Batcher v. Commissioner of Social Security

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
Annemarie B.,1
Plaintiff,
v. 1:25-CV-00218
(MJK)
Commissioner of Social Security,
Defendant.
__________________________________________________________________
Howard D. Olinsky, Esq., for Plaintiff
Candace Brown Casey, Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
Annemarie B. 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). Annemarie B. consented to the jurisdiction of a Magistrate Judge.
(Dkt. 11). Both parties filed briefs (Dkts. 13, 15, 16), which the Court
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 the plaintiff using only his first name and last
initial.
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treats as motions under Fed. R. Civ. P. 12(c), in accordance with
General Order 18.
I. PROCEDURAL HISTORY
On May 22, 2020, Annemarie B. filed an application for Disability
Insurance Benefits (“DIB”) alleging disability beginning May 27, 2015.
Annemarie B. v. Comm’r Soc. Sec., No 1:23-cv-129 (FJS/CFH), 2024 WL
759921, at *1 (N.D.N.Y. Feb 5, 2024) report and recommendation
adopted, 2024 WL 756942 (N.D.N.Y. Feb. 23, 2024). Her application
was initially denied on January 14, 2021, and after reconsideration, on
March 5, 2021. (Id.) On August 10, 2021, a hearing was held before
Administrative Law Judge (“ALJ”) Arthur Patane. (Id.). On November
3, 2021, ALJ Patane issued an unfavorable decision. Id. On December
16, 2022, the Appeals Council denied Annemarie B.’s request for review.
Id. Annemarie B. appealed to this Court which vacated and remanded
the Commissioner’s decision consisted with the Report-
Recommendation and Order issued by Magistrate Judge Hummel on
February 5, 2024. Id.
On March 8, 2024, the Appeals Council issued a remand order
directing the ALJ to obtain additional vocational evidence to determine
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whether jobs existed in significant numbers at step five. (T. 2254-55).2
The ALJ held a hearing on October 2, 2024. The ALJ obtained evidence
from Peter Manzi, a Vocation Expert (“VE”), but he did not testify. The
VE provided a “Vocational Interrogatory,” which he signed on October
31, 2024 and submitted along with his resume. (T. 2415-2428). The ALJ
sent the Vocational Interrogatory and a letter to Annmarie B.’s
attorney, Bradford Myler, the next day. The ALJ’s letter stated, in
pertinent part:
I have obtained additional evidence that I propose to enter into
the record. Please log into http://ssa.gov/ar/ to view the new
proposed exhibits.
VOCATIONAL INTERROGATORY EXHIBIT B33E
You may submit any or all of the following: written comments
concerning the evidence, a written statement as to the facts and
law you believe apply to the case in light of that evidence, and any
additional records you wish me to consider (including a report
from the treating physician). You may also submit written
questions for the author(s) of the new evidence. If you do so, I will
consider whether they need to be completed.
You may also request a supplemental hearing. If you request a
supplemental hearing, I will grant the request unless I decide to
issue a fully favorable decision… In addition, you may request an
opportunity to question witnesses, including the author(s) of the
new evidence. I will grant a request to question a witness if I
2 All page references are to the Administrative Transcript (“T.”), and not the page
numbers assigned by the CM/ECF pagination system.
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determine that questioning the witness is needed to inquire fully
into the issues. If a witness declines a request by me to appear
voluntarily for questioning, I will consider whether to issue a
subpoena to require his or her appearance.
***
Actions I Will Take If I Do Not Hear From You
If I do not receive a response from you within 10 days of the date
you receive this notice, I will assume that you do not wish to
submit any written statements or records. Unless I determine that
the claimant is eligible for a supplemental hearing, I will enter the
new evidence in the record and issue my decision.
(T. 2429-2430).
Annemarie B. did not take the actions described in the letter, and
she does not argue otherwise on appeal.
On December 17, 2024, ALJ Patane issued an unfavorable
decision. (T. 2128-49). After ALJ Patane’s decision became the final
agency decision, Annemarie B. appealed.
II. GENERALLY APPLICABLE LAW
A. Disability Standards
To be considered disabled, a claimant seeking Title II 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
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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). Additionally, the
claimant must show:
physical or mental impairment or impairments [must be] of
such 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) (cleaned up).
The Commissioner uses a five-step process to evaluate 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
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
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determines whether there is other work which the claimant
can perform.
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. Berry, 675 F.2d at 467. If the claimant establishes
that their impairments prevent them from performing their past work,
then the burden shifts to the Commissioner to prove the fifth and 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
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 is “more than a
scintilla” of evidence scattered throughout the administrative record.
Id. But this standard is a very deferential standard of review “—even
more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
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“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). Even so, 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
conflicting shred of medical testimony[.]”). But they 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).
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III. FACTS
The record includes Annemarie B.’s medical treatment records
which the parties are familiar with. The Court will refer to the
pertinent records and Annemarie B.’s hearing testimony in its analysis
as appropriate.
IV. THE ALJ’S DECISION
At step one of the five-step sequential evaluation, the ALJ
determined that Annemarie B. had not engaged in substantial gainful
activity since May 22, 2020, the application date. (T. 2133).
At step two, the ALJ found that Annemarie B. had the following
severe impairments: degenerative disc disease of the cervical and
lumbar spine, status post surgeries of the right hip and right shoulder,
obesity, fibromyalgia, and asthma/chronic obstructive pulmonary
disease (COPD). (Id.). In addition to the above noted severe
impairments, the record documents diagnoses and/or a history of
treatment for an unspecified depressive disorder, adjustment disorder
with anxiety, and a learning disorder by history. (Id.). However, the
ALJ determined that neither the medical evidence contained in the
record at the time of the prior ALJ decision nor the new medical
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evidence of record contains sufficient clinical, treatment, or medical
opinion evidence to support a finding that these or any other mental
impairments have caused or contributed to more than minimal work-
related limitations which have lasted for 12 continuous months or more.
(Id.). Accordingly, the ALJ found that the regulatory requirements for
severity and/or duration are not satisfied with respect to these
impairments. (Id.).
At step three, the ALJ determined that Annemarie B.’s
impairments or combination of impairments did not meet or medically
equal the severity of one of the listed impairments in Appendix 1 to 20
C.F.R. Part 404, Subpart P. (T. 2135).
Next, the ALJ determined that Annemarie B. had the residual
functional capacity (“RFC”) to perform:
sedentary work as defined in 20 CFR 416.967(a)
except that she can occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps/stairs/ladders/scaffolds, must
avoid respiratory irritants, must be allowed to use a cane for
assistance with ambulation outdoors, and due to the severity
and chronicity of her pain, retains the attention and
concentration skills necessary to perform simple, routine
tasks.
(T. 2136).
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When crafting the RFC, the ALJ stated that he considered all
Annemarie B.’s symptoms, and the extent to which those symptoms
could “reasonably be accepted as consistent with the objective medical
evidence and other evidence[.]” (Id.). The ALJ added that he fully
considered “the medical opinion(s) and prior administrative medical
finding(s)” as required by 20 C.F.R. §§ 404.1520c. (Id.).
At step four, the ALJ found that Annemarie B. had no past
relevant work. (T. 2140).
At step five, the ALJ determined that considering Annemarie B.’s
age, education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy that
she could perform. (T. 2141).
Accordingly, the ALJ determined that Annemarie B. is not
disabled as defined in the Social Security Act, since May 22, 2020 (the
date her application was filed. (T. 2142).
V. ISSUES IN CONTENTION
Annemarie B. argues that remand is warranted because the ALJ
failed to develop the record. More specifically, she contends that the
ALJ erred by (1) accepting and relying on the VE’s affidavit, rather
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than live testimony; (2) that the ALJ violated this Court’s prior order by
only providing national job numbers, not regional and local job
numbers; and (3) that newly submitted evidence—data she obtained
from SkillTran—undermines the VE’s opinion. See (Annemarie B’s Brief
(“Pl. Br.”), pgs. 6–11 (Dkt. 13)). (Annemarie B.’s Reply Brief (“Rep. Br.”),
pgs. 1–7 (Dkt. 16))
The Commissioner responds that the ALJ complied with the
Court’s remand order; that VE testimony submitted via interrogatory is
permitted; that Annemarie B.was provided, but did not avail herself of,
the opportunity to request a supplemental hearing, submit additional
questions to the VE, cross examine the VE, and submit additional
evidence and argument. Defendant’s Brief (Dkt. 15, Def. Br., pgs. 9–13).
The Commissioner adds that Annemarie B.’s failure to take the actions
described in the ALJ’s letter forecloses her from submitting additional
evidence. (Def. Br. At pgs. 13–18). For the reasons detailed below, the
Court agrees with the Commissioner.
VI. DISCUSSION
The Court affirms the ALJ’s decision for three reasons. First, the
ALJ complied with this Court’s prior remand order. Second, the ALJ
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properly accepted VE testimony through an interrogatory. Third,
Annemarie B. is foreclosed from submitting additional evidence at this
stage of the proceedings.
A. The ALJ complied with this Court’s prior remand
order.
The Court finds that the ALJ properly complied with this Court’s
prior remand order. An ALJ’s failure to follow a Court’s remand order is
itself legal error that is subject to reversal. But ALJ Patane complied
with the Court’s prior remand order. In consequence, the Court will not
disturb ALJ Patane’s decision.
ALJ Patane complied with this Court’s prior remand order. When
“a court finds that the Secretary has committed a legal or factual error
in evaluating a particular claim, the district court’s remand order will
often include detailed instructions concerning the scope of the remand,
the evidence to be adduced, and the legal or factual issues to be
addressed.” Sullivan v. Hudson, 490 U.S. 877, 885 (1989). An ALJ’s
failure to follow a court’s remand order is reversible error. Id. at 886
(“Deviation from the court’s remand order in the subsequent
administrative proceedings is itself legal error, subject to reversal on
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further judicial review.”). Put plainly, a federal district court does not
make “allegations” in a social security remand order; “rather, the court
directs the Commissioner to correct the noted errors on remand, and the
Commissioner is obligated to correct those errors in the manner
described by the court.” Johnson v. Comm’r of Soc. Sec., 2016 WL
2854516 (D. Vt. May 16, 2016).
More to the point, “instructions to an ALJ from a federal district
court in Social Security cases constitute the law of the case.” Krawczyk
v. Berryhill, 17-CV-01311, 2019 WL 244491, at *4 (W.D.N.Y. Jan. 17,
2019) (collecting cases). Under the law of the case, the Commissioner is
“implicitly limited by any findings of the district court regarding the
application for disability benefits.” Gladle v. Astrue, 12-CV-0284, 2013
WL 4543147, at *3 (N.D.N.Y. Aug. 27, 2013). And in the Social Security
context, courts also apply the “rule of mandate.” Krawczyk, 2019 WL
244491, at *4 (collecting cases). The rule of mandate “presents a specific
and more binding variant of the law of the case doctrine” because it
“requires that, on remand, the lower court’s actions must be consistent
with both the letter and the spirit of the higher court's decision.” Id.
(citations and quotations omitted); see also Quern v. Jordan, 440 U.S.
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332, 347 n. 18 (1979) (considering whether post-mandate conduct of the
lower court was consistent “with either the spirit or the express terms of
our decision”).
Here, ALJ Patane’s actions on remand were consistent with both
the letter and spirit of this Court’s prior remand order. In the prior
remand order, the Court stated in relevant part: “the ALJ failed to meet
his burden at step five to demonstrate that substantial evidence
supports the conclusion that a significant number of jobs exist in the
national or regional economy that Annemarie B. can perform based on
her RFC.” Annemarie B., 2024 WL 758821, at *6 (emphasis added)
(cleaned up). The Court further noted that the “ALJ failed to
sufficiently determine whether there are significant number of jobs that
Annemarie B. can perform in the local, regional, or national economy.”
Id. (emphasis added) (cleaned up). In response, the ALJ obtained a
vocational interrogatory from VE Manzi. (T. 2425–2428). The ALJ also
issued a letter to Annemarie B. stating that she had the right to request
a supplemental hearing, submit additional questions to the VE, cross
examine the VE, and submit additional evidence and argument—but
Annemarie B. did not avail herself of these rights. See (T. 2429–2430).
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Therefore, Annemarie B.’s right to later question the VE’s methodology
was foreclosed.
Moreover, Annemarie B. misreads the Court's prior order. That
part of the Court’s prior order which referred to regional jobs was
predicated on finding less than 10,000 jobs. Annemarie B., 2024 WL
758821, at *7. As the Commissioner correctly notes, the Court’s prior
order stated “it is not clear whether the three jobs the VE provided are
‘representative jobs’ or whether there exist other jobs that Annmarie B.
can perform based on her RFC, and if such jobs are fewer than 10,000,
remand would serve the ‘useful purpose’ of allowing the ALJ to
(1) determine whether there exist other jobs with Annemarie B.’s RFC
in significant numbers in the national economy; and (2) include the
number of jobs available regionally.” Annemarie B., 2024 WL 758821, at
*7 (emphasis added) (cleaned up). The Commissioner’s reading is
consistent with this Court’s precedent. See, e.g., Mark E. v. Kijakazi, No
8:20-cv-425, 2021 WL 4168590, at *9 (N.D.N.Y. Sept 14, 2021
(explaining that “although the second circuit has not addressed whether
the ALJ must consider regional job numbers, as well as national job
numbers, district courts within this Circuit have determined that the
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ALJ may rely on either national or regional job numbers.”) (collecting
cases); see also 20 C.F.R. § 404.1566 (“We consider that work exists in
the national economy when it exists in significant numbers either in the
region where you live or in several other regions of the country.”).
At a more basic level, Annemarie B. reads the Court’s prior order
too narrowly. She contends that the ALJ failed to elicit regional job
numbers from the VE “in direct contravention of this Court’s” prior
remand order. (Pl. Br., pgs. 12–13). But that is not so. The Court
remanded because the Commissioner had not met his burden to show
that a significant number of jobs existed in the national or regional
economy which Annemarie B. could perform. Annemarie B., 2024 WL
758821, at *6 (emphasis added). By using the disjunctive word “or,” the
Court specifically gave the ALJ separate options for producing
substantial evidence concerning the available jobs for Annemarie B. See
Barscz v. Director, 486 F.3d 744, 750 (2d Cir. 2007) (noting that phrases
listed in the disjunctive “should be treated independently”). That is, the
ALJ could either provide (1) national job data; or (2) provide regional
job data to meet the step five substantial evidence burden. See
Annemarie B., 2024 WL 758821, at *6. Here, per the Court’s prior
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remand order, the ALJ was only required to provide regional job
numbers if national job numbers were fewer than 10,000. Annemarie B.,
2024 WL 758821, at *7.
Based on her RFC, VE Mazni found 57,146 jobs in the national
economy that Annemarie B. could perform. (T. 2427). With that, there
was no need for the ALJ to seek regional job numbers. ALJ Patane
therefore did not violate this Court’s prior remand order.
B. The ALJ correctly relied on VE Manzi’s opinion and
the Court cannot entertain Annemarie B.’s newly
submitted “evidence.”
ALJ Patane properly accepted VE Manzi’s testimony via an
interrogatory and the Court concludes that Annemarie B. cannot offer
additional evidence at this point. When reviewing an ALJ’s decision, the
reviewing court must ensure that the ALJ’s determinations are
supported by substantial evidence. Here, ALJ Patane supported his
decision with substantial evidence. Therefore, the Court affirms the
decision.
ALJ Patane properly accepted VE Manzi’s testimony through an
interrogatory. First, an ALJ may only rely on a VE's opinion where it
rests on a sufficient foundation, such as “personal experience, labor
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market surveys, and published statistical sources.” See Jones-Reid v.
Astrue, 934 F. Supp. 2d 381, 407 (D. Conn. 2012), aff’d, 515 F. App’x 32
(2d Cir. 2013) (summary order). Whether a VE’s opinion constitutes
substantial evidence is a case-by-case determination—VE opinions
clearing that bar must have some “markers of reliability.” Biestek v.
Berryhill, 587 U.S. 97, 108 (2019). ALJ Patane was entitled to rely on
VE Manzi’s opinion because it rested on a sufficient foundation.
Specifically, VE Manzi’s lengthy resume, the sources of information on
which he based his opinion (including the second quarter Bureau of
Labor Statistic report that he cited), and his experience working with
“staffing agencies, temp agencies and rehabilitation agencies and on
placement” provided that foundation. (T. 2428). Because the report
rested on a sufficient foundation, ALJ Patane did not err in relying on
VE Manzi’s job numbers.
Second, ALJ Patane properly relied on VE Manzi’s report because
Annemarie B. never contested the report, even though she was offered
ample opportunity to do so. See Pamela M.H. v. Commn’r, No. 5:05-CV-
00297, 2024 WL 1468906, at *6 & fns. 9–10 (N.D.N.Y. Feb. 22, 2024),
report and recommendation adopted, 2024 WL 1131043 (N.D.N.Y. Mar.
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15, 2024) (noting that plaintiff’s counsel did not challenge the VE about
his methodology for calculating job numbers that “absent an objection,
the ALJ is entitled to rely on the vocational expert”) (quotation
omitted); see also Zacharopoulos v. Saul, 516 F. Supp. 3d 211, 225
(E.D.N.Y 2021) (plaintiff’s counsel failed to raise issue at hearing
thereby shielding the ALJ’s determination from challenge on appeal).
Because Annemarie B. never challenged VE Manzi’s methodology, even
though she was given the opportunity to do so, ALJ Patane properly
relied on VE Manzi’s job numbers.
Lastly, Annemarie B. fails to address whether the Court can
consider her new SkillTran evidence on appeal—it cannot. “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). This Court’s review is
limited to “determining whether the SSA’s conclusions were supported
by substantial evidence in the record and were based on a correct legal
standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)
(emphasis added) (internal quotation marks omitted)). And in cases
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where a claimant is seeking a sentence four remand—which Annemarie
B. is (T. 11)—the Court’s review is limited to the “pleadings and
transcript of the record.” Raitport v Callahan, 183 F.3d 101, 103–04 (2d
Cir. 1999).
Annemarie B.’s SkillTran evidence is indisputably outside of the
record and is therefore not properly before the Court. But even if the
Court could review this “evidence,” which it cannot, Annemarie B.’s new
“evidence” is simply raw job data. See (Pl. Br., pg. 9). Although the raw
data seems to address Annemarie B.’s contentions, without the benefit
of VE testimony, the Court cannot ascertain its probative value on
counsel’s representation—interpreting raw data is what expert
witnesses are for. See Poole v. Saul, 462 F. Supp. 3d 137, 165 (D. Conn.
2020) (explaining that there was “no basis on which to conclude that the
research of counsel is somehow inherently more reliable than the expert
testimony of the VE.”) (cleaned up) (quoting Mott v. Saul, No. 3:19-CV-
00733, 2020 U.S. dist. LEXIS 90780, at *37 (D. Conn. Feb 24, 2020)). As
it stands, the Court cannot entertain the raw job data from SkillTran
that Annemarie B. submitted.
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At bottom, the time to offer new evidence and challenge VE
Manzi’s opinion expired when Annmarie B.’s prior attorney failed to
exercise the options offered to her in the ALJ’s letter. That prior
attorney’s failure to do so is fatal to her current attorney’s efforts to
question the VE’s interrogatory at this junction. Moreover, the Court
cannot review Annemarie B.’s newly submitted “evidence.” Therefore,
the Court affirms ALJ Patane’s decision.
* * *
Annemarie B.’s arguments are unavailing. ALJ Patane followed
this Court’s prior remand order, properly relied on VE Manzi’s
interrogatory, and declined to entertain the raw SkillTran data offered
by Annemarie B. In consequence, the Court affirms ALJ Patane’s
decision.
VII. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Annemarie B.’s motion for judgment on the
pleadings (Dkt. 13, 16) is DENIED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the
pleadings (Dkt. 15) is GRANTED; and it is further
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ORDERED, that the ALJ’s decision is AFFIRMED and the
Complaint (Dkt. 1) IS DISMISSED IN ITS ENTIRETY.
Dated: March 12, 2026.
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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