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Campbell v. Colvin

United States District Court, W.D. New York

March 27, 2017




         I. Introduction

         Represented by counsel, Melinda M. Campbell (“plaintiff”) brings this action pursuant to Title II of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits (“DIB”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter was initially before the Court on the parties' cross motions for summary judgment.[1] The parties' motions were referred to Magistrate Judge Hugh B. Scott for consideration of the factual and legal issues presented, and to prepare and file a Report and Recommendation (“R&R”) containing a recommended disposition of the issues raised.

         By R&R dated August 8, 2016, Judge Scott recommended that the Commissioner's motion be granted and the plaintiff's motion be denied. For the reasons that follow, the Court declines to adopt the R&R and instead remands this case for further proceedings consistent with this Decision and Order.

         II. Procedural History

         The record reveals that in April 2010, plaintiff (d/o/b March 4, 1981) applied for DIB, alleging disability as of January 30, 2006. After her application was denied, plaintiff requested a hearing, which was held before administrative law judge Michal L. Lissek (“the ALJ”) on October 4, 2011 and February 28, 2012. The ALJ issued an unfavorable decision on April 10, 2012. The Appeals Council denied review of that decision and this timely action followed. The R&R contains a thorough summary of the record, which the Court incorporates by reference. See doc. 17 at 2-14.

         III. Report and Recommendation

         The R&R recommended that the Commissioner's motion be granted. Specifically, the R&R rejected plaintiff's arguments that (1) the ALJ erred in finding that plaintiff's impairments met the qualifications of Listing 1.04A or 1.04C; (2) the ALJ failed to properly apply the treating physician rule; (3) the ALJ erred in finding that plaintiff could perform past relevant work (“PRW”); and (4) the ALJ did not properly assess plaintiff's credibility. On August 22, 2016, plaintiff filed objections to the R&R. Specifically, plaintiff contends that the R&R erred in analyzing the step four finding, and in finding that plaintiff did not meet a listing.

         IV. Discussion

         When reviewing a magistrate judge's report and recommendation, a district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made[, ]” 28 U.S.C. § 636(b), and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge[, ]” id. “[Where] a party fails to object to a portion of an R&R, further review is generally precluded.” James v. Monroe Cty. Jail, 2005 WL 2030730, *1 (W.D.N.Y. Aug. 23, 2005) (citing Mario v. P & C Food Mkts. Inc., 313 F.3d 758, 766 (2d Cir. 2000)). The Court notes that plaintiff has not objected to the portions of the R&R addressing the ALJ's application of the treating physician rule and the ALJ's credibility finding. Therefore, the Court will not review those portions of the R&R.

         A. Step Four Finding

         Plaintiff contends that the vocational expert's (“VE”) testimony was inconsistent with the Dictionary of Occupational Titles (“DOT”), and that therefore the step four finding, which relied on the VE's testimony, was based on legal error. The VE testified that plaintiff's past work as a secretary and collector were sedentary and semi-skilled with a specific vocational preparation (“SVP”) of four. The VE stated that the DOT code for secretary was 203.582-064 and the code for collector was 253.382-014. However, the correct codes for these titles are 201.362-030 and 241.367-010, respectively.[2]

         The R&R acknowledges the VE did not give the correct DOT titles for secretary and collector. While the R&R lists the correct DOT title for collector, it lists the DOT title for “typist, ” not secretary. See doc. 17 at 26 (citing 203.582-066, the code for typist, as the code for secretary). Moreover, contrary to the VE's testimony, the SVP for the title of secretary is six, not four.[3] An SVP of six requires preparation of over one year and up to two years, whereas an SVP of four requires preparation of “[o]ver [three] months up to and including [six] months.” DICOT 241.367-010 (description of SVP level four); see DICOT 201.362-030 (description of SVP level six). Plaintiff reported that she worked as a secretary from September through December 1999. Therefore, pursuant to the correct DOT title which had an SVP of six, not four, plaintiff could not perform this PRW.

         Plaintiff reported that she worked as a collector from February 2000 through 2001. Thus, it is unclear exactly how long plaintiff worked at that job, but based on her report it was for a time period of at least 10 but not more than 22 months. Therefore, plaintiff met the SVP level of four for this job. The DOT title for collector, however, requires light, not sedentary, work. Therefore, the ALJ's finding that plaintiff retained an RFC to perform ...

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