Aponte v. Bisignano

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MARIA A.,
Plaintiff,
v. 	5:24-cv-01015 (MAD/TWD)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	JUSTIN GOLDSTEIN, ESQ.
& DISABILITY LAW
Attorney for Plaintiff
6000 N. Bailey Ave., Suite 1A
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION 	FERGUS KAISER, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, MD 21235
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT AND RECOMMENDATION
I. 	INTRODUCTION
This matter was referred to the undersigned for a Report and Recommendation by the
Honorable Mae A. D’Agostino, United States District Judge, pursuant to 20 U.S.C. § 636(b) and
Northern District of New York Local Rule 72.3. This case has proceeded in accordance with
General Order 18 of this Court which sets forth the procedures to be followed when appealing a
denial for Social Security Benefits. Both parties filed briefs, which the Court treats as motions
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under Federal Rule of Civil Procedure 12(c) in accordance with General Order 18. Dkt. Nos. 17,
19. Plaintiff filed a reply brief which simply relied on her original arguments and authority as set
forth in her primary brief. Dkt. No. 20. Oral argument was not heard. For the reasons that
follow, the Court recommends Plaintiff’s motion be granted, Defendant’s motion be denied, and
the Commissioner’s decision be reversed and remanded.
II. 	BACKGROUND
Plaintiff was born in 1972. T. 217.1 Plaintiff protectively filed a Title XVI application
for Supplemental Security Income (“SSI”) alleging disability beginning August 10, 2018, due to
blind or low vision, PTSD, chronic pain (back, neck, knee, and hands), diabetes, hypertension,
high cholesterol, HIV, anxiety, depression, neuropathy, and rheumatoid arthritis. T. 217-23, 248.
Plaintiff’s initial claim was administratively denied on April 6, 2022, and again on
reconsideration August 8, 2022. T. 65, 85. A hearing was conducted on September 8, 2023,
before Administrative Law Judge (“ALJ”) Jeremy Eldred. T. 32-47. The ALJ heard the
testimony of Plaintiff and Vocational Expert (“VE”) Joseph Atkinson. Id. On October 9, 2023,
ALJ Eldred issued an unfavorable decision, which became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request for review on June 21, 2024.
T. 16-27, 1-7. Plaintiff commenced this action on August 19, 2024. Dkt. No. 1.
1 The Administrative Record/Transcript is found at Dkt. No. 14. Citations to the Transcript will
be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather
than the page numbers the Court’s CM/ECF electronic filing system assigns. Citations to the
parties’ submissions will use page numbers assigned by CM/ECF, the Court’s electronic filing
system.
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III. 	LEGAL STANDARDS
A. 	Standard of Review 2
In reviewing a final decision of the Commissioner, a court must first determine whether
the correct legal standards were applied, and if so, whether substantial evidence supports the
decision. Atwater v. Astrue, 512 F. App’x 67, 69 (2d Cir. 2013). “Failure to apply the correct
legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)
(internal quotation marks and citation omitted). Therefore, a reviewing court may not affirm the
ALJ’s decision if it reasonably doubts whether the proper legal standards were applied, even if
the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983,
986-87 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence
means more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir.
2020) (internal quotation marks and citation omitted). If the ALJ’s finding as to any fact is
supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d
307, 312 (2d Cir. 1995). Further, where evidence is deemed susceptible to more than one
rational interpretation, the ALJ’s conclusion must be upheld. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
2 While the SSI program has special economic eligibility requirements, the requirements for
establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title II, 42 U.S.C. § 423(d),
are identical, therefore, “decisions under these sections are cited interchangeably.” Donato v.
Sec’y of Dep’t of Health & Hum. Servs. of U.S., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation
omitted).
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“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 on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (additional citation
omitted). If supported by substantial evidence, the Commissioner’s findings 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) (citing Rutherford, 685 F.2d at 62) (additional
citations omitted). A reviewing court cannot substitute its interpretation of the administrative
record in place of the Commissioner’s if the record contains substantial support for the ALJ’s
decision. See Rutherford, 685 F.2d at 62.
When inadequacies in the ALJ’s decision frustrate meaningful review of the substantial
evidence inquiry, remand may be appropriate. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019); Pratts v. Chater, 94 F.3d, 34, 39 (2d Cir. 1996). Remand may also be appropriate where
the ALJ has failed to develop the record, adequately appraise the weight or persuasive value of
witness testimony, or explain his reasonings. See Klemens v. Berryhill, 703 F. App’x 35, 35-38
(2d Cir. 2017); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Estrella, 925 F.3d at 98;
Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008); Pratts, 94 F.3d at 39.
B. 	Standard for Benefits
To be considered disabled, a plaintiff seeking disability benefits must establish she 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 12 months . . . .” 42 U.S.C. §
423(d)(1)(A). Additionally, the claimant’s:
physical or mental impairment or impairments [must be] of such
severity that [s]he is not only unable to do h[er] previous work but
cannot, considering h[er] 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 [s]he lives, or whether a specific job
vacancy exists for h[er], or whether [s]he would be hired if [s]he
applied for work.
Id. § 423(d)(2)(A).
The Social Security Administration regulations outline a five-step process to determine
whether a claimant is disabled:
(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) (citing Burgess, 537 F.3d at 120; 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant bears the burden of proof regarding
the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant meets his
or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the
claimant is capable of working. Id.
IV. 	THE ALJ’S DECISION
In applying the five-step disability sequential evaluation, the ALJ determined Plaintiff
has not engaged in substantial gainful activity since October 5, 2021, the amended alleged onset
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date. T. 18. At step two, the ALJ found Plaintiff has severe impairments of degenerative
changes of the lumbosacral spine, status post cervical fusion from C3-6, asthma, type 2 diabetes
mellitus, renal insufficiency, recurrent kidney stones, depressive disorder, anxiety disorder, and
posttraumatic stress disorder. Id. At step three, the ALJ determined Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. T. 19. Before reaching
step four, the ALJ concluded Plaintiff has the residual functional capacity (“RFC”) to perform
light work, specifically:
she can push and/or pull occasionally with the upper extremities;
can never climb ladders, ropes, or scaffolds; can climb ramps or
stairs occasionally; can never kneel or crawl; can stoop or crouch
occasionally; can never reach overhead; must avoid exposure to
hazardous working conditions, such as work done at unprotected
heights 	and 	work 	done 	in 	proximity 	to 	dangerous 	moving
machinery; can understand, remember, and carry out simple and
routine instructions; can use judgment to make simple work-related
decisions; can interact occasionally with supervisors, co-workers, or
the public; and can appropriately adapt to ordinary changes in a
routine work setting.
T. 21.
In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and the
extent to which those symptoms could “reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 C.F.R. § 416.929 and
[Social Security Ruling] 16-3p.” Id. The ALJ further stated he considered medical opinions and
prior administrative medical findings pursuant to 20 C.F.R. § 416.920c. Id. The ALJ found
Plaintiff’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms but that the evidence does not fully support Plaintiff’s statements regarding
the extent of her functional limitations. T. 22. Proceeding to step four of the sequential
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evaluation, the ALJ determined Plaintiff is unable to perform any past relevant work. T. 25.
After considering Plaintiff’s age, education, work experience, and RFC, the ALJ found there are
jobs existing in significant numbers in the national economy Plaintiff can perform. T. 26. The
ALJ concluded she was not under a disability since October 5, 2021, the amended alleged onset
date. T. 27.
V. 	CONTENTIONS
Plaintiff contends “[t]he ALJ failed to resolve the conflict between the VE’s testimony
and the Dictionary of Occupational Titles (“DOT”) regarding overhead reaching.” Dkt. No. 17
at 11-13. Additionally, Plaintiff argues “[t]he ALJ erred in his evaluation of the medical
opinions and prior administrative medical findings when failing to follow the revised regulations.
The resulting residual functional capacity finding is unsupported by substantial evidence.” Id. at
13-25. Defendant counters “the VE . . . identified the conflict between his testimony and the
DOT, and then provided an explanation based upon his professional experience that ‘an
individual with Plaintiff’s RFC could perform the representative occupations.’” Dkt. No. 19 at 9.
Further, Defendant counters the ALJ properly assessed the opinion evidence. Id. at 10-17.
VI. 	DISCUSSION
A. 	Substantial Evidence Supports the ALJ’s Analysis of the Record Evidence
and Plaintiff’s RFC
A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625 at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC, “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Id. (citing 20 C.F.R. § 404.1545(a)); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC
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“based on all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3). The RFC
assessment does not have to “perfectly correspond” with any of the medical source opinions
cited in the ALJ’s decision; rather, 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 v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an RFC
finding “when there is substantial evidence in the record to support each requirement listed in the
regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
In assessing a plaintiff’s RFC, an ALJ is entitled to rely on opinions from both examining
and non-examining State agency medical consultants because these consultants are qualified
experts in the field of social security disability. See Frey ex rel. A.O. v. Astrue, 485 F. App’x
484, 487 (2d Cir. 2012) (summary order) (“The report of a State agency medical consultant
constitutes expert opinion evidence which can be given weight if supported by medical evidence
in the record.”); Little v. Colvin, No. 5:14-cv-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y.
Mar. 26, 2015) (“State agency physicians are qualified as experts in the evaluation of medical
issues in disability claims. As such, their opinions may constitute substantial evidence if they are
consistent with the record as a whole.”) (internal quotation marks omitted).
For claims such as this one adjudicated after March 27, 2017, an ALJ’s review of medical
opinion evidence and prior administrative medical findings is governed by 20 C.F.R. §§
404.1520c(c) and 416.920c(c). Under the applicable regulations, the Commissioner “will not
defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from [the claimant’s]
medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a); Howard D. v. Saul, No. 5:19-CV-
01615 (BKS), 2021 WL 1152834, at *11 (N.D.N.Y. Mar. 26, 2021). Rather, the ALJ must use
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five factors to determine the persuasiveness of the medical opinion evidence and prior
administrative medical findings: supportability; consistency; relationship with the claimant;
specialization; and any other factors “that tend to support or contradict” the opinion. 20 C.F.R.
§§ 404.1520c(a)-(c), 416.920c(a)-(c); see also Howard, 2021 WL 1152834, at *11. The ALJ
always must “explain how [he] considered the supportability and consistency factors” because
they are “the most important factors,” and he “may, but [is] not required to, explain how [he]
considered the [remaining] factors.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2).
1. 	The ALJ properly evaluated the medical opinions of K. Waldman,
M.D., R. Mohanty, M.D., and Elke Lorensen, M.D.
Plaintiff argues “the ALJ only compared the assessments of Drs. Waldman, Mohanty,
and Lorensen to each other and failed to compare the assessments to any other portion of the
record, which is an error under the consistency factor.” Dkt. No. 17 at 13-14. The ALJ found
Dr. Lorensen’s opinion persuasive, and consistent with the opinions of Drs. Waldman and
Mohanty, and consistent with the evidence “regarding the claimant’s activities of daily living and
the claimant’s treatment history and response to treatment for her physical impairment.” T. 24.
The ALJ also found Drs. Waldman and Mohanty’s opinions persuasive, and consistent with
evidence “regarding the claimant’s activities of daily living, treatment history, and response to
treatment for her physical impairments.” Id. “Consistency is an all-encompassing inquiry
focused on how well a medical source is supported, or not supported, by the entire record.” Rua-
Campusano v. Kijakazi, No. 20-CV-7087, 2021 WL 7287628, at *10 (S.D.N.Y. Dec. 10, 2021),
report and recommendation adopted, 2022 WL 493390 (S.D.N.Y. Feb. 17, 2022).
The record clearly demonstrates the ALJ considered the consistency of Drs. Waldman,
Mohanty and Lorensen’s opinions with the record as a whole as he previously summarized the
treatment providers’ records and activities of daily living in the decision. See T. 22-24; see Julie
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M. v. Comm’r of Soc. Sec., No. 8:23-CV-518 (MJK), 2024 WL 664413, at *11 (N.D.N.Y. Feb.
16, 2024) (“The ALJ’s detailed summary of plaintiff’s treatment history, provided in an earlier
section of the written decision, highlights the evidence upon which the ALJ rendered this
consistency assessment.”) (citation omitted); see also Kami B. v. Saul, No. 5:18-CV-1497 (DJS),
2020 WL 247279, at *6-7 (N.D.N.Y. Jan. 16, 2020) (finding the ALJ adequately discussed
supportability and consistency because, although the plaintiff “is correct that the ALJ did not, in
this discussion of Dr. Allam’s opinion, explain in detail why he found those opinions not to be
consistent with or supported by the evidence in the record[,] . . . the ALJ explained the findings
in the record earlier in his decision”).
Dr. Lorensen opined Plaintiff had “[n]o gross limitations for sitting, standing, walking,
and using the hands. Moderate limitations for bending, lifting, carrying, reaching, pushing,
pulling, and climbing. She should avoid known respiratory irritants.” T. 722. Dr. Waldman
concluded Plaintiff can lift and/or carry 20 pounds occasionally and ten pounds frequently, stand
and/or walk six hours in an eight-hour workday, sit six hours in and eight-hour workday, and
occasionally push/pull with her bilateral upper extremities. T. 59-60. Additionally, Dr.
Waldman concluded Plaintiff can never climb ladders/ropes/scaffolds; can never kneel or crawl;
can occasionally climb ramps/stairs, stoop, and crouch. T. 60. Plaintiff was found unable to
reach overhead with her bilateral upper extremities, and should avoid concentrated exposure to
fumes, odors, dusts, gases, poor ventilation, and all exposure to hazards. T. 61-62. Upon
reconsideration, Dr. Mohanty agreed with Dr. Waldman’s opinion. T. 79-83.
In their explanations, Drs. Waldman and Mohanty cited a number of treatment records
including the consultative examination. T. 62-63. Thus, the Court finds the ALJ adequately
explained the consistency factor as set forth above. See Porteus v. O’Malley, No. 23-969, 2024
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WL 2180203, at *2 (2d Cir. May 15, 2024) (no error to explicitly repeat his prior examination of
the record when the ALJ adequately explained that the medical opinions were supported by
plaintiff’s examinations summarized in the decision and were consistent with plaintiff’s
treatment notes, hearing testimony, and evidence of his daily activities that were set forth earlier
in the ALJ’s decision); see also Earl H. L. v. O’Malley, No. 5:23-CV-00643 (AMN/ML), 2024
WL 4442724, at *10 (N.D.N.Y. July 26, 2024) (“The ALJ’s assessment of the persuasiveness of
the medical opinions is, at face value, valid, and ‘it is not the function of the reviewing court to
reweigh evidence.’” (quoting Vincent v. Shalala, 830 F. Supp. 126, 133 (N.D.N.Y. 1993) (other
citation omitted))), report and recommendation adopted, 2024 WL 4297113 (N.D.N.Y. Sept. 26,
2024). The regulations require that “it . . . be discernable that the ALJ properly applied the
regulations and considered [consistency] in weighing the medical opinions of record.” Laura Z.
v. Comm’r of Soc. Sec., No. 21-CV-918, 2023 WL 2534421, at *4 (W.D.N.Y. Mar. 16, 2023).
The record here shows the ALJ satisfied that obligation.
2. 	The ALJ properly discounted the opinion of Linda Bartlett, N.P.
Plaintiff also alleges, “[t]he ALJ failed to apply the consistency factor to FNP Bartlett’s
opinion when finding the opinion unpersuasive.” Dkt. No. 17 at 14 (citations omitted). On July
26, 2023, N.P. Bartlett submitted a largely incomplete medical source statement. T. 1102-04.
N.P. Bartlett stated Plaintiff established care at Upstate Inclusive Health Services on January 26,
1995, but she did not state the frequency or length of her relationship with Plaintiff. T. 1102.
N.P. Bartlett stated diagnoses of “DM2, recurrent nephrolithiasis, asthma, . . . [generalized
anxiety disorder], depression, neuropathy, cervicalgia, vit[amin] B12 deficiency, [and] immune
(HIV) compromised.” Id. She opined Plaintiff was “incapable of even ‘low stress’ jobs” due to
“multiple significant medical conditions that are rarely well controlled altogether.” Id. N.P.
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Bartlett noted in the margins she was “unable to assess” if “[a]s a result of [her] patient’s
impairments, estimate [her] patient’s functional limitations if [her] patient were placed in a
competitive work situation.” Id. (emphasis in original). N.P. Bartlett left question 5 and the sub-
questions “a through l” blank. T. 1102-04. In the margin near questions 5m., 6 and 7, N.P.
Bartlett noted that she was unable to assess, but still answered the questions. T. 1104. She
opined Plaintiff’s impairments would likely produce good and bad days, she would be absent
more than four days per month, and her impairments would frequently interfere with the
attention and concentration needed to perform even simple work tasks. Id.
ALJ Eldred found N.P. Bartlett’s opinion unpersuasive, because it was “not well
supported by reference to objective medical evidence,” the “information in Ms. Bartlett’s
underlying treatment records [do not] clearly support her opinion,” and the “opinion is
inconsistent with other substantial evidence, such as the opinions of Dr. Waldman, D. Mohanty,
and Dr. Lorensen.” T. 25. ALJ Eldred noted “the opinion document is largely incomplete” and
“Ms. Bartlett wrote ‘unable to assess’ in the margins of the document in areas in which she was
asked to give an opinion about the claimant’s ability to perform specific work-related activities.”
Id.
“With respect to consistency, [t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.” Id. (quoting 20 C.F.R. §§ 404.1520c(c), 416.920c(c)(2)) (internal quotation
marks omitted). The ALJ discounting NP Bartlett’s opinion because it was incomplete was not
inherently improper. It was appropriate for the ALJ to consider the lack of objective findings to
support his determination to discount NP Bartlett’s opinions. See Michael M. v. Comm’r of Soc.
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Sec., No. 5:23-CV-752 (DNH/DJS), 2024 WL 4110740, at *3 (N.D.N.Y. Aug. 15, 2024) (ALJ
entitled to rely on the lack of any evidence suggesting the plaintiff had an impairment), report
and recommendation adopted, 2024 WL 4107688 (N.D.N.Y. Sept. 6, 2024). N.P. Bartlett
simply listed the previous diagnoses from office records, with no explanation of how Plaintiff’s
impairments affected her functional limitations. T. 1102-04. “It is well-established, however,
that mere diagnosis of an impairment is insufficient to establish disability; it is the resulting
limitations that properly inform the disability determination.” Michael S. v. Comm’r of Soc. Sec.,
No. 20-cv-924-DEP, 2021 WL 5918922, at *7 (N.D.N.Y. Dec. 15, 2021).
Despite her impairments, Plaintiff reported an ability to perform many daily activities.
On the Function Report, she indicated she takes care of a pet, has no problems with personal
care, prepares food, has a friend, shops in stores, and pays her bills. T. 265-67. On January 24,
2022, she reported living alone, cooking five times a week, doing light cleaning and laundry, and
she showed and dressed daily. T. 720. Throughout the treatment records, Plaintiff had largely
normal examinations regarding her mental and physical limitations. T. 760, 764, 769, 781, 787.
“In addition to the opinion evidence, the ALJ properly considered Plaintiff’s treatment history,
including Plaintiff’s unremarkable examination findings and other objective medical evidence of
record . . . .” Rosemond R. v. Comm’r of Soc. Sec., No. 1:22-CV-225-DB, 2024 WL 3361809, at
*4 (W.D.N.Y. July 10, 2024); see also Daniel F. v. Comm’r of Soc. Sec., No. 1:22-CV- 00292
EAW, 2023 WL 6304722, at *7 (W.D.N.Y. Sept. 28, 2023) (“In addition, it is well-settled that
an ALJ may consider the consistency of a claimant’s activities of daily living with other
evidence of the record when evaluating credibility and determining the RFC.”). Taking all the
relevant factors into account, the ALJ correctly determined, based on substantial evidence, that
the opinion of N.P. Bartlett was unpersuasive.
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3. 	The ALJ properly accounted for Plaintiff’s limitations with the RFC
Plaintiff further alleges “[t]he ALJ failed to explain how Dennis Noia, Ph.D.’s,
assessment of moderate-to-marked limitations regulati[ng] emotions, controlling her behavior,
and maintaining her well-being were included in to [sic] the RFC finding despite assessing the
opinion to be generally persuasive.” Dkt. No. 17 at 14 (citations omitted). The Court agrees
with Defendant that “courts have held that RFC restrictions similar to the ones at issue here are
sufficient to account for moderate or marked limitations in these areas.” Dkt. No. 19 at 13
(citations omitted).
On February 17, 2022, Plaintiff underwent a psychiatric consultative evaluation with Dr.
Noia. T. 713-17. Plaintiff presented well-groomed and cooperative, had normal speech, and
thought processes, and a depressed affect. T. 714-15. She was fully oriented, and her attention
and concentration were intact. T. 715. Plaintiff’s “memory skills were impaired due to
depression during the examination,” her general fund of information was appropriate to
experience, and her insight and judgment were good. Id. Dr. Noia concluded Plaintiff had “no
limitations understanding, remembering, or applying simple or complex directions and
instructions; or using reasoning and judgment to make work-related decisions.” T. 716. He
opined “mild limitations interacting adequately with supervisors, co-workers, and the public.”
Id. There was “no evidence of limitation sustaining concentration and performing a task at a
consistent pace or sustaining an ordinary routine and regular attendance at work.” Id. Dr. Noia
further opined “moderate to marked limitations regulating emotions, controlling behavior, and
maintaining well-being.” Id. Lastly, he opined “no evidence of limitation maintaining personal
hygiene and appropriate attire or being aware of normal hazards and taking appropriate
precautions.” Id. Dr. Noia’s prognosis was guarded. Id.
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ALJ Eldred found Dr. Noia’s opinion “generally persuasive, as it is supported by his own
mental status examination findings, as detailed above, and is consistent with the claimant’s need
for outpatient mental health treatment.” T. 24-25. He further noted “[b]ased on the limitations
in emotional regulation, behavior control, and the ability to maintain well-being described by Dr.
Noia, I find the claimant limited to simple and routine work which required no more than
occasional social interaction.” T. 25. See, e.g., Susan B. v. Comm’r of Soc. Sec., 551 F. Supp. 3d
107, 117 n.3 (W.D.N.Y. 2021) (holding moderate limitations in regulating emotions, controlling
behavior and maintaining well-being was consistent with RFC for unskilled work involving
limited interaction with others); Richard B. v. Comm’r of Soc. Sec., No. 1:20-CV-00585-MJR,
2021 WL 4316908, at *8 (W.D.N.Y. Sept. 23, 2021) (“Dr. Fabiano’s opinion of plaintiff’s
marked limitations in regulating emotion and controlling behaviors was reflected in the RFC’s
provision for simple and low-stress work . . . .”); Hill v. Comm’r of Soc. Sec., No. 18-CV-1161L,
2020 WL 836386, at *4 (W.D.N.Y. Feb. 20, 2022) (limitations “to performing simple, routine
and repetitive tasks, and simple work-related decisions, and to only occasional interaction with
coworkers and the public . . . adequately accommodate marked limitations in a claimant’s ability
to adapt or manage oneself.”). Thus, limiting Plaintiff to simple, routine work and occasional
interaction with supervisors and others was appropriate.
Additionally, throughout 2021-2022, Plaintiff’s mental health treatment records
consistently noted she had no serious mental status abnormalities. T. 731, 733, 739, 742, 750,
756. Therefore, the ALJ properly accounted for Plaintiff’s opined limitations by Dr. Noia in the
RFC and remand is not necessary on this ground.
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B. 	The ALJ Failed to Resolve the Conflict Between the VE Testimony and the
DOT
An ALJ may engage a vocational expert to opine on the jobs a hypothetical person of the
claimant’s age, education, and RFC could perform in the national economy. 20 C.F.R. §
404.1560(b)(2) (“a vocational expert . . . may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairments can meet the demands of the claimant’s previous work”);
accord Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986) (“If nonexertional limitations
significantly diminish [claimant]’s ability to perform the full range of ‘light work,’ then the ALJ
should require the Secretary to present either the testimony of a vocational expert or other similar
evidence regarding the existence of jobs in the national economy for an individual with
claimant’s limitations.”).
When assessing the requirements of a particular occupation, an ALJ should primarily rely
upon the DOT, but may also use VE testimony to resolve more complex vocational issues. See
Antonio P. v. Comm’r of Soc. Sec., No. 3:21-CV-62, 2021 WL 5768545, at *8 (D. Conn. Dec. 6,
2021) (summarizing SSR 00-4p, 2000 WL 1898704, at *2 (SSA Dec. 4, 2000)). SSR 00-4p
provides VE testimony should generally be consistent with the occupational information
contained in the DOT, and when there is an “apparent” unresolved conflict, the ALJ must obtain
a “‘reasonable explanation for the conflict before relying on the [vocational expert’s
testimony].’” Murray v. Colvin, No. 15-CV-6384, 2016 WL 5335545, at *13 (W.D.N.Y. Sept.
23, 2016) (alteration in original) (quoting SSR 00-4p, 2000 WL 1898704 (SSA 2000)). Where,
however, the DOT is silent on an issue, there is no actual conflict between the VE testimony and
the DOT. See Reisinger v. Comm’r of Soc. Sec., No. 16-CV-428 (ATB), 2017 WL 2198965, at
*10 (N.D.N.Y. May 18, 2017) (collecting cases).
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The Second Circuit has held SSR 00-4p “requires the Commissioner to ‘obtain a
reasonable explanation’ for any ‘apparent’ – even if non-obvious – conflict between the [DOT]
and a vocational expert’s testimony.” Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 92
(2d Cir. 2019); see also Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 446 (2d Cir. 2012)
(“[A] VE whose evidence conflicts with the DOT must provide a reasonable explanation to the
ALJ for the conflict.”). In Lockwood, the VE testified a claimant who was unable to perform any
overhead reaching could still perform several occupations requiring occasional or frequent
reaching under the DOT. 914 F.3d at 92. The Second Circuit required remand because the
ALJ’s questioning of the VE did not resolve this apparent conflict. Id. at 92-93.
In this case, the VE testified an individual with Plaintiff’s RFC, including the restriction
to “never reach overhead,” could perform the representative tasks of mail clerk, router, and
office helper. T. 43, 44. According to the DOT, each of these occupations require “frequent”
reaching. See Dictionary of Occupational Titles 209.687-026, 1991 WL 671813; id. 222.687-
022, 1991 WL 672133; id. 239.567-010, 1991 WL 672232. The VE testified his analysis of
available occupations was consistent with the DOT and its companion publications other than the
issue of reaching overhead. T. 45. The VE stated, “the issue of reaching overhead is not
addressed in the DOT or for reaching on all planes, so that issue is based on my experience.” T.
44.
Plaintiff argues the VE “did not explain how the occupations requiring frequent reaching
could still be performed with absolutely no overhead reaching.” Dkt. No. 17 at 12. The Court
agrees. While the VE identified the conflict, he did not explain how the occupations could be
performed despite requiring frequent reaching. The courts have remanded where “[t]he VE
testimony did not provide clarity as to how the limitations on overhead reaching were not a
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conflict with the degree of reaching required by the job, other than to rely on his professional
experience.” Matthew M. v. Comm’r of Soc. Sec., No. 1:20-cv-1644-DB, 2022 WL 3346949, at
*4 (W.D.N.Y. Aug. 12, 2022).
The Commissioner relies on Peter W. v. Comm’r of Soc. Sec., No. 6:20-CV-1551 (TWD),
2022 WL 523744 (N.D.N.Y. Feb. 22, 2022), where this Court concluded “the record need only
establish that‘[t]he conflict was identified and described by the VE regarding the reaching issue,
and [that the VE] provided a plausible explanation.’” Dkt. No. 19 at 9 (quoting Peter W., 2022
WL 523744, at *11 (citation omitted)). Here, the VE did not provide a plausible explanation and
the facts from Peter W., are distinguished from the instant case. In Peter W., the plaintiff was
limited to occasional overhead reaching and lifting on the left side and the VE testified he could
perform representative tasks that required “frequent” or “constant” reaching. Peter W., 2022 WL
523744, at *11 (emphasis added). “During the VE’s testimony, the ALJ confirmed [the p]laintiff
was right-handed, so the lifting and reaching restrictions only applied to his non-dominant side.”
Id. This case involves limitations of no overhead reaching with both upper extremities resulting
from Plaintiff’s cervical spine impairment. T. 21, 59-63, 79-83, 722.
In Peter W., “[t]o resolve [the reaching] discrepancy, the ALJ further explained [the VE]
relied on her professional experience in analyzing job requirements before concluding an
individual with [the p]laintiff’s RFC could perform the representative occupation.” 2022 WL
523744, at *11. Here “[t]he VE offered no indication that he relied on job observation, research
or specific knowledge of the job.” Matthew M., 2022 WL 3346949, at *4. “Given that the DOT
does not break down directional reaching, the VE’s response that he relied on his experience
does not specifically address the conflict. Nor did the ALJ adequately address the conflict and
resolve why the jobs would not require greater overhead reaching.” Id. “The fact that the VE’s
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opinion was based on his own ‘knowledge and experience’ does not resolve the conflict.” Id.
(citing Lockwood, 914 F.3d at 92).
Reaching is defined as “extending the hands and arms in any direction.” SSR 85-15,
1985 WL 56857, at *7 (Jan. 1, 1985). Thus, there is an apparent conflict between the RFC and
the identified jobs. See Lockwood, 914 F.3d 87 at 92. “Testimony that a claimant with overhead
reaching limitations is capable of performing a job that the Dictionary describes as requiring
‘reaching,’ then, creates at least an apparent conflict that triggers the Commissioner’s duty to
elicit an explanation that would justify crediting the testimony.” Id. The VE testimony is far
from clear as to how the limitations on overhead reaching were not a conflict with the degree of
reaching required by the jobs other than to rely on his experience, T. 44, which, as explained
above, is insufficient.
Based on the foregoing, the ALJ’s finding that Plaintiff was not disabled as defined by
the SSA was not supported by substantial evidence in the record because the ALJ improperly
relied on VE testimony that conflicted with the DOT. Upon remand, the Commissioner should
obtain an explanation from a VE concerning this apparent conflict given Plaintiff’s inability to
reach overhead, and/or to obtain opinion evidence of other jobs, if any, Plaintiff could do with
her reaching limitations.
VII. 	CONCLUSION
WHEREFORE for the reasons stated herein, it is hereby
RECOMMENDED that the Plaintiff’s motion for judgment on the pleadings (Dkt. No.
17) be GRANTED; and it is further
RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
19) be DENIED; and it is further
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RECOMMENDED that the Commissioner’s decision denying Plaintiff benefits be
REMANDED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: December 18, 2025
Syracuse, New York
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