Owens v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JUSTINA O.,
Plaintiff, 	DECISION AND ORDER
v.
1:24-CV-00610 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, Plaintiff Justina O. (“Plaintiff”) brings this action pursuant
to Title II and Title XVI of the Social Security Act (“Act”), seeking review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying her
applications for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”). 	(Dkt. 1). 	This Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g). (See id.)
Presently before the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 	(Dkt. 9; Dkt.
15). 	For the reasons discussed below, Plaintiff’s motion for judgment on the pleadings
(Dkt. 9) is granted to the extent that the matter is remanded for further administrative
proceedings, and the Commissioner’s motion for judgment on the pleadings (Dkt. 15) is
denied.
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BACKGROUND
In September 2016, Plaintiff filed protective applications for DIB and SSI. 	(See
Dkt. 5 at 173-86).1 	In her application, Plaintiff alleged that she was disabled because of
neck issues, back issues, gout, carpal tunnel syndrome, high blood pressure, and high
cholesterol, with a disability onset date of August 1, 2010. (See id. at 174, 198). The Social
Security Administration (“SSA”) initially denied Plaintiff’s applications, and Plaintiff
requested a hearing before an administrative law judge (“ALJ”). (See id. at 85-104, 106-
15). Following a hearing on October 29, 2018, ALJ Elizabeth Ebner issued an unfavorable
decision on December 14, 2018. 	(See id. at 13-27, 36-84). 	Plaintiff requested Appeals
Council review, which was denied on December 12, 2019. (See id. at 7-12).
Plaintiff then filed a district court action, and on July 26, 2021, the Honorable John
L. Sinatra, Jr., remanded Plaintiff’s case to the Commissioner for further administrative
proceedings. (See id. at 566-84). On October 3, 2022, Plaintiff had another hearing before
ALJ Ebner. (See id. at 534-65). Then, on November 2, 2022, ALJ Ebner issued a partially
favorable decision, finding that Plaintiff became disabled on October 28, 2019. (See id. at
511-26). 	Plaintiff filed another district court action, and on July 12, 2023, this Court
remanded Plaintiff’s case to the Commissioner for further administrative proceedings
pursuant to a joint stipulation by the parties. (See id. at 1116-17). On February 16, 2024,
Plaintiff had a hearing before ALJ William Weir, who issued an unfavorable decision on
1 	Page numbers in docket citations refer to the CM/ECF-generated page numbers that
appear in the upper righthand corner of each document.
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March 1, 2024. 	(See id. at 1044-89). 	Plaintiff then filed the present action on June 27,
2024. (Dkt. 1).
LEGAL STANDARDS
I. 	District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the record and
were based on a correct legal standard.” 	Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citation modified). 	The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by “substantial evidence.” 	See 42 U.S.C. § 405(g).
“‘Substantial evidence’ is ‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Talavera, 697 F.3d
at 151 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). 	It is not the Court’s
function to “determine de novo whether [the claimant] is disabled.” Schaal v. Apfel, 134
F.3d 496, 501 (2d Cir. 1998) (citation modified). 	However, “the deferential standard of
review for substantial evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citation modified).
II. 	Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant
is disabled within the meaning of the Act. 	20 C.F.R. §§ 404.1520(a), 416.920(a); see
Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). At step one, the ALJ determines
whether 	the 	claimant 	is 	engaged 	in 	substantial 	gainful 	work 	activity. 	20 	C.F.R.
§§ 404.1520(b), 416.920(b). 	If so, the claimant is not disabled. 	Id. 	If not, the ALJ
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proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, in that it
imposes significant restrictions on the claimant’s ability to perform basic work activities.
Id. §§ 404.1520(c), 416.920(c). 	If the claimant does not have a severe impairment or
combination of impairments, the analysis concludes with a finding of “not disabled.” Id.
But if the claimant does have at least one severe impairment, the ALJ continues to step
three. Id.
At step three, the ALJ examines whether a claimant’s severe impairment meets or
medically equals the criteria of a listed impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“Listings”). Id. §§ 404.1520(d), 416.920(d). If the severe impairment meets
or medically equals the criteria of a listed impairment and has lasted, or is expected to last,
for a continuous period of at least 12 months, then the claimant is disabled. Id. If not, the
ALJ determines the claimant’s residual functional capacity (“RFC”), which is the most “an
individual can still do despite his or her limitations . . . in an ordinary work setting on a
regular and continuing basis.” 	SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996). 	“‘A
regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent
work schedule.” Id.
The ALJ then proceeds to step four and determines whether the claimant’s RFC
permits the claimant to perform the requirements of his or her past relevant work. 20 C.F.R.
§§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she
is not disabled. Id. But if he or she cannot, the analysis proceeds to the fifth and final step,
wherein the burden shifts to the Commissioner to show that the claimant is not disabled.
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Id. §§ 404.1520(g), 416.920(g). 	To do so, the Commissioner must present evidence to
demonstrate that the claimant, in light of his or her age, education, and work experience,
“retains a residual functional capacity to perform alternative substantial gainful work which
exists in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation
modified); see 20 C.F.R. §§ 404.1560(c), 416.960(c).
DISCUSSION
I. 	The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step
sequential evaluation set forth in 20 C.F.R. §§ 404.1520(a) and 416.920(a). (See Dkt. 5 at
1047-58). 	At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since her alleged disability onset date of August 1, 2010. (See id. at 1050).
At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: (1) degenerative disc disease; (2) carpal tunnel syndrome; (3) osteoarthritis;
and (4) obesity. (See id. ). The ALJ found that Plaintiff’s gout, high blood pressure, and
high cholesterol were non-severe impairments. (See id.). Further, the ALJ considered the
impact of Plaintiff’s severe and non-severe impairments on her mental work-related
functioning and found that she was: (1) mildly impaired in understanding, remembering,
or applying information; (2) mildly impaired in interacting with others; (3) mildly impaired
in concentrating, persisting, or maintaining pace; and (4) mildly impaired in adapting or
managing herself. (See id. at 1050-51).
At step three, the ALJ found that Plaintiff’s impairments did not meet or medically
equal one of the Listings. (See id. at 1051-52). In particular, the ALJ considered Listings
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1.15, 1.16, and 1.18. (See id.). Then, before proceeding to step four, the ALJ concluded
that Plaintiff had the RFC to perform “sedentary work” as defined in 20 C.F.R.
§§ 404.1567(a) and 416.967(b), except that she:
Can occasionally climb ramps and stairs, can never climb
ropes, ladders or scaffolds, can occasionally stoop, kneel,
crouch and crawl, can occasionally reach and perform work in
the normal anatomic plane above shoulder height (which [is]
further defined as a level created by an imaginary disc placed
on [Plaintiff’s] shoulders and extending out in all directions
infinitely), and can frequently do so below shoulder height, can
frequently use hand controls and foot controls, can frequently
handle and finger, can have no exposure to unprotected heights
or 	dangerous 	machinery, 	tools 	or 	chemicals, 	can 	have
occasional exposure to extreme cold and heavy vibration, [and]
when walking greater than 10 feet must be able to use a single
point cane but is able to carry the requisite 10 pounds in the
opposite hand.
(See id. at 1052 (citation modified)).
At step four, the ALJ found that Plaintiff was unable to perform any past relevant
work. (Id. at 1056). But at step five, based on the testimony of a vocational expert (“VE”),
the ALJ found that Plaintiff, given her age, education, work experience, and RFC, could
perform work existing in significant numbers in the national economy as a document
preparer or a call-out operator. (See id. at 1056-57). Accordingly, the ALJ determined that
Plaintiff was not disabled as defined by the Act between August 1, 2010, and October 27,
2019. (See id. at 1057).2
2 	As Plaintiff points out in her brief, ALJ Weir made a typographical error in his
decision when he concluded that Plaintiff “ha[d] not been under a disability . . . from
August 1, 2010, through the date of this decision.” (Dkt. 5 at 1057). The Court’s decision
in this case does not impact or otherwise overrule ALJ Ebner’s previous determination that
Plaintiff became disabled on October 28, 2019.
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II. 	Analysis
Plaintiff asks the Court to reverse and remand the Commissioner’s decision solely
for 	a 	calculation 	of benefits, 	arguing 	that the 	ALJ’s 	step 	five 	determination 	was
unsupported by substantial evidence. (See Dkt. 9-1 at 19-25). More specifically, Plaintiff
argues that the document preparer position, as defined by the Dictionary of Occupational
Titles (“DOT”), is obsolete and that the call-out operator position does not exist in
sufficiently significant numbers within the national economy. 	(See id. at 19-24). 	As
discussed 	further 	below, 	the 	Court 	agrees 	with 	Plaintiff 	that 	the 	ALJ’s 	step 	five
determination was unsupported by substantial evidence but concludes that remand for
further administrative proceedings, rather than solely for a calculation of benefits, is
appropriate.
At step five of the sequential evaluation, “the burden shifts, to a limited extent, to
the Commissioner to show that other work exists in significant numbers in the national
economy that the claimant can do.” 	Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022).
“Because the shift in step five is limited, the Commissioner need not provide additional
evidence 	of 	the 	claimant’s 	residual 	functional 	capacity.” 	Id. 	(citation 	modified).
Ultimately, however, “if the Commissioner cannot meet his or her burden to demonstrate
that such work exists, then the claimant will be found disabled under the Act.” Sanchez v.
Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018) (citation modified).
According to the regulations, “work exists in the national economy when there is a
significant number of jobs (in one or more occupations) having the requirements which
[the claimant is] able to meet with [his or her] physical or mental abilities and vocational
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qualifications.” 20 C.F.R. §§ 404.1566(b), 416.966(b) (citation modified). “Isolated jobs
that exist only in very limited numbers in relatively few locations outside of the region
where [the claimant] live[s] are not considered ‘work which exists in the national
economy.’” Id. But “work may be considered to exist in the national economy regardless
of whether it exists in the immediate area of the claimant’s residence, whether there is a
specific job vacancy, or whether the claimant would be hired upon applying to the
position.” Sanchez, 336 F. Supp. 3d at 177 (citation modified). Thus, “an ALJ may rely
on the Medical-Vocational Guidelines or upon vocational expert testimony to determine
whether the claimant’s skills are applicable to other work.” Id. (citation modified). “No
particular number of positions need be identified: so long as it exists in sufficiently
significant numbers, ‘[t]he Commissioner need only show one job existing in the national
economy that [the claimant] can perform.’” Id. (quoting Bavaro v. Astrue, 413 F. App’x
382, 384 (2d Cir. 2011)).
Here, during the hearing on February 16, 2024, the ALJ asked the VE whether there
were any jobs that a hypothetical individual with Plaintiff’s RFC could perform and, if so,
to give him two examples. (See Dkt. 5 at 1086). The VE responded that the hypothetical
individual could work as a document preparer or a call-out operator. 	(See id.). 	Further,
according to the VE, there were 15,670 document preparer positions and 1,977 call-out
operator positions in the national economy. (See id.).
The issue with the VE’s testimony regarding the call-out operator position is that it
does not exist in significant numbers within the national economy. 	See Sanchez, 336 F.
Supp. 3d at 177 (“Courts have not established a bright line test as to the threshold number
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of jobs that is considered ‘significant’ for purposes of the Act[;] [h]owever, courts have
generally held that what constitutes a ‘significant’ number is fairly minimal, and numbers
similar to those presented here—between 9,000 and 10,000 jobs—have typically been
found to be sufficiently ‘significant’ to meet the Commissioner’s burden.” (citation
modified)). 	And the issue with the VE’s testimony regarding the document preparer
position is that the DOT’s definition of the position is “comically out of date.” See Melanie
V. v. Comm’r of Soc. Sec., No. 23-CV-973S, 2024 WL 3337924, at *5 (W.D.N.Y. July 9,
2024) (acknowledging that “indeed, as other courts in this Circuit have recently decided,
[the DOT’s] definition [of a document preparer] is ‘comically out of date’ for the ‘lost art’
of microfilming.” (citation modified)).
The SSA has issued an Emergency Message (“EM”) establishing “heightened
evidentiary 	and 	articulation 	requirements 	about 	certain 	[DOT] 	occupations 	whose
continued widespread existence multiple courts have questioned.” 	See SSA EM-24027
REV, 	https://secure.ssa.gov/apps10/reference.nsf/links/01062025092030AM 	(Jan. 	6,
2025). 	The EM explains that “an adjudicator may not cite any of the DOT occupations
listed below to support a framework ‘not disabled’ determination or decision without
additional evidence from a . . . VE supporting the adjudicator’s conclusion.” 	Id. 	And
document preparer is one of the listed occupations. See id.
Accordingly, although the EM does not indicate whether it applies retroactively, the
Court believes that remand for further administrative proceedings is appropriate. See, e.g.,
Corey S. v. Comm’r of Soc. Sec., No. 5:20-CV-0678 (ML), 2021 WL 2935917, at *12
(N.D.N.Y. July 13, 2021) (remanding for further administrative proceedings where “in
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light of the overwhelming evidence that the document preparer position, as defined in the
[DOT], 	is 	obsolete 	in 	the 	national 	economy, 	the 	non-adversarial 	nature 	of 	the
administrative hearing process, and the ALJ’s burden at step five, this court concludes that
the 	ALJ 	could 	not 	reasonably 	rely 	solely 	on 	the 	VE 	testimony 	that 	there 	were
approximately 45,000 document preparer positions in the national economy that Plaintiff
could perform.” (citation modified)). The Court does not believe that remand solely for a
calculation of benefits is appropriate because the VE may be able to provide evidence of
other jobs that a hypothetical individual with Plaintiff’s RFC can perform, especially if the
ALJ asks for a more comprehensive list. See Bavaro, 413 F. App’x at 384; see also Vargas
v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (explaining that remand solely for a
calculation of benefits is appropriate when there is an “infinitesimal likelihood” of
employment).
CONCLUSION
For the reasons stated above, Plaintiff’s motion for judgment on the pleadings (Dkt.
9) is granted to the extent that the matter is remanded for further administrative
proceedings, and the Commissioner’s motion for judgment on the pleadings (Dkt. 15) is
denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: 	January 15, 2026
Rochester, New York
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