United States District Court, S.D. New York
October 21, 2004.
FELIX VALENTIN, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Felix Valentin ("Valentin") brings this action for
review of the final determination by the Commissioner of Social
Security (the "Commissioner") denying Valentin's claims for
Supplemental Security Income ("SSI") benefits under the Social
Security Act (the "Act"), 42 U.S.C. § 405(g) ("§ 405(g)"). The
Commissioner moves for judgment on the pleadings on the grounds
that the determination of the Administrative Law Judge ("ALJ") is
supported by substantial evidence. Valentin opposes the motion
and requests a remand for further administrative proceedings. For
the reasons discussed below, the Court denies the Commissioner's
motion and remands the case to the Commissioner for further
On June 17, 1998, Valentin applied for disability insurance and SSI benefits. His claim was denied initially and on
reconsideration. He then requested a hearing before an ALJ, which
took place on May 24, 2001. At the hearing, Valentin withdrew his
request for disability insurance benefits.
The vocational expert in this case (the "VE") testified at the
hearing that Valentin's previous employment in Puerto Rico
required a heavy level of physical exertion and that his most
recent job as a janitor at McDonald's required only a medium
level of physical exertion. The medical evidence in the record
and testimony from the hearing describe Valentin's history of
treatment from January 1998 to May 2001 for diabetes, mild
hypertension, and various aches and pains. The record reflects
diagnoses from Valentin's treating physicians and the
Commissioner's consulting physicians. The medical reports reveal
similar findings, namely diabetes, mild hypertension, and various
limitations to his ability to perform work-related activities.
On July 26, 2001, the ALJ denied Valentin's SSI application.
The ALJ based his decision on the VE's testimony that Valentin's
McDonald's job required only a medium level of physical exertion.
The ALJ concluded that Valentin had the residual functional capacity ("RFC")*fn2 to perform his past
work at a medium level of physical exertion. (See Rec. at
18-19.) The ALJ's decision became the final decision of the
Commissioner on June 25, 2003.
A. STANDARD OF REVIEW
Under the Act, "the [federal district] court shall have the
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying or reversing the decision of the
[Commissioner], with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g). The Court's scope of review of a
disability determination entails a two-step inquiry. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1988); Johnson v.
Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the Court must
decide "whether [the agency] applied the correct legal principles
in making the determination," and second, "whether the
determination is supported by `substantial evidence.'" Johnson,
817 F.2d at 985 (quoting 41 U.S.C. § 405(g)).
Under the second prong of this test, "the term `substantial'
does not require that the evidence be overwhelming, but it must be `more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Miller v. Barhart, 01 Civ.
2744, 2004 WL 1304050, at *5 (S.D.N.Y. May 6, 2004) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the Court
finds substantial evidence in the record, "the Commissioner's
determination of fact is conclusive," even where the reviewing
court disagrees. Gonzalez ex rel. Gonzalez v. Barnhart, 03 Civ.
6607, 2004 WL 1460634, at *2 (S.D.N.Y. June 28, 2004); see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)
("We would be derelict in our duties if we simply paid lip
service to . . . [the substantial evidence] rule, while shaping
our holding to conform to our own interpretation of the
evidence.") (citation omitted). Thus, the reviewing court is
precluded from undertaking a de novo review. See Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
B. DISABILITY DETERMINATIONS
The Act defines disability as an "inability 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). The effect of the physical or
mental impairment must be
of such severity that [the claimant] is not only
unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
Id. § 423 (d)(2)(A).
The Social Security Administration has established a five-step
procedure for evaluating disability claims. See
20 C.F.R. § 404.1520(a)(4). A finding of no disability at any one step ends
the inquiry without proceeding to the sequential step. See
id. First, the ALJ asks whether the claimant is currently
engaged in substantial gainful activity. If not, at step two, the
ALJ determines whether the claimant has a "severe impairment"
that significantly limits his physical or mental ability to
perform basic work activities. Third, if the claimant suffers a
"severe impairment" that is listed in Appendix 1 of the
regulations,*fn3 there is a presumption of disability.
Fourth, if the claimant's "severe impairment" is not listed in
Appendix 1, the ALJ determines whether the claimant has the RFC
to perform previous work the claimant performed. Finally, at step
five, if the claimant is unable to perform past relevant work, or has no previous work history,
the ALJ ascertains whether there is other work that the claimant
is capable of performing in light of the RFC. See id.; see
also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam)); Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y.
The burden lies with the claimant to prove the requirements of
the first four steps, but shifts to the Commissioner at step
five. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996);
Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981).
There is no dispute between the parties as to the first three
steps of the ALJ's disability determination. With respect to the
fourth step, whether Valentin has the RFC to perform his past
work, the VE testified at Valentin's hearing that all of
Valentin's work experience prior to his job at McDonald's was
classified under "heavy" physical exertion. However, the VE then
classified Valentin's janitorial position at McDonald's as
requiring only a "medium" level of physical exertion relying on
the description of "Cleaner" under the Dictionary of Occupational
Titles ("DOT") code of 381.687-014. (See Rec. at 56.) Contrary
to the VE's testimony, however, the DOT classifies "Cleaner" in a restaurant, including fast
food-type restaurants like McDonald's, into a category of "heavy"
physical exertion. (See DOT Code 381.687-014, available at
http://www.oalj.dol.gov/public/dot/refrnc/dot03b.htm.) In denying
Valentin's claim, the ALJ noted that Valentin's "combination of
`severe' impairments does preclude him from performing" the work
he did prior to McDonald's because those jobs were "at the heavy
exertional level." (Rec. at 18.) However, the ALJ considered the
"medium" standard to which the VE erroneously testified in
finding that Valentin is able to perform his past janitorial
work. (Id.) Thus, the Court agrees with Valentin that the ALJ's
determination that Valentin is able to return to past work as a
janitor was premised on the mischaracterization of Valentin's
work as requiring only "medium" physical exertion.
In this regard, the instant case is not unlike Mimms v.
Heckler, 750 F.2d 180 (2d Cir. 1984), where there was a direct
and unexplained contradiction between a DOT classification and
the vocational expert's testimony, apparently resulting from
human error. In Mimms, the vocational expert testified before
an ALJ that the claimant could perform sedentary work, but then
identified jobs that would have required the claimant to perform
light work. The Second Circuit held that the Commissioner had
failed to demonstrate the existence of substantial sedentary employment opportunities and remanded the
case for further proceedings. See id. at 186. The same result
is warranted here.
The Court is persuaded that the erroneous testimony by the VE
in this case invalidates the ALJ's finding that Valentin would be
able to perform his past work under the fourth step of the
sequential evaluation procedure for disability claims.*fn4
Having made this finding, the ALJ never performed the fifth and
final step by applying the medical evidence to the universe of
jobs available in the economy in order to determine whether there
is other work which Valentin could perform. Accordingly, the
Court denies the Commissioner's motion for judgment on the
pleading and remands this case to the Commissioner for further
consideration. On remand, the ALJ should consider whether the
record, and in particular the medical evidence therein, supports
a finding that Valentin can return to his past work under the proper DOT
standard. If the ALJ finds that Valentin cannot return to such
work, the ALJ must then apply the fifth and final step of the
sequential evaluation procedure as discussed above.
For the stated reasons, it is hereby
ORDERED that the motion of defendant Jo Anne B. Barnhart,
Commissioner of Social Security ("Commissioner"), for judgment on
the pleadings is DENIED; and it is further
ORDERED that the Commissioner's denial of plaintiff Felix
Valentin's claim for Social Security benefits is vacated and the
claim is remanded for additional administrative proceedings. This
remand is ordered pursuant to sentence four of
42 U.S.C. § 405(g). Accordingly, the Clerk of Court is directed to enter a
final judgment remanding the case. This Court retains
jurisdiction over this case for the purposes of enforcement of
this Order in connection with any future proceedings related to
The Clerk of Court is directed to close this case.