Robinson v. Commissioner of Social Security

Filing 14

ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. denying 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/2/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
GEORGE ROBINSON,
Plaintiff,

6:18-cv-06135-MAT
DECISION AND

-vORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
____________________________________
INTRODUCTION
George

Robinson

(“Plaintiff”),

represented

by

counsel,

brings this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the
Acting

Commissioner

of

Social

Security

(“Defendant”

or

“the

Commissioner”) denying his application for disability insurance
benefits (“DIB”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. § 1383(c). Presently before the Court are
the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
For the reasons set forth below, Plaintiff’s motion is granted to
the extent that the matter is remanded for further administrative
proceedings and Defendant’s motion is denied.
PROCEDURAL BACKGROUND
On April 27, 2015, Plaintiff protectively filed for DIB,
alleging

disability

beginning

June

10,

2014.

Administrative

Transcript

(“T.”)

66-67.

The

claim

was

initially

denied

on

July 13, 2015, and Plaintiff timely requested a hearing. T. 7689. A hearing was conducted via video-conference on November 1,
2016,

in

Falls

Church,

Virginia

by

administrative

law

judge

(“ALJ”) Rosanne M. Dummer. T. 31-64. Plaintiff appeared with his
attorney and testified via video-conference from Rochester, New
York. An impartial vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on February 24, 2017.
T. 10-30. Plaintiff timely appealed the decision to the Appeals
Council (“AC”), which denied Plaintiff’s request for review on
December 15, 2017, making the ALJ’s decision the final decision
of the Commissioner. T. 1-5. Plaintiff then timely commenced this
action.
THE ALJ’S DECISION
The

ALJ

promulgated
claims.

applied

by

See

the

20

the

five-step

Commissioner

C.F.R.

§

for

sequential

evaluation

adjudicating

disability

404.1520(a).

Initially,

the

ALJ

determined that Plaintiff met the insured status requirements of
the Act through March 31, 2019. T. 15.
At step one of the sequential evaluation, the ALJ found that
Plaintiff

had

not

engaged

in

substantial

alleged onset date. Id.

2

gainful

since

his

At

step

“severe”
accident,

two,

the

impairments

ALJ

of

status-post

determined

status-post

June

2015

that
June

Plaintiff
2014

decompression

had

the

motor

vehicle

L5-S1,

chronic

lumbar spine myofascitis and radiculitis. Id.
The

ALJ

also

determined

that

Plaintiff’s

medically

determinable impairment of depression did not have more than a
minimal effect on his ability to perform basic work activities,
and therefore was nonsevere. T. 16.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix

1.

The

ALJ

specifically

considered

Listing

1.04

(Disorder of the Spine) in making this determination. T. 17.
Before

proceeding

to

step

four,

the

ALJ

assessed

that

Plaintiff had the residual functional capacity (“RFC”) to perform
light

work

as

defined

in

20

C.F.R.

404.1567(b),

with

the

following limitations: can lift/carry twenty pounds occasionally
and ten pounds frequently; sit six of eight hours, one hour at a
time; stand two of eight hours, one hour at a time; walk two of
eight hours, one hour at a time; occasionally reach overhead and
occasionally

operate

food

ramps/stairs,

balance,

stoop,

ladders/scaffolds

and

controls;
kneel,

vibrations;
3

occasionally

crouch

and

climb

crawl;

occasionally

avoid

tolerate

humidity/wetness

and

extremes

of

heat/cold;

and

frequently

operate a motor vehicle. Id.
At step four, the ALJ determined that Plaintiff was unable
to perform any of his past relevant work as a cabinet assembler,
turret-lathe

setup

operator

computer,

hospital

housekeeper,

recycler, or packager at Kodak and assembler. T. 25.
At step five, the ALJ relied on the VE’s testimony to find
that,

taking

into

account

Plaintiff’s

age,

education,

work

experience, and RFC, there are jobs that exist in significant
numbers

in

the

national

economy

that

Plaintiff

can

perform,

including the representative occupations of parking lot cashier,
ticket taker, ticket seller, laminator, table worker, and ampoule
sealer. Id. The ALJ accordingly found that Plaintiff had not been
under a disability, as defined in the Act. T. 26.
SCOPE 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.

42 U.S.C. § 405(g); see also

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
4

42

U.S.C.

§

405(g)

(the

Commissioner’s
substantial

findings

evidence,

“as

to

shall

any

be

fact,

if

supported

conclusive”).

by

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000) (quotation omitted). The reviewing
court nevertheless must 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 review for substantial evidence does not
apply

to

the

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)).
DISCUSSION
Plaintiff contends that remand is warranted because the RFC
finding is not supported by substantial evidence. In particular,
Plaintiff

argues that

the ALJ:

(1)

improperly

relied

on

the

medical opinion of non-examining medical expert Dr. Louis Fuchs;
(2)

failed

treating

to

properly

primary

care

evaluate
providers,

the

opinion

family

of

nurse

Plaintiff’s
practitioner

(“FNP”) Sara Genovese and Dr. Lorinda Parks; and (3) erred at
step five by finding Plaintiff could perform other work which
exceeded the RFC finding.

5

For the reasons discussed below, the Court concludes that
the ALJ
conflict

failed
between

to

fulfill her
the

VE’s

responsibility

testimony

and

to

the

resolve

Dictionary

the
of

Occupational Titles (“DOT”) at Step Five, thus requiring remand.
I.

The VE’s Interrogatories Response
On January 23, 2017, VE Jane Beougher, who testified at the

November 1, 2016 hearing, completed interrogatories sent to her
by the ALJ. T. 209-12. In the interrogatories, the ALJ included
the hypothetical which eventually became the ALJ’s RFC finding.1
Notably, the hypothetical included the limitation of occasionally
reaching overhead. T. 209.
In her response, the VE stated the hypothetical individual
would be unable to perform any of Plaintiff’s past jobs. T. 210.
However, the VE stated Plaintiff would be able to perform other
jobs that exist in the national economy, including parking lot
cashier, ticket taker, ticket seller, laminator, table worker,
and ampoule sealer. T. 201-11. The VE then checked “no” to the
question

of

whether

there

were

any

conflicts

between

the

1

The hypothetical also assumed that the individual had at least a high school
education. This assumption was inconsistent with Plaintiff’s testimony that he
dropped out of school after completing the eleventh grade. See T. 36. However,
the VE provided several unskilled jobs that Plaintiff would be able to perform,
within the RFC finding. Unskilled jobs do not require a high school education and
accordingly, the error of assuming at least a high school education was harmless.
6

occupational

evidence

she

provided

and

the

occupational

information contained in the DOT. T. 212.
II.

The ALJ’s Step Five Finding Conflicts with the RFC Finding
that Plaintiff is Limited to Occasional Overhead Reaching
Plaintiff contends the ALJ erred at step five when she found

Plaintiff

was

capable

of

performing

work

that

exceeded

his

physical limitations. Specifically, Plaintiff argues that it was
error

for

conflicted

the

ALJ

to

rely

with

the

DOT,

and

on

the

that

VE’s

the

ALJ

statements,
further

which

erred

by

failing to resolve that conflict. The Commissioner maintains the
ALJ did not err because restricting Plaintiff’s ability to reach
overhead does not create a conflict with reaching in general. For
the reasons set forth below, the Court finds that a conflict
exists and the ALJ erred at step five by not resolving that
conflict.
The

DOT

offers

basic

job

descriptions

with

physical

requirements for all the jobs contained within it. All six of the
jobs

the

VE

offered

as

jobs

Plaintiff

would

be

capable

of

performing are included in the DOT, along with their physical
requirements. In particular, the DOT states that the jobs of
ticket seller and laminator both require “constantly” reaching.
See DOT (U.S. Dep’t of Labor 4th ed. Rev. 1991) § 211.467-030,
1991 WL 671853; § 690.685-258, 1991 WL 678561. “Constantly” is
7

defined as two-thirds or more of the workday. Id. “Reaching” is
defined as “[e]xtending hand(s) and arm(s) in any direction.” See
Department
(“SCO”),

of

Labor’s

App’x

C

Selected Characteristics

(1993);

Social

Security

of

Occupations

Regulations

(“SSR”)

85-15, 1985 WL 56857, at *7 (S.S.A. 1985) (emphasis added). The
DOT states that the jobs of parking lot cashier, ticket taker,
table

worker,

and

ampoule

sealer

all

require

“frequently”

reaching. See DOT § 915.473-010, 1991 WL 687865; § 344.667-010,
1991 WL 672863; § 739.687-182, 1991 WL 680217; § 559.687-014,
1991 WL 683782. “Frequently” is defined as one-third to twothirds

of

the

workday.

Id.

As

noted

above,

the

ALJ

found

Plaintiff was capable of reaching overhead only occasionally.
SSR 00-4p provides that if an ALJ considers the testimony of
a VE, the information provided by the VE “generally should be
consistent

with

the

occupational

information

supplied

by

the

DOT.” S.S.R. 00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000).
“When there is an apparent unresolved conflict” between the VE’s
testimony and the DOT, the ALJ is responsible for “elicit[ing] a
reasonable explanation for the conflict before relying on the
VE’s [testimony].” Id. Notably, neither the DOT nor the VE’s
testimony “automatically ‘trumps’ when there is a conflict.” Id.
Instead, the ALJ must resolve the conflict by determining if the
VE’s explanation is reasonable and justifies relying on the VE’s
8

testimony instead of the DOT information. Furthermore, the Second
Circuit recently found that in such cases, the ALJ’s duty to
obtain a reasonable explanation from the VE for “any apparent –
even if non-obvious – conflict” between the VE’s testimony and
the DOT is not resolved simply by taking the VE’s word that their
testimony comports with the DOT. Lockwood v. Commissioner of
Social Security

Administration, __F.3d__,

17-2591-cv,

2019

WL

286674, at *4, (2d Cir. 2019) (emphasis in original) (internal
quotation marks and citations omitted). Instead, the SSR 00-4p
“places the onus on the [ALJ] to affirmatively ‘identify’ any
conflicts.” Lockwood, 2019 WL 286674, at *5. “Allowing the [ALJ]
to fulfill this obligation through catch-all questions . . .
would essentially shunt the [ALJ’s] duty to identify, explain and
resolve

apparent

conflicts

onto

the

[VE].”

Id.

(internal

quotation marks omitted). Accordingly, the Second Circuit found
that

the

Ruling

“must

be

read

to

‘impose

an

independent,

affirmative obligation on the part of the ALJ to undertake a
meaningful investigatory effort to uncover apparent conflicts,
beyond merely asking the [VE] if there is one.’” Id. (quoting
Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1364 (11th Cir.
2018)).
At the hearing, the ALJ asked the VE if her testimony was
consistent with the descriptions in the DOT, to which she replied
9

“yes.” T. 62. In the interrogatories, the VE checked “no” to the
question

of

occupational

whether

there

evidence

she

were

any

provided

conflicts

between

and

occupational

the

the

information contained in the DOT. T. 212. There is no indication
in the record that the ALJ relied upon the DOT job descriptions
after receiving the job titles from the VE. As evidenced by the
now apparent conflict between the VE’s testimony and the DOT,
this error was not harmless. See Spears v. Colvin, No. 15-CV6236-FPG, 2016 WL 4973890, at *4 (W.D.N.Y. Sept. 19, 2016) (“ALJ
erred when he failed to identify apparent conflict between the
jobs the VE identified and the information contained in the DOT
and SCO that each position requires frequent reaching in all
directions.”);

Patti

v.

Colvin,

No.

13-CV-1123-JTC,

2015

WL

114046, at *6 (W.D.N.Y. Jan. 8, 2015) (ALJ erred where he failed
to resolve the conflict between plaintiff’s ability to reach
occasionally and the VE’s testimony that plaintiff could perform
jobs that required frequent reaching according to the DOT).
An ALJ can only find a claimant not disabled at step five if
the ALJ is able to demonstrate there are jobs that “exist in
significant numbers in the national economy” that the claimant
can

perform.

testimony

20

that

C.F.R.
is

§

404.1560(c)(1).

inconsistent

with

the

Relying

on

claimant’s

a

VE’s

actual

capabilities cannot serve as substantial evidence to support the
10

ALJ’s step five finding. See, e.g., Lockwood, 2019 WL 286674, at
*6

(VE’s

testimony

capable of
work

in

could

demonstrating

the

conflicted

national

with

the

not

represent

plaintiff

economy
DOT);

substantial

could

where

Robles

successfully

that

v.

evidence

testimony

Comm’r

of

perform
possibly

Soc.

Sec.,

No. 5:15-CV-1359(GTS) 2016 WL 7048709, at *6 (N.D.N.Y. Dec. 5,
2016) (remanding where VE testimony presented conflict in the
evidence

such

that

“the

Court

[could

not]

determine

whether

substantial evidence support[ed] the ALJ’s step-five findings”).
The

Commissioner’s

argument

that

there

is

no

conflict

because a limitation in a claimant’s ability to “reach overhead”
does

not

create

a

conflict

with

“reaching”

in

general

is

unpersuasive. Given the SCO’s broad definition of “reaching,” it
is entirely possible the jobs named by the VE would include more
than an “occasional” overhead reaching requirement. However, it
is

not

the

Court’s

duty

to

guess

at

the

specific

reaching

directions each job requires. That duty rests squarely with the
ALJ. It was the ALJ’s duty to elicit an explanation from the VE
in

order

“constant”

to

clarify

reaching

work

for

requirements

each

job

and

of

“frequent”

determine

if

and
those

requirements were compatible with RFC finding. See Lockwood, 2019
WL 286674, at *4; Spears, 2016 WL 4973890, at *5 (“Although this
Court could guess what these occupations require in reality, it
11

is the ALJ’s duty to elicit an explanation from the VE as to
whether

these

occupations

actually

require

frequent

overhead

reaching.”).
Although the ALJ failed to clarify the basis of the VE’s
responses that Plaintiff was capable of performing jobs that
required either “frequent” or “constant” reaching, and instead
found the Plaintiff was only capable of “occasional” overhead
reaching, the Court is unable to determine whether substantial
evidence

supports

the

ALJ’s

Step

Five

findings.

The

Court

accordingly finds that remand is required.
III. Plaintiff’s Remaining Arguments
In finding remand necessary for the reasons stated above,
the

Court

need

not

reach

Plaintiff’s

remaining

arguments

concerning the ALJ’s reliance on the medical opinion of nonexamining medical expert Dr. Fuchs and the ALJ’s evaluation of
the opinion of FNP Genovese and Dr. Parks.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment
on the pleadings (Doc. 9) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s opposing motion for judgement on the pleadings

12

(Doc. 12) is denied. The Clerk of Court is directed to close this
case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge

Dated:

February 2, 2019
Rochester, New York