Terrell v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
DAVID M. T., II,
Plaintiff,
v.
No. 5:24-CV-01262
COMMISSIONER OF SOCIAL SECURITY, 	(PJE)
Defendant.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Olinsky Law Group 	HOWARD D. OLINSKY, ESQ.
250 South Clinton Street – Ste. 210
Syracuse, New York 13202
Attorneys for plaintiff
Social Security Administration 	NATASHA OELTJEN, ESQ.
Office of Program Litigation 	VERNON NORWOOD, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for defendant
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER1
Plaintiff David M. T., II2 brings this action pursuant to 42 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of the Social Security Administration (“the
Commissioner” or “defendant”) denying his applications for disability insurance and
1 The parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C.
§ 636(c), Fed. R. Civ. P. 73, Local Rule 72.2(b), and General Order No. 18. 	See Dkt. No. 4.
2 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 2018
to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff by first name and last initial.
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disability insurance benefits. See Dkt. No. 1 (“Compl.”). Plaintiff cross moves for the
Commissioner’s decision to be vacated and the matter remanded for further
administrative proceedings. See Dkt. No. 12.3 	The Commissioner cross moves to
affirm. See Dkt. No. 17. For the following reasons, the Commissioner’s cross-motion is
granted.
I. Background
On June 24, 2020, plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits, alleging a disability onset date of October 15,
2017. The Social Security Administration (“SSA”) initially denied plaintiff’s application
on January 14, 2021, and upon reconsideration on June 18, 2021. See T at 85, 99.
Plaintiff requested a hearing, and a hearing was held on March 9, 2022, by video. See
id. at 32-53. Administrative Law Judge (“ALJ”) Gretchen Greisler issued an unfavorable
decision, and the Appeals Council denied plaintiff’s request for review. See id. at 12-31,
1-6.
Plaintiff commenced an action in this Court, and on December 11, 2023, the
Court, pursuant to a consent order, remanded the case to the SSA under sentence four
of 42 U.S.C. 405(g). See T at 2113. On January 10, 2024, the Appeals Council
vacated the ALJ’s March 21, 2022, decision and remanded the matter to an ALJ. See
id. at 2217-2122. On August 16, 2024, ALJ Greisler issued a decision finding plaintiff
not disabled. See id. at 2033-56. See id. at 4. Plaintiff commenced this action on
October 16, 2024. See Dkt. No. 1.
3 Citations to the parties’ briefs refer to the pagination located at the header of each page, generated by
the Court’s electronic filing system, not the documents’ original pagination. “T” followed by a number
refers to the pages of the administrative transcript, and the Court’s citation to the administrative transcript
is to its original pagination located in the bottom left corner of each page. See Dkt. No. 8.
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II. Legal Standards
A. Standard of Review
Sentence four of 42 U.S.C. § 405(g) grants the court the authority “to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). In reviewing the Commissioner’s final
decision, a district court may not determine de novo whether an individual (the
“claimant”) is disabled. See Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856,
860 (2d Cir. 1990). The district court may reverse the Commissioner’s final decision
only if the ALJ failed to apply the correct legal standards or support the decision with
substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
Substantial evidence is “more than a mere scintilla,” meaning that in the record
one can find “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal citations omitted).
This is “a very deferential standard of review,” meaning that once an ALJ finds facts, the
court can reject them “only if a reasonable factfinder would have to conclude otherwise.”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)
(citation, emphasis, and internal quotation marks omitted); see also Clark v. Comm’r of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (reminding that it is for the ALJ to weigh
conflicting evidence in the record) (citing Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d
Cir. 1997)). Where there is reasonable doubt as to whether the Commissioner applied
the proper legal standards, the court should not affirm even though the ultimate
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conclusion is arguably supported by substantial evidence. Martone v. Apfel, 70 F.
Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the
ALJ applied the correct legal standards, and substantial evidence supports the decision,
the court must uphold the Commissioner’s conclusion even if the evidence is
“susceptible to more than one rational interpretation.” Schillo v. Kijakazi, 31 F.4th 64,
74 (2d Cir. 2022) (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)).
B. Determination of Disability
Under 42 U.S.C. § 423, every individual who is under a disability shall be entitled
to disability benefits. 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any medically-determinable
physical or mental impairment . . . which has lasted or can be expected to last for a
continuous period of not less than 12 months[.]” Id. § 423(d)(1)(A). A disabling
impairment is an affliction that is so severe it renders an individual unable to continue
with his or her previous work or any other employment that may be available to him or
her based upon age, education, and work experience. See id. § 423(d)(2)(A). Such
impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3); see also Ventura v. Barnhart, No. 04-cv-9018
(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (“Determinations of severity
are based on objective medical facts, diagnoses or medical opinions inferable from
these facts, subjective complaints of pain or disability, and educational background,
age, and work experience.”) (citing, inter alia, Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983)).
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To determine whether the claimant is entitled to disability benefits, a five-step
evaluation, based on 20 C.F.R. §§ 404.1520 and 416.920, is used:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether 	the 	claimant 	has 	a 	“severe 	impairment” 	which
significantly limits his [or her] 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 is listed in [20 C.F.R. Part 404, Subpart
P, Appendix 1 (the “Listings”)]. 	If the claimant has such an
impairment, the [Commissioner] will consider him [or her]
disabled without considering vocational factors such as age,
education, 	and 	work 	experience; 	the 	[Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth 	inquiry 	is 	whether, 	despite 	the 	claimant’s 	severe
impairment, he [or she] has the residual functional capacity to
perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (spacing added). “If at any step a
finding of disability or non-disability can be made, the SSA will not review the claim
further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
The plaintiff bears the burden of proof at the first four steps, and the
Commissioner bears the burden at step five to show that the plaintiff can engage in
gainful employment somewhere. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d
Cir. 1998) (citing Berry, 675 F.2d at 467).
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III. ALJ’s Decision4
ALJ Greisler first observed that plaintiff did not engage in substantial activity from
his alleged onset date of October 15, 2017, to the date of last insured, December 31,
2020. See T at 2038. At step two, the ALJ concluded that plaintiff had the following
severe impairments: disc protrusions, generalized anxiety disorder, major depressive
disorder, social anxiety disorder, panic disorder, history of spontaneous pneumothorax,
and asthma. See id. at 2039. At step three, the ALJ determined that plaintiff did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments[.]” Id. At step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except he cannot
tolerate 	more 	than 	mild 	exposure 	to 	respiratory 	irritants 	or 	extreme
temperatures. 	The 	claimant 	can 	tolerate 	occasional 	interaction 	with
supervisors, coworkers, and the public. He cannot work around the crowds
of people. 	The claimant can perform tasks at a consistent, goal-oriented
pace, but not at a fast production rate pace, such as would be experienced
in assembly line type of work. He can make decisions directly related to his
or her work and tolerate occasional minor changes.
Id. at 2041. At step four, the ALJ determined that plaintiff was unable to complete any
past relevant work. Id. at 2046. At step five, the ALJ determined that plaintiff could
perform the following jobs existing in significant numbers in the national economy:
Job 	Exertional Level 	SVP/Skill Level 	DOT 	Jobs Nationally
Routing Clerk 	Light 	2/unskilled 	222.687-022 	41,194
Photocopy
Machine Operator
Light 	2/unskilled 	207.685-014 	16,965
Page 	Light 	2.unskilled 	249.687-014 	16,143
4 	The Administrative Transcript was filed in a manner in which it was broken into many parts. The ALJ’s
decision and hearing transcript can be found at docket number 8-10.
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See id. at 2047. Thus, the ALJ determined that plaintiff had “not been under a disability,
as defined in the Social Security Act” from the alleged onset date to the date last
insured. Id. at 2048.
IV. Discussion
A. Arguments
Plaintiff argues that the Commissioner did not meet his step five burden. See
generally Dkt. No. 12. To wit, he contends that there exists an “unresolved” conflict
between the vocational expert’s (“VE”) testimony and the Dictionary of Occupational
Titles (“DOT”) specific to the router position. See id. at 8. 	In the RFC, the ALJ
concluded that plaintiff was unable to perform work “at a fast production rate pace, such
as would be experienced in assembly line type of work,” yet found that plaintiff could
perform the router position. See id. at 9. However, plaintiff contends, “[s]everal district
courts5 have found that the router job presents an apparent conflict with RFCs that
preclude production-based work.” Id. at 9. 	“Until this conflict is resolved, the routing
clerk position does not constitute substantial evidence of other work Plaintiff could
perform in the national economy.” Id. at 10. Plaintiff further asserts, “[w]hen the routing
clerk job is removed from the equation at Step Five,” the two remaining positions – page
and photocopy machine operator – are not jobs that exist in significant numbers of the
national economy that plaintiff can perform. Id.
The Commissioner argues that plaintiff has failed to demonstrate a conflict
between the DOT, the ALJ’s decision, and the VE’s testimony about the routing clerk
5 	Plaintiff cites to District Court cases from outside of this Circuit. See Dkt. No. 12 at 9-10.
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position; thus, SSR 00-4p6 does not apply. 	See Dkt. No. 17 at 8. 	The Commissioner
contends that the DOT’s inclusion of one reference to a conveyer belt in the routing clerk
position does not create a conflict because (1) “the mere presence of a conveyer belt
does not necessarily render a position fast paced,” and (2) the definition indicates only
that a conveyer belt may be present but is not necessarily required. 	Id. at 9. 	The
Commissioner acknowledges plaintiff’s citations to decisions from other Districts and
Circuits that have adopted plaintiff’s reasoning but advises the Court against “follow[ing]
this line of authority.” 	Id. at 11. 	The Commissioner contends that, even if a conflict
existed, the ALJ “adequately accounted for it” by including a hypothetical” that did not
include the prohibition against work at a fast production rate pace, and the vocational
expert testified that the three occupations at issue would be available.” 	Id. The
Commissioner argues that the ALJ then explicitly added the place limitation and the VE
confirmed, “[t]hey could still do all of these jobs.” Id.
Next, the Commissioner asserts that, because plaintiff improperly discounts the
router job, the router job numbers should be included, and when the three positions are
considered together, there are jobs that exist in significant numbers in the national
economy. See Dkt. No. 17 at 13. He further argues that plaintiff improperly “relies not
on the vocational expert’s testimony for the number of photocopy machine and page
jobs, but rather, on his attorney’s own research presented for the first time to this Court.”
Id. The Commissioner asserts that plaintiff “presents no argument for why these
numbers should be credited over those which the vocational expert provided.” Id. The
6 	As parties recognize, although “SSR 00-04[ was rescinded and replaced effective January 6, 2025.
See SSR 23-rp, 89 Fed. Reg. 97,158 (Dec. 6, 2024)[,] . . . SSR 00-04p still governs this case because it
remained in effect at the time of the ALJ’s August 2024 decision. See 97, 159 n.1 (effective date
provision).” Dkt. No. 17 at 9 n.5; Dkt. No. 12 at 8-9 n.1.
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Commissioner argues, “Plaintiff appears to assume, without any basis in the record, that
the vocational expert simply plugged the DOT codes into SkillTran to obtain her
numbers. But there is no basis for this assumption,” as plaintiff did not ask any
questions of the VE about her sources or methods, submit the SkillTran data to the
Appeals Council, or “laid sufficient foundation to allow the Court to evaluate the
probative value of the evidence he now submits[.]” Id. at 13-14.
B. Analysis
SSR 00-04p provides that where there exists a conflict between the DOT and VE
testimony, the ALJ must identify and resolve any conflict before relying on the VE’s
testimony.
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT. When
there is an apparent unresolved conflict between VE or VS evidence and
the DOT, the adjudicator must elicit a reasonable explanation for the conflict
before relying on the VE or VS evidence to support a determination or
decision about whether the claimant is disabled. At the hearings level, as
part of the adjudicator's duty to fully develop the record, the adjudicator will
inquire, on the record, as to whether or not there is such consistency.
Neither the DOT nor the VE or VS evidence automatically ‘trumps’ when
there is a conflict. The adjudicator must resolve the conflict by determining
if the explanation given by the VE or VS is reasonable and provides a basis
for relying on the VE or VS testimony rather than on the DOT information.
S.S.R. 00-4p, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000).
“This Ruling ‘place[s] an affirmative duty on the ALJ to identify and resolve
any conflict between the [VE]’s testimony and the DOT before relying on
such testimony.’ ” Marjanovic v. Comm'r of Soc. Sec., No. 19-CV-246-FPG,
2020 WL 3445676 *3, 2020 U.S. Dist. LEXIS 110811 *8 (W.D.N.Y. June 23,
2020) (internal citation omitted). Indeed, “[w]here there is an unexplained
and direct contradiction of the DOT, the expert's testimony does not
constitute substantial evidence to support a finding that jobs are available.”
Palacios v. Berryhill, 17-cv-04802 (ALC), 2018 WL 4565141 *12, 2018 U.S.
Dist. LEXIS 163293 *35 (S.D.N.Y. Sept. 24, 2018) (internal citations and
quotations omitted).
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Sammie-Jo A. O. v. Comm’r of Soc. Sec., No. 20-CV-273-A, 2021 WL 2451044, at *3
(W.D.N.Y. June 16, 2021).
The DOT defines routing clerk as follows:
Sorts bundles, boxes, and lots of articles for delivery: Reads delivery or
route numbers marked on articles or delivery slips, or determines locations
of addresses indicated on delivery slips, using charts. 	Places or stacks
articles in bins designated according to route, driver, or type. 	May be
designated according to work station as Conveyor Belt Package Sorter
(retail trade). 	May sort stacks of mail and be known as a Mail Sorter (r.r.
trans.).
222.687-022 Routing Clerk, DICOT 222.687-022, 1991 WL 672133. As noted, plaintiff
argues that there exists an “obvious conflict” between the DOT description for routing
clerk and the VE’s testimony with the ALJ’s RFC limiting plaintiff to no work at a fast
production rate pace, such as assembly line work. Dkt. No. 12 at 8.
Counsel for plaintiff presented hypotheticals to the VE that indicated, as relevant
here, that the individual could perform light work and “can perform tasks at a consistent
goal-oriented pace but not at a fast production rate pace as experienced in assembly
line type of work and can make decisions directly related to his own work and tolerate
occasional work changes.” T at 2071-72. 	As noted, the VE presented the following
jobs: marker, stating there are approximately 165,000 jobs in the national economy;
routing clerk, stating there are approximately 123,000 jobs in the national economy; and
photocopying machine operator, stating that there are approximately 16,000 jobs in the
national economy. See id. at 2072. Plaintiff’s counsel asked if the VE’s testimony was
consistent with the DOT and/or the SCO.7 See T. at 2077. The VE confirmed that it
7 Selected Characteristics of Occupations. See Nieto v. Comm’r of Soc. Sec., No. 20-CV-3138 (BMC),
2021 WL 1784317, at *2 (E.D.N.Y. May 5, 2021) (defining SCO as “a companion publication to the DOT,
the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles.”).
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was, noting, among other things, that the DOT “does not directly address production
pace,” and that her testimony as to that “area[]” was “based off of my training and
experience in job placement, job analysis, and job development.” 	Id.
Recognizing that some courts – albeit not within this Circuit as far as this Court
can discern – have rejected the routing clerk position for plaintiffs with production
limitations due to the conveyer belt language, whereas others have not been concerned
due to the DOT’s description indicating that the roles may involve production pace, the
undersigned is more persuaded by the cases plaintiff cites. See Dkt. No. 12 at 9-10
(quoting Erica A. v. Dudek, No. 230cv015889, 2025 WL 885706, at *5 (N.D. Ill. Mar. 21,
2025)).
Citing to the original VE testimony from the first hearing from VE Blythe, the
Commissioner points out that the VE’s hypothetical still found that the claimant could
perform the router job even after adding only the pace limitation, which the
Commissioner contends suffices to demonstrate that the VE, much like in Erica A.,
concluded that the router job could be performed by someone with pace limitations.
Dkt. No. 17 at 11. However, neither the ALJ nor the VE elicited this testimony from the
VE at the instant hearing, only at the 2022 hearing, which was held pursuant to the
vacated March 2022 ALJ decision. Compare T. at 48-52 with id. at 2071-2077 (dkt. no.
8-10). Regardless, there was no testimony elicited from the VE8 with respect to the
proportion or number of router jobs that could require such assembly-line work.
However, as explained below, “because the ALJ provided at least two jobs in the
national economy existing in significant numbers that plaintiff can perform, I find no
8 	This is true both VE Calderon-Hall and VE Blythe.
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cause for remand on this ground.” Abigail L. v. Kijakazi, No. CV 21-2275 (FLW), 2022
WL 16362468, at *13 (D.N.J. Oct. 27, 2022) (citing Danilowicz v. Kijakazi, No. 20-
01605, 2022 WL 19624, at *7 (M.D. Pa. Jan. 3, 2022)).
Plaintiff argues that once the router job is eliminated, the remaining jobs do not
exist at significant numbers in the national economy such that the Commissioner could
meet his step-five burden. See Dkt. No. 12 at 10-11. The numbers plaintiff relies on
are ones his counsel pulled from SkillTran – 4,464 (page position) and 5,493
(photocopy machine operator position) – which amount to 9,957 jobs in the national
economy. See id. The Commissioner contends that plaintiff is improperly substituting
the SkillTran numbers for the much higher numbers the VE testified to for the page and
photocopy machine operator positions. See Dkt. No. 17 at 13. The Commissioner
further argues that (1) plaintiff bases his argument “entirely on raw data printouts from
SkillTran and other sources and his attorney’s own interpretation of that data[,]” and
(2) plaintiff waives this argument having not raised it at the administrative level. Id. at
13-14.
VE Calderon-Hall testified that there exist the following jobs for someone with the
proposed hypothetical: (1) routing clerk, approximately 123,000 jobs in the national
economy; (2) photocopying machine operator, approximately 16,000 jobs in the national
economy; and (3) marker, approximately 165,000 jobs in the national economy. See T
at 2047. The VE did not, however, testify as to her source for numbers of jobs;
however, she confirmed that her testimony – other than as to matters not specifically
addressed by the DOT – was consistent with the DOT and SOC (Standard
Occupational Classification). See id. at 2077. She further testified that the DOT does
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not “directly address production pace,” and that her finding with respect to that area was
“based off of my training and experience in job placement, job analysis, and job
development.” Id. “[A] vocational expert is not required to identify with specificity the
figures or sources supporting h[er] conclusion, at least where [s]he identified the
sources generally.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (emphasis
added). However, here, the source of the VE’s numbers is unknown. Although the VE
testified that she relied on her experience for matters related to production pace, she did
not testify that she relied on her experience in reaching the provided job numbers nor
did she explicitly state that she relied on the SOC for her job numbers.9 See generally
Paduani v. Colvin, No. 16-CV-2300 (LDH), 2017 WL 4351510, at *3 (E.D.N.Y. Sept. 29,
2017) (citing Galiotti v. Astrue, 266 F.App’x 66, 68 (2d Cir. 2008) (summary order)); cf.
Tiffany T. v. Comm'r of Soc. Sec., No. 3:22-CV-00626-MPS, 2023 WL 10949091, at *15
(D. Conn. Sept. 1, 2023), report and recommendation adopted, No. 3:22-CV-00626
(VAB), 2024 WL 1230256 (D. Conn. Mar. 22, 2024) (“I conclude that in the
circumstances of this case the ALJ’s Step Five conclusions were supported by
substantial evidence, even though the VE did not identify the sources of his job
numbers” and noting that the VE testified as to his experience and his testimony on job
numbers and that his resume was part of the record).
9 	The Court observes that it appears that the SOC may provide job numbers. See, e.g., Timothy R. v.
O'Malley, No. 1:23-CV-155-JVB, 2024 WL 2082542, at *2 (N.D. Ind. May 8, 2024) (“The Job Browser Pro
SkillTRAN software is a “widely used, commercially available resource[ ]” that helps convert the Social
Security Administration's Dictionary of Occupational Titles categorization system to the Bureau of Labor
Statistics’ Standard Occupational Classification system, which is necessary because only the latter
provides job numbers.”). Regardless, as the VE did not testify as to the specific source of the job numbers
and nothing in the transcript plainly states the SOC to be the source of her job numbers, this observation
does not impact the Court’s decision.
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In Inoa v. Berryhill, No. 18-CV-163 (JPO), 2019 WL 1407487, at *5 (S.D.N.Y.
Mar. 28, 2019), the Southern District of New York stated as follows:
this Court cannot say that the ALJ lacked “substantial evidence” on which
to conclude that “‘substantial’ positions exist[ed]” for all four jobs about
which Komarov testified. Brault, 683 F.3d at 450 n.6. As in Brault, see 683
F.3d at 451, here too Inoa's counsel reviewed [VE] Komarov's qualifications
and raised no objection to them prior to her testimony, and the ALJ, after
qualifying Komarov as a VE, then heard her expert testimony regarding the
numbers of available jobs without any objection from Inoa or her counsel.
Given that Komarov had earlier explained that her testimony was offered
“on the basis of [her] professional experience and clinical judgment, and [it]
was not undermined by any evidence in the record,” McIntyre, 758 F.3d at
152, “[n]othing more was required” of the ALJ, Brault, 683 F.3d at 451. In
the “absence of any applicable regulation or [a Second Circuit] decision . . .
requiring a vocational expert to identify with greater specificity the source of
his figures or to provide supporting documentation,” id. at 450 (internal
quotation marks omitted), the Court cannot say that the ALJ's reliance on
Komarov's qualified and unobjected-to expert testimony regarding those
numbers constitutes legal error. And particularly because “[t]he ALJ did not
need to find specific numbers of jobs—all [that] he was required to do was
find that ‘substantial’ positions exist,” the Court must conclude that the
record as a whole, and most particularly Komarov's expert testimony,
provides “substantial evidence supporting that finding.” Id. at 450 n.6.
Inoa v. Berryhill, No. 18-CV-163 (JPO), 2019 WL 1407487, at *6 (S.D.N.Y. Mar. 28,
2019) (internal record citations omitted).
Here, as in Iona, plaintiff’s counsel did not challenge the VE’s qualifications and
raised no objection to the VE’s job numbers, nor did he question her source, beyond
asking, generally, if her testimony given that day was consistent with the DOT or SCO,10
and there was nothing in the record that undermines her testimony. See T at 2077.
However, unlike in Iona, the VE here did not testify that her testimony regarding job
10 Selected Characteristics of Occupations. See Nieto v. Comm’r of Soc. Sec., No. 20-CV-3138 (BMC),
2021 WL 1784317, at *2 (E.D.N.Y. May 5, 2021) (defining SCO as “a companion publication to the DOT,
the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles.”).
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numbers was offered “on the basis of [her] professional experience and clinical
judgment[.]” Iona, 2019 WL 1407487, at *6. Thus, this Court has some concern that,
even though the VE is not required to testify with specificity, her testimony regarding job
numbers fails even the minimal standards articulated in Iona. It is not that the Court
doubts that the job numbers are accurate or believes there is no basis for them; rather,
it is that it does not even know the bare minimum – source of the numbers. Cf.
McIntyre, 758 F.3d at 152; see Crespo v. Comm'r of Soc. Sec., No. 3:18-CV-00435
(JAM), 2019 WL 4686763, at *9 (D. Conn. Sept. 25, 2019) (reviewing Supreme Court of
the United States precedent, Biestek v. Berryhill, 587 U.S. 97 (2019), to conclude that a
court is to take a case-by-case approach where VE does not reveal source of job
numbers).
The Court balances its concern with the fact that plaintiff’s counsel did not
challenge the VE’s testimony regarding job numbers. See Bruce C. v. Kijakazi, No.
3:20-CV-782 (DJS), 2021 WL 5112077, at *5 (N.D.N.Y. Nov. 3, 2021) (finding it
“significant” that plaintiff’s counsel did not challenge VE job numbers at hearing, despite
opportunity to do so) (first citing Shanan L. v. Comm'r of Soc. Sec., 2020 WL 2404763,
at *10 (N.D.N.Y. May 12, 2020), then citing Michelle M. v. Comm'r of Soc. Sec., 2020
WL 495170, at *9 (N.D.N.Y. Jan. 30, 2020)); see Pamela M. H. v. Comm'r of Soc. Sec.,
No. 5:23-CV-00197 (AMN/CFH), 2024 WL 1468906, at *6 n.10 (N.D.N.Y. Feb. 22,
2024), report and recommendation adopted, No. 5:23-CV-00197 (AMN/CFH), 2024 WL
1131043 (N.D.N.Y. Mar. 15, 2024) (citing Harvey v. Astrue, No. 5:05-CV-1094 (NAM),
2008 WL 4517809, at *15 (N.D.N.Y. Sept. 29, 2008) (noting that, “absent an objection,
the ALJ is entitled to rely on the vocational expert”) (citing Donahue v. Barnhart, 279
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F.3d 441, 446 (7th Cir. 2002))); Jennifer S. v. Comm'r of Soc. Sec., No. 24-CV-334-LJV,
2026 WL 98423, at *7 (W.D.N.Y. Jan. 14, 2026) (“[C]ounsel did not object to the
vocational expert's methodology at any time prior to the ALJ's decision. Counsel could
have asked for the vocational expert's underlying data, counsel could have argued at
the hearing that the vocational expert's testimony should not be credited, or counsel
could have submitted briefing questioning the vocational expert's ‘flawed’ process. But
counsel did not do any of that.”) (cleaned up and internal citations omitted).
However, even if the Court were to (1) find the lack of specific testimony about
the source of the VE’s job numbers as grounds for remand, (2) assume the job numbers
counsel for plaintiff proposes are correct,11 and (3) find that plaintiff’s failure, while
represented by counsel, to object to the VE’s testimony or raise this issue at the
administrative level was not fatal to the argument on appeal, the Court still would find
that plaintiff’s proposed job numbers represent a significant number of jobs in the
national economy that plaintiff can perform. In contending that 9,957 jobs in the
national economy does not suffice to meet the Commissioner’s step five burden, plaintiff
cites one case, Hanson v. Comm’r of Soc. Sec., 15-CV-0150, 2016 WL 3960486, at *14
(N.D.N.Y. June 29, 2016), which held that 8,40412 jobs did not amount to a sufficient
number of jobs available in the national economy.13 Dkt. No. 12 at 11. “Under the
11 The Court notes that at least one court in this Circuit has rejected an argument based on a plaintiff’s
counsel’s independent research as to job numbers. See Poole v. Saul, 462 F. Supp. 3d 137, 165 (D.
Conn. 2020).
12 	Even with plaintiff’s proposed numbers there are 1,553 more jobs available to plaintiff in the national
economy than in James B., 2024 WL 4471080, at *2, the case plaintiff cites and urges the Court to follow.
13 	The Court is aware of additional cases holding similar numbers did not amount to a significant number
of jobs in the national economy. See, e.g., Annemarie B. v. Comm’r of Soc. Sec., No. 1:23-CV-129
(FJS/CFH), 2024 WL 758821, at *6 (N.D.N.Y. Feb. 5, 2024), report and recommendation adopted, No.
123CV129FJSCFH, 2024 WL 756942 (N.D.N.Y. Feb. 23, 2024) (citing cases). However, there are also
several cases finding those numbers close to 10,000 do amount to sufficient numbers in the national
economy. See supra at 13, infra at 14 (citing cases).
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prevailing law of courts within the Second Circuit, a ‘significant number’ of jobs is fairly
minimal. [N]umbers between 9,000 and 10,000 jobs have typically been found to be
sufficiently significant to meet the Commissioner's burden.” James B. v. Comm’r of Soc.
Sec., No. 23-CV-873-FPG, 2024 WL 4471080, at *2 (W.D.N.Y. Oct. 11, 2024) (quoting
Sean Michael S. v. Comm’r of Soc. Sec., No. 20-CV-942, 2021 WL 5918922, at *11
(N.D.N.Y. Dec. 15, 2021) (internal quotation marks and citations omitted)); see Diane D.
v. Saul, No. 5:18-CV-1146 (DJS), 2020 WL 1044136, at *6 (N.D.N.Y. Mar. 4, 2020)
(“Others, in fact, have found that job numbers over 9,000 have been held to be
significant.”) (citing Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177-78 (W.D.N.Y. 2018)
(holding 9,046 jobs in national economy sufficient to meet step five burden), then citing
Hanson v. Comm'r of Soc. Sec., 2016 WL 3960486, at *13 (N.D.N.Y. June 29, 2016),
report and recommendation adopted sub nom. Hanson v. Colvin, 2016 WL 3951150
(N.D.N.Y. July 20, 2016) (“Courts have held that numbers varying from 9,000 upwards
constituted ‘significant’” numbers in the national economy); Maldonado v. Comm’r of
Soc. Sec., No. 21-CV-7594 (RWL), 2023 WL 243617, at *10 (S.D.N.Y. Jan. 18, 2023)
(“District courts thus have found varying nationwide numbers upwards of 9,000 jobs
sufficient to meet the significant number requirement.”); Kelly D. v. Saul, No. 18-CV-
1190, 2019 WL 6683542, at *6 (N.D.N.Y. Dec. 6, 2019) (holding 9,996 jobs available in
national economy was significant number).
The Court observes that in her August 16, 2024, decision, the ALJ cited the jobs
and job numbers that the ALJ testified to in the 2022 hearing. Compare T at 25 with T
at 2047 with T at 2071-3. Plaintiff addresses this issue in one sentence, contending that
the ALJ is “relying on stale numbers from prior VE testimony in March 2022, as opposed
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to August 2024,” contending that the ALJ’s numbers are “even (sic) unreliable.” Dkt.
No. 12 at 22. The Commissioner addresses this in a foot note, stating, “to the extent he
is suggesting that the ALJ should have instead relied on Ms. Calderon-Hall’s 2024
testimony, he ignores that this testimony also supports the ALJ’s ultimate conclsion that
he was not disabled” because Ms. Calderon-Hall identified an even greater number of
jobs that someone with the same RFC as the ALJ assessed in 2022 could perform,
including 165,000 marker jobs – and further indicated that these were only ‘examples’ of
available occupations.” Dkt. No. 17 at 15 n.7.
Although the Court is unaware whether the ALJ’s inclusion of the 2022 VE’s job
numbers instead of the 2024 VE’s job numbers was intentional or accidental, the Court
does not find this to be an independent ground for remand for three reasons. First, the
VEs in both hearings was presented with the same hypothetical. Second, the VEs in
both hearings testified to sufficient numbers of jobs available in the national economy,
including two of the same positions. Further, when routing clerk is removed from the
equation, there remain jobs14 that exist in significant numbers in the national economy –
both under the VEs’ testimonies. Third, in discussing the ALJ’s citing of VE Blythe’s
proposed job numbers, plaintiff alleges only that these earlier numbers are stale, yet, he
presents his own numbers for the jobs VE Blythe proposed, and those numbers – as
discussed above – still amount to significant numbers in the national economy.
In sum, the undersigned concludes that whether the analysis considers the VE's
employment figures as adopted by the ALJ or the proposed employment figures
provided by the plaintiff’s counsel, the Commissioner satisfies his burden at step five.
14 Plaintiff does not provide proposed SkillTran numbers for the marker position, for which the VE testified
there are “approximately 165,000 jobs in the national economy.” T at 2071-72.
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Although plaintiff’s counsel suggested total number of 9,957 available jobs is slightly
under 10,000, a number some courts have chosen as a “cut off,” the Court declines to
adopt 10,000 jobs as a bright-line rule. See Pichardo v. Comm’r of Soc. Sec., 714 F.
Supp. 3d 183, 195 (E.D.N.Y. 2024) (“Courts have not established a bright line test as to
the threshold number of jobs that is considered ‘significant’ for purposes of the Act.”)
(citing Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018) (citation
omitted)).
Accordingly, the Court concludes that the Commissioner has satisfied his step-
five burden to show that there is work in the national economy existing in significant
numbers that plaintiff can perform.
V. Conclusion
WHEREFORE, for the reasons detailed herein, it is hereby
ORDERED, that plaintiff’s cross-motion for judgment on the pleadings, dkt. no.
12, is DENIED; and it is further
ORDERED, that the Commissioner’s cross-motion for judgment on the
pleadings, dkt. no. 17, is GRANTED, and it is further
ORDERED, that the Clerk serve this Memorandum-Decision & Order on parties
in accordance with the Local Rules.
Dated: March 9, 2026
Albany, New York
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