Mack v. Commissioner of Social Security

Filing 23

DECISION AND ORDER granting in part and denying in part 15 Mack's motion for judgment on the pleadings and denying the Commissioner's 19 motion for judgment on the pleadings. The decision of the Commissioner is VACATED and the matter is REMANDED for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 5/8/2019. (LCH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHERRY MACK,
Plaintiff,
v.

17-CV-924
DECISION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

On September 15, 2017, the plaintiff, Sherry Mack, brought this action under the
Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that she was not disabled. Docket
Item 1. On July 13, 2018, Mack moved for judgment on the pleadings, Docket Item 15;
and on September 11, 2018, the Commissioner responded and cross-moved for
judgment on the pleadings, Docket Item 19. On October 3, 2018, Mack replied, Docket
Item 20; and on October 16, 2018, the Commissioner responded to Mack’s reply,
Docket Item 22.
For the reasons stated below, this Court grants Mack’s motion and denies the
Commissioner’s cross-motion.

BACKGROUND
I.

PROCEDURAL HISTORY
On April 7, 2014, Mack applied for disability benefits. Tr. 208. She claimed that

she had been disabled since January 11, 2011, due to asthma, high blood pressure,
knee surgeries with continuing problems, shoulder surgery with continuing problems,
sleep apnea and daily use of a continuous positive airway pressure machine, chronic
migraines, degenerative disc disease, sciatica, spinal fusion with continuing problems,
and a herniated disc. Tr. 208, 218.
On July 18, 2014, Mack received notice that her application was denied because
she was not disabled under the Act. Tr. 144, 148, 150, 154, 181. She requested a
hearing before an administrative law judge ("ALJ"), Tr. 156, 159, which was held on July
7, 2016, Tr. 83. At the hearing, Mack amended her alleged onset date to February 19,
2013, based on her increased complaints from that time regarding “bilateral knee pain.”
Tr. 87-88. The ALJ heard testimony from Mack and from Michelle Ross, a vocational
expert. Tr. 120.
Mack testified that she once worked as a case manager. Tr. 121. As a case
manager, Mack “called patient members . . . after they were discharge[d] from the
hospital and assessed their discharge needs, did education over the phone of their
medications, referred them to other social agencies, just did an assessment of support
services, support needs, support family, and just made sure that [patients] were [safely]
discharged.” Id. Mack testified that the job was “computer based.” Id. at 122.
Ross offered her opinion that Mack’s former work is classified as a “case worker”
in the Dictionary of Occupational Titles 169.262-010. Tr. 123. Ross noted that the
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position is “sedentary, per the [Dictionary]” and “[l]ight as she describes performing it
and in her paperwork.” Id. Ross also opined that a person of Mack’s age, education,
and experience—with physical limitations that include but are not limited to “no kneeling,
crouching, crawling . . . ladders, ropes, or scaffolds—would be able to perform Mack’s
prior work both “as performed or as generally performed.” Tr. 124.
The ALJ then issued a decision on October 31, 2016, confirming the finding that
Mack was not disabled. Id. at 42. Mack appealed the ALJ’s decision, but her appeal
was denied, and the decision then became final. Tr. 2-5. On September 15, 2017,
Mack filed this action, asking this Court to review the ALJ’s decision. Docket Item 1.
II.

THE ALJ’S DECISION
In denying Mack’s application, the ALJ evaluated Mack’s claim under the Social

Security Administration’s five-step evaluation process for disability determinations. See
20 C.F.R. § 404.1520. At the first step, the ALJ must determine whether the claimant is
currently engaged in substantial gainful employment. § 404.1520(a)(4)(i). If so, the
claimant is not disabled. Id. If not, the ALJ proceeds to step two. § 404.1520(a)(4).
At step two, the ALJ decides whether the claimant is suffering from any severe
impairments. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is
not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).
At step three, the ALJ determines whether any severe impairment or impairments
meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). If the
claimant’s severe impairment or impairments meet or equal one listed in the regulations,

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the claimant is disabled. Id. But if the ALJ finds that none of the severe impairments
meet any in the regulations, the ALJ proceeds to step four. § 404.1520(a)(4).
As part of step four, the ALJ first determines the claimant’s residual functional
capacity (“RFC”). See §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic
assessment of the claimant—addressing both severe and nonsevere medical
impairments—that evaluates whether the claimant can perform past relevant work or
other work in the national economy. See 20 C.F.R. § 404.1545.
After determining the claimant's RFC, the ALJ completes step four. 20 C.F.R.
§ 404.1520(e). If a claimant can perform past relevant work, he or she is not disabled
and the analysis ends. § 404.1520(f). But if the claimant cannot, the ALJ proceeds to
step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f).
In the fifth and final step, the Commissioner must present evidence showing that
the claimant is not disabled because the claimant is physically and mentally capable of
adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
20 C.F.R. § 404.1520(a)(v), (g). More specifically, the Commissioner bears the burden
of proving that a claimant "retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy." Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999).
In this case, the ALJ determined at step one that Mack had not engaged in
“substantial gainful activity” since February 19, 2013, the amended alleged onset date.
Tr. 33. At step two, the ALJ found that Mack had the following severe impairments:
“obesity, cervical and lumbar spinal derangement, degenerative arthritis of the bilateral
knees, carpal tunnel syndrome and De Quervain’s syndrome, and asthma.” Id.

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Although Mack also “alleged, and the evidence of record lists a diagnosis of,
fibromyalgia,” the ALJ determined that “there is no clear evidence of this impairment in
the record.” Id. He also determined, at step two, that Mack’s “medically determinable
mental impairments of anxiety and depressive disorders, considered singly and in
combination, do not cause more than a minimal limitation in the claimant’s ability to
perform basic mental work activities and are therefore nonsevere.” Tr. 34.
At step three, the ALJ determined that Mack’s severe impairments did not
medically equal the criteria of any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. 36. In assessing Mack’s RFC, the ALJ determined that
Mack could perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), 1 but that
Mack is “limited to occasionally climbing ramps/stairs and balancing.” Tr. 37. The ALJ
determined that Mack cannot kneel, crouch, or crawl; that she cannot climb ladders,
ropes, or scaffolds; and that she “should not be exposed to extreme heat, cold,
wetness, or humidity, and she should avoid concentrated exposures to fumes, odors,
dusts, gases, poor ventilation, and other respiratory irritants.” Id. “She is limited to
frequent handling and fingering.” Id. “She requires the ability to alternate from sit and
stand at her discretion.” Id. Finally, the ALJ found that “[t]he use of an assistive device
is required when ambulating with continuous walking, limited to no more than 10
minutes.” Id.

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“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.”
20 C.F.R. § 404.1567(a).
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At step four, the ALJ determined that Mack “is capable of performing past
relevant work as a caseworker.” Tr. 41. The ALJ provided that “[t]his work does not
require the performance of work-related activities precluded by the claimant’s” RFC. Id.
Specifically, the ALJ determined that Mack “has past relevant work as a caseworker
(Dictionary of Occupational Titles code # 169.262-010), skilled work (SVP 5), both as
actually and generally performed at the sedentary level of exertion.” Id. The ALJ based
his findings on the Ross’s opinion testimony at the hearing. Id.
LEGAL STANDARDS
When evaluating a decision by the Commissioner, district courts have a narrow
scope of review: they are to determine whether the Commissioner's conclusions are
supported by substantial evidence in the record and whether the Commissioner applied
the appropriate legal standards. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
Indeed, a district court must accept the Commissioner's findings of fact if they are
supported by substantial evidence in the record. 42 U.S.C. § 405(g). Substantial
evidence is more than a scintilla and includes "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). In other words, a district court does not review a disability
determination de novo. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
DISCUSSION
Mack makes several arguments in support of her contention that the ALJ erred.
First, she argues that the ALJ erred in making findings at step four of Social Security
Administration’s five-step evaluation process for disability determinations. Docket Item
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15-1 at 2-4. Specifically, Mack argues that the ALJ erred by not following the directives
in Social Security Ruling 00-4p to resolve a conflict between Ross’s testimony and the
Dictionary of Occupational Titles in evaluating whether Mack could perform her past
relevant work as that work is generally performed throughout the economy. Id. at 2-3.
And Mack argues that substantial evidence does not support the ALJ’s finding that she
could perform her past relevant work as she actually performed that work. Id. at 3-4. In
addition, Mack argues that the ALJ failed to account for all of the functional limitations
identified in the medical opinions that he accepted in formulating her RFC. Id. at 4-8.
“[I]n the fourth stage of the [disability] inquiry, the claimant has the burden to
show an inability to return to her previous specific job and an inability to perform her
past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003)
(emphasis in original). “This inquiry requires separate evaluations of the previous
specific job and the job as it is generally performed.” Id. “Whereas the Dictionary [of
Occupational Titles] describes jobs as they are generally performed, an expert is often
called upon to explain the requirements of particular jobs.” Id.
A.

Mack’s Past Work as Generally Performed

“A 2000 Social Security Administration Policy Interpretation Ruling . . . governs
the Commissioner’s assessment of whether any particular job can [generally]
accommodate a given claimant’s physical limitations.” Lockwood v. Comm’r of Soc.
Sec. Admin., 914 F.3d 87, 91 (2d Cir. 2019). “Under the Ruling, the Commissioner
‘relies primarily on the Dictionary [of Occupational Titles] for information about the job’s
requirements’ but ‘may also use vocational experts to resolve complex vocational
issues.’” Id. (quoting SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)). “If the
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Commissioner does consider the testimony of such experts, however, she must be alert
to the possibility of ‘apparent unresolved conflicts’ between the testimony and the
Dictionary.” Id. (quoting SSR 00-4p). “In light of this possibility, the Ruling tasks the
Commissioner with ‘an affirmative responsibility to ask about any possible conflict,’ . . .
and to ‘elicit a reasonable explanation for any such conflict before relying on the
vocational expert’s testimony.’” Id. (quoting SSR 00-4p). “[T]he Ruling mandates that
whenever the Commissioner intends to ‘rely on a vocational expert’s testimony,’ she
must identify and inquire into those areas where the expert’s testimony seems to conflict
with the Dictionary.’” Id. at 92 (emphasis in original) (quoting Pearson v. Colvin, 810
F.3d 204, 209 (4th Cir. 2015)). “[T]he Ruling must be read to ‘impose an independent,
affirmative obligation on the part of the ALJ to undertake a meaningful investigatory
effort to uncover apparent conflicts, beyond merely asking the vocational expert if there
is one.” Id. at 94 (quoting Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1364
(11th Cir. 2018)).
In Lockwood, the claimant argued that the Commissioner “neglected the Ruling’s
requirements.” Id. at 91. In that case, the Commissioner determined that the claimant
was not disabled because, notwithstanding his physical limitations, “there were jobs that
existed in significant numbers in the national economy that he could perform.” Id. at 92
(quoting the record). Specifically, “[t]he Commissioner reasoned that even though [the
claimant] suffered an impairment that required him to ‘avoid all overhead reaching
tasks,’ [a vocational expert’s] testimony had established that at least three specific jobs
existing collectively in significant number in the national economy would accommodate
this limitation.” Id. However, the jobs that the vocational expert identified were ones

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that the Dictionary established as requiring “occasional or frequent reaching.” Id.
(internal citation omitted). Because “[i]n both [a] 1985 Policy Statement and common
usage, ‘reaching’ includes overhead reaching,” the Second Circuit found that there was
“at least an apparent conflict” between the Dictionary and the vocational expert’s
testimony “that triggers the Commissioner’s duty to elicit an explanation that would
justify crediting the testimony.” Id. The ALJ’s failure to resolve the conflict required the
court to “reverse and remand for further proceedings so that the Commissioner may
have the opportunity to conduct the requisite inquiry in the first instance.” Id. at 94.
In this case, Mack similarly argues that the ALJ neglected the Ruling’s
requirements. Docket Item 15-1 at 2-3. The ALJ determined that Mack suffered from
an impairment that requires her to avoid work involving “kneeling, crouching, crawling,”
and “climbing ladders/ropes/scaffolds.” Tr. 37. Notwithstanding these physical
limitations, the ALJ found, relying on Ross’s testimony, that Mack “has past relevant
work as a caseworker” as defined in the Dictionary, at 169.262-010, “both as actually
and generally performed at the sedentary level of exertion.” Tr. 41. But, as Mack points
out, the Dictionary establishes that this particular job typically requires “[k]neeling . . . up
to 1/3 of the time.” See Dictionary of Occupational Titles, 169.262-010, 1991 WL
647445. Therefore, the Dictionary raises an inconsistency with Ross’s testimony that
Mack—who the ALJ determined cannot kneel at work—is capable of performing a “case
worker” job that, as described in the Dictionary, requires kneeling. Therefore, the Ruling
required the ALJ “to probe this apparent conflict before relying on [Ross’s] testimony.”
Lockwood, 914 F.3d at 92. Because the ALJ did not do that, or make any findings

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resolving the apparent conflict in his decision, the ALJ erred in determining that that
Mack could perform work as a caseworker as that job is generally performed. See id.
B.

Mack’s Past Work as Actually Performed

“Past relevant work is ‘either the specific job a claimant performed or the same
kind of work as it is customarily performed throughout the economy.’” Speruggia v.
Astrue, 2008 WL 818004, at *12 (E.D.N.Y. Mar. 26, 2008) (quoting SSR 82-61, 1982
WL 31386, at *3). The regulations do not require explicit findings “at step four regarding
a claimant’s past relevant work both as generally performed and as actually performed.”
Pino v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (emphasis in original). In other
words, the claimant has the burden of showing that she cannot perform past relevant
work as she actually performed it and as that work is performed generally. See id.. So
an ALJ’s decision at step four can find support in one or the other.
For the reasons described above, the ALJ’s decision is inadequate with regard to
Mack’s past relevant work as generally performed. But if the ALJ used record evidence
to support his finding that Mack could perform her past relevant work as she actually
performed it, remand will not be necessary.
“Social Security Regulations name two sources of information that may be used
to define a claimant’s past relevant work as actually performed: a properly completed
vocational report, SSR 82-61, and the claimant’s own testimony, SSR 82-41.” Id. In
this case, Mack provided both. Most significant for the issue here, Mack’s work history
report indicated that her job as a caseworker required her to walk for two hours per day
and to stand for two hours per day. Tr. 243. Mack’s disability report indicated that

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Mack’s job as a caseworker required her to walk for four hours each day and to stand
for six hours each day. Tr. 220.
The ALJ found that Mack had the RFC to perform “sedentary work as defined in
20 C.F.R. 404.1567(a)” with several further limitations. Tr. 37. According to the
applicable regulation, “[a]lthough a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a) (emphasis added). “Occasionally”
is defined as “from very little up to one-third of the time.” SSR 83-10, 1983 WL 31251,
at *5. “Since being on one’s feet is required ‘occasionally’ at the sedentary level of
exertion, periods of standing or walking should generally total no more than 2 hours of
an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour
workday.” Id.
But as noted above, Mack’s job as a caseworker required her to spend four
hours or more on her feet each day. See Tr. 220, 243. In other words, the record
evidence indicates that Mack’s case-worker duties required more time on her feet than
she now can spend on her feet under her RFC. The ALJ did not address this evidence
or explain the apparent inconsistency in his conclusion that Mack “is able to return to
her past relevant work as actually and generally performed,” however. Tr. 41. And that
requires remand.
An ALJ is required to “both identify evidence that supports his conclusions and
build an accurate and logical bridge from that evidence to his conclusions.” Perry v.
Berryhill, 2019 WL 1092627, at *2 (4th Cir. Mar. 8, 2019) (quoting Woods v. Berryhill,

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888 F.3d 686, 694 (4th Cir. 2018)). Otherwise, the reviewing court is “‘left to guess
about how the ALJ arrived at his conclusions,’ and, as a result, cannot meaningfully
review them.” Id. (quoting Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir. 2015)). 2
“Although the ALJ was not required to mention every piece of evidence, providing an
‘accurate and logical bridge’ required him to confront the evidence in [Mack’s] favor and
explain why it was rejected before concluding that” she was able to return to her past
relevant work as she actually performed it. Thomas v. Colvin, 826 F.3d 953, 961 (7th
Cir. 2016) (quoting Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013)). Because the
ALJ did not do that here, and because he did not follow the directives in SSR 00-4p, the
case must be remanded for further proceedings so that the ALJ can conduct the
requisite inquiries in the first instance. 3

2

The Commissioner identifies some possible reasons why the ALJ could have
determined that Mack’s past work as she actually performed it did not actually conflict
with the ALJ’s formulation of Mack’s RFC. Docket Item 19-1 at 19-20. But that
explanation requires the resolution of conflicting evidence about Mack’s caseworker job
in the Commissioner’s favor—something the ALJ did not do. See id.; Tr. 41. Instead,
the ALJ simply relied on the Dictionary of Occupational Titles’s explanation of
“caseworker,” which, as this Court explained, was also a mistake because it too
conflicts with Mack’s RFC.
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Mack also contends that the ALJ failed “to account for all of the functional
limitations identified in the medical opinions which he accepted.” Docket Item 15-1 at 48. “Because [Mack’s] case must return to the agency either way for the reasons already
given, the Commissioner on remand will have the opportunity to obviate this dispute
altogether by giving express consideration to the [medical opinions identified] and by
making clear what, if any, weight [they] merit[].” Lockwood v. Comm’r of Soc. Sec.
Admin., 914 F.3d 87, 94 (2d Cir. 2019).
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CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 19, is DENIED, and Mack’s motion for judgment on the
pleadings, Docket Item 15, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED and the matter is REMANDED for further administrative
proceedings consistent with this decision.
SO ORDERED.
Dated:

May 8, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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