Hopper v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
SHANA H.,
Plaintiff,
1:24-CV-1159
v. 	(DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES: 	OF COUNSEL:
AVARD LAW 	CRAIG POLHEMUS, ESQ.
Attorney for Plaintiff
P.O. Box 101110
Cape Coral, Florida 33910
U.S. SOCIAL SECURITY ADMIN. 	KRISTINA D. COHN, ESQ.
OFFICE OF THE GENERAL COUNSEL 	HUGH DUN RAPPAPORT, ESQ.
Attorney for Defendant 	NATASHA OELTJEN, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
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MEMORANDUM-DECISION AND ORDER1
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a
decision by the Commissioner of Social Security that Plaintiff was not disabled.
Currently before the Court are Plaintiff’s Motion for Judgment on the Pleadings, Dkt.
Nos. 12 & 19, and Defendant’s Motion for Judgment on the Pleadings. 	Dkt. No. 18.
For the reasons set forth below, Plaintiff’s Motion for Judgment on the Pleadings is
denied and Defendant’s Motion is granted.
I. BACKGROUND
A. Factual Background
Plaintiff was born in 1984 and has past work experience as a billing clerk and a
restaurant server. Dkt. No. 8, Admin. Tr. (“Tr.”), pp. 242-243 & 250. Plaintiff reported
having received a bachelor’s degree. Tr. at p. 44. Plaintiff alleges disability based on
diabetes, neuropathy in her hands and legs, pregnancy, carpel tunnel syndrome, sleep
apnea, memory issues, and thyroid disease. 	Tr. at p. 241. 	Plaintiff’s application for
disability insurance benefits was initially denied on July 15, 2022, Tr. at pp. 101-111,
and upon reconsideration on March 2, 2023. 	Tr. at pp. 115-125. 	Plaintiff thereafter
timely requested a hearing before an Administrative Law Judge (“ALJ”). See Tr. at pp.
1 Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General
Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 5 & General Order 18.
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129-130. 	Plaintiff subsequently appeared and testified at a hearing before ALJ Asad
Ba-Yunus on September 18, 2023. Tr. at pp. 33-69. A vocational expert also testified
at the hearing. 	Id. 	On January 16, 2024, the ALJ issued a written decision finding
Plaintiff was not disabled under the Social Security Act. Tr. at pp. 17-26. On August
1, 2024, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. Tr. at pp. 1-5.
B. The ALJ’s Decision
The ALJ found that Plaintiff meets the insured status requirements under the
Social Security Act through December 31, 2027, but had not engaged in substantial
gainful activity since May 13, 2022. Tr. at p. 19. Second, the ALJ found that Plaintiff
had the following severe impairments: diabetes mellitus, diabetic neuropathy, history of
carpal tunnel syndrome, and history of mild compression deformity of the lumbar spine.
Tr. at p. 20. 	Third, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments
in 20 C.F.R. § 404, Subpart P, App. 1. 	Tr. at p. 21. 	Fourth, the ALJ concluded that
Plaintiff had the residual functional capacity (“RFC”) to perform light work with the
following additional limitations:
she 	may 	occasionally 	balance, 	stoop, 	kneel, 	crouch, 	crawl, 	climb
ramps/stairs, or climb ladders/ropes/scaffolds, and must avoid more than
occasional exposure to all hazards, including unprotected heights and
dangerous machinery.
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Id. Next, the ALJ found that Plaintiff could perform her past relevant work as a waitress,
telemarketer, or administrative clerk. Tr. at p. 24. The ALJ also found that the Plaintiff
could perform additional work existing in significant numbers in the national economy.
Tr. at pp. 24-25. As a result, the ALJ found that Plaintiff was not disabled as defined in
the Social Security Act. Tr. at p. 26.
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 	42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). 	Rather, the Commissioner’s
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. 	Johnson v. Bowen, 817 F.2d 983, 986 (2d
Cir. 1987). 	“Substantial evidence” is evidence that amounts to “more than a mere
scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
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which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that
the court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. 	The Supreme Court has recognized the validity of this sequential
evaluation process. 	Bowen v. Yuckert, 482 U.S. 137, 141-42 (1987). 	The five-step
process asks:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or combination
of impairments; (3) whether the impairment meets or equals the severity
of the specified impairments in the Listing of Impairments; (4) based on
a “residual functional capacity” assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). 	“If at any step a finding of
disability or non-disability can be made, the SSA will not review the claim further.”
Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
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III. DISCUSSION
A. Step 2
At Step Two, the ALJ “assesses whether the claimant suffers from a severe
impairment that significantly limits his or her physical or mental ability to do basic work
activities.” Armstrong v. Berryhill, 2018 WL 1357378, at *2 (N.D.N.Y. Mar. 14, 2018)
(citing 20 C.F.R. § § 404.1520(c)). An impairment will be considered severe if it causes
“more than minimal limitations in [a claimant’s] ability to perform work-related
functions.” 	Donahue v. Colvin, 2018 WL 2354986, at *5 (W.D.N.Y. May 24, 2018))
(alteration in original); Lugo Rodriguez v. Berryhill, 2018 WL 1135330, at *4 (D. Conn.
Mar. 2, 2018) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987)) (“In other
words, any claim in which the medical evidence establishes more than a ‘slight
abnormality’ with ‘no more than a minimal effect on an individual’s ability to work’
should be determined ‘severe.’”). Further, a severe impairment must persist for at least
twelve months. 	See 42 U.S.C. § 423(d)(1)(A) (disability involves impairment “which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months”).
Plaintiff alleges that the ALJ erred at Step Two in failing to consider whether her
memory issues were a severe impairment. Pl.’s Mem. of Law at pp. 20-22. The record
does not support finding any error in this regard. First, the record is clear that the ALJ
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did consider Plaintiff’s identification of memory issues as disabling. Tr. at p. 20. The
ALJ made a specific finding that the memory issues were not “based on any specific
medically determinable impairment.” Id. While Plaintiff suggests that the ALJ should
nonetheless have conducted the special technique under 20 C.F.R. § 404.1520a to assess
her memory issues, Pl.’s Mem. of Law at p. 22, the Commissioner’s regulations
demonstrate that this would not have been appropriate. The regulations state “[a]fter we
establish that [a claimant has] a medically determinable impairment(s), then we
determine whether your impairment(s) is severe.” 	20 C.F.R. § 404.1521. 	The
regulations governing assessment of mental impairments specifically direct that the
special technique is applicable only “[i]f we determine that you have a medically
determinable medical impairment.” 	20 C.F.R. § 404.1520a(b)(1); see also Rousey v.
Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 738 (S.D.N.Y. 2018) (“After finding that
plaintiff had the medically determinable impairments of adjustment disorder with
depressed mood and amnestic disorder, NOS, the ALJ then applied the required special
technique for the evaluation of mental impairments.”). 	Here, Plaintiff does not
challenge the finding that Plaintiff suffered no medically determinable impairment that
caused the memory issues and so there was no error in the ALJ’s adherence to the
regulations which require that finding before moving on with the special technique.
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B. Failure to Account for Manipulative Limitations
The ALJ’s RFC finding contained no specific manipulative limitations, see Tr.
at p. 21, which Plaintiff claims was error given her recognized diagnosis of diabetic
neuropathy and carpal tunnel syndrome. Pl.’s Mem. of Law at pp. 17-20. The Court
finds no basis for remand on this ground.
The Social Security Administration’s regulations “define RFC as the most a
claimant can do despite his or her physical and/or mental limitations.” 	Pamela H. v.
Kijakazi, 2021 WL 4307457, at *2 (N.D.N.Y. Sept. 22, 2021) (citing 20 C.F.R. §§
404.1545). 	“In making a residual functional capacity determination, the ALJ must
consider a claimant’s physical abilities, mental abilities, symptomology, including pain
and other limitations which could interfere with work activities on a regular and
continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing
20 C.F.R. § 404.1545(a)).
Plaintiff cites numerous medical websites to establish that her neuropathy can
cause difficulty with fine motor skills. 	Pl.’s Mem. of Law 18. 	The ALJ recognized
both neuropathy and carpal tunnel syndrome as severe impairments. 	Tr. at p. 20.
Significantly, however, Plaintiff cites to no medical opinion suggesting the need for
manipulative limitations that was improperly addressed by the ALJ. 	See Pl.’s Mem.
of Law at pp. 17-20. Nor does she identify what manipulative limitations she suggests
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were necessary. 	This failure precludes relief for Plaintiff on this claim because “the
burden is on Plaintiff to demonstrate the existence of functional limitations that
preclude any substantial gainful activity.” 	Christopher G. v. Comm’r of Soc. Sec.,
2024 WL 4136562, at *3 (N.D.N.Y. Aug. 20, 2024), report and recommendation
adopted, 2024 WL 4135783 (N.D.N.Y. Sept. 10, 2024).
Dr. Shankar Ganti, a consultative examiner, found Plaintiff to have “no
limitation.” Tr. at p. 1158. 	The ALJ found that opinion “generally persuasive.” Tr.
at p. 23. Plaintiff does not challenge the ALJ’s evaluation of that opinion in this Court.
See generally Pl.’s Mem. of Law. That finding certainly provides substantial evidence
for an RFC that does not impose specific manipulative limitations. The ALJ also relied
on Plaintiff’s daily activities which included regular use of a phone for texting and
emails and her work at the time of the decision that included regular data entry on a
computer. Tr. at p. 22. It is “Plaintiff’s burden to prove a more restrictive RFC than
the RFC assessed by the ALJ.” Beaman v. Comm’r of Soc. Sec., 2020 WL 473618, at
*6 (W.D.N.Y. Jan. 28, 2020). Given this record and the lack of any medical opinion
suggesting the need for significant manipulative limitations, she has not done so here.
C. Evaluation of the Medical Opinions
Plaintiff challenges the ALJ’s evaluation of the opinions from the state agency
medical consultants, Pl.’s Mem. of Law at pp. 23-24, and Dr. Shannon Comley, id. at
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pp. 24-28, as inconsistent with the standards for evaluating medical opinions. 	The
record demonstrates no error warranting remand.
1. State Agency Consultants
With respect to the state agency consultants, Plaintiff challenges what amounts
to a typographical error. The ALJ’s decision states “these acceptable medical sources
also opined that the claimant’s diabetes (Exhibits 1A, 3A).” 	Tr. at p. 23. 	Plaintiff
objects that this “sentence fragment” resulted in an inadequate explanation of the
ALJ’s opinion. Pl.’s Mem. of Law at p. 23. Courts, however, regularly “have found
typographical errors to be harmless if it is obvious from the opinion as a whole that the
error is not substantive.” Jeremy G. v. Comm’r of Soc. Sec., 2025 WL 1507232, at *7
(N.D.N.Y. May 5, 2025), report and recommendation adopted, 2025 WL 1506164
(N.D.N.Y. May 27, 2025). While this sentence of the ALJ’s was incomplete, this does
not require remand. The partial sentence refers to Plaintiff’s diabetes which the ALJ
went on to find was a severe impairment, Tr. at p. 20, and which the ALJ discussed in
detail throughout the opinion. Tr. at pp. 21-24. Plaintiff can show no prejudice from
the error. 	The state agency physicians found Plaintiff to suffer from no severe
impairments. Tr. at p. 75. The ALJ expressly rejected that opinion, Tr. at p. 23, and,
as noted, found Plaintiff’s diabetes to be severe. Tr. at p. 20. The ALJ’s evaluation of
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these findings was, therefore, more favorable to Plaintiff and Plaintiff has articulated
no basis for finding that the typographical error prejudiced her.
2. Dr. Comley
Dr. Shannon Comley, a treating provider to Plaintiff, offered a medical opinion
opining various functional limitations, Tr. at pp. 1430-1434, which the ALJ found
“non-persuasive.” Tr. at p. 23. Plaintiff objects to the ALJ’s evaluation of the opinion
on the ground that the ALJ failed to properly evaluate and discuss the consistency of
Dr. Comley’s opinion with others in the record. Pl.’s Mem. of Law at pp. 24-28.
Social Security regulations require the ALJ, when evaluating the persuasiveness
of a medical opinion, to assess among other factors, the consistency of the opinion. 20
C.F.R. § 404.1520c(c). 	According to those regulations, “[t]he more consistent a
medical opinion(s) or prior administrative medical finding(s) is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.” 	20 C.F.R. §
404.1520c(c)(2). “Consistency is an all-encompassing inquiry focused on how well a
medical source is supported, or not supported, by the entire record.” White v. Comm’r
of Soc. Sec., 2022 WL 951049, at *5 (S.D.N.Y. Mar. 30, 2022).
The record reveals that the ALJ adequately evaluated the consistency of Dr.
Comley’s opinion with other evidence in the record. “The consistency factor calls for
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a comparison between the medical source’s opinion and evidence from other medical
sources and nonmedical sources in the file.” 	Acosta Cuevas v. Comm’r of Soc. Sec.,
2021 WL 363682, at *14 (S.D.N.Y. Jan. 29, 2021), report and recommendation
adopted sub nom. Cuevas v. Comm’r of Soc. Sec., 2022 WL 717612 (S.D.N.Y. Mar.
10, 2022). 	In doing so here, the ALJ specifically noted the lack of clinical evidence
elsewhere in the record to substantiate limitations identified related to Plaintiff’s gait
or strength. Tr. at p. 23. The ALJ also noted the inconsistencies with Plaintiff’s current
work situation and her activities of daily living with Dr. Comley’s opined work
limitations. Id.
While Plaintiff cites to numerous other physicians in the record, with whom she
contends Dr. Comley’s “assessment of neuropathy is consistent,” Pl.’s Mem. of Law
at p. 26, the Court notes that each of the citations is to a diagnosis of neuropathy, see,
e.g., Tr. at pp. 443, 444 & 576, with which the ALJ agreed and found to be a severe
impairment. Tr. at p. 20. It is thus unclear how Plaintiff believes the ALJ’s analysis
of the consistency between these opinions to be inadequate.
When read as a whole, the ALJ amply described the various medical opinions
and explained the consideration of the consistency factor. Tr. at pp. 21-24. Here, “the
ALJ discussed the consistency . . . factor[ ] to a sufficient degree such that the Court
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can glean the ALJ’s rationale.” Tara B. v. Comm’r of Soc. Sec., 2023 WL 7281138, at
*1 (N.D.N.Y. Nov. 3, 2023).
D. Step Five
The final argument to be addressed is Plaintiff’s contention that the ALJ erred
at Step Five in identifying jobs that Plaintiff could perform. 	She contends that she
lacked the functional capacity to perform identified jobs and that they did not, in any
event, exist in sufficient numbers in the national economy. Pl.’s Mem. of Law at pp.
14-17.
“[A] Step Five, the Commissioner considers whether the claimant can perform
any other work available in the national economy based on the claimant’s RFC, age,
education, and prior vocational experience.” 	Bull v. Comm’r of Soc. Sec., 2009 WL
799966, at *5 (N.D.N.Y. Mar. 25, 2009). “The Commissioner need show only one job
existing in the national economy that [Plaintiff] can perform.” Bavaro v. Astrue, 413
F. App’x 382, 384 (2d Cir. 2011) (emphasis added); see also Barnaby v. Berryhill, 773
F. App’x 642, 644 (2d Cir. 2019).
The ALJ found Plaintiff had an RFC to perform light work with certain
additional limitations. 	Tr. at p. 21. 	At the administrative hearing, the Vocational
Expert (“VE”) was questioned about what work Plaintiff could perform given a
hypothetical light work RFC. Tr. at pp. 66. The VE testified to several jobs he believed
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a person with the hypothetical RFC could perform, including cashier, which has over
450,000 jobs nationally. 	Id. 	The VE specifically categorized the cashier position as
light work. Id.
When utilizing a VE, the ALJ poses hypothetical questions which must
reflect the full extent of the claimant’s capabilities and impairments to
provide a sound basis for the VE’s testimony. When a hypothetical
question meets that requirement, and is supported by substantial evidence,
VE testimony suffices as substantial evidence to support a step five
finding.
Boyer v. Berryhill, 2017 WL 1207833, at *5 (N.D.N.Y. Mar. 31, 2017) (citations
omitted).
Plaintiff’s argument relies heavily on the perceived “obsolescence” of the
Dictionary of Occupational Titles on which the VE appears to have relied. Pl.’s Mem.
of Law at p. 14; see also Tr. at p. 66. She urges instead that data from the Occupational
Requirements Survey (“ORS”), which she suggests identifies the cashier position as
medium work, is more reliable. Pl.’s Mem. of Law at p. 14; see also Dkt. No. 12-8.
The Court is unpersuaded by this argument for several reasons. First, while Plaintiff
points to a new Social Security Ruling permitting reliance on the ORS, that ruling
concededly took effect in January 2025, Pl.’s Mem. of Law at p. 15, and did not bind
the ALJ at the time of the January 2024 decision. 	Second, the data relied upon by
Plaintiff does not establish that the ALJ erred in concluding that the light work RFC
was consistent with Plaintiff’s ability to perform the cashier position. 	The material
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provided by Plaintiff appears to show that 35.5% of the workers who perform the
cashier function do so at a light exertional level. Dkt. No. 12-8 at p. 1. It is thus not
unequivocally true, even using Plaintiff’s data, that the cashier position is a medium
exertional level job. 	Nor is Plaintiff’s counsel in a better position than the VE to
evaluate that issue. 	Stonick v. Saul, 2020 WL 6129339, at *19 (D. Conn. Oct. 19,
2020) (“The VE’s failure to cite to the Plaintiff’s preferred source does not prevent the
VE’s testimony from clearing the relatively low substantial evidence bar.”). Finally,
as 	noted 	above, 	the 	well-supported 	testimony 	of 	a 	vocational 	expert 	provides
substantial evidence at step five, Carlos R. C. G. v. Berryhill, 2018 WL 4554495, at *8
(N.D.N.Y. Sept. 21, 2018), and the ALJ relied on the VE’s testimony in reaching a
decision. 	Nothing more was required. 	Wayne E. v. Comm’r of Soc. Sec., 2025 WL
662514, at *6 (N.D.N.Y. Feb. 28, 2025).
The ALJ also questioned the VE about the number of positions existing in the
national economy for each job. “The VE may testify as to the existence of jobs in the
national economy and as to the claimant’s ability to perform any of those jobs, given
her functional limitations.” McCusker v. Comm’r of Soc. Sec., 2014 WL 6610025, at
*2 (N.D.N.Y. Nov. 20, 2014). 	In this case, the VE testified that there were over
465,000 cashier positions in the national economy. 	Tr. at p. 66. 	Plaintiff does not
challenge that number in this Court. That number is clearly a “significant number of
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jobs” in the national economy. Saha M. v. Comm’r of Soc. Sec., 2022 WL 22210126,
at *6 (N.D.N.Y. June 10, 2022) (finding positions with 29,900, 196,500, and 315,200
jobs sufficient at step five). Therefore, there is no basis for remand.
Because the ALJ’s finding that Plaintiff could perform at least the cashier
position was supported by substantial evidence, the Court, finds that the ALJ’s Step
Five determination is supported by substantial evidence.2
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings is DENIED;
and it is further
ORDERED, 	that 	Defendant’s 	Motion 	for 	Judgment 	on 	the 	Pleadings 	is
GRANTED; and it is further
ORDERED, that Defendant’s Motion denying Plaintiff disability benefits is
AFFIRMED and the Complaint is DISMISSED; and it is further
2 Plaintiff makes an additional argument for remand based on a purported error at Step Four regarding her ability
to perform past relevant work. Pl.’s Mem. of Law at pp. 9-14. This argument need not be considered in light of
this Court’s finding regarding the Step Five determination. This is so because “[i]f the ALJ makes an improper
step four finding but makes a step five finding that is supported by substantial evidence, any such error is harmless
and does not warrant remand.” Marrero v. Comm’r of Soc. Sec., 2019 WL 5208121, at *2 (W.D.N.Y. Oct. 16,
2019) (citing cases); see also Sisson v. Colvin, 2015 WL 4878108, at *10 (N.D.N.Y. Aug. 12, 2015); Miller v.
Colvin, 2013 WL 1760856, at *5 (N.D.N.Y. Apr. 24, 2013).
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ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.
Dated: March 3, 2026
Albany, New York
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