The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ROBERT G.,
Plaintiff,
v. 5:19-CV-0576
(ML)
ANDREW SAUL,
Commissioner of Social Security Administration,
Defendant.
________________________________________
APPEARANCES: OF COUNSEL:
Legal Aid Society of Mid-New York, Inc. ELIZABETH V. KRUPAR, ESQ.
Counsel for the Plaintiff
221 South Warren Street, Suite 310
Syracuse, New York 13202
SOCIAL SECURITY ADMINISTRATION AMELIA STEWART, ESQ.
Counsel for the Defendant ARIELLA R. ZOLTAN, ESQ.
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER
Currently pending before the Court in this action, in which Plaintiff seeks judicial review
of an adverse administrative determination by the Commissioner of Social Security, pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral
argument was heard in connection with those motions on July 27, 2020, during a telephone
1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. §
636(c), has been treated in accordance with the procedures set forth in General Order No. 18.
Under that General Order once issue has been joined, an action such as this is considered
procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.
conference conducted on the record. At the close of argument, I issued a bench decision in
which, after applying the requisite deferential review standard, I found that the Commissioner’ s
determination is not supported by substantial evidence, providing further detail regarding my
reasoning and addressing the specific issues raised by Plaintiff in this appeal.
After due deliberation, and based upon the Court’s oral bench decision, which has been
transcribed, is attached to this order, and is incorporated herein by reference, it is
ORDERED as follows:
1) Plaintiffs motion for judgment on the pleadings (Dkt. No. 12) is GRANTED.
2) The Commissioner’s determination that Plaintiff was not disabled at the relevant
times, and thus is not entitled to benefits under the Social Security Act, is VACATED.
3) This matter is REMANDED to the Commissioner, without a directed finding of
disability, for further administrative proceedings consistent with this opinion and the oral bench
decision, pursuant to sentence four of 42 U.S.C. § 405(g).
4) The Clerk of Court is respectfully directed to enter judgment, based upon this
determination, REMANDING this matter to the Commissioner for further administrative
proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four
of 42 U.S.C. § 405(g) and closing this case.
Dated: August 4, 2020
Binghamton, New York /
Miroslav Lovric
United States Magistrate Judge
Northern District of New York
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
ROBERT G.,
Plaintiff,
-v- 19-CV-576
ANDREW SAUL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE MIROSLAV LOVRIC
July 27, 2020
15 Henry Street, Binghamton, New York
For the Plaintiff:
(Appearance by telephone)
LEGAL AID SOCIETY OF MID-NEW YORK, INC.
221 South Warren Street
Suite 310
Syracuse, New York 13202
BY: ELIZABETH V. KRUPAR, ESQ.
For the Defendant:
(Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
625 JFK Building
15 New Sudbury Street
Boston, Massachusetts 02203
BY: AMELIA STEWART, ESQ.
Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8545
1 (The Court and all parties present by telephone.
2 Time noted: 10:16 a.m.)
3 THE COURT: So first, by way of introduction, this
4 matter was referred to me, for all proceedings and entry of a
5 final judgment, pursuant to the Social Security Pilot Program,
6 here in the Northern District of New York, pursuant to General
7 Order No. 18, also in accordance with the provisions of Title 28
8 U.S.C. Section 636(c), and then additionally, Federal Rule of
9 Civil Procedure 73, in the Northern District of New York, Local
10 Rule 73.1, and then lastly, the consent of the parties. This
11 action involves judicial view of an adverse determination by the
12 Commissioner of Social Security, pursuant to 42, United States
13 Code, Sections 405(g) and 1383(c)(3).
14 In this appeal, I have reviewed the following: The
15 Social Security Administrative Record and transcript found at
16 Docket No. 11, including the Administrative Law Judge's hearing
17 decision and transcript of oral hearing, and that's found at
18 Administrative Transcript -- which I'll refer to in these
19 proceedings simply by the letter T -- that's found at T. 12
20 through 28 and 154 to 194. I've also reviewed the plaintiff's
21 brief at Docket No. 12, the defendant's brief at Docket No. 16,
22 and I also generally reviewed the other entries on the docket.
23 And then lastly, I have taken into consideration today's oral
24 arguments from the parties that was presented a few moments ago.
25 I find the procedural history of this case as
1 follows: The plaintiff filed for DIB benefits on January 29,
2 2016, alleging disability beginning on May 29, 2015, see T. 15.
3 The claim was denied initially on April 28, 2016, it can be
4 found at T. 209 to 214. On May 23, 2016, plaintiff requested a
5 hearing before an Administrative Law Judge, see T. 15 and 216.
6 The hearing was held in front of ALJ Kenneth Theurer on
7 February 12, 2018, see T. 15 and also 154 to 194. Additionally,
8 Andrew Caporale, a vocational expert that I'll refer to as VE,
9 also appeared and testified at the hearing. On March 28, 2018,
10 the ALJ issued an unfavorable decision as to plaintiff, see T.
11 12 through 28. The ALJ utilized the five-step process for
12 evaluating disability claims, see T. 15 through 24, and found
13 that plaintiff was not disabled from the alleged onset date
14 through the date of the decision, March 28th of 2018, because,
15 according to the ALJ, plaintiff was capable of performing jobs
16 that existed in significant numbers in the national economy, T.
17 23 to 24, see also 20 C.F.R. Section 404.1520(a)(4)(i)-(v)
18 describing the steps in the sequential evaluation. See also 20
19 C.F.R. Section 404.1566(b), if the claimant can perform work in
20 the national economy, he is not disabled.
21 Plaintiff requested review of the hearing decision
22 before the Appeals Council on May 29, 2018, T. 277. On
23 March 29, 2019, the Appeals Council denied the request for
24 review, T. 1 through 6, after which time the Commissioner's
25 determination became final and this appeal followed.
1 I want to generally state applicable law that I'm
2 applying in reviewing this appeal. First, the disability
3 standard. To be considered disabled, a plaintiff seeking
4 disability insurance benefits, or SSI disability benefits, must
5 establish that she is unable to engage in any substantial
6 gainful activity by reason of any medically determinable
7 physical or mental impairment which can be expected to result in
8 death or which has lasted or can be expected to last for a
9 continuous period of not less than 12 months, see 42 U.S.C.
10 Section 1382C(a)(3)(A). In addition, the plaintiff's physical
11 or mental impairment or impairments must be of such severity
12 that he is not only unable to do previous work, but cannot,
13 considering his age, education, and work experience, engage in
14 any other kind of substantial gainful work which exists in the
15 national economy, regardless of whether such work exists in the
16 immediate area in which he lives, or whether a specific job
17 vacancy exists for him, or whether he would be hired if he
18 applied for work, see 42 U.S.C. Section 1382c(a)(3)(B).
19 The Commissioner uses a five-step process, set forth
20 in 20 C.F.R. Sections 404.1520 and 416.920, to evaluate
21 disability insurance and SSI disability claims.
22 First, these steps are as follows in summary: First,
23 the Commissioner considers whether the claimant is currently
24 engaged in substantial gainful activity. If he is not, the
25 Commissioner next considers whether the claimant has a severe
1 impairment which significantly limits his physical or mental
2 ability to do basic work activities. If the claimant suffers
3 such an impairment, the third inquiry is whether, based solely
4 on medical evidence, the claimant has an impairment which meets
5 or equals the criteria of an impairment listed in Appendix 1 of
6 the regulations. If the claimant has such an impairment, the
7 Commissioner will consider him disabled without considering
8 vocational factors such as age, education, and work experience.
9 Assuming the claimant does not have a listed impairment, the
10 fourth inquiry is whether, despite the claimant's severe
11 impairment, he has the residual functional capacity to perform
12 his past work. Finally, if the claimant is unable to perform
13 his past work, the Commissioner then determines whether there is
14 other work which the claimant can perform, see Berry v.
15 Schweiker, 675 F.2d 464 at 467, Second Circuit, 1982, see also
16 20 C.F.R. Sections 404.1520 and 416.920.
17 The plaintiff has the burden of establishing
18 disability at the first four steps. However, if the plaintiff
19 establishes that her impairment prevents her from performing her
20 past work, the burden then shifts to the Commissioner to prove
21 the final step.
22 The second area of law that I have applied and keep
23 in mind is the scope of my review. In reviewing a final
24 decision of the Commissioner, a court must determine whether the
25 correct legal standards were applied and whether substantial
1 evidence supported the decision, see Selian v. Astrue, 708 F.3d
2 406 at 417, Second Circuit, 2013, see also Brault v. Social
3 Security Administration Commissioner, 683 F.3d 443 at 448,
4 Second Circuit, 2012, additionally see 42 U.S.C. Section 405(g).
5 Substantial evidence is such relevant evidence as a reasonable
6 mind might accept as adequate to support a conclusion, see
7 Talavera v. Astrue, 697 F.3d 145 at 151, Second Circuit, 2012.
8 It must be more than a scintilla of evidence scattered
9 throughout the administrative record. However, this standard is
10 a very deferential standard of review, even more so than the
11 clearly erroneous standard, see Brault, 683 F.3d at 448.
12 To determine on appeal whether an ALJ's findings are
13 supported by substantial evidence, a reviewing court considers
14 the whole record, examining the evidence from both sides,
15 because an analysis of the substantiality of the evidence must
16 also include that which detracts from its weight, see Williams
17 on behalf of Williams v. Bowen, 859 F.2d 255 at 258, Second
18 Circuit, 1988. However, a reviewing court may not substitute
19 its interpretation of the administrative record for that of the
20 Commissioner, if the record contains substantial support for the
21 ALJ's decision, see also Rutherford v. Schweiker, 685 F.2d 60 at
22 62, Second Circuit, 1982. In reviewing a final decision by the
23 Commissioner under 42 U.S.C. 405, the Court does not determine
24 de novo whether a plaintiff is disabled, see 42 U.S.C. Sections
25 405(g), 1383(c)(3), and see also Wagner v. Secretary of Health
1 and Human Services at 906 F.2d 856 at 860, Second Circuit, 1990.
2 Rather, the Court must examine the Administrative Transcript to
3 ascertain whether the correct legal standards were applied, and
4 whether the decision is supported by substantial evidence, see
5 Shaw v. Chater, 221 F.3d 126 at 131, Second Circuit, 2000, also
6 Schaal v. Apfel, 134 F.3d 496, at 500 to 501, Second Circuit,
7 1998.
8 Substantial evidence is evidence that amounts to more
9 than a mere scintilla, and it has been defined as such relevant
10 evidence as a reasonable mind might accept as adequate to
11 support a conclusion, Richardson v. Perales, 402 U.S. 389, at
12 401, 1971. If supported by substantial evidence, the
13 Commissioner's factual determinations are conclusive, and it is
14 not permitted for the courts to substitute their analysis of the
15 evidence, see Rutherford v. Schweiker, 685 F.2d 60, at 62,
16 Second Circuit, 1982, essentially stating that the court would
17 be derelict in our duties if we simply paid lip service to this
18 rule, while shaping the Court's holding to conform to our
19 interpretation of this evidence. In other words, this Court
20 must afford the Commissioner's determination considerable
21 deference, and may not substitute its own judgment for that of
22 the Commissioner, even if it might justifiably have reached a
23 different result upon a de novo review, see Valente v. Secretary
24 of Health and Human Services, 733 F.2d 1037, at 1041, Second
25 Circuit, 1984.
1 An ALJ is not required to explicitly analyze every
2 piece of conflicting evidence in the record, see example Mongeur
3 v. Heckler, 722 F.2d 1033, at 1040, Second Circuit, 1983, also
4 see Miles v. Harris, 645 F.2d 122, at 124, Second Circuit, 1981.
5 We are unwilling to require an ALJ explicitly to reconcile every
6 conflicting shred of medical testimony. However, the ALJ cannot
7 pick and choose evidence in the record that supports his
8 conclusions, see Cruz v. Barnhart, 343 F. Supp. 2d 218, at 224,
9 Southern District of New York, 2004, see also Fuller v. Astrue,
10 09-CV-6279, and that can be found at 2010 WL 5072112 at *6,
11 Western District of New York, December 6, 2010.
12 In reviewing this case, I point out the following
13 general facts: Plaintiff was born on May 2, 1967, making him
14 48 years old on the alleged onset and application dates, and
15 50 years old on the date of the ALJ's decision; plaintiff
16 reported having at least a high school education and is able to
17 communicate in English; plaintiff had past work as a meat
18 cutter, a deli cutter/slicer, and as a hand packager.
19 In summary, the ALJ found as follows in the decision:
20 First, the claimant meets -- and these are the ALJ's findings.
21 The claimant meets the insured status requirements of the Social
22 Security Act through December 31, 2020. The claimant has not
23 engaged in substantial gainful activity since May 29, 2015, the
24 alleged onset date, see 20 C.F.R. 404.1571. Third, the claimant
25 has the following severe impairments: Arthritis in the knees;
1 tendonitis in the shoulders; chronic obstructive pulmonary
2 disease, also known as COPD; and depression and anxiety, see 20
3 C.F.R. 404.1520(c), which significantly limit the ability to
4 perform basic work activities as required by SSR 85-28.
5 Next, the ALJ found the claimant does not have an
6 impairment or combination of impairments that meets or medically
7 equals the severity of one of the listed impairments in 20
8 C.F.R. Part 404, Subpart P, Appendix 1, see 20 C.F.R.
9 404.1520(d), also 404.1525, and lastly, 404.1526. The ALJ went
10 on to state, after careful consideration of the entire record,
11 the ALJ concluded that the claimant has the residual functional
12 capacity to perform less than the full range of light work as
13 defined in 20 C.F.R. 404.1567(b), with ability to occasionally
14 lift and carry 20 pounds, frequently lift and carry 10 pounds;
15 sit for up to 6 hours; stand or walk for approximately 6 hours
16 in an 8-hour day with normal breaks; occasionally climb ramps or
17 stairs, but never climb ladders, ropes, or scaffolds; can
18 perform occasional balancing, stooping, kneeling, crouching, and
19 crawling; can occasionally reach overhead, frequently in other
20 directions. The ALJ also noted he should avoid smoke, dust, and
21 respiratory irritants.
22 Mentally, he retains the ability to understand and
23 follow simple instructions and directions; perform simple tasks
24 with supervision and independently. The ALJ went on to say,
25 maintain attention/concentration for simple tasks; regularly
1 attend to a routine and maintain a schedule; can relate to and
2 interact with others to the extent necessary to carry out simple
3 tasks, but should avoid work requiring more complex interaction
4 or joint effort to achieve work goals. The ALJ went on to say
5 he should have no more than incidental contact with the public
6 and can handle reasonable levels of simple work-related stress,
7 in that he can make occasional simple decisions directly related
8 to the completion of his tasks in a stable, unchanging work
9 environment.
10 The ALJ further concluded the claimant is unable to
11 perform any past relevant work, see 20 C.F.R. 404.1565. The ALJ
12 concluded, considering the claimant's age, education, work
13 experience, and residual functional capacity, there are jobs
14 that exist in significant numbers in the national economy that
15 the claimant can perform, see 20 C.F.R. 404.1569 and 40.1569(a).
16 Finally, the ALJ's decision and conclusion was as follows: The
17 claimant has not been under a disability, as defined in the
18 Social Security Act, from May 29, 2015, through the date of this
19 decision, 20 C.F.R. 404.1520(g). Based on the application for a
20 period of disability and disability insurance benefits filed on
21 January 29, 2016, according to the ALJ, the claimant is not
22 disabled under Sections 216(i) and 223(d) of the Social Security
23 Act.
24 In reviewing the briefs by the parties and the
25 record, I believe that three issues in contention are before the
1 Court. The first is whether the ALJ properly weighed the
2 opinion of Dr. Woznicki. The second is whether the ALJ properly
3 assessed plaintiff's subjective symptoms. And then third, and
4 lastly, is whether the substantial evidence supports -- whether
5 substantial evidence supports the ALJ's step five finding.
6 I turn next to discussion with respect to my
7 decision, discussion and analysis. The first issue of
8 contention is whether the ALJ properly weighed the opinion of
9 Dr. Woznicki. I find that the ALJ properly weighed the opinion
10 of Dr. Woznicki and it is my conclusion. The Second Circuit has
11 long recognized the treating physician rule set out in 20 C.F.R.
12 404.1527(c). The opinion of a claimant's treating physician as
13 to the nature and severity of the impairment is given
14 controlling weight so long as it is well-supported by medically
15 acceptable clinical and laboratory diagnostic techniques and is
16 not inconsistent with the other substantial evidence in the case
17 record, see Greek v. Colvin, 802 F.3d 370, at 375, Second
18 Circuit, 2015, quoting from Burgess v. Astrue, 537 F.3d 117, at
19 128, Second Circuit, 2008.
20 Application of the treating physician rule to Dr.
21 Woznicki, in my conclusion, would be inappropriate because Dr.
22 Woznicki is not plaintiff's treating physician, so my finding is
23 that the ALJ was not required to treat Dr. Woznicki as a
24 treating physician. The record contains no evidence of a
25 doctor-patient relationship between plaintiff and Dr. Woznicki.
1 For example, Dr. Woznicki's name does not appear in any of
2 plaintiff's treatment notes or medical records from the
3 Community Clinic despite receiving treatment there between
4 January 2017 and February 2018, see T. 599 through 715.
5 Likewise, there's no evidence that any of plaintiff's progress
6 reports were provided to Dr. Woznicki. When questioned during
7 the hearing about plaintiff's treatment at Community Clinic,
8 plaintiff did not mention Dr. Woznicki.
9 Furthermore, because there was no ongoing treating
10 relationship between plaintiff and Dr. Woznicki, Dr. Woznicki
11 did not qualify as a treating physician, see Camarata v. Colvin,
12 14-CV-0578, that can be found at 2015 WL 4598811, at 14 through
13 16, Northern District of New York, July 29, 2015, Judge
14 D'Agostino, finding that the Appeals Council appropriately did
15 not apply the treating physician rule to a medical source
16 statement that was prepared by a nurse practitioner and
17 registered nurse, then co-signed by a physician where the
18 physician did not have an ongoing treatment relationship with
19 the plaintiff.
20 Now, while the ALJ failed to explicitly apply the
21 Burgess factors when assigning the weight to Dr. Woznicki, for
22 the reasons stated in the defendant's memorandum of law, I do
23 find that even if Dr. Woznicki was a treating physician, a
24 searching review of the record assures me that the substance of
25 the treating physician rule was not traversed, see Estrella v.
1 Berryhill, 925 F.3d 90, at 95 through 96, Second Circuit, 2019.
2 Now, the second issue of contention is whether the
3 ALJ properly assessed plaintiff's subjective symptoms. I find
4 and conclude that the ALJ properly assessed plaintiff's
5 testimony. The evaluation of symptoms involved a two-step
6 process. First, the ALJ must determine, based upon the
7 objective medical evidence, whether the medical impairments
8 could reasonably be expected to produce the pain or other
9 symptoms alleged, see 20 C.F.R. Sections 404.1529(a), 416.929(a)
10 and (b). If so, at the second step, the ALJ must consider the
11 extent to which the claimant's alleged functional limitations
12 and restrictions due to pain or other symptoms can reasonably be
13 accepted as consistent with the objective medical evidence and
14 other evidence to decide how the claimant's symptoms affect her
15 ability to work, see Barry v. Colvin, 606 F. App'x 621 at 623,
16 Second Circuit, 2015, citing inter alia 20 C.F.R. Section
17 404.1529(a), see also Genier v. Astrue, 606 F.3d, at 49. If the
18 objective medical evidence does not substantiate the claimant's
19 symptoms, the ALJ must consider the other evidence, see Cichocki
20 v. Astrue, 534 F. App'x 71, at 76, Second Circuit, 2013.
21 I find that the ALJ did not merely provide a single
22 conclusory statement and instead provided a lengthy, detailed,
23 and thorough discussion of the medical treatment evidence that
24 indicated plaintiff's allegations were inconsistent with the
25 medical evidence, and the ALJ adequately explained his reasoning
1 for discounting the severity of plaintiff's subjective symptoms,
2 see T. 22 through 23, also T. 166 to 169, 171 to 173, 178 to
3 179, and lastly at 181. I find that the ALJ properly relied on
4 plaintiff's testimony, T. 154 to 194, that he could do household
5 chores and care for himself without assistance in assessing his
6 subjective complaints.
7 Moreover, the ALJ properly relied on plaintiff's
8 admissions about his minimal treatment for mental health or
9 physical issues, in finding that his claims of total disability
10 were unsupported, see Sickles v. Colvin, 12-CV-774, that can be
11 found at 2014 WL 795978, at 22, and that is a Northern District
12 of New York, February 27, 2014, case. In addition to discussing
13 inconsistent evidence about plaintiff's daily activities and
14 minimal treatment, the ALJ also appropriately discussed the
15 objective medical evidence that was inconsistent with
16 plaintiff's subjective complaints, see T. 19 through 20, T. 495
17 to 499, also T. 500 to 503, T. 522, T. 554, and T. 599.
18 Additionally, see Suttles v. Berryhill, 756 F. App'x 77 at 78,
19 Second Circuit, 2019, wherein it states Suttles's testimony
20 regarding her symptoms was contradicted by the medical evidence.
21 The ALJ properly assessed plaintiff's subjective symptoms.
22 I turn next to the seven factors pursuant to 20
23 C.F.R. 404.1529(c)(3)(i) through (vii). In addition, the ALJ
24 must assess the claimant's subjective complaints by considering
25 the record in light of the following symptom-related factors:
1 One, claimant's daily activities; two, location, duration,
2 frequency and intensity of claimant's symptoms; three,
3 precipitating and aggravating factors; four, the type, dosage,
4 effectiveness, and side effects of any medication taken to
5 relieve symptoms; five, other treatment received to relieve
6 symptoms; six, any measures taken by the claimant to relieve
7 symptoms; and lastly, seven, any other factors concerning the
8 claimant's functional limitations and restrictions due to the
9 symptoms, see 20 C.F.R. Section 404.1529(c)(3), and
10 416.929(c)(3). The ALJ must provide specific reasons for the
11 determination, see Cichocki, 534 F' App'x, at 76.
12 However, the failure to specifically reference a
13 particular relevant factor does not undermine the ALJ's
14 assessment as long as there is substantial evidence supporting
15 the determination, see also Del Carmen Fernandez v. Berryhill,
16 2019 WL 667743, at 11, and that case citing Rousey v.
17 Commissioner of Social Security, 285 F. Supp. 3d 723, at 744, a
18 Southern District of New York 2018 case, wherein it states
19 remand is not required where the evidence of record allows the
20 court to glean the rationale of an ALJ's decision, citing
21 Cichocki, 534 F. App'x, at 76, which is quoting Mongeur v.
22 Heckler, 722 F.2d, at 1040.
23 Although the ALJ, here, did not explicitly list all
24 of these factors, he did consider several of them. And in any
25 event, this Court was able to glean the rationale of the ALJ's
1 decision.
2 I next, and lastly, turn to the third issue of
3 contention, and that is whether substantial evidence supports
4 the ALJ's step five finding. At step five of the disability
5 analysis, the burden shifts to the ALJ to demonstrate that
6 there's work in the national economy that plaintiff can perform,
7 see Poupore v. Astrue, 566 F.3d 303, at 306, Second Circuit,
8 2009.
9 At step five, the ALJ had to demonstrate in this case
10 that plaintiff was capable of performing jobs that existed in
11 significant numbers in the national economy, see 20 C.F.R.
12 404.1520(a)(4)(v). The vocational expert, as I call the VE,
13 testified that a hypothetical individual with plaintiff's RFC
14 could perform the representative jobs of marker, also mail
15 clerk, and lastly a cleaner, see T. 186 to 187.
16 As to the issue of overhead reaching, I find that the
17 VE's testimony resolved any conflict between the overhead
18 reaching requirements in the hypothetical question and the job
19 of marker. The VE's testimony that, based on his knowledge of
20 how the marker job was performed, it did not require more than
21 occasional overhead reaching, was sufficient to resolve any
22 conflict with the Dictionary of Occupational Titles, known as
23 DOT for short, see Michelle B. V. Commissioner of Social
24 Security, 18-CV-171, 2019 WL 464975, at 10, n.18, Northern
25 District of New York, February 6, 2019, wherein it states VE's
1 testimony that she was using her experience to explain a
2 discrepancy with a lifting requirement in the DOT was sufficient
3 to resolve any conflict concerning lifting, see Vanbenschoten v.
4 Commissioner of Social Security, 16-0057, that can be found at
5 2017 WL 1435741, at 7, a Northern District of New York,
6 April 21, 2017, case, and it states ALJ can accept VE testimony
7 that contradicts the DOT where it is based on the VE's practical
8 experience.
9 Where the VE testified in this particular case that
10 there were about 141,000 marker jobs in the national committee,
11 see T. 186, that job alone was sufficient to meet the agency's
12 burden at step five, see T. 186 through 187, see also Rosa v.
13 Commissioner of Social Security, 14-1145, that can be found at
14 2015 WL 7574516, at 6, it is Northern District of New York,
15 November 4, 2015, R&R adopted, at 2015 WL 7573222, Northern
16 District of New York, November 25, 2015. It states courts have
17 held that numbers varying from 9,000 upwards constituted
18 significant.
19 The ALJ's statement that the VE's testimony is
20 consistent with the information in the DOT, given that there was
21 a conflict with overhead reaching, and to the extent that the
22 ALJ's statement could be considered error because there was a
23 conflict which was resolved, any error is harmless due to the
24 detailed discussion at the hearing, see Michelle B., 2019 WL
25 464975, at 10, n.18. At step five, the ALJ demonstrated that
1 plaintiff was capable of performing jobs that existed in
2 significant numbers in the national economy. That was my
3 conclusion with respect to the issue of overhead reaching and
4 the VE's testimony as it related to the interaction with the
5 DOT.
6 I now turn to the issue of contact with the public.
7 However, I find that, with respect to the limitation on
8 plaintiff's contact with the public, there is not substantial
9 evidence to support the ALJ's finding at step five. The ALJ
10 found that the plaintiff's RFC included no more than incidental
11 contact with the public. The VE testified that plaintiff could
12 perform the work of marker, housekeeping/cleaner, and mail
13 clerk. The DOT definitions of those jobs indicate that they
14 involve employee interaction with people that is not
15 significant. However, the VE's testimony did not provide any
16 explanation to the ALJ as to how his testimony conflicted with
17 the DOT or a reasonable basis to support the testimony.
18 The Court cannot determine whether, "not
19 significant," means, "no more than incidental," or, "brief and
20 superficial," or, "low contact," or some other level of contact
21 with coworkers and the public. It is the VE's job to provide
22 information and then the ALJ has the affirmative duty to
23 identify and resolve any conflict between the VE's testimony and
24 the DOT before relying on such testimony, see Patti v. Colvin,
25 13-CV-1123, it's found at 2015 WL 114046, at 6, Western District
1 of New York, January 8, 2015, see also Abbruscato v. Berryhill,
2 16-CV-0117, that's found at 2017 WL 2531713, at 3, a Western
3 District of New York, June 12, 2017, case. And in there it
4 states, although the DOT indicates that employee interaction
5 with people is not significant in the mailroom clerk and
6 housekeeping jobs, the Court cannot determine whether this means
7 brief and superficial contact or low contact or some other level
8 of contact with coworkers and the public. In that, the Court
9 went on to say it is the VE's job to provide this information,
10 and then the ALJ has an affirmative duty to identify and resolve
11 any conflict between the VE's testimony and the DOT before
12 relying on such testimony. On that point, see also White v.
13 Colvin, 2016 WL 1555709, at 6, it's a Northern Distinct of
14 Illinois, April 18, 2016, case, remanding where, among other
15 things, the VE conceded that DOT indicated that jobs of hand
16 packager, mail clerk, and housekeeper involved contact with the
17 public, coworkers, and supervisors, and that it didn't say how
18 frequently. That certainly could run afoul of the limitation to
19 only occasional contact with coworkers, and most likely would
20 run afoul of the limitation to only incidental contact with the
21 public, but the ALJ did not resolve this conflict.
22 Accordingly, in this particular case, it is my
23 decision to remand this case and that remand is required. The
24 remand is required primarily on this last issue that I just
25 covered, contact with the public.
1 Based on the findings as set forth herein on the
2 record, plaintiff's motion for judgment on the pleadings, Docket
3 No. 12, is granted, the Commissioner's motion for judgment on
4 the pleadings, Docket No. 16, is denied, and this matter is
5 remanded to the Commissioner for further administrative
6 proceedings consistent with this opinion and decision pursuant
7 to sentence four of 42, United States Code, Section 405(g).
8 That's the decision of the Court.
9 Ms. Krupar, anything else?
10 MS. KRUPAR: No, your Honor. Thank you for your time
11 today.
12 THE COURT: All right. Ms. Stewart?
13 MS. STEWART: Nothing from me. Thank you.
14 THE COURT: All right. Very good. Thank you both
15 for excellent briefs and also very, very good arguments. And my
16 decision and order that I just set forth on the record will be
17 transcribed and will be available for the parties in addition
18 to, as I indicated, the summary order, which will be literally a
19 two-page order simply summarizing my final result.
20 But, otherwise, thank you both for very good work
21 product, have a good rest of the week, and court stands
22 adjourned. Thank you both.
23 MS. KRUPAR: Thank you.
24 MS. STEWART: Thank you.
25 (Time noted: 10:58 a.m.)
2 CERTIFICATE OF OFFICIAL REPORTER
5 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR,
6 NYRCR, Official U.S. Court Reporter, in and for the United
7 States District Court for the Northern District of New York, DO
8 HEREBY CERTIFY that pursuant to Section 753, Title 28, United
9 States Code, that the foregoing is a true and correct transcrip
10 of the stenographically reported proceedings held in the
11 above-entitled matter and that the transcript page format is in
12 conformance with the regulations of the Judicial Conference of
13 ]| the United States.
14
15 Dated this 30th day of July, 2020.
16
17 x Nannah F | avanaigh
18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
19 Official U.S. Court Reporter
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