Strong v. Commissioner of Social Security
Filing
17
DECISION and ORDER DENYING 10 Plaintiff's Motion for Judgment on the Pleadings; GRANTING 15 Defendant's Motion for Judgment on the Pleadings. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 6/12/2019. (TAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JULIE MARIE STRONG,
v.
DECISION
and
ORDER
NANCY A. BERRYHILL, 1 Commissioner of
Social Security,
17-CV-1286F
(consent)
Plaintiff,
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER and
JUSTIN DAVID JONES, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
SIXTINA FERNANDEZ,
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
and
DENNIS J. CANNING, and
SCOTT C. KELLER,
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 East 12th Street, Room 965
Kansas City, Missouri 64106
1
Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on April 17, 2018,
and pursuant to Rule 25(d) of the Federal Rules of Civil Procedure is automatically substituted as the
defendant in this suit with no further action required to continue the action.
JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 7). The matter is presently before
the court on motions for judgment on the pleadings filed by Plaintiff on August 27, 2018
(Dkt. 10), and by Defendant on November 2, 2018 (Dkt. 15).
BACKGROUND
Plaintiff Julie Marie Strong (“Plaintiff”), brings this action under the Social Security
Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of
Social Security’s final decision denying Plaintiff’s application filed with the Social
Security Administration (“SSA”), on August 12, 2013, for Disability Insurance Benefits
under Title II of the Act (“SSDI” or “disability benefits”). Plaintiff originally alleged she
became disabled on February 1, 2010, AR2 at 204, based on neck and spine conditions,
depression and anxiety. AR at 204, 208. Plaintiff’s application initially was denied on
October 24, 2013, AR at 88-100, and at the reconsideration level on February 20,
2014. 3 AR at 101-13. At Plaintiff’s timely request, on May 3, 2016, a hearing (“the
administrative hearing”), was held in Buffalo, New York before administrative law judge
Melissa Lin Jones (“the ALJ”), at which Plaintiff, represented by legal counsel Stephen
Brooks, Esq., and vocational expert (“VE”) Michele Erbacher (“VE Erbacher”) appeared
2 References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
June 26, 2018 (Dkt. 8).
3 Plaintiff filed her disability benefits claim while a resident of California. Her reconsideration was based
on a surgery after the initial denial. After the reconsideration denial, Plaintiff relocated to the Western
District of New York and her claim was transferred.
2
and testified. AR at 50-87. During the administrative hearing, Plaintiff amended her
alleged disability onset date to October 25, 2010. AR at 57.
On July 26, 2016, the ALJ issued a decision denying Plaintiff’s claim. AR at 2747 (“the ALJ’s decision”). On October 11, 2017, the Appeals Council issued a decision
denying Plaintiff’s request for review, rendering the ALJ’s decision the Commissioner’s
final decision. AR at 1-7. On December 11, 2017, Plaintiff commenced the instant
action seeking judicial review of the ALJ’s decision.
On August 27, 2018, Plaintiff filed a motion for judgment on the pleadings (Dkt.
10) (“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s
Motion for Judgment on the Pleadings (Dkt. 10-1) (“Plaintiff’s Memorandum”). On
November 2, 2018, Defendant filed a motion for judgment on the pleadings (Dkt. 15)
(“Defendant’s Motion”), attaching Defendant’s Brief in Support of Defendant’s Motion for
Judgment on the Pleadings and in Response to Plaintiff’s Brief Pursuant to Local
Standing Order on Social Security Cases (Dkt. 15-1) (“Defendant’s Memorandum”). In
further support of Plaintiff’s Motion, Plaintiff filed on December 17, 2018, Plaintiff’s
Response to the Commissioner’s Brief in Support of the Defendant’s Motion for
Judgment on the Pleadings (Dkt. 16) (“Plaintiff’s Reply”). Oral argument was deemed
unnecessary.
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.
3
FACTS 4
Plaintiff Julie Marie Strong (“Plaintiff” or “Strong”), born March 7, 1964, was 46
years old as of October 25, 2010, her amended alleged disability onset date (“DOD”),
and 52 as of the May 3, 2016 administrative hearing. AR at 57, 204. Plaintiff is a high
school graduate and attended some college. AR at 59. Although born and raised in the
western New York area, at age 22 Plaintiff moved to Phoenix, Arizona to live with her
mother and sister, and the next year moved to San Diego, California, AR at 319, where
Plaintiff worked, as relevant here, at veterinary hospitals as a veterinary technician,
receptionist, and research associate, as well as a pet store clerk. AR at 59-61, 223-27.
On June 25, 2009, while working in California as a research associate, Plaintiff
sustained a work-related injury, following which Plaintiff underwent three surgeries on
her cervical spine, including on May 19, 2011 (“first surgery”), June 28, 2012 (“second
surgery”), and November 14, 2013 (“third surgery”). AR at 336, 362, 455, 466. Plaintiff
has not worked since February 1, 2010, her original disability onset date, AR at 208-09,
and last saw her surgeon on April 2014, just before Plaintiff moved from California back
to New York where the cost of living is lower. AR at 54-55, 73. Plaintiff has no children,
lives alone, takes care of her house, yard, and pet dogs and parrot, and socializes with
friends once or twice a month, and with her aunt every two to three months. AR at 6970, 73, 75-76. Plaintiff has a driver’s license, but avoiding driving long distances
because of her spine condition, but has no medical driving restrictions. AR at 72-74. In
moving from California to New York, Plaintiff drove for three weeks in a passenger
vehicle, sharing driving with a friend. AR at 73.
4
In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.
4
DISCUSSION
1.
Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled 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),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
5
instructed . . . that the factual findings of the Secretary, 5 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.
Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
in substantial gainful activity (“SGA”) during the period for which the benefits are
claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the
applicant has a severe impairment which significantly limits the physical or mental ability
to do basic work activities, as defined in the relevant regulations. 20 C.F.R. §§
404.1520(c) and 416.920(c). Third, if there is an impairment and the impairment, or its
equivalent, is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations
(“Appendix 1” or “the Listings”), and meets the duration requirement, 6 there is a
presumption of inability to perform SGA and the claimant is deemed disabled regardless
of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
5 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
6 The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
6
applicant’s “residual functional capacity” (“RFC”), which is the ability to perform physical
or mental work activities on a sustained basis, notwithstanding the limitations posed by
the applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)(f), and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW relevant work, the
Commissioner, at the fifth step, must consider whether, given the applicant’s age,
education, and past work experience, the applicant “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) (quotation marks and
citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is on
the applicant for the first four steps, with the Commissioner bearing the burden of proof
on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008).
In the instant case, the ALJ found Plaintiff meets the Act’s insured status
requirement for SSDI through December 31, 2015, AR at 32, Plaintiff has not engaged
in SGA since her amended alleged disability onset date of October 25, 2010, id., that
Plaintiff suffers from the severe impairments of degenerative disc disease and joint
dysfunction, AR at 32-33, but that Plaintiff’s other medically determinable impairments
of a major depression and anxiety do not have more than a minimal impact on Plaintiff’s
ability to do work activities, id. at 33-34, that Plaintiff does not have an impairment or
combination of impairments meeting or medically equal to the severity of any listed
impairment in 20 C.F.R. Part 404, Subpt. P, App. 1, id. at 34-35, and that Plaintiff
7
retains the RFC to perform light work limited to occasionally climbing ramps and stairs,
balancing, stooping, kneeling, crouching, crawling, working at unprotected heights or
around heavy mechanical parts, and reaching overhead, up, down and forward with the
left arm, but can never climb ladders or scaffolds, and Plaintiff is further limited to simple
work with only occasional handling or fingering with her dominant (right) extremity. 7 AR
at 35-41. The ALJ further found Plaintiff unable to perform any past relevant work, AR
at 41, yet given Plaintiff’s age, high school education with the ability to communicate in
English, lack of transferable skills from her past work experience and RFC, jobs exist in
significant number in the national economy that Plaintiff can perform including as an
investigator dealer and a counter clerk, such that Plaintiff is not disabled as defined
under the Act. Id. at 41-42.
Plaintiff does not contest the ALJ’s findings with regard to the first three steps of
the five-step analysis, but argues the ALJ erred at step four in evaluating the medical
opinions of John G. Lane, M.D. (“Dr. Lane”), Plaintiff’s Memorandum at 24-28, and
further erred at step five in failing to reconcile a conflict between the VE’s testimony and
the Dictionary of Occupational Titles (“DOT”) regarding the two jobs the VE found
Plaintiff can, despite her RFC, perform. Id. at 17-24. Defendant maintains the ALJ
properly considered Dr. Lane’s medical opinions, Defendant’s Memorandum at 13-19,
and properly found Plaintiff could perform other work in the economy. Id. at 19-22. In
reply, Plaintiff reiterates the ALJ did not evaluate Dr. Lane’s opinion according to proper
factors, Plaintiff’s Reply at 4-5, nor reconcile the VE’s testimony with the DOT. Id. at 14.
7
In addition to her cervical spine, Plaintiff also injured her shoulder when she fell at work on June 25,
2009, and has a history of right carpal tunnel syndrome. AR at 33, 36.
8
A.
Step Four
Plaintiff argues the ALJ failed to assign weight and explain her reasoning as to
each of Dr. Lane’s opinions, 8 and thus treated the multiple opinions as one, and further
misread the December 17, 2012 opinion, erroneously considering it as “situational”
given Dr. Lane reported Plaintiff’s symptoms were unlikely to change. Plaintiff’s
Memorandum at 24-28. Defendant maintains the ALJ did not erroneously discount Dr.
Lane’s December 17, 2012 opinion because Plaintiff, at the time, was recovering from
her second surgery, and Dr. Lane did not anticipate Plaintiff would undergo the third
surgery, such that his opinion was situational. Defendant’s Memorandum at 13-19.
Plaintiff asserts Defendant relies on a post hoc rationalization for the ALJ’s rejection of
Dr. Lane’s December 17, 2012 opinion. Plaintiff’s Reply at 4-5. Plaintiff’s argument on
this issue is without merit.
Preliminarily, Dr. Lane’s final assessment on December 17, 2012, that Plaintiff
had reached “permanent and stationary status,” and that “maximal medical
improvement has been achieved” with Plaintiff limited to lifting no more than 10 lbs., AR
at 342, is consistent with work at the exertional level of sedentary, as opposed to light. 9
8 The court notes that although the ALJ refers to Dr. Lane as Plaintiff’s “treating doctor,” AR at 39, a plain
reading of Dr. Lane’s opinions establishes that Dr. Lane’s relationship with Plaintiff was as a consultative
examiner in connection with Plaintiff’s disability benefits application. AR at 334-73.
9
As defined under the applicable regulations, “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 carryout 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).
Further, “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, you must have the ability to do substantially all of
9
Accordingly, whether the ALJ properly considered Dr. Lane’s opinions is critical
because other than the investigator dealer and counter clerk positions, both of light
exertion, the VE was unable to identify any other jobs existing in the national economy
that Plaintiff could perform given Plaintiff’s RFC, as assessed by the ALJ, is less than
the full range of sedentary work given Plaintiff’s restricted ability to handle and finger
with her dominant hand. AR at 35, 84-85.
In connection with Plaintiff’s Workers’ Compensation claim, Dr. Lane examined
Plaintiff on four occasions, including September 27, 2010 (AR at 362), 10 January 9,
2012 (AR at 361-73), May 7, 2012 (AR at 350-60), and December 17, 2012 (AR at 33449). On January 9, 2012, Dr. Lane opined Plaintiff had yet to achieve “permanent and
stationary status” and was “temporarily precluded from heavy lifting as well as repetitive
cervical motions.” AR at 367. Dr. Lane similarly opined on May 7, 2012, that Plaintiff “is
not yet permanent and stationary,” and “may perform modified duties with no heavy
lifting or repetitive cervical motions.” AR at 355. On December 17, 2012, Dr. Lane
reported “[a] permanent and stationary status has been achieved as of this date, and
maximal medical improvement has been achieved” with Plaintiff “precluded from lifting
greater than ten pounds, as well as repetitive cervical motions.” AR at 342. The ALJ
considered Dr. Lane’s December 17, 2012 opinion as “situational to the claimant’s
recovery from surgery” and accorded it “little weight.” AR at 39.
these activities. If someone can do light work, we determine that he or she can 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).
10 Although Dr. Lane refers to Plaintiff as having been “previously examined in my capacity as an Agreed
Medical Evaluator on September 27, 2010,” AR at 362, no report from such examination is in the record.
10
Nothing supports Plaintiff’s assertion that the ALJ failed to consider each of Dr.
Lane’s opinions in the record; rather, the ALJ reiterates each of Dr. Lane’s opinions on
Plaintiff’s ability to work following the examinations on January 9, 2012, May 7, 2012,
and December 17, 2012, when Dr. Lane opined “maximal medical improvement has
been achieved” with Plaintiff unable to lift more than 10 lbs. or engage in repetitive
cervical motions. AR at 39. Further, despite Dr. Lane’s statement in the December 17,
2012 opinion that Plaintiff “is not going to undergo further surgical treatment,” AR at
341, that Plaintiff did, in fact, undergo further surgery on November 14, 2013, AR at
466-47, following which Plaintiff’s symptoms were reported on January 20, 2014, as
much improved, AR at 468, cannot be ignored. Simply, the third surgery, although not
anticipated on December 17, 2012, renders the December 17, 2012 opinion
“situational.” Accordingly, the ALJ did not err by considering the opinion “situational to
Plaintiff’s recovery from [the second] surgery” and according it “little weight” in light of
the improvement Plaintiff experienced following the third surgery on November 14,
2013, such that the ALJ’s assessment of Plaintiff’s RFC at step four is supported by
substantial evidence in the record.
B.
Step Five
Plaintiff argues the ALJ erred at step five by failing to reconcile a conflict between
the VE’s testimony and the DOT regarding the two jobs the VE found that Plaintiff, given
her RFC, can perform. Plaintiff’s Memorandum at 17-24. In opposition, Defendant
argues the ALJ properly found Plaintiff could perform other work in the economy.
Defendant’s Memorandum at 19-22. In reply, Plaintiff repeats the argument that the
ALJ failed to reconcile the VE’s testimony with the DOT. Plaintiff’s Reply at 1-4.
11
According to Plaintiff, the ALJ’s inclusion in Plaintiff’s RFC of a restriction to
“simple work” precludes Plaintiff from the counter clerk position, defined under the DOT
as “an individual who collects film for processing and collects payments from customers
at a ‘photofinishing establishment.’” Plaintiff’s Memorandum at 21. According to
Plaintiff, the DOT further specifies that the counter clerk position requires “level three in
clerical perception,” which, although not defined in the DOT, is defined in its successor,
the Occupational Information Network (“O*NET”). Id. at 22. Plaintiff urges the court to
apply the O*net definitions in lieu of the DOT because the DOT is a database which has
not been updated in three decades, and the United States Department of Labor’s
current preferred database is the O*NET, which defines “clerical perception” as “‘the
ability to see details in written materials quickly and correctly.’” Plaintiff’s Memorandum
at 22 (quoting Ability Profiler: Scoring Program User’s Guide 2 (U.D. Dep’t of Labor
Version 4.2 2012). Further, “‘[t]he material may be text or numbers on a page, in lists,
or in tables,’” id., and “‘involves noticing if there are mistakes in the text and numbers,
or if there are careless errors in working math problems.’” Plaintiff’s argument is without
merit.
Specifically, Social Security Ruling 11 (“SSR”) 00-4P provides in pertinent part that
In making disability determinations, we rely primarily on the DOT (including its
companion publication, the [Selected Characteristics of Occupations Defined in
the Revised Dictionary of Occupations Titles] SCO), for information about the
requirements of work in the national economy. [The SSA] use[s] these
publications at steps 4 and 5 of the sequential process. When there is an
apparent unresolved conflict between the VE . . . evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict before relying on
the VE . . . evidence to support a determination or decision about whether the
11 Social Security Rulings are agency rulings “published under the authority of the Commissioner of Social
Security and are binding on all components of the Administration. These rulings represent precedent final
opinions and orders and statements of policy and interpretations that [the SSA] ha[s] adopted.” 20 C.F.R.
402.35(b)(1).
12
claimant is disabled. At the hearing levels, as part of the adjudicator’s duty to
fully develop the record, the adjudicator 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 adjudicator 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.
SSR 00-4P, 2000 WL 1898704, at * 2.
The VE’s reliance on the DOT, despite not having been updated in more than 25 years,
remains “‘an accepted basis for vocational opinion according to the Commissioner’s
rules.’” Waldvogel v. Comm’r of Soc. Sec., 2017 WL 3995590, at * 14 (N.D.N.Y. Sept.
11, 2017) (quoting Henry v. Colvin, 2015 WL 9238959, at *7 n. 7 (S.D.N.Y. Dec. 17,
2015)). See also Brault v. Social Security Administration, Commissioner, 683 F.3d 443,
446 (2d Cir. 2012) (“the DOT is so valued that a VE whose evidence conflicts with the
DOT must provide a ‘reasonable explanation’ to the ALJ for the conflict.”); Valentin v.
Berryhill, 2018 WL 4300119, at * (D.Conn. Sept. 9, 2018) (holding the ALJ did not err at
step 5 by relying on job descriptions in the DOT rather than on the O*NET); and Ryan v.
Astrue, 650 F.Supp.2d 207, 218 (N.D.N.Y. 2009) (“Even if the VE’s testimony was in
conflict with O’Net [sic], there is no requirement that the VE’s testimony comply with that
database. Instead, the VE’s testimony must comply with the DOT.”). Significantly,
here, the asserted inconsistency arises not from the VE’s testimony and the DOT, but
from Plaintiff’s reliance on the O*net for the definition of “simple work” which Plaintiff, for
reasons unexplained, equates with “clerical perception” which, as discussed, is not
defined under the DOT. Accordingly, Plaintiff has interjected an issue where none
otherwise existed.
13
Significantly, Plaintiff does not point to any caselaw from within the Second
Circuit holding the VE’s reliance on the DOT’s job descriptions is improper. Nor does
Plaintiff reference any authority calling into doubt the accuracy of job descriptions
contained in the DOT as compared to those contained in the O*NET but, rather, baldly
concludes that because the DOT’s job descriptions have not been updated since 1991,
they must be less accurate than those found on the O*NET database. In any event,
unlike the DOT, O*NET does not appear in the Social Security Rulings as an approved
source nor one with which the VE’s testimony must be consistent. See Allen ex rel.
Allen v. Comm’r of Soc. Sec., 2017 WL 6001830, at * 7 *N.D.N.Y. Dec. 4, 2017) (finding
the plaintiff’s argument that “the DOT is outdated and not an accurate representation of
occupations in today’s world [ ] interesting but must fail,” because 20 C.F.R. §
419.966(d)(1) provides “an ALJ may take administrative notice of job data from ‘various
governmental and other publications’ including the DOT.”); see also SSR 00-4P, 2000
WL 1898704, at * 2 (“In making disability determinations, we rely primarily on the DOT
(including its companion publication, the SCO), for information about the requirements
of work in the national economy.”). The evidence in the record also is clear that the VE
is a certified rehabilitation counselor, with a master’s degree in rehabilitation counseling,
a field in which the VE has worked since 2006, AR at 299-300, and the ALJ at the
administrative hearing obtained Plaintiff’s waiver to any objections as to the VE’s
qualifications. AR at 76-77. Accordingly, the ALJ did not err in accepting the VE’s
testimony that Plaintiff’s RFC permitted Plaintiff to perform the counter clerk position.
Significantly, the ALJ need identify only one job that the Plaintiff can perform.
See 20 C.F.R. § 404.1566(b) (“Work exists in the national economy when there is a
14
significant number of jobs (in one or more occupations) having requirements which you
are able to meet with your physical or mental abilities and vocational qualifications”).
See also, McQuaid v. Astrue, 2012 WL 5472300, at *5 (N.D.N.Y. Nov. 9, 2012) (a
“finding of one job is sufficient to demonstrate that there is other work that [plaintiff]
could perform”). Accordingly, because the ALJ’s finding that Plaintiff could work as a
counter clerk was not improper, there is at least one job in the national economy that
Plaintiff can perform negating the court’s need to address whether the ALJ erred in
determining Plaintiff can also perform the investigative dealer position.
As such, the ALJ’s step five determination that work exists in the national
economy that Plaintiff can perform despite her RFC is supported by substantial
evidence in the record.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 10) is DENIED; Defendant’s
Motion (Dkt. 15) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
June 12th, 2019
Buffalo, New York
15
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