King v. Social Security Administration, Commissioner

Filing 11

OPINION AND ORDER: The Court GRANTS, in part, Plaintiff's 5 MOTION for Order Reversing the Decision of the Commissioner and DENIES Defendant's 9 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 7/31/2013. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Frank King, Jr.,
Plaintiff,
v.

Civil Action No. 2:12-CV-277

Commissioner of Social Security,
Defendant.

OPINION AND ORDER
(Docs. 5, 9)
Plaintiff Frank King, Jr. brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and reversal of the decision of the Commissioner
of Social Security (“Commissioner”) denying his application for disability insurance
benefits. Pending before the Court are King’s motion to reverse the Commissioner’s
decision (Doc. 5), and the Commissioner’s motion to affirm the same (Doc. 9). For the
reasons stated below, the Court GRANTS King’s motion, in part; DENIES the
Commissioner’s motion; and REMANDS for further proceedings and a new decision.
Background
King was fifty-three years old on his alleged disability onset date of
November 8, 2001. He completed school through the eleventh grade and thereafter
received a GED. He has worked as a truck driver, a highway maintenance worker, and a
highway maintenance supervisor. (AR 152, 167.) His most significant work was as a

bridge mechanic for the State, starting in approximately 1969 and continuing in various
related state jobs for nearly thirty years. (AR 29, 422.) This work was labor-intensive,
requiring King to be on his feet all day, exerting his upper extremities for much of the
time. (AR 422.)
King’s shoulders and knees began to hurt in the late 1980s, and he completed a
course of physical therapy to address these problems in 1996. (AR 423.) Later that year,
he accepted early retirement, hoping to find a less physically-demanding job that he could
do on a full- or part-time basis. (AR 33.) Unfortunately, his pain worsened after his
1996 retirement. (Id.) In approximately 2010, he attempted a part-time job driving a van
for special education students, but quit after six weeks because he found it too difficult to
get in and out of the van and walk to meet the children. (AR 30.)
King lives at home with his wife, and has three adult sons and four grandchildren.
(AR 27, 394.) His hobbies include hunting, fishing, and walking in the woods, but he has
been limited in his ability to do these activities mostly due to his shoulder and knee
problems. He is “mildly obese” (AR 425), and his doctors have encouraged him to lose
weight over the years (AR 212-13, 216, 285, 349, 389).
In December 2009, King filed an application for disability insurance benefits (AR
119-25), alleging disability beginning July 31, 1996 due to arthritis in his shoulders and
“bad knees” (AR 165). He also alleged that obesity and a visual impairment in his left
eye contributed to his inability to work. (AR 208.) In a Disability Report, King stated
that his shoulder pain prevented him from doing things around the house, sleeping, and
reaching. (AR 198.) In addition, he stated that he had back and foot pain. (Id.) In a later
2

Disability Report, King stated that he had chronic pain, and that the arthritis in his knees
and hands had progressively worsened. (AR 201.)
King’s disability application was denied initially and upon reconsideration, and he
timely requested an administrative hearing. Administrative Law Judge (“ALJ”) Paul
Martin conducted the hearing on June 8, 2011. (AR 21-58.) King appeared and testified,
and was represented by counsel. Just before the hearing, King amended his alleged
disability onset date from July 31, 1996 to November 8, 2001, making the alleged
disability period from November 8, 2001 through December 31, 2001, the date last
insured. (AR 24, 207.) On June 24, 2011, the ALJ issued a decision finding that King
was not disabled under the Social Security Act during the alleged disability period. (AR
9-16.) Thereafter, the Appeals Council denied King’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his
administrative remedies, King filed the Complaint in this action on December 12, 2012.
(Doc. 1.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
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whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (“RFC”), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at
383; and at step five, there is a “limited burden shift to the Commissioner” to “show that
there is work in the national economy that the claimant can do,” Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step
five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Martin first determined that King had not
engaged in substantial gainful activity during the period from his alleged disability onset
date through his date last insured. (AR 11.) At step two, the ALJ found that King had

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the following severe impairments: “amblyopia1 of the left eye, degenerative arthritis of
the knees and ankles, a shoulder condition[,] and obesity.” (AR 11.) Conversely, the
ALJ found that King’s lateral epicondylitis2 of the right elbow was nonsevere, as it
caused “no significant limitation in the upper extremity lasting for a continuous 12-month
period.” (AR 12.) At step three, the ALJ determined that none of King’s impairments,
alone or in combination, met or medically equaled a listed impairment. (Id.)
Next, the ALJ determined that King had the RFC to perform “light work,” as
defined in 20 C.F.R. § 404.1567(b), except as follows:
[King] can lift and carry no more than 20 pounds occasionally and 10
pounds frequently and he can stand and walk for 4 hours in an 8[-]hour day
and sit for about 6 hours in an 8[-]hour day. Further, [King] can
occasionally push and pull, can occasionally climb ramps or stairs, but not
ladders, ropes and scaffolds, he can occasionally crouch and kneel and
frequently stoop, but cannot crawl and he experiences reduction in visual
acuity.
(AR 12.) Given this RFC, the ALJ found that King was unable to perform his past
relevant work as a tractor-trailer truck driver, highway maintenance supervisor, or
highway maintenance worker, which occupations the ALJ found to involve “heavy[-] and
medium[-]exertion work.” (AR 14.) Nonetheless, the ALJ determined that there were
other jobs existing in significant numbers in the national economy that King could do,

1

“Amblyopia” is “[p]oor vision caused by abnormal development of visual areas of the brain in
response to abnormal visual stimulation during early development.” Stedman’s Medical Dictionary 58
(28th ed. 2006).
2

“Epicondylitis,” otherwise known as “tennis elbow,” is “an inflammation of the humerus (upper
arm bone) at the lateral epicondyle—on the outside portion of the elbow.” 8 Attorneys Medical Advisor §
72:10 (Mar. 2013), available at Westlaw MEDADV. Pain usually develops gradually, and “[t]here is
minimal local swelling and full range of motion at the elbow[, but] [s]ymptoms may progress to the point
where picking up a coffee cup or turning a door knob are difficult.” Id. (citation omitted).

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including parking lot attendant, escort, and fundraiser. (AR 15.) The ALJ concluded that
King had not been under a disability from the alleged disability onset date through the
date last insured. (AR 16.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
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determination is one to be made by the fact[-]finder.”). “Substantial evidence” is more
than a mere scintilla; it means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the
Social Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
King “does not dispute the Commissioner’s medical findings in this claim.” (Doc.
5 at 1.) The only disputed issue is whether the ALJ erred at step five of the sequential
analysis in relying on the testimony of the vocational expert (“VE”) that King was able to
perform the job of fundraiser. (Id.; see also Doc. 9-1 at 4-5, Doc. 10 at 1.) King argues
that the ALJ should not have relied on the VE’s testimony because it clearly conflicts
with the Dictionary of Occupational Titles (“DOT”) and the ALJ failed to resolve that
conflict as required by Social Security Ruling (“SSR”) 00-4p and Second Circuit case
law. (Doc. 5 at 1.) Further, King contends that the VE’s testimony is insufficient to meet
the Commissioner’s burden at step five of the ALJ’s sequential analysis to demonstrate
that there were jobs existing in significant numbers in the national economy that King
could do. (Id. at 10.) The Commissioner disagrees, asserting that the ALJ’s
determination that King retained the RFC to perform the job of fundraiser, which job
exists in significant numbers in the national economy, is legally correct and supported by
substantial evidence. (Doc. 9-1 at 4-5.)

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Where, as here, the claimant has been successful at step four of the sequential
analysis in showing that he is unable to perform his past relevant work, the
Commissioner has the burden at step five to prove that “the claimant still retains a [RFC]
to perform alternative substantial gainful work which exists in the national economy.”
Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). In the ordinary case, the
Commissioner satisfies this burden by resorting to the applicable medical vocational
guidelines (“the Grids”), 20 C.F.R. pt. 404, subpt. P, app. 2 (1986). Id. But where the
claimant suffers from an additional nonexertional impairment which has “any more than
a ‘negligible’ impact on [his] ability to perform the full range of work,” the ALJ cannot
rely on the Grids and instead must obtain the testimony of a VE. Selian v. Astrue, 708
F.3d 409, 421 (2d Cir. 2013) (quoting Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir.
2010)). Stated differently, “when a claimant’s nonexertional impairments significantly
diminish his ability to work—over and above any incapacity caused solely from
exertional limitations—so that he is unable to perform the full range of employment
indicated by the medical vocational guidelines, then the [Commissioner] must introduce
the testimony of a [VE] (or other similar evidence) that jobs exist in the economy which
claimant can obtain and perform.” Bapp, 802 F.2d at 603; see Roma v. Astrue, 468 F.
App’x 16, 21 (2d Cir. 2012); SSR 83-12, 1983 WL 31253, at *2 (1983) (when a
claimant’s RFC does not coincide with the exertional criteria of any one of the external
ranges, i.e., sedentary, light, or medium, and when it is unclear how extensively
claimant’s limitations erode the occupational base, the ALJ must consult a VE). A
claimant’s work capacity is “significantly diminished” if there is an “additional loss of
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work capacity . . . that so narrows a claimant’s possible range of work as to deprive him
of a meaningful employment opportunity.” Bapp, 802 F.2d at 606; see Roma, 468 F.
App’x at 21; Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
Here, the ALJ found that King’s “ability to perform all or substantially all of the
requirements of [light] work was impeded by additional nonexertional limitations.” (AR
15.) Thus, the ALJ was required to—and did—consult with a VE. (AR 15-16.) The
ALJ stated in his decision that, in order to determine “the extent to which [King’s
additional nonexertional] limitations erode the unskilled light occupational base,” he
“asked the [VE] whether jobs existed in the national economy for an individual with
[King’s] age, education, work experience, and [RFC].” (AR 15.) In response, the VE
testified at the administrative hearing that this hypothetical individual could do three jobs,
including the job of telephone fundraiser, at issue herein. (AR 47-50.) The VE further
testified that this job was described in the DOT as an unskilled, “light exertion”
occupation, and that 300-400 of these positions existed in Vermont and 500,000 existed
nationally. (AR 48 (citing DOT 293.357-014).) This testimony by the VE regarding the
DOT’s definition of the fundraiser job was accurate: according to the DOT, the “Fund
Raiser II” job is a “Light Work” job with “[p]hysical demand requirements . . . in excess
of those for Sedentary Work.” U.S. Dep’t of Labor, Dictionary of Occupational Titles,
DICOT 293.357-014, 1991 WL 672578 (4th ed. 1991). On cross examination, however,
the VE testified that the fundraiser job “reads more like a sedentary job,” given that it

9

does not involve significant lifting or standing. (AR 54-55.)3 Thus, there was a clear
conflict between the DOT definition of the fundraiser job and the VE’s testimony about
the requirements of that job.
Social Security Ruling (“SSR”) 00-4p requires that, where the VE provides
evidence about the requirements of a job which appears to conflict with information
provided in the DOT, the ALJ has an “affirmative responsibility” to ask about the
possible conflict. SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). Specifically,
SSR 00-4p directs the ALJ to “obtain a reasonable explanation for the apparent conflict.”
Id. In other words, SSR 00-4p requires that where there is a conflict between the VE
evidence and the DOT, the ALJ “must resolve the conflict by determining if the
explanation given by the VE . . . is reasonable and provides a basis for relying on the VE
. . . testimony rather than on the DOT information.” Id. at *2. The Ruling states:
When vocational evidence provided by a VE . . . is not consistent with
information in the DOT, the [ALJ] must resolve this conflict before relying
on the VE . . . evidence to support a determination or decision that the
individual is or is not disabled. The [ALJ] will explain in the determination
or decision how he or she resolved the conflict. The [ALJ] must explain the
resolution of the conflict irrespective of how the conflict was identified.
Id. at *4 (emphasis added). Here, as the Commissioner concedes (see Doc. 9-1 at 5), the
ALJ failed to identify the obvious conflict between the VE’s testimony that the fundraiser
job was “more like a sedentary job” (AR 55) and the DOT’s description of that job as a
“Light Work” job demanding more physically than a sedentary job (DICOT 293.3573

More specifically, the VE testified that the fundraiser job “basically [involves] telephonic
work” (AR 48), including “contacting individual[s] to solicit donations . . . [f]or one charity or another”
(AR 53), and that the days of fundraisers “go[ing] door to door” are “past in the real world” (AR 55). The
ALJ further testified that the fundraiser job involves “constant use of the arms,” and “frequent reaching,
handling, and fingering,” but “no use of . . . foot pedals” and “negligible weightlifting.” (AR 53-55.)

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014). In fact, the ALJ inaccurately stated that “the [VE]’s testimony is consistent with
the information contained in the [DOT].” (AR 15.) The ALJ therefore erroneously failed
to explain in his decision how he resolved the conflict between the VE testimony and the
DOT, and failed to determine if the VE’s explanation for his description of the job was
reasonable and provided a basis for relying on that testimony rather than on the DOT.
See Diaz v. Astrue, Civil Action No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *4 (D.
Conn. Sept. 5, 2012) (collecting cases, and noting that “[r]eviewing courts have applied
SSR 00-4p and held that the Commissioner did not produce substantial evidence that
there are jobs in the national economy when the ALJ fails to inquire about an ‘apparent
unresolved conflict’ between the VE’s testimony and the DOT”).
Despite the Commissioner’s argument to the contrary, it cannot be said that the
ALJ’s error regarding the fundraiser position was harmless, given that, as the
Commissioner concedes, the VE’s testimony regarding the only other two jobs which the
ALJ found King could do—parking lot attendant and escort—“is insufficient to support a
finding that a significant number of these jobs [existed] which King could perform.”
(Doc. 9-1 at 4.) Moreover, as discussed above, because the ALJ determined that King
could not perform the full range of light work, the Commissioner could not rely on the

11

Grids conclusively to sustain her burden at step five.4 Instead, the Commissioner had to
rely on VE testimony or other similar evidence to establish the existence of significant
work that King could perform. Although the ALJ did elicit testimony from a VE, that
testimony—and the ALJ’s analysis of it—was deficient for the reasons stated. In Diaz,
2012 WL 3854958, at *4-5, after providing a detailed review of the relevant case law, the
court discussed when an ALJ’s error is harmless, and when it is not, where the ALJ failed
to inquire about or resolve an apparent unresolved conflict between VE testimony and the
DOT. The court stated:
Courts have affirmed the decisions of the ALJ and held that an unresolved
inconsistency is harmless error where the apparent inconsistency is
obviated by DOT task functions and descriptions for VE recommended jobs
that are synonymous to the ALJ’s RFC determination. Therefore, where
the determination of the ALJ is clear from the record and any
inconsistencies are explained, courts have found claimed error to be
harmless. Otherwise, remand for further administrative action is necessary.
Id. at *5 (citations omitted). Here, as discussed above, the ALJ did not acknowledge or
explain in his decision the inconsistency between the VE’s testimony and the DOT. The
ALJ’s thoughts on this matter are entirely unclear. But “SSR 00-4p requires the ALJ to
afford no room for conjecture where there is an apparent conflict between the VE’s
testimony and the DOT.” Id. at *6. Moreover, “a resolution [of this issue] by th[e c]ourt
4

Even if the Grids applied, they would not be dispositve, as King falls between two different
rules. If a “sedentary” work capacity was assigned, the Grids would direct a finding of “disabled.”
Specifically, Grid Rule 201.14, which applies where the claimant’s RFC allows for the performance of
only sedentary work, states that where, as here, the claimant is a person “[c]losely approaching advanced
age” (ages 50-54) (King was 53 on the alleged disability onset date), with a high school education and
previous work skills that are “not transferable,” the claimant is disabled. 20 CFR pt. 404, subpt. P, app. 2,
r. 201.14. If, on the other hand, a “light” work capacity was assigned, the Grids would direct a finding of
“not disabled.” Id. at r. 202.14. But, as discussed above, because the ALJ’s RFC determination places
King between the sedentary and light exertional levels, the Grids may be used only as a framework for the
ALJ’s decision. SSR 83-12, 1983 WL 31253, at *2 (1983).

12

would be unduly conjectural in the absence of clarification from the ALJ.” Id.
The Court acknowledges that the VE did testify there was a sedentary job
(fundraiser) that King could do; and that 20 C.F.R. § 404.1567(b) provides that,
generally, if a claimant can do light work, which the ALJ found King could do, with
limitations, he can also do sedentary work. See Johnson v. Barnhart, No. 05-C-129-C,
2005 WL 3271953, at *14 (W.D. Wis. Nov. 29, 2005) (“It is a non sequitur to argue that
because plaintiff suffered conditions that limited her job base essentially to sedentary
jobs, the ALJ erred in concluding that plaintiff was able to perform a limited range of
light work.”); Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 36-37 (6th Cir. 2010)
(holding that even if the VE testified that the only jobs claimant could do were sedentary,
such testimony did not render erroneous the ALJ’s determination that claimant could
perform a limited range of light work). But the applicable regulation also states that this
rule applies only where there are “no additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). Here, the
ALJ determined that King could not do the full range of light work (AR 12, 15), i.e.,
there were “additional limiting factors.” And it appears that at least one of these
“additional limiting factors” may have precluded King from performing the fundraiser
job as it was described by the VE at the administrative hearing.
The VE testified that the fundraiser job requires “constant use of the arms” (AR
53), and that a fundraiser is “always using [his] hands” (AR 54). In an October 2010
Independent Medical Examination report, consulting examiner Dr. Philip Davignon
opined that one of King’s work restrictions was avoidance of “repetitive gripping,
13

grasping, pushing or pulling.” (AR 426.) In a Medical Update form completed in
January 2011, Dr. Davignon stated that this and the other work restrictions identified in
his October 2010 report were present prior to December 31, 2001, the alleged disability
onset date. (AR 434.) Plausibly, an individual who could not do “repetitive gripping
[and] grasping” (AR 426) would be precluded from performing a job involving “constant
use” (AR 53) of his arms and hands. Although Dr. Davignon was not a treating
physician, and although the ALJ does not discuss his opinion in the decision, the ALJ
appears to have valued Dr. Davignon’s opinion, given that many of the limitations stated
therein are reflected in the ALJ’s RFC determination (compare AR 12 with AR 426), and
the ALJ does not cite to other medical evidence or opinions in support of that
determination. The ALJ should have recognized and explored this apparent incongruity
between Dr. Davignon’s opinion regarding King’s limitations and the VE’s testimony
regarding the fundraiser job, rather than adopting without explanation the VE’s testimony
that King was able to perform the fundraiser job. See Smith v. Comm’r of Soc. Sec., No.
2:10-cv-176, 2011 WL 6372792, at *11 (D. Vt. Dec. 20, 2011) (“‘[VE] [t]estimony
elicited by hypothetical questions that do not relate with precision all of a claimant’s
impairments cannot constitute substantial evidence to support an [ALJ’s] decision to
deny benefits.’”) (quoting Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994)).
Instead, the ALJ failed to even discuss Dr. Davignon’s opinion in his decision.
Moreover, although, as noted above, the ALJ’s RFC determination is largely consistent
with that opinion, inexplicably, the RFC determination omits Dr. Davignon’s gripping
and grasping limitations.
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For these reasons, the Commissioner has failed to meet her burden at step five, and
the matter should be remanded for further proceedings and a new decision.
Finally, although not addressed by either party, it bears noting that, in addition to
the above-described step-five errors, the ALJ made two significant factual errors in his
decision. First, the ALJ repeatedly stated that King’s alleged disability onset date was
July 31, 1996. (AR 9, 11, 16.) But the alleged disability onset date was explicitly
amended to November 8, 2001 in a June 1, 2011 letter from King’s attorney. (AR 207,
211.) The ALJ and King’s attorney discussed this amendment at the June 8, 2011
administrative hearing (AR 24), yet it appears the ALJ may have considered King’s
application under the original alleged onset date. Second, the ALJ erroneously stated in
the RFC portion of his decision that “[t]he medical record does not contain any treatment
notes or specific discussion of limitations during 2001.” (AR 14.) In fact, there are
multiple treatment notes from the year 2001 (AR 284-85, 293, 296), and at least one
indicates that King was limited in his activities due to knee pain (AR 285). The ALJ was
aware of these records, as he cited to them (generally) in an earlier portion of his
decision. (AR 12.) Nonetheless, this statement, as well as the ALJ’s repeated
misstatement of King’s alleged disability onset date, should be corrected on remand.
Given these misstatements of fact, it is unclear whether the ALJ’s RFC determination and
hypothetical questions posed to the VE at the administrative hearing accurately describe
all of King’s limitations. Thus, the ALJ should also reconsider these issues on remand.

15

Conclusion
For these reasons, the Court GRANTS King’s motion (Doc. 5), in part; DENIES
the Commissioner’s motion (Doc. 9); and REMANDS the matter for further proceedings
and a new decision in accordance with this ruling.
King requests that, instead of remanding this case for further proceedings, the
Court should reverse and remand solely for a calculation of benefits. In cases where
there is “no apparent basis to conclude that a more complete record might support the
Commissioner’s decision,” reversal for a calculation of benefits may be appropriate.
Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). Where, however, there are gaps in the
administrative record or the ALJ has applied an improper legal standard, it is more
appropriate to remand for further proceedings and a new decision. Id. at 82-83; see also
Pratts, 94 F.3d at 39. Here, after applying the proper legal standard and correcting the
ALJ’s factual errors, an ALJ may still find that there are jobs existing in significant
numbers in the national economy that King could perform. In that event, an award of
benefits would not be warranted. Thus, King’s request that the matter be reversed and
remanded solely for a calculation of benefits is DENIED.
On remand, as stated above, the ALJ should correct the misstatements of fact
discussed herein, and revise any portions of his decision affected thereby. Moreover, the
ALJ should require the Commissioner to present either further testimony from a VE or
other similar evidence regarding the existence of jobs in the national economy for an
individual with King’s limitations. If VE testimony is elicited, the ALJ should ask the
VE if the evidence he or she has provided conflicts with information provided in the
16

DOT; and if the VE’s evidence appears to conflict with the DOT, the ALJ should obtain a
reasonable explanation for the apparent conflict and state that explanation in his or her
decision.
Dated at Burlington, in the District of Vermont, this 31st day of July, 2013.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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