Campbell v. Colvin

Filing 25

DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 12 Commissioner's Motion for Judgment on the Pleadings; adopting in part Report and Recommendations re 17 Report and Recommendations. This matter is reversed and remanded for further proceedings consistent with this Decision and Order. (The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 3/27/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MELINDA M. CAMPBELL,
Plaintiff,
-vs-

No. 1:13-CV-00775 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Melinda M. Campbell (“plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) denying her
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
The matter was initially before the Court on the parties’ cross
motions for summary judgment.1 The parties’ motions were referred
to Magistrate Judge Hugh B. Scott for consideration of the factual
and legal issues presented, and to prepare and file a Report and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised.
By R&R dated August 8, 2016, Judge Scott recommended that the
Commissioner’s motion be granted and the plaintiff’s motion be

1

This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Scott for a Report and Recommendation, which was completed
and filed on August 8, 2016. The case thereafter was referred to this Court by
order dated March 6, 2017.

denied. For the reasons that follow, the Court declines to adopt
the R&R and instead remands this case for further proceedings
consistent with this Decision and Order.
II.

Procedural History
The record reveals that in April 2010, plaintiff (d/o/b

March

4,

1981)

applied

for

DIB,

alleging

disability

as

of

January 30, 2006. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge
Michal L. Lissek (“the ALJ”) on October 4, 2011 and February 28,
2012. The ALJ issued an unfavorable decision on April 10, 2012. The
Appeals Council denied review of that decision and this timely
action followed. The R&R contains a thorough summary of the record,
which the Court incorporates by reference. See doc. 17 at 2-14.
III. Report and Recommendation
The R&R recommended that the Commissioner’s motion be granted.
Specifically, the R&R rejected plaintiff’s arguments that (1) the
ALJ

erred

in

finding

that

plaintiff’s

impairments

met

the

qualifications of Listing 1.04A or 1.04C; (2) the ALJ failed to
properly apply the treating physician rule; (3) the ALJ erred in
finding that plaintiff could perform past relevant work (“PRW”);
and (4) the ALJ did not properly assess plaintiff’s credibility. On
August

22,

2016,

plaintiff

filed

objections

to

the

R&R.

Specifically, plaintiff contends that the R&R erred in analyzing

2

the step four finding, and in finding that plaintiff did not meet
a listing.
IV.

Discussion
When reviewing a magistrate judge’s report and recommendation,

a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[,]” id.
“[Where] a party fails to object to a portion of an R&R, further
review is generally precluded.” James v. Monroe Cty. Jail, 2005 WL
2030730, *1 (W.D.N.Y. Aug. 23, 2005) (citing Mario v. P & C Food
Mkts. Inc., 313 F.3d 758, 766 (2d Cir. 2000)). The Court notes that
plaintiff has not objected to the portions of the R&R addressing
the ALJ’s application of the treating physician rule and the ALJ’s
credibility finding. Therefore, the Court will not review those
portions of the R&R.
A.

Step Four Finding

Plaintiff

contends

that

the

vocational

expert’s

(“VE”)

testimony was inconsistent with the Dictionary of Occupational
Titles (“DOT”), and that therefore the step four finding, which
relied on the VE’s testimony, was based on legal error. The VE
testified that plaintiff’s past work as a secretary and collector
were

sedentary

and

semi-skilled

3

with

a

specific

vocational

preparation (“SVP”) of four. The VE stated that the DOT code for
secretary was 203.582-064 and the code for collector was 253.382014. However, the correct codes for these titles are 201.362-030
and 241.367-010, respectively.2
The R&R acknowledges the VE did not give the correct DOT
titles for secretary and collector. While the R&R lists the correct
DOT title for collector, it lists the DOT title for “typist,” not
secretary. See doc. 17 at 26 (citing 203.582-066, the code for
typist, as the code for secretary). Moreover, contrary to the VE’s
testimony, the SVP for the title of secretary is six, not four.3 An
SVP of six requires preparation of over one year and up to two
years, whereas an SVP of four requires preparation of “[o]ver
[three] months up to and including [six] months.” DICOT 241.367-010
(description of SVP level four); see DICOT 201.362-030 (description
of

SVP

level

six).

Plaintiff

reported

that

she

worked

as

a

secretary from September through December 1999. Therefore, pursuant

2

The title codes given by the VE do not correspond to any titles in the
DOT, the contents of which the Court takes judicial notice. See, e.g., In re
RadPro SecurPass Scanner Cases, 2014 WL 4054310, *3 (S.D.N.Y. Aug. 13, 2014);
Philpot v. Colvin, 2014 WL 1312147, *9 (N.D.N.Y. Mar. 31, 2014).
3

In reply to plaintiff’s objections, the Commissioner argues that
plaintiff failed to raise the specific argument that her secretarial work did not
satisfy the SVP for the DOT title. However, in her original motion papers,
plaintiff argued that the ALJ’s step four finding was legally erroneous because
he failed to inquire into an apparent inconsistency between the VE’s testimony
and the DOT. The Court finds that plaintiff’s argument in her objections is
sufficiently intertwined with her original argument that the ALJ’s step four
finding was unsupported by substantial evidence, and therefore considers this
issue in reviewing the R&R.

4

to the correct DOT title which had an SVP of six, not four,
plaintiff could not perform this PRW.
Plaintiff

reported

that

she

worked

as

a

collector

from

February 2000 through 2001. Thus, it is unclear exactly how long
plaintiff worked at that job, but based on her report it was for a
time period of at least 10 but not more than 22 months. Therefore,
plaintiff met the SVP level of four for this job. The DOT title for
collector, however, requires light, not sedentary, work. Therefore,
the ALJ’s

finding

that

plaintiff

retained an

RFC

to

perform

sedentary work with various nonexertional limitations did not
support his conclusion that she could perform the job of collector.
Thus, contrary to the ALJ’s conclusion, plaintiff could not
perform

work

as

either

a

secretary

or

a

collector.

The

R&R

recommended that plaintiff’s argument be rejected because any error
at step four was harmless. See doc. 17 at 26-27. However, because
plaintiff’s work as a secretary did not satisfy the SVP requirement
and the job of collector is performed at a light, not sedentary,
exertional level, this case is analogous with Mimms v. Heckler, 750
F.2d 180, 186 (2d Cir. 1984), as plaintiff argues. Id. (“Although
both the ALJ in his opinion, and the vocational expert in her
testimony at the hearings, concluded that the claimant’s vocational
capacity

was

for

sedentary,

semi-skilled

positions,

the

jobs

selected by the expert and relied upon by the ALJ, as being

5

appropriate,

require

the

capacity

to

perform

light

work.”)

(emphasis added) (internal citations omitted).
Thus, the ALJ committed reversible error in finding that
plaintiff

could

perform

her

past

relevant

work

as

either

a

secretary or collector. The requirements of both of these jobs, as
described by the DOT, were inconsistent with the ALJ’s RFC finding
and therefore the court “must conclude that the Secretary failed to
demonstrate the existence of substantial gainful employment of a
sedentary nature, which the claimant was capable of performing.”
Id. This case is therefore remanded for further consideration of
whether plaintiff can perform her PRW, and if not, whether jobs
exist in the national economy which she could perform.
B.

Listing 1.04A

In her objections to the R&R, plaintiff contends that the ALJ
failed to properly develop the record with respect to the findings
of various straight leg raise (“SLR”) tests. However, plaintiff did
not make this argument in her brief supporting her motion for
judgment on the pleadings. In that brief, plaintiff argued that the
results of multiple SLR tests satisfied the requirement of Listing
1.04A; she did not argue that the ALJ should have recontacted
treating physicians to discover where the results were given in
both sitting and supine positions, as required by the regulations.
See doc. 10-1 at 24 (arguing simply that “[p]laintiff had positive
[SLR] tests on multiple examinations”); see also Coffie v. Comm’r

6

of

Soc.

Sec.,

2009

WL

2045618,

*6

(N.D.N.Y.

July

8,

2009)

(“Plaintiff has not provided sufficient evidence of a positive
straight-leg raising test (sitting and supine), as required to meet
Listing § 1.04.”). “[B]ecause [p]laintiff raises this argument for
the first time in her objection to the R & R and has offered no
explanation as to why [s]he did not do so sooner, the Court deems
it waived.” Gallagher v. Astrue, 2013 WL 2528176, *3 (W.D.N.Y.
June 10, 2013).
V.

Conclusion
For the reasons discussed above, the Court declines to adopt

the R&R. The Commissioner's motion for judgment on the pleadings
(Doc. 12) is denied and plaintiff's motion (Doc. 10) is granted.
Plaintiff’s objections (docs. 18, 19) are overruled in part and
sustained in part as discussed above. This matter is reversed and
remanded for further proceedings consistent with this Decision and
Order. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 27, 2017
Rochester, New York.

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