Stevens v. Bisignano

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CLAUDETTE M. S.,
Plaintiff,
v. 	6:24-CV-01477 (MAD/TWD)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	JUSTIN GOLDSTEIN, ESQ.
& DISABILITY LAW
Attorney for Plaintiff
6000 North Bailey Avenue, Suite 1A
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION 	KRISTINA COHN, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, MD 21235
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT AND RECOMMENDATION
I. 	INTRODUCTION
This matter was referred to the undersigned for Report and Recommendation by the
Honorable Mae A. D’Agostino, United States District Judge, pursuant to 20 U.S.C. § 636(b) and
Northern District of New York Local Rule 72.3. This case has proceeded in accordance with
General Order 18 of this Court which sets forth the procedures to be followed when appealing a
denial for Social Security Benefits. Both parties filed briefs, which the Court treats as motions
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under Federal Rule of Civil Procedure 12(c) in accordance with General Order 18. Dkt. Nos. 11,
12. Plaintiff filed a reply brief which simply relied on her original arguments and authority as set
forth in her primary brief. Dkt. No. 13. Oral argument was not heard. For the reasons set forth
below, the Court recommends that Plaintiff’s motion be granted, Defendant’s motion be denied,
and the Commissioner’s decision be reversed and remanded.
II. 	BACKGROUND
Plaintiff was born in 1974. T. 200.1 She completed eleventh grade and received special
education services. T. 224. Plaintiff protectively filed a Title XVI application for Supplemental
Security Income, alleging disability beginning April 16, 2020, due to “arthritis in whole body,
whole back problems, spinal issues, COPD, bi-polar, depression, anxiety, mood swings, panic
attacks, asthma, seasonal allergies, former substance abuse/cocaine, right wrist – granular cysts.”
T. 200-06, 223.
Plaintiff’s initial claim was administratively denied on October 26, 2020, and again on
reconsideration September 13, 2021. T. 78, 99. This determination was upheld after a disability
hearing and a decision of an Administrative Law Judge (“ALJ”) dated May 25, 2022. T. 12-25,
31-65. The Appeals Council denied Plaintiff’s request for review on April 12, 2022, and
Plaintiff thereafter commenced a proceeding in this Court. T. 1-6, 1314-48. The parties
stipulated to an Order dated January 2, 2024, reversing the final decision of the Commissioner,
and directing the case be remanded for further administrative proceedings. T. 1351-52. On
February 8, 2024, the Appeals Council remanded the claim to an ALJ for further proceedings. T.
1357-59. ALJ Mary Pelton held a hearing on August 1, 2024, where vocational expert (“VE”)
1 The Administrative Record/Transcript is found at Dkt. No. 8. Citations to the Transcript will
be referenced at “T.” and the Bates-stamped page numbers as set forth therein will be used rather
than the page numbers the Court’s CM/ECF electronic filing system assigns. Citations to the
parties’ submissions will use page numbers assigned by CM/ECF.
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Robert Baker and Plaintiff testified. T. 1266-85. In a decision dated August 19, 2024, the ALJ
determined Plaintiff “was not disabled prior to July 15, 2024, but became disabled on that date
and has continued to be disabled through the date of this decision.” T. 1254. Plaintiff now seeks
this Court’s review. Dkt. No. 1.
III. 	LEGAL STANDARDS
A. 	Standard of Review 2
In reviewing a final decision of the Commissioner, a court must first determine whether
the correct legal standards were applied, and if so, whether substantial evidence supports the
decision. Atwater v. Astrue, 512 F. App’x 67, 69 (2d Cir. 2013). “Failure to apply the correct
legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)
(internal quotation marks and citation omitted). Therefore, a reviewing court may not affirm the
ALJ’s decision if it reasonably doubts whether the proper legal standards were applied, even if
the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983,
986-87 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “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.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir.
2020) (internal quotation marks and citation omitted). If the ALJ’s finding as to any fact is
2 While the Supplemental Security Income program has special economic eligibility
requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. §
1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, therefore, “decisions under these
sections are cited interchangeably.” Donato v. Sec’y of Dep’t of Health & Hum. Servs. of U.S.,
721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
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supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d
307, 312 (2d Cir. 1995). Further, where evidence is deemed susceptible to more than one
rational interpretation, the ALJ’s conclusion must be upheld. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers 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 on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (additional citation
omitted). If supported by substantial evidence, the Commissioner’s findings must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford, 685 F.2d at 62) (additional
citations omitted). A reviewing court cannot substitute its interpretation of the administrative
record in place of the Commissioner’s if the record contains substantial support for the ALJ’s
decision. See Rutherford, 685 F.2d at 62.
When inadequacies in the ALJ’s decision frustrate meaningful review of the substantial
evidence inquiry, remand may be appropriate. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019); Pratts v. Chater, 94 F.3d, 34, 39 (2d Cir. 1996). Remand may also be appropriate where
the ALJ has failed to develop the record, adequately appraise the weight or persuasive value of
witness testimony, or explain his reasonings. See Klemens v. Berryhill, 703 F. App’x 35, 35-38
(2d Cir. 2017); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Estrella, 925 F.3d at 98;
Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008); Pratts, 94 F.3d at 39.
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B. 	Standard for Benefits
To be considered disabled, a plaintiff seeking disability benefits must establish she is
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 12 months . . . .” 42 U.S.C. §
423(d)(1)(A). Additionally, the claimant’s:
physical or mental impairment or impairments [must be] of such
severity that [s]he is not only unable to do h[er] previous work but
cannot, considering h[er] 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 [s]he lives, or whether a specific job
vacancy exists for h[er], or whether [s]he would be hired if [s]he
applied for work.
Id. § 423(d)(2)(A).
The Social Security Administration regulations outline a five-step process to determine
whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; 	(4) 	based 	on 	a 	“residual 	functional 	capacity”
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess, 537 F.3d at 120; 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant bears the burden of proof regarding
the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant meets his
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or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the
claimant is capable of working. Id.
IV. 	THE ALJ’S DECISION
In applying the five-step disability sequential evaluation, the ALJ determined Plaintiff
had not engaged in substantial gainful activity since the date of application. T. 1240. At step
two, the ALJ found Plaintiff had severe impairments of a history of learning disability, obesity,
chronic obstructive pulmonary disease, asthma, bipolar disorder, anxiety disorder, depressive
disorder, bilateral carpal tunnel syndrome, status post right ganglion cyst removal and carpal
tunnel release, lumbar spondylosis with radiculopathy, and degenerative disc disease of the
cervical spine. Id. At step three, the ALJ determined Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Before reaching step four, the ALJ concluded Plaintiff has the residual functional
capacity (“RFC”) to perform sedentary work, specifically
the claimant should never climb ladders, ropes, scaffolds; can
occasionally climb ramps or stairs; can occasionally balance as
defined by the SCO; can occasionally crouch, stoop, kneel, or crawl;
can occasionally reach overhead and can reach in other directions
frequently 	bilaterally; 	can 	frequently 	handle, 	finger, 	and 	feel
bilaterally; 	can 	occasionally 	push 	and 	pull; 	should 	avoid
concentrated exposure to dust, odors, fumes, gases, and poor
ventilation, as well as wetness and extreme hot and extreme cold,
and humidity; should avoid all exposure to hazards, such as
unprotected 	heights 	and 	dangerous 	moving 	machinery; 	can
understand, remember, and carry out simple instructions; can use
judgment to make simple work-related decisions; should work in a
job with occasional changes in routine work setting; cannot perform
work requiring a specific production rate or perform work which
requires 	hourly 	quotas; 	can 	have 	occasional 	interaction 	with
coworkers, supervisors, and the public; and can frequently flex,
extend, and rotate her cervical spine.
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T. 1243-44.
In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and the
extent to which those symptoms could “reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 C.F.R. § 416.929 and
[Social Security Ruling] 16-3p.” T. 1244. The ALJ further stated she considered the medical
opinions and prior administrative medical findings pursuant to 20 C.F.R. § 416.920c. Id. The
ALJ found Plaintiff’s medically determinable impairments could reasonably be expected to
cause her alleged symptoms; however, the Plaintiff’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not fully supported. T. 1244-45.
Proceeding to step four of the sequential evaluation, the ALJ determined Plaintiff did not have
past relevant work. T. 1252.
At step five, the ALJ concluded Plaintiff was not disabled prior to July 15, 2024, but
became disabled on that date and has continued to be disabled through the date of her decision.
T. 1254.
V. 	CONTENTIONS
Plaintiff contends “[t]he ALJ failed to resolve the conflict between the VE’s testimony
and Dictionary of Occupational Titles (DOT) regarding overhead reaching, and the occupations
identified by the VE consist of obsolete jobs.” Dkt. No. 11 at 16-24. Plaintiff further alleges
“[t]he ALJ failed [to] explain how the evidence supports Plaintiff’s ability to frequently flex,
extend, and rotate her cervical spine.” Id. at 24-28. Next, Plaintiff contends “[t]he ALJ’s
findings regarding social interaction support a finding of disability at step five, and the step five
finding is unsupported by substantial evidence.” Id. at 28. Lastly, Plaintiff contends “[t]he ALJ
erred in her evaluation of Plaintiff’s manipulative limitations.” Id. at 31-35. Defendant counters,
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“[i]n determining Plaintiff’s RFC, the ALJ properly considered the medical opinions of record.”
Dkt. No. 12 at 8-13. Defendant also argued “[t]he ALJ’s step five finding is supported by
substantial evidence.” Id. at 13-17.
VI. 	DISCUSSION
A. 	Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s
Neck and Manipulative Limitations
A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC, “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Id. (citing 20 C.F.R. § 404.1545(a)); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC
“based on all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3). The RFC
assessment does not have to “perfectly correspond” with any of the medical source opinions
cited in the ALJ’s decision; rather, the ALJ is “entitled to weigh all of the evidence available to
make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an RFC
finding “when there is substantial evidence in the record to support each requirement listed in the
regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
In assessing a plaintiff’s RFC, an ALJ is entitled to rely on opinions from both examining
and non-examining State agency medical consultants because these consultants are qualified
experts in the field of social security disability. See Frey ex rel. A.O. v. Astrue, 485 F. App’x
484, 487 (2d Cir. 2012) (summary order) (“The report of a State agency medical consultant
constitutes expert opinion evidence which can be given weight if supported by medical evidence
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in the record.”); Little v. Colvin, No. 5:14-cv-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y.
Mar. 26, 2015) (“State agency physicians are qualified as experts in the evaluation of medical
issues in disability claims. As such, their opinions may constitute substantial evidence if they are
consistent with the record as a whole.”) (internal quotation marks omitted).
ALJs must “conduct a distinct analysis that” permits “adequate review on appeal.” Aung
Winn v. Colvin, 541 F. App’x 67, 70 (2d Cir. 2013). Every conclusion the ALJ reaches must be
supported by relevant medical evidence. See Heckman v. Comm’r of Soc. Sec., No. 18-CV-6032,
(LJV), 2019 WL 1492868, at *3 (W.D.N.Y. Apr. 4, 2019). Indeed, the 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. 5:18-CV-0217 (TWD), 2019 WL 1988672, at *4 (N.D.N.Y. May 6,
2019) (cleaned up). When ALJs “determine the specific amount of time a claimant can spend on
certain activities” that assessment cannot be based on their “own surmise.” William C. v.
Comm’r of Soc. Sec., No. 21-CV-06341 (MJR), 2023 WL 4361366, at *3 (W.D.N.Y. July 6,
2023) (cleaned up).
1. 	Relevant Medical Evidence
Non-examining medical consultant L. Dekeon, Ph.D., found Plaintiff’s spine disorders
non-severe. T. 76. Ultimately it was determined Plaintiff was not disabled because the claim
was insufficient for a disability determination. T. 77. Upon reconsideration with L. Haus, Psy.
D., Plaintiff’s medical conditions worsened, and she had to wear a wrist brace. T. 81. Plaintiff’s
carpal tunnel syndrome was found non-severe, and her disorders of the skeletal spine were found
severe. T. 89. Plaintiff reported activities of daily living including being independent with
personal and household activities, caring for her six-year-old child, having a boyfriend, using the
computer, watching television, and reading. T. 90. Plaintiff “did not allege any specific
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functional limitations to assess for credibility” therefore “[t]he assessments were based upon the
objective evid[ence] in file.” T. 91. C. Krist, D.O., opined Plaintiff could occasionally lift
and/or carry 50 pounds, frequently lift and/or carry 25 pounds. T. 93. Plaintiff could stand
and/or walk and sit for about six hours in an eight-hour workday and had unlimited ability to
push and/or pull including operation of hand and/or foot controls. Id. Dr. Krist opined Plaintiff
could occasionally climb ramps, stairs, ladders, ropes and scaffolds and had unlimited ability in
other areas of postural limitations, due to decreased sensation in the lower extremities. T. 94-95.
Dr. Krist opined Plaintiff did not have manipulative limitations. T. 95.
On June 28, 2017, Kautilya Puri, M.D., completed an internal medicine examination. T.
373-78. Plaintiff’s main complaint was sharp low back pain that increased with moving,
bending, lifting, twisting, squatting, standing, and walking. T. 373. This pain decreased with
medication and rest. Id. Plaintiff reported “she can do some cooking, cleaning, laundry, and
childcare. She can shower, bathe, and dress. She watches [television] and goes out.” T. 374.
On exam, Plaintiff had a normal gait and used no assistive device. Id. Her squat was
“markedly decreased though she sits with no difficulty.” Id. Plaintiff needed no help changing
for the examination or getting on and off the examination table and was able to rise from the
chair without difficulty. Id. Her neck was supple with no masses, jugular vein distention,
thyromegaly or bruits. Id. Her cervical spine showed full flexion, extension, lateral flexion
bilaterally, and fully rotary movement bilaterally. T. 375. Plaintiff had full range of motion of
her shoulders, and her hand and finger dexterity were intact. Id. Her grip strength was five out
of five bilaterally. Id. Dr. Puri opined Plaintiff “did not have objective limitations to
communication or fine motor/gross motor activity.” T. 376. She further opined Plaintiff “had
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mild limitations to her gait and to her activities of daily living on examination today with mild-
to-moderate limitations to squatting, bending, stooping, kneeling and lifting weights.” Id.
On August 27, 2019, Gilbert Jenouri, M.D., completed an internal medicine examination.
T. 439-49. Plaintiff reported her activities of daily living included “cooking once a week,
cleaning twice a week, laundering once a week, showers twice a week, and dresses on occasion.”
T. 439. She also reported watching television and listening to the radio. Id.
Upon examination, her neck was supple with no masses, jugular vein distention,
thyromegaly or bruits. T. 440. Plaintiff’s cervical spine showed full flexion, extension, lateral
flexion bilaterally, and rotary movements bilaterally. T. 441. She had full range of motion in
her shoulders and hands. Id. Plaintiff’s wrists had dorsiflexion to the right 50 degrees and to the
left 60 degrees. Id. Her palmar flexion was 50 degrees to the right and 30 degrees to the left. Id.
Plaintiff’s ulnar deviation was 20 degrees to the right and 30 degrees to the left. Id. For radial
deviation, Plaintiff’s right hand was ten degrees and 20 degrees for her left hand. Id. Plaintiff’s
hand and finger dexterity were intact, and her grip strength was five out of five bilaterally. Id.
Dr. Jenouri opined Plaintiff had mild restrictions in bending, stair climbing, lifting, carrying,
walking and standing long periods. T. 442.
On September 2, 2021, Corina Gonzales, M.D., completed an internal medicine
examination. T. 782-87. Dr. Gonzales noted arthritis throughout Plaintiff’s body including her
cervical spine. T. 782. She also noted an August 2019 x-ray that showed her cervical spine had
“moderate degenerative changes at C5 to C6, mild degenerative changes at C4 through C5 and
minimal retrolisthesis of C3 and C4.” Id. Plaintiff reported her activities of daily living included
being able to cook and clean every other day. T. 783. She was able to do laundry and shop
daily. Id. She provided childcare to her daughter daily. Id. Plaintiff was also able to shower,
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bathe, and dress daily. Id. Lastly, Plaintiff reported she watched television and listened to the
radio. Id.
On examination her neck was supple with no masses, no jugular vein distention, no
thyromegaly or bruits. T. 784. Plaintiff’s cervical spine showed 20 degrees flexion and
extension. Id. Her cervical spine lateral flexion to the right was 30 degrees and 10 degrees to
the left. Id. Plaintiff’s cervical spine rotation was 60 degrees to the right and was full to the left.
T. 785. Plaintiff had tenderness and spasms over the cervical, thoracic, and lumbar spine. Id.
Plaintiff’s shoulder flexion was 130 degrees bilaterally. Id. Her shoulder abduction and
adduction were full bilaterally, with internal rotation 45 degrees and external rotation 60 degrees
bilaterally. Id. There was pain over her shoulders and mid back at the end range of flexion,
abduction, and internal rotation. Id. Plaintiff’s wrist dorsiflexion to the right was 40 degrees
with pain, and to the left was full. Id. Her palmar flexion to the right was 40 degrees with pain
and the left was full. Id. Her radial and ulnar deviation were full bilaterally. Id. Plaintiff’s hand
and finger dexterity were intact bilaterally. T. 786. Her fisting was full bilaterally with four plus
out of five grip strength bilaterally. Id. Plaintiff was able to tie without difficulty, but zippering
and buttoning were stiff, clumsy, and awkward on the right side. Id.
Dr. Gonzales opined Plaintiff had moderate limitations to bending, lifting, carrying, and
to activities requiring frequent head movement. Id. She also opined Plaintiff had mild to
moderate limitations to prolonged standing, prolonged walking, prolonged sitting, pushing,
pulling, climbing stairs, and reaching overhead bilaterally. Id. Dr. Gonzales further opined
Plaintiff had mild limitations to handling, fingering, and operating hand controls on the right. Id.
She opined Plaintiff should avoid activities that require moderate or greater levels of exertion,
avoid respiratory irritants, and avoid unprotected heights and moving on uneven ground. Id.
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On December 1, 2023, Sharon Revan, M.D., completed an internal medicine
examination. T. 2554-57. Plaintiff reported she showers and dresses herself. T. 2555. She
needed help lifting anything heavy, and with cooking, cleaning, laundry, and shopping. Id.
Plaintiff watched television and she colored. Id. On examination her neck was supple with no
masses, no jugular venous distention, no thyromegaly or bruits. T. 2556. Plaintiff’s cervical
spine showed full flexion, extension, lateral flexion, and full rotary movement bilaterally. Id.
She had full range of motion of her elbows, forearms, wrists and fingers bilaterally. Id.
Plaintiff’s hand and finger dexterity were intact. Id. Fisting was full and grip strength five out of
five bilaterally. Id. Dr. Revan opined Plaintiff had mild limitations with the right upper
extremity for gross motor activity of the right shoulder. T. 2557. She also opined mild to
moderate limitations with daily living due to her back pain. Id.
2. 	Analysis
There is no question that Plaintiff has numerous limitations which were accounted for in
the ALJ’s RFC. Essentially, the ALJ accepted many of the limitations set forth by the various
doctors, as she found all of them generally partially persuasive. T. 1250-52.3 After the court’s
remand, the ALJ obtained additional evidence and medical reports which provided support for
the weight given to the various medical source statements. See, e.g., T. 1778-2775 (medical
records generated after the May 25, 2022, decision, T. 12-25). When an ALJ finds a particular
medical opinion to be persuasive, the ALJ is not required to adopt every limitation contained in
the opinion when making an RFC determination. See, e.g., Melaine L. v. Comm’r of Soc. Sec.,
No. 5:22-CV-87 (ATB), 2022 WL 17992220, at *9 (N.D.N.Y. Dec. 29, 2022) (“The ALJ was
3 The ALJ found the opinion of state agency psychological consultant L. Haus, Psy. D., not
persuasive based on Plaintiff’s mental limitations and therefore it does not apply to the analysis
in this section. T. 1252.
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not required to accept every limitation in the various medical opinions or to craft an RFC
mirroring a particular opinion.”) (citation omitted).
With respect to Plaintiff’s argument that the ALJ failed to provide explanation for the
ability of frequent movement of Plaintiff’s neck, although there is evidence in the record that
Plaintiff has limits on such motion, as cited above, the majority of the treatment notes state
Plaintiff had a normal neck. T. 413, 419, 422, 425, 428, 1026. Plaintiff rarely reported
symptoms of pain in her neck. T. 393, 396, 532, 537, 544, 545, 549, 554, 693, 698-99, 1025.
Lastly, Plaintiff had a full range of motion in her neck and cervical spine. T. 375, 398, 400, 441,
2556, 2576.
The same is true with respect to Plaintiff’s argument the ALJ erred in her evaluation of
Plaintiff’s manipulative limitations. Although Plaintiff has some reduced range of motion of the
wrists, treatment notes showed Plaintiff has near-to-full range of motion of the shoulders,
elbows, forearms, and hands bilaterally. T. 375, 441, 785. The ALJ noted on March 15, 2024,
the “orthopedic record states that the claimant was ‘doing great’ following her February 27, 2024
surgery and that she had full range of motion of her wrist and fingers and good sensation in her
fingers.” T. 1246 (citing T. 2714). The ALJ additionally noted:
Most of the claimant’s consultative physical examinations have
been negative for dexterity, strength, or sensation deficits involving
her hands. 	For example, the claimant exhibited intact hand and
finger dexterity, 5/5 grip strength, and no sensory deficits during her
consultative physical examinations on June 28, 2017, August 27,
2019, and December 1, 2023. She exhibited intact hand and finger
dexterity during her September 2, 2021 consultative physical
examination but also exhibited 4/5 grip strength; stiff, clumsy, and
awkward zippering and buttoning with the right hand; and decreased
sensation in the right upper extremity during the same examination.
T. 1246 (citing T. 375, 441, 785-86, 2556).
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The ALJ also considered Plaintiff’s activities of daily living throughout the period in
question, in addition to the activities cited above in great detail. T. 1249-50. Thus, the ALJ’s
RFC findings were supported by substantial evidence in the record and the ALJ did not err with
respect to Plaintiff’s neck and additional manipulative limitations in the RFC. However, as
discussed below, the ALJ’s step five determination is not properly supported, and thus the
undersigned recommends the matter be remanded to the Commissioner.
B. 	The ALJ Partially Erred in her Step Five Findings
As step five of the sequential analysis, the Commissioner determines whether the
claimant can perform work that exists in significant numbers in the national economy. The
Commissioner bears the burden of proof at this step. See Butts v. Barnhart, 416 F.3d 101, 103
(2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
In the present case, the ALJ found that there were jobs that existed in significant numbers
in the national economy that Plaintiff could have performed. T. 1253.
1. 	The ALJ Did Not Err by Relying on the VE’s Testimony Regarding
Plaintiff’s Social Interactions
Plaintiff argues “the current ALJ found greater social limitations, and it is unclear how
the prior testimony regarding occasional interactions would not prevent work at step five.” Dkt.
No. 11 at 29. The premise of Plaintiff’s argument, however, is faulty.
In both the 2022 and 2024 hearings, the hypothetical posed to the VE included an
individual could “have occasional [interaction/contact] with co-workers, supervisors, and the
public.” T. 60, 1279. The VEs responded there were three jobs in the national economy Plaintiff
could perform at the sedentary exertional level. T. 60, 61, 1280. As the VEs provided available
jobs at both hearings, there is no conflict to reconcile.
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Plaintiff’s representative posed the question at the 2022 hearing, “[w]ould there be any
occupations that exist where someone could learn how to train to do the occupation on Day 1
where they’re only having occasional interaction with a supervisor or a coworker?” T. 63. The
VE responded no occupations with that restriction existed, but that within the first three days an
individual would frequently be with a coworker or a supervisor during the training period to
learn how to do the occupation. Id. With this information neither the VE nor the ALJ stated
Plaintiff would not be able to do the jobs provided given the occasional interaction restriction. T.
63-64. Notably Plaintiff has the same representative at the 2022 and 2024 hearings. T. 31, 1266.
As such the representative was aware of the potential issue and had the opportunity to question
the new VE about social interaction but chose not to. See Brault v. Soc. Sec. Admin., Comm’r.,
683 F. 3d 443, 450-51 (2d Cir. 2012) (holding Plaintiff’s attorney had a full opportunity to
explain his objections in significant detail. If no objections were given, nothing more was
required by the ALJ).
Even if the 2022 and 2024 VEs’ testimonies were conflicting, which they are not,
Plaintiff has not cited any legal authority for the proposition that an ALJ must consider on
remand prior VE testimony given in connection with a vacated decision. Dkt. No. 11. In
contrast, the Commissioner cites a Second Circuit case generally holding that an ALJ need not
address conflicting evidence from a hearing that was vacated. Dkt. No. 12 at 15 (citing Uffre v.
Astrue, No. 06-CV-7755, 2008 WL 1792436, at *7 (S.D.N.Y. Apr. 18, 2008) (an “ALJ making a
decision in a case on remand . . . is to consider the case de novo when the Appeals Council has
vacated the ALJ’s previous decision” concluding the “first decision has no bearing on these
proceedings”)).
In sum, the Court finds the ALJ did not err in relying on this part of the VE testimony.
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2. 	The ALJ Did Not Err by Relying on the VE’s Proposed Occupations
The ALJ relied on the opinion of VE Robert Baker who testified that a hypothetical
claimant with the limitations set forth in the RFC determination could perform the representative
occupations of addresser, tube operator, and document preparer. T. 1253, 1280. Plaintiff objects
to the representative occupations as obsolete and to the VE’s testimony as based on outdated
information. Dkt. No. 11 at 19-24.
While some courts have expressed concern where the ALJ relied on representative
occupations that appear to be obsolete in the modern economy—see, e.g., Maldonado v. Comm’r
of Soc. Sec., No. 21-CV-7594 (RWL), 2023 WL 243617, at *10 (S.D.N.Y. Jan. 18, 2023); Lynch
v. O’Malley, No. 22-CIV-5620-CS-AEK, 2024 WL 728483, at *14 (S.D.N.Y. Feb. 21, 2024);
Applefeld v. Comm’r, Soc. Sec. Admin., No. SAG-17-517, 2018 WL 1136571, at *5 n.1 (D. Md.
Mar. 1, 2018); Feeley v. Comm’r of Soc. Sec., No. CIV. 14-4970 KM, 2015 WL 3505512, at *11
(D. N.J. June 3, 2015)—other courts, including the Second Circuit in an unpublished decision,
have declined to accept this type of argument, finding that the ALJ is entitled to rely on the VE’s
testimony and refusing to make a judicial finding as to whether an occupation is obsolete. See
Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011) (“We decline Bavaro’s invitation to take
judicial notice of the decline of the photofinishing industry and deem the position infeasible for
her. A vocational expert testified to the existence of such jobs at the national and regional level.
The ALJ was entitled to credit that testimony . . . and we will not disturb that finding based upon
Bavaro’s conclusory proclamations to the contrary.”); see also Angi W. v. Comm’r of Soc. Sec.,
No. 21 Civ. 0557 (CJS), 2023 WL 2595008, at *11 (W.D.N.Y. Mar. 22, 2023) (“[T]he Court
would be loath to conduct its own analysis of job types and job availability and second guess the
vocational expert’s conclusions.”); Lucius R. v. O’Malley, No. 3:22-CV-01312-MPS, 2024 WL
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1200181, at *22 (D. Conn. Jan. 22, 2024); Medranda v. O’Malley, No. 23 CIV. 6633 (SLC),
2024 WL 4100567, at *8 (S.D.N.Y. Sept. 6, 2024) (“The Court is not the proper authority to
assess the types of jobs Ms. Medranda could perform and how many positions exist in the
national economy.”).
On June 22, 2024, the Social Security Administration issued an “Emergency Message”
imposing heightened requirements on ALJs considering certain representative occupations
“whose continued widespread existence multiple courts have questioned.” Denise W. v. Comm’r
of Soc. Sec., No. 23-CV-1098S, 2025 WL 322249, at *7 n.4 (W.D.N.Y. Jan. 29, 2025) (quoting
Soc. Sec. Admin. Emergency Message (EM)-24027).
In particular, when faced with one of the designated occupations, the ALJ is required
under the Emergency Message to obtain additional evidence to determine that occupation’s
requirements, as the job is presently performed, are consistent with the claimant’s RFC and that
the position still exists in the national economy in numbers that alone, or in combination with
other representative occupations, are significant. See Coles v. Comm’r of Soc. Sec., No. 24-CV-
6119 (OEM), 2025 WL 2024366, at *6 (E.D.N.Y. July 21, 2025).
Among the representative occupations identified by the VE in the present case, the
Emergency Message identifies all three as potentially obsolete occupations. See EM-24027,
available at https://secure.ssa.gov/apps10/reference.nsf/links/01062025092030AM (last accessed
Jan. 27, 2026). For purposes of this argument the Court will only focus on the job of document
preparer as it was the only job with a significant number of jobs nationally at 17,336 jobs. See
Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018) (acknowledging that jobs with
9,000 to 10,000 positions available nationwide “have typically be found to be sufficiently
‘significant’ to meet the Commissioner’s burden”).
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The Court finds no reversible error in the ALJ’s step five determination in this regard.
First, the Emergency Message did not become effective until January 6, 2025, after the date of
the ALJ’s decision. T. 1254. Second, in any event, the ALJ satisfied the heighted duty of
inquiry. The ALJ asked the VE whether the tools and work processes had changed for the
document preparer position. T. 1281. The VE testified “these days we also have scanning for
document storage, so it’s the same exact activity that you see in the description for the document
preparer, but it’s not only done for microfilming; it’s also done for scanning.” T. 1281. The
Court, therefore, concludes that to the extent the heightened duty applied to the ALJ in this case,
the ALJ satisfied it. The Court also notes Plaintiff’s counsel was given the opportunity to cross-
examine VE Baker during the administrative hearing, T. 1283, and his credentials were
unchallenged in the underlying administrative proceedings.
3. 	The ALJ Failed to Resolve the Conflict between the VE’s Testimony
and the Dictionary of Occupational Titles
An ALJ may engage a vocational expert to opine on the jobs a hypothetical person of the
claimant’s age, education, and RFC could perform in the national economy. 20 C.F.R. §
404.1560(b)(2) (“a vocational expert . . . may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairments can meet the demands of the claimant’s previous work”);
accord Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986) (“If nonexertional limitations
significantly diminish [claimant]’s ability to perform the full range of ‘light work,’ then the ALJ
should require the Secretary to present either the testimony of a vocational expert or other similar
evidence regarding the existence of jobs in the national economy for an individual with
claimant’s limitations.”).
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When assessing the requirements of a particular occupation, an ALJ should primarily rely
upon the DOT, but may also use VE testimony to resolve more complex vocational issues. See
Antonio P. v. Comm’r of Soc. Sec., No. 3:21-CV-62, 2021 WL 5768545, at *8 (D. Conn. Dec. 6,
2021) (summarizing SSR 00-4p, 2000 WL 1898704, at *2 (SSA Dec. 4, 2000)). SSR 00-4p
provides VE testimony should generally be consistent with the occupational information
contained in the DOT, and when there is an “apparent” unresolved conflict, the ALJ must obtain
a “‘reasonable explanation for the conflict before relying on the [vocational expert’s
testimony].’” Murray v. Colvin, No. 15-CV-6384, 2016 WL 5335545, at *13 (W.D.N.Y. Sept.
23, 2016) (alteration in original) (quoting SSR 00-4p, 2000 WL 1898704 (SSA 2000)). Where,
however, the DOT is silent on an issue, there is no actual conflict between the VE’s testimony
and the DOT. See Reisinger v. Comm’r of Soc. Sec., No. 16-CV-428 (ATB), 2017 WL 2198965,
at *10 (N.D.N.Y. May 18, 2017) (collecting cases).
The Second Circuit has held 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.” Lockwood v. Commissioner, 914 F.3d 87, 92 (2d Cir.
2018); see also Brault, 683 F.3d at 446 (“a VE whose evidence conflicts with the DOT must
provide a reasonable explanation to the ALJ for the conflict.”). In Lockwood, 914 F.3d at 92, the
VE testified a claimant who was unable to perform any overhead reaching could still perform a
number of occupations requiring occasional or frequent reaching under the DOT. The Second
Circuit required remand, because the ALJ’s questioning of the VE did not resolve this apparent
conflict. Id. at 92-93.
In this case, the VE testified an individual with Plaintiff’s RFC, including restrictions to
“occasionally reach overhead and can reach in other directions frequently bilaterally” could
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perform the representative tasks of addressor, tube operator, and document preparer. T. 1279-80.
According to the DOT, each of these occupations require “frequent” reaching. See Dictionary of
Occupational Titles 209.587-010, 1991 WL 671797, id. 239.687-014, 1991 WL 672235, id.
249.587-018, 1991 WL 672349. The VE testified his analysis of available occupations was
consistent with the DOT other than the issue of reaching overhead. T. 1283. The VE stated,
“[s]ome things I mentioned, such as . . . breaking out any kind of reaching overhead versus
reaching in all directions, [are not discussed] so those portions of the hypothetical are based on
my experience and my training.” Id.
Plaintiff argues the “VE did not provide testimony as to what reaching is required for the
three occupations identified, and the VE did not explain how the three occupations requiring
frequent reaching could still be performed with a limitation to occasional overhead reaching.”
Dkt. No. 11 at 17-19. This Court agrees. While the VE identified the conflict, he did not explain
how the occupations could be performed despite requiring frequent reaching. Courts have
remanded where “[t]he VE testimony did not provide clarity as to how the limitations on
overhead reaching were not a conflict with the degree of reaching required by the job, other than
to rely on his professional experience.” Matthew M. v. Comm’r of Soc. Sec., No. 1:20-cv-1644-
DB, 2022 WL 3346949, at *4 (W.D.N.Y. Aug. 12, 2022).
The Commissioner cites Peter W. v. Comm’r of Soc. Sec., No. 6:20-CV-1551 (TWD),
2022 WL 523744 (N.D.N.Y. Feb. 22, 2022), where the court concluded the record need only
establish that “[t]he conflict was identified and described by the VE regarding the reaching issue,
and [that the VE] provided a plausible explanation.” Dkt. No. 12 at 14 (quoting Peter W., 2022
WL 523744, at *11 (citation omitted)). Here, the VE did not provide a plausible explanation and
“[t]he VE offered no indication that he relied on job observation, research or specific knowledge
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of the job.” Matthew M., 2022 WL 3346949, at *4. “Given that the DOT does not break down
directional reaching, the VE’s response that he relied on his experience does not specifically
address the conflict. Nor did the ALJ adequately address the conflict and resolve why the jobs
would not require greater overhead reaching.” Id. “The fact that the VE’s opinion was based on
his own ‘knowledge and experience’ does not resolve the conflict.” Id. (citing Lockwood, 914
F.3d at 92).
Reaching is defined as “extending the hand and arms in any direction.” SSR 85-15, 1985
WL 56857, at *7 (Jan. 1, 1985). Thus, there is an apparent conflict between the RFC and the
identified jobs. See Lockwood, 914 F.3d 87 at 92. “Testimony that a claimant with overhead
reaching limitations is capable of performing a job that the Dictionary describes as requiring
‘reaching,’ then, creates at least an apparent conflict that triggers the Commissioner’s duty to
elicit an explanation that would justify crediting the testimony.” Id. (citations and alterations
omitted). The VE’s testimony is far from clear as to how the limitations on overhead reaching
were not a conflict with the degree of reaching required by the jobs other than to rely on his
experience, T. 1283, which as explained above, is insufficient.
Based on the foregoing, the ALJ’s finding that Plaintiff was not disabled as defined by
the SSA was not supported by substantial evidence in the record because the ALJ improperly
relied on VE testimony that conflicted with the DOT. Upon remand, the Commissioner should
obtain an explanation concerning this apparent conflict.
VII. 	CONCLUSION
WHEREFORE for the reasons stated herein, it is hereby
RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11)
be GRANTED; and it is further
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RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
12) be DENIED; and it is further
RECOMMENDED that the Commissioner’s decision denying Plaintiff benefits be
REMANDED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: January 30, 2026
Syracuse, New York
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