The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES B.,1
Plaintiff, Case # 23-CV-873-FPG
v. DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff James B. brings this action pursuant to the Social Security Act seeking review of
the final decision of the Commissioner of Social Security that denied his applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of
the Act. ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),
1383(c)(3). Plaintiff moved for judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c) and requested that the case be remanded “for calculation of benefits.” ECF No.
8-1 at 30. The Commissioner agrees that remand is warranted under the circumstances, but rejects
Plaintiff’s request for remand solely for calculation of benefits. ECF No. 14. For the reasons that
follow, Plaintiff’s motion is GRANTED, the Commissioner’s motion is DENIED, and this matter
is REMANDED to the Commissioner solely for the calculation and payment of benefits.
DISCUSSION
In his motion, Plaintiff argues that the presiding Administrative Law Judge (“ALJ”) erred
by, among other things, failing to properly assess the opinion evidence in the record. See ECF No.
1 Under this District’s Standing Order, any non-government party must be referenced solely by first name and last
initial.
8-1 at 23-29. The Commissioner agrees that these errors warrant remand, ECF No. 14-1 at 3, but
the parties dispute whether such remand should be for further proceedings (as the Commissioner
requests) or for the calculation of benefits (as Plaintiff requests). Plaintiff asserts that a remand
solely for the calculation of benefits is appropriate since the Commissioner also failed to meet his
burden at Step Five. ECF No. 15. The Court agrees with Plaintiff.
Plaintiff originally filed his applications in September 2008. Tr. 21.2 An ALJ issued a
decision in July 2011, finding that Plaintiff could perform the full range of sedentary work, could
perform past relevant work as a CNC Machine Operator and Production Assembler, and therefore
was not disabled. See Tr. 29-36. On appeal to the district court, the Commissioner stipulated to a
remand for further proceedings. Tr. 529.
In September 2015, an ALJ issued a decision finding that Plaintiff could perform a reduced
range of sedentary work, could not perform any past relevant work, but could perform the
requirements of jobs like “addresser” and “ticket checker.” Tr. 447-54. Therefore, the ALJ found
that Plaintiff was not disabled. Tr. 454. On appeal to the district court, the Commissioner again
stipulated to a remand for further proceedings. Tr. 856.
In October 2018, an ALJ determined that Plaintiff could perform a reduced range of
sedentary work, could not perform any past relevant work, but could perform the requirements of
jobs like “order clerk” and “optical assembler.” Tr. 699-705. As a result, the ALJ found that
Plaintiff is not disabled. Tr. 705. On appeal to the district court for the third time, the
Commissioner again stipulated to a remand for further proceedings. Tr. 1232-33.
In February 2021, an ALJ determined that Plaintiff could perform a reduced range of
sedentary work, could not perform past relevant work, but could perform representative
2 “Tr.” refers to the administrative record in this matter. ECF Nos. 3, 4.
occupations like “document preparer” and “addressing clerk.” Tr. 1165-75. Plaintiff was found
not disabled. Tr. 1175. For a fourth time, the Commissioner stipulated to a remand for further
proceedings before the district court. Tr. 1643-44.
Finally, in May 2023, the operative hearing decision was issued. See Tr. 1573-90. Because
Plaintiff began working in mid-2016, he is now seeking only a closed period of disability from
February 2007 to May 2016. Tr. 1575, 1586. It was determined that Plaintiff could perform a
reduced range of sedentary work, could not perform any past relevant work, and could perform the
representative occupations of “addresser,” “call out operator,” and “document preparer.” Tr. 1580-
89. The ALJ found that Plaintiff was not disabled. Tr. 1590. Now, on appeal, the Commissioner
yet again agrees that remand is warranted, albeit for further proceedings rather than for the
calculation of benefits. See ECF No. 14.
The Court concludes that this is one of the rare cases in which remand solely for the
calculation of benefits is warranted. It is appropriate for a court to “remand for calculation of
benefits” where “the record here provides persuasive proof of disability and a remand for further
evidentiary proceedings would serve no purpose.” Demars v. Comm’r of Soc. Sec., 841 F. App’x
258, 263 (2d Cir. 2021) (summary order).
In this case, Plaintiff has established persuasive proof of disability. There appears to be no
dispute that Plaintiff has significant physical impairments and can, at best, perform a reduced range
of sedentary work. The ALJs in this case have consistently limited Plaintiff to some degree of
sedentary work. And though the Commissioner concedes that the most recent ALJ erred in his
evaluation of the opinion evidence, he does not contend that the RFC is too restrictive. In short,
the record evidence and prior administrative findings establish that Plaintiff’s functional capacity
was significantly limited during the period under consideration.
Furthermore, there can be no reasonable dispute that the Commissioner failed to carry his
burden at Step Five of the sequential analysis. See Colvin v. Berryhill, 734 F. App’x 756, 758 (2d
Cir. 2018) (summary order) (explaining the five-step inquiry and noting that “the Commissioner
bears the burden at step five”). At Step Five, the Commissioner must establish that the claimant
“can perform work that exists in significant numbers in the national economy.” Crespo v.
O’Malley, No. 22-CV-954, 2024 WL 1255431, at *7 (S.D.N.Y. Mar. 25, 2024). “Under the
prevailing law of courts within the Second Circuit, a ‘significant number’ of jobs is fairly minimal.
[N]umbers between 9,000 and 10,000 jobs have typically been found to be sufficiently significant
to meet the Commissioner’s burden.” Sean Michael S. v. Comm’r of Soc. Sec., No. 20-CV-942,
2021 WL 5918922, at *11 (N.D.N.Y. Dec. 15, 2021) (internal quotation marks and citations
omitted).
Here, the Commissioner was unable to carry this minimal burden. The ALJ determined
that, in light of his restrictive RFC, Plaintiff could perform representative occupations of
“addresser” (2,092 jobs nationwide), “call out operator” (2,708 jobs nationwide), and “document
preparer” (17,083 jobs nationwide). Tr. 1589. As Plaintiff points out, however, the occupations
of “addresser” and “document preparer” are manifestly obsolete. ECF No. 8-1 at 18-23. The
former “refers to literally addressing items for mailing by hand or typewriter,” while the latter
“refers to preparing documents for microfilm.” Pamela H. v. Kijakazi, No. 20-CV-304, 2021 WL
4307457, at *6 (N.D.N.Y. Sept. 22, 2021) (emphasis omitted) (finding the descriptions of those
occupations “comically out of date”).
It was patently unreasonable for the ALJ to rely on these jobs to conclude that Plaintiff
could perform work that exists in significant numbers in the national economy. The Commissioner
cannot reasonably dispute this, since the SSA itself recently directed adjudicators to refrain from
relying on these occupations without additional evidentiary support from a vocational expert. See
Melanie V. v. Comm’r of Soc. Sec., No. 23-CV-973, 2024 WL 3337924, at *5 (W.D.N.Y. July 9,
2024) (discussing the SSA’s “Emergency Message,” dated June 22, 2024, regarding obsolete
occupations).
Therefore, those jobs must be excluded in deciding whether a “significant” number of jobs
exist that Plaintiff can perform. That leaves only the occupation of “call out operator,” of which
there are 2,708 jobs nationwide. See Tr. 1589. Because this does not come close to “9,000 [or]
10,000 jobs,” the Commissioner failed to “meet the [his] burden” at Step Five. Sean Michael S.,
2021 WL 5918922, at *11.
Thus, remand is warranted on this basis, in addition to the Commissioner’s confessed errors
relating to the opinion evidence. See, e.g., Spellman v. Comm’r of Soc. Sec., No. 21-CV-5842,
2023 WL 5350845, at *12 (E.D.N.Y. Aug. 21, 2023) (collecting cases). Standing alone, remand
for the calculation of benefits may be justified where the Commissioner fails to meet his Step-Five
burden. See, e.g., Torres v. Colvin, No. 16-CV-809, 2017 WL 1734020, at *3 (D. Conn. May 3,
2017) (“The Second Circuit has consistently emphasized the importance of the Commissioner’s
burden to support her step-five determination with substantial evidence, and has held that a reversal
with a remand only to calculate damages is warranted when the ALJ has failed to meet that
burden.”); Jose G. v. Kijakazi, No. 21-CV-1434, 2022 WL 3593702, at *4 (D. Conn. Aug. 23,
2022) (“When the claimant meets his burden at Steps One through Four, but the Commissioner
fails to meet her burden at Step Five, she should not lightly be given another opportunity to do
so.”).
Yet the Commissioner opposes that relief and asserts that further proceedings could serve
a meaningful purpose. He suggests, without elaboration, that a vocational expert “may well be
able to identify other examples” of occupations that Plaintiff could perform if given the
opportunity on remand. ECF No. 14-1 at 7. And he speculates that the ALJ might fashion a
different RFC on remand, “which could also result in finding that Plaintiff could perform other
occupations.” Id.
The Court declines to remand for further proceedings on such vague assurances. Plaintiff’s
applications have been pending for over fifteen years, a staggering amount of time even accounting
for the “painfully slow process by which disability determinations are [ordinarily] made.” Butts
v. Barnhart, 388 F.3d 377, 387 (2d Cir. 2004). It is all the more astonishing that, through five
district-court appeals, the Commissioner has never defended any of his final decisions. While
“delay alone is an insufficient basis on which to remand for benefits,” Bush v. Shalala, 94 F.3d 40,
46 (2d Cir. 1996), the Commissioner “is not entitled to adjudicate a case ad infinitum until [he]
correctly applies the proper legal standard and gathers evidence to support [his] conclusion.” Sisco
v. U.S. Dep’t of Health & Hum. Servs., 10 F.3d 739, 746 (10th Cir. 1993) (internal quotation marks
omitted). In light of the Commissioner’s prolonged, repeated, and acknowledged failure to
properly adjudicate Plaintiff’s applications, and his most recent failure to carry his burden at Step
Five, remand for further proceedings would not only “serve no purpose,” Demars, 841 F. App’x
at 263, it would be “worse than purposeless.” Maher v. Bowen, 648 F. Supp. 1199, 1203 (S.D.N.Y.
1986). This matter is remanded solely for the calculation of benefits.
CONCLUSION
For all of the reasons stated, Plaintiff's Motion for Judgment on the Pleadings (ECF No. 8)
is GRANTED, and the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14) is
DENIED. The Commissioner’s decision is REVERSED and this matter is REMANDED to the
Commissioner solely for calculation and payment of benefits. The Clerk of Court is directed to
enter judgment and close this case.
IT IS SO ORDERED.
Dated: October 11, 2024
Rochester, New York
United States District Kidge
Western District of New York