Stevens v. Bisignano

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CLAUDETTE S.,
Plaintiff,
vs. 	6:24-CV-1477
(MAD/TWD)
FRANK BISIGNANO, Commissioner
of Social Security,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	JUSTIN M. GOLDSTEIN, ESQ.
& DISABILITY LAW
6000 North Bailey Avenue - Suite 1a
Amherst, New York 14226
Attorney for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	KRISTINA D. COHN, ESQ.
Office of Program Litigation
6401 Security Boulevard
Baltimore, Maryland 21235
Attorney for Defendant
Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, Claudette S., commenced this action pursuant to 42 U.S.C. § 405(g) seeking
review of the decision of the Commissioner of Social Security (the "Commissioner") denying her
application for supplemental security income. See Dkt. No. 1.
In a Report and Recommendation dated January 30, 2026, Magistrate Judge Therese
Wiley Dancks recommended that (1) Plaintiff's motion for judgment on the pleadings be granted;
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(2) Defendant's motion for judgment on the pleadings be denied; and (3) the Commissioner's
decision be remanded for further proceedings. See Dkt. No. 14. Neither party filed objections.
When no objections are made to a magistrate judge's recommendation, the Court reviews a
report-recommendation for only clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 229
(N.D.N.Y. 2012) (citing FED. R. CIV. P. 72(b), Advisory Committee Note: 1983). "When
performing such a 'clear error' review, 'the court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.'" Id. (quotation and footnote
omitted). After the appropriate review, "the court may accept, reject or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
The Court finds no clear error in Magistrate Judge Dancks' analysis and conclusion
rejecting Plaintiff's first three arguments regarding the Administrative Law Judge's ("ALJ")
decision. See Dkt. No. 14 at 8-19. Magistrate Judge Dancks thoroughly discussed the statutory
authority, case law, and record evidence related to each of Plaintiff's arguments. The Court finds
no clear error in the first conclusion in the Report and Recommendation that the ALJ
appropriately determined Plaintiff's Residual Functional Capacity ("RFC") based on opinions
from numerous medical sources as well as Plaintiff's treatment records. See id. at 14; see also
Malcolm C. v. Comm'r of Soc. Sec., 801 F. Supp. 3d 175, 180 (W.D.N.Y. 2025) ("An ALJ's
conclusion need not perfectly correspond with any of the opinions of medical sources cited in his
decision") (citation and quotation marks omitted).
The Court likewise finds no clear error in Magistrate Judge Dancks' conclusion that the
ALJ did not err in relying on the Vocational Expert's ("VE") testimony regarding Plaintiff's ability
to interact socially and the national availability of occupations Plaintiff could perform. See Dkt.
No. 14 at 15-19. Magistrate Judge Dancks accurately stated that there was no conflict between
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the ALJ's RFC determination and testimony from the VE during a prior hearing (this case has
been remanded once before). See id. at 16. The Court also agrees that, even if there was a
conflict, the ALJ is likely not required to rely on testimony from a decision or hearing that has
been vacated. See id.; cf. Lisa J.H. v. Comm'r of Soc. Sec., No. 5:24-CV-01247, 2025 WL
3669633, *9 (N.D.N.Y. Nov. 18, 2025), R & R adopted, 2025 WL 3654528 (N.D.N.Y. Dec. 17,
2025) ("[T]he ALJ had no duty to reconcile VE testimony that was based upon different
hypotheticals").
As to Plaintiff's contention that the VE provided the ALJ with obsolete jobs at step five of
the disability determination, Magistrate Judge Dancks correctly noted that "some courts have
expressed concern where the ALJ relied on representative occupations that appear to be obsolete
in the modern economy[,] . . . [but] other courts . . . 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." Dkt. No. 14 at 17 (collecting cases). "[T]he
Second Circuit in an unpublished decision" has declined to accept that argument. Id. (citing
Bavaro v. Astrue, 413 Fed. Appx. 382, 384 (2d Cir. 2011) (summary order)). Given the present
circumstances—that the ALJ asked the VE additional questions about one of the allegedly
obsolete jobs, Plaintiff's representative did not ask any follow-up questions, and Plaintiff does not
object to the Report and Recommendation—the Court finds no clear error in Magistrate Judge
Dancks' conclusion that "the ALJ satisfied the heighted duty of inquiry" applicable to allegedly
obsolete jobs. Id. at 19.
However, because the Court is remanding the case based on a different error in the ALJ's
consideration of the VE testimony, the Court finds it prudent to reiterate Magistrate Judge
Dancks' statement that "all three" jobs identified by the VE are "potentially obsolete occupations"
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according to the Social Security Administration's "Emergency Message" issued in June of 2024.
Id. at 18. Out of the three potentially obsolete jobs, only one was identified as having "a
significant number of jobs nationally." Id. Although "[t]he Commissioner need show only one
job existing in the national economy that [the plaintiff] can perform," Bavaro, 413 F. Appx. at 38,
the ALJ should be mindful of the Emergency Message when revisiting the step five determination
on remand.
Finally, as to the reason Magistrate Judge Dancks recommended remanding the case, the
Court finds no clear error in the recommendation that the ALJ's decision be remanded because the
ALJ did not rectify an apparent conflict between the testimony of a VE and the Dictionary of
Occupational Titles ("DOT"). See Dkt. No. 14 at 19-22. As explained more fully by Magistrate
Judge Dancks, the ALJ determined that Plaintiff "can occasionally reach overhead and can reach
in other directions frequently bilaterally"; the VE testified that, with that restriction, Plaintiff
could perform the jobs of addressor, tube operator, and document preparer; but the DOT states
that each position requires "frequent" reaching. Dkt. No. 14 at 6, 21. The VE testified that the
DOT does not discuss reaching overhead versus reaching "in all directions," "so those portions of
the hypothetical are based on my experience and training." Id. at 21. The Court agrees with
Magistrate Judge Dancks that the VE's testimony is insufficient for the ALJ to have adequately
addressed the conflict between the RFC determination, and the jobs Plaintiff could perform.
Magistrate Judge Dancks aptly quoted and relied on a decision from the Second Circuit,
Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87, 92 (2d Cir. 2019), which states that
"[t]estimony that a claimant with overhead reaching limitations is capable of performing a job that
the [DOT] 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." Dkt.
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No. 4 at 22. Because the VE testified that the conclusion Plaintiff could perform the identified
jobs was based only on his "experience and training," the Court finds no clear error in Magistrate
Judge Dancks' determination that remand is warranted. Dkt. No. 14 at 21 (relying on Matthew M.
v. Comm’r of Soc. Sec., No. 1:20-CV-1644, 2022 WL 3346949, *4 (W.D.N.Y. Aug. 12, 2022),
which concerned the same issue).
Accordingly, after carefully reviewing the Report and Recommendation, the entire record
in this matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Dancks' Report and Recommendation (Dkt. No. 14) is
ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and the Court further
ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and the Court further
ORDERS that the Commissioner's decision is REVERSED and REMANDED for
further proceedings; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Plaintiff's favor and close the
case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 2, 2026
Albany, New York
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