Cordero Romero v. Berryhill, Acting Commissioner, Social Security Administration

Filing 15

DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, the Plaintiff's 10 motion for judgment on the pleadings is granted, and the matter is remanded to the Acting Commissioner for further proceedings consistent wit h the Decision and Order. The Acting Commissioner's 11 motion for judgment on the pleadings is denied. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/13/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

VERONICA CORDERO ROMERO,
Plaintiff,
DECISION AND ORDER
1:17-CV-00834-RJA

v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Plaintiff Veronica Cordero Romero (“Plaintiff”) brings this action pursuant to the
Social Security Act (“the Act”) seeking review of a final decision of the Acting
Commissioner of Social Security (“the Commissioner”) that denied her application for
Social Security Supplemental Income benefits under Title XVI of the Act. (Dkt. 1). The
Court has jurisdiction over this action under 42 U.S.C. § § 405(g) and 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). (Dkts. 10 and 11). The Court assumes the parties’ close familiarity with
the procedural history, administrative record, and all issues before the Court. The Court
has carefully considered the entire record, and for the reasons set forth below, the Court
GRANTS the Plaintiff’s motion for remand and DENIES the Commissioner’s motion.
DISCUSSION
This Court reviews the record to determine whether the Commissioner applied the
correct legal standard and whether substantial evidence supports the Commissioner’s
final decision. 42 U.S.C. § 405(g). Plaintiff contends the ALJ erred in failing to call a
Vocational Expert (“VE”) to testify; erred in not properly considering obesity when
formulating the residual functioning capacity (“RFC”); and erred in failing to consider
Plaintiff’s impairments of neuropathy and sleep apnea. (Dkt. 10 at 19-24). The Court finds
the ALJ erred in failing to call a VE to testify regarding Plaintiff’s mental health-related

limitations but not for her inability to communicate in English. The Court also finds the ALJ
did not properly consider obesity at steps 4 and 5 of the required sequential analysis, and
therefore, this matter is remanded. The Court instructs the ALJ to call a VE to specifically
testify regarding Plaintiff’s mental health-related limitations and ability to perform unskilled
light work on a regular and continuing basis. The Court does not reach the remaining
issue regarding neuropathy and sleep apnea; but notes, however, that all severe and
non-severe impairments should be properly considered on remand.

Plaintiff’s argument that the ALJ erred in not calling a VE to testify
Plaintiff argues that the ALJ should have called a VE to testify in this matter
because of her inability to communicate in English and because Plaintiff has nonexertional impairments related to her mental health which preclude the ALJ’s sole reliance
on the Grids to determine disability. The Court agrees, in part.
In the application of the Medical-Vocational Rule (“the Grids”) at step 5 of the
analysis, the ALJ first considered Plaintiff's “age, education, work experience, and
residual functional capacity.” (Tr. 30). The ALJ found that: (1) Plaintiff was a “younger
individual”; (2) Plaintiff was “unable to communicate in English,” which was the equivalent
of being “illiterate”; and (3) Plaintiff’s additional limitations have “little or no effect” on the
occupational base of unskilled light work. Id. Based on these factual findings, the ALJ
concluded that the Grids Rule 202.16 directed a finding that Plaintiff was “not disabled.”
Id.
Plaintiff’s English language ability
Plaintiff argues that sole use of the Grids to make a disability determination in
Plaintiff’s case was inappropriate because Plaintiff cannot communicate in English—and
this required the ALJ to call a VE to testify. (Dkt. 10 at 19). Plaintiff contends that this
district recently held in Rosario v. Colvin that the requirement of VE testimony is triggered
any time the plaintiff’s English language ability is at issue; however, this is an incorrect
reading of that case. In that case, a VE was called to testify. Rosario simply emphasized—
in its analysis that the ALJ‘s RFC determination was not supported by substantial
evidence—that ability to communicate in English must be taken into consideration at step
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five. Rosario v. Colvin, 13-CV-6623 CJS, 2017 WL 655268 (W.D.N.Y. Feb. 17, 2017).
Rosario does not hold that a VE must be called in any matter where a plaintiff’s English
language ability is at issue. In any event, the use of the Grids already takes English
language ability into account. See 20 C.F.R. § Pt. 404, Subpt. P, App. 2, sec. 200(h)(2)
(specifically indicating that a younger individual who is illiterate or unable to communicate
in English with unskilled or no previous work experience would not be considered disabled
under the Act).
Further, Plaintiff’s argument that a VE needed to be called for this purpose is
unpersuasive in another respect because Plaintiff relies on what is clearly a typographical
error on the ALJ’s part. (Dkt. 10 at 19-20). The ALJ wrote Plaintiff was “illiterate and able
to communicate in English.” (Tr. 29). But, because the ALJ clearly relied on MedicalVocational Rule 202.16 from the Grids, which specifically factors in Plaintiff’s inability to
communicate in English, Plaintiff’s argument that the ALJ found her able to communicate
in English is erroneous; the ALJ never found that Plaintiff was able to communicate in
English, and this fault on the ALJ’s part was a clear typographical error.
Plaintiff’s non-exertional limitations
The ALJ found Plaintiff has the severe mental impairments of “adjustment disorder
with depressed mood, and anxiety.” (Tr. 22). Additionally, although the ALJ found that
Plaintiff had “moderate” limitations in her concentration, persistence, and pace (Tr. 24),
he also found these mental limitations to be negligible on Plaintiff’s ability to perform work
at her RFC. (Tr. 30) (“However, the additional limitations have little or no effect on the
occupational base of unskilled light work. The claimant retains the ability to meet the basic
mental demands of unskilled, remunerative, competitive work on a sustained basis . . ..”).
And therefore, the ALJ decided he could solely rely on the Grids for a disability
determination.
Generally, the ALJ cannot solely rely on the Grids if a non-exertional impairment
(i.e. impairments that have no effect on a person’s strength) “has any more than a
‘negligible’ impact on the claimant’s ability to perform the full range of work, and instead
must obtain the testimony of a vocational expert.” Stephens v. Colvin, 200 F.Supp.3d 349,
362 (N.D.N.Y. Aug. 2, 2016) (citing Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013)).
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“A non-exertional impairment is non-negligible ‘when it . . . so narrows a claimant’s
possible range of work as to deprive him of a meaningful employment opportunity.’”
Stephens, 200 F.Supp.3d at 362 (citing Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.
2010)). However, mental limitations are considered non-exertional for purposes of the
fifth step in the disability analysis (see 20 C.F.R. § 416.969a(c)(1)(i)-(ii)), and, if present,
preclude the ALJ's sole reliance on the Grids to conclude whether the applicant is
disabled. Lugo v. Barnhart, No. 04-CIV-1064(JSR)(MHD), 2008 WL 515927, at *19
(S.D.N.Y. Feb. 8, 2008), report and recommendation adopted, No. 04-CIV-1064 (JSR),
2008 WL 516796 (S.D.N.Y. Feb. 27, 2008). Therefore, a VE was required to testify
regarding Plaintiff’s mental impairments on her ability to perform at her RFC—regardless
of whether the ALJ found these mental limitations to be negligible.
The record indeed shows that Plaintiff’s mental health-related limitations impact
her functioning in several ways. As described above, the ALJ found that Plaintiff had
“moderate” limitations in her concentration, persistence, and pace. (Tr. 24). Further, in
January of 2014, Plaintiff was assessed by psychiatric clinical examiner Dr. Kristina Luna,
Psy.D. Dr. Luna’s opinion was afforded “great weight” (except one portion of her opinion
indicating that Plaintiff exhibited a marked limitation in ability to keep attention and
concentrate) and Dr. Luna concluded that Plaintiff’s manner of relating and overall social
skills were “poor.” (Tr. 227). Dr. Luna noted that Plaintiff had a very difficult time answering
direct questions and that she had a moderately limited ability to learn new skills and
perform complex tasks independently. Id.
In October of 2015, Plaintiff was also assessed by Annmarie Kenney, NP, 1 whose
conclusions coincide with those of Dr. Luna in that Plaintiff’s mental health symptoms
were moderately to severely impacting her ability to function. Further, Plaintiff testified
that ever since her heart surgery she has experienced depression and trouble falling
asleep due to her fear that she still has issues with her heart. See (Tr. 52-55). In sum, the
record contains evidence from several sources on how non-exertional mental limitations
Although Ms. Kenney is a nurse practitioner and not considered a “treating physician” for the purposes
of Social Security disability, the ALJ considered and afforded “great weight” to a different nurse
practitioner, Ms. Arnet-June, in this case. See (Tr. 27). No explanation was given as to why the ALJ gave
weight to one nurse practitioner and not the other.
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may impact Plaintiff’s ability to function. To conclude that these mental-health related
limitations conclusively do not erode her occupational base would be speculation and lay
opinion. In this case, by neglecting to call a vocational expert to testify on Plaintiff’s mental
health limitations, “the record is incomplete and further findings are appropriate.” Butts v.
Barnhart, 388 F.3d 377, 386-87 (2d Cir. 2004) (internal quotation marks omitted).
Plaintiff’s argument that the ALJ erred in failing to properly consider her obesity
Plaintiff contends that the ALJ did not properly consider the effect of her severe
obesity because he failed to evaluate the effects of obesity at steps 4 and 5 of the required
sequential analysis. (Dkt. 10 at 22). The Court finds that the ALJ failed to address
Plaintiff’s ability to perform unskilled light work on a regular and continuing basis in light
of her extreme obesity, as no reference to durational limitations are present in the record
or incorporated within the RFC, rendering it unclear if the ALJ’s finding is based on
substantial evidence.
As stated above, the ALJ found Plaintiff to have the severe impairment of obesity.
(Tr. 22). Plaintiff’s Body Mass Index during the period of review was, at its lowest, 46,
making her “level” of obesity “extreme.” (Tr. 219-222, 216-218). SSR 02–1p: Policy
Interpretation Ruling, Titles II and XVI: Evaluation of Obesity, 67 Fed. Reg. 57859 (Sept.
12, 2002) (hereinafter “SSR 02–1”) provides that obesity must be evaluated in assessing
residual functional capacity in adults when obesity is identified as a medically
determinable impairment, and requires residual functional capacity assessments to
consider “an individual's maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis.” Id. (emphasis added). A regular
and continuing basis is defined as 8 hours a day, for 5 days a week, or an equivalent work
schedule. 2 SSR 96–8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996). SSR 02-1p further

“The ability to work 8 hours a day for 5 days a week is not always required when evaluating an individual's
ability to do past relevant work at step 4 of the sequential evaluation process. Part-time work that was
substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to
learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work
must be found not disabled.” SSR 96-8p at n.2. This consideration does not apply here because the ALJ
found Plaintiff did not have any past relevant work considered to be substantial gainful activity. (Tr. 29).
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states that “in cases involving obesity, fatigue may affect the individual's physical and
mental ability to sustain work activity.”
Additionally, “[t]his may be particularly true in cases involving sleep apnea.” SSR
02–1p. While the Court finds that, generally, the ALJ did consider Plaintiff’s obesity, the
Court sees no indication that the ALJ considered Plaintiff’s ability to perform unskilled
light work “on a regular and continuing basis.” Here, the record evidence indicates Plaintiff
has sleep apnea and that it causes Plaintiff’s fatigue (Tr. 213-215, 219-222), though the
ALJ found it to be non-severe. Sleep apnea in conjunction with Plaintiff’s extreme obesity
may very well exacerbate Plaintiff’s already diminished concentration or otherwise inhibit
Plaintiff from working “on a regular and continuing basis” at her RFC. The ALJ found that
Plaintiff had a “moderate” limitation in concentration, persistence, and pace. (Tr. 28).
Further, as stated above, Plaintiff testified that ever since her heart surgery she has
experienced depression and trouble falling asleep due to her fear that she still has issues
with her heart. See (Tr. 52-55). Again, stated above, Dr. Luna, whom the ALJ gave “great
weight”, 3 noted that Plaintiff had a very difficult time answering direct questions and that
she had a moderately limited ability to learn new skills and perform complex tasks
independently. (Tr. 227).
The RFC determination “must be set forth with sufficient specificity to enable [the
Court] to decide whether the determination is supported by substantial evidence.” Ferraris
v. Heckler, 728 F.2d 582, 587 (2d Cir.1984); see also Hamlin v. Colvin, No. 6:13-CV0857(GTS), 2014 WL 4669244, at *6 (N.D.N.Y. Sept. 18, 2014). The Court cannot discern
from the record whether the ALJ sufficiently considered Plaintiff’s obesity as it relates to
her ability to work on a regular and continuing basis. Therefore, the ALJ failed to
sufficiently consider Plaintiff’s obesity at steps 4 and 5. The Court finds that testimony
from a VE would be appropriate in this case to assess Plaintiff’s ability to stay on task for
a normal workday.

Except that Dr. Luna found “marked” deficits for attention and concentration, but the ALJ discounted
this portion of the opinion. (Tr. 24).
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CONCLUSION
This matter is remanded for further consideration of Plaintiff’s mental health-related
limitations with the consultation of a VE. Additionally, this matter is remanded for further
consideration of Plaintiff’s obesity as it relates to her ability to perform unskilled light work
on a regular and continuing basis, which may also require the consultation of a VE. The
ALJ should provide an explanation of the limiting effects, if any, of Plaintiff’s severe
obesity as it relates to her ability to stay on task during a normal workday, as required by
SSR 02-1p. Therefore, Plaintiff’s motion for remand (Dkt. 10) is granted. The
Commissioner’s motion for judgment on the pleadings (Dkt. 11) is denied.

IT IS SO ORDERED.
__s/Richard J. Arcara___ _____
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 13, 2019

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