United States District Court, D. Connecticut
RULING ON CROSS MOTIONS TO REVERSE AND AFFIRM
DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Jeffrey Alker Meyer, United States District Judge
Hector Manuel Torres alleges that he is disabled and cannot
work as a result of a combination of physical and mental
health impairments, including major depressive disorder,
polysubstance abuse, a left shoulder injury, asthma, and
obesity. He has brought this action pursuant to 42 U.S.C.
§ 405(g), seeking review of a final decision of
defendant Commissioner of Social Security denying his claim
for disability insurance benefits and supplemental security
income benefits. For the reasons that follow, I will grant
plaintiff's motion to reverse the Commissioner's
decision (Doc. #22), deny defendant's motion to affirm
the Commissioner's decision (Doc. #25), and remand the
case for calculation and payment of benefits.
Court refers to the transcripts provided by the Commissioner.
See Doc. #12-1 through Doc. #12-41. Plaintiff is a
55-year-old man who was born in Puerto Rico and cannot read
or write in English. He previously worked in landscaping and
construction but has not worked since November 1, 2009. His
medical records reveal a variety of physical impairments and
serious mental health issues, including hallucinations and
multiple suicide attempts.
Law Judge (ALJ) Robert DiBiccaro initially denied
plaintiff's claim for benefits on September 23, 2011. On
appeal, the District Court (Underhill, J.) adopted
Magistrate Judge Garfinkel's recommended ruling and
remanded the case because the ALJ's determination of
plaintiff's residual functional capacity (RFC) was not
supported by substantial evidence. See Torres v.
Colvin, 3:13-cv-00553 (D. Conn. 2014), Docs. #17, #18.
remand, the ALJ again denied plaintiff's claim for
benefits. In his decision of March 22, 2016, the ALJ
determined that plaintiff did not engage in substantial
gainful activity during the relevant time period; that
plaintiff suffered from several severe impairments, including
major depressive disorder, polysubstance abuse in early
remission, left shoulder biceps tendon rupture, and asthma;
that plaintiff had the RFC to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c), with a number of
additional limitations; and that plaintiff was unable to
perform any of his past relevant work. Doc. #12-14 at 12-14.
Nevertheless, the ALJ concluded that there were jobs that
existed in significant numbers in the national economy that
plaintiff could perform, and therefore plaintiff was not
disabled within the meaning of the Social Security Act.
Id. at 18.
the Appeals Council denied plaintiff's request for
review, plaintiff filed this second federal action asking the
Court to reverse the Commissioner's decision. Doc. #22.
In his memorandum, plaintiff argues that (1) the ALJ's
finding that plaintiff could perform jobs that exist in
significant numbers in the national economy was not supported
by substantial evidence, (2) plaintiff's obesity was not
properly evaluated, (3) the ALJ erred in failing to seek
medical source statements, and (4) the ALJ's RFC finding
was not supported by substantial evidence. Doc. #22-1. In
response, the Commissioner moved to affirm the Social
Security Administration's final decision. Doc. #25. On
May 1, 2017, this Court heard oral argument on the
Court may “set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by substantial evidence or
if the decision is based on legal error.” Burgess
v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal
quotation marks and citation omitted); see also 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.” Lesterhuis v. Colvin,
805 F.3d 83, 87 (2d Cir. 2015) (per curiam).
qualify for disability insurance benefits, a claimant must
show that he is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than
12 months, ” and “the 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.'” Robinson v. Concentra Health Servs.,
Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C.
§§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork
exists in the national economy when it exists in significant
numbers either in the region where [a claimant] live[s] or in
several other regions of the country, ” and “when
there is a significant number of jobs (in one or more
occupations) having requirements which [a claimant] [is] able
to meet with his physical or mental abilities and vocational
qualifications.” 20 C.F.R. § 404.1566(a)-(b);
see also Kennedy v. Astrue, 343 F. App'x 719,
722 (2d Cir. 2009).
evaluate a claimant's disability and determine whether he
or she qualifies for benefits, the agency engages in a
well-established five-step process. See Cage v.
Comm'r of Soc. Sec., 692 F.3d 118, 122-23 (2d Cir.
2012). The claimant bears the burden of proving his case at
steps one through four; at step five, the burden shifts to
the Commissioner to demonstrate that there is other work that
the claimant can perform, based on the claimant's RFC,
age, education, and past relevant work. See McIntyre v.
Colvin, 758 F.3d 146, 150 (2d Cir. 2014). Specifically,
“the Commissioner must determine [at step five] that
significant numbers of jobs exist in the national economy
that the plaintiff can perform. An ALJ may make this
determination either by applying the Medical Vocational
Guidelines or by adducing testimony of a vocational expert.
An ALJ may rely on a vocational expert's testimony
regarding a hypothetical as long as there is substantial
record evidence to support the assumption[s] upon which the
vocational expert based his opinion.” Id.
plaintiff contends that the ALJ's step-five
conclusion-that there was significant work in the national
economy that plaintiff could perform-was not supported by
substantial evidence. I agree and find that the Commissioner
plainly did not carry her burden. At step five, the ALJ
purported to rely on the testimony of vocational expert Susan
Howard, who testified on December 2, 2015. The ALJ cited
Howard's testimony that an individual with
plaintiff's age, education, work experience, and RFC,
plus an additional right upper extremity limitation,
“would be able to perform the requirements of
representative occupations such as: laundry laborer.”
Doc. #12-14 at 18. In his decision, the ALJ asserted that
Howard “used her professional experience to reduce the
numbers [of laundry laborer jobs available nationally] ¶
50, 000 to account for the possibility of exposure to
did not accurately portray Howard's testimony. Although
Howard did initially estimate the number of available laundry
laborer jobs at 50, 000, after further questioning she
ultimately revised her estimate to a mere 756 laundry laborer
jobs available nationally and that would be suitable for
plaintiff. See id. at 63-64 (“Q: All right.
And so, so basically you're saying laundry laborer
positions are, at your best estimate would be 756 jobs based
on the direct proportionality of the, of the numbers? A: Yes.
. . . I think it's reasonable to expect that there would
be at least that many laundry laborers in the national
economy that work in hospitals or hotels where they are not
exposed to chemicals as they would be at a
laundromat.”). Thus, the ALJ's assertion that
Howard estimated the number of suitable laundry laborer jobs
at 50, 000 was not accurate.
ALJ's step-five conclusion was not otherwise supported by
Howard's testimony. Although the ALJ noted in his opinion
that there could potentially be “additional jobs for
the claimant's residual functional capacity, ”
id. at 19, Howard did not identify any such jobs
that would be appropriate for plaintiff considering his
limitations. Howard initially discussed the job of sandwich
board operator but indicated that this job would not be
appropriate for someone limited to no interaction with the
public. Id. at 48. Howard also initially identified
the job of dining room attendant, but she later eliminated
this as a ...