May 23, 2013
GEORGETTE LONG, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Lachman, Gorton Law Firm PETER A. GORTON, ESQ., Endicott, New York, for the Plaintiff.
Social Security Administration Office of Regional General Counsel DAVID L. BROWN, ESQ., NOAH M. SCHABACKER, ESQ., Region II, New York, New York, for the Defendant.
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Earl S. Hines, duly filed May 23, 2013. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED that the Report-Recommendation of Magistrate Judge Earl S. Hines filed May 23, 2013 is ACCEPTED in its entirety for the reasons state therein; and it is further
ORDERED that the Commissioner's decision be REVERSED and the case REMANDED pursuant to 42 U.S.C. § 405(g), sentence four, for receipt of evidence regarding the extent that Long's nonexertional environmental limitation further diminishes her occupational base and to guard against necessity for further actions seeking judicial review, the court requests the Commissioner, upon remand, to review his decision in light of all other errors Long asserts in this action; and it is further
ORDERED, that the Clerk of the Court is to mail copies of the Order to the parties in accordance with the court's local rules.
IT IS SO ORDERED.
Georgette Long ("Long") brings this action under 42 U.S.C. § 405(g), seeking review of an adverse decision on her application for disability-based Supplemental Security Income benefits under the Social Security Act. Complying with General Order # 18 (Dkt. No. 3), the parties join issues through competing briefs.
A reviewing court's limited role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1503 (2010); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. § 405(g). Reviewing courts cannot retry factual issues de novo or substitute their interpretations of administrative records for that of the Commissioner when the record contains substantial support for the decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Neither can reviewing courts overturn the Commissioner's administrative rulings because they would have reached a different conclusion had the matter come before them in the first instance. See Campbell v. Astrue, 465 Fed.App'x 4, 5 (2d Cir. 2012).
Long's application claimed disability due to degenerative disc disease and depression. (T. 12, 84-87, 99). Administrative law judge, John P. Ramos ("ALJ Ramos"), conducted a video conference evidentiary hearing, and eventually issued a written decision denying Long's application. (T. 12-20). After unsuccessfully requesting Appeals Council review, Long timely instituted this proceeding. (Dkt. No. 1).
II. Commissioner's Decision
ALJ Ramos utilized a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just way for determining disability applications in conformity with the Social Security Act. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461 (1983)). A full discussion of the Commissioner's five-step process is contained in Christiana v. Commissioner of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
ALJ Ramos determined that Long has several severe impairments, including degenerative disc disease of the lumbar spine, asthma, depression, adjustment disorder with depressed mood, and bereavement. (T. 14). These impairments reduce Long's ability to perform work-related activities to the "sedentary" exertional level. Even at that diminished level, Long cannot perform a full range of sedentary work. One limitation at that exertional level is that she should avoid exposure to respiratory irritants. (T. 16).
ALJ Ramos found that Long has moderate difficulties with regard to concentration, persistence or pace. (T. 15). He did not, however, impose any limitations on Long's mental residual functional capacity arising from such difficulties. Rather, he found that Long retains ability to understand and follow simple and complex instructions and directions. (T. 16). She can perform simple and complex tasks with both supervision and independently. Id. She also can maintain attention and/or concentration for tasks, regularly attend to a routine, maintain schedule, relate to and interact appropriately with others, and handle reasonable levels of work related stress. Id.
Under the sequential evaluation process, Long proved a prima facie case of disability. Thus, she was eligible for benefits unless, at Step 5, ALJ Ramos determined, after considering Long's age, education, work experience, and residual functional capacity, that jobs exist in significant numbers in the national economy that Long can perform. Relying on Medical-Vocational Rule 201.24, ALJ Ramos determined that such jobs exist, and that a conclusion of "not disabled" is appropriate under the framework of that rule. (T. 20).
III. Points of Error
Long's brief identifies three "Issues Presented." Including subparts, these issues allege four distinct errors. The only point addressed in this report is the first one, which argues that ALJ Ramos erred in relying on Medical-Vocational Rule 201.24. Long argues that testimony from a vocational expert was necessary to find that jobs exist in significant numbers that Long can perform, and lack of such testimony deprives the finding of substantial evidentiary support.
A. Evidence Supporting Step 5 Findings
1. Conventional Sources
Generally, at Step 5, the Commissioner elicits or consults two principal sources of evidence relevant to whether claimants can perform alternative, available work. Witnesses qualified as "Vocational Experts" may testify as to whether jobs exist for a person with the claimant's precise abilities. See 20 C.F.R. § 416.966(e); see also SSR 00-4p, POLICY INTERPRETATION RULING: TITLES II AND XVI: USE OF VOCATIONAL EXPERT AND VOCATIONAL SPECIALIST EVIDENCE, AND OTHER RELIABLE OCCUPATIONAL INFORMATION IN DISABILITY DECISIONS, 2000 WL 1898704, at *1-2 (SSA Dec. 4, 2000). Second, a United States Department of Labor publication titled Dictionary of Occupational Titles ("DOT") may assist determinations that a claimant's residual work skills can be used in other work, and the specific occupations in which they can be used. See 20 C.F.R. § 416.966(d)(1); see also SSR 00-4p, 2000 WL 1898704, at *1-2. Both evidentiary sources can provide substantial evidence supporting the Commissioner's Step 5 determination. See Canton v. Astrue, No. 08-CV-3038 (NGG)(JO), 2010 WL 5391184, at *6 (E.D.N.Y. Dec. 22, 2010) (reliance on Dictionary of Occupational Titles ); Fox v. Commissioner of Soc. Sec., No. 6:02-CV-1160 (FJS/RFT), 2009 WL 367628, *15 (N.D.N.Y. Feb. 13, 2009) (administrative law judge may utilize services of a vocational expert).
2. Administrative Notice
In limited circumstances, the Commissioner can consult " Medical Vocational Guidelines, " commonly called "the grids." Roma v. Astrue, 468 Fed.App'x 16, 20-21 (2d Cir. 2012); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986) ; see also 20 C.F.R. Pt. 404, Subpt. P, App. 2. The grids are a matrix of general findings - established by rule - as to whether work exists in the national economy that a person can perform. "The grids take into account a claimant's RFC, as well as her age, education, and work experience." Calabrese v. Astrue, 358 Fed.App'x 274, 276 & n. 1 (2d Cir. 2009) (citing Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999)). Ultimately, the grids yield a decision of "disabled" or "not disabled." Zorilla v. Chater, 915 F.Supp. 662, 667 & n. 2 (S.D.N.Y. 1996) (citing 20 C.F.R. § 404.1567(a)).
The Commissioner's Step 5 burden can be met by consulting the grids ( i.e., without eliciting vocational expert testimony or equivalent evidence) only when a claimant's impairments are purely exertional in nature. When an administrative law judge's findings of residual functional capacity, age, education, and previous work experience coincide with the grids, the Commissioner may directly apply the grids to determine whether work exists in the national economy which claimants can perform. See Martin v. Astrue, 337 Fed.App'x 87, 91 (2d Cir. 2009); see also 20 C.F.R. Part 404, Subpart P, Appendix 2; see also Thompson v. Barnhart, 75 Fed.App'x 842, 844 (2d Cir. 2003) (Commissioner can meet Step 5 burden "by resorting to the applicable medical vocational guidelines (the grids)"). When direct application of the grids is appropriate, the grids alone constitute substantial evidence sufficient to uphold a Commissioner's decision. See Clark v. Sullivan, 891 F.2d 175, 179 (7th Cir. 1989).
3. The "Framework Exception"
The grids fail to take into account nonexertional impairments. See Bapp, 802 F.2d at 605. When claimants' nonexertional impairments significantly diminish their ability to work, the grids, alone, do not accurately determine disability status. See Calabrese, 358 Fed.App'x at 276-77. Consequently, the grids cannot be applied directly to determine whether work exists in the national economy which claimants can perform. Rosa, 168 F.3d at 78, 82; Bapp, 802 F.2d at 605-06.
Although the grids cannot be applied directly in such instances, they are not necessarily a bursting bubble. The Commissioner's regulation permits administrative law judges to consult Medical-Vocational Guidelines as a "framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by... nonexertional limitations." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(2). Thus, the grids can remain in a case and continue to carry significant evidentiary weight.
Two Social Security rulings address this "framework" analysis. See SSR 85-15, TITLES II AND XVI: CAPABILITY TO DO OTHER WORK - THE MEDICAL-VOCATIONAL RULES AS A FRAMEWORK FOR EVALUATING SOLELY NONEXERTIONAL IMPAIRMENTS, 1985 WL 56857, at *3 (SSA 1985); see also SSR 83-14, TITLES II AND XVI: CAPABILITY TO DO OTHER WORK - THE MEDICAL-VOCATIONAL RULES AS A FRAMEWORK FOR EVALUATING A COMBINATION OF EXERTIONAL AND NONEXERTIONAL IMPAIRMENTS, 1983 WL 31254, at **2, 4 (SSA 1983). They direct that when a claimant has both exertional and nonexertional impairments, an administrative law judge should first consult the grids, along with consideration of the claimant's RFC and vocational factors, to determine the extent of impairment caused by exertional limitations. When the degree of impairment caused by an exertional impairment, alone, is such that a claimant is deemed disabled under a grid rule, the inquiry ceases, and benefits are awarded.
If exertional impairments are not that debilitating, an administrative judge should next determine how much a claimant's "occupational base, " (the entire exertional span from sedentary work through heavy work), is further reduced by effects of nonexertional impairments. When claimants can be expected to make vocational adjustments, and, despite all impairments, still have a large potential occupational base, they ordinarily will not be found disabled under a "framework" analysis. Id. This erosion-of-occupational-base analysis generally contemplates at least some evidence in addition to the grids. See Bapp, 802 F.2d at 606 (when nonexertional limitations significantly diminish a claimant's ability to perform the full range of work, testimony of either a vocational expert or other similar evidence regarding the existence of jobs in the national economy for an individual with claimant's limitations is required); Rosa, 168 F.3d at 78; see also Heckler, 461 U.S. at 462 n. 5 ("If an individual's capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered."); Butts v. Barnhart, 388 F.3d 377, 383-84 (2d Cir. 2004) (if the grid fails "to describe the full extent of [the] claimant's physical limitations, " the Commissioner must introduce testimony to prove "that jobs exist in the economy which the claimant can obtain and perform"), reh'g granted in part and denied in part, 416 F.3d 101 (2d Cir.2005); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e).
To summarize, when both exertional and nonexertional impairments are present, an administrative law judge theoretically can find a claimant disabled when a grid directs such a finding solely on the basis of severity of exertional impairments. But, when exertional impairments alone direct a grid finding of not disabled, an administrative judge next must determine (usually from other evidence) how much nonexertional impairments further diminish that claimant's occupational base. Only when a large occupational base remains can an administrative judge then deny a claim using the grids as a framework.
B. Application and Analysis
ALJ Ramos found that Long has mental disorders and asthma. He found all these conditions to be severe impairments, as that term is defined in social security parlance. By definition, mental impairments and physical impairments requiring environmental limitations are nonexertional in nature. See n. 11, supra.
ALJ Ramos recognized them as such, and understood that he could not apply the grids directly to determine whether alternative work exists that Long can perform. Rather, in Long's case, the grids could only serve as "a framework for decisionmaking." (T. 19). ALJ Ramos did not, however, elicit testimony of either a vocational expert or other similar evidence regarding the existence of jobs in the national economy for individuals with Long's mental impairments and environmental limitations. Consequently, the specter of error looms large.
The possibility remains, however, that some other rule contains administratively-noticed facts constituting the necessary evidence. With respect to mental impairments, SSR 85-15 states in part:
The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.
SSR 85-15, 1985 WL 56857, at *4. This Ruling further states that the occupational base for such work is severely eroded only when a claimant has a substantial loss of ability to meet any of these basic demands. Id.
ALJ Long cited this Ruling. He found from evidence before him that Long is able to follow simple and complex instructions and directions; she is able to perform simple and complex tasks with both supervision and independently; she can maintain attention and/or concentration for tasks, regularly attend to a routine, maintain a schedule, relate and interact appropriately with others, and handle reasonable levels of work related stress. (T. 20). Since these findings exactly match the Ruling's parameters of mental capacity for unskilled sedentary work, ALJ Ramos was entitled to rely on the Ruling's administratively-noticed fact that the occupational base is not severely eroded for a person with such mental capacities. Therefore, substantial evidence supports ALJ Ramos's finding that Long's nonexertional mental impairments do not significantly reduce her occupational base, and the grids provided a framework for deciding that Long's mental impairments are not disabling.
The same cannot be said with respect to Long's environmental limitation. In fact, nothing can be said because ALJ Ramos's "framework" analysis is completely silent on that topic. After addressing Long's nonexertional mental impairments, ALJ Ramos's analysis simply stops. (T. 20). There is no mention of Long's nonexertional environmental limitation, and there is no erosion-of-occupational-base analysis with respect to that limitation. Id. It is as if ALJ Ramos inadvertently forgot this nonexertional impairment.
The brief submitted on behalf of the Commissioner proffers two resourceful arguments which contend that no evidence from a vocational expert regarding erosion of Long's occupational base was necessary. First, the brief contains an elliptic assertion that "SSR 96-9p expands on the implications of an RFC assessment for less than sedentary work because of environmental restrictions." (Dkt. No. 15, p. 15). While somewhat blurred, the gist of this argument seems to be that when a claimant cannot perform a full range of sedentary work because of a nonexertional environmental limitation, SSR 96-9p, supplies the missing evidentiary link through administratively-noticed facts.
SSR 96-9p does, indeed, address implications of residual functional capacity for less than a full range of sedentary work as it relates to claimants' capabilities to do other work. See SSR 96-9p, 61 Fed. Reg. at 34481. With respect to environmental restrictions, the Ruling contains an administrative-notice finding that few occupations in the unskilled sedentary base require work in extreme environmental conditions involving cold, heat, wetness, humidity or unusual hazards, including exposure to toxic, caustic chemicals. Id., at 34483. The Ruling then states that "[e]ven a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base." Id.
The Commissioner's brief infers that this provides administratively-noticed evidence that Long still has a large occupational base despite her environmental limitation to avoid respiratory irritants. If so, grid rule 201.24 properly was used in a framework context for finding that Long can perform existing jobs, and for concluding that she is "not disabled."
This argument is not persuasive for several reasons. First, it is misdirected. The quoted provision above constitutes administrative notice only with respect to certain extreme environmental conditions and unusual hazards rarely required in sedentary, unskilled work. Second, with respect to other potential respiratory irritants encountered more frequently in the workplace - such as restrictions to avoid exposure to odors or dust - the Ruling directs that evaluations must be conducted on an individual basis. See SSR 96-9p, 61 Fed. Reg. at 34483. Further, a residual functional capacity assessment must specify which environments are restricted and state the extent of the restriction, " e.g., whether only excessive or even small amounts of dust must be avoided." Id.
This latter requirement dovetails with SSR 85-15 which lists three magnitudes of environmental limitations, and makes findings with respect to each as to its effect on work at all exertional levels. See SSR 85-15, 1985 WL 56857, at *8. A restriction to avoid excessive amounts of respiratory irritants such as dust has minimal impact because most job environments do not involve great amounts of dust. Id. But, when an individual can tolerate very little amounts, the impact is considerable. Id. Finally, an environmental restriction falling in the middle requires consultation of occupational reference materials or services of a vocational specialist to determine the degree that a claimant's occupational base is eroded. Id.
Whatever the precise relationship between these two Rulings, ALJ Ramos complied with neither. He did not conduct an erosion-of-occupational-base analysis with respect to Long's environmental restriction as required by SSR 85-15. See SSR 85-15, 1985 WL 56857, at *8. He did not conduct an individualized evaluation, nor did he specify which environments are restricted, or state the extent of the restriction as required by SSR 96-9p. See SSR 96-9p, 61 Fed. Reg. at 34483. He did not establish a magnitude of Long's environmental restriction as required by both Rulings. Under this circumstance, the court cannot accept an invitation to conclude that SSR 96-9p provides the necessary evidence.
The second inventive argument asserts that ALJ Ramos already had ample evidence from which to conclude that Long's occupational base for sedentary work with an environmental limitation is not eroded substantially. (Dkt. No. 15, pp. 15-17). The Commissioner's brief painstakingly summarizes medical and other evidence indicating that Long's asthma is mild and well-controlled despite her long history as a smoker. Id., pp. 15-16. It emphasizes that Long's application did not claim asthma as a disabling impairment, and that Long disavowed asthma alone as a disabling condition in her testimony. Id., pp. 16-17. It concludes: " The ALJ, taking into consideration the specific nature and extent of plaintiff's asthma, correctly concluded that plaintiff's non-exertional environmental restriction did not significantly reduce plaintiff's occupational base. " Id., p. 17.
This argument has seductive appeal, as common experience suggests that a medical condition well-controlled by conservative treatment, and one not considered disabling by a person afflicted therewith, probably does not significantly erode that person's occupational base. Its charm, however, must be resisted. First, it is too much of a stretch to say that ALJ Ramos took into consideration the specific nature and extent of plaintiff's asthma. As mentioned earlier, ALJ Ramos's "framework" analysis is totally silent with respect to Long's asthma. The only rationale given by ALJ Ramos for concluding that Long's nonexertiontal limitations do not significantly reduce her occupational base relates to Long's mental capacity, not functional effects of respiratory irritants. (T. 20).
Second, Long's subjective view of the impact of asthma on her ability to work is no more competent than opinions of treating physicians, administrative law judges or reviewing court judges on the subject of an available occupational base. The Commissioner recognizes only "occupational reference materials or services of a [Vocational Specialist]" as authoritative evidence on this abstruse subject. See SSR 85-15, 1985 WL 56857, at *8.
Third, proceedings before the Commissioner are not adversarial. They are remedial in nature. See Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009); see also Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). Thus, the Commissioner cannot now rely on an "admission against interest" as might be the case in a purely forensic matter.
In sum, once ALJ Ramos found Long's asthma to be a severe impairment requiring a nonexertional environmental limitation to her residual functional capacity for even sedentary work, he triggered a Step 5 evidentiary burden to show that Long can perform some available work with that limitation. ALJ Ramos could not apply the grids directly because they do not factor severe nonexertional impairments into the available occupational base. He could not apply them indirectly as a "framework" because (a) the environmental limitation was articulated so indistinctly that it does not match up with administratively noticed facts in either SSR 85-15 or SSR 96-9p, (b) he did not obtain authoritative occupational reference materials or services of a Vocational Specialist to provide that evidence, and (c) he did not undertake an erosion-of-occupational-base analysis.
The inexorable result is that substantial evidence does not support a finding that jobs exist that Long can perform with a residual functional capacity for a limited range of sedentary work and a nonexertional limitation requiring that she avoid exposure to respiratory irritants.
1. The Commissioner's decision should be REVERSED and the case REMANDED pursuant to 42 U.S.C. § 405(g), sentence four, for receipt of evidence regarding the extent that Long's nonexertional environmental limitation further diminishes her occupational base.
2. To guard against necessity for further actions seeking judicial review, the court should request the Commissioner, upon remand, to review his decision in light of all other errors Long asserts in this action.
Parties have fourteen (14) days to file specific, written objections to the Report and Recommendation. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THE REPORT, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed.App'x 657, 658 (2d Cir. 2011); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).