Morales v. Commissioner of Social Security
Filing
29
OPINION AND ORDER re: 23 MOTION Deny Commissioner's Motion, Reverse Commissioner's Decision, Remand Action for New Hearing Signature Added. filed by Miladys Morales, 13 MOTION for Judgment on the Pleadings. filed by Commissioner of Social Security. For the foregoing reasons, the Court adopts the Report in full, and overrules the Commissioner's objections. The parties' cross-motions for judgment on the pleadings are DENIED, and this case is REMANDED to the Commissioner for further proceedings. The Clerk of the Court is directed to close this case. SO ORDERED. (Signed by Judge Barbara S. Jones on 10/8/2012) (djc)
USOCSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--x
ELECfRONICAILY FILED
DOC#:
DATEFILE-D-:-/~O/""'Io--(IA~'W-;
MlLADYS MORALES,
Plaintiff,
10 Civ. 8773
(BSJ) (KNF)
v.
Opinion and Order
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
----x
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE
Plaintiff Miladys Morales brought this action against
Defendant Michael J. Astrue, in his capacity as Commissioner of
Social Security ("Commissioner"), seeking judicial review of the
Commissioner's final determination that she was not disabled
under section 1614 (a) (3) (A) of the Social Security Act ("SSA"),
42 U.S.C.
§§
1381-1383f.
Before the Court are the part
cross-motions for judgment on the pleadings.
On January 17, 2012, Judge Fox issued a Report and
Recommendation ("Report") recommending that this Court deny both
motions and remand this action to the Commissioner for further
proceedings.
The Commissioner has made two objections to the
Report's findings:
(1) that the ALJ's failure to provide a
function-by-function analysis of Morales' residual functional
capacity constitutes reversible error, and (2) that the ALJ's
h
erroneous reliance on testimony of the vocational expert that
was inconsistent with SSA policy also compels remand
case to the Commissioner.
this
For the reasons stated below, the
Court adopts the Report in full, denying the cross-motions for
judgment on the pleadings, and remands this case to the
Commissioner for further proceedings.
Procedural Background 1
I.
Morales filed an application for Supplemental Security
Income ("SSI") benefits on December 17, 2007, and it was denied.
Subsequently, a hearing before an ALJ was conducted on March 12,
2009.
The ALJ found on April 7, 2009, that Morales was not
disabled.
On September 9, 2010, Moralesls request for review of
the ALJ's decision was denied by the Appeals Council, which
converted the ALJ's decision to a final decision of the
Commissioner.
Morales commenced
s action for judicial review
the final decision on November 15, 2010.
The Commissioner moved for judgment on the pleadings on
July 11 2011.
Morales cross-moved for judgment on the pleadings
on October 13, 2011.
2012.
Judge Fox issued his Report on January 17,
The Commissioner filed objections to the Report on March
9, 2012, and Plaintiff responded on March 22, 2012.
II.
Discussion
1 The Court assumes familiarity with the Report,
which sets forth the factual
background and medical evidence in great detail. The administrative record
(hereinafter, "R.") includes Plaintiff's medical records as well as a
transcript of the March 12{ 2009, hearing before the ALJ.
2
A.
Applicable Legal Principles
The Court reviews de novo any portions of a Report and
Recommendation to which there are specific written objections.
See Andino v. Fischer, 698 F. Supp. 2d 362, 368 (S.D.N.Y. 2010)
(citations omitted).
The Court adopts portions to which a party
has not specifically objected unless those portions are clearly
erroneous or contrary to law.
See id.
(citations omitted) .
A district court may set aside a determination by the
Commissioner that a claimant is not disabled "only if the
factual findings are not supported by substantial evidence or if
the decision is based on legal error."
126, 131 (2d Cir. 2000)
omitted) .
Shaw v. Chater, 221 F.3d
(internal quotation marks and citations
"Failure to apply the correct legal standard
constitutes reversible error, including, in certain
circumstances, failure to adhere to the applicable regulations."
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)
(internal
citations omitted) .
Under Title XVI of the SSA, "[e]ach aged, blind, or
disabled individual who does not have an eligible spouse" and
whose income and resources fall below a certain threshold shall
be eligible for disability benefits.
42 U.S.C.
§
1382(a).
An
individual applying for such benefits must establish that she is
unable "to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
3
which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than
twelve months./I
42 U.S.C. § 1382c(a) (3) (A).
SSA regulations
outline a five-step process for determining disability claims.
See 20 C. F . R .
B.
§
416. 920 (a) (4) .
Function-by-Function Analysis
Step four of the process requires the ALJ to determine the
claimant's residual functional capacity ("RFC").
416.902 (a) (4) (iv).
Pursuant to a soc
20 C.F.R.
§
1 security policy
interpretation ruling, the RFC "assessment must first identify
the individual's functional limitations or restrictions and
assess his or her work related abilities on a function-by
function basis, including the functions in paragraphs (b),
and (d) of 20 CFR 404.1545 and 416.945.
Only
(c),
ter that may RFC
be expressed in terms of the exertional levels of work,
sedentary, light, medium, heavy, and very heavy.
1996 WL 374184, *1 (Jul. 21 1996).
II
SSR 96-8p,
The Commissioner objects to
Judge Fox's finding that the ALJ did not fulfill his duty with
respect to the function-by-function analysis required to make an
RFC determination.
Having reviewed the ALJ's step four analysis
de novo, the Court agrees with Judge Fox's decision.
Most critical to the ALJ's failure was the absence of any
discussion of how Morales's physical limitations affected her
ability to work on a function-by-function basis.
4
The ALJ began
his analysis with the conclusion that Morales's RFC allowed her
"to perform light exertional work which does not require the
ability to carry out complex or detailed instructions and does
not require the ability to work with the public."
(R. 28.)
He
then listed Morales's capacity to perform certain functions,
concluding that Morales could "occasionally lift and carry up to
twenty pounds at a time,
[could] frequently lift and carry up to
ten pounds at a time,
[could] walk and stand up to six hours out
of an eight hour day,
[could] push and pull weighted objects,
and [could] occasionally bend and stoop."
luded no
rd.
The ALJ
scussion about how Morales's limitations affected
her ability to do work.
Additionally, excluding his statements regarding Morales's
ability to walk and stand, none of the ALJ's statements about
Morales's functional abilit
included a discussion of the
maximum number of hours Morales could perform them over the
course of a five-day work week consisting of eight hour work
days, as is required by SSR 96-8p, 1996 WL 374184
1996) .
(R.
(Jul. 2,
28.)
The Commissioner cites two cases from this District to
support his argument that something slightly less than a
complete function-by-function analysis is sufficient and does
not warrant remand.
(Def.'s Objections, Mar. 9, 2012, 5-7.)
However, both Novak v. Astrue and Cas
5
-Ortiz v. Astrue are
distinguishable from this case because in each of them, the ALJ
explicitly discussed the evidence presented in conjunction with
each of the claimant's physical limitations and was then able to
draw conclusions about the claimant's abilities from that
evidence.
See 07 Civ. 8435 (SAS) , 2008 WL 2882638
July 25, 2008) i 06 Civ. 0155
Sep. 21, 2007).
(DAB), 2007 WL 2745704
(S.D.N.Y.
(S.D.N.Y.
Here, it was precisely the ALJ's failure to
provide such an analysis of the evidence that renders the
Commissioner's decision legally deficient.
The Court agrees with Judge Fox's finding that the ALJ's
failure to assess fully Morales's work related abilities on a
function-by-function basis constitutes legal error compelling
remand of this case to the Commissioner for further proceedings. 2
c.
Reliance on the Vocational Expert's Testimony
The Commissioner also objects to Judge Fox's finding that
the ALJ relied erroneously on testimony by a vocational expert
("VEil) regarding the availability of other work in the national
economy which Morales could perform.
Pursuant to SSR 00-4p,
"SSA adjudicators may not rely on
evidence provided by aVE, VS, or other reliable source of
Judge Fox noted that, although an argument might be made for harmless error
in this case, the Commissioner made no such argument. Accordingly, the Court
agrees with Judge Fox's finding of reversible error, as it is neither clearly
erroneous nor contrary to law. Andino, 698 F. Supp. 2d at 368. Moreover, as
discussed infra, the ALJ relied erroneously on testimony by the vocational
expert ("VE" that conflicted with SSA policies, and remand is warranted on
that mistake alone.
2
6
occupational information if that evidence is based on underlying
assumptions or definitions that are inconsistent with our
regulatory policies or definitions."
4, 2000).
2000 WL 1898704, *2
(Dec.
Here, the VE testified that a hypothetical worker of
Morales' age, education, work experience, and residual
functional capacity who lacked the ability to maintain
concentration and attention for more than 30 minutes could
perform work in the national economy.
(R. 50.)
That testimony
conflicts directly with an SSA policy that to be qualified to
perform any job
l
an individual must be able "to maintain
concentration and attention for extended periods (the
approximately 2-hour segments between arrival and first break,
lunch
l
second break, and departure."
(Report at 31 (quoting
Program Operations Manual System DI 25020.010).}
Although
required to attempt to resolve such a conflict, the ALJ did not
endeavor to do so.
See SSR 00-4p, 2000 WL 1898704, *3-4.
In an attempt to minimize the significance of this
inconsistency, the Commissioner argues that the ALJ
d not make
a finding regarding Morales's attention span and that therefore
the ALJ did not rely on any testimony on that point.
Objections at 8.}
(Def.'s
The Court is not persuaded.
Consideration of a claimant/s attention span is a factor in
determining her RFC.
(R. 209-10 (SSA form listing "Sustained
Concentration and Persistence" as one element in mental RFC
7
assessment).
Here, the ALJ described the VEts testimony that a
hypothetical worker of Morales's age, education, work
experience, and RFC could perform work in the national economy.
(R. 32-33.)
He then clearly stated that he relied on that
testimony in concluding that Morales was "capable of making a
successful adjustment to other work that exists in significant
numbers in the national economy."
(R.33.)
The Court agrees
with Judge Fox that the ALJ erroneously relied on testimony by
the VE that was contrary to SSA policy and that remand on this
issue is warranted. 3
Conclusion
For the foregoing reasons, the Court adopts the Report in
full, and overrules the Commissioner's objections.
The parties'
cross-motions for judgment on the pleadings are DENIED, and this
case is REMANDED to the Commissioner for further proceedings.
The Clerk of the Court is directed to close this case.
SO ORDERED:
3 During the hearing,
the ALJ asked the VE what the impact would be on the
availability of work for a person who could not maintain attention or
concentration for more than 30 minutes.
(R. 50.)
The VE responded that
"[t]hey could do the work I identified or any work in the national or
regional economy./I
.}
The Commissioner suggests that either the VE mis
spoke or the transcript is inaccurate, and that the VE must have intended to
say that such an individual could not perform the jobs the VE had just
listed.
{Def.'s Objections at 8.)~owever logical this inference may be,
the Court will not disturb the record.
8
JUDGE
Dated:
New York, New York
October 8, 2012
9
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