Wojcik v. Colvin
Filing
23
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is reversed and remanded for further administrative proceedings; denying 15 Commissioner's Motion for Judgment on the Pleadings; and adopting Report and Recommendations re 17 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/16/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GAIL M. WOJCIK,
Plaintiff,
-vs-
No. 1:15-CV-00641 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Gail M. Wojcik (“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
judgment on the pleadings.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
3,
2016,
Magistrate
Judge
Scott
recommended that this case be remanded for further consideration.
Doc. 17. The Commissioner filed objections on August 17, 2016.
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 3, 2016. The case was referred to this Court by order dated
November 8, 2016.
Doc. 19. For the reasons set forth below, the Court overrules the
Commissioner’s objections and adopts the R&R in its entirety.
II.
Procedural History
The record reveals that in March 2012, plaintiff (d/o/b
September 16, 1957) applied for DIB, alleging disability as of July
2004. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge Donald
McDougall (“the ALJ”) on December 23, 2013. The ALJ issued an
unfavorable decision on February 28, 2014. The Appeals Council
granted review of that decision and this timely action followed.
III. Report and Recommendation
The R&R noted that the main issue in this case is whether
plaintiff had a disability onset date prior to September 30, 2005,
her date last insured. The R&R found that, at step three of the
sequential evaluation process, see
correctly
found
plaintiff
did
20 C.F.R. § 404.1520, the ALJ
not
suffer
from
a
disability
satisfying Listing 1.04(A) prior to September 30, 2005, her date
last
insured.
See
20
C.F.R.
Part
404,
Subpart
P,
App’x
1,
§ 1.04(A).
However, the R&R found that the ALJ erred at step four in
determining whether plaintiff could perform past relevant work.
Specifically, the R&R found that vocational expert (“VE”) testimony
was unclear on the issue of plaintiff’s ability to perform past
relevant work as a teacher’s aide, and that “[n]one of the dialogue
with the VE helps the Court understand what functions, jobs, SVPs
2
[specific vocational preparation level], and timeframe the ALJ
ultimately considered.” See doc. 17 at 17-18.
The Commissioner objects to the R&R, arguing that the ALJ
properly relied on the VE’s testimony and that the ALJ was not
required to obtain expert testimony in any event. Plaintiff has not
objected to the R&R.
IV.
Discussion
When reviewing a magistrate judge’s report and recommendation,
a district court must “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
an
objection
does
not
raise
new
arguments
but
merely
reiterates those raised on the original motion, the Court reviews
an R&R for clear error. See, e.g., Jaroszynski v. Barnhart, 2004 WL
1812706, *2 (W.D.N.Y. Apr. 28, 2004).
The impairments that the ALJ found to be severe in this case
were “injuries to the neck and arms sustained in an accident
[which] occurred in 2004.” T. 15. In support of her motion for
judgment
on
the
pleadings,
plaintiff
argued
that
the
ALJ
erroneously relied on VE testimony that plaintiff could perform
past relevant work as a teacher’s aide because the hypothetical
posed to the ALJ included the limitation of “no more than frequent”
use of her hands for fine manipulation, whereas the ALJ’s actual
3
RFC finding stated the limitation of “less than frequent” use of
her hands for fine manipulation. Doc. 10 at 22-23. Thus, plaintiff
argued, the
represent
hypothetical
her
RFC
as
posed
found
to
by
the
the
VE
did
ALJ.
In
not
accurately
response,
the
Commissioner argued that the discrepancy between the hypothetical
and the RFC finding “should be considered a typographical error.”
Doc. 15–1 at 12. In her objections, the Commissioner argues that
plaintiff did not raise the issue of the VE’s unclear testimony in
her motion papers, and that the R&R therefore erred in recommending
remand on the issue of the VE’s testimony. The Court disagrees, and
finds that plaintiff’s arguments regarding the ALJ’s improper
reliance on inapplicable VE testimony sufficiently preserved the
issue for review by this Court.
The Court agrees with the R&R that the VE testimony was
unclear on the issue of whether plaintiff could perform her past
relevant work as a teacher’s aide. Moreover, the Court cannot find,
on this record, that the ALJ committed a “typographical error” in
his RFC as the Commissioner argues. As noted above, plaintiff’s
impairments stemmed from injuries to her neck and arms, injuries
which
could
affect
her
ability
to
use
her
hands
for
fine
manipulation. The VE’s testimony, as the R&R noted, was confusing,
see doc. 17 at 17-18, and it is therefore unclear whether the ALJ’s
reliance on the VE’s testimony supported his ultimate finding that
plaintiff could perform her past relevant work. See id. (citing
Lugo v. Chater, 932 F. Supp. 497, 504 (S.D.N.Y. 1996) (“Proper use
4
of vocational testimony presupposes both an accurate assessment of
the
claimant’s
consistent
use
physical
of
that
and
vocational
profile
by
the
capabilities,
vocational
and
expert
a
in
determining which jobs the claimant may still perform.”). Here, it
is unclear whether the VE’s testimony was based on an accurate
assessment
of
plaintiff’s
limitations,
given
the
discrepancy
between the ALJ’s RFC finding and the hypothetical posed to the VE.
The Commissioner also argues that the ALJ was not required to
consult a VE in this case, and that the ALJ’s determination should
therefore be upheld. This argument does not address the fact that
the ALJ relied on the VE’s testimony in coming to his conclusion
that plaintiff could perform her past relevant work. See T. 18. To
credit the Commissioner’s argument on this point would be to allow
a post-hoc rationalization of the ALJ’s decision, which the Court
cannot do. See, e.g., Marthe v. Colvin, 2016 WL 3514126, *8
(W.D.N.Y. June 28, 2016) (“[T]his Court is not permitted to accept
the
Commissioner’s
post-hoc
rationalizations
for
the
ALJ’s
determination.”). In any event, the Court notes that the ALJ’s
consultation of a VE was necessary in this case, where the RFC
restricting
plaintiff
to
light
work
included
a
variety
of
nonexertional limitations, including “no overhead reaching on the
left,” “walking . . . limited to 20 yards at a stretch,” and “less
than frequent use of hands for fine manipulation.” T. 16; see Bapp
v. Bowen, 802 F.2d 601, 605–06 (2d Cir. 1986) (“[W]here the
claimant’s work capacity is significantly diminished beyond that
5
caused by his exertional impairment the application of the grids is
inappropriate.”). For the foregoing reasons, the Court overrules
the Commissioner’s objections and adopts the R&R in its entirety.
V.
Conclusion
For the reasons discussed in this Decision and Order as well
as those set forth in the R&R, the Commissioner’s motion for
judgment on the pleadings (Doc. 15) is denied and plaintiff’s
motion (Doc. 9) is granted to the extent that this matter is
reversed and remanded for further administrative proceedings. The
Commissioner’s objections (doc. 19) are overruled. 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:
November 16, 2016
Rochester, New York.
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