Summary
ordering remand where the "ALJ relies on the existence of 'document preparer' jobs in the national economy [because] the vocational expert dubiously opined that 35,000 such positions await those who care to plunge into production of microfilmed records"
Summary of this case from Wagner v. Comm'r of Soc. Sec.Opinion
20-CV-0078 (GRB)
2021-03-11
Kenneth Thomas KIIROJA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Jonathan R. Klee, Klee, Woolf, Goldman & Filpi, L.L.P., Mineola, NY, for Plaintiff. Anne M. Zeigler, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, Social Security Administration, for Defendant.
Jonathan R. Klee, Klee, Woolf, Goldman & Filpi, L.L.P., Mineola, NY, for Plaintiff.
Anne M. Zeigler, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, Social Security Administration, for Defendant.
MEMORANDUM OF DECISION & ORDER
GARY R. BROWN, United States District Judge:
In this appeal brought pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the "Act"), Plaintiff Kenneth Thomas Kiiroja (the "Plaintiff" or the "Claimant"), challenges final determinations by the Commissioner of the Social Security Administration (the "Defendant" or the "Commissioner") that Claimant was ineligible to receive Social Security disability insurance benefits. Presently before the Court are the parties’ cross motions, pursuant to Fed. R. Civ. P. 12(c), for judgment on the pleadings. DE 19, 20. Because, once again, the Commissioner inappropriately considered vocational evidence that is fundamentally unreliable, and the ALJ misapplied the standards relating to such evidence, Defendant's motion is denied, while Plaintiff's motion is granted and the matter is remanded for further proceedings.
In its review, the Court has applied the frequently reiterated standards for entitlement to Social Security disability benefits, review of a denial of such benefits, consideration of motions for judgment on the pleadings, examination of the procedures employed, the substantial evidence rule and deference accorded to ALJ decisions, evaluation of vocational evidence and, importantly in this case, the treating physician rule. These standards, along with numerous authorities and citations, are discussed at length, merely by way of example, in Zacharopoulos v. Saul , No. 19-5075 (GRB), ––– F.Supp.3d ––––, 2021 WL 235630 (E.D.N.Y. Jan. 25, 2021), which discussion is hereby incorporated by reference.
But Zacharopoulos has greater bearing on this case than just a citation to the general legal standards. Once again, the ALJ relies on the existence of "document preparer" jobs in the national economy – specifically, in this case, the vocational expert dubiously opined that 35,000 such positions await those who care to plunge into production of microfilmed records. Administrative Transcript, Docket Entry, ("DE") 12 at 25-26, 54-62. This Court has addressed this question in two written opinions, and courts across the country have reviewed testimony of the number of these analog positions in the modern, digital economy, with estimates ranging from 10,000 to 2.8 million. See Zacharopoulos, ––– F.Supp.3d at ––––, 2021 WL 235630 at *9 (collecting decisions); Feuer v. Saul , No. CV 16-5732 (ADS) (GRB), 2019 WL 9042872, at *1 (E.D.N.Y. Aug. 30, 2019), adopted by , 2020 WL 1316528 (E.D.N.Y. Mar. 20, 2020). Once again, the Court finds that the position relied upon is obsolete, and again rejects the ALJ's "unblinking acceptance of conclusory opinions by [the] vocational expert." Zacharopoulos, ––– F.Supp.3d at ––––, 2021 WL 235630 at *11.
In addition to the specific reliance on this position, Plaintiff's counsel has correctly identified incorrect analysis of the vocational testimony by the ALJ. See DE 19 at 24-25; see also Plaintiff's Statement of Contentions, DE 19-2 at ¶ 3. Indeed, the Government concedes that the Claimant could not perform several of the occupations identified by the ALJ given the Claimant's limitations. See Defendant's Opposing Statement of Contentions, DE 20-2 at ¶ 3. Alas, document preparer was not among the positions so excluded.
At the same time, the Court has reviewed the assertions of Plaintiff's counsel concerning the ALJ's consideration of the medical evidence. Particularly in light of the paucity of contrary evidence from treating sources, the ALJ's reliance upon the consulting examiner was not misplaced. Thus, as to the medical findings, the ALJ's decision appears supported by substantial evidence.
Based on the foregoing, Plaintiff's motion to remand this matter for further proceedings consistent with this decision is granted, and the Commissioner's motion is denied.