Weiser v. Colvin
Filing
22
DECISION AND ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/16/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
VICKI WEISER,
Plaintiff,
1:16-CV-00763(MAT)
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Vicki Weiser (“Plaintiff”), represented by counsel, brings
this action under Title II of the Social Security Act (“the Act”),
seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner” or “Defendant”) denying her
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules
of
Civil
Procedure.
For
the
reasons
set
forth
below,
Plaintiff’s motion is granted to the extent that the matter is
remanded for further administrative proceedings and Defendant’s
motion is denied.
PROCEDURAL BACKGROUND
On
May
14,
2013,
Plaintiff
protectively
filed
for
DIB,
alleging disability beginning December 13, 2011. Administrative
Transcript
(“T.”)
64-65.
The
claim
was
initially
denied
on
August 19, 2013, and Plaintiff timely requested a hearing. T. 74-
82. A hearing was conducted on March 30, 2015, in Buffalo, New York
by administrative law judge (“ALJ”) Donald T. McDougall, with
Plaintiff appearing with her attorney. T. 30-62. A vocational
expert (“VE”) also testified. T. 53-62.
The ALJ issued an unfavorable decision on May 6, 2015. T. 1426. Plaintiff timely requested review of the ALJ’s decision by the
Appeals Council. The Appeals Council denied Plaintiff’s request for
review on July 26, 2016, making the ALJ’s decision the final
decision
of
the
Commissioner.
T.
1-4.
Plaintiff
then
timely
commenced this action.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a). Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
December 31, 2016. T. 19.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful employment since her alleged onset date of
December 13, 2011. Id. At step two, the ALJ determined that
Plaintiff had the “severe” impairments of vertebrogenic disorders
of the cervial and lumbar spine. Id. The ALJ also considered
Plaintiff’s diagnoses of hypothyroid and irritable bowel syndrome
(“IBS”), as well as her complaint of Crohn’s disease and medical
evidence of carpal tunnel syndrome. T. 20. The ALJ found no
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evidence that
Plaintiff’s
hypothyroid
caused
any
work-related
limitations. He further found that apart from the diagnosis of IBS,
Plaintiff’s medical records contain no mention of Crohn’s disease
or active colitis. T. Id. The ALJ also found that Plaintiff had not
undergone
any
treatment
for
her
carpal
tunnel
syndrome.
Accordingly, the ALJ found these impairments were non-severe. Id.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. 404.1567(b), with the following
additional limitations: must be able to change positions briefly
for one to two minutes at least every thirty minutes; no rotation
of
the
head
or
neck
more
than
forty-five
degrees
in
either
direction; no sustained overhead work with her hands or arms; no
climbing ladders, ropes, or scaffolds; no heights or exposure to
dangerous moving machinery; and no more than occasional balancing,
stooping, kneeling, crouching or crawling. T. 20.
At step four, the ALJ found that Plaintiff was able to perform
her past relevant work as a cashier checker at a dry cleaning shop.
T. 25. Accordingly, the ALJ ended the sequential process and
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determined that Plaintiff had not been under a disability, as
defined in the Act, since the alleged onset date. Id.
SCOPE OF REVIEW
A
district
court
may
set
aside
the
Commissioner’s
determination 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.
42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
Commissioner’s conclusions of law.”
does
not
apply
to
the
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
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DISCUSSION
Plaintiff contends that remand of this matter is warranted for
the following reasons: (1) the ALJ incorrectly found Plaintiff was
able to perform her past relevant work; (2) the ALJ improperly
rejected the opinion of Plaintiff’s treating physician, David A.
O’Keefe;
and
(3)
the
ALJ’s
credibility
determination
is
not
supported by substantial evidence.
For
the
reasons
discussed
below,
the
Court
agrees
with
Plaintiff that the ALJ erred at step four in finding that Plaintiff
was able to perform her past relevant work. Accordingly, remand of
this matter for further administrative proceedings is necessary.
I.
Plaintiff’s Past Relevant Work
At the hearing in this matter, Plaintiff testified she worked
as a counter clerk at her family’s dry cleaning business for
sixteen years, until the business was sold in early 2013. T. 43.
Plaintiff testified that in October 2014, she began working parttime as a counter clerk at a different dry cleaning business, but
had to quit in February 2015 because it was too difficult for her.
T. 35. In both roles, Plaintiff testified she would work the cash
register, take in dry cleaning, mark it, and bag it. She was also
required to clean lint filters as an additional function of her
part-time job. Id.
After hearing Plaintiff’s testimony regarding her job duties,
the VE testified that Plaintiff’s past work in her family’s dry
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cleaning business was “a combination of two jobs.” T. 54. The
first,
cashier
checker,
is
classified
by
the
Dictionary
of
Occupational Titles (“DOT”) as a semi-skilled occupation at a light
exertional level. The second, dry cleaner helper, is classified as
unskilled at a medium exertional level, but, the VE testified, was
a light exertional level as Plaintiff actually performed it. T. 5455.
The
VE
testified
that
a
hypothetical
individual
with
Plaintiff’s RFC would be able to perform the cashier checker
function of her past relevant work. T. 55-56. However, the VE
further testified that the hypothetical individual would be unable
to perform the additional dry cleaner helper portion of Plaintiff’s
past relevant work. T. 56.
With respect to the particular duties of a cashier checker at
a dry cleaning business, the VE testified that the job “could be
performed in such a way that there wouldn’t really be any overhead
reaching,” in order to comport with the RFC finding. T. 58. When
pressed by Plaintiff’s attorney whether such an accommodation was
generally done in the economy for that position, the VE testified
that he had “seen it done that way,” though “the number of jobs
available might be less in a sense that some employers would
require [the lifting.]” T. 59.
In his decision, the ALJ found Plaintiff was capable of
performing her past relevant work as a cashier checker at a dry
cleaning shop. T. 25. The ALJ noted that this “job requires some
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lifting to about eye level but most likely not very frequently, and
not more than required by the [RFC finding].” Id.
Plaintiff argues the ALJ’s step four finding that she was
capable of performing her past relevant work is not supported by
substantial evidence. Specifically, Plaintiff argues that her past
relevant work was a combination of cashier checker and dry cleaner
helper, and therefore was a composite job as defined by Social
Security Regulation (“SSR”) 82-61. Plaintiff further argues it was
legal error for the ALJ to only cite the portion of the job that
contained the less strenuous requirements in order to find that she
was capable of performing her past relevant work as actually or
generally performed. For the reasons set forth below, the Court
agrees.
“When
significant
variation
exists
between
a
claimant’s
description of her job and the DOT description of the job, it may
be the result of a composite job.” Long v. Berryhill, No. 16-CV760S, 2018 WL 618119 at *4 (W.D.N.Y. Jan. 30, 2018) (internal
quotation marks omitted). A composite job contains “significant
elements of two or more occupations, and, as such, ha[s] no
counterpart
in
the
DOT.”
SSR
82-61,
1982
WL
31387,
at
*2.
Furthermore, the “main duties of a composite job will only be
adequately described by multiple DOT occupations.” Long, 2018 WL
618119, at *4.
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At the hearing, the VE clearly established that Plaintiff’s
past work as a counter clerk at her family’s dry cleaning business
was a combination of two separate DOT occupations. Specifically,
Plaintiff performed the duties of a cashier checker and a dry
cleaner helper. See T. 54-55. Despite this, neither the VE nor the
ALJ acknowledged or discussed that Plaintiff’s past work was a
composite job. Instead, based on the VE’s testimony and the RFC
finding,
the
ALJ
determined
that
Plaintiff
was
capable
of
performing the cashier checker component of her previous work and
thus, was not disabled. T. 25. This was error.
“Every
occupation
consists
of
a
myriad
of
tasks,
each
involving different degrees of physical exertion. To classify an
applicant’s ‘past relevant work’ according to the least demanding
function of the claimant’s past occupations is contrary to the
letter and spirit of the Social Security Act.” Long, 2018 WL
618119, at *5 (quoting Valencia v. Heckler, 751 F.2d 1082, 1086
(9th Cir. 1985)). Furthermore, it is reversible error for the ALJ
to make a step four finding that a claimant is not disabled simply
because he or she can perform the tasks required for one of the two
DOT occupations that comprise his or her past relevant work. Id.
(citing West v. Berryhill, No. 4:16-CV-852-SPM, 2017 WL 4264126, at
*5-6 (E.D. Mo. Sept. 26, 2017)); see also Lyda v. Colvin, 221
F. Supp. 3d 1254, 1259 (D. Colo. 2016) (remanding where the ALJ
found at step four that the plaintiff was capable of performing his
-8-
past job, though only the light exertional component of his past
job and noting that “a step four determination will be supported
only if substantial evidence shows the plaintiff can perform the
requirements
of
all
the
component
jobs”
(emphasis
added));
Blackwell v. Colvin, No. 4:14 CV 252 JMB, 2015 WL 4132000, at *17
(E.D. Mo. July 8, 2015) (remanding where the ALJ found at step four
that the plaintiff could return to the position of home healthcare
manager as generally performed (a light exertional level job),
though
the
record
established
that
the
plaintiff’s
past
job
involved the tasks of both a home healthcare manager and the tasks
of a home health aide (a medium exertional level job)).
The Commissioner relies on two older cases from this District
to argue Plaintiff’s past relevant work was not a composite job
because the components of the job could be split into two separate
jobs, each with their own job description in the DOT. (Docket
No. 16-1 at 22). However, as set forth above, more recent cases
both
within
this
District
and
outside
of
this
Circuit
have
uniformly found that where a claimant’s past relevant work is a
blend of duties from two different DOT job descriptions, as here,
the claimant’s past relevant work was a composite job. See Long,
2018 WL 618119, at *4-5; Morgan v. Berryhill, No. 2:16-cv-01052
JRC, 2017 WL 2628094, at *1 (W.D. Wash. Jun. 19, 2017) (remanding
where the ALJ erred in failing to acknowledge plaintiff performed
a composite job, rather than two separate DOT occupations). The
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Court agrees with these more recent cases’ reading of SSR 82-61 and
finds that, under the facts of this case, Plaintiff’s past relevant
work was in fact a composite job. The Court further notes that
Johnson v. Colvin, No. 13-CV-6319, 2014 WL 139465 (W.D.N.Y. Apr. 9,
2014),
one
of
the
cases
the
Commissioner
relies
upon,
is
distinguishable in any event because the holding therein turned on
the fact that the plaintiff was capable of performing both jobs
that made up his past relevant job. Id. at *7. In this case, as
acknowledged both by the VE and the ALJ, Plaintiff is not capable
of performing the dry cleaner helper component of her past relevant
work. See T. 25, 56.
For the reasons set forth above, the Court finds the ALJ’s
step four finding is not supported by substantial evidence. The
Court
further
finds
that
remand
for
further
administrative
proceedings is necessary, so that the Commissioner can properly
consider in the first instance the remainder of the sequential
analysis, properly applying SSR 82-61.
II. Plaintiff’s Remaining Arguments
Plaintiff has also argued that the ALJ failed to properly
evaluate the opinion of her treating physician and failed to
properly assess her credibility. Having found remand necessary as
explained
above,
the
Court
need
Plaintiff’s remaining arguments.
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not
and
does
not
address
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 12) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings
consistent
with
this
Decision
and
Order.
The
Commissioner’s opposing motion for judgement on the pleadings
(Docket No. 16) is denied. The Clerk of the Court is directed to
close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated: November 16, 2018
Rochester, New York
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