Brown v. Colvin
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 11 Government's Motion for Judgment on the Pleadings; and remanding this case to the Commissioner for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/20/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RONALD DAVID BROWN,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
brings this action pursuant to Title II of the Social Security Act,
seeking review of the final decision of the Commissioner of Social
Disability Insurance Benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the Commissioner’s decision is reversed.
syndrome, bone spurs, degenerative disc disease, bilateral shoulder
surgery, and rheumatoid arthritis. After the claim was denied,
Plaintiff requested a hearing, which was held before administrative
law judge Michael W. Devlin (“the ALJ”) on March 14, 2013. See
T.26-44. Plaintiff appeared with his attorney and testified, as did
vocational expert Peter Manzi, D. Ed. (“the VE”). The ALJ issued an
unfavorable decision on May 28, 2013, T.8-20, which became the
Commissioner’s final decision after the Appeals Council denied
Plaintiff’s request for review. This timely action followed.
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rule of Civil Procedure. The Court adopts and incorporates by
recitations contained in the parties’ briefs. The record evidence
will be discussed in further detail as necessary to the resolution
of the parties’ motions.
III. Standard of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Social Security Act (“the
Act”), the district court is limited to determining whether the
evidence and whether the Commissioner employed the proper legal
standards. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.
2003). The district court must accept the Commissioner’s findings
of fact, provided that such findings are supported by “substantial
evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
The ALJ’s Decision
The ALJ followed the well-established five-step sequential
disability claims. See 20 C.F.R. § 404.1520(a). At step one, the
ALJ determined that Plaintiff had not engaged in substantial
gainful activity since March 11, 2010, the alleged onset date, and
that he meets the insured status requirements of the Act through
December 31, 2015. T.13.
At step two, the ALJ found that Plaintiff has the following
severe impairments: status post-left shoulder arthroscopic surgery
arthroscopic surgery performed on December 14, 2010; and bilateral
carpal tunnel syndrome. T.13. The ALJ determined that Plaintiff’s
alleged obesity, back pain, and Dupuytren’s contracture were not
“severe” impairments, findings which Plaintiff does not challenge
At step three, the ALJ did not consider Plaintiff’s severe
particular listed impairment. The ALJ concluded, summarily, that
Plaintiff does not have an impairment or combination of impairments
20 C.F.R. Pt. 404, Subpt. P, App. 1.
functional capacity (“RFC”), and determined that he has the ability
to perform sedentary work as defined in 20 C.F.R. § 404.1567(a).1
T.14. Specifically, Plaintiff can
occasionally lift and/or carry up to 10 pounds;
frequently lift and/or carry less than 10 pounds; stand
and/or walk about 6 hours in an eight-hour workday; sit
about 6 hours in an eight-hour workday; rarely push
and/or pull less than 10 pounds with the upper
extremities; and only occasionally push and/or pull
10 pounds with the lower extremities; . . . occasionally
climb ramps and/or stairs, balance, stoop, kneel, crouch,
and crawl; never climb ladders/ropes/scaffolds; never
reach overhead bilaterally; frequently reach in all other
directions bilaterally; [and] frequently handle and
finger bilaterally. . . .
T.14. The ALJ noted that although Plaintiff “can sit/stand for
6 hours, in an eight-hour workday, he is limited to lifting and/or
carrying no more than 10 pounds, so his [RFC] is assessed under the
sedentary Grid Rules rather than the light Grid Rules[.]” T.14
At the fourth step, the ALJ found that Plaintiff had past
relevant work as a drywall applicator (SVP 7, skilled, very heavy)
and taper (dry-wall finisher) (SVP 5, skilled, medium, but actually
performed by Plaintiff at the “very heavy” exertional level). T.18.
The ALJ stated that because Plaintiff is limited to “less than the
“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
limitations,” he is unable to perform any of his past relevant
At the fifth step, the ALJ considered whether Plaintiff is
able to do any other work, given his RFC, age, education, and work
experience. On the alleged onset date, Plaintiff was fifty-one
years-old, which the ALJ incorrectly asserted “is defined as an
individual of advanced age.” T.18.2 The ALJ noted that Plaintiff
has at least a high school education and is able to communicate in
English. T.18. The ALJ then went on to determine that Plaintiff has
acquired work skills from his past relevant work, relying on the
VE’s testimony that Plaintiff acquired the skill of “using a
calculator” in his past work as a drywall applicator and taper.
T.19. The ALJ stated that based on the VE’s testimony, he concluded
that Plaintiff had “acquired work skills [sic] . . . that are [sic]
transferable to other occupations with jobs existing in significant
numbers in the national economy.” Id. The VE identified one job
According to the VE, there are 290,000 such jobs in the national
economy and 240 jobs in the Finger Lakes region. T.19. The ALJ also
stated, inaccurately, that the VE had testified that Plaintiff’s
previous work was “so similar to the jobs [sic] recited above that
This is incorrect, as discussed further below. The Commissioner considers
the 50-to-54-year-range to be “closely approaching advanced age.” See 20 C.F.R.
Pt. 404, Subpt. P, App. 2, § 202.00(d) (“closely approaching advanced age . . .
[Plaintiff] would need to make very little, if any, vocational
adjustment in terms of tools, work processes, work settings, or the
additional limitations do not allow him to perform the full range
transferable work skills [sic], a finding of ‘not disabled’ is
appropriate under the framework of Medical-Vocational Rule 201.07,
section 201.00(f)3 of the Medical-Vocational Guidelines[.]” T.19.
Plaintiff argues that the ALJ’s RFC assessment is legally
erroneous due to the ALJ’s failure to provide good reasons for
rejecting the opinion of Plaintiff’s treating physician, general
practitioner Julia Morgan, M.D.; that the ALJ’s assessment of his
credibility is too vague to permit meaningful appellate review;4
and that the ALJ’s step five analysis is legally erroneous and not
supported by substantial evidence. As discussed below, the multiple
errors committed by the ALJ at step five are dispositive of the
parties’ motions, obviating the need to consider Plaintiff’s other
These Medical-Vocational Rules apply to individuals of advanced
age, which Plaintiff is not.
The ALJ found that Plaintiff was “partially credible for the reasons
explained in this decision[,]” T.15, but did not explain which of Plaintiff’s
statements he found credible and which he did not.
The ALJ’s Step Five Determination Was Legally Erroneous
and Unsupported by Substantial Evidence.
The Step Five Burden of Proof and the Effect of the
generally bears the burden of proving that he is disabled, but “if
the claimant shows that his impairment renders him unable to
perform his past work, the burden then shifts to the [Commissioner]
to show there is other gainful work in the national economy which
the claimant could perform.” Carroll v. Sec’y of Health and Human
Servs., 705 F.2d 638, 642 (2d Cir. 1983); accord Draegert v.
Barnhart, 311 F.3d 468, 472 (2d Cir. 2002). Because “age is one of
the factors that must be considered,” the Commissioner “faces a
more stringent burden when denying disability benefits to older
claimants.” Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990);
accord Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). If
the claimant is “closely approaching advanced age (50–54), [the
Commissioner] will consider that [his] age, along with a severe
impairment and limited work experience, may seriously affect [his]
ability to adjust to a significant number of jobs in the national
“advanced age” (55 years-old or older), the Commissioner must
overcome a “higher burden . . . to deny benefits . . . .” Nielson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993) (citing 20 C.F.R.
§ 404.1563(d) (“[A]dvanced age (55 or over) is the point where age
significantly affects a person’s ability to do substantial gainful
However, a claimant’s acquisition of skills transferable to
other work gives him “a special advantage over unskilled workers in
the labor market.” Social Security Ruling (“SSR”) 82–41, 1982 WL
31389, at *2 (S.S.A. 1982). Thus, an ALJ can enter a finding of
“not disabled” with regard to a younger claimant who has a high
school education and a sedentary RFC, even if the only work he can
perform is unskilled. See 20 C.F.R., Pt. 404, Subpt. P., App. 2,
§ 201.21. To find that same claimant not disabled when he is
“closely approaching advanced age” or of “advanced age,” the ALJ
must also find that the claimant acquired skills in his past work
that are transferable to other skilled or semi-skilled jobs. See,
e.g., Cabrera v. Astrue, No. 06 Civ. 9918(JCF), 2007 WL 2706276, at
*11 & n. 11 (S.D.N.Y. Sept. 18, 2007)(citing 20 C.F.R. § 404,
Subpt. P, App. 2, Table 1 (“Under the Medical-Vocational Rules, a
high school graduate who is ‘closely approaching advanced age’ (age
50-54), is limited to sedentary work, has a high school education,
and has no skills transferable from prior semi-skilled work is
The VE’s and Plaintiff’s
At the hearing, the VE classified Plaintiff’s past jobs as a
drywall finisher and taper. The ALJ asked the VE if there “were any
occupational base[.]” The VE then questioned Plaintiff as follows:
Okay. Did you, like, perform, like when you
would to pick up the materials, did you have
to, like, do any kind of calculations as to
how much you would need? How much square
footage you would have?
Yeah, I can do that.
You did do that. Did you use a calculator?
Yeah, I could[,] yeah.
VE: Okay. There would be skills transferrable to using
a calculator down to sedentary, semi-skilled jobs.
T.41 (emphases supplied). The VE identified one sedentary, semiskilled job that Plaintiff could perform:
operator (DOT 216.482-022, SVP 3). T.42.
Even if the ALJ Properly Had Classified Plaintiff
as “Closely Approaching Advanced Age,” a Finding of
The ALJ correctly noted that Plaintiff had a high school
education and had worked for 30 years as a drywall finisher and a
painter; he stopped working March 2010, because he was physically
unable to perform the work. As
stated above, the ALJ limited
Plaintiff’s RFC to less than the full range of sedentary work. With
regard to Plaintiff’s age, he was born in September 1958, making
him fifty-one years old as of the onset date and fifty-four years
approaching advanced age.” The ALJ, however, incorrectly found that
Plaintiff’s age made him “an individual of advanced age.” T.18.5
However, even if the ALJ properly had classified Plaintiff as
Plaintiff would not reach “advanced age” under the regulations until
September 2015, when he turned fifty-five. See 20 C.F.R. Pt. 404, Subpt. P, App.
2, § 203.00(c) (“persons of advanced age (55 and over)”).
evidence to support a finding of skills transferability, and a
finding of disabled is directed under the Medical-Vocational Rules.
In his decision, the ALJ relied on the VE’s questioning of
Plaintiff regarding whether he had ever used a calculator in his
past work as a drywall applicator and taper. T.19. The ALJ stated
that based on the VE’s testimony, he concluded that Plaintiff had
“acquired work skills [sic] . . . that are [sic] transferable to
other occupations [sic] with jobs existing in significant numbers
in the national economy.” Id. The ALJ’s assertion that Plaintiff
acquired “skills” in the plural misstates the record, because the
VE only questioned Plaintiff about one potential skill—using a
calculator. Moreover, Plaintiff’s testimony about whether he had,
in fact, used a calculator in his past relevant work was ambiguous:
Plaintiff merely said he “can” or “could” use a calculator, which
calculator. Unfortunately, Plaintiff’s attorney did not object or
As an initial matter, the Court questions whether the ability
to use a simple calculator qualifies as a “skill” for purposes of
the Commissioner’s regulations. According to the Commissioner, a
knowledge of a work activity which requires the exercise
of significant judgment that goes beyond the carrying out
of simple job duties and is acquired through performance
of an occupation which is above the unskilled level
(requires more than 30 days to learn). It is practical
and familiar knowledge of the principles and processes of
an art, science or trade, combined with the ability to
apply them in practice in a proper and approved manner.
measurements, reading blueprints, and setting up and
operating complex machinery.
SSR 82–41, 1982 WL 31389, at *2. Even assuming that the the ALJ and
the VE were correct, neither of them engaged in the transferability
analysis required by the regulations and the applicable ruling, SSR
82-41,6 with regard to Plaintiff’s allegedly acquired “skill.” For
all age classifications, including “closely approaching advanced
age,” when an ALJ makes a finding that a claimant has transferable
skills, he must identify the specific skills actually acquired by
the claimant and the specific occupations to which those skills are
transferable. SSR 82–41, 1982 WL 31389, at *7. The Commissioner has
stated that transferability “is most probable and meaningful among
jobs in which: (1) the same or a lesser degree of skill is
required, because people are not expected to do more complex jobs
than they have actually performed (i.e., from a skilled to a
semiskilled or another skilled job, or from one semiskilled to
machines are used; and (3) the same or similar raw materials,
products, processes or services are involved.” Id. at *5.
The Commissioner’s rulings are binding on an ALJ. Terry v. Sullivan, 903
F.3d 1273, 1277 (9th Cir. 1990) (citing Service v. Dulles, 354 U.S. 363, 388
Transferability of skills “depends largely on the similarity
jobs.” 20 C.F.R. § 404.1568(d)(1). Nonetheless, even a cursory
transferability of skills is not “probable” or “meaningful” between
Plaintiff’s past relevant work and the work of a calculator machine
operator. First, Plaintiff’s past jobs (drywall applicator and a
taper) are both in the “Plasterers and Related Occupations” group,
“Accounting and Statistical Clerks” group. Second, there is no
overlap between the tools, machines, materials, products, processes
or services used or produced by the two groups of jobs. According
to DOT 842.684-014, a drywall applicator
[i]nstalls plasterboard or other wallboard to ceiling and
interior walls of building, using handtools and portable
power tools: Installs horizontal and vertical metal or
wooden studs for attachment of wallboard on interior
walls, using handtools. Cuts angle iron and channel iron
to specified size, using hacksaw, and suspends angle iron
grid and channel iron from ceiling, using wire. Scribes
measurements on wallboard, using straightedge and tape
measure, and cuts wallboard to size, using knife or saw.
Cuts out openings for electrical and other outlets, using
knife or saw. Attaches wallboard to wall and ceiling
supports, using glue, nails, screws, hammer, or powered
screwdriver. Trims rough edges from wallboard to maintain
even joints, using knife. Nails prefabricated metal
pieces around windows and doors and between dissimilar
materials to protect drywall edges. Work is usually
performed with other workers. May remove plaster,
drywall, or paneling during renovation project, using
crowbar and hammer.
DOT 842.684-01.7 By contrast, a calculating-machine operator
http://www.occupationalinfo.org/84/842684014.html (last accessed
Nov. 18, 2015).
[c]omputes and records statistical, accounting and other
numerical data, utilizing knowledge of mathematics and
using machine that automatically performs mathematical
processes, such as addition, subtraction, multiplication,
statistical, accounting, and other numerical data, using
calculating machine, and posts totals to records, such as
inventories and summary sheets. May verify computations
made by other workers. May be designated according to
subject matter as Formula Figurer (paint & varnish);
Premium-Note Interest-Calculator Clerk (insurance). May
transcription, using transcribing machine and calculator,
and be designated Inventory Transcriber (business ser.).
May be designated according to type of computations made
as Weight Calculator (ship-boat mfg.).
The ALJ found that Plaintiff acquired transferable “skills”
determination that Plaintiff was not disabled. However, the ALJ’s
transferability analysis is non-existent, and the VE’s sparse
“There would be skills transferrable to using a calculator down to
sedentary, semi-skilled jobs.” T.41. It is unclear what the VE
regarding the duties Plaintiff would be expected to perform as a
“calculator machine operator.” The Court cannot find substantial
evidence to conclude, particularly without any discussion of
specific skills required, that the jobs of drywall applicator and
taper are sufficiently similar to that of a calculator machine
http://www.occupationalinfo.org/21/216482022.html (last accessed
Nov. 18, 2015).
operator to impart transferable skills. Indeed, courts have found
that jobs in the same general classification
necessarily share transferable skills.
in the DOT do not
See, e.g., Dikeman, 245
F.3d at 1187 (“The Commissioner contends that this omission was
cashiering jobs identified by the VE and the ALJ were the same as
plaintiff's past job as a grocery checker, just at a lighter
record.”); Pyles v. Bowen, 849 F.2d 846, (4th Cir. 1988) (“It
strains credulity to conclude, particularly without any discussion
of specific skills, that a sales clerk position is sufficiently
similar to that of a retail store manager to impart transferable
The ALJ Misapplied the “Advanced Age” Regulations
and SSR 82-41.
the ALJ had made a sufficient finding of
transferability, which he did not, that “alone, does not satisfy
the [Commissioner]’s regulations requiring very little vocational
adjustment” for claimants of advanced age. Nielson v. Sullivan,
992 F.2d 118, 1120 (10th Cir. 1993) (citing Terry, 903 F.2d at 1279
(“Not only must [a claimant’s] skills be transferable, there must
be little vocational adjustment required. . . .”); Burton v. Sec’y
of Health & Human Servs., 893 F.2d 821, 824 (6th Cir. 1990) (“It
is not enough . . . that the claimant possess transferable skills;
adjustment.”)). Having found (albeit incorrectly) that Plaintiff
was of “advanced age,” the ALJ was required by the Commissioner’s
regulations to address transferability of skills as follows:
order to find transferability of skills to skilled sedentary work
for individuals who are of advanced age (55 and over), there must
be very little, if any, vocational adjustment required in terms of
20 C.F.R. Pt.
“semiskilled or skilled job duties of their past work must be so
closely related to other jobs which they can perform that they
could be expected to perform these other identified jobs at a high
degree of proficiency with a minimal amount of job orientation.”
SSR 82-41, 1982 WL 31389, at *5.
As noted above, the VE identified one job that a person with
Plaintiff’s RFC and vocational profile could perform—that of
calculating machine operator (DOT 216.482-022). The ALJ stated,
inaccurately, that the VE had testified that Plaintiff’s previous
[Plaintiff] would need to make very little, if any, vocational
adjustment in terms of tools, work processes, work settings, or
the industry.” T.19. The VE did not provide any such testimony.
Significantly, the ALJ does not provide a page citation to the
hearing transcript in support of this assertion. Furthermore, the
ALJ mischaracterized the contents of his own decision, asserting
that he had recited multiple jobs identified by the VE when, in
fact, he had only referred to one job, since the VE had only
identified one potential job at the hearing. Thus, although the
ALJ purported to make a “vocational adjustment” finding, it was
unsupported by any evidence in the record.
Plaintiff’s claim, and then erroneously applied that incorrect
standard to a conclusion not supported by substantial evidence in
“advanced age” regulations and ruling in some detail because,
although Plaintiff was not of “advanced age” at the time of the
hearing, he became of “advanced age” during the pendency of his
request for review to the Appeals Council and is now fifty-seven
years-old. A remand at this juncture therefore would require the
Commissioner to demonstrate that Plaintiff would need to make very
little, if any, vocational adjustment in terms of tools, work
processes, work settings, or the industry. Such a finding is not
possible given Plaintiff’s RFC, age, vocational profile, and the
Under these circumstances, a remand for the calculation of
benefits is warranted because further administrative proceedings
or another hearing would serve no useful purpose. See Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980). Accordingly, the Court
reverses the Commissioner’s decision and directs that the matter
be remanded solely for calculation and payment of benefits.
Commissioner’s determination was erroneous as a matter of law and
remanded for calculation and payment of benefits. Defendant’s
Motion for Judgment on the Pleadings is denied, and Plaintiff’s
Motion for Judgment on the Pleadings is granted. The Clerk of the
Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
November 20, 2015
Rochester, New York.
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