Crossett v. Bisignano

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
Leonard C.,1
Plaintiff,
v. 6-25-cv-00718
(MJK)
Commissioner of Social Security,
Defendant.
______________________________________________________________________
Peter Zisser, Esq., for Plaintiff
Fergus Kaiser, Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
Leonard C. commenced this action under Social Security Act, 42
U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security denying his application for benefits. This
matter was assigned to me, for all proceedings and entry of a final
judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General
Order No. 18 as Leonard C. consented to my jurisdiction (Dkt. 7), and the
Commissioner did not withdraw his consent. Both parties filed briefs, which
1 In accordance with guidance from the Committee on Court Administration and
Case Management of the Judicial Conference of the United States, which was
adopted by the Northern District of New York in June 2018, to better protect
personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify Leonard C. using only his first name and last
initial.
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the court treats as motions under Federal Rule of Civil Procedure Rule
12(c), in accordance with General Order 18.
I. PROCEDURAL HISTORY
On January 31, 2023, Leonard C. filed applications for Disability
Insurance Benefits (“DIB), and Supplemental Security Income (“SSI”),
alleging disability beginning March 25, 2010. (Administrative Transcript
(“T”) 104, 298-309 (Dkt. 8). Both applications were initially denied on July
24, 2023, and upon reconsideration on September 26, 2023. (T. 71, 72, 87,
88). On July 24, 2024, Administrative Law Judge (“ALJ”) Kenneth Theurer
held a virtual hearing during which Leonard C. and vocational expert (“VE”)
Robert Baker testified. (T. 38-56). On July 29, 2024, the ALJ issued a
decision denying Leonard C. benefits. (T. 22, 30). This became the
Commissioner’s final decision when the Appeals Council denied Leonard
C.’s request for review on May 6, 2025. (T. 5-7).
II. GENERALLY APPLICABLE LAW
A. Disability Standards
To be considered disabled, a claimant seeking DIB or SSI benefits
must establish that he 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
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can be expected to last for a continuous period of not less than twelve
months . . . .” 42 U.S.C. § 1382c(a)(3)(A). Additionally, the claimant’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his 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 he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he 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.
sections 404.1520 (for DIB) and 416.920 (for SSI), to evaluate disability
claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a
“severe impairment” which significantly limits his 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 him 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, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past
work, the [Commissioner] then determines whether there is other
work which the claimant can perform.
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Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see Rosa
v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry, 675 F.2d at 467).
The claimant has the burden of establishing disability at the first four steps.
Id. If the claimant establishes that his impairment prevents him from
performing his past work, then the burden then shifts to the Commissioner
to prove the fifth and final step. Id.
B. Scope of Review
This Court has jurisdiction under 42 U.S.C. § 1383(c)(3). “A district
court reviewing a final . . . decision [of the Commissioner of Social
Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), is performing an appellate function.” Zambrana v. Califano,
651 F.2d 842, 844 (2d Cir. 1981) (cleaned up); see Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013); Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 448 (2d Cir. 2012). In reviewing a final decision of the
Commissioner, a court must decide whether the ALJ applied the correct
legal principles to reach their conclusion and whether “substantial
evidence” supported the decision. See 42 U.S.C. § 405(g); see also Berry,
675 F.2d at 467. “Substantial evidence is ‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
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adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28,
31 (2d Cir. 2004) (quotation omitted).
Still, the “substantial evidence” standard is a “very deferential
standard of review—even more so than the clearly erroneous standard.”
Brault, 683 F.3d at 448 (internal quotation marks omitted); see Nasrallah v.
Barr, 590 U.S. 573 (2020) (noting that under the substantial evidence
standard an agency’s “findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”) (cleaned up).
“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 ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988). Nevertheless, a reviewing court may not substitute its interpretation
of the administrative record for that of the Commissioner if the record
contains substantial support for the ALJ’s decision. See Id.; see also
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
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III. FACTS
The record includes Leonard C.’s medical treatment records which the
parties are familiar with. The Court will refer to the pertinent records and
Leonard C.’s hearing testimony in its analysis as appropriate.
IV. THE ALJ’S DECISION
At step one of the sequential evaluation, the ALJ determined that
Leonard C. had not engaged in substantial gainful activity since March 25,
2020. (T. 19). At step two, the ALJ found that Leonard C. had the following
severe impairments: diabetes mellitus, diabetic neuropathy, diabetic
retinopathy, hypertension, and ischemic heart disease. (Id.). At step three,
the ALJ determined that Leonard C.’s impairments neither meet nor
medically equal the criteria of any listed impairments in Appendix 1 to 20
C.F.R. Part 404, Subpart P. (T. 20).
Next, the ALJ determined that Leonard C. had the residual functional
capacity (“RFC”) to perform “less than the full range of light work,” with the
following limitations:
he can occasionally lift and carry twenty pounds,
frequently lift and carry ten pounds, sit for up to six
hours, stand or walk for approximately four hours in an
eight hour day with normal breaks; occasionally climb
ramps or stairs; never climb ladders, ropes or scaffolds;
can perform occasional balancing, stopping, kneeling,
crouching, and crawling; should avoid work at
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unprotected heights or in conjunction with dangerous
machinery; and should not operate a motor vehicle.
(T. 20).
In making the RFC determination, the ALJ stated that he considered
all Leonard C.’s symptoms, and the extent to which those symptoms could
“reasonably be accepted as consistent with the objective medical evidence
and other evidence[.]” (T. 24). The ALJ added that he fully considered the
“the medical opinion(s) and prior administrative medical finding(s)” as
required by 20 C.F.R. §§ 404.1520c, 416.920c. (Id.).
At step four, the ALJ reasoned that Leonard C. is unable to perform
any past relevant work. (T. 24). And at step five, using the Medical
Vocational Guidelines as a “framework,” and the VE’s testimony, the ALJ
found that Leonard C. was “capable of making a successful adjustment to
other work that exists in significant numbers in the national economy.” (T.
25-26). The ALJ thus found that Leonard C. was not disabled. (T. 26).
V. ISSUES IN CONTENTION
Leonard C. essentially argues two points: first, that the ALJ’s step
five determination was unsupported by substantial evidence (Leonard C.’s
Brief (“Pl.’s Br.”) at 8-9 (Dkt. 9)); second, that the ALJ’s RFC determination
was not supported by substantial evidence because the ALJ ignored prior
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administrative medical findings suggesting that Leonard C.’s RFC limited
him to sedentary work. (Pl.’s Br. at 10-11); (Leonard C.’s Reply Brief (“Rep.
Br.”) at 8 (Dkt.12)).
The Commissioner responds that both the ALJ’s step five
determination, and the ALJ’s RFC determination were supported by
substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 5-12 (Dkt. 11)). For
the following reasons, the Court agrees with the Commissioner that the
ALJ’s step five decision and RFC determinations were supported by
substantial evidence. Therefore, the Court affirms the ALJ’s decision.
VI. DISCUSSION
1. Because there was no conflict between the VE’s
testimony and the dictionary of occupational titles, the
ALJ’s step five determination is supported by
substantial evidence.
Leonard C. notes that the ALJ limited him to “light work,” the full
range of which “requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour day.” (Pl. Br. at 9) (citing Golden v.
Saul, 2020 WL 3248821, at 6, n.6 (W.D.N.Y. June 16, 2020) (citing SSR 83-
10). Leonard C. argues that the VE’s testimony was inconsistent with the
Dictionary of Occupational Titles (“DOT”) and the ALJ failed to resolve this
conflict, resulting in a decision not supported by substantial evidence. (Pl.
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Br. at 9). The Commissioner responds that the ALJ properly relied on the
VE’s testimony because there was no “apparent conflict” between the VE’s
testimony and the DOT, and thus the ALJ decision was supported by
substantial evidence. (Def. Br. At 8).
At step five, the Commissioner bears the burden of proving that a
significant number of jobs exist in the national economy that a claimant can
perform. See McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v)). It is “standard practice” for
the Commissioner to use VE testimony to satisfy his burden. See Matta v.
Astrue, 2011 U.S. Dist. LEXIS 120673, at *9-10 (E.D.N.Y. Oct. 18, 2011)
(cleaned up). As a general matter, occupational evidence offered by a VE
should be consistent with that provided by the DOT. See SSR 00-4p, 2000
WL 1898704, at *2. If there is an apparent unresolved conflict between VE
evidence and the DOT, the ALJ has an affirmative duty to elicit a
reasonable explanation for the conflict before relying on the VE evidence to
decide whether the claimant is disabled. Id. But an ALJ need not elicit
additional testimony from the VE where there is “no apparent conflict.”
Hernandez v. Comm’r of Soc. Sec., 2022 WL 18402121, at *10 (S.D.N.Y. Dec.
16, 2022) (footnote omitted); see Patricia K. v. Comm’r of Soc. Sec., 2020 WL
7490323, at *17 (N.D.N.Y. Dec. 21, 2020) (“However, ‘[t]he DOT’s mere
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failure to mention every single characteristic of [a claimant’s] limitations in
every job available for [him] does not constitute [an apparent conflict].’”)
(cleaned up). And an ALJ’s failure to do so can be harmless error when
there is no conflict or the VE provides a basis for relying on his or her
testimony instead of the DOT. See Carvey v. Astrue, 2009 WL 3199215, at
*13 (N.D.N.Y. Sept. 30, 2009)
Here, there is no conflict between the VE’s testimony and the DOT. To
start, the ALJ did not conclude that Leonard C. could perform the full range
of light work as Leonard C. argues. See (Pl. Br. at 8-10). Rather, he found
that Leonard C. could perform “less than the full range of light work” (T.
24). In the hypothetical he posed, the ALJ asked the VE to assume an
individual Leonard C.’s age, education, and vocational history who could,
among other things, “occasionally lift and carry 20 pounds, frequently carry
10 pounds, sit for up to 6 hours, stand or walk for approximately 4 hours of
an 8-hour day with normal breaks, . . . can perform occasional balancing,
stooping, kneeling, crouching, and crawling . . . .” (T. 52-53). With these
limits in mind, the VE offered “primarily office, clerical-type positions that’ll
allow for that four-hour stand/walk[,] [a]nd all the jobs at a desk and also
standing, typically.” (T. 53). The jobs the VE offered, and the ALJ adopted,
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include marker (DOT No. 209.587-034), 1991 WL 671802 (1991); mail clerk
(DOT No. 209.687-026), 1991 WL 671813 (1991); ticket seller (DOT No.
211.467-030), 1991 WL 671853 (1991). (T. 29, 53).
In his determination, the ALJ relied on the VE’s testimony and found
that “there are jobs that exist in significant numbers in the national
economy that [Leonard C.] can perform.” (T. 25). Alongside that finding, the
ALJ noted “[Leonard C.]’s ability to perform all or substantially all of the
requirements of [the full range of light work] has been impeded by
additional limitations.” (Id.). And “[t]o determine the extent to which these
limitations erode the unskilled light occupational base, the [ALJ] asked the
vocational expert whether jobs exist in the national economy for an
individual with [Leonard C.]’s age, education, work experience, and [RFC].”
(Id.). The ALJ added that, after considering the parameters of the ALJ’s
question, the VE testified that such an individual could perform work as a
marker, mail clerk, or ticket seller. (Id.)
The ALJ correctly relied on the VE’s testimony that Leonard C. could
perform other work in the national economy. To begin, the ALJ complied
with his affirmative duty to confirm that the VE’s testimony was consistent
with the DOT. SSR 00–4p (“When a [vocational expert] provides evidence
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about the requirements of a job or occupation, the [ALJ] has an affirmative
responsibility to ask about any possible conflict between that [vocational
expert’s] evidence and information provided in the DOT. In these situations,
the [ALJ] will: Ask the [vocational expert] if the evidence he or she has
provided conflicts with information provided in the DOT”). And when asked
whether the jobs he offered were consistent with the DOT, the VE replied:
“it is. DOT does not mention the use of automobiles, so that part of my
answer is based on my experience and training[] and also separating out
light jobs that would allow a four-hour stand/walk.” (T. 49-51). Moreover,
the VE specifically testified that he considered “clerical” jobs that would
allow for “four-hour stand/walk” limitations. (T. 49). The VE plainly
identified a subset of light duty jobs that Leonard C. could perform given
the RFC.
Further, contrary to Leonard C.’s claims, there is no “obvious conflict”
between the VE’s testimony and the DOT regarding standing/walking
requirements that would have required the ALJ to elicit additional
testimony. Leonard C. argues that the full range of light work “requires
standing or walking, off and on, for a total of approximately 6 hours of an 8-
hour work day.” (Pl. Br. at 9) (cleaned up). This is true. See Poupore v.
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Astrue, 566 f.3d 303, 305 (2d Cir. 2009) (per curiam) (“The full range of light
work requires intermittently standing or walking for a total of
approximately 6 hours of an 8-hour workday, with sitting occurring
intermittently during the remaining time”). But not all light work jobs
require standing or walking for that amount of time. See 20 C.F.R.
§§ 404.1567(b), 416.967(b) (noting that a job may be classified as light
“when it involves sitting most of the time with some pushing and pulling of
arm or leg controls”). Indeed, as described in the DOT descriptions for the
jobs the VE identified, a job can be classified as “light work” if “it requires
sitting most of the time but entails pushing and/or pulling of arm or leg
controls; and/or [] when the job requires working at a production rate pace
entailing the constant pushing and/or pulling of materials even though the
weight of those materials is negligible.” See marker (DOT No. 209.587-034),
1991 WL 671802 (1991); mail clerk (DOT No. 209.687-026), 1991 WL
671813 (1991); ticket seller (DOT No. 211.467-030), 1991 WL 671853 (1991).
And again, as the VE found a subset of light duty jobs that Leonard C. could
perform given his RFC, there is no “obvious conflict” between the DOT and
the VE’s testimony, and thus the ALJ was under no duty to elicit additional
testimony. See Clark v. Colvin, 2015 WL 1446937, at *10 (N.D.N.Y Mar. 23,
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2015) report and recommendation adopted, 2015 WL 1446987 (citing Peck v.
Astrue, 2010 WL 3125950, at *10 (E.D.N.Y. Aug. 6, 2010) (holding that an
ALJ is not required to ask a rote question where there is no indication of
conflict with the DOT) (citation omitted); see e.g., Denning v. Saul, 2019 WL
453023, at *4 (W.D. Okla. Sept. 19, 2019) (“finding no conflict where VE
testified that [a claimant] with 4-hour walking limitation could perform
occupation categorized in DOT as “light work” because, ‘[b]y [the DOT’s]
definition, light work requires only a good deal of walking or standing”);
Saez v. Astrue, 2012 WL 1155946, at *4 (C.D. Cal. Apr. 6, 2012) (same)).
Therefore, the ALJ’s step five determination was supported by substantial
evidence.
2. The ALJ’s RFC Determination was supported by substantial
evidence.
Leonard C. argues that the ALJ ignored medical evidence that would
support limiting him Leonard C. to sedentary work and mandate that he be
declared disabled per Rules 201.12 and 201.14 of the GRIDs. See (Pl. Br. at
6-7) (citing DI 25025.035). Specifically, Leonard C. cites prior
administrative medical findings of state agency medical consultants Drs.
Miller and Brauer, both of whom opined that Leonard C. was limited to
performing sedentary work. (Pl. Br. at 6-7; Tr. 24, 56-57, 63-64, 71-72, 78-
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79). To Leonard C., the ALJ finding the opinions “generally persuasive,” but
refusing to adopt a sedentary RFC determination as those opinions called
for, leaves the ALJ’s RFC determination unsupported by substantial
evidence. (Pl. Br. at 6-7; Rep. Br. at 8).
The Commissioner responds that the ALJ fully adopted the opinions of
Drs. Miller and Brauer and therefore the RFC was supported by substantial
evidence. (Def. Br. at 10-11). For the reasons set forth below, the Court
agrees with the Commissioner.
The RFC is “what an individual can still do despite his or her
limitations . . . . Ordinarily, RFC is the individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on a
regular and continuing basis[.]” Pardee v. Astrue, 631 F. Supp. 2d 200, 210
(N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(citation omitted)). It is an administrative decision, not a medical one. See
Breinin v. Colvin, 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report
and recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015).
A claimant’s RFC is assessed based on an evaluation of all relevant
evidence in the record. See 20 C.F.R. §§ 404.1520(e), 404.945(a)(1), (a)(3);
SSR 96-8p. At the hearing level, the ALJ is responsible for determining a
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claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-5p; see also 20 C.F.R. §
404.1527(d)(2) (stating the assessment of a claimant’s RFC is the
Commissioner’s responsibility). Deciding a claimant’s RFC is an issue
reserved for the Commissioner, not a medical professional. See 20 C.F.R. §
416.927(d)(2) (indicating that “the final responsibility for deciding these
issues [including RFC] is reserved to the Commissioner.”). Additionally, it is
the ALJ’s job to resolve genuine conflicts in the evidence. See Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
In assessing a claimant’s RFC, the ALJ may “choose between properly
submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998) (superseded in part by regulation). The ALJ is free to reject portions
of medical-opinion evidence not supported by objective evidence of record,
while accepting those portions supported by the record. See Veino, 312 F.3d
at 588. The ALJ’s conclusion need not “perfectly correspond with any of the
opinions of medical sources cited in her decision,” because 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 508 F. App’x at 56 (citing
Richardson v. Perales, 402 U.S. 389, 399 (1971)) (the RFC need not
correspond to any particular medical opinion; rather, the ALJ weighs and
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synthesizes all evidence available to render an RFC consistent with the
record as a whole); see also Castle v. Colvin, 2017 WL 3939362, at *3
(W.D.N.Y. Sept. 8, 2017) (holding that the fact that the ALJ’s RFC
assessment did not perfectly match a medical opinion is not grounds for
remand) (cleaned up). Further, the burden to provide a more restrictive
RFC lies with Leonard C., not the Commissioner. See 20 C.F.R. §§
404.1512(a), 416.912(a).
Here, Leonard C.’s argument stems from a misreading of the Social
Security Regulations. For instance, 20 C.F.R. § 404.1527(e)(1) specifically
states that an RFC finding in a medical opinion will be considered, but “the
final responsibility for deciding th[is] issue[] is reserved to the
Commissioner.” Similarly, 20 C.F.R. § 404.1520b(c)(v) explains that
statements like what a claimant’s RFC “is using our programmatic terms
about the functional exertional levels”—like sedentary or light—are
expressly reserved for the Commissioner, and not a claimant’s physician.
Thus, the ALJ was free to not adopt the RFC opinions of Drs. Miller and
Brauer that limited Leonard C. to sedentary work. That is precisely what
the ALJ did here.
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But even while ignoring the sedentary RFC designations suggested by
Drs. Miller and Brauer, the ALJ still largely followed the functional
limitations they offered in his RFC determination—indeed, the ALJ found
both opinions “generally persuasive.” See (T. 24, 56, 63). For example, the
RFC limited Leonard C. to “occasionally lift and carry twenty pounds,
frequently lift and carry ten pounds, sit for up to six hours, stand or walk
for approximately four hours in an eight hour day with normal breaks . . . .”
(T. 204). Both Drs. Miller and Brauer opined that Leonard C. had exactly
the same limitations. (T. 71-72, 79). Moreover, the ALJ’s RFC provided even
stricter postural limitations than both Drs. Miller and Bauer because the
ALJ limited Leonard C. to occasional kneeling and crawling—while Drs.
Miller and Bauer opined that Leonard C. could do both without any limit.
(T. 20, 72, 79).
At bottom, Leonard C.’s argument amounts to an invitation for this
Court to reweigh evidence in a manner more favorable to him—the Court
declines because it is insufficient under the substantial evidence standard of
review. See Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)
(“whether there is substantial evidence supporting the appellant’s view is
not the question here; rather, we must decide whether substantial evidence
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supports the ALJ’s decision.”); see also McIntyre, 758 F.3d at 149 (explaining
that “[i]f evidence is susceptible to more than one rational interpretation,
the Commissioner's conclusion must be upheld.”).
VII. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Leonard C.’s motion for judgment on the
pleadings (Dkt. 9) be DENIED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the
pleadings (Dkt. 11) be GRANTED; and it is further
ORDERED, that the ALJ’s decision be AFFIRMED.
Dated: March 4, 2026
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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