Peterson v. Colvin

Filing 15

-CLERK TO FOLLOW UP---DECISION AND ORDER GRANTING Plaintiff's 12 MOTION for Judgment on the Pleadings and DENYING the Commissioner's 8 MOTION for Judgment on the Pleadings. The Clerk is directed to close this case accordingly. Signed by Hon. John T. Curtin on 4/4/2016. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JULIETTE ANN PETERSON MOORE,
Plaintiff,
-vs-

14-CV-583-JTC

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

APPEARANCES:

LAW OFFICES OF KENNETH HILLER (TIMOTHY HILLER, ESQ.)
Amherst, New York, for Plaintiff.
WILLIAM J. HOCHUL, JR., United States Attorney (ROBERT R.
SCHRIVER, Special Assistant United States Attorney, of Counsel),
Buffalo, New York, for Defendant.

INTRODUCTION
This matter has been transferred to the undersigned for all further proceedings, by
order of United States District Judge William M. Skretny dated January 11, 2016 (Item 14).
Plaintiff Juliette Moore initiated this action on July 18, 2014 pursuant to the Social
Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final determination of
the Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act. Both parties
have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure (see Items 8, 12). For the following reasons, plaintiff’s motion is granted
and the Commissioner’s motion is denied.

BACKGROUND
Plaintiff was born on July 9, 1979 (Tr. 221).1 She protectively filed an application
for SSI benefits on October 31, 2012, alleging disability due to pain, depression, and
anxiety, with an onset date of July 27, 2009.

Id.

The application was denied

administratively on February 1, 2013 (Tr. 85-97, 113-17) and upon reconsideration on April
26, 2013 (Tr. 98-112, 121-27). Plaintiff then requested a hearing, which was held on
December 4, 2013, before Administrative Law Judge (“ALJ”) David S. Lewandowski (Tr.
41-65). Plaintiff appeared and testified at the hearing, and was represented by counsel.
A vocational expert (“VE”) also appeared and testified.
On February 6, 2014, the ALJ issued a decision finding that plaintiff was not
disabled within the meaning of the Act (Tr. 13-34). At the hearing, plaintiff amended the
alleged onset date to the date of application, October 31, 2012 (Tr. 16). The ALJ found
that plaintiff had the following severe impairments: right ankle osteoarthritis, asthma,
vertigo, headaches, mood disorder, post- traumatic stress disorder (“PTSD”), and anxiety
with panic attacks. He also found the following non-severe impairments: fibromyalgia, right
flank pain, abdominal pain, and neck and low back problems (Tr. 19). Following the
sequential evaluation process outlined in the Social Security Administration regulations
(see 20 C.F.R. §§ 404.1520, 416.920), the ALJ found that none of plaintiffs impairments
met or medically equaled any of the impairments listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”) (Tr. 16-18). The ALJ discussed the evidence in the record,

1

Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner in this action (Item 7).

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including medical records, reports from treating and consultative medical sources, and
plaintiff’s hearing testimony, and determined that plaintiff has the residual functional
capacity (“RFC”) to perform sedentary work with specific postural limitations related to
climbing, avoidance of pulmonary irritants, limitations to simple tasks with occasional
interaction with others, and no travel (Tr. 22). The ALJ found that plaintiff had no past
relevant work but, considering her age (younger individual), education (GED), experience,
and RFC, and relying on the testimony of a VE, determined that plaintiff could adjust to
other work that exists in significant numbers in the national economy (Tr. 32-33).
Accordingly, the ALJ found that plaintiff has not been disabled within the meaning of the
Act from the onset date of October 31, 2012 to the date of the decision (Tr. 34).
The ALJ’s decision became the final decision of the Commissioner on May 22,
2014, when the Appeals Council denied plaintiff's request for review (Tr. 9-12), and this
action followed.
In her motion for judgment on the pleadings, plaintiff raises a single issue - whether
substantial evidence supports the ALJ’s conclusion that plaintiff can perform jobs that exist
in significant numbers in the national economy. See Items 8-1, 13. The government
contends that the Commissioner’s determination should be affirmed because the ALJ’s
decision was made in accordance with the pertinent legal standards and is based on
substantial evidence. See Item 12-1.

DISCUSSION
I.

Scope of Judicial Review
The Social Security Act provides that, upon district court review of the
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Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive ….”

42 U.S.C. § 405(g).

Substantial evidence is defined as evidence which “a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. March 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,

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in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).

Thus, the Commissioner’s

determination cannot be upheld when it is based on an erroneous view of the law, or
misapplication of the regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”

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Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 2013). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the
court “must show special deference” to credibility determinations made by the ALJ, “who
had the opportunity to observe the witnesses’ demeanor” while testifying. Yellow Freight
Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).

II.

Standards for Determining Eligibility for Disability Benefits
To be eligible for SSI benefits under the Social Security Act, plaintiff must present

proof sufficient to show that she suffers from a medically determinable physical or mental
impairment “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 12 months …,” 42 U.S.C.
§ 423(d)(1)(A), and is “of such severity that [s]he is not only unable to do [her] previous
work but cannot, considering [her] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy ….” 42 U.S.C.
§ 423(d)(2)(A); see also 20 C.F.R. § 416.905(a). As indicated above, the regulations set
forth a five-step process to be followed when a disability claim comes before an ALJ for
evaluation of the claimant's eligibility for benefits. See 20 C.F.R.§ 416.920. First, the ALJ
must determine whether the claimant is presently engaged in substantial gainful activity.
If the claimant is not, the ALJ must decide if the claimant has a “severe” impairment, which
is an impairment or combination of impairments that has lasted (or may be expected to
last) for a continuous period of at least 12 months which “significantly limits [the claimant's]
physical or mental ability to do basic work activities ….” 20 C.F.R. § 416.920(a)(4)(ii); see
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also § 416.909 (duration requirement). If the claimant's impairment is severe and of
qualifying duration, the ALJ then determines whether it meets or equals the criteria of an
impairment found in the Listings. If the impairment meets or equals a listed impairment,
the claimant will be found to be disabled. If the claimant does not have a listed impairment,
the fourth step requires the ALJ to determine if, notwithstanding the impairment, the
claimant has the residual functional capacity to perform his or her past relevant work. See
20 C.F.R. § 416.920(a)(4)(iv). If the claimant has the RFC to perform his or her past
relevant work, the claimant will be found to be not disabled. Finally, if the claimant is not
capable of performing the past relevant work, the fifth step requires the ALJ to determine
whether the claimant is capable of performing any work which exists in the national
economy, considering the claimant's age, education, past work experience, and RFC. See
Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Lynch v. Astrue, 2008 WL 3413899, at
*2 (W.D.N.Y. Aug. 8, 2008); 20 C.F.R. § 416.920(a)(4)(v).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). “In the
ordinary case, the Commissioner meets h[er] burden at the fifth step by resorting to the
applicable medical vocational guidelines (the grids), … [which] take into account the
claimant's residual functional capacity in conjunction with the claimant's age, education,
and work experience.” Rosa, 168 F.3d at 78 (internal quotation marks, alterations and
citations omitted). If, however, a claimant has non-exertional limitations (which are not

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accounted for in the Grids) that “significantly limit the range of work permitted by [her]
exertional limitations then the grids obviously will not accurately determine disability
status ….” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation marks and
citation omitted). In such cases, “the Commissioner must ‘introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the national economy which
claimant can obtain and perform.’ ” Rosa, 168 F.3d at 78 (quoting Bapp, 802 F.2d at 603).

III.

The ALJ’s Disability Determination
In this case, ALJ Lewandowski determined at step one of the sequential evaluation

that plaintiff had not engaged in substantial gainful activity since October 31, 2012, the
alleged onset/application date (Tr. 19). At steps two and three, as indicated above, the
ALJ found that plaintiff did not have an impairment or combination of impairments that
meets or equals the severity of any of the impairments in the Listings (Tr. 19-21).
At step four, the ALJ discussed the medical evidence of record and hearing
testimony. He found that while plaintiff’s medically determinable impairments could
reasonably be expected to cause the symptoms alleged, her statements concerning the
intensity, persistence, and limiting effects of these symptoms were “not fully credible” (Tr.
24). The ALJ afforded significant weight to the opinion of psychiatric consultative examiner
Dr. Gregory Fabiano, Ph.D. (Tr. 32, 1056-70) and some weight to the consultative
examination of Dr. Abrar Siddiqui (Tr. 1071-81). Based on his review of the evidence, the
ALJ found that plaintiff had the RFC to perform sedentary work with the following nonexertional limitations: no ladder, rope, or scaffold climbing; avoidance of pulmonary
irritants; plaintiff can understand, remember, and carry out simple instructions and perform
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simple tasks, with occasional contact with others; no travel; plaintiff could adjust to frequent
changes in the workplace setting; and plaintiff could be off-task 10% of the time (Tr. 22).
The ALJ heard the testimony of VE Rachel Duchon. Ms. Duchon testified that she
holds a Masters of Science degree in counseling and a Masters in Business
Administration. She is a certified rehabilitation counselor, vocational expert, licensed
mental health counselor, and disability analyst (Tr. 65). Based on a hypothetical person
with the RFC as found above, Ms. Duchon testified that plaintiff could perform the position
of telephone quotation clerk, Dictionary of Occupational Titles (“DOT”) # 237.367-046, a
sedentary, unskilled job with 966,150 positions in the national economy and 84,940 in New
York State. She could also perform the job of envelope addresser, another unskilled,
sedentary position, DOT # 209.587-010, with 96,560 positions in the national economy and
16,500 in New York State. Finally, she could perform the job of call-out operator, DOT#
237.367-014, an unskilled, sedentary job with 51,650 positions in the national economy
and 2,820 in New York State (Tr. 67-68).
On cross examination, Ms. Duchon stated that jobs are grouped in the DOT and that
the number of jobs is published by the U.S. Bureau of Labor Statistics (“BLS”). The BLS
specifies the number of jobs by group. For instance, the telephone quotation clerk job falls
within a group of 14 different job titles under the group heading “Receptionists and
Information Clerks.” The BLS does not individually specify the number of jobs in each
group. The number of jobs to which she testified was the number of jobs in the larger job
grouping. Ms. Duchon could not give an exact number of telephone quotation clerk,
envelope addresser, or call-out operator jobs in the national economy (68-70).
Relying on the VE’s testimony, the ALJ found that plaintiff was capable of making
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a successful adjustment to other work that exists in significant numbers in the national
economy. Accordingly, the ALJ found that plaintiff was not disabled under the Act (Tr. 34).

IV.

Plaintiff’s Motion
A. Substantial Evidence
Plaintiff argues that the VE's testimony was insufficient to support a finding that a

significant number of jobs exist in the national economy that she can perform because the
VE failed to specify the number of positions for a telephone quotation clerk, envelope
addresser, or call-out operator that exist in the national economy. The court agrees that
remand is required, as the ALJ's determination is not supported by substantial evidence.
Where a claimant is able to demonstrate that her impairments prevent a return to
past relevant work, the burden shifts to the Commissioner, at step five, to prove that a job
exists in the national economy that the claimant is capable of performing. See Balsamo
v. Chater, 142 F.3d 75, 80 (2d Cir. 1998); White v. Sec'y of Health & Human Servs., 910
F.2d 64, 65 (2d Cir. 1990). As discussed above, when a claimant's non-exertional
limitations significantly diminish her ability to perform the full range of work at any
exertional level, then the ALJ should rely on “either the testimony of a VE or other similar
evidence regarding the existence of jobs in the national economy for an individual with
claimant's limitations.” Bapp, 800 F.2d at 606. According to the regulations, “work exists
in the national economy when it exists in significant numbers either in the region where [the
claimant] live[s] or in several other regions of the country.” 20 C.F.R. § 416.966(a). This
definition assures that individuals are not denied benefits on the basis of “[i]solated jobs

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that exist only in very limited numbers in relatively few locations outside of the region where
[the claimant] lives.” 20 C.F.R. § 416.966(b). “Courts have generally held that what
constitutes a ‘significant’ number is fairly minimal.” Fox v. Comm'r of Soc. Sec., 2009 WL
367628, at *20 (N.D.N.Y. Feb.13, 2009).
Here, the ALJ relied on the testimony of a VE, who in turn relied on the DOT job
titles and job numbers from the BLS, to determine that plaintiff is capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy. (Tr. 34). The VE testified that a hypothetical claimant with plaintiff’s functional
limitations and capabilities could perform the jobs of telephone quotation clerk, envelope
addresser, and call-out operator, and provided numbers of positions that exist in the
national and state economy for those jobs (Tr. 67-68). However, upon questioning by
plaintiff’s counsel, the VE explained that the numbers to which she testified pertained to
a broad range of positions, not just those jobs that plaintiff could perform based on her
RFC. Significantly, the VE testified that she could not even provide a “ballpark estimate”
of the number of jobs she testified that plaintiff could perform (Tr. 69-70). Subsequently,
the ALJ failed to make any inquiry into the foundation and reliability of the job numbers
provided by the VE (Tr. 73).
Under these circumstances, the VE's testimony does not constitute substantial
evidence to support the ALJ's step five conclusion because it did not provide a “fair
estimate of the jobs available” that plaintiff can actually perform. Jones–Reid v. Astrue,
934 F.Supp.2d 381, 407 n. 13, aff’d 515 F. App’x 32 (2d Cir. 2013); see Decker v. Astrue,
2014 WL 2176960, *6 (N.D.N.Y. May 22, 2014) (remand required where VE’s job numbers
pertained to a broad range of positions, including jobs that plaintiff could not perform based
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on her RFC); Marvin v. Colvin, 2014 WL 1293509, *10 (N.D.N.Y. Mar. 31, 2014) (same);
Rosa v. Colvin, 2013 WL 1292145, at *9–10 (N.D.N.Y. Mar.27, 2013) (holding that the
Commissioner did not sustain her burden at step five, where the ALJ relied on a VE's
testimony concerning numbers of jobs available that pertained to a broad category of jobs,
including those which the claimant could not perform); Johnston v. Barnhart, 378
F.Supp.2d 274, 283 (W.D.N.Y. 2005) (finding that the ALJ erred where the VE's testimony
concerning numbers of jobs available pertained to broad category of jobs that included
positions other than the two jobs claimant could perform within her limitations and the VE
could not say how many positions existed for those two jobs); cf. Kennedy v. Astrue, 343
F. App'x 719, 722 (2d Cir. 2009) (concluding that a VE's testimony was reliable because
it was apparent that the VE arrived at her estimated figures for the positions which the
claimant could actually perform by discounting from the total numbers for numerous DOT
titles). Accordingly, the matter must be remanded for further administrative proceedings.

CONCLUSION
For the foregoing reasons, plaintiff's motion for judgment on the pleadings (Item 8)
is granted, the Commissioner's decision is reversed, and the case is remanded to the
Commissioner for further administrative proceedings consistent with this Decision and
Order. Defendant's motion for judgment on the pleadings (Item 12) is denied. The Clerk
of the Court is directed to close the case.

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So ordered.

_____\s\ John T. Curtin_____
JOHN T. CURTIN
United States District Judge
Dated: April 4, 2016

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