Stover v. Commissioner of Social Security
Filing
15
DECISION AND ORDER: Plaintiff's Motion for Judgment on the Pleadings 11 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 13 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/23/2018. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GEORGE MERLE STOVER,
Plaintiff,
Case # 17-CV-1029-FPG
v.
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff George Merle Stover brings this action pursuant to the Social Security Act seeking
review of the final decision of the Acting Commissioner of Social Security that denied his
applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and 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 moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 11, 13. 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.
BACKGROUND
On September 16, 2014, Stover protectively applied for DIB and SSI with the Social
Security Administration (“SSA”). Tr.1 152-62. He alleged disability since August 14, 2014 due
to a heart attack, use of a pacemaker/defibrillator, and skin cancer. Tr. 232. On April 28, 2016,
Stover and a vocational expert (“VE”) testified at a hearing via videoconference before
1
“Tr.” refers to the administrative record in this matter.
1
Administrative Law Judge Lawrence Levey (“the ALJ”). Tr. 29-60. On June 10, 2016, the ALJ
issued a decision finding that Stover was not disabled within the meaning of the Act. Tr. 15-24.
That decision became the Commissioner’s final decision when the Appeals Council denied
Stover’s request for review on August 29, 2017. Tr. 1-6. Thereafter, Stover commenced this
action seeking review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.
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).
II.
Disability Determination
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
2
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(4)(c).
If the claimant does not have a severe impairment or combination of impairments that is severe,
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. Id. 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. 20 C.F.R. § 404.1520(g). 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).
3
DISCUSSION
I.
The ALJ’s Decision
The ALJ’s decision analyzed Stover’s claim for benefits under the process described above.
At step one, the ALJ found that Stover had not engaged in substantial gainful activity since the
alleged onset date. Tr. 17. At step two, the ALJ found that Stover has the following severe
impairments: coronary artery disease status-post myocardial infarction, congestive heart failure,
hypertension, hyperlipidemia, reactive airway disease, a hearing impairment, post-traumatic stress
disease, and affective and anxiety disorders. Tr. 17-18. At step three, the ALJ found that these
impairments, alone or in combination, did not meet or medically equal any Listings impairment.
Tr. 18-19.
Next, the ALJ determined that Stover retains the RFC to perform light work2 with
additional limitations. Tr. 19-22. Specifically, the ALJ found that Stover cannot climb ladders,
ropes, or scaffolds or balance on uneven surfaces; can occasionally climb ramps or stairs and reach
overhead; must avoid concentrated exposure to temperature extremes, excessive wetness and
humidity, and noise louder than that found in a typical office environment; cannot be exposed to
excessive vibration, environmental irritants, unprotected heights, or hazardous machinery; and
cannot perform work that requires commercial driving or a high degree of auditory acuity. Tr. 19.
The ALJ also found that Stover can perform only simple, routine, and repetitive tasks; can tolerate
2
“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. §§ 404.1567(b), 416.967(b).
4
only occasional interpersonal interaction with the public, coworkers, and supervisors; and is
limited to work generally performed in a solitary or small group environment. Id.
At step four, the ALJ relied on the VE’s testimony and found that this RFC prevents Stover
from performing his past relevant work as a commercial truck driver. Tr. 22-23. At step five, the
ALJ relied on the VE’s testimony and found that Stover can adjust to other work that exists in
significant numbers in the national economy given his RFC, age, education, and work experience.
Tr. 23-24. Specifically, the VE testified that Stover could work as a collator, towel folder, and
garment sorter. Tr. 23. Accordingly, the ALJ concluded that Stover was not disabled under the
Act. Tr. 24.
II.
Analysis
Stover 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 and the description of those jobs in the
Dictionary of Occupational Titles (“DOT”).3 ECF No. 11-1 at 18-21; ECF No. 14 at 2-4.
Specifically, Stover asserts that a conflict exists because the RFC determination limited him to
only occasional overhead reaching and precluded “concentrated exposure to . . . noise louder than
that found in a typical office environment,” yet the jobs the VE identified require frequent or
constant reaching and moderate or loud noise. Id. For the reasons that follow, the Court finds that
the ALJ erred at step five and that remand is required.
At step five of the disability analysis, the ALJ must determine whether the claimant can
adjust to other work for which there are a significant number of jobs in the national economy. 20
3
Stover advances another argument that he believes requires reversal of the Commissioner’s decision. ECF No. 111 at 21-24. The Court will not reach that argument, however, because it disposes of this matter based on the ALJ’s
step five error.
5
C.F.R. §§ 404.1560(c), 416.960(c). An ALJ can make the step five determination by eliciting VE
testimony. McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014).
Social Security Ruling (“S.S.R.”) 00-4p, which clarifies the SSA’s standards for using a
VE, provides that:
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). 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).
At Stover’s hearing, the ALJ asked the VE to assume a hypothetical individual with
Stover’s age, education level, and work experience who had a variety of limitations including
“only occasionally engag[ing] in overhead reaching” and “avoid[ing] concentrated exposure to …
[n]oise louder than that found in a typical office environment.” Tr. 55-56. The VE responded that
such an individual could work as a collator, towel folder, and garment sorter. Tr. 56-57. The ALJ
asked the VE whether his testimony was consistent with the information set forth in the DOT and
the VE said that it was. Tr. 58.
6
A.
Reaching Limitation
Despite the VE’s assertion that his testimony was consistent with the DOT, all three of the
identified jobs require frequent or constant reaching even though the hypothetical asked him to
assume an individual who can only occasionally reach overhead. See DOT # 653.687-010, 1991
WL 685810 (collator); # 589.687-014, 1991 WL 684519 (cloth folder); # 222.687-014, 1991 WL
672131 (garment sorter). “Occasional” means up to one-third of the workday, while “frequent”
means one-third to two-thirds and “constant” means two-thirds or more of the time.
Id.
“Reaching” is defined as “extending the hands and arms in any direction.” S.S.R. 85-15, 1985
WL 56857, at *7 (S.S.A. Jan. 1, 1985) (emphasis added).
At Stover’s hearing, the ALJ merely asked the VE whether his testimony was consistent
with the DOT, without specifically discussing the conflict as to reaching. Tr. 58. The ALJ also
concluded in his decision, without further explanation, that “[p]ursuant to SSR 00-4p . . . the [VE]’s
testimony is consistent with the information contained in the [DOT].” Tr. 24. Neither the
exchange at the hearing nor the ALJ’s statement in his decision satisfied his duty to “identify,
explain, and resolve” the conflicts between the VE’s testimony and the DOT. See, e.g., Patti, 2015
WL 114046, at *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.”); 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.”); Kemp v. Colvin, 743 F.3d 630, 633 (8th
Cir. 2014) (“[T]he record does not reflect whether the VE or the ALJ even recognized the possible
7
conflict between the hypothetical describing a claimant who could reach overhead only
occasionally, and [the] DOT job listing . . . indicating that a check-weigher job involved constant
reaching. Further, the VE did not explain the possible conflict and the ALJ sought no such
explanation.”).
Accordingly, the ALJ erred when he failed to identify and resolve the conflict between the
jobs identified and the information contained in the DOT that each position requires frequent or
constant reaching in all directions. See Patti, 2015 WL 114046, at *6 (finding that the ALJ erred
where he failed to resolve the conflict between the plaintiff’s ability to reach only occasionally and
the VE’s testimony that the plaintiff could perform jobs that required frequent reaching according
to the DOT); Pearson v. Colvin, 810 F.3d 204, 210-11 (4th Cir. 2015) (same); Kemp, 743 F.3d at
632-33 (same).
B.
Noise Limitation
Similarly, all three of the jobs the VE identified involve moderate or loud noise even though
the hypothetical asked him to assume an individual who must avoid concentrated exposure to noise
louder than that found in a typical office environment. See DOT #653.687-010, 1991 WL 685810
(collator); #589.687-014, 1991 WL 684519 (cloth folder); #222.687-014, 1991 WL 672131
(garment sorter). It is unclear exactly how much noise the ALJ believed Stover could tolerate and
it is possible that a job with moderate noise might be suitable while a job with loud noise might
not. This ambiguity created a conflict that the ALJ should have resolved.
The SSA’s Rulings explain that an individual’s inability to tolerate “excessive amounts of
noise” will likely have a minimal impact on his ability to work because most job environments do
not involve great noise. S.S.R. 85-15, 1985 WL 56857, at *8. When an individual can tolerate
only “very little noise,” however, his ability to work is considerably impacted because very few
8
jobs are entirely free of noise. Id. “Where the environmental restriction falls between very little
and excessive, resolution of the issue will generally require consultation of occupational reference
materials or the services of a [VE].” Id.
Here, the ALJ’s finding that Stover must avoid concentrated exposure to noise louder than
that found in a typical office environment likely falls between “very little” and “excessive” noise,
and therefore he should have further developed this issue. Instead, the ALJ merely asked the VE
at Stover’s hearing whether his testimony was consistent with the DOT, without specifically
resolving the noise-related conflict. Tr. 58. As mentioned previously, the ALJ’s decision
contained only a conclusory statement that he found the VE’s testimony consistent with the DOT,
which did not satisfy his duty to “identify, explain, and resolve” the relevant conflicts. See Patti,
2015 WL 114046, at *6. Thus, the ALJ erred when he failed to identify and resolve the conflict
between the jobs identified and the information contained in the DOT that each position involves
moderate or loud noise.
Accordingly, for all the reasons stated, the Court finds that substantial evidence does not
support the ALJ’s step five findings and remand is required. See Aubeuf v. Schweiker, 649 F.2d
107, 112 (2d Cir. 1981) (“When the claimant has established that his impairment prevents him
from returning to his previous employment, the burden shifts to the [Commissioner], who must
produce evidence to show the existence of alternative substantial gainful work which exists in the
national economy and which the claimant could perform[.]”) (internal quotation marks and citation
omitted) (emphasis added).
9
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 13) is DENIED, and this matter
is REMANDED to the Commissioner for further administrative proceedings consistent 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 will enter judgment and close this case.
IT IS SO ORDERED.
Dated: October 23, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?