Sanchez v. Colvin
Filing
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DECISION AND ORDER The Commissioner's motion for judgment on the pleadings 13 is granted, and the plaintiff's motion for judgment on the pleadings 9 is denied. The Commissioner's decision that plaintiff is not disabled is affirmed, and the complaint is dismissed, with prejudice. Signed by Hon. David G. Larimer on 10/3/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
RUBEN SANCHEZ,
DECISION AND ORDER
Plaintiff,
17-CV-6034L
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security Administration,
Defendant.
________________________________________________
INTRODUCTION
Plaintiff Ruben Sanchez brings this action pursuant to the Social Security Act (“the Act”)
seeking review of the final decision of the Acting Commissioner of Social Security that denied his
application for disability insurance benefits under Title II of Act. (Dkt. #1). The Court has
jurisdiction over this action pursuant to 42 U.S.C. § 405(g).
Plaintiff has moved (Dkt. #9) and the Commissioner has cross moved (Dkt. #13) for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons that
follow, the Commissioner’s motion is granted, plaintiff’s motion is denied, and the
Commissioner’s decision is affirmed.
BACKGROUND
On April 22, 2013, the plaintiff protectively applied for disability insurance benefits with
the Social Security Administration (“SSA”). (Dkt. #8 at 107). He alleged disability since
December 20, 2012 due to hypertension, degenerative joint disease, Gilbert’s disease (a liver
disorder), Type 2 diabetes, hyperlipidemia, chronic obstructive pulmonary disease (“COPD”),
glucose intolerance, anxiety, depressive disorder, paroxysmal nocturnal dyspnea (nighttime
attacks of severe shortness of breath), and lightheadedness. (Dkt. #8 at 107).
Plaintiff’s application was denied initially and upon reconsideration. Plaintiff requested a
hearing, which was held July 24, 2015 before administrative law judge (“ALJ”) Robert E. Gale.
(Dkt. #8 at 112-13, 106-07, 125, 141). On September 25, 2015, the ALJ issued a decision finding
that the plaintiff was not disabled within the meaning of the Act. (Dkt. #8 at 28). That decision
became the final decision of the Commissioner when the Appeals Council denied review on
December 19, 2016. (Dkt. #8 at 1-4). This action followed.
DISCUSSION
I. Standard of Review
An ALJ applies a well-established five-step evaluation process to determine whether a
claimant is disabled within the meaning of the Social Security Act, familiarity with which is
presumed. See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). The Commissioner’s
decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence,
and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel,
276 F.3d 103, 108 (2d Cir. 2002).
II. The ALJ’s Decision
The ALJ found that the Plaintiff suffers from the following severe impairments, not
meeting or equaling a listed impairment: mild COPD with chronic bronchitis, and an intellectual
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disability. (Dkt. #8 at 18-21). After reviewing the evidence of record, the ALJ determined that
the Plaintiff retains the residual functional capacity (“RFC”) to lift, carry, push, and pull 25 pounds
occasionally and 10 pounds frequently, and can sit, stand and/or walk for up to six hours in an
eight-hour workday. He should not use ladders, ropes, or scaffolds, but can frequently climb ramps
and stairs. Plaintiff can reach in all directions with his left upper extremity to shoulder level, and
can reach with his right upper extremity without any limitations. He has no limitations in handling,
fingering, and feeling. He must avoid even moderate exposure to smoke, dust, pulmonary irritants,
and extreme temperatures. He can understand, remember, perform, and learn new tasks, maintain
attention and concentration, attend to a routine, maintain a schedule, make appropriate decisions,
and interact appropriately with others. (Dkt. #8 at 22-23).
At step four, the ALJ determined that the Plaintiff was unable to perform his past relevant
work as a spray painter because even though plaintiff had performed some spray painting work
during the claimed disability period, the lifting and carrying requirements for the position exceeded
his RFC. (Dkt. #8 at 27).
The ALJ elicited testimony from vocational expert (“VE”) David A. Festa, who opined
that a hypothetical individual sharing plaintiff’s age, education, work experience and RFC could
perform several positions existing in significant numbers in the national economy, including
shipping and receiving weigher, counter clerk, table worker, and food and beverage order clerk.
(Dkt. #8 at 68-71). Accordingly, the ALJ concluded that the plaintiff was not disabled under the
Act.
The Plaintiff argues that the ALJ’s determination contained legal error and is unsupported
by substantial evidence, because the jobs identified by the VE do not exist in sufficiently
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“significant” numbers, and because the ALJ failed to sufficiently account for plaintiff’s intellectual
disabilities in his RFC.
A. Jobs Existing in “Significant Numbers” in the National Economy
At step five of the disability analysis, an ALJ considers the claimant’s RFC, age, education,
and work experience to determine whether there is substantial gainful work activity, existing in
“significant numbers” in the national economy, that the claimant can perform.
20 C.F.R.
§ 404.1520(a)(4)(v). See Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing DeChirico
v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)). If the Commissioner cannot meet his or her
burden to demonstrate that such work exists, then the claimant will be found disabled under the
Act. 20 C.F.R. § 404.1520(f).
According to 20 C.F.R. § 404.1566(b), “[w]ork exists in the national economy when there
is a significant number of jobs (in one or more occupations) having the requirements which [the
claimant is] able to meet with [his RFC].” The regulations provide that work exists in the national
economy when it exists in the local region of the claimant or in various other regions throughout
the country. 20 C.F.R. § 404.1566(b). Work may be considered to exist in the national economy
regardless of whether it exists in the immediate area of the claimant’s residence, whether there is
a specific job vacancy, or whether the claimant would be hired upon applying to the position. 20
C.F.R. § 404.1566(a)(1)-(3). An ALJ may rely on the Medical-Vocational Guidelines or upon
vocational expert testimony to determine whether the claimant’s skills are applicable to other
work. 20 C.F.R. § 404.1566(e). No particular number of positions need be identified: so long as
it exists in sufficiently significant numbers, “[t]he Commissioner need show only one job existing
in the national economy that [the claimant] can perform.” Bavaro v. Astrue, 413 F. Appx. 382, 384
(2d Cir. 2011) (citing 42 U.S.C. § 423 (d)(2)(A); 20 C.F.R. § 404.1566(b)).
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Courts have not established a bright line test as to the threshold number of jobs that is
considered “significant” for purposes of the Act. See e.g., Hamilton v. Comm’r of Soc. Sec., 105
F. Supp. 3d 223, 229 (N.D.N.Y. 2015) (quoting Koutrakos v. Colvin, 2015 U.S. Dist. LEXIS 31524
at *69 (D. Conn. 2015)) (“[n]either the Social Security Act, nor the Commissioner’s Regulations
or Rulings provide a definition for a ‘significant’ number of jobs”). However, “[c]ourts have
generally held that what constitutes a ‘significant’ number is fairly minimal,” and numbers similar
to those presented here – between 9,000 and 10,000 jobs – have typically been found to be
sufficiently “significant” to meet the Commissioner’s burden. Rosa v. Colvin, 2013 U.S. Dist.
LEXIS 43215, at *26 (N.D.N.Y. 2013) (quoting Fox v. Comm’r of Soc. Sec., 2009 U.S. Dist.
LEXIS 11387 at *8 (N.D.N.Y. 2009)). See Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997)
(concluding that 200 regional jobs and 10,000 nationwide is significant); Hoffman v. Astrue, 2010
U.S. Dist. LEXIS 26207 at *15, 43 (W.D. Wash. 2010) (9,000 jobs in the national economy is
significant), report and recommendation adopted, 2010 U.S. Dist. LEXIS 26145 (W.D. Wash.
2010); Vinning v. Astrue, 720 F. Supp. 2d 126, 136 (D. Me. 2010) (30 regional jobs and 11,000
nationwide is significant); Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (6,000
nationwide jobs is significant). Cf. Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d 223, 231
(N.D.N.Y. 2015) (13 regional jobs and 5,160 jobs in the national economy is not significant).
Here, the VE’s testimony established that there are, at minimum, 9,046 jobs existing in the
national economy that plaintiff can perform. (Dkt. #8 at 73, 75). This number of jobs is consistent
with those found to be “significant” under the Act by other courts examining the issue, and I find
no reason to disturb that consensus. As such, I find that the ALJ did not err when he determined
that the claimant could perform jobs existing in significant numbers in the national economy.
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B. The ALJ’s Evaluation of Plaintiff’s Alleged Intellectual Impairment
The Plaintiff argues that the ALJ erred by crafting an RFC that failed to limit him to
unskilled work, or to otherwise account for plaintiff’s limitations with respect to intellectual
functioning, abstract reasoning, immediate memory, and math skills.
Although the record does contain some evidence suggesting that plaintiff has difficulties
with respect to complex reasoning, and had difficulty with academic coursework in his regular
education classes, substantial evidence supports the ALJ’s finding that plaintiff’s intellectual
limitations are no more than “moderate.” As the ALJ noted, plaintiff attended regular (non-special
education) classes in school, obtained a driver’s license, independently managed his own
household and personal care, and worked for nineteen years in the semi-skilled position of spray
painter. (Dkt. #8 at 20). Plaintiff never received mental health treatment, nor were any mental
limitations documented by any treating physician. Id.
Dr. Sara Long, a psychologist who performed consultative psychological and psychiatric
examinations of plaintiff, observed that plaintiff was “coherent and goal directed,” with “no
indication of any sensory or thought disorder.” She found that plaintiff has “no limitations” in
following and understanding simple directions and performing simple tasks, and could maintain
attention and concentration, keep a regular schedule, and learn new tasks. The only substantive
limitations identified by Dr. Long, variously characterized as “moderate” and “moderate, at times
marked,” were with respect to engagement in complex tasks and decision-making. Citing their
consistency with the record as a whole, the ALJ gave “great weight” to Dr. Long’s opinions, and
explicitly incorporated all of her findings into plaintiff’s RFC except for the “moderate, at times
marked” limitations in complex tasks and decision-making: instead, the ALJ found that the record
supported “no more than moderate” mental limitations. (Dkt. #8 at 21, 406-08, 410-13).
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Initially, the Court notes that the ALJ’s finding that plaintiff’s mental limitations are “no
more than moderate” is supported by substantial evidence of record, including plaintiff’s absence
of mental health complaints and/or treatment, plaintiff’s previous nineteen-year tenure in a
semi-skilled position, and plaintiff’s self-reported ability to take care of himself and manage his
household.
Assuming arguendo that the ALJ erred in failing to explicitly incorporate moderate
limitations with respect to complex tasks and decision-making into his RFC finding, and/or erred
by failing to limit plaintiff to unskilled work, such error is harmless. The four jobs identified by
the vocational expert are all unskilled positions, which can be performed by individuals with
moderate mental deficiencies. See Akey v. Astrue, 467 F. Appx. 15, 17 (2d Cir. 2012) (ALJ’s
failure to include a limitation to unskilled and semi-skilled work is harmless because the only jobs
the vocational expert identified were unskilled or semi-skilled); Cummings v. Commissioner, 2018
U.S. Dist. LEXIS 80593 at *20 n.3 (N.D.N.Y. 2018) (a marked limitation for “complex tasks” is
“not inconsistent with the ability to perform unskilled work”); Call v. Commissioner, 2017 U.S.
Dixt. LEXIS 73938 at *11 (N.D.N.Y. 2017) (an “RFC determination limiting Plaintiff to unskilled
work is not inconsistent with opinions that Plaintiff has marked limitation[s] in performing
complex work”); Walsh v. Colvin, 2016 U.S. Dist. LEXIS 54946 at *20 (D. Conn. 2016) (ALJ’s
error in finding that the claimant could carry out complex instructions was harmless where the VE
identified jobs that only required remembering and carrying out simple instructions).
I have considered the rest of plaintiff’s arguments, and find them to be without merit.
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CONCLUSION
For the forgoing reasons, I find that the ALJ’s decision was supported by substantial
evidence and that any legal error therein was harmless. The Commissioner’s motion for judgment
on the pleadings (Dkt. #13) is granted, and the plaintiff’s motion for judgment on the pleadings
(Dkt. # 9) is denied. The Commissioner’s decision that plaintiff is not disabled is affirmed, and
the complaint is dismissed, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 3, 2018.
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