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Haskins v. Commissioner of Social Security

November 25, 2008

MICHAEL HASKINS, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Michael Haskins ("plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of a decision made by the Commissioner of the Social Security Administration (the "Commissioner") to deny him Disability Insurance Benefits ("benefits"). United States Magistrate Judge Randolph F. Treece (the "Magistrate Judge") issued a Report-Recommendation to affirm the Commissioner's decision. Plaintiff objects to the Magistrate Judge's recommendation.

Plaintiff raises a number of arguments in support of his objection to the Magistrate Judge's recommendation. First, plaintiff contends the Administrative Law Judge (the "ALJ") who evaluated his initial application for benefits improperly relied upon testimony from the Vocational Expert (the "VE") because he failed to ask the VE to resolve the inconsistency between her testimony and the Dictionary of Occupational Titles (the "DOT"). Second, plaintiff argues that the VE's testimony with regard to plaintiff's ability to work as a "surveillance system monitor" was unreliable because of substantial changes to surveillance systems since the DOT entry was last updated. Third, plaintiff submits that the VE was not qualified to testify as an expert because her qualifications were not stated on the record for the administrative hearing. The Magistrate Judge's Report-Recommendation is reviewed de novo pursuant to 28 U.S.C. § 636(b)(1).

II. BACKGROUND

Plaintiff claims a disability due to bilateral carpal and cubital tunnel syndrome. On October 8, 2002, plaintiff applied for benefits with the Social Security Administration. Plaintiff's application was denied, and a hearing was held on May 14, 2004, before ALJ Craig DeBernardis to evaluate the denial of plaintiff's application. The ALJ found that plaintiff was not disabled because there were a significant number of jobs existing in the national and regional economies of which he was capable of performing. The Appeals Council denied plaintiff's request for review on May 28, 2004, thereby exhausting all available administrative remedies. On March 7, 2005, plaintiff challenged the denial of benefits made by the Commissioner. On September 11, 2008, the Magistrate Judge recommended that the Commissioner's decision to deny plaintiff benefits be affirmed.

III. DISCUSSION

A. Eligibility for Disability Benefits

Disability benefits claimants must show 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). A claimant's ability to perform some kind of substantial gainful work is not necessarily fatal to his application for benefits, however. See 42 U.S.C. § 423(d)(2)(A). Rather, the gainful work must also exist "in significant numbers either in the region where such individual lives or in several regions of the country." Id. Upon evaluation of the Commissioner's determinations, the ALJ must evaluate whether substantial evidence supports the Commisioner's findings. See Rivera v. Sullivan, 923 F.2d 954, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)).

B. Objection to the Magistrate Judge's Report-Recommendation

Pursuant to 28 U.S.C. § 636(b)(1), "a judge of the court shall make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendation to which objection is made." 28 U.S.C. § 636(b)(1). Plaintiff's objections to the Magistrate Judge's Report-Recommendation are limited to three specific areas: (1) the determination that the ALJ's reliance on the erroneous portions of the VE's testimony was harmless error; (2) the finding that the ALJ properly concluded plaintiff was not disabled because there were a sufficient number of employment opportunities he was capable of performing; and (3) the determination that the VE was properly qualified as an expert witness.

1. The Erroneous Portions of the VE's Testimony

Plaintiff argues the VE incorrectly classified the jobs of information clerk and storage clerk as sedentary work contrary to the DOT's classification of such jobs as light work. The DOT serves as a reference guide for the "tasks to be performed and the levels of education that must be achieved" for various occupations within the American workforce. See United States Dep't of Labor, Dictionary of Occupational Titles, Preferatory Note (4th ed. 1991). Plaintiff takes issue with the ALJ's failure to inquire whether the VE's opinion was in conflict with the DOT, and if so, to ask for a reasonable explanation for the conflict. See Social Security Ruling ("SSR") 00-4p, 2000 WL 1898704, at *4 (S.S.A. 2000) (establishing an affirmative duty for the ALJ to ask the VE if she has provided evidence in conflict with the DOT and to obtain a reasonable explanation for any inconsistency).

The Magistrate Judge agreed that the VE's testimony with respect to the jobs of information clerk and storage clerk were indeed inconsistent with the DOT. Further, pursuant to SSR 00-4p, the ALJ must inquire with the VE and resolve such an inconsistency in order to rely upon the VE's classification despite the contrary classification in the DOT. As a result, the Magistrate Judge determined the ALJ was not entitled to rely on these classifications. Some portions of the VE's testimony were consistent with the DOT, however, including the VE's classification of surveillance system monitor as sedentary work. Notably, plaintiff does not challenge the VE's classification of the surveillance system monitor job. ...


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