courts have held that numbers varying from 9,000 upwards constituted
“significant.” See Hoffman v. Asture, No. 09-CV-5252, 2010 WL 1138340, at *15
(W.D.Wash. Feb. 8, 2010) (9,000 jobs in the national economy was found significant)
(citing Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (10,000 jobs in the national
economy was found significant)).
At step five, the ALJ determined Plaintiff was not disabled because he could
perform the occupations of charge account clerk (DOT 205.367-014) and addresser
(DOT 209.587-010). (T. 22, 57.) In his written decision, the ALJ stated the vocational
expert testified that 2,254 charge account clerk jobs and 1,084 addressor jobs existed in
the national economy. (T. 22.) Plaintiff asserts these jobs do not exist in significant
numbers in the national economy. (Dkt. No. 10 at 10 [Pl.’s Mem. of Law].)
To be sure, a total of 3,338 may not equate to a significant number of jobs.
However, the ALJ’s written determination contained a typographical error. Although the
ALJ’s written decision stated there were 1,084 addresser jobs in the national economy,
the vocational expert testified at the hearing there were “11,084 addresser jobs” in the
national economy. (T. 22, 57.) A total of 13,338 constitutes a significant number of
Defendant asserts the ALJ’s written decision contains a “scrivener’s error” and
remand is not necessary. (Dkt. No. 14 at 17 [Def.’s Mem. of Law]); see Wearen v.
Colvin, No. 13-CV-6189, 2015 WL 1038236, at *12 (W.D.N.Y. Mar. 10, 2015). Plaintiff
maintains Defendant’s argument must fail because it is unclear which of the two
numbers was the figure provided by the vocational expert. (Dkt. No. 10 at 10 [Pl.’s
Mem. of Law].) However, contrary to Plaintiff’s assertion, it is clear the 11,084 number
provided at the hearing was correct and the ALJ’s written decision contained a
typographical error. As stated by the Defendant, the hearing testimony was transcribed
and proofread by two individuals who certified that the document was a “true and
complete transcription.” (Dkt. No. 14 at 17 [Def.’s Mem. of Law], referring to T. 69.)
Therefore, remand is not necessary because the number provided at the hearing was
the correct number of occupations and the ALJ’s written decision contained an error.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is
GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
April 11, 2018
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