Duncan v. Commissioner of Social Security
Filing
16
RULING denying 11 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. The plaintiff's complaint [Doc. #1] is DISMISSED with prejudice. The Clerk of the Court is directed to enter judgment and close the case. Signed by Holly B. Fitzsimmons on 5/4/19. (AGE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
------------------------------x
:
JACQUELINE DUNCAN
:
:
v.
: Civil No. 1:18CV00063 (HBF)
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
------------------------------x
RULING ON CROSS MOTIONS
Plaintiff Jacqueline Duncan brings this action pursuant to
42 U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security denying her application for
Disability Insurance Benefits (“DIB”) under Title II Social
Security, 42 U.S.C. §401 et seq. (“the Act”). Plaintiff has
moved to reverse or remand the case for a rehearing. The
Commissioner has moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Judgment on the Pleadings [Doc. #11] is DENIED. Defendant’s
Motion for Judgment on the Pleadings [Doc. #13] is GRANTED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.
Plaintiff filed an application for DIB on April 26, 2010,
alleging disability as of June 28, 2006.1 [Certified Transcript
1
Plaintiff’s date last insured for Title II benefits is December
1
of the Record, Compiled on April 12, 2018, Doc. #8 (hereinafter
“Tr.”) 82, 193-99, 707]. Plaintiff alleged disability due to
“back injury.” [Tr. 82]. After the claim was denied initially on
June 28, 2010, she filed no further appeal. [Tr. 65-68, 707].
Plaintiff filed a new application on October 4, 2012,
alleging disability beginning in November 2006. [Tr. 215-218].
Her DIB claim was denied on December 17, 2012. [Tr. 15861]. Plaintiff filed a timely request for a hearing before an
Administrative Law Judge (“ALJ”) on December 26, 2012. [Tr. 167143].
On February 28, 2014, Administrative Law Judge (“ALJ”)
Marilyn Zahm held a hearing, at which plaintiff appeared with an
attorney and testified. [Tr. 92-144]. A vocational expert,
Darren Chief Flamberg, testified at the hearing. [Tr. 116-144].
On September 15, 2014, the ALJ found that plaintiff was not
disabled, and denied her claim. [Tr. 14-32]. Plaintiff filed a
timely request for review on October 15, 2014. [Tr. 13]. On
November 25, 2015, the Appeals Council denied review, thereby
rendering ALJ Zahm’s decision the final decision of the
Commissioner. [Tr. 1-3].
Plaintiff appealed to the District Court for the Western
District of New York. [Tr. 762-63]. A Stipulation and Order for
31, 2011. [Tr. 710].
2
Remand entered on August 15, 2016, remanding the case to the
Commissioner for further administrative review. [Tr. 795-98;
799-803].
On November 23, 2016, the Appeals Council vacated the
hearing decision and remanded the case to ALJ Zahm. [Tr. 80102]. The Appeals Council found that the
Unfavorable hearing decision dated September 15, 2014,
found that the claimant’s severe impairments (Finding
No. 3) resulted in an ability to perform a range of
light work (Finding No. 5) and that the claimant could
not perform her past relevant work as a kitchen
supervisor and food service manager (Finding No. 6).
Further, with vocational expert evidence, it was
determined that the claimant acquired food cooking and
preparing skills, numerical record keeping and
knowledge of meal services, and that she was not
disabled because she could perform other work,
including work as a cafeteria manager, food order
expeditor and food service supervisor (Finding No. 9).
However, the record includes a limited description of
the requirements of the claimant’s past relevant work
in a Work History Report dated June 10, 2010 (Exhibit
6E); the claimant did not provide greater details of
the requirements of her past relevant work at the
hearing held on February 28, 2014. Therefore, it is
unclear whether the claimant derived the transferable
skills identified by the vocational expert (Social
Security Ruling 82-41).
On remand, the Appeals Council stated that the ALJ “will”:
•
Give further consideration to the transferable skills
acquired from the claimant’s past relevant work. In so
doing, obtain supplemental evidence from a vocational
expert to determine the claimant’s transferable skills and
whether the claimant has acquired any skills that are
transferable with very little, if any, vocational
adjustment to other occupations under the guidelines in
Social Security Ruling 82-41. The hypothetical questions
should reflect the specific capacity/limitations
3
established by the records as a whole. The Administrative
Law Judge will ask the vocational expert to identify
examples of such appropriate jobs and to state the
incidence of such jobs in the national economy (20 C.F.R.
404.1566). Further, before relying on the vocational
expert evidence the Administrative Law Judge will identify
and resolve any conflicts between the occupational
evidence provided by the vocational expert and information
in the Dictionary of Occupational Title (DOT) and its
companion publication, the Selected Characteristics of
Occupations (Social Security Ruling 00-4p).
[Tr. 801-02].
On July 31, 2017, a second hearing was conducted by ALJ
Zahm, at which Ms. Duncan appeared with an attorney and
testified. [Tr. 2072-89]. VE Lanell Hall also testified at the
hearing. [Tr. 2075-88]. On November 2, 2017, the ALJ found that
plaintiff was not disabled, and denied her claim. [Tr. 704-22].
This became the final decision when no written exceptions were
filed; the Appeals Council did not review the decision on its
own; and 60 days expired since the date of the decision. The
case is now ripe for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse and/or remand the Commissioner’s
decision.
II.
STANDARD OF REVIEW
The review of a social security disability determination
involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
4
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
5
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
(internal citations omitted).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “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) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
6
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore
entitled to benefits, Ms. Duncan must demonstrate that she is
unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that [s]he is not only unable to do
h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
42 U.S.C. §423(d)(2)(A); see also 20 C.F.R. §404.1520(c)
(requiring that the impairment “significantly limit[ ] ...
physical or mental ability to do basic work activities” to be
considered “severe”).2
DIB and SSI regulations cited herein are virtually identical.
The parallel SSI regulations are found at 20 C.F.R. §416.901 et
2
7
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
seq., corresponding to the last two digits of the DIB cites
(e.g., 20 C.F.R. §404.1520 corresponds with 20 C.F.R. §416.920).
8
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from her physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial
statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
IV.
THE ALJ’S DECISION
Following the above-described five step evaluation process,
9
ALJ Zahm concluded that plaintiff was not disabled under the
Social Security Act. [Tr. 704-22]. At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity
since November 16, 2006, the alleged onset date, through her
date last insured, December 31, 2011. [Tr. 710].
At step two, the ALJ found that plaintiff had lumbar spine
degenerative disc disease and herniated lumbar disc without
myelopathy, all of which are severe impairments under the Act
and regulations. [Tr. 710-11].
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpart P, Appendix 1 (20 C.F.R. §§404.1520(d), 404.1525
and 404.1526). [Tr. 711]. The ALJ specifically considered
Listing 1.04 (disorders of the spine). [Tr. 711].
Before moving on to step four, the ALJ found that plaintiff
had the residual functional capacity (RFC) to perform work that
required no constant forward bending, stooping, reaching,
twisting, crawling, and climbing;
no constant overhead
activities; needs headset if answering the phone on a regular
basis; no lifting anything greater than 20 pounds; no sitting,
standing, or walking for more than two hours at a time; and the
total workday should not exceed eight hours. [Tr. 712].
At step four, the ALJ found plaintiff was able to
10
perform her past relevant work as a dietary manager. [Tr.
720].
The ALJ concluded that plaintiff had not been under a
disability from November 16, 2006, the alleged onset date
of disability, through December 31, 2011, the date last
insured. [Tr. 721].
V.
DISCUSSION
A.
The ALJ did not Err at Step Four
Plaintiff first argues that the ALJ’s finding that she
could perform her past relevant work at Step Four is unsupported
by substantial evidence. [Doc. #11-1 at 22, Doc. #14].
At Step Four, the ALJ considers whether, based on the
claimant’s RFC, she is capable of performing her past relevant
work. 20 C.F.R. §416.920(a)(4)(iv); see 20 C.F.R.
§404.1520(a)(4)(iv). If the ALJ determines that the claimant can
still do her past relevant work, the ALJ will find that the
claimant is not disabled. Id. “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. This
inquiry requires separate evaluations of the previous job and
the job as it is generally performed.”3 Jasinski v. Barnhart, 341
The Dictionary of Occupational Titles (“DOT”) is used to
describe jobs “as they are generally performed,” Jasinski, 341
F.3d at 185, and the Commissioner is permitted to take
administrative notice of the DOT. Clark v. Colvin, No. 1:13-CV3
11
F.3d 182, 185 (2d Cir. 2003)(emphasis in original); see Social
Security Ruling (“SSR”) 82-61, 1982 WL 31387, at *2 (S.S.A.
1982)(“Under this test, if the claimant cannot perform the
excessive functional demands and/or job duties actually required
in the former job but can perform the functional demands and job
duties as generally required by employers throughout the
economy, the claimant should be found to be ‘not disabled.’”);
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)(“The
inquiry in Social Security benefits cases is not whether a
claimant is able to perform the duties of her previous job, but
whether the claimant is able to perform the duties associated
with her previous “type” of work.”)(citing Jock v. Harris, 651
F.2d 133, 135 (2d Cir. 1981)). “Therefore, the ALJ is not
typically required
to find that the claimant can perform the
past relevant work as actually performed if he finds that the
clamant can perform the job as generally performed.” Delgado v.
Berryhill, Civil Action No. 3:17-CV-54 (JCH), 2018 WL 1316198,
at *17 (D. Conn. Mar. 14, 2018).
The analysis is different in the context of composite jobs.
Id. “[C]omposite jobs have significant elements of two or more
01124 (MAT), 2016 WL 4804088, at *3 (W.D.N.Y. Sept. 13,
2016)(citing 20 C.F.R. § 404.1566(d)(1), 416.956(d)(1); see also
Petrie v. Astrue, 412 F. App’x. 401, 409–10 (2d Cir. 2011)).
12
occupations and, as such, have no counterpart in the DOT.” SSR
82-61, 1982 WL 31387, at *2.
Here, at Step Four, the ALJ determined that Duncan was
capable of performing past relevant work as a Dietary Manager
and therefore was not disabled. [Tr. 720].
Plaintiff was born on May 1, 1951, and was sixty years old
on December 31, 2011, her date last insured, which is defined as
a person of advanced age (age 55 or older).4 20 C.F.R.
§404.1563(e); see 20 C.F.R. 404.1568(d)(4)(setting forth special
rules for persons of advanced age and for persons in this
category who are closely approaching retirement age (age 60 or
older)). [Tr. 193]. She left high school in the 10th grade. [Tr.
241].
Plaintiff’s Evidence of Past Relevant Work
The claimant is the primary source for vocational
documentation, and statements by the claimant
regarding past work are generally sufficient for
determining the skill level; exertional demands and
nonexertional demands of such work. Determination of
the claimant's ability to do PRW requires a careful
appraisal of (1) the individual's statements as to
which past work requirements can no longer be met and
the reason(s) for his or her inability to meet those
The date used to calculate a claimant’s age differs when
applied to DIB under Title II of the Act and SSI under Title XVI
of the act. The date that should be used in DIB cases is the
date last insured, while the date applied in SSI cases is the
date of the ALJ’s ruling. Woods v. Colvin, 218 F. Supp. 3d 204,
208 (W.D.N.Y. 2016)(citing Torres v. Comm’r of Soc. Sec., No.
14-CV-6438, 2015 WL 5444888, at *10 n.4 (W.D.N.Y. Sept. 15,
2015) and Koszuta v. Colvin, NO. 14-CV-694-JTC, 2016 WL 82445,
at *2 (W.D.N.Y. Mar. 3, 2016)).
4
13
requirements; (2) medical evidence establishing how
the impairment limits ability to meet the physical and
mental requirements of the work; and (3) in some
cases, supplementary or corroborative information from
other sources such as employers, the Dictionary of
Occupational Titles, etc., on the requirements of the
work as generally performed in the economy.
SSR 82–62, 1982 WL 31386, at *3 (S.S.A. 1982).“In classifying
prior work, the agency must keep in mind that every occupation
involves various tasks that may require differing levels of
physical exertion. It is error for the ALJ to classify an
occupation according to the least demanding function.” Costa v.
Comm'r of Soc. Sec., 525 F. App'x 640, 642 (9th Cir.
2013)(quoting
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1166 (9th Cir. 2008) (internal quotation omitted) (finding
improper a classification of past relevant work based on 20% of
the duties performed)).
At the 2017 hearing, plaintiff testified that she worked
for Presbyterian Senior Care of Western New York from 1979
through 2006. [Tr. 887, 2077-86]. During her employment at the
nursing home, Duncan testified, she worked as a dietary aide,
dietary director and dietary supervisor.5 [Tr. 265 (Work History
Report dated June 10, 2010), 2077-78, 2079]. The ALJ found that
these jobs qualified as past relevant work, as plaintiff
Plaintiff testified that in 2004 or 2005 she returned to the
Dietary Supervisor job when the nursing home “merged the two
buildings together, and since I can’t drive I became a
supervisor again.” [Tr. 2077-78].
5
14
performed these jobs “within the fifteen year period preceding
her date last insured, at the level of substantial gainful
activity, and for long enough to learn the skills/duties of the
job.” [Tr. 721].
Plaintiff completed a Work History Report in June 2010,
consisting of fill in the blank questions and check-off boxes.
For example, she did not indicate whether she used any machines,
tools, equipment, technical knowledge, or skills as a Dietary
Supervisor but indicated by checking a box that she wrote
reports/completed forms. Asked to describe the job and what she
did all day, she wrote “Dietary Supervisor had to order[,] check
tray line[, and] put away stock.” [Tr. 266]. Plaintiff indicated
by filling in a blank, that in performing her job as a Dietary
Supervisor, she would walk and/or stand for 6 hours; sit for 45
minutes, climb 1 hour, stoop, kneel, crouch, handle, grab or
grasp big objects for 3 hours each day. [Tr. 266]. With regard
to lifting and carrying, she wrote that “[w]hen the big stock
came in once a wk had to lift cs of frozen foods, cs of #10
fruits or veg to put on the shelves.” [Tr. 266]. The heaviest
weight lifted was 50 pounds. [Tr. 266]. She supervised 6 people
throughout her work day and indicated by checking a box that she
was the designated “lead worker” and was not responsible for
hiring or firing employees. [Tr. 266]. Plaintiff left page two
blank. [Tr. 267].
15
In the remarks section she wrote,
When I was a dietary director I overseen at least 15
employee a day. I did the ordering, displine the
employee plus putting up stock. I work over 40 a wk.
went to meeting. Make sure my budget wasn’t over. As a
supervisor I didn’t have to do payrole or doing
schudling the employee. Supervisor I had at least 20
patient that I had to go on the floors to do their
menu for the wk and to make sure that they get it.
[Tr. 268 (sic)].
In December 2016, after the case was remanded, the ALJ
requested additional information from plaintiff’s employer about
the work that she performed from 2001-2006. [Tr. 887-88]. The
employer responded that plaintiff was employed from “8/30/197811/21/2006” and during that period worked as a cook “prepar[ing]
meals for residents” and as a dietary supervisor “overseeing the
dietary staff, ordering, etc.” [Tr. 887]. The response did not
indicate the dates when she held each job.
At the ALJ’s hearing in 2017, plaintiff testified about her
past relevant work, [Tr. 2077-81], stating that she started as a
Dietary Aide in 1978 and became a Supervisor sometime in 199697, then a Director sometime in 1999-2000, and then returned to
the supervisory position sometime in 2004-05. [Tr. 2077-78].
Her responsibilities as a Dietary Supervisor included, “I
did a little ordering. I put stock away, disciplined the staff,
do my tray lines. You know, make sure that everything was
correct on the trays, and make sure that the cooks—everyone did
what they supped to do during night time.” [Tr. 2078]. She would
16
cook as needed, “[i]f someone called in.” [Tr. 2078]. At the end
or her employment, she was “just a supervisor, I was just like
order like the vegetables, the milk, and maybe the bread. You
know, little minor things then.” [Tr. 2078]. She kept records
and “lists like for like week one, week two, week three. I had
everything to order though I knew what had to be ordered.” [Tr.
2078-79]. In the time frame 2004-2005, when plaintiff returned
to the supervisory position, she testified that she worked
“really long hours...like 13 hours a day then, and I would go
from one building and do what a supervisor did at one building,
and then like at 2:30, 3:00, I would go to the next building and
stay until quarter to eight....” [Tr. 2079-80]. “I wasn’t
ordering the big products anymore because it was the director
that did that then.” [Tr. 2080]. She put stock away and made
sure all the trays were prepared for the patients and she would
also cook if they needed coverage. {Tr. 2080-81]. Finally, as
Supervisor she would provide input regarding hiring and firing
staff but was not responsible for hiring and firing. [Tr. 2081].
As a Dietary Director, plaintiff testified that she was
responsible for billing, ordering, disciplining all the staff
plus the supervisors. [Tr. 2079]. “I still put away stock from
time to time.” Id.
Vocational Expert Testimony
At the 2017 hearing, Vocational Expert Lanell Hall
17
testified that in the 15 years prior to plaintiff’s date last
insured, plaintiff was a Dietary Aide, listed in the Dictionary
of Occupational Titles (“DOT”) at 319.677-014, medium, SVP 2,
unskilled; Kitchen Supervisor, DOT 319.137-030, medium, SVP 7,
skilled; Dietary Manager (Dietary Director), DOT 187.106-206,
sedentary, SVP 8, skilled, “but performed at the medium exertion
level;” and Cook, DOT 315.361-010, medium, SVP 6, skilled. [Tr.
2082]. The VE testified that plaintiff had transferable skills
to light work as a Dietary Director/Manager, “directing and
coordinating food service activities, coordinating the kitchen
staff, inspecting food and food preparation, hiring and firing
and general staff supervision, also inventory.” [Tr. 2083].
The VE testified that plaintiff had transferable skills to
light work, “specifically for the Dietary Manager” position.
[Tr. 2083].
In the hypothetical provided to the VE at the 2017 hearing,
which corresponded to the RFC, the ALJ restricted the claimant
to no forward bending, stooping, reaching, twisting, crawling
and climbing; no constant forward bending, stooping, reaching,
twisting, crawling, and climbing; no constant overhead
activities; able to use a headset if answering the phone on a
regular basis; no lifting anything more than 20 pounds; no
sitting, standing or walking for more than two hours at a time;
and the total work day should not exceed eight hours. [Tr.
18
2084]. The ALJ asked the VE whether any of plaintiff’s past
relevant work could be done. [Tr. 2084]. The VE responded, that
a “person could perform the job of dietary manager as generally
performed and that would be all. All the rest of the jobs exceed
the light exertion level.” [Tr. 2085]. The VE added that the
dietary manager job is a sedentary job as it’s generally
performed in the national economy. [Tr. 2085].
ALJ’s Findings at Step Four
The ALJ found that “when comparing the claimant’s residual
functional capacity with the physical and mental demands of her
work as a dietary manager, the undersigned finds that through
her date last insured the claimant was able to perform that work
as generally performed.” [Tr. 721].
Plaintiff contends that the ALJ erred because “the evidence
in the record establishes that plaintiff’s past relevant work
performed within fifteen years of the date of adjudication
involved a combination of two different positions [Tr. 268
(citing 2010 Work History Report)] and the ALJ should have
analyzed plaintiff’s past relevant work as a composite job.
Specifically, plaintiff argues that “the overwhelming evidence
in the record indicates that Plaintiff previously performed a
composite job, which included the functions of both a dietary
manager and a dietary aide, as those occupations are defined in
the DOT.” [Doc. #11-1 at 19 (citing Tr. 83 (Disability Report19
Adult Section-Job History))].
This argument fails for several reasons. First, plaintiff
cites to a Disability Report completed as part of her initial
application for benefits to support her argument that she was
employed as a Dietary Aide from 1978 through 2006 and performed
these job duties throughout her employment at the nursing home.
[Tr. 83]. However, as set forth in the Appeals Council’s Order,
this case was remanded because “the record include[d] a limited
description of the requirements of the claimant’s past relevant
work in a Work History Report dated June 10, 2010 (Exhibit 6E),
[and] the claimant did not provide greater details of the
requirements of her past relevant work at the hearing held on
February 28, 2014. [Tr. 801]. Second, plaintiff testified at the
2017 hearing that she worked in each position of Dietary Aide,
Kitchen Supervisor and Dietary Manager for discrete periods of
time. [Tr. 2078-81]. Third, plaintiff’s past relevant work was
classified by the VE as separate jobs with individual DOT
listings and job descriptions. [Tr. 2082-85]. “SSR 82–61 states
that ‘composite jobs have significant elements of two or more
occupations and, as such, have no counterpart in the DOT.’
Where, as here, a VE testified that both jobs are individually
listed in the DOT, ‘they are not composite jobs.’” Clark, 2016
WL 4804088, at *4 (quoting Johnson v. Colvin, 2014 WL 1394365,
*7 (W.D.N.Y. Apr. 9, 2014))(emphasis added). Last, the VE
20
testified that, given the RFC found by the ALJ, plaintiff could
perform the functions of the Dietary Manager/Director job, as
generally performed in the national economy. [Tr. 2085]; see
Clark, 2016 WL 480488, at *4.
Defendant argues that plaintiff failed to meet her burden
to prove that “she could not perform her past relevant work as a
dietary manager as generally performed in the national economy.”
[Doc. #13-1 at 13]. The Court agrees.
The Court has carefully reviewed the testimony and evidence
provided by plaintiff to support her argument that she worked a
composite job, which included the functions of both a dietary
manager and a dietary aide and finds that she did not meet her
burden of proving that her job had “significant elements of two
or more occupations and, as such, [had] no counterpart in the
DOT.” SSR 82-61, 1982 WL 31387, at *2; see Long v. Berryhill,
16-CV-760S, 2018 WL 618119, at *4 (W.D.N.Y. Jan. 30,
2018)(“[W]hen 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.”)(quoting Hams v. Carolyn,
No. C13-2145-RAJ-BAT, 2014 WL 4168473, at *2 (W.D. Wash. Aug.
20, 2014)). As set forth above, the VE had no difficulty
identifying a counterpart in the DOT for Dietary Manager based
on plaintiff’s description of her job functions.
21
The cases cited in support of plaintiff’s argument are
distinguishable on the facts. See West v. Berryhill, No. 4:16CV-852-SPM, 2017 WL 4264126, at *6 (E.D. Mo. Sept. 26,
2017)(“Because the vocational expert needed to point to multiple
DOT occupations to describe the Humanitri job, it was a
composite job.”); Delgado, 2018 WL 1316198, at *19 (“While the
record does appear to indicate that Delgado’s past relevant work
at La Quinta involved duties from two different occupations, the
court here does not consider the record to contain sufficient
information to determine whether Delgado’s past work should
appropriately be considered a composite job because of the
limited information as to his duties. For example, no testimony
was elicited concerning the frequency and duration of each type
of duty Delgado performed, how central each duty was to his job,
or the nature of the cleaning that he performed besides cleaning
toilets and taking out garbage.”); Morgan v. Berryhill, No.
2:16-CV-01052 JRC, 2017 WL 2628094, at *3 (W.D. Wash. June 19,
2017)(“Plaintiff testified, and the VE acknowledged, that
plaintiff’s job duties included ‘enter[ing] stuff into a
computer part of the day; and answer[ing] phones, and [sending]
clients to the officers that they needed to talk to; and then
part of the day [working] ... in the mailroom stuffing envelopes
and preparing them to be sent out to people.’ [] It is very
clear that plaintiff’s work at DSHS was not solely as a ‘Data
22
Entry Clerk’ or ‘Mailroom Clerk.’ Rather, it appears that the
only way that the “main duties” of this work can be described
accurately is by considering two or more separate DOT
occupations.”); Shealy v. Colvin, Civil Action No. 8:13-2383RMG, 2015 WL 467726, at *12 (D.S.C. Feb. 4, 2015)(“The VE
explained that, although Plaintiff performed job duties of an
order clerk, she always performed them in conjunction with
duties of a material handler and/or a store's laborer. And, the
ALJ specifically found Plaintiff was not still capable of
performing the “other duties” outside of order clerk duties,
specifically referencing the VE's testimony that discussed the
other duties as material handler and/or a store's laborer.”);
Lyda v. Colvin, 221 F. Supp. 3d 1254, 1258 (D. Colo. 2016)(“At
the hearing, the vocational expert classified plaintiff’s past
relevant work as “owner/manager nut processing,” a skilled,
medium occupation. [] However, based on plaintiff’s testimony
that he spent 50 to 75 percent of his day “[m]aking deals to buy
the nuts and also making deals to ... my customers” [], the
expert classified that aspect of the job as that of “product
broker,” a typically sedentary occupation []. When posed a
hypothetical that essentially mimicked the ALJ’s ultimate
residual functional capacity assessment, the vocational expert
testified that such restrictions would preclude the
23
owner/manager job as a whole, but not the product broker portion
of the job.”).
Plaintiff asserts that her past work cannot be separated
into different jobs, but her description of her work at the 2017
haring demonstrates otherwise. As set forth above, plaintiff
testified that she “started in 1978 as a dietary aide;” then
“became a supervisor” in approximately 1996 or 1997; then
“became a director” in approximately 1999 or 2000; then she
“became a supervisor again” in “2004, 2005.” [Tr. 2077-78].
Here, plaintiff clearly provided testimony regarding the
discrete positions she held and the job duties associated with
these positions. [Tr. 2078-81]. The Court agrees with the
Commissioner that plaintiff “appears to confuse a composite job
with how a job is generally performed in the national economy.”
[Doc. #13-1 at 13 (citing Noelle v. Comm’r of Soc. Sec., No.
5:15-CV-1302 (GTS/WBC), 2017 WL 9509957, at *7 (N.D.N.Y. Feb.
13, 2017)). Further, plaintiff and the VE “did not testify that
plaintiff’s past relevant work, as plaintiff actually performed
it or as it was generally performed, was a composite job. Id.
(citing Fody v. Colvin, 169 F. Supp. 3d 804, 810 (N.D. Ill.
2015)); Clark, 2016 WL 4804088, at *4 (“Where, as here, a VE
testifies that both jobs are individually listed in the DOT,
“they are not composite jobs.”(quoting Johnson v. Colvin, No.
13-CV-6319-CJS, 2014 WL 1394365, *7 (W.D.N.Y. Apr. 9, 2014)).
24
Nor did plaintiff question the VE’s testimony during the 2017
hearing or argue that her past work at the nursing home was a
composite job. Id.
Accordingly, substantial evidence supported the ALJ’s Step
Four determination that plaintiff could perform her past
relevant work as a Dietary Manager as it is performed in the
national economy.
B.
Appeals Council’s Remand Order
Plaintiff next claims that “[a]ccording to the Appeals
Council’s order remanding this matter back to ALJ Zahm, the ALJ
was required to make specific findings pertaining to whether the
Plaintiff had skills that are transferrable to other
occupations, with a minimal amount of vocational adjustment.”
[Doc. #11-1 at 23]. She argues that the ALJ “failed to make the
required findings in violation of the Appeals Council’s Order,
necessitating a remand of this case to the ALJ.” Id.
The regulations clearly state that an “administrative law
judge shall take any action that is ordered by the Appeals
Council and may take any additional action that is not
inconsistent with the Appeals Council's remand order.” 20 C.F.R.
§404.977(b) (emphasis in original). The failure of an ALJ to
abide by the directives in an Appeals Council remand order
constitutes legal error requiring remand. Savino v. Astrue, No.
07–CV–4233 (DLI), 2009 WL 2045397, at *9 (E.D.N.Y. July 8, 2009)
25
(citing Scott v. Barnhart, 592 F. Supp. 2d 360, 371 (W.D.N.Y.
2009) (“The ALJ's failure to comply with the Appeals Council's
order constitutes legal error, and necessitates a
remand.”)(citations omitted); Mann v. Chater, No. 95 CIV.
2997(SS), 1997 WL 363592, at *1–2 (S.D.N.Y. June 30, 1997)
(holding that the case must be remanded when the ALJ did not
follow the orders of the Appeals Council)).
The Appeals Council’s Order states that upon remand the ALJ
will:
• Give further consideration to the transferable skills
acquired from the claimant’s past relevant work. In so
doing, obtain supplemental evidence from a vocational
expert to determine the claimant’s transferable skills and
whether the claimant has acquired any skills that are
transferable with very little, if any, vocational
adjustment to other occupations under the guidelines in
Social Security Ruling 82-41. The hypothetical questions
should reflect the specific capacity/limitations
established by the records as a whole. The Administrative
Law Judge will ask the vocational expert to identify
examples of such appropriate jobs and to state the
incidence of such jobs in the national economy (20 C.F.R.
404.1566). Further, before relying on the vocational
expert evidence the Administrative Law Judge will identify
and resolve any conflicts between the occupational
evidence provided by the vocational expert and information
in the Dictionary of Occupational Title (DOT) and its
companion publication, the Selected Characteristics of
Occupations (Social Security Ruling 00-4p).
[Tr. 802].
At the 2017 hearing the ALJ specifically asked the VE
whether “the claimant [has] transferable skills to light work?”
26
and the VE responded “yes.”6 [Tr. 2083]. Duncan’s attorney also
inquired of the VE whether “there [were] any transferable skills
from the claimant’s past relevant work to the sedentary exertion
level?” and the VE responded that the transferable skills
previously testified to would be the same at the sedentary
level. [Tr. 2085].
Defendant argues, and the Court agrees, that any error by
the ALJ for not making “specific findings” in her 2017 ruling
ALJ:
6
Q. Okay. Does the claimant have transferable skills to
light work?
VE:
A: Yes, Your Honor. These transferable skills
specifically for the dietary manager, which would have
been the director job, would have been directing and
coordinating food service activities, coordinating the
kitchen staff, inspecting food and food preparation,
hiring and firing and general staff supervision, also
inventory. Those would be the main transferable
skills, Your Honor.
...
Q: Okay. The director job, is the knowledge of meal
services one of the transferable skills?
A: Yes, Your Honor.
Q: Okay. What about numerical record keeping?
A: Yes. That would also be one. Let’s see. Also, well
when I said staff supervision, administrative would be
another one.
Q: Okay.
A: which would kind of be in line with that staff
supervision.
Q: The claimant testified a few minutes ago as to her
job duties. Are all of the transferable skills that
you just indicated she had, things she testified to?
A: Yes, Your Honor.
[Tr. 2083-84].
27
was “at most harmless error because the ALJ did not reach step
five of the sequential evaluation, the only point in the
analysis when transferrable skills become relevant.” [Doc. #13-1
at 14 (citing Tr. 720-21)]. As set forth above, this case is in
the district court for the second time after being remanded by
the Western District of New York, upon stipulation of the
parties, in August 2016. [Tr. 792-98]. In her first opinion, the
ALJ found plaintiff was not disabled at Step Five of the
sequential analysis. [Tr. 29-32]. In the Remand Order, the
Appeals Council vacated the 2016 Ruling, “for further
proceedings consistent with the order of the court.” [Tr. 801].
The Appeals Council also found that
the record includes a limited description of the
requirements of the claimant’s past relevant work in a
Work History Report dated June 10, 2010 (Exhibit 6E);
the claimant did not provide greater details of the
requirements of her past relevant work at the hearing
held on February 28, 2014. Therefore, it is unclear
whether the claimant derived the transferable skills
identified by the vocational expert (Social Security
Ruling 82-41).
[Tr. 801].
At the ALJ’s hearing in July 2017, plaintiff provided
testimony regarding her employment history, the positions she
held and the skills and duties of each position in greater
detail. [Tr. 2077-81]. Similarly, the VE provided testimony
regarding the work performed by plaintiff in the 15 years prior
to her date last insured, the positions of dietary aide, kitchen
28
supervisor and dietary manager and their counterparts in the
DOT, and identified transferable skills acquired from these
jobs. [Tr. 2082-88]. In her second opinion in November 2017, ALJ
Zahm found at Step Four that plaintiff was capable of performing
past relevant work as a dietary manager and, pursuant to the
regulations, was not required to reach Step Five or the issue of
transferrable skills. [Tr. 720-21]. See 20 C.F.R.
§404.1520(a)(4)(“The sequential evaluation process is a series
of five “steps” that we follow in a set order ... If we can find
that you are disabled or not disabled at a step, we make our
determination or decision and we do not go on to the next
step.”). Transferrable skills only become an issue for
consideration when the ALJ reaches Step Five of the sequential
evaluation process. See 20 C.F.R. §§404.1520(a)(4)(v);
404.1560(c). Indeed, the ALJ acknowledged as much in her
decision stating, “as explained below, the additional vocational
expert evidence obtained pursuant to the Appeals Council’s
directive eliminated the need to consider any transferable
skills the claimant may have acquired from her past relevant
work, while also supporting the conclusion that the claimant
remained able to perform past relevant work.” [Tr. 708]. Here,
the ALJ made a determination at Step Four of the sequential
evaluation, finding that plaintiff could perform her past
relevant work as a Dietary Manager. [Tr. 720-21]. The issue the
29
Appeals Council identified with the 2014 decision, a lack of
evidence supporting the decision at Step Five of the sequential
evaluation, was addressed by taking additional testimony at the
2017 hearing from plaintiff and the VE and the finding at Step
Four of the sequential evaluation.
Accordingly, any error in not specifically addressing the
issue of transferable job skills, as set forth in the Appeals
Council’s Remand Order, is at most harmless error. See Ortiz v.
Colvin, 298 F. Supp. 3d 581, 590 (W.D.N.Y. 2018)(“Where
application of the correct legal principles to the record could
lead only to the same conclusion, there is no need to require
agency reconsideration.”)(quoting Zabala v. Astrue, 595 F.3d
402, 409 (2d Cir. 2010)(alterations omitted)); Camarata v.
Colvin, No. 6:14-CV-0578 (MAD/ATB), 2015 WL 4598811, at *16
(N.D.N.Y. July 29, 2015) (denying the request for remand because
application of the correct legal standard would not change the
outcome); Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y.
2009)(finding harmless error where the ALJ improperly discounted
the treating physician’s opinion, but still included the opined
limitations from that opinion in the RFC, so remand would serve
no purpose).
Accordingly, the Court finds that the ALJ did not err in
failing to follow the Appeals Council’s Remand Order.
30
C.
The ALJ Properly Determined the Plaintiff’s
Credibility
Last, plaintiff argues that the ALJ “did not even consider
whether Ms. Duncan has an underlying medical condition that
could reasonably be expected to produce the pain she alleged.”
[Doc. #11-1 at 27 (citing Tr. 707-22)]. She contends that “the
ALJ not only failed to properly apply the Second Circuit pain
standard, but she misstated the evidence in finding that Ms.
Duncan is not entirely credible.” Id. at 30.
The ALJ is required to assess the credibility of the
plaintiff’s subjective complaints. See generally 20 C.F.R.
§404.1529. The courts of the Second Circuit prescribe a two-step
process. First, the ALJ must determine whether the record
demonstrates that the plaintiff possesses a medically
determinable impairment that could reasonably produce the
alleged symptoms, such as pain. 20 C.F.R. §404.1529(b). “That
requirement stems from the fact that subjective assertions of
pain alone cannot ground a finding of disability. If the
claimant does suffer from such an impairment, at the second step
the ALJ must consider ‘the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence’ of record.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)(emphasis in
original)(citing 20 C.F.R. § 404.1529(a)). To do this, the ALJ
31
must determine if objective evidence alone supports the
plaintiff’s complaints; if not, the ALJ must consider other
factors laid out at 20 C.F.R. §404.1529(c). See Skillman v.
Astrue, No. 08CV6481, 2010 WL 2541279, at *6 (W.D.N.Y. June 18,
2010). These factors include: “(1) the claimant’s daily
activities; (2) the location, duration, frequency and intensity
of the claimant’s pain; (3) any precipitating or aggravating
factors; and (4) the type, dosage, effectiveness, and side
effects of any medication taken by claimant to alleviate the
pain.” Id. (citations omitted); 20 C.F.R.
§404.1529(c)(3)(v)(vii). The ALJ must consider all the evidence
in the case record. SSR 16-3P, 2016 WL 1119029, at *2 (S.S.A.
March 16, 2016). Furthermore, the “determination or decision
must contain specific reasons for the weight given to the
individual's symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the how the adjudicator
evaluated the individual's symptoms. Id. at *9. “Put another
way, an ALJ must assess subjective evidence in light of
objective medical facts and diagnoses.” Williams, 859 F.2d at
261.
After summarizing plaintiff’s testimony, the ALJ made the
following statement regarding plaintiff’s credibility:
32
The claimant’s complaints of pain and limitations are
out of proportion to the nature and extent of
treatment she has sought and received, the objective
evidence, and the reports of most of the treating and
examining sources for the period close to her date
last insured of December 2011.
Treatment notes show that the claimant’s condition
improved with physical therapy. The record also
reflects that the claimant had far more functional
ability than she testified to at the hearing. For
instance, she stated that she can only walk for five
minutes at a time since 2006. The treatment notes of
the primary care physician show that she was walking
around an amusement park in 2008. Also, she reported
to a doctor that she has “discomfort with any lengthy
walking, sitting, or standing.” Five minutes of
walking, ten minutes of standing, and 15 minutes of
sitting (as she testified were her limitations from
the alleged onset date to her date last insured) are
not lengthy. MRI results show mild findings. The
claimant has not had significant treatment for her
back, only physical therapy, medications, and
chiropractic treatment. Her reason for refusing
injections for pain control is not persuasive if the
pain she experiences restricts her to the extent she
claimed
[Tr. 718-19]. The ALJ conducted a detailed analysis of the
objective and other medical evidence of record supporting
this finding. [Tr. 712-20].
Plaintiff contends that the ALJ’s findings are not based on
substantial evidence. [Doc. #11-1 at 28-30]. The ALJ’s decision
reflects that she did in fact consider plaintiff’s allegations of
pain, their consistency or inconsistency with the objective
medical evidence, improvement with conservative treatment, mild
diagnostic imaging findings, the medical opinions and how such
complaints of pain generally did not result in functional
33
limitations that would preclude work. See Tr. 712-20.
Although “the subjective element of pain is an important
factor to be considered in determining disability,” Mimms v.
Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted), an
ALJ is not “required to credit [plaintiff’s] testimony about the
severity of her pain and the functional limitations it caused.”
Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008). Indeed,
“[t]he ALJ has discretion to evaluate the credibility of a
claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of
the pain alleged by the claimant.” Marcus v. Califano, 615 F.2d
23, 27 (2d Cir. 1979); Snell, 177 F.3d 128, 135 (2d Cir. 1999).
This is precisely the evaluation performed by the ALJ here.
Accordingly, the Court finds no error.
Moreover, the ALJ had the opportunity to personally observe
plaintiff and her testimony, something the Court cannot do.
Accordingly, the Court finds no error in the ALJ’s assessment of
plaintiff’s credibility.
As noted earlier, the Court’s role in reviewing a
disability determination is not to make its own assessment of
the plaintiff’s capabilities; it is to review the ALJ’s decision
for any reversible error. “[W]hether there is substantial
evidence supporting the appellant’s view is not the question
here; rather, we must decide whether substantial evidence
34
supports the ALJ’s decision.” Bonet, 523 F. App’x at 59
(citations omitted). For the reasons stated, the Court finds no
error in the ALJ’s assessment of plaintiff’s credibility, which
is supported by substantial evidence of record.
VI.
CONCLUSION
For the reasons stated, plaintiff’s Motion for Judgment on
the Pleadings [Doc. #11] is DENIED. Defendant’s Motion for
Judgment on the Pleadings [Doc. #13] is GRANTED.
The plaintiff’s complaint [Doc. #1] is DISMISSED with
prejudice. The Clerk of the Court is directed to enter judgment
and close the case.
This is not a Recommended Ruling.
The parties consented to
proceed before a United States Magistrate Judge with appeal to
the Court of Appeals. Fed. R. Civ. P. 73(b)-(c). [Doc. #7
Standing Order In re: Social Security Cases dated June 13,
2018].7
SO ORDERED at Bridgeport, Connecticut this 4th day of May
2019.
___/s/____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
The case was assigned to the undersigned on March 21, 2019.
[Doc. #15].
7
35
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