        10-2070-cv
        Petrie v. Astrue

                                  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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 8th day of March, two thousand eleven.
 4
 5      PRESENT:
 6
 7               WILFRED FEINBERG,
 8               DEBRA ANN LIVINGSTON,
 9               RAYMOND J. LOHIER, JR.,
10
11                              Circuit Judges.
12      _______________________________________________
13
14      BRUCE D. PETRIE,
15
16                                    Plaintiff-Appellant,
17
18                         v.                                               No. 10-2070-cv
19
20      MICHAEL J. ASTRUE, Commissioner of Social Security,
21
22                              Defendant-Appellee.
23      ______________________________________________
24
25                                            HOWARD D. OLINSKY (Jaya Shurtliff, on the brief), Olinsky
26                                            & Shurtliff, Syracuse, New York, for Plaintiff-Appellant.
27
28                                            SUSAN REISS, Special Assistant U.S. Attorney (Stephen P.
29                                            Conte, Regional Chief Counsel – Region II, Office of the
30                                            General Counsel Social Security Administration, on the


                                                         1
 1                                         brief), for Richard S. Hartunian, U.S. Attorney for the
 2                                         Northern District of New York, Syracuse, New York, for
 3                                         Defendant-Appellee.

 4          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 5   that the judgment of the district court be AFFIRMED.

 6          Plaintiff-Appellant Bruce D. Petrie (“Petrie”) appeals from a judgment of the U.S. District

 7   Court for the Northern District of New York (Sharpe, J.) affirming the decision of the Commissioner

 8   of Social Security Michael J. Astrue (“Commissioner”), and dismissing Petrie’s complaint. Petrie

 9   challenges the Commissioner’s denial of Disability Insurance Benefits (“DIB”) and Supplemental

10   Security Income (“SSI”) under the Social Security Act, 42 U.S.C. § 301 et seq. Pursuant to 28

11   U.S.C. § 636(b)(1), Petrie’s case was referred to a Magistrate Judge (Bianchini, M.J.) who issued

12   a Report and Recommendation (“R&R”) recommending that the decision of the Commissioner be

13   affirmed. On March 19, 2010, the district court adopted the R&R in its entirety and dismissed

14   Petrie’s complaint. Petrie timely appealed on May 17, 2010. We assume the parties’ familiarity

15   with the underlying facts and procedural history.

16          On appeal, Petrie argues that the Administrative Law Judge (“ALJ”) failed to apply the

17   proper legal standards in evaluating his mental impairments and his residual functional capacity

18   (“RFC”),1 and in denying him DIB and SSI benefits under the Social Security Act. Petrie contends

19   that the ALJ did not properly apply the “Treating Physician Rule,” 20 C.F.R. §§ 404.1527, 416.927,

20   and the Psychiatric Review Technique (also called the “Special Technique”). Petrie also argues that

21   the ALJ was required to consult a vocational expert to determine whether Petrie could perform his


            1
              The Social Security Administration’s regulations define RFC as the most work a
     claimant can perform in a work setting despite his physical or mental limitations. See 20 C.F.R.
     § 404.1545(a).

                                                     2
 1   past work as a cook.

 2          “When considering an appeal of a disability case, we undertake our own plenary review of

 3   the administrative record to determine whether substantial evidence supports the [Commissioner]’s

 4   denial of benefits.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal quotation marks

 5   omitted). Our focus “‘is not so much on the district court’s ruling as it is on the administrative

 6   ruling.’” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Schaal v. Apfel, 134 F.3d 496,

 7   500-01 (2d Cir. 1998)). We do not determine de novo whether a claimant is disabled; rather, we set

 8   aside an ALJ’s decision only where it is “based upon legal error or is not supported by substantial

 9   evidence.” Pratts, 94 F.3d at 37. Substantial evidence is “‘more than a mere scintilla. It means

10   such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

11   Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We must “consider[ ] the whole

12   record, examining the evidence from both sides, because an analysis of the substantiality of the

13   evidence must also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen,

14   859 F.2d 255, 258 (2d Cir. 1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

15   (1951)).

16          For purposes of both DIB and SSI eligibility, a claimant is “disabled,” and thus entitled to

17   benefits, where he demonstrates an “inability to engage in any substantial gainful activity by reason

18   of any medically determinable physical or mental impairment which can be expected to result in

19   death or which has lasted or can be expected to last for a continuous period of not less than 12

20   months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Berry v. Schweiker, 675 F.2d 464,

21   466 (2d Cir. 1982). A claimant’s physical or mental impairment is not “disabling” under the Social

22   Security Act unless it is “of such severity that he is not only unable to do his previous work but


                                                      3
 1   cannot, considering his age, education, and work experience, engage in any other kind of substantial

 2   gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B);

 3   see also Rosa, 168 F.3d at 77.

 4          The Social Security Administration has promulgated a five-step sequence for evaluating

 5   disability claims. 20 C.F.R. §§ 404.1520, 416.920; see also Berry, 675 F.2d at 467. First, the

 6   Commissioner of Social Security considers whether the claimant is currently engaged in “substantial

 7   gainful activity.” 20 C.F.R. §§ 404.1520 (a)(4)(i), 416.920(a)(4)(i); see also Berry, 675 F.2d at 467.

 8   If he is not, the Commissioner proceeds to the second step and determines whether the claimant has

 9   a “severe medically determinable physical or mental impairment,” 20 C.F.R. §§ 404.1520(a)(4)(ii),

10   416.920(a)(4)(ii), that “significantly limits his physical or mental ability to do work activities,”

11   Berry, 675 F.2d at 467. If the claimant does suffer such an impairment, the third step is “whether,

12   based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of

13   the regulations.”     Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),

14   416.920(a)(4)(iii). If so, the claimant is per se “disabled” and thus presumptively qualified for

15   benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If not, the Commissioner

16   proceeds to the fourth step and examines whether, “despite the claimant’s severe impairment, he has

17   the residual functional capacity to perform his past work.” Berry, 675 F.2d at 467; see also 20

18   C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is unable to perform his past work,

19   the Commissioner finally determines whether there is other work the claimant can perform, taking

20   into consideration the claimant’s RFC, age, education, and work experience. See 20 C.F.R.

21   §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Berry, 675 F.2d at 467.

22          The claimant bears the burden of proof as to the first four steps. See Rosa, 168 F.3d at 77;


                                                       4
 1   Berry, 675 F.2d at 467. Once the claimant has fulfilled his burden, it shifts to the Commissioner at

 2   step five. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). This, however, is only a limited

 3   burden shift, in that the Commissioner “need only show that there is work in the national economy

 4   that the claimant can do; he need not provide additional evidence of the claimant’s residual

 5   functional capacity.” Id.; see also 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2).

 6   A. Treating Physician Rule

 7          Petrie first contends that the ALJ misapplied the Treating Physician Rule by failing to give

 8   various medical opinions controlling weight. He also argues that the ALJ had an obligation to re-

 9   contact Petrie’s treating sources when he found their opinions inadequate. Further, Petrie argues

10   that, in giving his treating physicians’ opinions minimal weight, the ALJ failed to consider all

11   relevant factors. Petrie’s objections have no merit.

12          “A treating physician’s statement that the claimant is disabled cannot itself be

13   determinative.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation

14   marks omitted). Nevertheless, under the “treating physician” rule, “a treating source’s opinion on

15   the issue(s) of the nature and severity of [a claimant’s] impairment(s)” is given “controlling weight”

16   if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic

17   techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20

18   C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Green-Younger, 335 F.3d at 106; Schisler v.

19   Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).

20          “The opinion of a treating physician is accorded extra weight because the continuity of

21   treatment he provides and the doctor/patient relationship he develops place him in a unique position

22   to make a complete and accurate diagnosis of his patient.” Mongeur v. Heckler, 722 F.2d 1033,


                                                       5
 1   1039 n.2 (2d Cir. 1983) (per curiam). The opinion of the treating physician “is not afforded

 2   controlling weight where . . . the treating physician issued opinions that are not consistent with other

 3   substantial evidence in the record, such as the opinions of other medical experts.” Halloran v.

 4   Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). The report of a consultative physician may

 5   constitute such substantial evidence. Mongeur, 722 F.2d at 1039.

 6          1. Controlling Weight

 7          Petrie insists that the medical opinions of two of his physicians, who concluded that he could

 8   not perform unskilled work, were entitled to controlling weight. The ALJ refused to give controlling

 9   weight to these opinions because one of the physicians, Dr. Suresh Patil, had only examined Petrie

10   once, while the other, Dr. Vilas Patil, had only four treatment notes bearing his signature, two of

11   which were merely co-signatures on reports by other providers. In addition, Dr. Vilas Patil

12   completed his medical opinion over a year after he had last personally seen Petrie. Petrie

13   nevertheless contends that this was an improper ground on which to refuse to give controlling

14   weight, since all of his mental health providers worked at the same institution and thus had access

15   to Petrie’s records and to one another.

16          We disagree. In Mongeur, we emphasized that the opinion of a treating physician is given

17   extra weight because of his unique position resulting from the “continuity of treatment he provides

18   and the doctor/patient relationship he develops.” 722 F.2d at 1039 n.2 (emphasis added). By

19   contrast, we reasoned that a physician who only examined a claimant “once or twice” did not see

20   that claimant regularly and did not develop a physician/patient relationship with the claimant, id.,

21   even though other practitioners in the same facility had also submitted medical opinions on behalf

22   of the claimant, id. at 1035. As a result, we concluded that such a physician’s medical opinion was


                                                        6
 1   “not entitled to the extra weight of that of a ‘treating physician.’” Id. at 1039 n.2. The ALJ

 2   therefore did not err in refusing to find Drs. Vilas Patil’s and Suresh Patil’s opinions controlling, due

 3   to the physicians’ “limited and remote contact” with Petrie.

 4           Moreover, the medical opinions submitted by Petrie were contradicted by those of several

 5   medical experts. See Halloran, 362 F.3d at 32; Mongeur, 722 F.2d at 1039. As the ALJ noted, two

 6   consultative psychologists, including one from the state agency, opined that he had abilities

 7   sufficient to perform unskilled work. The ALJ rightly found that these opinions were consistent

 8   with Petrie’s mental status reports, which noted significant improvements since Petrie had begun

 9   treatment. The ALJ relied on these reports to find that Petrie had been sleeping well, maintained

10   a good appetite, had good humor and appropriate affect, and was generally cooperative. He also

11   observed that Petrie’s Global Assessment of Functioning Score (“GAF”)2 was assessed at 65,

12   indicating mild symptoms but generally good functioning. The ALJ therefore did not err in

13   concluding that Drs. Vilas Patil’s and Suresh Patil’s opinions were not entitled to controlling weight.

14           2. Obligation to Seek Additional Information

15           Petrie next argues that the ALJ was required to seek additional information from Petrie’s

16   treating sources before refusing to give their opinions controlling weight. Petrie’s contention is

17   without merit.



             2
               GAF is a scale that indicates the clinician’s overall opinion of an individual’s
     psychological, social, and occupational functioning. American Psychiatric Association,
     Diagnostic and Statistical Manual of Mental Disorders 376-77 (4th ed., text revision, 2000)
     (“DSM-IV-TR”). The GAF scale ranges from 0 to 100; GAF scores from 61-70 indicate some
     mild symptoms or some difficulty in social, occupational, or school situations, but general
     functioning and the existence of some meaningful personal relationships. DSM-IV-TR at 34.
     GAF scores between 51-60 indicate that the individual has moderate symptoms or moderate
     difficulty in social, occupational, or school situations. DSM-IV-TR at 34.

                                                        7
 1          We have held that “an ALJ cannot reject a treating physician’s diagnosis without first

 2   attempting to fill any clear gaps in the administrative record.” Rosa, 168 F.3d at 79 (citing Schaal,

 3   134 F.3d at 505). “[W]here there are deficiencies in the record, an ALJ is under an affirmative

 4   obligation to develop a claimant’s medical history even when the claimant is represented by

 5   counsel.” Id. (internal quotation marks omitted). However, we have also recognized “the flip-side

 6   of this same proposition”: “where there are no obvious gaps in the administrative record, and where

 7   the ALJ already possesses a ‘complete medical history,’ the ALJ is under no obligation to seek

 8   additional information in advance of rejecting a benefits claim.” Id. at 79 n.5.

 9          Petrie does not point to, nor do we find, any “deficiencies” or “obvious gaps” in the

10   administrative record. To the contrary, the voluminous record is replete with Petrie’s medical

11   records detailing the course of his impairments and treatment. The ALJ was therefore under no

12   obligation to seek additional information from Petrie’s treating sources.

13          3. Failure to Consider All Factors

14          Petrie next contends that the ALJ failed to consider all relevant factors in giving his treating

15   physicians’ opinions minimal weight. This contention is also without merit.

16          When an ALJ refuses to give controlling weight to the medical opinion of a treating

17   physician, he/she must consider various “factors” in deciding how much weight to give the opinion.

18   See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Halloran, 362 F.3d at 32. These factors include:

19   “(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii)

20   the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with

21   the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to

22   the Social Security Administration’s attention that tend to support or contradict the opinion.”


                                                       8
 1   Halloran, 362 F.3d at 32; Schaal, 134 F.3d at 503. The Commissioner must also give “good

 2   reasons” for the weight given to the treating source’s opinion. 20 C.F.R. §§ 404.1527(d)(2),

 3   416.927(d)(2); Halloran, 362 F.3d at 32; Schaal, 134 F.3d at 503-04. Nevertheless, where “the

 4   evidence of record permits us to glean the rationale of an ALJ’s decision, we do not require that he

 5   have mentioned every item of testimony presented to him or have explained why he considered

 6   particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.” Mongeur,

 7   722 F.2d at 1040; see also Halloran, 362 F.3d at 32; Berry, 675 F.2d at 469. Similarly, where

 8   “application of the correct legal standard could lead to only one conclusion, we need not remand.”

 9   Schaal, 134 F.3d at 504.

10          Of the above-listed factors, Petrie complains that the ALJ did not expressly consider: 1) the

11   length of the treatment relationship and frequency of the examination; 2) the extent to which the

12   opinions of Drs. Vilas Patil and Suresh Patil were supported by medical and laboratory findings; and

13   3) whether the physicians are specialists. This contention is without merit.

14          At the start, the ALJ clearly considered the length of the treatment relationship and frequency

15   of the examination in assigning minimal weight to Dr. Vilas Patil’s opinion, since he noted that Dr.

16   Patil had only four treatment notes bearing his signature, two of which appeared to be for

17   examinations performed by another provider. Dr. Vilas Patil’s own opinion states that he treated

18   Petrie “sporadically,” and the ALJ also observed that at the time Dr. Patil rendered his opinion, it

19   had been a year since he had last seen Petrie personally. Similarly, the ALJ assigned minimal

20   weight to Dr. Suresh Patil’s opinion because it followed only one initial appointment with Petrie.

21          Moreover, although he ultimately found Dr. Suresh Patil’s opinion to have little weight, the

22   ALJ clearly considered the extent to which it was supported by medical findings. The ALJ credited


                                                      9
 1   Dr. Suresh Patil’s assigning a GAF score of 55-60 to Petrie, indicating “merely moderate symptoms

 2   or difficulty functioning,” and Dr. Patil’s observation that Petrie had a poor treatment compliance

 3   record and sometimes stopped his medications altogether, resulting in an increase in symptoms. The

 4   ALJ’s express consideration of Dr. Vilas Patil’s medical opinion was brief, moreover, principally

 5   because the medical opinion itself contained few medical or laboratory findings to consider. Dr.

 6   Vilas Patil described his clinical findings by listing symptoms that Petrie himself reported, and by

 7   noting that Petrie displayed “good eye contact, euthymic mood, and anxiety.” Dr. Vilas Patil’s

 8   opinion also declined to assign Petrie a GAF score on the basis of “insufficient information.”

 9          Finally, the ALJ did not expressly discuss the fact that Drs. Vilas Patil and Suresh Patil were

10   specialists and thus entitled to have their opinions be given greater weight. It is nevertheless clear

11   from the record as a whole that the ALJ properly considered this factor. The regulations provide that

12   an opinion of a specialist regarding medical issues related to his or her area of specialty must be

13   given more weight than the opinion of a source who is not a specialist. See 20 C.F.R.

14   §§ 404.1527(d)(5), 416.927(d)(5). The regulations treat statements from both physicians and

15   psychologists as “medical opinions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (“Medical

16   opinions are statements from physicians and psychologists . . . that reflect judgments about the

17   nature and severity of [a claimant’s] impairment(s) . . . .”). Here, the ALJ expressly treated the

18   assessments of Drs. Vilas Patil and Suresh Patil as “medical opinions of record” and noted that,

19   pursuant to a ruling of the Social Security Administration, findings of fact made by a state agency

20   psychological consultant must be treated as an expert opinion, albeit one from a non-examining

21   source. See SSR 96-6p.

22          In sum, the ALJ gave proper consideration to all relevant factors pursuant to applicable


                                                      10
 1   regulations. Petrie’s argument is therefore unpersuasive.

 2   B. Psychiatric Review Technique

 3           Petrie next argues that the ALJ failed to apply properly the Psychiatric Review Technique

 4   at the second and third steps of the five-step evaluation. Petrie generally repeats his claim, here, that

 5   the ALJ failed to give proper weight to the medical opinions of Drs. Vilas and Suresh Patil. We

 6   disagree.

 7           In addition to the five-step analysis, the regulations “require application of a ‘special

 8   technique’ at the second and third steps of the five-step framework.” Kohler v. Astrue, 546 F.3d

 9   260, 265 (2d Cir. 2008); see also 20 C.F.R. §§ 404.1520a(a), 416.920a(a). This technique “requires

10   a reviewing authority to determine first whether the claimant has a ‘medically determinable mental

11   impairment.’” Kohler, 546 F.3d at 265-66 (quoting 20 C.F.R. § 404.1520a(b)(1)). “If the claimant

12   is found to have such an impairment, the reviewing authority must ‘rate the degree of functional

13   limitation resulting from the impairment(s) in accordance with paragraph (c),’ . . . which specifies

14   four broad functional areas.” Id. at 266 (quoting 20 C.F.R. § 404.1520a(b)(2)). These areas are:

15   “(1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4)

16   episodes of decompensation.” Id. (citing 20 C.F.R. § 404.1520a(c)(3)), see also 20 C.F.R

17   § 416.920a(c)(3).

18           Each of the first three areas is rated on a scale of “[n]one, mild, moderate, marked, and

19   extreme.” 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). The fourth area is rated on a scale of

20   “[n]one, one or two, three, four or more.” Id. “[I]f the degree of limitation in each of the first three

21   areas is rated ‘mild’ or better, and no episodes of decompensation are identified, then the reviewing

22   authority generally will conclude that the claimant’s mental impairment is not ‘severe’ and will deny


                                                        11
 1   benefits.” Kohler, 546 F.3d at 266. By contrast, if the claimant’s mental impairment is severe, then

 2   the reviewing authority must “compare the relevant medical findings and the functional limitation

 3   ratings to the criteria of listed mental disorders” to determine whether the impairment “meets or is

 4   equivalent in severity to any listed mental disorder.” Id. (citing 20 C.F.R. § 404.1520a(d)(2)). If

 5   yes, then the claimant is “disabled.” Id. If not, the reviewing authority must then assess the

 6   claimant’s residual functional capacity. Id. (citing 20 C.F.R. § 404.1520a(d)(3)).

 7          The regulations also require that the application of the special technique be documented. Id.

 8   (citing 20 C.F.R. § 404.1420a(e)). Generally, a medical or psychological consultant will complete

 9   a standard document, known as a “Psychiatric Review Technique Form” (“PRTF”). Id. Pursuant

10   to the regulations, the ALJ’s written decision must “reflect application of the technique,

11   and . . . ‘include a specific finding as to the degree of limitation in each of the [four] functional

12   areas.’” Id. (quoting 20 C.F.R. § 404.1520a(e)(2)).

13          In this case, the ALJ relied on a PRTF completed by a state agency reviewing psychologist,

14   who concluded in 2005 that Petrie’s mental impairments caused a mild restriction of activities of

15   daily living, and moderate difficulties in maintaining social function, concentration, persistence, or

16   pace. Although the reviewing psychologist found the record to contain insufficient evidence of

17   repeated episodes of decompensation, each of extended duration, the ALJ found that Petrie had no

18   such repeated episodes because Petrie was hospitalized only once for four days during the relevant

19   time period. The ALJ thus adopted the PRTF in part and proceeded to assess Petrie’s RFC.

20          We agree with the district court that the ALJ properly applied the special technique and that

21   substantial evidence supported his conclusion. Evidence in the record consistently showed that

22   Petrie was able to dress, bathe, and groom himself on a daily basis. Petrie himself stated that he


                                                      12
 1   could cook and prepare food, manage money, use public transportation, and perform general

 2   cleaning, laundry, and shopping. A consultative examination further found that Petrie’s attention,

 3   concentration, and memory skills were intact, and that his intellectual functioning was in the average

 4   range. Petrie was even offered a cleaning job by the manager of his residence, which Petrie later

 5   accepted. In light of this evidence, we decline to find that the ALJ erred in his application of the

 6   Psychiatric Review Technique.

 7   C. Vocational Expert and Past Work

 8          Petrie finally argues that the ALJ was required to consult a vocational expert in determining

 9   whether, under step four, Petrie was capable of performing his past work as a cook. Petrie also adds

10   that the ALJ erroneously identified a semi-skilled occupation as unskilled work that Petrie was

11   capable of performing.

12          Petrie’s arguments are unavailing. Under the fourth step of the five-step analysis, “the

13   claimant has the burden to demonstrate an inability to return to h[is] previous specific job and an

14   inability to perform h[is] past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d

15   Cir. 2003) (emphasis omitted). This inquiry “requires separate evaluations of the previous specific

16   job and the job as it is generally performed.” Id. The Dictionary of Occupational Titles (“DOT”)

17   is used to evaluate jobs as they are generally performed. See id. While an expert “is often called

18   upon” to explain the requirements of particular jobs, see id., step four of the analysis does not

19   require that an ALJ consult an expert. See 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) (“A

20   vocational expert or specialist may offer expert opinion testimony . . . about whether a person with

21   the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the

22   demands of the claimant’s previous work, either as the claimant actually performed it or as generally


                                                      13
 1   performed in the national economy.” (emphasis added)). The ALJ therefore did not err in declining

 2   to consult a vocational expert.

 3          In addition, we agree with the district court that the ALJ’s citation to a semi-skilled cooking

 4   occupation in the DOT was a mere typographical error. The ALJ’s citation to DOT code number

 5   313.687-010 (“cook helper, pastry”), differs in only one digit from two unskilled jobs listed in the

 6   DOT. According to the DOT, a kitchen helper sweeps and mops floors, washes pots and pans by

 7   hand, transfers supplies and equipment by hand, and washes and peels vegetables with a knife or

 8   peeling machine. DOT 318.687-010. Similarly, a cook helper washes, peels, and cuts vegetables

 9   and fruits, and cleans, cuts, and grinds meats, poultry, and seafood. DOT 317.687-010. A cook

10   helper also helps prepare and measure food items and ingredients, and stores foods in designated

11   areas. Id.

12          Here, Petrie stated that his general job duties included making sandwiches and salads, cutting

13   and preparing foods, opening and closing the “grill area,” dishwashing, general custodial work, and

14   unloading and stocking supplies. As Petrie’s own submissions confirm that his previous work duties

15   are substantially the same as the unskilled duties of a kitchen helper or a cook helper, we do not

16   believe that the ALJ’s determination was improper on this ground.

17   D. Conclusion

18          We have reviewed the parties’ remaining arguments and find them to be moot or without

19   merit. The judgment of the district court is therefore AFFIRMED.


20                                                         FOR THE COURT:
21                                                         Catherine O’Hagan Wolfe, Clerk
22



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