16-3840-cv
Klemens v. Berryhill

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                     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 “SUMMARY 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
3rd day of October, two thousand seventeen.

Present:
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                    Circuit Judges,
            JED S. RAKOFF,
                    District Judge.*
_____________________________________

JAMES A. KLEMENS, JR.,

                       Plaintiff-Appellant,

                 v.                                                16-3840-cv

NANCY A. BERRYHILL, ACTING COMMISSIONER           OF
SOCIAL SECURITY,

                  Defendant-Appellee.**
_____________________________________


*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
**
   Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Commissioner of Social
Security Nancy A. Berryhill is automatically substituted for former Acting Commissioner of
Social Security Carolyn W. Colvin as Defendant-Appellee. The Clerk of the Court is
respectfully directed to amend the caption as above.
For Plaintiff-Appellant:                    TIMOTHY HILLER, Law Offices of Kenneth Hiller,
                                            PLLC, Amherst, New York.

For Defendant-Appellee:                     ROBERT R. SCHRIVER (Heetano Shamsoondar, Stephen
                                            P. Conte, on the brief), for James P. Kennedy, Jr.,
                                            Acting United States Attorney for the Western District
                                            of New York, Buffalo, New York.

       Appeal from a judgment of the United States District Court for the Western District of

New York (Skretny, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED

to the district court for further proceedings consistent with this order.

       Plaintiff-Appellant James A. Klemens, Jr. appeals from a July 11, 2016 judgment of the

United States District Court for the Western District of New York (Skretny, J.) affirming the

decision of the Commissioner of the Social Security Administration (“Commissioner”) denying

Klemens disability insurance benefits and supplemental security income payments under the

Social Security Act.       We presume the parties’ familiarity with the underlying facts, the

procedural history, and the issues presented for review.

       When we review an appeal from a denial of disability benefits, “we focus on the

administrative ruling rather than the district court’s opinion.”      McIntyre v. Colvin, 758 F.3d

146, 149 (2d Cir. 2014) (quoting Kohler v. Astrue, 546 F.3d 260, 264–65 (2d Cir. 2008))

(internal quotation marks omitted). “We ‘conduct a plenary review of the administrative record

to determine if there is substantial evidence, considering the record as a whole, to support the

Commissioner’s decision and if the correct legal standards have been applied.’” Id. (quoting

Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).       The familiar substantial evidence standard

means “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind


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might accept as adequate to support a conclusion.’” Perez v. Chater, 77 F.3d 41, 46 (2d Cir.

1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

        “Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ

generally has an affirmative obligation to develop the administrative record.” Id. at 47 (citing

Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The ALJ’s

affirmative duty to develop the record “exists even when the claimant is represented by counsel.”

Id.   As part of the ALJ’s duty to develop the record, “[i]t is the function of the [Commissioner],

not ourselves, to resolve evidentiary conflicts and to appraise the credibility of witnesses,

including the claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d

Cir. 1983) (citations omitted).   “Among the ALJ’s legal obligations is the duty to adequately

explain his reasoning in making the findings on which his ultimate decision rests, and in doing so

[he] must address all pertinent evidence.”      Calzada v. Asture, 753 F. Supp. 2d 250, 269

(S.D.N.Y. 2010).    An ALJ’s “failure to acknowledge relevant evidence or to explain its implicit

rejection is plain error.” Ceballos v. Bowen, 649 F. Supp. 693, 702 (S.D.N.Y. 1986) (citing

Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1045 (2d Cir. 1984)).       Although, of

course, every conflict in the record need not be reconciled by the ALJ, “the crucial factors in any

determination must be set forth with sufficient specificity to enable us to decide whether the

determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587

(2d Cir. 1984); see also Social Security Ruling 82–62, Titles II and XVI: A Disability Claimant’s

Capacity to Do Past Relevant Work, in General (“SSR 82–62”), 1982 WL 31386, at *4 (S.S.A.

Jan. 1, 1982).

        On appeal, Klemens challenges the ALJ’s Step Four determination that he could return to

his “past relevant work” as a cleaner and refurbisher of apartments.       In particular, Klemens


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argues that the ALJ did not adequately explain why his past work as a cleaner and refurbisher of

apartments in 2007 constituted “substantial gainful activity.”    In the ALJ’s decision, the entirety

of the discussion regarding whether Klemens’s past work as a cleaner and refurbisher of

apartments amounted to “substantial gainful activity” is confined to a single sentence, consisting

of the recitation that “[t]he claimant performed this job [i.e., a cleaner] within the past 15 years, a

sufficient time for him to learn it, and with sufficient earnings to raise the presumption of

substantial gainful activity.”    C.A.R. 27.      We agree with Klemens that the ALJ’s lone

sentence, without more, is inadequate, and therefore remand so that the ALJ may explain in

greater detail whether Klemens’s past work as a cleaner and refurbisher of apartments

constituted “substantial gainful activity.”

       Under the Commissioner’s regulations, “past relevant work” is defined as “work that you

have done within the past 15 years, 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) (emphasis added). For work to

qualify as “substantial gainful activity,” a claimant’s earnings must exceed an amount prescribed

in regulations and, as relevant here, in a table on the Social Security Administration’s website.

See 20 C.F.R. § 404.1574(b)(2); Soc. Sec. Admin., Substantial Gainful Activity,

https://www.ssa.gov/oact/cola/sga.html.       Per the table on the Social Security Administration’s

website, in 2007, the monthly “substantial gainful activity” amount was $900, which would

exceed $10,000 over a 12-month period.

       The record is rife with inconsistent information regarding Klemens’s 2007 earnings from

his work as a cleaner and refurbisher of apartments.       First, Form SSA-3368 titled “Disability

Report” and completed by Jessica Dayton of Chautauqua County Mental Health notes that,

between February and August of 2007, Klemens worked as a “laborer,” where he “clean[ed][]


                                                   4
[and] refurbish[ed] apartments,” for eight hours per day, five days per week, at the rate of $7.50

per hour. C.A.R. 151.       These earnings, if accurate, would total approximately $1,200 per

month (above the $900 “substantial gainful activity” monthly threshold). Second, in contrast,

Klemens’s certified earnings records – i.e., Internal Revenue Service records reflecting a

claimant’s reported earnings – seem to suggest that he earned $2,915.63 total in 2007 ($811.88

from “David M. Civilette” and $2,103.75 from “Express Services Inc.”).              C.A.R. 122; 125.   If

accurate, these earnings would be far less than the $10,800 “substantial gainful activity” annual

threshold. Klemens also maintains that his earnings from his work as a cleaner and refurbisher

are limited to only the $811.88 from “David M. Civilette.” Even among the parties, there is no

dispute that the hours and wages in the first entry (Form SSA-3368), if correct, would qualify as

“substantial gainful activity,” but the hours and wages in the second entry (the certified earnings

records), if correct, would not rise to the “substantial gainful activity” level.     Third, a 2012 form

that appears to have been submitted to the Social Security Administration indicates that, from

“May/June 2007 to September 2007,” Klemens worked for “David Civilette” in connection with

“cleaning/renovation of apartments.” C.A.R. 273. As a further discrepancy, this third entry

(the 2012 form) provides different dates of employment than does the first entry.

       At Klemens’s ALJ hearing, rather than address or try to make sense of these apparent

inconsistencies regarding Klemens’s 2007 work and earnings history, the ALJ instead asked

about Klemens’s work after June 2008.        In response, Klemens said that he had worked “under

the table” three times since June 2008, for eight hours on each occasion. Notwithstanding the

discussion of Klemens’s 2008 work history, the ALJ failed to elicit any testimony regarding

Klemens’s 2007 work as a cleaner and refurbisher of apartments.           And in its ruling, the ALJ

merely asserted – without any discussion – that Klemens performed the job as a cleaner with


                                                   5
“sufficient earnings to raise the presumption of substantial gainful activity.”    C.A.R. 27.   The

ALJ did not, for example, find (or even allude) that Klemens’s certified earnings record omitted

certain income, nor did the ALJ expressly recognize the existence of (much less reconcile) the

various pieces of contradictory evidence.    Moreover, the ALJ did not provide a record citation

to any of the pertinent evidence discussed in this appeal, which would have at least provided

some indication that he had considered the contrary evidence.      In short, based on our review of

the certified administrative record, the ALJ simply failed to acknowledge relevant evidence or

explain his implicit rejection of the conflicting evidence. See Bowen, 649 F. Supp. at 702

(citing Valente, 733 F.2d at 1045). In light of the deficiencies in the ALJ’s findings and the

need for a remand so that the ALJ may set forth his reasoning with greater clarity, this Court

expresses no opinion at this time as to whether substantial evidence supported the ALJ’s

determination that Klemens’s past work as a cleaner and refurbisher of apartments constituted

“substantial gainful activity.” See Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).

       Additionally, assuming arguendo that Klemens’s 2007 work as a cleaner amounted to

“substantial gainful activity,” we also express no view at this time as to whether the ALJ

adequately explained why Klemens could return to this past work.       Indeed, resolving this matter

now would be premature because remand will result in further record development regarding

Klemens’s prior cleaning experience and, if the ALJ determines on remand that Klemens’s 2007

cleaning work did not rise to the “substantial gainful activity” level, then the ALJ (and any

reviewing court on appeal) would not even reach the issue.1



1
  If the ALJ does reach this inquiry, we have previously explained that, in determining a
claimant’s ability to perform past relevant work, the ALJ must “at the very least” conduct “‘a
careful appraisal of (1) the individual’s statements as to which past work requirements can no
longer be met and the reason(s) for . . . [the] inability to meet those requirements; [and] (2) [the]

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       Accordingly, we VACATE the judgment of the district court and REMAND the case to

the district court with instructions to remand the matter to the Commissioner for further

proceedings consistent with this order.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




medical evidence establishing how the impairment limits [the claimant’s] ability to meet the
[work’s] physical and mental requirements . . . . .’” Abbott v. Colvin, 596 F. App’x 21, 23 (2d
Cir. 2015) (summary order) (quoting SSR 82–62, 1982 WL 31386, at *3). “Indeed, ‘[t]he
decision as to whether the claimant retains the functional capacity to perform past work which
has current relevance has far-reaching implications and must be developed and explained fully in
the disability decision.’” Id. (quoting SSR 82–62, 1982 WL 31386, at *3) (emphasis in
Abbott).


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