Afari v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 8 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 14 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/12/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 16-CV-595-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Suhad Afari (“Afari” or “Plaintiff”) brings this action pursuant to the Social Security Act
(“the Act”) seeking review of the final decision of the Acting Commissioner of Social Security
(“the Commissioner”) that denied her application for Supplemental Security Income (“SSI”)
under Title XVI of the Act. ECF No. 1. The Court has jurisdiction over this action under 42
U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 8, 14. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner
for further administrative proceedings.
On January 7, 2013, Afari protectively applied for SSI with the Social Security
Administration (“the SSA”). Tr.2 168-75. She alleged that she had been disabled since April 1,
2011 due to left arm nerve damage and depression. Tr. 184. On March 11, 2015, Afari and a
vocational expert (“VE”) appeared and testified at a hearing via videoconference before
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
References to “Tr.” are to the administrative record in this matter.
Administrative Law Judge James G. Myles (“the ALJ”). Tr. 37-53. Afari testified with the
assistance of an Arabic interpreter. Id. On April 17, 2015, the ALJ issued a decision finding that
Afari was not disabled within the meaning of the Act. Tr. 13-25. On May 24, 2016, the Appeals
Council denied Afari’s request for review. Tr. 1-4. Thereafter, Afari commenced this action
seeking review of the Commissioner’s final decision. ECF No. 1.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
The ALJ’s Decision
The ALJ’s decision analyzed Afari’s claim for benefits under the process described
above. At step one, the ALJ found that Afari had not engaged in substantial gainful activity
since the application date. Tr. 15. At step two, the ALJ found that Afari has the following
severe impairments: left upper extremity nerve damage, residual neurological damage, obesity,
depression, and posttraumatic stress disorder. Tr. 15-16. At step three, the ALJ found that these
impairments, alone or in combination, did not meet or medically equal any Listings impairment.
Next, the ALJ determined that Afari retained the RFC to perform light work3 with
additional limitations. Tr. 18-23. Specifically, the ALJ found that Afari can lift and carry up to
10 pounds with her left upper extremity; can occasionally use left hand controls, and reach,
handle, and finger with her left upper extremity; cannot climb ladders, ropes, and scaffolds, or
have concentrated exposure to hazards; and is limited to unskilled work with only occasional
interpersonal contact, no teamwork, and only superficial public contact. Tr. 18.
At step four, the ALJ indicated that Afari had no past relevant work. Tr. 23. The ALJ
also indicated that Afari is unable to communicate in English. Tr. 24 (citing 20 C.F.R. §
416.964). At step five, the ALJ relied on the VE’s testimony and found that Afari can adjust to
other work that exists in significant numbers in the national economy given her RFC, age,
education, and work experience. Tr. 24-25. Specifically, the VE testified that Afari could work
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must
have the ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that
he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 416.967(b).
as a sorter (light work), inserter, and sorter (sedentary work). Tr. 24. Accordingly, the ALJ
concluded that Afari was not “disabled” under the Act. Tr. 25.
Afari argues that remand is required because the ALJ erred at step five when he failed to
resolve a conflict between the jobs the VE identified that she could perform and the definition of
those jobs in the Department of Labor’s Dictionary of Occupational Titles (“DOT”).4 ECF No.
8-1, at 12-13; ECF No. 15, at 1-3. Specifically, Afari argues that a conflict exists because she
cannot communicate in English, yet each job that the VE identified at step five requires the
ability to carry out instructions and speak in English. Id. The Commissioner maintains that the
ALJ did not err because the RFC determination restricted her to unskilled work, which typically
does not require the ability to communicate in English, and imposed other communicationrelated limitations. ECF No. 14-1, at 25-26. For the reasons that follow, the Court finds that the
ALJ erred at step five and that this matter must be remanded for further administrative
At Afari’s hearing, the ALJ asked the VE to assume an individual with Afari’s age,
education, and work experience who was limited to light unskilled work with additional
limitations. Tr. 49-51. After the VE identified three jobs that this type of individual could
perform, the following exchange occurred:
. . . and an inability to communicate in English isn’t part of
the job to have to communicate, read, or write in English?
No, read or write English would not be a requirement for
Afari advances other arguments that she believes warrant reversal of the Commissioner’s decision. ECF
No. 8-1, at 13-17; ECF No. 15, at 4. However, because the Court disposes of this matter based on the ALJ’s step
five error, those arguments need not be reached.
Okay, does your testimony contain any discrepancies or
disparities or things that aren’t covered in the Dictionary of
Tr. 51 (emphasis added). Afari argues that this exchange only resolved whether she would be
required to read and write at these jobs and did not explain whether she would be required to
communicate in English.
The Court agrees.
As Afari correctly points out, literacy and
communication are separate issues. The SSA’s regulations define “illiteracy” as the “inability to
read or write,” while the “inability to communicate in English” is a separate educational factor
that the SSA may consider. 20 C.F.R. §§ 416.964(b)(1), (b)(5).
The jobs listed in the DOT contain General Educational Development (“GED”) codes
that “embrace those aspects of education (formal and informal) which are required of the
worker for satisfactory job performance.” See DOT App’x C – Components of the Definition
Trailer, General Educational Development, 1991 WL 688702 (Jan. 1, 2016). The GED scale
contains three divisions: Reasoning Development, Mathematical Development, and Language
Development. Id. According to the DOT, the jobs that the VE identified contain GED codes
that seem to require the ability to carry out instructions and speak in English. See DOT, Sorter –
Light Work # 209.687-026, 1991 WL 671813 (Jan. 1, 2016); Inserter # 734.687-034, 1991 WL
679954 (Jan. 1, 2016); Sorter – Sedentary Work # 521.687-086, 1991 WL 674226 (Jan. 1, 2016).
The sorter job (light) has a level 3 Reasoning Development code and a level 2 Language
Development code. See DOT, 1991 WL 671813. Those codes provide, in relevant part, that the
employee must “[a]pply commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form” and “[s]peak clearly and distinctly with appropriate pauses
and emphasis, correct pronunciation, variations in word order, using present, perfect, and future
The inserter and sorter (sedentary) jobs have level 1 Reasoning and Language
Development codes. See DOT, 1991 WL 679954; 1991 WL 674226. Those codes provide, in
relevant part, that the employee must “[a]pply commonsense understanding to carry out simple
one- or two-step instructions” and “[s]peak simple sentences, using normal word order, and
present and past tenses.” Id.
Based on these definitions, it seems that Afari would be unable to perform these jobs
because she cannot communicate in English and thus an apparent conflict existed between the
VE’s testimony and the DOT.
Social Security Ruling 00-4p, which clarifies the SSA’s standards for using a VE,
Occupational evidence provided by a VE . . . generally should be
consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE . . .
evidence and the DOT, the [ALJ] must elicit a reasonable
explanation for the conflict before relying on the VE . . . evidence
to support a determination or decision about whether the claimant
is disabled. At the hearings level, as part of the [ALJ]’s duty to
fully develop the record, the [ALJ] will inquire, on the record, as to
whether or not there is such consistency.
Neither the DOT nor the VE . . . evidence automatically “trumps”
when there is a conflict. The [ALJ] must resolve the conflict by
determining if the explanation given by the VE . . . is reasonable
and provides a basis for relying on the VE . . . testimony rather
than on the DOT information.
S.S.R. 00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000). Thus, this Ruling “place[s] an
affirmative duty on the ALJ to identify and resolve any conflict between the [VE]’s testimony
and the DOT before relying on such testimony.” Patti v. Colvin, No. 13-CV-1123-JTC, 2015
WL 114046, at *6 (W.D.N.Y. Jan. 8, 2015) (citation omitted); Pearson v. Colvin, 810 F.3d 204,
209 (4th Cir. 2015) (“The ALJ independently must identify conflicts between the [VE]’s
testimony and the [DOT].”)
Here, the ALJ erred when he failed to identify the apparent conflict between the jobs the
VE identified and the DOT definitions that require the employee to communicate in English. Tr.
24-25; see, e.g., Spears v. Colvin, No. 15-CV-6236-FPG, 2016 WL 4973890, at *4 (W.D.N.Y.
Sept. 19, 2016) (finding that the ALJ erred when he failed to resolve the conflict between the
plaintiff’s inability to reach overhead and the VE’s testimony that she could perform jobs that
required frequent reaching in all directions according to the DOT).
The ALJ failed to resolve the conflict at the hearing by merely asking whether the VE’s
testimony was consistent with the DOT without any further discussion. Tr. 51; see Patti, 2015
WL 114046, at *5-6 (“The ALJ’s catch-all question to the [VE] regarding any inconsistencies
between the [VE]’s testimony and the DOT does not satisfy the ALJ’s duty to identify, explain,
and resolve the conflicts between the [VE]’s testimony and her decision.”). The ALJ also failed
to resolve the conflict in his decision, which included a conclusory statement that the VE’s
testimony was “consistent with the information contained in the [DOT].” Tr. 25; see Diaz v.
Astrue, No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *6 (D. Conn. Sept. 5, 2012) (“This Court
finds the ALJ’s conclusive statement at the end of his Decision to be insufficient because the
plaintiff never received an explanation for the resolution of the inconsistency between the DOT
characteristics and the RFC finding when her benefits were denied.”). Neither of these actions
satisfied the ALJ’s duty to identify, explain, and resolve the conflict between the VE’s testimony
and his decision.
The Commissioner argues that the ALJ did not err because he limited Afari to unskilled
work, which generally does not require the ability to communicate in English. ECF No. 14-1, at
25. In support of this argument, the Commissioner cites 20 C.F.R. Part 404, Subpart P, App’x 2
§ 202.000(g) (“the Grids”), which provides that:
[w]hile illiteracy or the inability to communicate in English may
significantly limit an individual’s vocational scope, the primary
work functions in the bulk of unskilled work relate to working with
things (rather than with data or people) and in these work functions
at the unskilled level, literacy or ability to communicate in English
has the least significance.
The Court is not persuaded by this argument for two reasons. First, the ALJ did not rely,
and was not entitled to rely, on the Grids to determine whether Afari was disabled because they
did not adequately reflect Afari’s condition. Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir.
1986). The ALJ found that Afari could perform light work with many additional exertional and
nonexertional limitations, and exclusive reliance on the Grids is inappropriate where the Grids
fail to account for the full extent of the claimant’s limitations. Id; Rosa v. Callahan, 168 F.3d
72, 78 (2d Cir. 1999); 20 C.F.R. Part 404, Subpart P, App’x 2 § 200.00(a) (“Where any one of
the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not
apply in that particular case and, accordingly, does not direct a conclusion of disabled or not
Second, although the ability to communicate in English may actually be insignificant in
the positions the VE identified, it is the ALJ’s duty to elicit an explanation from the VE on that
issue. If that explanation does not provide a reasonable basis for relying on the VE’s testimony,
then that testimony cannot constitute substantial evidence for denying disability benefits. But if
the VE’s explanation is reasonable, the ALJ can resolve the apparent conflict with the DOT and
properly rely on the VE’s testimony. Pearson, 810 F.3d at 211.
It is important to resolve this conflict because, even if only some sorters and inserters are
required to communicate in English, it would affect the number of positions in the national
economy that are available to Afari.5 An ALJ can only find a claimant not disabled at step five if
the Commissioner proves that the claimant can perform other work that “exist[s] in significant
numbers in the national economy.” 20 C.F.R. § 416.960(c)(1). Thus, the VE must indicate how
many of these positions do not require the ability to communicate in English so that the ALJ can
properly determine whether Afari is disabled. See Mendez v. Barnhart, No. 05 Civ. 10568(SHS),
2007 WL 186800, at * (S.D.N.Y. Jan. 23, 2007) (finding no error at step five where the VE
explained that her definition of a job was modified from the DOT listing so that it included only
the sub-set of jobs that the claimant could perform with his limitations and she adjusted the
estimated number of available jobs accordingly).
Because the ALJ did not elicit the basis for the VE’s testimony that Afari could perform
the jobs despite her inability to communicate in English or a reasonable explanation for the VE’s
deviation from the DOT, the Court cannot determine whether substantial evidence supports the
ALJ’s step five findings and remand is required. See Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d
Cir. 1981) (noting that it is the Commissioner’s burden at step five “to produce evidence to show
the existence of alternative substantial gainful work which exists in the national economy and
which the claimant could perform”) (citation omitted). Accordingly, remand is required.
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent
Even though the ALJ’s RFC assessment limited Afari to only occasional interpersonal contact, no
teamwork, and no more than superficial public contact, it is still possible that this conflict would affect the number
of jobs available to Afari.
with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: May 12, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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