The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MERCEDEZ M. H.,1
Plaintiff, DECISION AND ORDER
1:22-cv-0035 (JJM)
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
This is an action brought pursuant to 42 U.S.C. §405(g) to review the final
determination of the Commissioner of Social Security that plaintiff was not entitled to social
security disability (“SSD”) benefits. Before the court are the parties’ cross-motions for judgment
on the pleadings [7, 8]. 2 The parties have consented to my jurisdiction [12]. Having reviewed
their submissions [7, 8, 11], the plaintiff’s motion is granted, and the Commissioner’s motion is
denied.
BACKGROUND
The parties’ familiarity with the 940-page administrative record ([4]) is presumed.
The parties have comprehensively set forth in their papers the plaintiff’s treatment history and
the relevant medical evidence. Accordingly, I reference below only those facts necessary to
explain my decision.
1 In accordance with the guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Western District
of New York on November 18, 2020 in order to better protect personal and medical information of non-
governmental parties, this Decision and Order will identify the plaintiff using only the first name and last
initial.
2 Bracketed references are to the CM/ECF docket entries. Page references to the administrative
record are to the Bates numbering. All other page references are to the CM/ECF pagination.
Plaintiff filed for benefits in April 2019, alleging a disability beginning on June 9,
2018, due to ulnar shortening, depression, and kidney stones. Administrative Record [4] at 143,
292. Plaintiff’s claim was initially denied. Id. at 143. An administrative hearing was held on
June 1, 2020 before Administrative Law Judge (“ALJ”) Arthur Patane. Id. at 175-88 (transcript
of hearing). Plaintiff, who was represented by an attorney, testified. Id., at 178-87. Vocational
expert (“VE”) Esperanza DiStefano testified through a Vocational Interrogatory. Id. at 385-88.
On July 21, 2020, ALJ Patane issued a decision finding that plaintiff was not
disabled. Id. at 143-51. In reaching that determination, he found that plaintiff’s severe
impairments were “status post forearm surgery and recent onset degenerative disc disease of the
cervical spine”. Id. at 17.3 He ultimately concluded that plaintiff was not disabled pursuant to
the Social Security Act from June 9, 2018 through the date of his decision. Id. at 151. He found
that the plaintiff had the residual functional capacity (“RFC”) to perform light work with the
following additional limitations:
“[S]he cannot write with the right hand, push/pull more than 10
pounds with the right upper extremity, and cannot otherwise use
the right upper extremity on more than an occasional basis during a
regular workday.”
Id. at 148. Based upon the RFC and the vocational expert’s testimony, ALJ Patane found that
there were four jobs in the national economy that plaintiff could perform:
“To determine the extent to which these limitations erode the
unskilled light occupational base, I asked the vocational expert
whether jobs exist in the national economy for an individual with
the claimant’s age, education, work experience, and residual
functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the
requirements of representative occupations such as Gate Guard . . .
Usher . . . Ticket Taker . . . , and Sand[wich]-Board Carrier”. . .
3 ALJ Patane found that plaintiff’s “variously characterized” “mood and anxiety disorders”,
“depression” and “kidney stones” were not severe impairments. Id. at 145-47. Plaintiff does not
challenge these findings.
Pursuant to SSR 00-4, I have determined that the vocational
expert’s testimony is consistent with the information contained in
the [DOT]. Moreover, the job numbers cited clearly constitute a
‘significant’ number as required by the regulations.
Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant is capable of making a
successful adjustment to other work that exists in significant
numbers in the national economy. A finding of ‘not disabled’ is
therefore appropriate under the framework of the above-cited
rules.”
Id. at 151.
Plaintiff argues that the Commissioner’s determination is not supported by
substantial evidence because the ALJ: 1) did not base the right upper extremity limitations
incorporated into the RFC upon any evidence in the record; 2) failed to resolve at step 5 of his
analysis the conflicts that exist between the Dictionary of Occupational Titles’ (“DOT”)
description of the physical requirements of each identified occupation and the VE’s interrogatory
response that plaintiff could perform those jobs given the RFC; and 3) failed to consider the
impact of impairments to the plaintiff’s left upper extremity. See Plaintiff’s Memorandum of
Law [7-1] at 19-29.
The Commissioner responds that substantial evidence supports the ALJ’s RFC
determination with respect to limitations to both upper extremities, and that the ALJ properly
relied upon the VE’s explanation for the deviations between her testimony and the DOT.
Commissioner’s Brief [8-1] at 7-26.
I agree with plaintiff that ALJ Patane failed to identify and resolve the conflicts
between the RFC and the DOT’s description of the physical abilities required to do the jobs
identified by the VE. Accordingly, the ALJ’s determination is not supported by substantial
evidence. I therefore remand this case for further proceedings consistent with my analysis,
below.
ANALYSIS
A. Standard of Review
“A district court may set aside the Commissioner's determination that a claimant
is not disabled only if the factual findings are not supported by ‘substantial evidence’ or if the
decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305
U.S. 197, 229 (1938).
An adjudicator determining a claim for Social Security benefits employs a five-
step sequential process. See Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520, 416.920. The
plaintiff bears the burden with respect to steps one through four, while the Commissioner has the
burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).
B. ALJ Patane Failed to Identify and Resolve Conflicts Between the DOT and the
VE’s Testimony
Social Security Ruling (“SSR”) 00-4p, entitled “Titles II and XVI: Use of
Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational
Information in Disability Decisions”, governs how ALJs are to reconcile VE testimony that
conflicts - or appears to conflict - with the DOT. It requires ALJs to “[i]dentify and obtain a
reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and
information in the [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 [e]xplain in the determination or decision how any conflict that has
been identified was resolved.” SSR 00-4p, 2000 WL 1898704 at *1. It provides further:
“When there is an apparent unresolved conflict between VE . . .
evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE . . . evidence
to support a determination or decision about whether the claimant
is disabled. At the hearings level, as part of the adjudicator’s duty
to fully develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency”.
Id. at *2. Further, “[i]f the VE’s evidence appears to conflict with the DOT, the adjudicator will
obtain a reasonable explanation for the apparent conflict”. Id. at *4. The ALJ must also identify
the conflict in his or decision and explain how it was resolved:
“When vocational evidence provided by a VE . . . is not consistent
with information in the DOT, the adjudicator 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 adjudicator will explain in the determination or decision how
he or she resolved the conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the conflict was
identified.”
Id.
ALJ Patane cited SSR 00-4p in his decision, demonstrating his understanding of
his obligations. “Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the [DOT].” Administrative Record [4]
at 151. However, this statement is not supported by the evidence in the record or by the DOT’s
descriptions of the jobs identified by the VE.
In her Vocational Interrogatory, the VE stated there were no “conflicts between
the occupational evidence” she provided “and the occupational information contained in the
DOT and/or the SCO”, but further qualified her answer:
“The jobs I returned only require occasional reach, handle and
finger except for the Ticket Taker position. According to the
Selected Characteristics of jobs in the DOT, this job requires
frequent reach, handle and finger. In my opinion the essential
functions of this job can be performed using one upper extremity”.
Id. at 387. As pointed out by the plaintiff, however, the DOT describes each of the jobs the VE
identified as light work, which requires lifting an amount of weight in excess of, and more
frequently than, the weight and frequency limitations incorporated into the RFC for plaintiff’s
right arm:
“STRENGTH: Light Work -- Exerting up to 20 pounds of force
occasionally (Occasionally: activity or condition exists up to 1/3 of
the time) and/or up to 10 pounds of force frequently (Frequently:
activity or condition exists from 1/3 to 2/3 of the time) and/or a
negligible amount of force constantly (Constantly: activity or
condition exists 2/3 or more of the time) to move objects.”
DOT descriptions for Sandwich-Board Carrier (1991 WL 672646), Gate Guard (1991 WL
673099), Usher (1991 WL 672865), and Ticket Taker (1991 WL 672863); see also Plaintiff’s
Memorandum of Law [7-1] at 24. Further, Appendix C of the SCO defines lifting as “[r]aising
or lowering an object from one level to another (includes upward pulling)”. Appendix C.
Physical Demands, SCO Defined in the Revised DOT, 1993 Edition, available on Westlaw.com.
Pushing and pulling are defined as “[e]xerting force on an object” so that the object moves away
from, or toward, the force. Id.
The definition of light work appears to conflict with the limitations built into the
RFC:
“I find that the claimant has the residual functional capacity to
perform light work . . . except that she cannot write with the right
hand, push/pull more than 10 pounds with the right upper
extremity, and cannot otherwise use the right upper extremity on
more than an occasional basis during a regular workday.”
Administrative Record [4] at 147-48. Specifically, light work requires the ability to
“occasionally” exert up to 20 pounds of force (i.e. lift, push, or pull). However, the RFC states
that plaintiff cannot pull greater than 10 pounds with her right arm. Further, light work requires
the ability to “frequently” exert up to 10 pounds of force or to “constantly” exert a negligible
amount of force. The RFC states that plaintiff cannot use her right arm greater than occasionally.
The Commissioner argues that “[b]ecause the DOT does not specify that the
lifting and carrying must be done with both arms, and because plaintiff’s left arm was
unimpaired, there was no conflict between the DOT and the jobs identified by the [VE].”
Commissioner’s Brief [8-1] at 24. I do not agree. The Second Circuit rejected a similar
argument advanced by the Commissioner with respect to “reaching” in Lockwood v.
Commissioner, 914 F.3d 87 (2d Cir. 2019).
In Lockwood, the RFC restricted plaintiff from all “overhead reaching”. Id. at 89.
The VE testified there were three specific jobs that plaintiff could perform with that restriction.
Id. Plaintiff argued that there was an apparent conflict between the VE’s testimony and the
DOT, which specified that each of the three jobs required occasional or frequent “reaching”. Id.
at 90, 92. However, a 1985 SSR defines “reaching” as “extending the hands and arms in any
direction”. Id. at 92. The Commissioner argued there was no conflict “because describing a job
as requiring ‘reaching’ does not necessarily establish that it requires overhead reaching” and
because “the [DOT’s] narrative descriptions of the three jobs at issue contain no express
reference to overhead reaching”. Id. at 92-93. The Court rejected both arguments:
“[W]hile this Court could guess what the three jobs Heller
identified require in reality, it was the Commissioner’s duty to
elicit an explanation from Heller as to whether those occupations
actually require overhead reaching. . . . The importance of teasing
out such details is precisely why the Commissioner bears an
affirmative responsibility to ask about any possible conflict
between vocation expert evidence and information provided in the
[DOT]. . . . Absent such an inquiry, the Commissioner lacks a
substantial basis for concluding that no such conflicts in fact exist.
. . .
While the [DOT]’s narrative descriptions certainly make it
conceivable that the three jobs Heller identified do not require
overhead reaching, the Commissioner bore the burden of showing
that Lockwood is actually capable of performing those jobs. . . . If
the Commissioner wished to rely on Heller’s expert testimony to
carry that burden, the Ruling makes clear that she was obliged to
identify and resolve the apparent conflict between that testimony
and the [DOT], even if there is a chance that, upon inquiry, no
actual conflict would have emerged.”
Id. at 93. Other courts have concluded that an apparent conflict exists under circumstances
analogous to those here. In Chavez-Fuentes v. Saul, 2020 WL 5646600 (S.D. Fla., 2020), the
plaintiff challenged the ALJ’s reliance on VE testimony where he failed to ask the VE whether
his testimony conflicted with the DOT. Id. at *7. There, the RFC restricted plaintiff to lifting
“twenty pounds occasionally and ten pounds frequently with his right hand but [could] only lift
ten pounds occasionally and ten pounds frequently with his left hand”. Id. The VE testified that
plaintiff “could still perform three jobs that were all classified as light work with the DOT”.
Plaintiff argued that the ALJ failed to identify or resolve the apparent conflict between the VE’s
testimony and the DOT’s definition of light work. Id. The Commissioner argued “there was no
apparent conflict that the ALJ was required to identify and resolve because neither the DOT’s
definition of light work nor the DOT’s descriptions for the jobs at issue specify that a person
must be able to occasionally lift up to twenty pounds with each hand separately” and because
“the DOT is silent on whether both hands are necessary”.
Finding that an apparent conflict existed, the Court determined that, where the
DOT is silent concerning a specific physical function, “the issue for the Court is whether the
conflict presented is an apparent one which results from a reasonable comparison of the DOT
with the VE’s testimony, or whether an inference is required in order to find a conflict between
the DOT and the VE’s testimony.” Id. at *9. The Court concluded that no inference was
required under the circumstances present there, and that an apparent conflict existed:
“Here, of course, no such inference is required. The DOT
definition for the jobs that the VE identified states that the
Claimant must be able to lift twenty pounds, and yet he cannot do
that with his left hand. There is no need to infer anything to find
that conflict.”
Id. I agree with plaintiff that here, a similar apparent conflict exists that the ALJ was required to
resolve. Nowhere does the ALJ’s decision identify the conflict between the RFC’s limitations to
the amount of weight plaintiff can push or pull with, or the frequency of her ability to use, her
right arm and the VE’s testimony that plaintiff could perform the jobs identified by the DOT as
light work positions. The decision simply states that the VE’s testimony “is consistent” with the
DOT. Administrative Record [4] at 151. As the analysis above demonstrates, however, this is
not true. Accordingly, the ALJ’s determination that there are jobs available in the national
economy that plaintiff is capable of performing is not supported by substantial evidence.
Finally, the Commissioner argues that the ALJ satisfied his obligation to explore
conflicts with the DOT:
“Here, the ALJ probed into any apparent conflicts, in the
interrogatories he provided to the vocational expert (Tr. 387). The
ALJ asked the VE, whether there were any conflicts between the
occupational information she provided and the DOT (Tr. 387).
The ALJ did not stop there, but probed further. The ALJ requested
that, if the answer to the first question was yes, the VE should
provide an explanation for why the information she provided was
conflicted with the DOT (Tr. 387). Unlike in Lockwood, the
vocational expert responded that her information was mostly
consistent with the DOT, for three out of the four jobs, but that
there was an apparent conflict with the fourth (Tr. 387). . . . Thus,
the vocational expert identified, and resolved, the apparent
conflicts that she viewed, between her testimony and the DOT,
with respect to the hand-use requirements of the jobs. The ALJ,
having investigated the apparent conflicts, explained that she
credited the opinion of the VE (Tr. 151). This is precisely what
Lockwood required from the VE and the ALJ.”
Commissioner’s Brief [8-1] at 23.
I do not agree. First, SSR 00-4p “places the onus on the Commissioner, acting
through her ALJs, to affirmatively identify any conflicts.” Lockwood, 914 F.3d at 93-94. See
also Marjanovic v. Commissioner, 2020 WL 3445676, *3 (W.D.N.Y. 2020) (SSR 00-4p “places
an affirmative duty on the ALJ to identify and resolve any conflict between he VE’s testimony
and the DOT before relying on such testimony”); Rachel F. v. Commissioner, 2023 WL
2595007, *8 (W.D.N.Y. 2023) (“the burden of addressing these issues was on the ALJ, not the
VE, and the ALJ did not address the potential conflict as required by Lockwood”) . Further,
even if the VE’s explanation adequately addressed the conflict between her testimony and DOT
concerning the “reach, handle and finger” requirements of the ticket taker position, that analysis
does not satisfy the ALJ’s responsibility to resolve the conflict concerning the amount of weight
and frequency that the plaintiff was able to push, pull, or lift with her right hand. Resolving one
conflict does not satisfy the ALJ’s obligation to resolve all the apparent conflicts. Marjanovic,
supra at *5 (“[a]lthough the ALJ’s decision resolves some other conflicts between the DOT and
VE’s testimony, . . . it does not identify this conflict. Accordingly, remand for further
proceedings is required”).
Accordingly, this case is remanded for a proper identification and analysis of the
apparent conflicts between the DOT and the VE’s testimony, including further development of
the record, if necessary. Because I am remanding this matter for further administrative
proceedings, I do not reach plaintiff’s remaining arguments. See Shaine J. v. Commissioner,
2020 WL 68887622, *5 (W.D.N.Y. 2020).
CONCLUSION
For these reasons, plaintiff’s motion for judgment on the pleadings [7] is granted,
and the Commissioner’s motion for judgment on the pleadings [8] is denied.
SO ORDERED.
Dated: September 7, 2023 /s/ _____
JEREMIAH J. MCCARTHY
United States Magistrate Judge