Jones v. Commissioner of Social Security
Filing
22
DECISION AND ORDER granting 13 Plaintiff's Motion for Judgment on the Pleadings; denying 19 Commissioner's Motion for Judgment on the Pleadings; and the matter is remanded solely for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/19/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANITA AZARINE JONES,
Plaintiff,
-vsANDREW M. SAUL,1 Commissioner of
Social Security,
No. 18-CV-6217-MAT
DECISION AND ORDER
Defendant.
INTRODUCTION
Anita Azarine Jones (“Plaintiff”), represented by counsel,
brings this action under Title II and Title XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”)
denying
her
application
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 405(g). 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 Commissioner’s
decision is reversed, and the matter is remanded solely for the
1
The president nominated Andrew M. Saul to be Commissioner of
Social Security and the Senate confirmed his appointment on June 4,
2019, vote number 133. He is substituted pursuant to Fed. R. Civ.
P. 25(d). The Clerk of Court is directed to amend the caption to
comply with this substitution.
calculation and payment of benefits, and Defendant’s motion is
denied.
PROCEDURAL BACKGROUND
On May 27, 2015, Plaintiff protectively filed an application
for DIB and SSI alleging disability as of June 30, 2013,2 due to
hepatitis C, arthralgias3 and diastolic congestive heart failure,
stable brain mass, dry eye, benign hypertension, left renal cyst,
lung nodules, depression, anxiety, and a history of substance
abuse. Administrative Transcript (“T.”) 75-118. The claim was
initially denied on October 27, 2015. T. 143-46. At Plaintiff’s
request,
a
hearing
was
conducted
on
February
16,
2017,
in
Alexandria, Virginia by Administrative Law Judge (“ALJ”) Hortensia
Haaversen. Plaintiff appeared via video conference from Rochester,
New York4 without representation and testified. Also present via
phone was vocational expert (“VE”) William Cody. T. 73-118. ALJ
Haaversen issued an unfavorable decision on August 7, 2017. T. 3143.
Plaintiff appealed the decision to the Appeals Council, which
2
Plaintiff was 52 years-old at her alleged onset date, and
56 years-old at the time of the ALJ’s decision; therefore, she was
was considered to be in the “approaching advanced age” category for
the first portion of the relevant period, then in the “advanced
age” category as of May 2, 2016.
3
“Arthralgia is ‘pain in a joint.’” DiPalma v. Colvin, 951
F. Supp. 2d 555, 559 n.1 (S.D.N.Y. 2013) (quoting Dorland’s
Illustrated Medical Dictionary at 150 (32d ed. 2012)).
4
Although there is a discrepancy in regards to Plaintiff’s appearance
method in the transcript of oral hearing (T. 75), the Court’s decision does not
depend on resolving the discrepancy.
2
denied Plaintiff’s request for review on January 16, 2018. T. 1-3.
Plaintiff then timely commenced this action on March 15, 2018.
(Docket No. 1).
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a). Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
June 30, 2015. T. 37.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
June 30, 2013, the alleged onset date. T. 37.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: hepatitis C with arthralgias and
diastolic congestive heart failure. The ALJ also noted that while
Plaintiff was followed for a history of a stable brain mass, dry
eye, benign hypertension, left renal cyst, and lung nodules as well
as a history of substance abuse, “[o]verall there has not been any
significant treatment needed, and no practitioner has mentioned any
ongoing and significant functional limitations associated with
these conditions” and they are, therefore, non-severe conditions.
The ALJ further found Plaintiff’s medically determinable mental
impairments of depression and a history of substance abuse were
non-severe. T. 37.
3
When determining Plaintiff’s medically determinable mental
impairments were non-severe, the ALJ considered the four broad
areas of mental functioning set out in the disability regulations
for evaluating mental disorders and in the Listing of Impairments
20 C.F.R. Part 404, Subpart P, Appendix 1. T. 37. The four broad
areas are known as the “paragraph B” criteria. T. 37.
Under the first functional area, understanding, remembering,
or applying information, the ALJ determined Plaintiff’s “mental
status examinations suggest no more than a mild limitation in the
ability
to
follow
and
understand
simple
directions
and
instructions, perform simple tasks independently, learn new tasks,
perform complex tasks, and maintain a regular schedule.” T. 38.
Under the second functional area, interacting with others, the
ALJ concluded that Plaintiff “has no more than a mild limitation in
interacting with others.” T. 38.
Under the third functional area, concentrating, persisting, or
maintaining pace, the ALJ determined Plaintiff had only a mild
limitation because Plaintiff was able to understand and answer the
questions at her hearing as well as recite her medical history.
T. 38.
Finally under the fourth functional area, adapting or managing
oneself, the ALJ concluded Plaintiff had no significant limitation
because she was able to perform household chores, simple meal
preparation, shopping, and gardening. T. 38.
4
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. The ALJ specifically considered section 4.02
(chronic heart failure) and determined there was no evidence to
support serious limitations resulting from persistent symptoms of
heart failure. T. 39.
Before proceeding to step four, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) to perform light work
as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the
following additional limitations: she can lift and carry 20 pounds
occasionally and 10 pounds frequently; she can stand or walk for
about six hours in an eight hour workday; she can sit for six hours
in an eight hour workday; she can only occasionally climb stairs,
balance, stoop, kneel, crouch, and crawl; and she should avoid
concentrated exposure to hazards, fumes, odors, chemical irritants,
and poor ventilation. T. 39.
At step four, the ALJ determined that Plaintiff was capable of
performing past relevant work as a coordinator because the past
work did not require the performance of work-related activities
precluded by Plaintiff’s RFC. T. 43. Therefore, the ALJ did not
proceed to step five and concluded that Plaintiff was not disabled
as defined in the Act. T. 43.
5
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 of 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 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “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 Twonley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ erred in her evaluation of multiple medical
6
opinions; and (2) the ALJ’s step four finding that Plaintiff
performed the past work of a “coordinator” was flawed. For the
reasons discussed below, the Court finds that both contentions have
merit and, as a result, reversal of the Commissioner’s decision is
required.
I.
The ALJ’s Weighing of the Medical Opinions Was Legally
Erroneous, Leading to an RFC Unsupported by Substantial
Evidence
A.
The Relevant
Statements
1.
Medical
Opinions
and
Treating
Source
The Consultative Physician’s Opinion
Plaintiff
underwent
an
internal
medicine
consultative
examination on September 14, 2015, with Dr. Harbinder Toor, who
issued a report and medical source statement. See T. 474-78.
Plainitff reported a history of nodules in her neck, brain, and
upper part
of
her
lungs bilaterally.
She
was
suffering
from
headaches daily, which varied in intensity and frequency. She had
pain in her left knee and left lower leg, which caused difficulty
standing,
identified
walking,
that
sitting,
Plaintiff
lifting,
was
in
and
carrying.
moderate
pain
Dr.
during
Toor
the
examination and walked with an abnormal gait. She had difficulty
getting on and off the examination table.
Dr. Toor’s clinical findings included reduced ranges of motion
in the cervical and lumbar spines as well as the left knee.
Plaintiff had mild pitting type edema in the left lower leg.
7
Dr. Toor diagnosed Plaintiff with a history of pain and edema in
the lower leg, pain in the abdomen, hepatitis C, a nodule in the
lungs, a small lymph node nodule, a brain mass, hyperlipidemia,
vitamin
D
deficiency,
history
of
a
mild
heart
attack,
and
hypertension. Dr. Toor indicated that Plaintiff’s prognosis was
guarded. For the medical source statement, Dr. Toor opined as
follows:
She has moderate to marked limitations to standing,
walking a long time. She has moderate limitations to
bending or lifting. Pain interferes with her routine. Her
headache can also interfere with her routine. She should
avoid exertion.
T. 477.
B.
The Consultative Psychologist’s Opinion
Also
on
September
14,
205,
Plaintiff
was
examined
by
consultative psychologist Yu-Ying Lin, Ph. D., who issued a report
and medical source statement. See T. 480-84. Plaintiff reported
feeling depressed and suffering anxiety on and off for years. She
reported feeling anxious when she had to do something; when anxiety
set in, she would often sit there “and do nothing.” T. 480-81. She
also became anxious when people raised their voices or became
argumentative.
Plaintiff
had
panic
symptoms
including
heart
palpitations, breathing difficulty, and trembling. Dr. Lin observed
that Plaintiff’s affect was dysphoric and her mood, dysthymic. Her
attention,
concentration,
and
memory
skills
(both
recent
and
remote) were mildly impaired due to what Dr. Lin perceived as
8
nervousness in the evaluation. For instance, Plaintiff could recall
three objects immediately but could not recall any objects after a
delay. Dr. Lin diagnosed Plaintiff with moderate major depressive
disorder. For the medical source statement, Dr. Lin opined that
Plaintiff
was
mildly
independently,
mildly
limited
in
limited
in
performing
maintaining
complex
tasks
attention
and
concentration, and moderately limited in appropriately dealing with
stress.
C.
The Treating Therapist’s Opinion
Plaintiff’s therapist, Mathurine Louis (“Ms. Louis”) provided
a statement on April 10, 2017, indicating that Plaintiff would have
moderate limitations in understanding, remembering, carrying out,
and making judgment on complex instructions; and mild limitations
in understanding, remembering, carrying out simple instructions,
and making judgment on simple, work-related decisions. Plaintiff
also
would
have
mild
limitations
interacting
with
others,
responding to usual work situations, and responding to changes in
a routine work setting. In Ms. Louis’s opinion, “due to [her]
anxiety and depression, [Plaintiff] is unable to be exposed to high
stress jobs” as she is “[s]ometimes unable to get out of bed and
carry on activity of daily living.” T. 640. Ms. Louis explained
that due to her anxiety, depression, and multitude of physical
challenges, Plaintiff was unable to participate in certain work
9
activities, including standing for too long, sitting for too long,
and picking up heavy things.
D.
The ALJ’s Weighing of the Various Opinions Was Legally
Erroneous and Relied on Mischaracterizations of the
Record
The ALJ had the foregoing three medical opinions on which she
purportedly relied to make her RFC determination. However, the ALJ
did not actually give “significant” or “great” weight to any of
these opinions as written. Rather, she clearly mischaracterized
them, as discussed below.
First, with regard to Dr. Toor’s opinion, the ALJ purported to
assign it “great weight” “in so far as he suggested that the
claimant can perform approximately light work with postural and
environmental limitations.” T. 42. The ALJ opined that the portion
of Dr. Toor’s opinion “suggesting” that Plaintiff can perform light
work “was generally consistent with the medical record as a whole
as well as the type and degree of treatment needed.” Id.
The
applicable
regulations,
20
C.F.R.
§§
404.1567(b),
416.967(b), as interpreted by Social Security Ruling (“SSR”) 8310,5
belie
the
ALJ’s
assertion
5
that
Dr.
Toor’s
opinion
Contrary
to
the
Commissioner’s
suggestion, see
Defendant’s Memorandum of Law (Docket No. 19-1) at 18, Social
Security Rulings or SSRs constitute the Commissioner’s internal
policy and interpretations and are “binding on all components of
the Social Security Administration[.]” 20 C.F.R. § 402.35(b)(1);
see also Capitano v. Secretary of Health & Human Servs.,
No. 836231, 1984 WL 63640, at *1 (2d Cir. Aug.17, 1984) (Social
10
“approximates” light work. First, the Commissioner’s regulations
state that
[l]ight work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you
must have the ability to do substantially all of these
activities.
20 C.F.R. §§ 404.1567(b), 416.967(b); see also Titles II & XVI:
Determining Capability to Do Other Work-the Med.-Vocational Rules
of Appendix 2, SSR 83-10, 1983 WL 31251, at *5 (S.S.A. Jan. 1,
1983) (“The regulations define light work as . . . [involving]
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted in a particular light job may be very
little, a job is in this category when it requires a good deal of
walking or standing--the primary difference between sedentary and
most light jobs.”). SSR 83-10 further clarifies that “‘[f]requent’
Security Rulings are considered “interpretive and not binding on
this court”). SSRs, however, are “entitled to deference except when
they are plainly erroneous or inconsistent with the Act.” Gordon v.
Shalala, 55 F.3d 101, 105 (2d Cir. 1995), cert. denied, 517 U.S.
1103 (1996). Courts, including this one, frequently rely on SSRs
when evaluating ALJs’ decisions and will reverse when the failure
to follow an SSR results in prejudice to the claimant. Royal v.
Astrue, No. CIV.A. 5:11-456, 2012 WL 5449610, at *8 n. 19 (N.D.N.Y.
Oct. 2, 2012), report and recommendation adopted, No. 5:11-CV-0456
GTS/ESH, 2012 WL 5438945 (N.D.N.Y. Nov. 7, 2012) (collecting
cases).
11
means occurring from one-third to two-thirds of the time. Since
frequent lifting or carrying requires being on one’s feet up to
two-thirds of a workday, the full range of light work requires
standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday.” Id. at *6. As noted above, Dr. Toor
opined that Plaintiff had “moderate to marked” limitations in
standing and walking “a long time,” “moderate” limitations in
bending and
lifting,
and
needed
to
“avoid
exertion.”
T.
477
(emphases supplied). A brief review of the applicable regulations
and SSR makes it obvious that, to the contrary, Dr. Toor’s opinion
facially
incompatible
with
light
work.
The
ALJ’s
conclusion
otherwise is based on a misreading of the record and the law.
If the ALJ had actually given Dr. Toor’s opinion, as written,
“great weight”, the only possible exertional category consistent
with Dr. Toor’s limitations would be, at most, a range of sedentary
work. However, the Commissioner failed to offer and the ALJ did not
cite any medical opinion to controvert the substance of Dr. Toor’s
opinion. “In the absence of a medical opinion to support the ALJ’s
finding as to [Plaintiff]’s ability to perform [light] work, it is
well-settled that ‘the ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion. . . . [W]hile an [ALJ] is
free to resolve issues of credibility as to lay testimony or to
choose between properly submitted medical opinions, he [or she] is
not free to set his own expertise against that of a physician who
12
[submitted an opinion to or] testified before him [or her].’”
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting McBrayer
v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir.
1983) (internal quotation marks and citations omitted); citing
Filocomo v. Chater, 944 F. Supp. 165, 170 (E.D.N.Y. 1996) (“In the
absence of supporting expert medical opinion, the ALJ should not
have engaged in his own evaluations of the medical findings.”)).
Based on the Medical Vocational Grids, due to Plaintiff’s age,
education, and the lack of transferable skills from her prior work,
she would be disabled if she can only perform sedentary work. See
20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.12 (claimant is advanced
age; high school graduate or more–does not provide for direct entry
into skilled work; previous work is unskilled or claimant has no
transferable skills; a finding of “disabled” is directed).
Turning next to Dr. Lin’s opinion regarding the limiting
effects of Plaintiff’s mental impairments, the ALJ gave “great
weight” to Dr. Lin’s opinion “insofar as the claimant has no more
than mild limitations.” T. 42.
The ALJ noted that “less weight” was given to Dr. Lin’s opinion
that Plaintiff was “moderately” limited in dealing with stress
because it “seems to understate [Plaintiff’s] functional capacity
and
is
out
of
proportion
to
the
mental
status
examination
findings.” T. 42. The Second Circuit has held that it is error for
an ALJ to reject a medical opinion “solely on the basis that the
13
opinions allegedly conflicted with the physicians’ own clinical
findings.” Balsamo, 142 F.3d at 80. However, the ALJ committed this
precise error in evaluating Dr. Lin’s opinion.
Finally, with regard to Ms. Louis’s opinion, the ALJ credited
it
only
“insofar
as
the
claimant
has
no
more
than
mild
limitations.” T. 42. However, the ALJ ignored, without explanation,
Ms.
Louis’s
statement
that
Plaintiff
would
have
“moderate”
limitations in understanding, remembering, carrying out, and making
judgments on complex work. It is well-settled that “[t]he RFC
assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR 96–8p, 1996 WL 374184, at *7
(S.S.A. July 2, 1996); see also Balsamo v. Chater, 142 F.3d at
80–81. It was not enough for the ALJ to simply imply that moderate
limitations in dealing with complex tasks were unsupported by the
balance
of
the
record
without
explaining
how.
See
Velez
v.
Berryhill, No. 17-CV-06551 (BCM), 2018 WL 4609110, at *10 (S.D.N.Y.
Sept. 25, 2018)(“Although the ALJ’s intention is not entirely
clear, the Court presumes that the phrase ‘but not a marked degree
of
limitation’
means
that
the
ALJ
rejected
the
portions
of
Dr. Haberman’s opinion that found plaintiff had marked limitations
with regard to his ability to maintain attention and concentration,
work in coordination with/or in proximity with others, accept
14
instructions and respond appropriately to criticism, get along with
co-workers or peers, and travel to unfamiliar places or use public
transportation. As so construed, the ALJ’s language describes what
the ALJ did, but does not explain why he did it.”) (emphasis
supplied). The Court thus is unable to discern the rationale for
the ALJ’s determination as to the weight given to Ms. Louis’s
opinion, thereby frustrating its ability to conduct a meaningful
review.
Importantly, the balance of the record supports Dr. Lin and
Ms. Louis’s opinions. Before proceeding any further, the Court
finds that—although Plaintiff does not raise this argument—the ALJ
erred at step two by not deeming Plaintiff’s depression and anxiety
to be severe impairments. The only reasonable conclusion from the
record is that Plaintiff’s depression and anxiety were severe
impairments because, contrary to the ALJ’s finding, they do “cause
more than a minimal limitation in [her] ability to perform basic
mental work activities,” T. 37. The ALJ consistently downplayed the
severity of Plaintiff’s depression and anxiety, noting that she had
undergone counseling for depression and cocaine dependence had not
needed “significant treatment.” T. 37. This again is a gross
mischaracterization of the record. Plaintiff was treated on a
bi-weekly
or
monthly
basis
for
her
depression
and
anxiety
throughout 2016 and into 2017. T. 639-799. She received medication
management or therapy on 24 occasions from January 2016, to April
15
2017;
this
course
of
treatment
cannot
be
characterized
as
insignificant either in terms of its duration or its extent.
Moreover, her therapists routinely identified abnormal examination
findings, including over-productive speech patterns, anxious and
depressed
mood,
tangential
thought
process,
thought
content
remarkable for preoccupations, overvalued ideas, and helplessness,
mild
confusion,
associations
only
fair
remarkable
thought content
for
remarkable
insight
thought
for
and
judgment,
blocking,
preoccupation,
thought
perseveration,
rumination,
and
somaticization, and inability to “stay on topic.” T. 671, 680, 685,
689, 695, 709, 717, 726. The ALJ provided no explanation why such
objective findings would be inconsistent with at least moderate
limitations in dealing with stress and performing complex work.
The ALJ’s step two error was not rendered harmless by virtue
of the fact that she proceeded with the sequential evaluation
because she did not properly evaluate the work-related limitations
caused by Plaintiff’s mental impairments and how the manifestations
of Plaintiff’s physical impairments were confounded by her anxiety
and
depression.
The
ALJ
ignored
that
Plaintiff’s
treatment
providers identified an interplay between her anxiety and cardiac
issues. For instance, Plaintiff’s initial chest pain, which lead to
her diagnosis of diastolic dysfunction, was precipitated by an
argument with her son. T. 326. Her symptoms began as she went for
a walk to “relieve stress.” Id. Plaintiff reported that her chest
16
pain and palpitations coincided with feeling stressed. T. 401, 414,
866, 935. Dr. Akbar Ahmed, who treated her cardiac issues, believed
that some of her symptoms could stem from her “underlying anxiety.”
T. 935. Dr. Faisal Shamsie thought that some of her cardiac
symptoms could by psychosomatic. T. 873. These opinions from
treating sources further bolsters the psychiatric opinions that
Plaintiff is at least moderately in dealing appropriately with
stress. Indeed, they suggest that Plaintiff’s limitations in coping
with stress not only impact her mental health but her physical
health, further undermining the ALJ’s RFC finding of light work.
The ALJ’s decision to reject Dr. Lin’s opinion that Plaintiff
had moderate limitations in dealing with stress and Ms. Louis’s
moderate limitations in complex work were not only unsupported by
substantial evidence in the record, they infected the ALJ’s step
four finding. The ALJ found that Plaintiff could perform one job in
the national economy, namely, her past relevant work as a volunteer
coordinator. T. 43. However, this job was characterized was “highly
skilled” with a specific vocational preparation (“SVP”) of seven.
T. 43. The Commissioner has recognized that “[i]n the world of
work, losses of intellectual and emotional capacities are generally
more serious when the job is complex.” SSR 85-15, 1985 WL 56857, at
*5 (S.S.A. Jan. 1, 1985). SSR 85-15 emphasizes the importance of
considering the effects of mental impairments on a claimant’s
ability to cope with
stress necessarily encountered in every
17
workplace. See id. at *6 (“The reaction to the demands of work
(stress)
is
highly
characterized
by
circumstances.
The
individualized,
adverse
mentally
and
responses
to
impaired
may
mental
illness
seemingly
cease
to
is
trivial
function
effectively when facing such demands as getting to work regularly,
having their performance supervised, and remaining in the workplace
for a full day. . . . Thus, the mentally impaired may have
difficulty meeting the requirements of even so-called ‘low-stress’
jobs.”).
It bears noting Plaintiff specifically testified that her
previous job was highly stress. The stress she experienced at work
was why she believed she could no longer perform her job. T. 104.
The VE also testified that if a hypothetical individual were
limited to low stress jobs, she would be unable to perform the job
of a coordinator.
Thus,
if
the
ALJ
had
properly
credited
either
of these
opinions on Plaintiff’s mental impairments, the ALJ would have
concluded Plaintiff was unable to perform her past relevant work.
If Plaintiff were unable to perform her past relevant work, based
on the ALJ’s RFC as it stands, the Medical Vocational Grids would
have directed a finding of disability as of Plaintiff’s fifty-fifth
birthday. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.06
(claimant is of advanced age; high school graduate or more—does not
18
provide for direct entry into skilled work; skilled or semi-skilled
past work not transferable; a finding of “disabled” is directed).
II.
The ALJ Erred in her Step Four Finding
Performed the Past Work of a “Coordinator”
that
Plaintiff
Plaintiff contends that the ALJ erred in her step four finding
that
Plaintiff
performed
the
past
work
of
a
“coordinator.”
Plaintiff argues that the ALJ’s finding was improper because the
Dictionary
of
Occupational
Titles
(“DOT”)
“definition
of
a
‘coordinator’ as found by the ALJ bears little to no resemblance to
the
job
Plaintiff
performed
at
Community
Place
of
Greater
Rochester. Therefore, the ALJ’s Step Four denial is unsupported by
substantial evidence, warranting remand.” Plaintiff also contends
that the job of a “coordinator,” as defined by the DOT and found by
the ALJ, does not match the job testified to by the VE. Plaintiff
states that “coordinator” is defined as follows in the DOT:
Coordinates student and community volunteer services
program in organizations engaged in public, social, and
welfare activities: Consults administrators and staff to
determine organization needs for various volunteer
services and plans for volunteer recruitment. Interviews,
screens, and refers applicants to appropriate units.
Orients and trains volunteers prior to assignment in
specific units. Arranges for on-the-job and other
required training and supervision and evaluation of
volunteers. Resolves personnel problems. Serves as
liaison between administration, staff, and volunteers.
Prepares and maintains procedural and training manuals.
Speaks to community groups, explaining organization
activities and role of volunteer program. Publishes
agency newsletter, and prepares news items for other news
media. Maintains personnel records. Prepares statistical
reports on extent, nature, and value of volunteer
service.
19
U.S. Dep’t of Labor, Employment & Training Admin., Dictionary of
Occupational Titles, Vol. II (4th ed. 1991).
In response, the Commissioner argues that “Plaintiff bears the
burden at step four to prove that she cannot perform her past kind
of work either as it was actually performed, or as it is generally
performed in the national economy.” The Commissioner contends that
Plaintiff testified at the hearing that her past job was as a
“coordinator.” The Commissioner also argues that at the hearing the
VE was able to testify to a definition of Plaintiff’s past work and
that the VE’s definition corresponded to that of a coordinator
under DOT #187.167-022.
A.
At
The VE’s Hearing Testimony
the
hearing,
the
VE
testified
that
Plaintiff’s
past
coordinator job was performed “at the sedentary level of physical
demand, skilled work activity, SVP of 7," and had the DOT number of
187.167-022. T. 102. The VE then testified that a hypothetical
individual
with
occasionally
ten
a
“sedentary
and
range
frequently
of
less
exertion
than
ten,
with
lifting
lifting
and
carrying, standing or walking two hours in an eight-hour workday,
sitting six hours of an eight-hour workday and then in addition of
the occasional postural activities and avoid concentrated exposure
to hazards, fumes, odors, chemical irritants, and poor ventilation”
would be capable of performing the past work of Plaintiff as a
coordinator. T. 104-05.
20
The ALJ then added the following additional limitations to the
hypothetical individual: “limited to low-stress jobs defined as
only occasional decision-making and no production . . . no fast
paced or high production goal work.” T. 105. The VE testified that
these further limitations “would preclude the past relevant work
activity” and that past work would not impart transferrable skills
to that range of exertion. T. 105.
B.
Plaintiff’s
Hearing
“Coordinator”
Testimony
of
Past
Work
as
At the hearing, Plaintiff testified her past “coordinator” job
was created for her through a block grant program at a non-profit
organization. T. 103. Further, she stated her job “only lasted
enough time for [the organization] to duplicate [the job] and give
it to other people.” T. 103-04. Therefore, she testified, that job
is not around anywhere in the City of Rochester. T. 103-04.
Plaintiff further testified that she could not perform her
prior work as a “coordinator” now because it was too stressful.
T. 104. Plaintiff described her position as an “advocate” because
she had “to deal with parents [and] problems.” T. 104. She also
testified she would have to deal with parent safety and gave the
example of having to deal with encountering a fight somewhere while
with the parents. T. 104. Finally, Plaintiff testified her prior
work as a “coordinator” required walking the neighborhood with the
parents as their children went to and from school to keep them
safe. T. 83.
21
C.
The ALJ Mischaracterized
Testimony
the
VE’s
and
Plaintiff’s
The ALJ failed to properly analyze the VE’s and Plaintiff’s
hearing
testimony
when
making
her
Step
Four
evaluation.
The
Commissioner argues that the ALJ’s finding at Step Four should be
affirmed because Plaintiff is not disabled and can perform her past
relevant
work
as
a
“coordinator”
as
that
job
is
generally
performed. This argument is flawed because “the Step Four inquiry
requires ‘separate evaluations of the previous specific job and the
job as it is generally performed.’” Glessing v. Comm'r of Soc. Sec.
Admin., 725 F. App’x 48, 50 (2d Cir. 2018), as amended (Feb. 27,
2018) (summary order) (quoting Jasinski v. Barnhart, 341 F.3d 182,
183 (2d Cir. 2003)). Here, the ALJ only analyzed Plaintiff’s
ability to perform her past work as a “coordinator” as it is
generally performed, not as how she performed it from 2005-2007.
T. 43, 83. Therefore, the ALJ failed to correctly follow the law in
making her decision at Step Four.
Furthermore, the ALJ failed to consider the amount of stress
Plaintiff testified was part of her past relevant work as a
“coordinator” and the VE’s testimony that plaintiff would be unable
to perform her past relevant work even if it were low-stress with
only occasional decision-making and no production. Therefore, the
ALJ’s Step Four decision is inconsistent with the testimonies of
both Plaintiff and the VE and unsupported by substantial evidence.
22
III
Remedy
“Sentence four of Section 405(g) provides district courts with
the authority to affirm, reverse, or modify a decision of the
Commissioner ‘with or without remanding the case for a rehearing.’”
Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting
42 U.S.C. § 405(g)).
calculation
of
The standard for directing a remand for
benefits
is
met
when
the
record
persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts, 388 F.3d at 385–86.
After reviewing the entire record, the Court finds that it
already
has
been
developed
fully
for
the
relevant
period.
Furthermore, the Court finds that the record contains persuasive
proof of Plaintiff’s disability. The sole, uncontroverted medical
opinion in the record, from an acceptable medical source who
examined Plaintiff, does not support the ALJ’s RFC finding of light
work; rather, it at most suggests Plaintiff is capable of sedentary
work. In such case, the Medical Vocational Guidelines direct a
finding of disability, given Plaintiff’s age, education, and work
experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.12
(claimant is advanced age; high school graduate or more–does not
provide for direct entry into skilled work; previous work is
23
unskilled or claimant has no transferable skills; a finding of
“disabled” is directed).
Assuming arguendo that the ALJ’s RFC finding is legally
correct and supported by substantial evidence, which it is not,
Plaintiff still must be found disabled because she is unable to
perform her past relevant work. In such case, based on the ALJ’s
RFC as it stands, the Medical Vocational Grids direct a finding of
disability as of Plaintiff’s fifty-fifth birthday. See 20 C.F.R.
Pt. 404, Subpt. P, App. 2 § 202.06 (claimant is of advanced age;
high school graduate or more—does not provide for direct entry into
skilled work; skilled or semi-skilled past work not transferable;
a finding of “disabled” is directed). Accordingly, remanding for
the ALJ to correct the step four error would serve no purpose.
CONCLUSION
For the foregoing reasons, I find that the ALJ’s decision is
not supported by substantial evidence and, therefore, Plaintiff’s
motion for judgment on the pleadings (Docket No. 13-1) is granted
and the matter is remanded solely for the calculation and payment
of
benefits.
The
Commissioner’s
motion
for
judgment
on
the
pleadings (Docket No. 19-1) is denied. The Clerk of Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
July 19, 2019
Rochester, New York.
24
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