Larkin v. Bisignano

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Kyle L.,1
Plaintiff,
v. 3:25-CV-1097
(AJB/MJK)
Commissioner of Social Security
Defendant.
_____________________________________________________________________
Caitlyn Luciano Esq., for Plaintiff
Geoffrey M. Peters Esq., Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge:
REPORT-RECOMMENDATION
Kyle L. brought this action under the Social Security Act (42
U.S.C. § 405(g)) seeking judicial review of the Social Security
Commissioner’s final decision denying her application for benefits. (Dkt.
1.). Kyle L. did not consent to the jurisdiction of a Magistrate Judge.
(Dkt. 5). ). So, the Honorable Anthony J. Brindisi, U.S. District Judge,
referred this matter to the Court for Report and Recommendation. Both
1 This Report-Recommendation will identify the plaintiff using only his chosen first
name (plaintiff is a transgender man) and last initial to protect his privacy.
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parties filed briefs (Dkts. 12, 15, 16) which the Court treats as motions
under Fed. R. Civ. P. 12(c), in accordance with General Order 18.2
I. PROCEDURAL HISTORY
On January 30, 2023, Kyle L. filed an application for Title XVI
supplemental social security income benefits, alleging disability
beginning January 28, 2023. (T. 17).3 The Social Security
Administration denied the claim initially on October 31, 2023, and
again upon reconsideration on April 3, 2024. (Id.). Kyle L. requested a
hearing 19 days later. (Id.) On November 13, 2024, Administrative Law
Judge (“ALJ”) Mary Jane Pelton held a hearing. (T. 36-60). At the
hearing, then non-attorney, now attorney, Caitlyn Luciano represented
Kyle L. (T. 38). Both Kyle L. and the Vocational Expert testified. (T. 40-
48; 48-54). On December 19, 2024, ALJ Pelton issued an unfavorable
decision. (T. 14-30). The appeals council later denied Kyle L.’s appeal.
(T. 1-3).
2 Kyle L.’s brief seems to cite to the CM/ECF pagination system instead of the
Administrative record.
3 All page references to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
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II. GENERALLY APPLICABLE LAW
A. Disability Standards
To be considered disabled, plaintiffs seeking disability insurance
or supplemental security income benefits must establish that they are
“unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death, or which has lasted or can be expected to
last for a continuous period of not less than twelve months …” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, plaintiffs’
physical or mental impairment or impairments [must be] of s
uch severity that [they are] not only unable to do [their]
previous work but cannot, considering [their] age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which
[they] live[], or whether a specific job vacancy exists for
[them], or whether [they] would be hired if [they] applied for
work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R.
§§ 404.1520 and 416.920, to evaluate disability insurance and
supplemental security income disability claims.
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [they are]
not, the [Commissioner] next considers whether the claimant
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has a “severe impairment” which significantly limits [their]
physical or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which meets or equals the criteria of an
impairment listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will
consider [them] disabled without considering vocational
factors such as age, education, and work experience …
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, [they have] the residual functional capacity to
perform [their] past work. Finally, if the claimant is unable to
perform [their] past work, the [Commissioner] then
determines whether there is other work which the claimant
can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 20 C.F.R.
§§ 404.1520, 416.920. Plaintiffs have the burden of establishing
disability at the first four steps. See Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013). If they establish that their impairment prevents them
from performing their past work, the burden then shifts to the
Commissioner to prove the final step. Id.
B. Scope of Review
When reviewing a final decision of the Commissioner, courts must
determine whether the correct legal standards were applied and
whether substantial evidence supported the decision. Id. at 417; see also
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42
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U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative
record. Id. Yet this standard is a very deferential standard of review “—
even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at
448. “To determine on appeal whether an ALJ’s findings are supported
by substantial evidence, reviewing courts consider the whole record,
examining the evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which detracts
from its weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988). But reviewing courts may not substitute their
interpretation of the administrative record for that of the Commissioner
if the record contains substantial support for the ALJ’s decision. Id.; see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
ALJs need not explicitly analyze every piece of conflicting
evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
(“[W]e are unwilling to require an ALJ explicitly to reconcile every
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conflicting shred of medical testimony[.]”). But ALJs cannot “‘pick and
choose’ evidence in the record that supports [their] conclusions.” Cruz v.
Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6,
2010).
III. FACTS
The record includes Kyle L.’s medical and mental health
treatment records which the parties are familiar with. The Court will
refer to the pertinent records and the hearing testimony in its analysis
of the parties’ claims as appropriate.
IV. THE ALJ’S DECISION
At Step One of the five-step-sequential analysis, ALJ Pelton
determined that Kyle L. has “not engaged in substantial gainful activity
since January 30, 2023, the application date.” (T. 19) (cleaned up).
At Step Two, ALJ Pelton concluded that Kyle. L. has “the
following severe impairments: disorder of the spine, obesity, asthma,
depressive disorder, anxiety disorder, and post-traumatic stress
disorder. (T. 20) (cleaned up). At the same step, ALJ Pelton noted that
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Kyle L.’s “thyroid disorder, knee disorder, and essential hypertension”
are non-severe impairments. (Id.).
At Step Three, ALJ Pelton determined that Kyle L. “does not have
an impairment, or combination of impairments, that medically equals
the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart. P, Appendix. 1.” (T. 20) (internal citations omitted).
Next, ALJ Pelton discussed the “paragraph B” criteria. (T. 21-22).
“To satisfy the paragraph B criteria,” mental impairments “must result
in one extreme limitation or two marked limitations in a broad area of
functioning.” See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(b)
(cleaned up). The four broad areas of mental functioning are:
(1) understanding, remembering, or applying information;
(2) interacting with others; (3) maintaining concentration, persistence,
or pace; and (4) adapting and managing oneself. See 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00(C). Here, ALJ Pelton found that Kyle L. did not
meet the “paragraph B” criteria because she determined that Kyle L.
had (1) mild limitations in understanding, remembering, or applying
information; (2) moderate limitations interacting with others; (3)
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moderate limitations maintaining concentration, persistence, or pace;
and (4) moderate limitations adapting and managing oneself. (T. 21-22).
ALJ Pelton also considered the “paragraph C” criteria. (T. 22). The
“paragraph C” criteria require a documented medical history of the
existence of the disorder over a period of at least two years, with
evidence of both (a) medical treatment, mental health therapy,
psychosocial support(s), or a highly structured setting(s) that is ongoing
and that diminishes the symptoms and signs of the mental disorder;
and (b) marginal adjustment, that is, minimal capacity to adapt to
changes in environment or to demands that are not already part of daily
life. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(c). Here, ALJ
Pelton noted that the “paragraph C” criteria were not met. (Id.).
After this, ALJ Pelton determined that Kyle L. had the residual
function capacity (“RFC”) to perform:
light work as defined in 20 CFR 416.967(b). The claimant can
stand and/or walk for four hours. The claimant can never
climb ladders, ropes, or scaffolds. The claimant can
occasionally climb stairs or ramps, occasionally balance as
defined by the Selected Characteristics of Occupations (SCO),
stoop, or crouch. The claimant can never kneel or crawl. The
claimant can perform frequent reaching, pushing, and pulling
with the bilateral upper extremities. The claimant should
avoid concentrated exposure to fumes, odors, dusts, gases, or
poor ventilation, and should avoid exposure to hazards, such
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as unprotected heights and dangerous moving machinery.
The claimant can understand, remember, and carry out
simple instructions. The claimant can use judgment to make
simple work-related decisions. The claimant should work in a
job with occasional changes in the routine work setting. The
claimant cannot perform work requiring a specific production
rate or perform work which requires hourly quotas. The
claimant could have occasional interaction with coworkers
and supervisors, and no interaction with the public. The
claimant should use a cane for ambulation but retains the
ability to carry small objects with his free hand.
(T. 23)
To make this finding, ALJ Pelton considered “the medical
opinion(s) and prior administrative medical finding(s)” pursuant to 20
C.F.R. § 416.920c. (Id.).
At Step Four, ALJ Pelton reasoned that Kyle L. has no past
relevant work, was within the “younger individual age 18-49” category,
has “at least a high school education,” and “transferability of skills is
not an issue.” (T. 29).
Finally, at Step Five, ALJ Pelton concluded that “considering”
Kyle L.’s “age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national
economy that” he “can perform.” (T. 29). Accordingly, ALJ Pelton
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determined that Kyle L. is not disabled as defined by the Social
Security Act. (T. 30).
V. ISSUES IN CONTENTION
On appeal, Kyle L. argues that (1) ALJ Pelton erred at Step Two
because she found Kyle L.’s knee issues to be a non-severe impairment;
(2) substantial evidence does not support ALJ Pelton’s decision to limit
him to reduced light work instead of sedentary work; (3) ALJ Pelton did
not resolve any conflicts between the VE’s testimony and the Dictionary
Of Occupational Titles (“DOT”); and (4) ALJ Pelton cherry picked
evidence to create a an RFC. (Pl. Br. at pgs. 13-25).4 The Commissioner
challenges every argument. (Def. Br. at pgs. 4-20).
VI. DISCUSSION
The Court recommends the District Court reverse and remand
ALJ Pelton’s decision because substantial evidence does not support a
reduced light work RFC. If the District Court rejects this
recommendation, the Court alternatively recommends the District
Court affirm ALJ Pelton’s decision because Kyle L. failed to establish
that ALJ Pelton erred: (1) at her Step Two determination; (2) when
4 (Pl. Br.) refers to Plaintiffs Brief, Dkt. 12, and (Def. Br.) refers to Defendants
Brief, Dkt. 15.
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resolving any conflicts, apparent or non-apparent, between the VE’s
testimony and the DOT; and (3) as to the mental limitation in the RFC.
A. Substantial evidence does not support ALJ Pelton’s
decision to limit Kyle L. to reduced light work instead of
sedentary work.
The Court recommends the District Court find that substantial
evidence does not support ALJ Pelton’s RFC. When reviewing an
agency’s decision, the reviewing court must determine if substantial
evidence supports the ALJ’s decision. Here, ALJ Pelton determined that
Kyle L. should be limited to some level of reduced light work. But the
Court cannot tell how ALJ Pelton came to that decision. In consequence,
the Court recommends the District Court reverse and remand ALJ
Pelton’s decision on this ground.
Point two of Kyle L.’s brief seems to advance five possible
arguments. See (Pl. Br. at pgs. 15-19). First, Kyle L. argues that the
ALJ erred by establishing an RFC of light work with restrictions that
were more consistent with sedentary work. (Pl. Br. at pg. 16). Second,
Kyle L. argues that ALJ Pelton narrowed the RFC by adding a cane and
limiting him to picking up small objects with his free hand, which
establishes an RFC that is too narrow. (Pl. Br. at pg. 17). Third, Kyle L.
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argues that ALJ Pelton erred as to her consistency analysis for Drs.
Siddiqui and Maguro. Fourth, Kyle L. argues the VE’s testimony for
light jobs is inapplicable. (Pl. Br. at pg. 18). And Fifth Kyle L. argues
that even if ALJ Pelton offered proper jobs, the last job is not sufficient
because it falls below the threshold of a significant number of jobs. (Pl.
Br. at pg. 19). Ultimately, it seems that Kyle L.’s argument is that
substantial evidence does not support ALJ Pelton’s light-work-with-
limitations RFC, while substantial evidence supports sedentary work.
Construing the argument as such, the Court agrees.
The Court starts its analysis with the medical opinions.
Dr. Siddiqui opined that Kyle L. can occasionally lift and/or carry
10 pounds, and frequently, lift and/or carry less than 10 pounds. (T.
155). Dr. Siddqui further opined that Kyle L. can stand and/or walk,
with normal breaks, for a total of 2 hours, and he can sit, with normal
breaks, for more than 6 hours in an 8-hour workday. (T. 155). With this,
Dr. Siddiqui opined that Kyle L. should be limited to sedentary work.
(T. 157).
Dr. Perrotti, on reconsideration, opined that Kyle L. can
occasionally lift and/or carry 20 pounds, and frequently, lift and/or carry
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10 pounds. (T. 169). Dr. Perrotti further opined that Kyle L. can stand
and/or walk, with normal breaks, for a total of 4 hours, and he can sit,
with normal breaks, for more than 6 hours in an 8-hour workday. (T.
169). Like Dr. Siddiqui, Dr. Perrotti limited Kyle L. to sedentary work.
(T. 174).
Dr. Magurno opined that Kyle has “marked limitations for lifting,
carrying, bending, squatting, and crouching. Moderate to marked
[limitations] for walking and standing. [And] [m]ild [limitations] for
reaching pulling, and sitting.” (T. 1167).
After reviewing these medical source statements and the record as
whole, the Court cannot determine how ALJ Pelton crafted a light work
RFC. An ALJ’s decision must create “an accurate and logical bridge
from the evidence to” their “conclusion.” Shanaye S.M. v. Comm’r of Soc.
Sec., No: 18-CV-0217 (TWD), 2019 WL 1988672, at *4 (N.D.N.Y. May 6,
2019) (cleaned up). Indeed, “ALJs written decisions must be sufficiently
detailed so courts can conduct an adequate review of their “findings.”
John S. v. Bisignano, No. 24-CV-334 (BKS/MJK), 2025 WL 2201107, at
*6 (N.D.N.Y. June 13, 2025) (cleaned up). “When an ALJ does not
connect the record evidence and RFC findings or otherwise explain how
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the record evidence supported [their] RFC findings, the decision leaves
the court with many unanswered questions and does not afford an
adequate basis for meaningful judicial review.” Heckman v. Comm’r of
Soc. Sec., No. 18-CV-6032, 2019 WL 1492868, at *3 (W.D.N.Y. Apr. 4,
2019) (cleaned up).
ALJ Pelton’s decision to assign Kyle L. light work, considering the
lifting requirement, is not supportable. “Light work involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). Because this
is so, Kyle L.’s ability to lift things is important. Dr. Magurno, opined
that Kyle L. has a marked limitation on his ability to lift things. (T.
1167). But ALJ Pelton rejected that finding, reasoning, among other
things, that “such severe limitations are not consistent with the prior
administrative findings of the state agency medical consultants nor are
they consistent with the objective medical evidence of record, which
shows that there were several occasions where[]” Kyle L. “had full
strength in his lower extremities.” (T. 28). But there are issues with
ALJ Pelton’s analysis. How can Kyle L., who needs a cane to
ambulate—who ALJ Pelton limited to lifting “small things—” lift
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something that is 20 pounds? (T. 23); cf. Jody L. B. v. Comm’r of Soc.
Sec., No. 5:21-CV-734 (CFH), 2022 WL 1541461, at *9 (N.D.N.Y. May
16, 2022) (“if the plaintiff needs to use a cane for support and balance,
that would mean at least one hand is not free to hold other objects and
perform the lifting and carrying requirements of light work, which are
not minimal.”).
True, ALJ Pelton could have reached this conclusion by completely
adopting Dr. Perrotti’s finding that Kyle L. can lift and/or carry 20
pounds, and frequently, lift and/or carry 10 pounds. (T. 174). But there
is no record support for this finding. In fact, there is ample support for
the opposite finding. See, e.g., (T. 48) (Kyle L. testified that he can only
lift 10 pounds); (T. 155) (finding that Kyle L. can occasionally lift 10
pounds); (T. 332) (Kyle L. noting that he “do[es not] lift at all”); (T. 353)
(nothing that Kyle L.’s “limited mobility” makes lifting “difficult if not
impossible”) (id.) (noting that Kyle L. “avoids” among other things
“lifting”); (T. 361) (Kyle L. noted that “it’s too physically changing and
painful to lift”); (T. 842) (medical note which identifies that Kyle L. is
“[a]ble to lift (5 to 15) lbs.”); (T. 844) (same); (T. 859) (same); (T. 861)
(same). In consequence, the Court cannot determine how ALJ Pelton
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determined that Kyle L. can lift 20 pounds. Cf. Otts v. Colvin, 15-CV-
6731, 2016 WL 6677192, at *4 (W.D.N.Y. Nov. 11, 2016) (remanding
because the ALJ did not explain how the plaintiff “could perform light
work despite the fact that [a physician] opined that [the plaintiff] had a
moderate to marked restriction for lifting, carrying, pushing and
pulling”)
The Court also cannot determine how ALJ Pelton found that Kyle
L. can perform light work considering the walking requirements. Light
work jobs “require[] a good deal of walking or standing.” 20 C.F.R. §
404.1567(b). In fact, “the primary difference between sedentary and
most light jobs” is the walking and standing requirement. SSR 83-10,
1983 WL 31251 at *5. Here, ALJ Pelton adopted Dr. Perrotti’s finding
that Kyle L. can stand and/or walk, with normal breaks, for 4 hours. (T.
27-28, 169). ALJ Pelton, coming to this conclusion, reasoned that Dr.
Perrotti’s “opinion is slightly more persuasive than” Dr. Siddiqui’s
opinion because “Dr. Perrotti had the opportunity to review a more
developed record at reconsideration[.]” (T. 27). But ALJ Pelton never
explains why that limitation is more reliable than the consultative
exam Dr. Magurno performed. (T. 27) (rejecting marked limitations but
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not the moderate to marked limitations). That error is fatal. See, e.g.,
Beverly Ann K. v. Kijakazi, No. 22-CV-0028 (AMN), 2023 WL 3004779,
at *10 (N.D.N.Y. Mar. 2, 2023) (remanding where “the ALJ failed to
explain why he did not credit Dr. Puri’s findings that Plaintiff had
‘moderate to marked limitations to lifting weights,’ despite the fact that
he found Dr. Puri's opinion to be ‘generally persuasive,’ and such
findings were particularly relevant to the determination of whether
Plaintiff could perform light work.”).
To make matters worse, the record supports Dr. Siddiqui’s opinion
that Kyle L. can only walk and/or sit, with normal breaks, for 2 hours.
(T. 155); see also (T. 42) (Kyle L. testified that he cannot stand for more
than 10 mins); (T. 55) (Kyle L. testified that “just sitting and standing”
is something he “can’t do . . . for more than an hour or two at the most”);
(T. 155.) (noting “antalgic gait w/ cane”); (id.) (“[d]egenerative changes
of the medial compartment of the left knee . . . as well as the
patellofemoral joint.”); (T. 170) (“[claimant] is limited to stand/walk 45
[minutes]/work day”) (caps changed); (T. 1165) (finding that Kyle L.’s
gait is abnormal, his gait is left antalgic with the cane, and “gait
becomes more antalgic and stride length decreases, without the cane);
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(T. 1166) (noting that Kyle L.’s left knee moves “0 to 80 degrees”); (T.
1209) (noting that Kyle L. can walk “20-30 min cumulatively in a day”);
(T. 1214) (noting that Kyle L. can only “walk < 0.5 without” pain”); (T.
1225) (“walking” for Kyle L. “is very difficult”). Put plainly, the Court
cannot discern why ALJ Pelton determined that Dr. Perrotti’s walking
and standing limitation was more appropriate for the RFC, especially
when the record does not seem to support such a finding.
All told, the Court finds that substantial evidence does not
support the ALJ’s assessment of light work. Reviewing the record, the
Court finds that the evidence largely weighs in favor of finding that
Kyle L. can only perform sedentary work. Yet ALJ Pelton limited Kyle
L. to reduced light work and this Court cannot tell why. That is error.
See Booker v. Astrue, No. 07-CV-646 GLS, 2011 WL 3735808, at *5
(N.D.N.Y. Aug. 24, 2011) (“[t]he crucial factors in an ALJ's decision
must be set forth in sufficient detail as to enable meaningful review by
the court.”). With that, the Court finds that ALJ Pelton’s proffered
jobs—which require Kyle L. to be able to perform light work with a
reduced walk limitation—are inapplicable because of the errors ALJ
Pelton made in her analysis. See Kathleen M. v. Comm’r of Soc. Sec.,
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No. 20-CV-1040 (TWD), 2022 WL 92467, at *9 (N.D.N.Y. Jan. 10, 2022)
(remanding the ALJ’s decision because “[a] flawed evaluation of medical
opinion evidence” impacted “the ALJ's assessment of [the] claimant’s
residual functional capacity”). In short, the Court recommends the
District Court reverse the ALJ’s decision and remand the case for
further proceedings.5
B. ALJ Pelton properly determined that Kyle L.’s knee
ailment was not severe, yet the ALJ still considered the
knee ailment after Step Two.
The Court recommends the District Court affirm ALJ Pelton’s
Step Two decision. At Step Two, ALJs err if they make a non-severe
determination where there is enough evidence to support a severe
determination. If the ALJ commits this error but considers the ailment
after Step Two, the error is harmless. Here, ALJ Pelton determined
Kyle L.’s knee issues were non-severe at Step Two, but she considered
Kyle L.’s knee issues after Step Two. Thus, ALJ Pelton’s Step Two
decision does not provide a basis for the District Court to reverse and
remand ALJ Pelton’s decision.
5 The Court also recommends the District Court reject Kyle L.’s fifth argument
because ALJ Pelton did not offer the sedentary jobs in her decision. See (T. 14 – 30).
These jobs were only offered by the ALJ in the hearing. (T. 51).
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At Step Two of the five-step-sequential analysis, ALJs determine
whether claimants have a severe medically determinable physical or
mental impairment. See Petrie v. Astrue, 412 F. App’x 401, 404 (2d Cir.
2011) (summary order). A “severe impairment” is any “impairment or
combination of impairments which significantly limits” a claimants
“physical or mental ability to do basic work activities.” 20 C.F.R. §
416.920(c). Claimants bear “the burden of presenting evidence [that]
establish[es] severity.” Taylor v. Astrue, 32 F. Supp. 3d 253, 265
(N.D.N.Y. 2012) (citations omitted). Claimants must provide evidence of
the impairments impact and “any limitations that it may impose upon
the ability to perform basic work functions.” Mark Robert L. v. Comm’r
of Soc. Sec., 17-CV-0142 (DEP), 2018 WL 4509493 at *6 (N.D.N.Y. Sept.
20, 2018). ALJs should only make non-severe findings when “the
medical evidence establishes only a slight abnormality which would
have no more than a minimal effect on an individual’s ability to work.”
Taylor, 32 F. Supp. 3d. at 265. “The Step-Two severity standard is de
minimis and intended only to screen out the very weakest cases.”
Brenda H. v. Comm’r of Soc. Sec., 20-CV-01025, 2022 WL 125820 at *3
(W.D.N.Y. Jan. 13, 2022) (cleaned up).
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The District Court should not remand Kyle L.’s case on this
ground because even if ALJ Pelton erred at Step Two, the error was
harmless. If the ALJ considers the non-severe ailments after Step Two,
then the error is harmless. See, e.g., Reices-Colon v. Astrue, 523 F. App’x
796, 798 (2d Cir. 2013) (“And, in those subsequent steps, the ALJ
specifically considered [the plaintiff’s] anxiety and panic attacks[,]”
which the ALJ considered non-severe. And “[b]ecause these [non-severe]
conditions were considered during the subsequent steps, any error was
harmless.”). Here, ALJ Pelton noted that “exams of [Kyle L.’s] lower
extremities” revealed “normal findings on several occasions, including
5/5 hip flexion, knee flexion and extension of ankle plantarflexion, and
dorsiflexion, as well as sensation to light touch.” (T. 24) citing (T. 1241).
Likewise, ALJ Pelton cited a January 2024 medical record that noted
that Kyle L. “was sitting comfortably in a chair, was non-distressed,
moved all extremities, he had normal reflexes, his Hoffman’s test was
negative, there was no ankle clonus, his straight leg raise test was
negative bilaterally, but he did have an antalgic gait.” (T. 24) citing (T.
1359). If that was not enough, ALJ Pelton noted that “even on occasions
when there were positive finding for back pain and an antalgic gait,
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[Kyle L.] was noted to be without an assistive device and able to get on
and off [the] exam table without assistance.” (T. 24) citing (T. 1241).
Altogether, this is enough find that ALJ Pelton considered Kyle L.’s
knee issues after Step 2. See, e.g., Mikus v. Berryhill, No. 16-CV-284
(DJS), 2017 WL 1319838, at *4 (N.D.N.Y. Apr. 7, 2017) (“[B]ecause ALJ
Martin clearly considered the headache disorder later in her opinion, I
find that the omission of a discussion regarding Plaintiff’s headaches at
Step Two was harmless and thus find no reversible error with regard to
this aspect of the ALJ’s decision.”). As a result, the Court does not find
this argument requires remand.
C. ALJ Pelton properly reconciled any apparent or non-
apparent conflicts between the VE’s testimony and the
DOT.
If the District Court disagrees with the above analysis, this Court
recommends the District Court affirm ALJ Pelton’s decision. ALJs must
clarify any conflicts—obvious or non-obvious—between the VE’s
testimony and the DOT. Here, ALJ Pelton clarified any conflicts by
making sure the VE clearly articulated why they offered the jobs they
did. As a result, this argument does not provide a ground for remand.
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“A VE whose evidence conflicts with the DOT must provide a
reasonable explanation to the ALJ for the conflict.” Brault, 683 F.3d at
446. In turn, “SSR 00-4p requires the Commissioner to obtain a
reasonable explanation for any apparent—even if non-obvious—conflict
between the DOT and a vocational expert’s testimony.” Christopher V.
v. Comm’r of Soc. Sec., No. 24-CV-01418 (MAD/ML), 2026 WL 678529,
at *8 (N.D.N.Y. Jan. 27, 2026) (cleaned up) (quoting Lockwood v.
Commissioner, 914 F.3d 87, 92 (2d Cir. 2019)).
ALJ Pelton adequately resolved any apparent or non-obvious
conflicts between the DOT and the VE’s testimony. During the hearing,
ALJ Pelton asked the VE to proffer jobs for an individual who, among
other things, has “the same age, education, and work experience as the
claimant” they “can perform light work,” they “can stand and/or walk
for [4] hours in an [8-]hour workday,” and they “should use a cane for
ambulation but retains the ability to carry small objects.” (T. 49-50). In
response, the VE offered three jobs: (1) Marking clerk (DOT code
209.587-034), (2) Mail clerk (DOT. 209.687-026), and (3) Routing clerk
(DOT code 222.587-03) .(T. 50). ALJ Pelton then asked the VE: “what
are you basing your testimony on regarding the four hours standing
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and/or walking.” (T. 51). The VE answered, “these jobs have that
sit/stand option and so that’s why I am basing – that’s why I was giving
you those particular jobs.” (T. 51). Later, ALJ Pelton asked whether the
VE’s “testimony” was “consistent with the” DOT. (T. 53). The VE
answered “yes, except for the off task and absenteeism because the DOT
doesn’t address either one of those issues. So I was relying on my work
experience and knowledge of how these jobs are performed in order to
answer those questions.” (T. 53-54). This colloquy is enough for the
District Court to find “that the record developed by the ALJ satisfies the
Lockwood requirements.” Christopher V., 2026 WL 678529, at *8
(finding the record sufficiently developed where the ALJ asked the VE if
their testimony was consistent with the DOT.).
Kyle L.’s first argument on this score is unpersuasive. In his brief,
Kyle L. seems to argue that he cannot perform any of the jobs ALJ
Pelton offered because they all require “frequent lifting or carrying,”
which “requires being on one’s feet up to two thirds of a workday.”
Titles II & Xvi: Determining Capability to Do Other Work-the Med.-
Vocational Rules of Appendix 2, SSR 83-10 (S.S.A. 1983); see (Pl. Br. at
pg. 20); see also Douglas v. Saul, No. 20-CV-0322, 2021 WL 2852962, at
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*13 (S.D.N.Y. July 8, 2021) (“the ALJ's testimony that an individual in
either of the three identified jobs could sit or stand at will is
inconsistent with the DOT's requirement of lifting up to ten pounds
frequently.”). Kyle L.’s argument fails. Under the Social Security
Rulings, frequently means an “activity or condition exists from 1/3 to
2/3 of the time.” See, e.g., Marker (DOT No. 209.587-034), 1991 WL
671802 (1991); Mail Clerk (DOT No. 209.687-026), 1991 WL 671813
(1991); Router (DOT No. 277.587-038), 1991 WL 672123 (1991). So if an
individual is capable of performing an activity or if a condition can exist
from 1/3 (or 2.67 hours) to 2/3 (or 6 hours) of a day, they are able to
perform the activity or allow the condition to exist frequently. Here,
ALJ Pelton limited Kyle L. to four hours of walking, which would also
limit Kyle L. to four hours of lifting. And because four hours is within
the 1/3 (or 2.67 hours) to 2/3 (or 6 hours) range of the day, Kyle L. can
perform lifting frequently. Thus, Kyle L. can perform the jobs ALJ
Pelton offered in her decision.
Kyle L.’s second argument is also unpersuasive. Kyle L. seems to
argue that ALJ Pelton erred by not asking the VE whether the
occupational base was eroded. Indeed, he cannot cite a single case
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which supports that proposition. The only case Kyle L. relies on, Jody L.
B., 2022 WL 1541461, cuts against his argument. The Jody L. B. court
rejected the plaintiff’s argument “because the ALJ reviewed the record”
found “that [the] plaintiff was capable of light work with the additional
restrictions of needing to use a cane” and the “the ALJ asked the VE
how these additional limitations would affect [the] plaintiff’s ability to
work.” Jody L. B., 2022 WL 1541461 at *9. Here, like in Jody L. B., ALJ
Pelton determined that a cane is a medical necessity for Kyle L.,
incorporated that cane use in her hypothetical, and asked the VE what
jobs would be available. (T. 49 – 50). The VE responded by proffering
the jobs that ALJ Pelton used in her decision. So this Court, and the
District Court, can conclude that ALJ Pelton considered the cane at the
hearing and in her decision.
* * *
In sum, Kyle L.’s third point is not an independent reason to
remand this case. ALJ Pelton adequately resolved any apparent or non-
obvious conflicts between the DOT and the VE’s testimony, and Kyle
L.’s arguments to the contrary are unpersuasive. Thus, if the District
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Court disagrees with the analysis in Section VI.B., this Court
recommends the District Court affirm ALJ Pelton’s decision.
D. Kyle L.’s arguments as to the mental limitations ALJ
Pelton crafted are meritless.
The Court recommends the District Court reject Kyle L.’s
arguments as to the mental portions of the RFC. Here, ALJ Pelton
determined that Kyle L. suffers from moderate limitations as to his
ability to interact with others. Thus, the Court recommends the District
Court affirm ALJ Pelton’s decision on this ground.
There seems to be three possible arguments advanced in the final
section of Kyle L.’s brief. First, ALJ Pelton did not perform the
supportability and consistency analysis at Step Five. Second, ALJ
Pelton cherry picked evidence when finding that Kyle L. has moderate
limitations on his ability to interact with others. And third, ALJ
Pelton’s rejection of Drs. Hartman’s and Dr. Maguro’s marked
limitations is evidence that ALJ Pelton improperly substituted her own
view with that of competent medical opinions. None of these arguments
withstand scrutiny.
The Court recommends the District Court reject what appears to
be Kyle L.’s first argument. There is no legal support for the claim that
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ALJs must perform the supportability and consistency analysis at Step
Five. The District Court can, and should, reject this argument and find
that this argument is not a ground to remand the Kyle L.’s case.
Moving to the second argument, the Court analyzes whether ALJ
Pelton cherry-picked evidence. The Court does not find so. ALJs “cannot
ignore evidence or cherry pick only the evidence from medical sources
that support a particular conclusion and ignore the contrary evidence.”
April. B. v. Saul, No. 18-CV-682 (DJS), 2019 WL 4736243, at *6
(N.D.N.Y. Sept. 27, 2019). Here, ALJ Pelton limited Kyle L. to
“occasional interaction with coworkers and supervisors, and no
interaction with the public.” (T. 23). ALJ Pelton, supporting this
minimal finding, noted that Kyle L. can meet with providers, was
cooperative with his providers, and on several occasions, he was in good
spirits. (T. 21-22). In opposition, Kyle L. contends that ALJ Pelton
ignored evidence such as he preferred that his medical appointments
occur telephonically, he was often anxious or stressed, and he displayed
emotional dysregulation. (Pl. Br. at pg. 24) (citing T. 875, 905, 917,
1129).
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These two positions, while they may seem in conflict, are
reconcilable. The Court can glean that ALJ Pelton saw the evidence
Kyle L. relied on and concluded that Kyle L. can only withstand the
lowest level of human interaction. In fact, Drs. Fernandez and Frances,
who reviewed the record, and Dr. Hartman, who consultatively
examined Kyle L., all determined that Kyle L. has a moderate
limitation on his ability to interact with others. (T. 159, 172, 1160).
More to point, “a limitation to unskilled work can adequately account
for a claimant’s moderate limitations in interacting with others.”
Justine G. v. Comm’r of Soc. Sec., No. 21-CV-6701S, 2023 WL 2595011,
at *4 (W.D.N.Y. Mar. 22, 2023) (cleaned up) (collecting cases). Here,
Drs. Fernandez, Frances, and Hartman opined that Kyle L. has
moderate limitations. See Reilly v. Colvin, No. 13-cv-00785, 2015 WL
6674955, at *3 (W.D.N.Y. Nov. 2, 2015) (“[G]enerally a limitation to only
‘occasional’ or ‘limited’ contact with others has been found sufficient to
account for moderate limitations in social functioning.”). Seeming to
account for moderate limitations in social interactions, ALJ Pelton
assigned Kyle L. three unskilled jobs, none of which require talking. See
Marker (DOT No. 209.587-034), 1991 WL 671802 (1991) (“Talking: Not
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Present - Activity or condition does not exist); Mail clerk (DOT No.
209.687-026), 1991 WL 671813 (1991) (same); Router (DOT No.
277.587-038), 1991 WL 672123 (1991) (same). These job designations
support an inference that ALJ Pelton credited Kyle L.’s limited ability
to interact with others, reconciled the evidence, and crafted a mental
RFC that the record supports. With that, it becomes clear that Kyle L.’s
argument on appeal is not to find that ALJ Pelton cherry-picked
evidence. It is a trojan-horse request to reweigh evidence. This Court
declines to do so. See, e.g., Muldowney v. Comm’r of Soc. Sec., No. 5:17-
CV-0352 (TWD), 2018 WL 2417837, at *5 (N.D.N.Y. May 29, 2018)
(declining to reweigh evidence). As a result, this argument is not a
ground to remand the Kyle L.’s case.
As to the final argument, the Court finds that ALJ Pelton did not
impermissibly substitute her own opinion. ALJ Pelton, in her decision,
identified moderate limitations as to regulating emotions. (T. 23). The
moderate limitations ALJ Pelton assigned are supported by the record.
See (T. 159, 172, 1160). In reality, Kyle L. raises this argument to
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repackage arguments this Court has already addressed. 6 Thus, the
District Court should reject this argument.
VII CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Kyle L.’s
motion for judgment on the pleadings (Dkt. 12) because Kyle L.
demonstrated that substantial evidence does not support ALJ Pelton’s
RFC which limited Kyle L. reduced light work as opposed to sedentary,
and that the decision of the Commissioner be REVERSED and
REMANDED.
If the District Court disagrees with that recommendation it is
ALTERNATIVELY
RECOMMENDED, that the District Court DENY Kyle L.’s
motion for judgment on the pleadings (Dkt. 12) because Kyle L. failed to
show ALJ Pelton erred at Step Two argument; and it is further
RECOMMENDED, that the District Court DENY Kyle L.’s
motion for judgment on the pleadings (Dkt. 12) because Kyle L. failed to
6 The Court finds it unnecessary to address this argument because the Court
addressed ALJ Pelton’s rejecting Dr. Magurno’s marked limitations in Section
VI.A., and it addressed ALJ Pelton’s findings of moderate limitations in Section
VI.D.
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show ALJ Pelton did not clarify any conflicts between the VE’s
testimony and the DOT; and it is further
RECOMMENDED, that the District Court DENY Kyle L.’s
motion for judgment on the pleadings (Dkt. 12) because Kyle L. failed to
show ALJ Pelton erred when crafting the mental portion of the RFC;
and it is
ORDERED, that the Clerk of Court amend the case caption to
reflect Kyle L.’s chosen name.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have 14 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: May 11th, 2026
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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