Marcinko v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
KIMBERLY M.,
Plaintiff,
v. 	5:24-cv-1304
(TWD)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
MEGGESTO, CROSSETT, & VALERINO, LLP 	KIMBERLY A. SLIMBAUGH, ESQ.
511 East Fayette Street
Syracuse, NY 13202
Counsel for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	JASON P. PECK, ESQ.
6401 Security Boulevard
Baltimore, MD 21235
Counsel for Defendant
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER
I. 	INTRODUCTION
Kimberly M. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or
“Defendant”) denying her application for benefits. Dkt. No. 1. Pursuant to 28 U.S.C. § 636(c),
the parties have consented to the disposition of this case by a Magistrate Judge. Dkt. No. 9.
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 of Social Security benefits. Both
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parties filed briefs, which the Court treats as motions under Federal Rule of Civil Procedure
12(c) in accordance with General Order 18. See Dkt. Nos. 11, 12. For the reasons discussed
below, Plaintiff’s motion for judgment on the pleadings is denied, Defendant’s motion is granted,
and the decision of the Commissioner is affirmed.
II. 	BACKGROUND
On December 2, 2019, Plaintiff protectively filed an application for benefits alleging
disability beginning on May 29, 2017. T. 964.1 Her application was initially denied on July 6,
2020, and again upon reconsideration on February 5, 2021. Id.
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. On July
22, 2021, Plaintiff and her attorney representative appeared before ALJ Robyn Hoffman via
telephone. See id. at 50-80. At the hearing, Plaintiff amended her alleged onset date to April 30,
2019. Id. at 55.
On April 21, 2022, ALJ Hoffman issued a written decision finding Plaintiff was not
disabled under the Social Security Act (“SSA”) at any time from the alleged onset date through
the date of the decision. See id. at 15-31. The Appeals Council denied Plaintiff’s request for
review on April 24, 2023, rendering the ALJ’s April 21, 2022, decision the final decision of the
commissioner. Id. at 1-6.
Plaintiff filed a complaint in the Northern District of New York on June 16, 2022. See
Kimberly M. v. Commissioner of Social Security, No. 5:23-CV-0726 (ML), Dkt. No. 1. On
November 13, 2023, the Hon. Miroslav Lovric, United States Magistrate Judge, remanded the
1 The Administrative Record/Transcript is found at Dkt. No. 6. 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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matter to the Social Security Administration for further administrative proceedings by stipulation
of the parties. Id., Dkt. No. 12. The Appeals Council issued an Order vacating the final decision
of the Commissioner and remanding the case to an ALJ on December 13, 2023. T. 1078-79.
On June 13, 2024, Plaintiff and her attorney representative, reappeared before ALJ
Hoffman via telephone. See id. at 1004-30. On August 9, 2024, ALJ Hoffman issued a decision
finding Plaintiff was not disabled under the SSA at any time from April 30, 2019, the amended
alleged onset date though March 31, 2023, the date last insured. See id. at 964-93.2 Plaintiff
timely commenced this action on October 24, 2024. See generally, Dkt. No. 1.
III. 	LEGAL STANDARDS
A. Standard of Review 3
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).
2 The Appeals Council did not review the ALJ’s decision, therefore, the ALJ’s August 9, 2024,
decision became the final decision of the Commissioner. See Dkt. No. 11 at 5; Dkt. No. 12 at 3.
3 While the Supplemental Security Income 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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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).
“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.
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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
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 his 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”
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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
The ALJ applied the five-step sequential evaluation process promulgated by the
Commissioner for adjudicating disability claims. See generally, T. 964-93. At step one, the ALJ
found Plaintiff had not engaged in substantial gainful activity from the time of her alleged onset
date though her date last insured. Id. at 968. Proceeding to step two, the ALJ determined
Plaintiff had the following severe impairments: “lumbar spine degenerative disc disease, bilateral
knee arthritis status post arthroscopy, and major depressive disorder.” Id.
At step three, the ALJ found, through the date last insured, Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. Id. at 971. The ALJ next
determined, through her date last insured, Plaintiff had the residual functional capacity (“RFC”)
to perform a range of light work, more specifically, Plaintiff
could occasionally lift and carry twenty pounds; could frequently
lift and carry ten pounds; could sit for six hours and could stand
and/or walk for six hours, all in an eight-hour workday with normal
breaks; could occasionally climb ramps or stairs; could occasionally
climb 	ladders, 	ropes, 	or 	scaffolds; 	could 	perform 	occasional
balancing on uneven terrain, but was not limited in the ability to
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maintain 	balance 	on 	even 	terrain; 	could 	perform 	occasional
stooping, kneeling, crouching, and crawling; could understand and
follow simple instructions and directions; could perform simple
tasks independently; could maintain attention/concentration for
simple tasks; could regularly attend to a routine and maintain a
schedule; could relate to and interact appropriately with all others to
the extent necessary to carry out simple tasks and could handle
simple, repetitive work-related stress in that she could make
occasional decisions directly related to the performance of simple
tasks in a position with consistent job duties that did not require her
to supervise nor manage the work of others.
Id. at 976.
At step four, the ALJ found Plaintiff had no past relevant work. Id. at 990. At step five,
the ALJ determined, based on her age, education, work experience, and RFC, there were jobs
existing in significant numbers in the national economy that Plaintiff could perform. Id. at 991.
Accordingly, the ALJ concluded Plaintiff was not disabled. Id. at 992.
V. 	DISCUSSION
Plaintiff argues the ALJ’s RFC determination is not supported by substantial evidence
because the ALJ “failed to properly assess the medical opinion of Dr. Elke Lorensen,” and
“failed to account for moderate limitations in [her] ability to maintain a work pace” and further
avers the ALJ erred in failing to obtain testimony from a vocational expert at step five. Dkt. No.
11 at 15-22. Defendant contends the ALJ did not err in assessing Dr. Lorensen’s opinion, the
ALJ’s RFC determination accommodated Plaintiff’s ability to maintain work pace, and the ALJ
was not required to obtain vocational expert testimony at step five. See Dkt. No. 12 at 5-15. The
undersigned agrees with the Defendant.
A. The ALJ’s RFC Determination is Supported by Substantial Evidence
1. 	Assessment of Physical Consultative Examiner’s Opinion
Plaintiff first argues the ALJ erred in assessing the opinion of physical consultative
examiner Dr. Lorensen, more specifically, the physical consultative examiner’s opinion that
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Plaintiff had “moderate” limitations in reaching. See Dkt. No. 11 at 15-18. Defendant asserts
the ALJ properly complied with 20 C.F.R. § 404.1520c in assessing Dr. Lorensen’s opinion. See
Dkt. No. 12 at 5-9.
An ALJ is specifically required to “explain how [he or she] considered the supportability
and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
With respect to “supportability,” the regulations provide, “[t]he more relevant the objective
medical evidence and supporting explanations presented by a medical source are to support his
or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(1),
416.920c(c)(1). The regulations provide 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 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s)
or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
Here, the ALJ found Dr. Lorensen’s opinion had “some persuasive value insofar as it is
consistent with reported results of her physical examination and the overall medical evidence of
record as of the date of her examination.” T. 985 (citing T. 678-82). Consultative examiner Dr.
Lorensen opined Plaintiff had “moderate” limitations in bending, lifting, carrying, reaching,
kneeling, and squatting. Id. at 681. However, with respect to Dr. Lorensen’s reaching limitation,
the ALJ concluded,
I do not find that manipulative limitations are supported by the
overall record of evidence or [the consultative examiner’s] own
physical examination of the claimant. As noted above, the claimant
does not have a medially determinable severe impairment affecting
her upper extremities despite the history of carpal tunnel syndrome
bilaterally, findings on laboratory studies of her cervical spine, and
other evidence. Even considering that the reaching limitation may
be related to the claimant’s lumbar spine disorder, the claimant’s
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pain management treatment records do not support a finding that the
claimant had chronic pain and problems related to reaching to
support the limitation identified. As noted above, the claimant was
generally able to perform activities that required good use of the
upper extremities, such as showering, dressing, taking baskets of
laundry up and down the stairs, and playing games on her phone.
Allegations of the need for assistance caring for her hair due to pain
putting her hands above her head were also considered, but not
reflected 	in 	the 	various 	exams 	that 	show 	good 	hygiene 	and
grooming. At times, the claimant indicated no significant difficulty
showering and dressing daily. 	Not all sources noted manipulative
limitations, including the independent medical examiner based on
the exam closest in time to the amended alleged onset date of
disability or the two State agency medical consultants based on
review of records submitted by various medical sources at the initial
and/or 	reconsideration 	level 	that 	included 	evaluation 	of 	the
claimant’s weight. Additionally, the consultative examiner did not
identify any extreme limitations to support the degree of limitation
in reaching alleged by the claimant and attributed her lumbar spine
disorder 	and/or 	obesity. 	In 	fact, 	at 	times, 	the 	claimant
acknowledged that she was able to perform above-shoulder work
but with cervical pain and could reach forward 4-5 times before she
experienced shoulder pain. Therefore, limitations for reaching are
not adopted into the established residual functional capacity.
Id. at 985-86 (internal citations omitted). In light of the foregoing, Plaintiff’s contention the ALJ
“did not consider one of the primary factors of supportability in considering Dr. Loren[s]en’s
opinion regarding a moderate limitation in reaching,” Dkt. No 11 at 15, is unavailing.
“[U]nder the substantial evidence standard of review, it is not enough for Plaintiff to
merely disagree with the ALJ’s weighing of the evidence or to argue that the evidence in the
record could support her position.” Megan Ann G. v. Comm’r of Soc. Sec., No. 5:23-CV-0298
(DNH/TWD), 2024 WL 4110742, at *5 (N.D.N.Y. Aug. 19, 2024) (citing Brault v. Soc. Sec.
Admin., 683 F.3d 443, 448 (2d Cir. 2012)) (additional citation omitted), report and
recommendation adopted, 2024 WL 4107708 (N.D.N.Y. Sept. 6, 2024). Rather, the relevant
inquiry is “whether substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v.
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Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (emphasis in original) (citing Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013)) (additional citation omitted).
Here, as the ALJ explained, Dr. Lorensen’s opined moderate limitations in reaching were
inconsistent with record evidence reflecting that Plaintiff was able to perform activities which
required use of the upper extremities prior to the date last insured. See T. 986 (citing T. 679,
694). Furthermore, as the Defendant points out, see Dkt. No. 12 at 7, while Dr. Lorensen did
observe only 100 degrees of elevation and abduction in Plaintiff’s shoulders, she also observed
Plaintiff retained full flexion, extension, and bilateral lateral flexion, and rotary movement in the
cervical spine; full range of motion in the elbows, forearms, and wrists bilaterally; physiologic
and equal deep tendon reflexes in the upper extremities; had no sensory defects in the upper
extremities; 5/5 strength in the upper extremities; 5/5 grip strength; and intact hand and finger
dexterity. See T. 680. Moreover, as the ALJ noted, other opinion evidence did not include such
restrictive reaching or manipulative limitations. See id. 986 (citing T. 629-39, 104-19, 121-45,
683-85, 876-77).
Next, while Plaintiff points to her recorded reports of back pain aggravated by overhead
activities such as housework, see Dkt. No. 11 at 17, it is well established that “an ALJ is not
required to discuss every piece of evidence submitted . . . [and a]n ALJ’s failure to cite specific
evidence does not indicate that such evidence was not considered.” Brault, 683 F.3d at 448
(internal quotations and citation omitted). It is similarly well established that, “[t]o the extent
there are conflicts in the medical record, it is the ALJ’s sole responsibility to weigh all medical
evidence and resolve material conflicts . . . .” Mario S. v. O’Malley, No. 5:23-CV-1207
(AMN/DJS), 2024 WL 4956980, at *4 (N.D.N.Y. Oct. 10, 2024) (internal quotations and citation
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omitted), report and recommendation adopted sub nom. Mario M. S. v. Comm’r of Soc. Sec.,
2024 WL 4825779 (N.D.N.Y. Nov. 19, 2024).
Insofar as Plaintiff asserts the ALJ “cherry-pick[ed]” evidence supporting Dr. Lorenson’s
restrictive reaching limitation, see Dkt. No. 11 at 15, “[w]hen the ALJ considers a Plaintiff’s
medical history, testimony, medical opinion evidence, and treatment records in reaching their
conclusion of Plaintiff’s capability, a plaintiff’s characterization of cherry-picking in the decision
is unsupported by the record.” Wendy L. K. v. Comm’r of Soc. Sec., No. 3:24-CV-241
(AJB/DJS), 2025 WL 1089519, at *5 (N.D.N.Y. Jan. 27, 2025), report and recommendation
adopted, 2025 WL 679328 (N.D.N.Y. Mar. 4, 2025). Such is the case here, in light of the ALJ
previously mentioned thorough analysis of the supportability and consistency of Dr. Lorensen’s
opined limitation. See T. 985-86. In other words, “irrespective of the presence of record
evidence which could support” Dr. Lorensen’s “more restrictive [reaching] limitation[], because
the ALJ’s determination is supported by substantial evidence, it must be upheld.” Penny M. v.
Comm’r of Soc. Sec., No. 8:24-CV-0961 (MAD/TWD), 2025 WL 2548801, at *9 (N.D.N.Y. July
10, 2025) (citing Rutherford, 685 F.2d at 62), report and recommendation adopted sub nom.
Penny M. v. Bisignano, 2025 WL 2408601 (N.D.N.Y. Aug. 20, 2025); see also, e.g., Regina M.
v. Comm’r of Soc. Sec., No. 6:23-CV-6629 (EAW), 2025 WL 899008, at *6 (W.D.N.Y. Mar. 25,
2025) (“Plaintiff’s claims of cherry-picking essentially amount to an invitation for the Court to
re-weigh the evidence of record, which it may not do.”) (citations omitted).
Finally, Plaintiff argues “[t]he ALJ mischaracterized Dr. Lorensen’s exam findings
regarding the upper extremities when she stated the exam findings noted ‘she had full range of
motion in the upper extremities’, which was not what Dr. Lorensen reported.” Dkt. No. 11 at 17
(quoting T. 26); see also Dkt. No. 11 at 16 (“Dr. Elke Lorensen examined plaintiff on 3/17.2020.
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Her findings noted ‘forward elevation and abduction of the shoulders 100 degrees bilaterally.’
As a result of the limited range of motion in the upper extremities, Dr. Lorensen opined plaintiff
had moderate limitations for reaching.”) (citing T. 680-81). However, Plaintiff cites page
twenty-six of the administrative record, which contains ALJ Hoffman’s April 21, 2022, decision,
the ALJ’s prior decision in this matter, which was vacated and is not currently before the Court.
See T. 15-31. The ALJ’s August 9, 2024, decision does not contain the same language. See id.
at 964-93. The decision currently before the Court states during Dr. Lorensen’s March 17, 2020,
examination, Plaintiff “had full range of motion of bilateral upper extremities, except for forward
elevation and abduction of her shoulders past 100 degrees.” Id. at 982 (citing T. 680) (emphasis
added).4 Therefore, Plaintiff’s claim the ALJ mischaracterized Dr. Lorensen’s findings or erred
in assessing the supportability of Dr. Lorensen’s opinion is unpersuasive.
2. 	Ability to Maintain Work Pace
Plaintiff also contends the ALJ’s RFC determination is not supported by substantial
evidence because it failed to account for Plaintiff’s moderate limitations in maintaining work
pace. See Dkt. No. 11 at 21-22. Defendant avers the ALJ’s RFC determination accommodated
Plaintiff’s pace limitations. See Dkt. No. 12 at 11-15.
At step three of the sequential evaluation process, the ALJ found the severity of
Plaintiff’s mental impairment did not meet or medically equal the criteria of listings 12.04,
12.06, 12.15, and near listings. See T. 971. In reaching the aforementioned conclusion, the ALJ
considered whether Plaintiff’s mental impairment satisfied those listings’ “paragraph B” criteria
and found:
4 See also T. 970 (explaining, at step two, that “[p]eriodic notations of reduced range of motion
in the shoulders bilaterally . . . were also considered, but fail to support any additional medically
determinable impairment though the date last insured.”) (citing T. 680).
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With regard to concentrating, persisting, or maintaining pace, the
claimant had no more than a moderate limitation through the date
last insured. The claimant reported having trouble paying attention,
getting distracted, and finishing what she starts . . . . However, at the
consultative examination, the claimant’s attention and concentration
were noted to be intact. She started serial 7s task accurately but said
it would take her longer to figure out the calculations with the larger
number . . . . The claimant otherwise did single digit addition and
subtraction and serial 3s task accurately. 	Dr. Seybold opined the
claimant had no limitations in her ability to sustain concentration,
perform tasks at a consistent pace, sustain an ordinary routine and
regular attendance at work. 	Dr. Marks and Dr. Fassler reviewed
available evidence and found that the claimant had moderate
limitations in her ability to concentrate, persist, or maintain pace . .
. . In light of the overall evidence, the claimant had more than mild
limitations in this area, which was therefore rated as moderate.
Id. at 974 (citations omitted). Subsequently, at step four, the ALJ determined Plaintiff retained
the RFC to perform a range of light work. See id. at 975-76.
As an initial matter, as Defendant notes, see Dkt. No. 12 at 12, the “paragraph B” criteria
for evaluating the severity of mental impairments are “to be applied in determining the severity
of a mental impairment, the third step prescribed by the disability evaluation guidelines, not a
claimant’s RFC, which is relevant to the guidelines’ fourth and fifth steps.” Whipple v. Astrue,
479 F. App’x 367, 369 (2d Cir. 2012) (citing 20 C.F.R. § 404.1520a(d); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996)); see also, e.g., Plumley v. Comm’r of Soc. Sec., No. 5:15-CV-1229
(GTS/WBC), 2016 WL 7644866, at *9 (N.D.N.Y. Dec. 8, 2016) (explaining, “the analysis
conducted at steps two and three of the sequential process are not an RFC assessment.”), report
and recommendation adopted sub nom. Plumley v. Colvin, 2017 WL 44842 (N.D.N.Y. Jan. 4,
2017). In other words, “there is no requirement that an ALJ use the same language from step
two or three in the RFC analysis, so the absence of the words ‘concentration, persistence, or
pace’ in the ALJ’s RFC assessment is not per se error.” Irene v. Berryhill, No. 6:18-CV-0038
(BKS), 2019 WL 1349560, at *24 (N.D.N.Y. Mar. 26, 2019) (citing Peryea v. Comm’r of Soc.
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Sec., No. 5:13-CV-0173 (GTS/TWD), 2014 WL 4105296, at *10 (N.D.N.Y. Aug. 20, 2014))
(additional quotations omitted). Therefore, “to the extent Plaintiff contends that the ALJ was
required to expressly include the moderate limitations (in concentration, persistence and pace)
identified at Step 3 in the RFC determination, such argument lacks merit because the ALJ’s
findings at step 3 of the sequential analysis are not an RFC determination.” Pidgeon v. Comm’r
of Soc. Sec., No. 15-CV-6578 (CJS), 2017 WL 4680412, at *7 (W.D.N.Y. Oct. 18, 2017) (citing
Whipple, 479 F. App’x at 369); see also, e.g., Michael G. v. Comm’r of Soc. Sec., No. 6:24-CV-
1256 (DJS), 2026 WL 251992, at *4 (N.D.N.Y. Jan. 30, 2026) (“The determinations at Step
Three and Step Four require distinct analysis.”) (internal quotations and citation omitted).
Plaintiff argues “all unskilled jobs require, ‘the ability to complete a normal work day
and workweek without interruptions from psychologically based symptoms and perform at a
consistent pace without an unreasonable number and length of rest periods . . . ,’” Dkt. No. 11 at
21 (citing Program Operations Manual System DI 25020.010), yet the ALJ’s RFC determination
“did not limit plaintiff to unskilled work or no production rate work, nor did it otherwise account
for her moderate limitations in pace. As the RFC did not include any reference to plaintiff’s
limitations regarding work pace the RFC is not supported by substantial evidence.” Id. at 22.
However, as Defendant emphasizes, see Dkt. No. 12 at 13, the ALJ’s finding that Plaintiff had
moderate limitations in the domain of concentrating, persisting, or maintaining pace, was based
on the opinions of Dr. Marks and Dr. Fassler. See T. 974 (citing T. 111, 132). Yet, both Dr.
Marks and Dr. Fassler concluded Plaintiff was “able to sustain a normal workday and work
week.” Id. at 117; 142 (emphasis added).
In any event, the ALJ’s determination that Plaintiff retained the RFC to “understand and
follow simple instructions and directions,” “perform simple tasks independently,” “maintain
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attention/concentration for simple tasks,” “regularly attend to a routine and maintain a schedule,”
“relate to and interact appropriately with all others to the extent necessary to carry out simple
tasks,” and “handle simple, repetitive work-related stress in that she could make occasional
decisions directly related to the performance of simple tasks in a position with consistent job
duties that did not require her to supervise nor manage the work of others,” T. 976, “is ‘fully
consistent with the observation that Plaintiff has moderate limitations in concentration,
persistence, and pace.’” Irene, 2019 WL 1349560, at *24 (citing Coleman v. Comm’r of Soc.
Sec., 335 F.Supp.3d 389, 401 (W.D.N.Y. 2018) (explaining, RFC for work requiring “sufficient
attention and concentration to understand, remember and follow simple instructions” was not
inconsistent with step three finding of moderate limitations in concentration, persistence, and
pace); Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)). Accordingly, Plaintiff’s contention
the ALJ’s RFC is unsupported in this respect is unpersuasive.
B. The ALJ Did Not Err in Declining to Obtain Vocational Expert Testimony
Finally, Plaintiff contends the ALJ should have obtained vocational witness testimony.
See Dkt. No. 11 at 18-20. Defendant argues no expert testimony was required to support the
ALJ’s step five conclusion. See Dkt. No. 12 at 9-11.
As previously explained, at step five of the sequential disability evaluation, the
Commissioner bears the burden of proving, despite the claimant’s severe impairments, she is
capable of performing work available in the national economy. See 20 C.F.R. §§ 404.1520(f),
416.920(f). “In the ordinary case the Secretary satisfies his burden by resorting to the applicable
medical vocational guidelines (the grids) . . . .” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.
1986) (citation omitted).
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“Although the grid results are generally dispositive, exclusive reliance on the grids is
inappropriate where the guidelines fail to describe the full extent of a claimant’s physical
limitations.” Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999); see also, e.g., Charlebois v.
Comm’r, Soc. Sec. Admin., No. 6:02-cv-0686 (LEK/GJD), 2003 WL 22161591, at *10
(N.D.N.Y. Sept. 12, 2003) (explaining, “[i]f a claimant is unable to perform a full range of a
particular exertional category of work, or the issue is whether a claimant’s work skills are
transferable to other jobs, the ALJ may utilize the services of a vocational expert.”) (citing 20
C.F.R. §§ 404.1566, 416.966). As the Second Circuit Court of Appeals has explained:
If the guidelines adequately reflect a claimant’s condition, then their
use to determine disability status is appropriate. But if a claimant’s
nonexertional impairments significantly limit the range of work
permitted by his exertional limitations then the grids obviously will
not accurately determine disability status because they fail to take
into account claimant’s nonexertional impairments.
Bapp, 802 F.2d at 605 (internal quotations and citation omitted); see also, e.g., Eugene David M.
v. Comm’r of Soc. Sec., No. 5:21-CV-0529 (FJS/TWD), 2022 WL 18587762, at *9 (N.D.N.Y.
Sept. 29, 2022) (explaining, “if a claimant suffers from nonexertional impairments that
‘significantly limit the range of work permitted by exertional limitations,’ the ALJ should elicit
testimony from a VE to determine if jobs exist in the economy that the claimant can still
perform.”) (quoting Pratts, 94 F.3d at 39) (additional citations omitted), report and
recommendation adopted, 2023 WL 118758 (N.D.N.Y. Jan. 6, 2023).
In this context, “[a] non-exertional impairment ‘significantly limits a claimant’s range of
work when it causes an additional loss of work capacity beyond a negligible one or, in other
words, one that so narrows a claimant’s possible range of work as to deprive h[er] of a
meaningful employment opportunity.’” Tiffany G. v. Kijakazi, No. 6:21-CV-0385 (FJS), 2022
WL 3027144, at *9 (N.D.N.Y. July 29, 2022) (quoting Zabala v. Astrue, 595 F.3d 402, 410-11
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(2d Cir. 2010)) (additional citations omitted). Therefore, “the existence of nonexertional
limitations does not automatically preclude reliance on the grids, or require that the ALJ consult
a VE . . . . Where the claimant’s nonexertional limitations did not result in an additional loss of
work capacity, an ALJ’s use of the grids is permissible.” Eugene David M., 2022 WL 18587762,
at *9 (citing Zabala, 595 F.3d at 411); see also Shawn C. v. Comm’r of Soc. Sec., No. 1:20-CV-
1378, 2022 WL 17037624, at *5 (W.D.N.Y. Nov. 17, 2022) (“Exclusive use of the Grids is
precluded, and VE testimony is required, only ‘where the claimant’s exertional impairments are
compounded by significant nonexertional limitations’ that limit the range of work.”) (quoting
Rosa, 168 F.3d at 78). Finally, “‘[a]n ALJ’s determination of whether a claimant’s nonexertional
limitations significantly impact his ability to perform work constitutes a finding of fact, subject
to deferential review.’” Tashona R. D. v. Comm’r of Soc. Sec., No. 5:23-CV-0583 (AMN/CFH),
2024 WL 4442722, at *9 (N.D.N.Y. Aug. 12, 2024) (quoting Shawn C., 2022 WL 17037624, at
*5), report and recommendation adopted, 2024 WL 4274819 (N.D.N.Y. Sept. 24, 2024).
Plaintiff asserts the ALJ’s “finding that plaintiff has no loss in the ability to perform the
basic mental demands of unskilled work under SSR 85-15 [is] conclusory. The[re] was no
explanation as to how plaintiff[’]s limitation to simple work-related stress would cause only a
negligible loss in work capacity for unskilled work.” Dkt. No. 11 at 20. In so arguing, Plaintiff
emphasizes the ALJ’s finding that her
mental 	impairment 	limited 	her 	to 	“relate 	to 	and 	interact
appropriately with all others to the extent necessary to carry out
simple tasks. She can handle simple, repetitive work-related stress
in that she can make occasional decisions directly related to the
performance of simple tasks in a position with consistent job duties
that do not require her to supervise nor manage the work of others.”
Id. (quoting T. 976). However, such limitations are consistent with the requirements of unskilled
work. See, e.g., Zabala, 595 F.3d at 411 (“The ALJ found that Petitioner’s mental condition did
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not limit her ability to perform unskilled work, including carrying out simple instructions,
dealing with work changes, and responding to supervision. Thus, her nonexertional limitations
did not result in an additional loss of work capacity, and the ALJ’s use of the Medical-
Vocational Guidelines was permissible.”).
Here, the ALJ supportably determined Plaintiff retained the RFC to: “understand and
follow simple instructions and directions;” “perform simple tasks independently;” “maintain
attention/concentration for simple tasks;” “regularly attend to a routine and maintain a schedule;”
“relate to and interact appropriately with all others to the extent necessary to carry out simple
tasks;” and “handle simple, repetitive work-related stress in that she could make occasional
decisions directly related to the performance of simple tasks in a position with consistent job
duties that did not require her to supervise nor manage the work of others.” T. 976. Courts in
this district have consistently concluded ALJs’ reliance on the grids was not improper in finding
claimants with the same nonexertional limitations were not disabled.
For example, in Crystal L. C. v. Comm’r of Soc. Sec., the court concluded “substantial
evidence support[ed] the ALJ’s conclusion that Plaintiff’s nonexertional limitations did not
significantly limit the range of unskilled light work she could perform, therefore, the ALJ’s use
of the grids to reach a finding of not disabled at step five was not erroneous,” where, as here, the
ALJ found the plaintiff could “‘relate to and interact appropriately with all others to the extent
necessary to carry out simple tasks; and’ . . . ‘handle simple, repetitive work-related stress, in
that she can make occasional decisions directly related to the performance of simple tasks in a
position with consistent job duties that do not require her to supervise or manage the work of
others.’” No. 5:24-CV-0732 (BKS/TWD), 2025 WL 2933190, at *5-6 (N.D.N.Y. Mar. 24,
2025), report and recommendation adopted, 2025 WL 2726720 (N.D.N.Y. Sept. 25, 2025).
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Similarly, in Bridget S. v. Kijakazi, where the ALJ assessed the claimant was “capable of
working in [an environment] that involves occasional decision-making . . . and occasional use of
judgment,” the court noted such limitations were “all included in the ability to perform unskilled
work.” No. 6:20-CV-1440 (ATB), 2022 WL 2046364, at *13 (N.D.N.Y. June 7, 2022).
Accordingly, the reviewing court determined “the ALJ was justified in using the Grid as a
framework . . . to determine that plaintiff was not disabled.” Id. Moreover, in Eugene David M.,
this court found “the ALJ properly found there were a significant number of jobs in the national
economy that Plaintiff could perform, using the grids as a framework, and the testimony of a VE
was not required,” where the ALJ concluded the claimant could “understand and follow simple
instructions and directions; perform simple tasks independently; maintain attention and
concentration for simple tasks; regularly attend to a routine and maintain a schedule; and relate
to and interact appropriately with all others to the extent necessary to carry out simple tasks” and
“handle simple, repetitive, work-related stress in that he can make occasional decisions, directly
related to the performance of simple tasks, in a position with consistent job duties, that does not
require him to supervise or manage the work of others.” 2022 WL 18587762, at *4, *10
(internal quotations and citations omitted).
Finally, insofar as Plaintiff contends the ALJ failed to consider the combined effects of
all of her nonexertional limitations, see Dkt. No. 11 at 20, in light of the ALJ’s preceding
thorough assessment of Plaintiff’s postural limitations and SSRs 83-14 and 85-15, the
undersigned is unpersuaded. See T. 991-92; see also, e.g., Crystal L. C., 2025 WL 2933190, at
*5. In sum, substantial evidence supports the ALJ’s conclusion that Plaintiff’s nonexertional
limitations did not so significantly limit the remaining occupational base of unskilled light work
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available to her. Therefore, the ALJ’s reliance on the grids, rather than vocational expert
testimony, to reach a finding of “not disabled” at step five was not erroneous.
Accordingly, Plaintiff’s motion for judgment on the pleadings is denied, Defendant’s
motion is granted, and the decision of the Commissioner is affirmed.
VI. 	CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) be
DENIED; and it is further
ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No. 12)
be GRANTED; and it is further
ORDERED that the Commissioner’s decision be AFFIRMED; and it is further
ORDERED that Plaintiff’s complaint (Dkt. No. 1) is DISMISSED and the Clerk of Court is
directed to enter judgment and close the case.
Dated: February 10, 2026
Syracuse, New York
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