Filed: Jan. 23, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2591-cv Lockwood v. Commissioner In the United States Court of Appeals for the Second Circuit AUGUST TERM 2018 No. 17-2591-cv STEPHEN LOCKWOOD, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of New York SUBMITTED: AUGUST 15, 2018 DECIDED: JANUARY 23, 2019 Before: CABRANES and POOLER, Circuit Judges, and OETKEN, District Judge.* Plaintiff-Appellant Stephen Lockwood appeals fr
Summary: 17-2591-cv Lockwood v. Commissioner In the United States Court of Appeals for the Second Circuit AUGUST TERM 2018 No. 17-2591-cv STEPHEN LOCKWOOD, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of New York SUBMITTED: AUGUST 15, 2018 DECIDED: JANUARY 23, 2019 Before: CABRANES and POOLER, Circuit Judges, and OETKEN, District Judge.* Plaintiff-Appellant Stephen Lockwood appeals fro..
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17‐2591‐cv
Lockwood v. Commissioner
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 17‐2591‐cv
STEPHEN LOCKWOOD,
Plaintiff‐Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant‐Appellee.
On Appeal from the United States District Court
for the Northern District of New York
SUBMITTED: AUGUST 15, 2018
DECIDED: JANUARY 23, 2019
Before: CABRANES and POOLER, Circuit Judges, and OETKEN, District
Judge.*
Plaintiff‐Appellant Stephen Lockwood appeals from a
judgment of the United States District Court for the Northern District
of New York (Christian F. Hummel, Magistrate Judge), upholding the
decision of Defendant‐Appellee Commissioner of Social Security to
deny his application for disability insurance benefits. We conclude
that the Commissioner’s decision was not supported by substantial
evidence because it relied on testimony from a vocational expert that
appeared to be in conflict with the authoritative guidance set out in the
Department of Labor’s Dictionary of Occupational Titles. Because the
Commissioner was not entitled to rely on this testimony without first
identifying and inquiring into the apparent conflict, the District Court
erred in declining to set aside the Commissioner’s benefits decision.
Accordingly, we REVERSE the District Court’s judgment and
REMAND for further proceedings.
Patrick G. Radel, Getnick Livingston
Atkinson & Priore, LLP, Utica, NY, for
Plaintiff‐Appellant.
* Judge J. Paul Oetken, of the United States District Court for the Southern
District of New York, sitting by designation.
2
Andreea L. Lechleitner, Special Assistant
United States Attorney, (Stephen P. Conte,
Regional Chief Counsel – Region II, on the
brief), Office of the General Counsel, United
States Social Security Administration, New
York, NY, for Grant C. Jaquith, United States
Attorney for the Northern District of New
York, Syracuse, NY, for Defendant‐Appellee.
J. PAUL OETKEN, District Judge:
Plaintiff‐Appellant Stephen Lockwood appeals from a June 21,
2017 judgment of the United States District Court for the Northern
District of New York (Christian F. Hummel, Magistrate Judge),
upholding the decision of Defendant‐Appellee Commissioner of
Social Security (“Commissioner”) to deny Lockwood’s application for
disability insurance benefits. On appeal, Lockwood argues among
other things that the District Court should have set aside the benefits
denial as unsupported by substantial evidence because the denial
relied on expert testimony that contained an unexamined apparent
conflict with an authoritative Department of Labor publication, the
Dictionary of Occupational Titles. We agree with Lockwood on this
point and therefore REVERSE the District Court’s judgment and
REMAND for further proceedings.
3
I. BACKGROUND
A. Factual Background
On November 11, 2011, Lockwood was injured in an automobile
accident while working as a landscaper. In the following months,
Lockwood experienced abnormal sensation in his hands and severe
pain in his neck and was, according to Drs. Srinivasan Mani and Mark
Smith, disabled from performing his regular job as a consequence. In
terms of diagnosis, the doctors believed that the unusual feeling in
Lockwood’s hands might be a result of carpal tunnel syndrome and
that the neck pain might be attributable to herniated disks in
Lockwood’s cervical spine.
To address the neck pain, Dr. Smith advised Lockwood to
undergo disk‐repair surgery. Dr. Richard Tallarico, an orthopedic
surgeon, concurred in this advice, and he performed the
recommended surgery on November 7, 2012.
Following the surgery, Lockwood consulted several times with
Nurse Practitioner Catherine Tomaiuoli. In an early consultation,
Nurse Tomaiuoli observed that Lockwood’s neck pain persisted and
that he had a reduced range of motion in his left shoulder, as well as
difficulty with certain arm movements. She recommended that
Lockwood receive a magnetic resonance imaging (“MRI”) scan and
that he restrict the amount of weight he lifted.
In June 2013, Lockwood received the recommended MRI. Based
on the results, Nurse Tomaiuoli referred Lockwood to Dr. John
4
Cannizzaro, an orthopedic surgeon, who examined Lockwood and on
July 16, 2013, concluded that his shoulder was 30% disabled. During
a subsequent consultation, Dr. Tallarico, the surgeon who had
operated on Lockwood’s neck, deemed Lockwood to be 75% impaired
as a result of his continuing neck and shoulder pain and his limited
range of motion. Dr. Tallarico considered Lockwood’s disability to be
permanent.
Meanwhile, Lockwood was following up on his doctors’
suggestion that he suffered from carpal tunnel syndrome. On May 22,
2013, he received carpal tunnel release surgery on his right wrist from
Dr. Kevin Setter. During a follow‐up examination with Nurse
Practitioner Carmelita Woods, however, Lockwood reported that he
was continuing to experience tenderness and abnormal sensation in
his hands. After examining Lockwood, Nurse Woods concluded that
Lockwood had 50% and 25% impairments in his right and left hands,
respectively, and that carpal tunnel release surgery on the left hand
would be appropriate. Dr. Setter performed that surgery on July 1,
2013.
B. Administrative Proceedings
On July 26, 2013, Lockwood submitted an application to the
Commissioner pursuant to the Social Security Act, 42 U.S.C. § 301 et
seq., seeking disability insurance benefits as of the date of his
automobile accident. At the Commissioner’s request, Lockwood
received an examination from orthopedist Dr. Tanya Perkins‐
Mwantuali. The doctor found that Lockwood had “moderate
5
limitation with lifting, pushing, pulling, reaching forward and
reaching above the level of the shoulder, and carrying with the use of
the left arm.” Admin. Record (“R.”) 330.1 She also determined that
Lockwood had mild to moderate limitations with respect to activities
that require a full range of neck motion. Following this assessment,
the Commissioner denied Lockwood’s benefits application.
Lockwood then requested a hearing before an Administrative
Law Judge (“ALJ”). At the resultant June 2, 2014 hearing, the ALJ
heard testimony from Lockwood and from Dian Heller, a vocational
expert. Heller offered her opinion that a person of Lockwood’s age,
education, and experience could perform the physical tasks associated
with three specific jobs that collectively number around 154,000
nationally, as long as he retained the ability to perform light work that
did not require any overhead reaching.
On October 27, 2014, the ALJ issued a written opinion denying
benefits. Although the ALJ found that Lockwood suffered from severe
impairments, she concluded that he was nonetheless capable of
performing certain physical activities that, among other things, did not
involve any “overhead reaching.” R. 19–20. Relying on Heller’s
testimony regarding the three jobs that people with comparable
limitations are capable of performing, and finding that these jobs exist
in significant number in the national economy, the ALJ concluded that
Lockwood was not entitled to benefits.
The Administrative Record is available at Docket Number 8 of the District
1
Court docket. Lockwood v. Commissioner, No. 6:16‐CV‐0648 (N.D.N.Y.).
6
Lockwood sought review from the Social Security Appeals
Council. The Appeals Council granted review and, in a May 3, 2016
decision, adopted the ALJ’s opinion as its own in all relevant respects.
With that decision, the Commissioner’s denial of Lockwood’s benefits
application became final.
C. Federal Court Proceedings
Dissatisfied by the result of the agency proceedings, Lockwood
turned to federal court. On June 7, 2016, Lockwood filed a complaint
in the United States District Court for the Northern District of New
York, seeking review of the benefits denial. See 42 U.S.C. § 405(g)
(authorizing judicial review of the Commissioner’s final decisions).
Following submission of the administrative record, both Lockwood
and the Commissioner moved for judgment on the pleadings.
In support of his motion, Lockwood advanced two arguments
that are relevant here. First, he argued that the Commissioner had
relied on Heller’s testimony without first probing into an apparent
conflict between that testimony and an authoritative Department of
Labor publication, the Dictionary of Occupational Titles (the
“Dictionary”).2 Specifically, he pointed out that Heller had identified
three jobs capable of being performed by a person who cannot reach
overhead, but that the Dictionary’s descriptions of these jobs state
without qualification that each requires “reaching.” Second, he
2 This opinion’s references to the Dictionary also include where relevant the
Dictionary’s companion publication, the Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles.
7
argued that the Commissioner, in assessing his physical capabilities,
failed to address Nurse Woods’s observation that he had respective
impairments of 50% and 25% in his right and left hands.
The District Court rejected both of Lockwood’s arguments. As
for the first argument, the District Court held that even if there had
been a conflict between Heller’s testimony and the Dictionary, the
conflict was “reconciled because [Heller’s] testimony indicate[d] that
she based her opinion on her own experience observing the
performance of the identified jobs.” Lockwood v. Comm’r of Soc. Sec.,
No. 6:16‐CV‐0648, 2017 WL 2656194, at *5 (N.D.N.Y. June 20, 2017).
Therefore, it was “possible to reasonably infer” that Heller’s
experience was her basis for testifying “that [Lockwood] would be able
to perform [the jobs in question] despite a limitation for avoidance of
overhead reaching,” notwithstanding any contrary indications in the
Dictionary. Id.
As for Lockwood’s second argument, the District Court held
that the omission of Nurse Woods’s opinion had been harmless. See
id. at *6–8. In the District Court’s view, Nurse Woods’s opinion was
“ambiguous as to what precisely [Lockwood] is limited to doing with
his hands” and so did not undermine the Commissioner’s conclusion
that Lockwood could perform the jobs Heller had identified. Id. at *7.
Having so reasoned, the District Court granted the
Commissioner’s motion for judgment on the pleadings and denied
Lockwood’s. This appeal followed.
8
II. DISCUSSION
On appeal, Lockwood renews his arguments that the benefits
denial must be set aside because the Commissioner (1) failed to
examine an apparent conflict between Heller’s testimony and the
Dictionary and (2) failed to address Nurse Woods’s opinion regarding
Lockwood’s hand impairments. We agree with Lockwood on the first
point and therefore reverse the District Court’s judgment and remand
for further proceedings. In light of that holding, we need not address
Lockwood’s second argument.
A. Standard of Review
We may reverse the District Court’s decision to uphold the
Commissioner’s denial of benefits only if our “plenary review of the
administrative record” reveals that “the [Commissioner’s] factual
findings are not supported by ‘substantial evidence’” or that “the
[benefits] decision is based on legal error.” Shaw v. Chater, 221 F.3d
126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)).
B. Analysis
Our analysis begins and ends with Lockwood’s argument that
the Commissioner’s finding that he is capable of performing the three
jobs identified by Heller was not based on substantial evidence. In
Lockwood’s view, the evidence upon which the Commissioner relied
in determining what physical demands those jobs entail—Heller’s
testimony—cannot constitute substantial evidence because it contains
an apparent, unresolved conflict with the Dictionary. We agree and
9
therefore conclude that the District Court erred in declining to set
aside the Commissioner’s benefits denial.
Under the Social Security Act, a claimant is ineligible for
disability insurance benefits unless, among other things, he suffers an
impairment “of such severity that he . . . cannot, considering his age,
education, and work experience, engage in any . . . kind of substantial
gainful work which exists in the national economy.” 42 U.S.C.
§ 423(d)(2)(A); see also id. § 423(a)(1)(E). Accordingly, even where a
claimant is impaired to the point that he can no longer perform his
previous work, the Commissioner may properly deny benefits if,
considering the claimant’s “residual functional capacity”—i.e., his
physical capabilities notwithstanding his impairment, 20 C.F.R.
§ 404.1545—“and [his] age, education, and work experience,” the
claimant “can make an adjustment to other work,” id.
§ 404.1520(a)(4)(v). If benefits are denied on this basis, however, the
Commissioner bears the burden of “show[ing] that there is work in the
national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009) (per curiam).
A 2000 Social Security Administration Policy Interpretation
Ruling (the “Ruling”) governs the Commissioner’s assessment of
whether any particular job can accommodate a given claimant’s
physical limitations. Under the Ruling, the Commissioner “rel[ies]
primarily on the [Dictionary] . . . for information about the [job’s]
requirements” but “may also use [vocational experts] . . . to resolve
complex vocational issues.” SSR 00‐4p, 2000 WL 1898704, at *2 (Dec.
4, 2000). If the Commissioner does consider the testimony of such
10
experts, however, she must be alert to the possibility of “apparent
unresolved conflict[s]” between the testimony and the Dictionary. Id.
In light of this possibility, the Ruling tasks the Commissioner with “an
affirmative responsibility to ask about any possible conflict,” id. at *4,
and to “elicit a reasonable explanation for [any such] conflict before
relying on the [vocational expert’s testimony],” id. at *2.
Lockwood now argues, as he did in the District Court, that the
Commissioner in this case neglected the Ruling’s requirements. In
denying Lockwood’s benefits application, the Commissioner
concluded that Lockwood was “not disabled” within the meaning of
the Social Security Act because “there [were] jobs that exist[ed] in
significant numbers in the national economy that [he could] perform.”
R. 6–7. The Commissioner reasoned that even though Lockwood
suffered an impairment that required him to “avoid all overhead
reaching tasks,” Heller’s testimony had established that at least three
specific jobs existing collectively in significant number in the national
economy would accommodate this limitation. R. 6. But, as Lockwood
points out, the Dictionary establishes that each of these three jobs
requires occasional or frequent “reaching.” See Dictionary of
Occupational Titles 295.357‐018, 1991 WL 672589; id. 205.367‐014, 1991
WL 671715; id. 729.684‐054, 1991 WL 679729. And because a 1985
Social Security Program Policy Statement defines “reaching” as
“extending the hands and arms in any direction,” SSR 85‐15, 1985 WL
56857, at *7 (Jan. 1, 1985) (emphasis added), Lockwood goes on, the
Dictionary raises a potential inconsistency with Heller’s testimony that
a claimant with a restriction on overhead reaching is capable of
11
performing the three jobs at issue. In his view, then, the Ruling
required the Commissioner to probe this apparent conflict before
relying on Heller’s testimony.
We agree. As the Fourth Circuit has persuasively explained, the
Ruling mandates that whenever the Commissioner intends to “rely[]
on [a] vocational expert’s testimony,” she must identify and inquire
into all those areas “where the expert’s testimony seems to . . . conflict
with the Dictionary.” Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015)
(emphasis added). In other words, the Ruling requires the
Commissioner to “obtain a reasonable explanation” for any
“apparent”—even if non‐obvious—conflict between the Dictionary and
a vocational expert’s testimony.3 SSR 00‐4p, 2000 WL 1898704, at *2
(emphasis added). In both the 1985 Policy Statement and common
usage, “reaching” includes overhead reaching. Cf. Selian v. Astrue, 708
F.3d 409, 422 (2d Cir. 2013) (per curiam) (suggesting that the inability
to reach above one’s head may be inconsistent with a job that requires
reaching). Testimony that a claimant with overhead reaching
limitations is capable of performing a job that the Dictionary describes
as requiring “reaching,” then, creates at least an apparent conflict that
triggers the Commissioner’s duty to elicit an explanation that would
justify crediting the testimony. See, e.g., Prochaska v. Barnhart, 454 F.3d
731, 736 (7th Cir. 2006) (describing such testimony as raising “exactly
3 To the extent that other courts have understood the Ruling’s reference to
an “apparent conflict” to refer to a conflict that is “obvious,” see, e.g., Gutierrez v.
Colvin, 844 F.3d 804, 808–09 (9th Cir. 2016), we respectfully disagree for the reasons
the Fourth Circuit has cogently articulated, see Pearson, 810 F.3d at 209–10.
12
the sort of inconsistency the [Commissioner] should . . . resolve[]”); see
also Pearson, 810 F.3d at 210–11 (similar); Kemp ex rel. Kemp v. Colvin,
743 F.3d 630, 632–33 (8th Cir. 2014) (similar).
The Commissioner’s arguments to the contrary do not persuade
us. First, she suggests that there is no conflict between the expert
testimony and the Dictionary because describing a job as requiring
“reaching” does not necessarily establish that it requires overhead
reaching. See Gutierrez v. Colvin, 844 F.3d 804, 808–09 (9th Cir. 2016);
see also Segovia v. Astrue, 226 F. App’x 801, 804 (10th Cir. 2007) (“[E]ven
a job requiring frequent reaching does not necessarily require more
than occasional overhead reaching.” (emphasis in original)). But while
“this Court could guess” what the three jobs Heller identified “require
in reality, it [was] the [Commissioner’s] duty to elicit an explanation
from [Heller] as to whether th[ose] occupations actually require . . .
overhead reaching.” Spears v. Colvin, No. 15‐CV‐6236, 2016 WL
4973890, at *5 (W.D.N.Y. Sept. 19, 2016). The importance of teasing out
such details is precisely why the Commissioner bears an “affirmative
responsibility” to ask about “any possible conflict between [vocational
expert] evidence and information provided in the [Dictionary].” SSR
00‐4p, 2000 WL 1898704, at *4 (emphasis added). Absent such an
inquiry, the Commissioner lacks a substantial basis for concluding that
no such conflicts in fact exist. See Washington v. Comm’r of Soc. Sec., 906
F.3d 1353, 1366 (11th Cir. 2018) (“We take the word ‘apparent’ [as used
in the Ruling] to mean ‘seeming real or true, but not necessarily so.’”
(quoting Pearson, 810 F.3d at 209)).
13
Second, the Commissioner contends that the Dictionary’s
narrative descriptions of the three jobs at issue contain no express
reference to overhead reaching. Thus, the Commissioner invites us to
disregard the apparent conflict between Heller’s testimony and the
physical requirements enumerated in the Dictionary’s occupational
descriptions. See Burgess v. Colvin, No. 13‐CV‐6177, 2014 WL 1875360,
at *13 (W.D.N.Y. May 9, 2014) (consulting the narrative descriptions of
certain jobs requiring “reaching” to conclude that the jobs are
consistent with an overhead‐reaching limitation). This argument,
though, fails for essentially the reasons given above. While the
Dictionary’s narrative descriptions certainly make it conceivable that
the three jobs Heller identified do not require overhead reaching, the
Commissioner bore the burden of showing that Lockwood is actually
capable of performing those jobs. See Poupore, 566 F.3d at 306. If the
Commissioner wished to rely on Heller’s expert testimony to carry
that burden, the Ruling makes clear that she was obliged to identify
and resolve the apparent conflict between that testimony and the
Dictionary, even if there is a chance that, upon inquiry, no actual
conflict would have emerged.4
4 For the same reason, we decline to follow the District Court in “infer[ring]”
that Heller’s personal observations of the jobs about which she testified led her to
conclude that those jobs do not entail overhead reaching. Lockwood, 2017 WL
2656194, at *5. While Heller’s observations may well explain the apparent
discrepancy between her testimony and the Dictionary, the fact remains that it is the
Commissioner’s responsibility to “obtain a reasonable explanation” for any such
discrepancies, and not this Court’s obligation to concoct one post hoc. SSR 00‐4p,
2000 WL 1898704, at *1.
14
Third and finally, the Commissioner argues that even if—as we
have now concluded—the apparent conflict between Heller’s
testimony and the Dictionary triggered her duty to probe further, the
ALJ adequately carried out that duty. After Heller had identified three
jobs that, in her view, a person with Lockwood’s limitations could
perform, the ALJ asked whether this opinion “was consistent with [the
Dictionary].” R. 41. Heller replied, in relevant part, “It is.” Id.
According to the Commissioner, this exchange operated to resolve any
apparent conflict.
We disagree. As the Eleventh Circuit has recently explained,
the Commissioner’s duty “to identify and resolve apparent conflicts
between [the Dictionary] and [vocational expert] testimony . . . is not
fulfilled simply by taking the [vocational expert] at his word that his
testimony comports with the [Dictionary] when the record reveals an
apparent conflict.” Washington, 906 F.3d at 1362. Rather, the Ruling
places the onus on the Commissioner, acting through her ALJs, to
affirmatively “[i]dentify” any conflicts. SSR 00‐4p, 2000 WL 1898704,
at *1. Allowing the Commissioner to fulfill this obligation through
“catch‐all question[s]” like the one the ALJ posed during Lockwood’s
hearing would essentially shunt the Commissioner’s “duty to identify,
explain and resolve” apparent conflicts onto the testifying expert. Patti
v. Colvin, No. 13‐CV‐1123, 2015 WL 114046, at *6 (W.D.N.Y. Jan. 8,
2015). Particularly in light of “[t]he inquisitorial nature of disability
hearings”—in which claimants often appear pro se—we agree with the
Eleventh Circuit that the Ruling must be read to “impose[] an
independent, affirmative obligation on the part of the ALJ to
15
undertake a meaningful investigatory effort to uncover apparent
conflicts, beyond merely asking the [vocational expert] if there is one.”
Washington, 906 F.3d at 1364.
In the end, the Commissioner failed to reconcile Heller’s
testimony that a person with an overhead reaching limitation can
perform the three jobs at issue here with the Dictionary’s indication
that all three jobs require “reaching.” Heller’s testimony cannot, then,
represent substantial evidence capable of demonstrating that
Lockwood can successfully perform work in the national economy. It
may well be that the apparent conflict between Heller’s testimony and
the Dictionary is susceptible to easy resolution—if, for example, the
reaching involved in the three jobs at issue consists exclusively of
lateral or downward reaching. But it is not our role to speculate as to
how or whether that conflict might have been resolved had the
Commissioner carried out her responsibility to probe such matters.
Instead, we must reverse and remand for further proceedings so that
the Commissioner may have the opportunity to conduct the requisite
inquiry in the first instance.
In light of this result, the Court has no occasion to reach
Lockwood’s argument that the Commissioner failed to address Nurse
Woods’s opinion regarding Lockwood’s hand impairments. Neither
the ALJ nor the Appeals Council explicitly addressed Nurse Woods’s
opinion when denying Lockwood’s benefits application. See R. 4–7,
17–24. The Commissioner maintains that this omission is of no
moment: She argues that the record makes clear that the nurse’s
opinion was in fact considered, if not explicitly remarked upon, and
16
that any failure to consider the opinion would have been harmless in
any event. Lockwood disagrees on both points. Because Lockwood’s
case must return to the agency either way for the reasons already
given, the Commissioner will have the opportunity on remand to
obviate this dispute altogether by giving express consideration to
Nurse Woods’s opinion and by making clear what, if any, weight it
merits.
III. CONCLUSION
To summarize, we hold that the District Court erred in
determining that substantial evidence supported the Commissioner’s
denial of Lockwood’s disability insurance benefits application. This is
because the Commissioner’s denial was based on evidence that
contained an apparent conflict with the Dictionary’s authoritative
guidance, and yet the Commissioner failed to take any steps to explore
or resolve that conflict. In light of this holding, we decline to address
Lockwood’s argument that reversal is independently warranted as a
consequence of the Commissioner’s failure to expressly consider
Nurse Woods’s medical opinion.
For the foregoing reasons, we REVERSE the District Court’s
judgment and REMAND for further proceedings.
17