Genier v. Astrue

298 F. App'x 105
CourtCourt of Appeals for the Second Circuit
DecidedNovember 5, 2008
DocketNo. 07-1727-cv
StatusPublished
Cited by177 cases

This text of 298 F. App'x 105 (Genier v. Astrue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Genier v. Astrue, 298 F. App'x 105 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Jean Genier appeals from an order entered March 27, 2007 by the District Court for the Northern District of New York (Homer, J.) affirming the Commissioner of Social Security’s denial of her application for benefits. In August 2008, this court granted Genier’s pre-argument motion to submit evidence of her January 2007 Multiple Sclerosis (“MS”) diagnosis. We assume the parties’ familiarity with the un[106]*106derlying facts, the procedural history, and the issues on appeal.

Genier contends that the Commissioner failed to meet his burden of proof that Genier could perform other work available in the national economy, because the administrative law judge (“ALJ”) erred by: (1) concluding that Genier had the residual functional capacity to perform light and sedentary work; (2) rejecting Genier’s credibility; and (3) violating the treating physician rule. We review the ALJ’s decision to determine if it is supported by substantial evidence.

When a district court reviews a determination of the Commissioner, we “review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

We vacate and remand with instructions to remand to the Commissioner of Social Security for reconsideration of Genier’s residual functional capacity in light of her exertional and non-exertional limitations, and for consideration of Genier’s MS diagnosis.

Genier first argues that the ALJ erred by: (1) finding that she was able to perform light and sedentary work during the period in question (July 31, 2001 through October 31, 2003), and (2) by providing the vocational expert with inaccurate assessments of her limitations.

In assessing Genier’s residual functional capacity, the ALJ noted that a functional assessment revealed that she was only “moderately limited” with respect to “standing, lifting, carrying, climbing stairs, understanding and remembering instructions, carrying out instructions, maintaining attention and concentration, interacting appropriately with others, maintaining socially appropriate[ ] behavior and functioning in a work setting....” He also acknowledged that she was “very limited” with respect to pushing, pulling, and bending. In light of these limitations, and in the absence of other definitive medical evidence that she had any specific disabling condition, the ALJ relied on the vocational expert’s testimony that housekeeper, office helper, surveillance system monitor and preparer positions remained viable job options for Genier.

It is apparent that the ALJ’s assessment of Genier’s abilities do not reflect the full range of Genier’s medical problems and was not, therefore, supported by substantial evidence. A number of the positions suggested by the vocational expert clearly seem beyond Genier’s abilities during the period in question. For example, with regard to “light” work, the vocational expert suggested that Genier could be a “housekeeper/cleaner”, even though the ALJ posited that Genier had only infrequent use of her dominant right hand. The expert also suggested that Genier could take “an office helper position,” although it is unclear exactly what responsibilities this position would entail (and therefore, whether Genier could actually perform the job in light of her limitations). It seems, however, that “housework” might be difficult without the regular use of a dominant hand, and that an “office helper” job might involve dealing frequently with others, a fact which could exacerbate Genier’s various social phobias and/or her anxiety level. Ultimately, both of these positions were eliminated when it was suggested that Genier had a sit/stand limitation. When faced with that limitation, the vocational expert suggested two sedentary positions: [107]*107“surveillance system monitor” and “preparer”.

Given Genier’s mental and emotional difficulties, the surveillance system monitor position seems an odd choice. To suggest that Genier could “monitor” a surveillance system raises the question: what would Genier do if she “monitored” something which required a response? Even absent her physical problems, her short term memory problems and cognitive impairments (?'. e., her full-scale IQ of 81 and her 1998 diagnosis of “borderline intellectual functioning”, both of which clearly impacted Genier’s abilities during the period at issue), suggest that Genier might not have the wherewithal to select and execute the appropriate response if the surveillance system she was monitoring presented a stimulus. In fact, the vocational expert herself suggested there might be a problem if Genier was unable to maintain concentration, make quick judgments, or understand emergency situations. The expert stated that an individual with such difficulties may be “able to get hired in the position but would not be able to maintain [it] for [any period of] longevity,” and might not be able to perform the surveillance system monitor position at all. These assessments are probative of the ALJ’s residual functional capacity assessment given that “[t]o be capable of performing sedentary work under the guidelines, an individual must have some reasonable chance in the real world of being hired and, once hired, of keeping the job.” Wingo v. Bowen, 852 F.2d 827, 831 (5th Cir.1988).

The alternative “preparer” position suggested by the vocational expert is equally problematic. The vocational expert described a “preparer” as someone who “[c]uts, saws, or breaks off gates using shears or foot press to the cutting tool and remove[s] spurs and smoothes [sic] rough edges for casting.” Not only does this position sound particularly arduous, but given Genier’s inability to concentrate, her problems with her dominant hand, and her episodes of numbness and tingling in her arms and legs (reported at least as early as 1998), it seems downright unsafe to expect such an individual to perform a job which regularly involves saws, cutting tools, foot presses, and 45 other sharp, heavy objects.

Granted, Genier’s file contains inconsistencies, and the ALJ discounted somewhat the extent of Genier’s limitations on the basis that some of her reported symptoms are not supported by a medical diagnosis. As to that, Genier raises a second ground of objection. The second objection further supports our decision to vacate and remand for reconsideration of the vocational expert’s testimony and Genier’s actual ex-ertional and non-exertional limitations.

Genier argues that the ALJ erred by discounting her credibility and therefore underestimating her non-exertional limitations with respect to her residual functional capacity. In his decision, the ALJ acknowledged that “Social Security Regulations require that consideration be given to the claimant’s subjective complaints of pain and other symptoms”, and in Snell v. Apfel,

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298 F. App'x 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genier-v-astrue-ca2-2008.