Opinion
1:21-cv-09554-LGS-GRJ
10-23-2022
JUAN C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE
In May of 2019, Plaintiff Juan C.applied for Supplemental Security Income Benefits and Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by Pasternack Tiller Ziegler Walsh Stanton & Romano, LLP, Christopher D. Latham, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on August 18, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket Nos. 14, 16). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on May 29, 2019, alleging disability beginning February 8, 2019. (T at 199, 203).Plaintiff's applications were denied initially and on reconsideration. He requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on July 16, 2020, before ALJ Lori Romeo. (T at 37). The hearing was adjourned to allow Plaintiff to obtain an attorney and provide additional records. (T at 37-48). A further hearing was held before the same ALJ on September 10, 2020. (T at 1). Plaintiff appeared with an attorney and testified with the assistance of an interpreter. (T at 9-24). The ALJ also received testimony from Warren Maxim, a vocational expert. (T at 24-34).
Citations to “T” refer to the administrative record transcript at Docket No. 8.
B. ALJ's Decision
On February 19, 2021, the ALJ issued a decision denying the applications for benefits. (T at 594-614). The ALJ found that Plaintiff meets the insurance status requirements of the Social Security Act through March 31, 2024, and had not engaged in substantial gainful activity since February 8, 2019 (the alleged onset date). (T at 602).
The ALJ concluded that Plaintiff's seizures, depressive disorder, and anxiety disorder were severe impairments as defined under the Act. (T at 602). At step three of the sequential analysis the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 603).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform medium work, as defined in 20 CFR 404.1567(c), except that he should not work at heights, ladders, or with dangerous moving machinery; is limited to unskilled tasks in which he would not have to work with the public, and he would need a slow introduction to workplace changes. (T at 605).
The ALJ then concluded that Plaintiff could perform his past relevant work as a production helper. (T at 609). In addition, and in the alternative, considering Plaintiff's age (61 on the alleged onset date), education (at least high school), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 610). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between February 8, 2019 (the alleged onset date) and February 19, 2021 (the date of the ALJ's decision). (T at 610).
On September 15, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 586-93).
C. Procedural History
Plaintiff, by and through counsel, commenced this action by filing a Complaint on November 18, 2021. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on June 6, 2022. (Docket No. 14, 15). The Commissioner interposed an opposing motion for judgment on the pleadings, supported by a memorandum of law, on August 5, 2022. (Docket No. 16, 17). The matter was assigned to the undersigned for a report and recommendation on August 18, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises one main argument in support of his challenge to the ALJ's decision. Plaintiff argues that the ALJ's reliance on the vocational expert's testimony at steps four and five of the sequential evaluation was improper.
A. Vocational Expert Testimony
As discussed above, the ALJ found that Plaintiff retained the RFC to perform a limited range of medium work. (T at 605). In pertinent part, the ALJ concluded that Plaintiff was limited to work that did not involve “dangerous moving machinery.” (T at 605).
At step four of the sequential evaluation, the ALJ determined that Plaintiff retained the RFC to perform his past relevant work as a “production helper.” (T at 609). The ALJ also completed step five of the sequential evaluation, finding that Plaintiff could perform other work that existed in significant numbers in the national economy, citing the representative occupation of “laborer, salvage” as work Plaintiff could perform. (T at 610).
In both instances, the ALJ relied on the testimony of the vocational expert, who opined that an individual with limitations consistent with Plaintiff's RFC could perform the past relevant work and representative occupation. (T at 28, 34, 609-610).
Plaintiff challenges the ALJ's conclusion, arguing that the ALJ failed to resolve conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”).
The Social Security Administration has taken administrative notice of the DOT, which is published by the Department of Labor and provides detailed descriptions of the requirements for a variety of jobs. See 20 CFR § 416.966 (d)(1).
Social Security Ruling 00-4p provides that when a vocational expert testifies regarding job requirements, the ALJ has “an affirmative responsibility to ask about any possible conflict between that [testimony] and information provided in the DOT ....” SSR 00-4p.
If there appears to be a conflict between the DOT and the vocational expert's testimony, the DOT is “so valued” that the ALJ is obliged to obtain a “reasonable explanation” for the conflict. Brault v. SSA, 683 F.3d 443, 446 (2d Cir. 2012)(citing SSR 004-p); see also Lockwood v. Comm'r of SSA, 914 F.3d 87, 91 (2d Cir. 2019).
Here, the DOT description for production helper (which the ALJ identified as Plaintiff's past relevant work) provides that the position requires working with several machines that might reasonably be characterized as dangerous - including “machine hoppers,” “grinding and mixing machines,” “packing machines,” and “conveyor belts.” DOT 529.686-070.
The DOT description for “laborer, salvage” (which the ALJ identified as a representative occupation that Plaintiff could perform) likewise references work with machines that might be considered dangerous -“scrap gondolas,” “industrial truck,” “machine tank.” DOT 929.687-022.
Plaintiff argues that the DOT descriptions for the past relevant work and representative occupation conflict with the vocational expert's testimony that a hypothetical claimant with Plaintiff's RFC (including a limitation against work involving dangerous machinery) could perform the positions.
The Commissioner contends there is no conflict because the DOT is silent as to whether the identified positions involve working with dangerous machinery.
Although the DOT does not expressly characterize the machines identified above as “dangerous,” the descriptions nevertheless show that the positions involve working with machines that a reasonable person might consider dangerous.
This is precisely the sort of conflict the Second Circuit has found the ALJ obliged to recognize and resolve with the vocational expert. See Lockwood, 914 F.3d at 92 (“In other words, the Ruling requires the Commissioner to ‘obtain a reasonable explanation' for any ‘apparent ‘- even if non-obvious-conflict between the Dictionary and a vocational expert's testimony.”)(quoting SSR 00-4p).
The ALJ asked the vocational expert generally whether his testimony was consistent with the DOT and the expert responded in the affirmative. (T at 31-32). The ALJ also inquired as to whether there were any limitations in the RFC not contained in the DOT that would preclude performance of the past relevant work; the vocational expert responded: “I don't believe so, Your Honor.” (T at 32). Notably, the ALJ did not ask any such questions regarding the laborer, salvage position. (T at 34).
As a matter of law, the ALJ's “catch-all” questions to the vocational expert regarding the past relevant work did not satisfy the Commissioner's “‘duty to identify, explain and resolve' apparent conflicts onto the testifying expert.” Lockwood, 914 F.3d at 94 (quoting Patti v. Colvin, No. 13-CV-1123, 2015 WL 114046, at *6 (W.D.N.Y. Jan. 8, 2015)). There was no discussion of the machinery identified in the DOT description and no testimony from the vocational expert sufficient to elicit an explanation as to the basis upon which he concluded that a person precluded from working with dangerous machinery could nevertheless perform these occupations.
The Commissioner's reliance on these “catch-all” questions, therefore, fails. Further, to the extent the Commissioner invites the assumption that the identified machines might not be “dangerous” because they are not expressly described as such in the DOT, the Commissioner's position is at odds with Lockwood. See 914 F.3d at 94 (“While the Dictionary'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.”).
“The importance of teasing out such details is precisely why the Commissioner bears an ‘affirmative responsibility' to ask about ‘any possible conflict between [vocational expert] evidence and information provided in the [DOT].'” Id. (quoting SSR 00-4p, 2000 WL 1898704, at *4 (emphasis in original). “Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflicts in fact exist.” Id.
For the foregoing reasons, the Court concludes that the ALJ's step four and step five analysis should be revisited on remand after further development of the record to address the conflict between the vocational expert's testimony and the DOT.
B. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here 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); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies in the ALJ's analysis related to Plaintiff's ability to perform his past relevant work and/or other work that exists in significant numbers in the national economy, it is recommended that this case should be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 14) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 16) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).