Filed: Feb. 27, 2018
Latest Update: Mar. 03, 2020
Summary: 17-449 Glessing v. Comm’r of Soc. Sec. Admin. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE N
Summary: 17-449 Glessing v. Comm’r of Soc. Sec. Admin. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO..
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17‐449
Glessing v. Comm’r of Soc. Sec. Admin.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 27th day of February, two thousand
eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
Gary M. Glessing,
Plaintiff‐Appellant,
v. 17‐449
Commissioner of Social Security
Administration,
Defendant‐Appellee.
_____________________________________
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FOR APPELLANT: GARY M. GLESSING, pro se; Staten Island,
NY.
FOR APPELLEE: Varuni Nelson, Arthur Swerdloff, Assistant
United States Attorneys, for Richard P.
Donoghue, United States Attorney for the
Eastern District of New York; Brooklyn,
NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED in part and VACATED in part and the case is REMANDED to the
district court with instructions to remand the matter to the Commissioner for
further proceedings consistent with this order.
Appellant Gary Glessing, pro se, sought review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for
disability insurance benefits. He appeals from the district court’s grant of
judgment on the pleadings to the Commissioner. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
We review de novo a district court’s judgment on the pleadings. Zabala
v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010). When the judgment upholds a
benefits determination by the Commissioner, we conduct a de novo review of the
administrative record “to determine whether there is substantial evidence
supporting the Commissioner’s decision and whether the Commissioner applied
the correct legal standard.” Id. (quoting Machadio v. Apfel, 276 F.3d 103, 108
(2d Cir. 2002)). The substantial evidence standard means that “once an
[administrative law judge (“ALJ”)] finds facts, we can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec.
Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and
alteration omitted).
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“To determine whether a claimant is disabled, the Social Security
Administration must undertake a five‐step evaluation[.]” Jasinski v. Barnhart,
341 F.3d 182, 183 (2d Cir. 2003). At Step Four, the ALJ determines whether the
claimant’s residual functional capacity (“RFC”) would allow her to perform
“past relevant work.” Id. at 184. If so, the claimant is not disabled. Id. “Past
relevant work” is “work that you have done within the past 15 years,1 that was
substantial gainful activity, and that lasted long enough for you to learn to do it.”
20 C.F.R. § 404.1560(b)(1). “[T]he claimant has the burden to show an inability
to return to her previous specific job and an inability to perform her past relevant
work generally.” Jasinski, 341 F.3d at 185 (emphasis omitted). “This inquiry
requires separate evaluations of the previous specific job and the job as it is
generally performed.” Id. The ALJ may inquire into the way a job is generally
performed using a vocational expert (“VE”) and the Dictionary of Occupational
Titles (“DOT”). Id.
Glessing argues the ALJ erred by determining that his past relevant work
included that of a “Desk Officer,” despite Glessing never having performed this
job or having been qualified to do so. We agree.
At the hearing, Glessing described his past work as a detective on desk
duty in 1997‐1998. Glessing testified that he was “on a restricted duty basis,”
meaning he “sat at a desk, answered phones, [and] took notifications [and]
telephone messages,” rather than going out on patrol. R. 940. Glessing
testified that the New York Police Department (“NYPD”) would not have
allowed him to stay on desk duty indefinitely because it meant he was not
performing his regular duties as a detective. Glessing agreed with the ALJ that
“there’s no job where a detective gets to sit all day and just answer phones for 20
years and get a retirement[.]” R. 942 Glessing then described his work as a
security guard. He did not testify that he had ever worked as a Desk Officer.
1 In cases adjudicated after the claimant’s date last insured, like this one, the
fifteen‐year period is calculated from the last‐insured date. SSR 82‐62, 1982 WL
31386, at *2; Naegele v. Barnhart, 433 F. Supp. 2d 319, 325 (W.D.N.Y. 2006).
Glessing’s last‐insured date was in June 2012, so his New York Police
Department desk duty in 1997 and 1998 can be considered.
3
At the ALJ’s request, the VE identified DOT codes for three occupations to
encompass Glessing’s past work: Detective, which is skilled work at the light
level; Desk Officer, which is skilled work at a sedentary level; and Merchant
Guard, which is semi‐skilled work at a light level. However, the VE mistakenly
defined Glessing’s past work as that of a Desk Officer. As defined in the DOT, a
Desk Officer, among other things, “[s]upervises and coordinates activities of
personnel assigned to [a] police precinct station[,]” including police officers,
telephone operators, and clerical staff; “assumes responsibility for efficiency and
discipline of workers under [her] command[,]” and “assumes command of [a]
station house in [the] absence of [the] commanding officer.” DOT Code 375.137‐
014. The definition also notes the job may be “designated according to rank as
Desk Captain . . . Desk Lieutenant . . . [or] Desk Sergeant[.]” Id. A Desk Officer
is thus a supervisory role with substantially different duties than those Glessing
described performing on desk duty, and may require a rank in the police
department that he had not obtained. Therefore, the VE and ALJ lacked
substantial evidence to conclude that Glessing’s past relevant work included
being a Desk Officer.
Moreover, the ALJ’s finding of non‐disability at Step Four was premised
on this erroneous conclusion. At the hearing, the ALJ described to the VE a
series of hypothetical individuals with physical limitations like Glessing’s and
asked whether these individuals could perform the work of a Detective, Desk
Officer, or Merchant Guard as defined in the DOT. For each hypothetical, the
VE opined that the individual could perform the job of a Desk Officer. Citing
the VE’s opinions, the ALJ’s decision found Glessing was capable of performing
his past relevant work as a Desk Officer “as generally performed[,]” and thus
was not disabled. R. 903. Desk Officer is the only position to which the ALJ
determined Glessing could have returned.
Because the ALJ lacked substantial evidence to conclude that Glessing’s
past work included “Desk Officer,” and because the ALJ cited no other past
relevant work that Glessing had the RFC to perform, it follows that the ALJ’s
conclusion at Step Four—that Glessing could perform past relevant work—was
unsupported by substantial evidence. Further, because the ALJ’s finding of
non‐disability was based solely on his unsupported conclusion that Glessing
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could perform past relevant work, the finding of non‐disability was itself
unsupported by substantial evidence.
The Commissioner argues that the ALJ’s finding at Step Four should be
affirmed because Glessing is not disabled if he can perform past relevant work
either as he actually performed it or as it is performed generally, and Glessing
performed his work for the NYPD in 1997‐1998 at a sedentary level. We are
unpersuaded, for two reasons.
First, the Step Four inquiry requires “separate evaluations of the previous
specific job and the job as it is generally performed.” Jasinski, 341 F.3d at 185.
The ALJ analyzed only Glessing’s ability to perform the duties of a Desk Officer
“as generally performed[,]” not his ability to perform desk duty as he had
performed it in 1997‐1998. R. 903. Because the ALJ did not base his finding at
Step Four on the separate evaluation of Glessing’s previous specific job, we
cannot accept the Commissioner’s post hoc justification of the ALJ’s decision on
appeal. See Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (“Nor may we
properly affirm an administrative action on grounds different from those
considered by the agency.”).
Second, prior employment only qualifies as “past relevant work” if it is
“substantial gainful activity.” 20 C.F.R. § 404.1560(b)(1). Prior employment
may or may not be substantial gainful activity if it is performed under “special
conditions,” which include being “assigned work especially suited to [his]
impairment” and being “permitted to work at a lower standard of productivity
or efficiency than other employees.” 20 C.F.R. § 404.1573(c). Even if the ALJ
had analyzed Glessing’s past work as Glessing himself had performed it, the ALJ
did not determine whether this work was substantial gainful activity in light of
the special conditions under which it was performed. See, e.g., Smith v. Colvin,
No. 14 C 3923, 2016 WL 374136, at *8 (N.D. Ill. Feb. 1, 2016); Jones v. Astrue, No.
12‐cv‐2125‐WJM, 2013 WL 4522045, at *3‐4 (D. Colo. Aug. 27, 2013). We
therefore conclude that the present record gives insufficient basis to conclude
that Glessing’s past relevant work included desk duty.
“Where there are gaps in the administrative record or the ALJ has applied
an improper legal standard, we have, on numerous occasions, remanded to the
5
Commissioner for further development of the evidence.” Rosa v. Callahan, 168
F.3d 72, 82‐83 (2d Cir. 1999) (citation, internal quotation marks, and alteration
omitted). Although the ALJ lacked substantial evidence to conclude Glessing
could perform past relevant work as a Desk Officer, remand is warranted
because the ALJ’s further development of the record may support a finding of
non‐disability on other grounds. For example, the ALJ could analyze Glessing’s
work as a detective on desk duty as he actually performed it in 1997‐1998 and
determine it was substantial gainful activity, notwithstanding the special
conditions under which it was performed. Or, the ALJ could proceed to Step
Five and determine Glessing’s RFC would have allowed him to perform other
work available in the national economy. In either case, Glessing would not be
disabled. See Jasinski, 341 F.3d at 184. As to how the ALJ should resolve these
issues, or any others that may arise on remand, we express no opinion.
We have considered all of Glessing’s remaining arguments and conclude
that they are without merit. Accordingly, we VACATE the judgment of the
district court in part and REMAND to the district court with instructions to
remand the matter to the Commissioner for further proceedings consistent with
this order. Otherwise, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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