Halftown v. Commissioner of Social Security

Filing 16

DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings; denying 10 Motion for Judgment on the Pleadings. Signed by Hon. Jeremiah J. McCarthy on 9/24/2024. (EG) Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
BRENDA H., 1
Plaintiff,
v.

DECISION AND ORDER
1:22-cv-297-JJM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
Plaintiff brings this action pursuant to 42 U.S.C. §§405(g) and 1383(c)(3) to
review the final determination of the Commissioner of Social Security that she was not disabled.
Before the court are the parties’ cross-motions for judgment on the pleadings [9, 10]. 2 The
parties have consented to my jurisdiction [14]. Having reviewed their submissions [9, 10, 11],
this action is remanded to the Commissioner for further proceedings consistent with this
Decision and Order.
BACKGROUND
The parties’ familiarity with the 998-page administrative record [6] is presumed.
On November 5, 2019, plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging an onset date of June 1, 2010. Administrative Record [6]

In accordance with the guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Western District
of New York on November 18, 2020 in order to better protect personal and medical information of nongovernmental parties, this Decision and Order will identify the plaintiff by first name and last initial.
1

Bracketed references are to the CM/ECF docket entries. Page references to the administrative
record are to the Bates numbering. All other page references are to the CM/ECF pagination.

2

at 21. Plaintiff complained of various physical and mental ailments. Id. at 86-87. Plaintiff’s
claim was initially denied. Id. at 97.
A.

The Hearing
At plaintiff’s request, Administrative Law Judge (“ALJ”) Brian LeCours

conducted a telephonic hearing on December 9, 2020. Id. at 17, 32-65. Plaintiff was represented
by an attorney. Id. at 35.
At the hearing, plaintiff testified that she lived with her daughter and three schoolaged grandchildren. Id. at 39. She stated that she does not drive anymore. Id. She last worked in
2010, as a cleaner at a bingo hall. Id. at 39-40. Prior to that, she worked as a “receptionist for the
court system”, where she would log the incoming mail and walk it over to another building. Id. at
40-41. She testified that there was “really no paperwork” involved in that job, but indicated that
she would do filing, answer phone calls, and organize mail. Id. at 41-42. Plaintiff testified she
was in special education at school, does not have her GED, and can “barely” read or write. Id. at
45. However, plaintiff was able to copy addresses from the mail she sorted. Id.
Plaintiff further testified that her daughter occasionally helps her manage her
money. Id. at 46. Plaintiff has never lived alone. Id. She is not able to mop, sweep, or do her own
laundry. Id. at 53-54. She can bathe and dress herself. Id. at 54. She cares for her grandchildren
when they are not in school, but she noted that they are old enough to do things for themselves.
Id. at 55. She reported taking medication for depression and anxiety. Id.
A vocational expert testified that plaintiff could perform her previous work as a
receptionist if she were able to occasionally perform complex tasks and could perform tasks that
can be learned within six months. Id. at 60-61. She testified that plaintiff would be precluded

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from performing past relevant work if she were limited to unskilled work requiring little or no
judgment. Id.
B.

The ALJ’s Decision
On December 23, 2020, ALJ LeCours issued a Notice of Decision denying

plaintiff’s claim. Id. at 17-26. He found that plaintiff had the following severe impairments:
chronic obstructive pulmonary disease, osteoarthritis and degenerative joint disease of the knee,
obesity, affective disorder, and a learning disorder. Id. at 19. He assessed plaintiff with mild
limitations adapting or managing oneself; mild to moderate limitations in her ability to
understand, remember, or apply information, as well as concentration, persistence, or
maintaining pace; and no limitations in interacting with others. Id. at 21.
ALJ LeCours determined that plaintiff retained the RFC to perform light work
with the following exceptions: plaintiff can tolerate no more than occasional exposure to
pulmonary irritants, and she can perform tasks that can be learned in six months. Id. at 22.
He concluded that plaintiff could perform past relevant work as a receptionist. Id. at 26.
Accordingly, he found plaintiff not disabled. Id.
C.

The Medical Evidence
In assessing plaintiff’s mental impairments, ALJ LeCours considered her

testimony, her treatment history, and the following medical opinions.
In a November 2002, Mark Gunther, Ph.D., performed a neuropsychology
consultative of plaintiff. Id. at 353-54. Dr. Gunther reported that plaintiff had a seventh-grade
special class education. Id. at 353. Dr. Gunther’s testing indicated that plaintiff had “inferior”
verbal IQ, “low average” performance IQ, and a “borderline” full scale IQ. Id. Plaintiff’s word

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reading, reading comprehension, pseudo-word decoding, and written expression were each
assessed as “inferior”. Id. at 354.
In a February 2020 psychiatric evaluation, consultative examiner Susan Santarpia,
Ph.D., diagnosed plaintiff with affective disorders that “d[id] not appear to be significant enough
to interfere with [plaintiff’s] ability to function on a daily basis”. Id. at 932-35. Dr. Santarpia
assessed plaintiff as having fluent speech intelligibility and coherent thought process, but that her
attention and concentration were “mildly impaired”, and that her cognitive function was “low
average”. Id. at 934. She reported to Dr. Santarpia that she was able to dress, bathe, and groom
herself; cook, clean, do laundry, shop, manage her own money, socialize with friends and family,
spend her day as a primary caregiver for her three grandchildren, knit, and watch television. Id.
ALJ LeCours found Dr. Santarpia’s opinion to be “consistent with the overall record”. Id. at 23.
On February 27, 2020, state agency psychologist M. Butler, Ph.D., reviewed
plaintiff’s records and opined that plaintiff had only mild mental defects. Id. at 92-93. Upon a
request for reconsideration, K. Lieber-Diaz, Ph.D., opined on May 11, 2020, that “although the
foundation of [a learning disability] was long established”, plaintiff had no more than moderate
limitations and was capable of performing unskilled work on a sustained basis. Id. at 128, 13234. ALJ LeCours rejected any limitation to unskilled work as unsupported and credited earlier
agency opinions assessing plaintiff with non-severe impairments. Id. at 23.
On October 1, 2020, Peterkin Lee-Kwen, M.D. conducted a neurological
evaluation of plaintiff. [6] at 986-89. Dr. Lee-Kwen noted that plaintiff had a “history of learning
disability”, was in special education at school, and completed eighth grade. Id. at 988. He rated
plaintiff 1 out of 5 in serial sevens counting and spelling a word backwards. Id. at 987. Plaintiff

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was unable to repeat a common phrase, write a sentence, or copy a diagram. Id. ALJ LeCours did
not discuss this opinion.
In a December 7, 2020 treating source statement, Rebecca Salerno, PAC, opined,
in relevant part, that plaintiff had poor attention span and recall, impaired concentration, and a
learning disorder. Id. at 991-96. ALJ LeCours found this opinion not persuasive, on the basis
that such limitations were not clearly documented on treatment records. Id. at 22.
ALJ LeCours reviewed plaintiff’s medical records and concluded that her
depression and anxiety were non-severe, as evidenced by plaintiff’s discontinuation of treatment
for those impairments. Id. at 23. As to plaintiff’s learning disorder, ALJ LeCours found that the
cognitive limitations suggested by plaintiff and a 2002 intelligence test were unpersuasive, as she
performed prior work at the semi-skilled level, attained her driver’s license, manages money,
shops, cooks, is the primary caregiver to three grandchildren, and could perform serial threes and
performed serial seven testing with only minor errors. Id. at 24.
ANALYSIS
A.

Standard of Review
“A district court may set aside the Commissioner’s determination that a claimant

is not disabled only if the factual findings are not supported by ‘substantial evidence’ or if the
decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York, Inc. v. NLRB, 305
U.S. 197, 229 (1938); see also Biestek v. Berryhill, 587 U.S. __, 139 S. Ct. 1148, 1154 (2019);
Colgan v. Kijakazi, 22 F.4th 353, 359 (2d Cir. 2022) (“[a]lthough . . . the evidentiary threshold
for the substantial evidence standard ‘is not high,’ . . . the substantial evidence standard is also
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not merely hortatory: It requires relevant evidence which would lead a ‘reasonable mind’ to
concur in the ALJ’s factual determinations”).
An adjudicator determining a claim for Social Security benefits employs a fivestep sequential process. See Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520, 416.920. The
plaintiff bears the burden with respect to steps one through four, while the Commissioner has the
burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).
B.

The ALJ’s Decision Was Not Supported by Substantial Evidence
Plaintiff argues that ALJ LeCours erred in concluding that she was capable of

performing semi-skilled work, arguing that such a finding failed to account for her learning and
affective disorders; improperly relied on activities of daily living, including childcare; and
improperly relied on her previous secretarial work which he characterized as semi-skilled work
despite plaintiff’s testimony that such work required little to no paperwork and that she could
barely read or write. Plaintiff’s Brief [9-1] at 6-9. The Commissioner argues that the ALJ
properly discounted plaintiff’s alleged cognitive limitations by finding that her work history and
activities of daily living sufficiently demonstrated her ability to perform work at the semi-skilled
level. Commissioner’s Brief [10-1] at (citing ALJ Decision [6] at 24). I agree with plaintiff.
While “the evidentiary threshold for the substantial evidence standard ‘is not
high,’ . . . [it] is also not merely hortatory: It requires relevant evidence which would lead a
‘reasonable mind’ to concur in the ALJ’s factual determinations”. Colgan, 22 F.4th at 359.
“As deferential as the ‘substantial evidence’ standard is, it is also . . . gives federal courts the
freedom to take a case-specific, comprehensive view of the administrative proceedings, weighing
all the evidence to determine whether it was ‘substantial.’” Brault v. Commissioner of Social
Security, 683 F.3d 443, 449 (2d Cir. 2012). Moreover, “the [Social Security] Administration’s
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discretion in making factual determinations is also constrained by self-imposed regulations”.
Colgan, 22 F.4th at 359.
Here, ALJ LeCours found that plaintiff was capable of performing semi-skilled
work. [6] at 22, 24, 26. That determination appears to have been based primarily on plaintiff’s
past employment experience and her activities of daily living, and in spite of evidence indicating
that plaintiff had “borderline” intellectual functioning and “inferior” reading abilities. Id. at 22,
24, 26, 353-54. ALJ LeCours found that “[a]s for the claimant’s learning disorder, the allegations
of inability to read or write, and results of the 2002 formal intelligence test [], these do not
appear to be a great or persuasive factor, particularly since she successfully performed work at
the semi-skilled levels with reported duties that included some record-keeping. She was also able
to attain a driver’s license, manages money, shops, and cooks. She is the primary caregiver for
her three grandchildren.” Id. at 24.
While “the claimant has the burden [at step four] to show an inability to return to
her previous specific job and an inability to perform her past relevant work generally”, “[t]his
inquiry requires separate evaluations of the previous specific job and the job as it is generally
performed”. Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003); see also Glessing v.
Commissioner of Social Security, 725 F. App’x 48, 49 (2d Cir. 2018). Plaintiff testified at the
hearing that she worked as a “receptionist for the court system”; however, the job she described
seemed to relate primarily to mail handling and delivery. Id. at 40-41. While she would
occasionally do filing and answer phone calls, she stated that there was “really no paperwork”
involved in that job. Id. at 41-42. She testified that she was able to copy addresses from the mail
she sorted, but she required help from friends to sound out words. Id. at 45, 49. She also testified
that she could “barely” read or write. Id. at 45. She did not think she could perform this kind of

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job, which she last performed in 2005, as it currently exists due to the increased demands of the
modern workplace. Id. at 49.
At the hearing, the vocational expert defined this past employment as a
“receptionist” as described by Dictionary of Occupational Titles (“DOT”) code 352.667-010. Id.
at 59. While she modified the exertional level for that job title based on plaintiff’s testimony of
the work performed, she did not modify any of the general education development (“GED”)
criteria. Id. That is significant because the GED criteria for the receptionist title contemplates
both a Reasoning Development and Language Development level of 3. See DICOT 352.667-010
(G.P.O.), 1991 WL 672913. A Reasoning Development level of 3 is described, in part, as the
ability to “[a]pply commonsense understanding to carry out instructions furnished in written,
oral, or diagrammatic form”. Id. A Language Development level of 3 is described as the ability
to “[r]ead a variety of novels, magazines, atlases, and encyclopedias. Read safety rules,
instructions in the use and maintenance of shop tools and equipment, and methods and
procedures in mechanical drawing and layout work” as well as to “[w]rite reports and essays
with proper format, punctuation, spelling, and grammar, using all parts of speech”. Id. These
ability levels seem ambitious for a person who was assessed with “borderline” intellectual
functioning, “inferior” reading abilities, and required help from coworkers to sound out words.
Id. at 49, 353-54.
While ALJ LeCours discounted plaintiff’s intelligence assessment and selfreported language limitations, he did so, in large part, based on the assumption that she was able
to perform work as a receptionist as defined, i.e., as semi-skilled work. See id. at 24. However,
the only evidence of record as to plaintiff’s duties at that job was her testimony, and, as

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discussed, that testimony raises significant doubt as to whether that job was performed at a level
contemplated by the applicable title.
While plaintiff bears the burden of proof as to her past relevant work, Social
Security Ruling 00-4p provides that “[o]ccupational evidence provided by a [vocational expert]
generally should be consistent with the occupational information supplied by the DOT” and
“[w]hen there is an apparent unresolved conflict between [such] evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict before relying on [such
evidence]”. SSR 00-4p, 2000 WL 1898704; see Gonzalez-Cruz v. Commissioner of Social
Security, 294 F. Supp. 3d 164, 192 (W.D.N.Y. 2018). This coincides with the general obligations
that an ALJ render a decision that is supported by substantial evidence and to develop the record
where such evidence is lacking. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
Moreover, the ALJ’s factual determinations must comport with relevant Social
Security Administration (“SSA”) regulations. See Colgan, 22 F.4th at 359. Section 404.1564 of
the SSA regulations sets out four educational categories and their default relationship to
performing skilled, semi-skilled, or unskilled work. 20 C.F.R. §404.1564(a)-(c). Plaintiff’s
formal education ended somewhere between 7th and 9th grade (or the special education equivalent
thereof), which would place plaintiff at the lower end of the “limited education” category. 20
C.F.R. §404.1564(b)(3) (“[w]e generally consider that a 7th grade through the 11th grade level of
formal education is a limited education.”). “Limited education means [some] ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with these educational
qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs.”
Id. Thus, a person with plaintiff’s education level is, by regulation, presumptively unable to
perform semi-skilled work.

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It is true that “[e]vidence such as past work experience, the kind of responsibility
an individual may have had when working, daily activities, hobbies, results of testing,
community projects, or vocational training, may show that an individual’s actual educational
abilities are higher or lower than his or her formal education level”. SSR 20-01p, 2020 WL
1083309 (“How We Determine an Individual’s Education Category”). Also, “[w]e . . . will not
find an individual’s education category to be lower than his or her highest level of formal
education based solely on an individual’s history of having received special education”. Id.
Nonetheless, ALJ LeCours’ observation that plaintiff’s past relevant work included “some
record-keeping” ([6] at 24) falls short of adequately explaining why an upward departure from
plaintiff’s default education category was justified. See Arch v. Commissioner of Social
Security, 2021 WL 4200719, *12 (S.D.N.Y. 2021) (“[i]t is the ALJ’s responsibility to ‘build an
accurate and logical bridge from the evidence to [his] conclusion to enable meaningful review”).
Finally, I note that ALJ LeCours did not address Dr. Lee-Kwen’s October 2020
neurological evaluation. See [6] at 986-89. While this is not a functional opinion per se, Dr.
Kwen’s findings conflict with certain findings by the ALJ that were critical to his determination
regarding semi-skilled work, for example, that plaintiff was able to complete serial sevens with
“only minor errors” Id. at 24; compare id. at 987 (rating plaintiff a 1 out of 5 in serial sevens
counting). Where the ALJ’s “RFC assessment conflicts with an opinion from a medical source,
the [ALJ] must explain why the opinion was not adopted.” SSR 96-8p (1996), 1996 WL 374184,
*7; see Mary R. v. Commissioner of Social Security, 2022 WL 4376219, *2 (W.D.N.Y. 2022).
“While the ALJ is not obligated to ‘reconcile explicitly every conflicting shred of medical
testimony,’ she cannot simply selectively choose evidence in the record that supports her

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conclusions.” Dioguardi v. Commissioner of Social Security., 445 F. Supp. 2d 288, 297
(W.D.N.Y. 2006) (citations omitted).
The inadequate findings at step four are prejudicial and require remand because
the vocational expert testified that limiting plaintiff to unskilled work would be preclusive of
performing past relevant work. [6] at 61. The ALJ made no step five findings. See 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v); McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (“[a]t
Step Five, the Commissioner must determine that significant numbers of jobs exist in the
national economy that the claimant can perform”). The Commissioner bears the burden of proof
at step five. See Talavera, 697 F.3d at 151; Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir.
1983) (“[t]he Secretary must . . . prove the existence in the national economy of jobs suited to the
claimant’s physical and vocational capabilities”). Here, there is no discussion on the record about
whether there are alterative jobs plaintiff can perform, let alone whether such jobs exist in
significant number in either the national or regional economy. Therefore, the Commissioner’s
burden in the alternative scenario is not met. See Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177
(W.D.N.Y. 2018) (“[i]f the Commissioner cannot meet his or her burden to demonstrate that
such work exists, then the claimant will be found disabled under the Act”).
CONCLUSION
For the reasons stated above, plaintiff’s motion for judgment on the pleadings [9]
is granted to the extent of remanding this claim to the Commissioner for further proceedings
consistent with this Decision and Order, and is otherwise denied, and the Commissioner’s
motion for judgment on the pleadings [10] is denied.

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SO ORDERED.
Dated: September 24, 2024

/s/ Jeremiah J. McCarthy
JEREMIAH J. McCARTHY
United States Magistrate Judge

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