Munoz v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROSA MUNOZ,

Plaintiff,

MEMORANDUM AND ORDER

v.

20-cv-2496 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Rosa

Munoz (“plaintiff”) appeals the final decision of the

Commissioner of Social Security (“defendant”), which found

plaintiff not disabled and thus not eligible for disability

insurance benefits (“DIB”) under sections 216(i) and 223(d) of

the Social Security Act (“the Act”). Plaintiff alleges that she

is disabled under the Act and is therefore entitled to receive

the benefits.

Presently before the court is plaintiff’s motion for

judgment on the pleadings, (ECF No. 21-1, Plaintiff’s Memorandum

of Law in Support of His Motion for Judgment on the Pleadings

(“Pl. Mem.”)), defendant’s cross-motion for judgment on the

pleadings and in opposition to plaintiff’s motion for judgment

on the pleadings, (ECF No. 22-1, Memorandum of Law in Support of

Defendant’s Cross-Motion for Judgment on the Pleadings and in

Opposition to Plaintiff’s Motion for Judgment on the Pleadings

(“Def. Mem.”)), and plaintiff’s reply memorandum of law in

support of plaintiff’s motion for judgment on the pleadings,

(ECF No. 23, Plaintiff’s Reply Memorandum of Law (“Pl. Reply”)).

For the reasons stated below, plaintiff’s motion is GRANTED,

defendant’s motion is DENIED, and the case is REMANDED.

BACKGROUND

The parties have submitted a joint stipulation of

facts detailing plaintiff’s medical history and the

administrative hearing testimony, which the court incorporates

by reference. (See generally ECF No. 22-2, Joint Stipulation of

Facts (“Stip.”).)

Plaintiff filed an application for DIB on November 2,

2016, alleging disability beginning on May 13, 2016. (ECF No.

20, Administrative Transcript (“Tr.”) at 15.) Plaintiff claimed

she was disabled as a result of her arthritis, osteoporosis,

herniated disc, depression, asthma, and acid reflux. (Id. at

79–80.) Her application was denied on January 21, 2017. (Id.

at 15.)

On March 15, 2017, plaintiff filed a written request

for a hearing before an Administrative Law Judge (“ALJ”). (Id.)

On November 29, 2018, ALJ Bonnie Hannan held a video hearing

from Falls Church, Virginia, during which plaintiff appeared in

Manhattan and was represented by an attorney. (Id. at 45-47.)

Plaintiff and a vocational expert (“VE”) testified at the

hearing. (Id.) The VE testified that, assuming plaintiff was

limited to “light work” as it is defined, she could perform her

former job as a home health aide and other jobs that are

generally performed in the national economy, such as being a

store cashier or a sales attendant. (Id. at 71–73.) When

considering the impact the additional limitation of, “frequent

bilateral handle, finger, and feel” would have, the VE testified

that plaintiff could still perform those same jobs. (Id. at 73–

74.) When adding the mental health limitations, the VE

testified that plaintiff could not return to her past work, but

could perform other unskilled work. (Id. at 74–75.)

In a decision dated March 12, 2019, the ALJ found that

plaintiff was not disabled. (Id. at 9.) On May 6, 2019,

plaintiff appealed the ALJ’s decision to the Appeals Council.

(Id. at 191–193.) On April 30, 2020, the Appeals Council denied

review of the ALJ’s decision, thus making the ALJ’s decision the

final decision of the Commissioner. (Id. at 1–8.)

On June 4, 2020, plaintiff filed the instant action.

(See generally ECF No. 1, Complaint (“Compl.”).) On June 6,

2020, this court issued a scheduling order. (ECF No. 7,

Scheduling Order.)

Defendant filed two motions for extensions of time to

file the Administrative Transcript. (ECF Nos. 10, 12.) The

court granted both motions for extensions. (Dkt. Orders dated

9/8/2020, 10/28/2020.)

On April 9, 2021, plaintiff filed a motion for an

extension of time to file her motion for judgment on the

pleadings, which the court granted. (ECF No. 15; Dkt. Order

dated 4/12/2021.) On June 16, 2021, defendant also filed a

motion for an extension of time to file his cross-motion for

judgment on the pleadings. (ECF No. 18.) The defendant’s

motion was granted in part and denied in part. (Dkt. Order

dated 6/16/2021.)

On August 13, 2021, the Administrative Transcript was

entered into the record. (ECF No. 20.) The same day, plaintiff

filed her notice of motion and memorandum of law in support of

plaintiff’s motion for judgment on the pleadings, and defendant

filed his cross-motion and memorandum of law in support of

defendant’s cross-motion for judgment on the pleadings and in

opposition to plaintiff’s motion for judgment on the pleadings.

(ECF Nos. 21, 22.) Later that same day, plaintiff filed her

reply memorandum of law. (ECF No. 23.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is more than a mere scintilla,” and must

be relevant evidence that a “reasonable mind might accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might justifiably have reached a different result. Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act when she is

unable 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); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in his prior type of work,

the Commissioner must find him disabled if (5) there is

not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2). At steps

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. At step five, the burden shifts from

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s RFC, age,

education, and work experience, the claimant is “able to engage

in gainful employment within the national economy.” Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996)) (internal quotation marks

omitted). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39. However, if the record before

the court provides “persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose,” the

court may reverse and remand solely for the calculation and

payment of benefits. See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the regulations,

the ALJ determined at step one that the plaintiff had not

engaged in substantial gainful activity since May 13, 2016, the

alleged onset date of her disabilities. (Tr. at 18.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of lumbosacral radiculopathy, cervical

spondylosis without myelopathy or radiculopathy, osteoarthritis

of bilateral knees, osteopenia of the left hip, osteoarthritis

of bilateral hands and wrists, rotator cuff impingement, and

obesity. (Id.) The ALJ found that plaintiff’s medically

determinable impairments significantly limited her ability to

perform basic work activities. (Id.)

At step three, the ALJ determined that plaintiff did

not have an impairment or combination of impairments that met or

medically equaled Medical Listing 1.02 (major dysfunction of a

joint(s)) or Medical Listing 1.04 (disorders of the spine).

(Id. at 19–20; 20 C.F.R. §§ 404.1520(d), 404.1525, or 404.1526.)

The ALJ found that the criteria set forth in paragraphs A and B

of Medical Listing 1.02, and paragraphs A, B, and C of Medical

Listing 1.04 were not satisfied based on the evidence in the

record. (Id. at 19–20.) Additionally, the ALJ found that

plaintiff’s obesity did not rise to a level of severity found in

any listing. (Id. at 20.)

At step four, the ALJ found that plaintiff had the

Residual Functional Capacity (“RFC”) to perform light work but

with the following manipulative limitations: (1) the inability

to reach overhead to the left and the ability to reach overhead

to the right only occasionally; (2) the ability frequently (as

opposed to constantly) handle, finger, and feel bilaterally; (3)

the ability to climb ramps and stairs but not ladders, ropes, or

scaffolds; (4) the ability to balance, stoop, kneel, crouch, and

crawl only occasionally; (5) the inability to work at

unprotected heights, and ability to have only occasional

exposure to humidity, wetness, dust, odors, fumes, and pulmonary

irritants; (6) the ability to work in vibration only

occasionally; (7) the need to avoid all exposure to extreme cold

or heat; and (8) the ability to work jobs that can be

demonstrated visually and do not require reading in English.

(Id.)

The ALJ concluded that although plaintiff’s medically

determinable impairments could reasonably be expected to cause

the alleged symptoms, plaintiff’s statements concerning the

intensity, persistence, and limiting effects of these symptoms

were not entirely consistent with the medical evidence and other

evidence in the record. (Id. at 21.) The ALJ compared

plaintiff’s testimony to plaintiff’s medical records and

determined that plaintiff was not restricted in moving her neck,

but had a decreased range of motion in her shoulder. (Id.) The

ALJ also considered the effect of plaintiff’s obesity on her

musculoskeletal impairments and reached the same conclusions

about her range of motion. (Id. at 23.)

At step five, the ALJ found, based on plaintiff’s age,

education, work experience, and residual functional capacity,

that she can perform past relevant work as a home health aide,

or alternatively, that there are jobs that exist in significant

numbers in the national economy that she can perform (20 C.F.R.

§§ 404.1569 and 404.1569(a)). (Id. at 23–25.) The vocational

expert testified that plaintiff could perform her past job as a

home health aide as actually performed.1 (Id. at 23–24.) The

vocational expert testified further that plaintiff would be able

to perform the requirements of representative light exertional

occupations such as merchandise marker, store cashier, and sales

attendant. (Id. at 25.) Thus, the ALJ concluded that plaintiff

was not disabled within the meaning of the Act, as defined in 20

C.F.R. § 404.1520(f), since May 13, 2016, through the date of

the decision. (Id.)

1 The home health aide job (DOT 354.377-014) is considered a “medium,

semiskilled” position. The vocational expert testified that in the past,

plaintiff performed this job at the less demanding “light exertional level,”

but she currently has the ability to perform this job as actually performed,

that is, as a medium, semiskilled position.

II. The ALJ’s Determination Is Not Supported by Substantial

Evidence.

A. Plaintiff’s Treating Physician’s Opinion.

Plaintiff argues that the ALJ failed to properly

evaluate medical evidence with respect to her bilateral hand

disorder by according little weight to the opinion of her

treating rheumatologist, Dr. Victoria Katz. (Pl. Mem. at 3–7.)

Specifically, plaintiff asserts that the ALJ erred by concluding

that she could “frequently handle, finger, and feel” despite

evidence from Dr. Katz of significant arthritis, Dupuytren’s

contractures, and thenar muscle atrophy in her bilateral hands.

(Id. at 5.) Further, plaintiff argues that the ALJ erred by

finding that her ability to “shop in stores, prepare meals,

dress, and bathe” demonstrates that she can frequently handle,

finger, and feel. (Id. at 6.)

In response, the Commissioner argues that the ALJ

properly accounted for plaintiff’s hand impairments by limiting

her RFC to “frequent, as opposed to constant, handling,

fingering, and feeling with both hands.” (Def. Mem. at 4.)

Additionally, the Commissioner asserts that the ALJ was correct

to accord little weight to Dr. Katz’s opinions about plaintiff’s

strength and range of motion, because those opinions were

inconsistent with her own and other examination findings, and

inconsistent with plaintiff’s reported ability to engage in

daily activities. (Id. at 5–6.)

In general, “an ALJ should defer ‘to the views of the

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F.App’x 71, 74 (2d Cir.

2013) (quoting Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d

Cir. 2003)).2 “However, ‘[a] treating physician’s statement that

the claimant is disabled cannot itself be determinative.’” Id.

(quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).

Rather, pursuant to 20 C.F.R. § 404.1527(c)(2), “‘a treating

source’s opinion on the issue(s) of the nature and severity of

[a claimant’s] impairment(s)’ will be given ‘controlling weight’

if the opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the

claimant’s] case record.’” Id.

“An ‘ALJ who refuses to accord controlling weight to

the medical opinion of a treating physician must consider

various factors to determine how much weight to give to the

opinion,’ including: ‘(i) the frequency of examination and the

length, nature and extent of the treatment relationship; (ii)

the evidence in support of the treating physician’s opinion;

2 The Commissioner has revised its rules to eliminate the treating physician

rule, and ALJs are now to weigh all medical evaluations, regardless of their

sources, based on how well supported they are and their consistency with the

remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c. Claims filed

before March 27, 2017, however, are still subject to the treating physician

rule, see id. § 404.1527(c)(2), and the Court accordingly applies the rule

to this case, as plaintiff filed her claim on November 2, 2016. See, e.g.,

Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y. 2019).

(iii) the consistency of the opinion with the record as a

whole; (iv) whether the opinion is from a specialist; and (v)

other factors brought to the Social Security Administration’s

attention that tend to support or contradict the opinion.’”

Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.

2004)). “The ALJ must then ‘comprehensively set forth his

reasons for the weight assigned to a treating physician’s

opinion.’” Id. (quoting Burgess, 537 F.3d at 129). The

regulations also require that the ALJ “always give good

reasons” in determining the weight assigned to the treating

source’s opinion. See 20 C.F.R. § 416.927(c)(2); see also

Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998). The ALJ is

not required to cite each factor explicitly in his/her

decision, but must ensure he/she applies the substance of the

rule. Halloran, 362 F.3d at 32.

The ALJ chose to give “little weight” to the opinion

of plaintiff’s treating physician, Dr. Katz. (Tr. at 22.) The

ALJ determined that Dr. Katz’s opinion that plaintiff “could

not lift or carry anything” and that she is “limited in pushing

and pulling with the upper extremities” was “generally

inconsistent with examination findings that indicated the

claimant was able to squat full and had normal range of motion

in the hips, knees and ankles, and had 4/5 and 5/5 and normal

sensation.” (Id. at 22–23.) Thus, the ALJ attempted to refute

Dr. Katz’s opinions regarding plaintiff’s upper extremity

limitations by citing to lower extremity findings. (Id.) The

ALJ also found that Dr. Katz’s opinion was inconsistent with

plaintiff’s reported ability to shop in stores, prepare meals,

dress, and bathe, because those activities “suggest[] that she

can at least frequently handle, finger, and feel.” (Id. at

23.)

The ALJ failed to consider the Burgess factors, such

as the length, frequency, nature or extent of Dr. Katz’s

relationship with the plaintiff, or provide a persuasive

rationale supporting the weight given. See Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008); Greek v. Colvin, 802 F.3d

370, 375 (2d Cir. 2015); Balodis v. Leavitt, 704 F. Supp. 2d

255, 268 (E.D.N.Y. 2010) (citing Risitano v. Comm'r of Soc.

Sec., No. 06–CV–2206(FB), 2007 WL 2319793, at *5 (E.D.N.Y. Aug.

9, 2007) (remanding the case and directing the ALJ to “identify

the evidence [the ALJ] did decide to rely on and thoroughly

explain ... the reasons for his decision” if the ALJ did not

intend to rely on the opinions of plaintiff’s treating

physicians); Torregrosa v. Barnhart, No. CV–03–5275(FB), 2004

WL 1905371, at *6 (E.D.N.Y. Aug. 27, 2004) (remanding because

“(1) there is a reasonable basis to doubt whether the ALJ

applied the correct legal standard in weighing the opinions of

[the treating physicians], and (2) the ALJ failed to give good

reasons for the weight, or lack thereof, given to those

opinions”).)

The ALJ also erred by mischaracterizing the evidence

in arriving at the conclusion that Dr. Katz’s opinion was

inconsistent with substantial evidence in the record.

Specifically, the ALJ found that Dr. Katz’s opinion was

inconsistent with plaintiff’s reported ability to shop in

stores, prepare meals, dress, and bathe, because those

activities “suggest[] that she can at least frequently handle,

finger, and feel.” (Id. at 23.) “[A] finding that a claimant

is capable of undertaking basic activities of daily life cannot

stand in for a determination of whether that person is capable

of maintaining employment, at least where there is no evidence

that the claimant ‘engaged in any of these activities for

sustained periods comparable to those required to hold a

sedentary job.’” Bigler v. Comm'r of Soc. Sec., No. 19-CV-03568

(AMD), 2020 WL 5819901, at *5 (E.D.N.Y. Sept. 29, 2020)

(quoting Vasquez v. Barnhart, No. 02-CV-6751, 2004 WL 725322,

at *11 (E.D.N.Y. Mar. 2, 2004)); see also Murdaugh v. Sec'y of

Dep't of Health & Human Servs., 837 F.2d 99, 102 (2d Cir. 1988)

(“[T]hat appellant receives conservative treatment, waters his

landlady's garden, occasionally visits friends and is able to

get on and off an examination table is scarcely said to

controvert the medical evidence.”); Carroll v. Sec'y of Health

& Human Servs., 705 F.2d 638, 643 (2d Cir. 1983).

Accordingly, because the ALJ failed to provide good

reasons and properly analyze the Burgess factors, and

mischaracterized the evidence, the case is remanded. On

remand, the ALJ is directed to accord appropriate weight to Dr.

Katz’s opinion and explain in detail the factors required by

the Second Circuit in Halloran or Burgess as discussed supra.

B. Plaintiff’s Ability to Perform Relevant Work.

Plaintiff also argues that the ALJ erred by finding

that she can return to past relevant work or perform other work

available in the national economy. (Pl. Mem. at 1–2.)

Specifically, she asserts that the ALJ erred by relying on

vocational expert testimony that conflicted with the Dictionary

of Occupational Titles (“DOT”) and its companion publication,

the Selected Characteristics of Occupations (“SCO”), without

asking the VE to provide an explanation for the deviation. (Id.

at 9–10.) Social Security Ruling (SSR) 00-4p states: before

relying on VE or VS evidence to support a disability

determination or decision, our adjudicators must:

•

Identify and obtain a reasonable explanation for any

conflicts between occupational evidence provided by VEs or

VSs and information in the Dictionary of Occupational

Titles (DOT), including its companion publication, the

Selected Characteristics of Occupations Defined in the

Revised Dictionary of Occupational Titles (SCO), published

by the Department of Labor, and

•

Explain in the determination or decision how any conflict

that has been identified was resolved.

“The DOT gives a job type a specific code—for example, ‘295.467–

026 Automobile Rental Clerk’—and establishes, among other

things, the minimum skill level and physical exertion capacity

required to perform that job. The DOT is so valued that a VE

whose evidence conflicts with the DOT must provide a ‘reasonable

explanation’ to the ALJ for the conflict.” Brault v. Soc. Sec.

Admin., Com'r, 683 F.3d 443, 446 (2d Cir. 2012).

Here, the ALJ asked the VE a hypothetical as to

whether plaintiff could return to her past work as a home health

aide as she is incapable of “overhead reaching to the left.”

(Tr. at 72.) The VE testified that Plaintiff could perform past

work, even though it requires overhead reaching, and could

perform work as a merchandise marker, store cashier, and sales

attendant, which all require overhead reaching. (Id. at 73.)

When asked if the VE’s testimony was consistent with the DOT,

the VE responded that besides the “overhead reaching” component,

the testimony is consistent with the DOT and SCO.

The Commissioner does not contest plaintiff’s

assertion that the ALJ erred by finding she can return to past

relevant work as a home health aide. (Def. Mem. at 8.) Rather,

the Commissioner argues that even assuming plaintiff cannot

return to her previous job as a home health aide, the ALJ would

still conclude that Plaintiff is not disabled because of the

ALJ’s alternative finding that she can perform other work

available in significant numbers in the national economy,

including the jobs of merchandise marker, store cashier, and

sales attendant. (Id. at 8–9.)

ALJs must inquire into all apparent conflicts between

a vocational expert’s testimony and the DOT and SCO descriptions

of jobs. Lockwood v. Commissioner of Social Security, 914 F.3d

87, 92 (2d Cir. 2019). Here, the VE testified that Plaintiff

could perform work as a merchandise marker, store cashier, and

sales attendant, even though they require overhead reaching.

(See Pl. Mem., Exhibit A, SCO Descriptions.) When the ALJ

denies DIB based on evidence that conflicts with the DOT or SCO

without taking any steps to resolve the conflict, then remand is

warranted. Id. at 94 (reversing the district court’s finding

that the ALJ’s denial of DIB was supported by substantial

evidence because the vocational expert’s testimony conflicted

with the DOT and SCO, and the ALJ never identified the

conflict).

In Lockwood, a vocational expert testified that the

DIB claimant was limited to no overhead reaching, but could

still perform jobs that the DOT and SCO characterize as

requiring “frequent” reaching. Id. at 92. The Second Circuit

found this to be an apparent conflict that required resolution

by the Commissioner before the testimony could properly be

relied on. Id. Importantly, the Second Circuit rejected the

district court’s reasoning that the conflict was resolved

because the vocational expert informed the ALJ that her opinion

was based on her own experiences observing the jobs she had

identified. Id. at 90.

Here, the vocational expert testified as to three

different jobs available in the national economy that plaintiff

could perform, but never informed the ALJ that all three jobs

required overhead reaching. In fact, when the ALJ asked whether

there were any conflicts, the vocational expert replied, “Not

that I am aware of.” (Tr. at 75.) This failure to identify an

apparent conflict warrants a remand. Lockwood, 914 F.3d at 94.

As the Second Circuit has explained, contrary to the

Commissioner’s argument, the fact that the vocational expert’s

opinion was based on her own “knowledge and experience” does not

resolve the conflict. Id. at 90. Lockwood requires that the

ALJ first acknowledge the conflict between the SCO descriptions

and the VE’s proposed job for Plaintiff. Id. Because the ALJ

in this case failed to do so, she inappropriately relied on the

vocational expert’s testimony concerning plaintiff’s ability to

work in the national economy. Thus, remand is warranted on this

basis.

C. Consideration of Plaintiff’s Age and English Literacy

Next, plaintiff argues that the ALJ failed to properly

consider her age and illiteracy under the Medical-Vocational

Guidelines. (Pl. Mem. at 12.) The Medical–Vocational

Guidelines direct a finding of not disabled for individuals

capable of light work who are closely approaching advanced age

(fifty to fifty-four) if they have a limited education and basic

English literacy. See 20 C.F.R., Part 404, Subpart P, App'x 2 §

202.00(d). If a claimant is “within a few days to a few months

of reaching an older age category,” the Social Security

Administration “will consider whether to use the older age

category after evaluating the overall impact of all the factors”

of the case. 20 C.F.R. § 404.1563(b). “Courts within the

Second Circuit have concluded,” however, “that three months

constitutes the outer limits of a ‘few months’ for the purposes

of borderline age.” Amato v. Berryhill, No. 16-CIV-6768, 2017

WL 11455346, at *22 (S.D.N.Y. Dec. 1, 2017), R&R adopted, 2019

WL 4175049 (S.D.N.Y. Sept. 3, 2019); Pennock v. Comm'r of Soc.

Sec., 14-CV-1524, 2016 WL 1128126 at *11 (N.D.N.Y. Feb., 23,

2016) (“[A]mong the district courts in the Second Circuit, three

months appears to delineate the outer limits of ‘a few

months.’”); see also Gravel v. Barnhart, 360 F.Supp.2d 442, 446

n. 8 (N.D.N.Y. 2005) (eleven months not borderline); Hunt v.

Comm'r of Social Security, No. 00-CV-706, 2004 WL 1557333, at *5

n.14 (N.D.N.Y. 2004) (eight months not borderline).

A claimant will be classified as illiterate if he is

unable to “read or write a simple message such as instructions

or inventory lists.” Jimenez v. Berryhill, No. 16-CV-3972, 2018

WL 4054876, at *4 (E.D.N.Y. Aug. 24, 2018); 20 C.F.R. §

404.1564(b)(1). Under this low standard, “the question is only

whether the plaintiff is so deficient in his ability to read and

write that he cannot obtain even an unskilled job.” Jimenez,

2018 WL 4054876, at *4 (quoting Gross v. McMahon, 473 F.Supp.2d

384, 389 (W.D.N.Y. 2007)).

Plaintiff contends that she turned fifty in May 2019,

“just eleven weeks after the ALJ’s March 12, 2019 decision,” and

thus, meets the borderline age to be considered disabled under

the Medical-Vocational Guidelines. (Pl. Mem. at 13.) Plaintiff

also asserts that because the ALJ acknowledged her inability to

read English, the ALJ necessarily concluded she is illiterate,

and because she is illiterate, the combination of her borderline

age and illiteracy would have deemed her disabled under the

Medical-Vocational guidelines. (Id. at 12-13.)

In response, the Commissioner argues that the ALJ was

not required to consider plaintiff’s borderline age because she

is not illiterate, and thus the outcome would be the same

regardless of a change in age category. (Def. Mem. at 13.)

Here, the record establishes that plaintiff is not illiterate.

At the hearing, plaintiff could follow both written and spoken

directions in English. (Joint Stip. At 10.) She testified that

she “could understand a little bit of written English” and

appeared at the hearing without an interpreter. (Id.) Similar

to Jimenez, where plaintiff was not deemed illiterate because he

was “able to read and write some English,” plaintiff here has

not established illiteracy based on an inability to communicate

in English. Jimenez, 2018 WL 4054876, at *6. Thus, because

plaintiff is not illiterate, the ALJ did not err by not

considering the fact that she turned fifty eleven weeks after

the ALJ’s decision.

CONCLUSION

The Commissioner's finding that plaintiff was not

disabled as defined by the SSA is not supported by substantial

evidence in the record because the ALJ did not properly apply the

treating physician’s rule and improperly relied on the vocational

expert’s testimony that conflicted with the DOT and SCO.

Accordingly, plaintiff’s motion for judgment on the pleadings is

GRANTED, defendant’s cross-motion for judgment on the pleadings

is DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order. The Clerk of Court is

respectfully directed to enter judgment in favor of plaintiff.

SO ORDERED.

DATED: September 20, 2021

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge