Murphy v. Bisignano

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
LAURIE A. M.,
Plaintiff,
v. 	5:25-cv-0035 (GTS/TWD)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	MARY ELLEN GILL, ESQ.
& DISABILITY LAW
Attorney for Plaintiff
6000 North Bailey Avenue, Suite 1A
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION 	GEOFFREY M. PETERS, 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 Report and Recommendation by the
Honorable Glenn T. Suddaby, 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 Rule 12(c) in accordance with General Order 18. Dkt.
Nos. 10, 11. Plaintiff filed a reply brief which simply relied on her original arguments and
authority as set forth in her primary brief. Dkt. No. 12. Oral argument was not heard. For the
reasons set forth below, the Court recommends that 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 1969. T. 196.1 She completed two years of college and previously
worked as a call representative, picker, and tax preparer. T. 237-38. Plaintiff protectively filed
Title II and Title XVI applications for Disability Insurance Benefits and Social Security Income,
alleging disability beginning April 20, 2022, due to degenerative disc disease, pinched nerve and
bulging disc in her neck and back, type 2 diabetes, asthma, high cholesterol, depression, anxiety,
panic attacks, and constant pain. T. 236.
Plaintiff’s initial claims were administratively denied on January 19, 2023, and again on
April 25, 2023. T. 59, 76, 85, 93. A hearing was conducted on March 15, 2024, before
Administrative Law Judge (“ALJ”) Jeremy Eldred. T. 30-43. The ALJ heard the testimony of
Plaintiff and Vocational Expert (“VE”) Christine DiTrinco. Id. On April 11, 2024, 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 November 21, 2024. T. 15-24, 1-6.
Plaintiff commenced this action on January 8, 2025. Dkt. No. 1.
1 The Administrative Record/Transcript is found at Dkt. No. 8. Citations to the Transcript will
be referenced at “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 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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“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
had not engaged in substantial gainful activity since April 20, 2022, the alleged onset date of
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disability. T. 17. The ALJ noted Plaintiff is currently employed as a tax preparer, but she works
no more than 20 hours per week. Id. At step two, the ALJ found Plaintiff has severe
impairments of degenerative changes of the cervical and lumbar spine, asthma, type 2 diabetes,
and obesity. T. 18. At step three, the ALJ determined 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. Part 404, Subpart P, Appendix 1. T. 20. Before reaching step four, the ALJ concluded
Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, “except she is
unable to reach overhead, and must avoid exposure to concentrated dust, odors, fumes, or gases.”
Id.
In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and
that 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. §§
404.1529, 416.929 and [Social Security Ruling] 16-3p.” Id. The ALJ further stated he
considered the medical opinions and prior administrative medical findings pursuant to 20 C.F.R.
§§ 404.1520c and 416.920c. Id. The ALJ found Plaintiff’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms but that the evidence does not fully
support Plaintiff’s statements regarding the extent of her functional limitations. T. 21.
Proceeding to step four of the sequential evaluation, the ALJ determined Plaintiff is able to
perform her past relevant work as a tax preparer. T. 23. The ALJ concluded Plaintiff was not
under a disability from April 20, 2022, through the date of his decision. T. 24.
V. 	CONTENTIONS
Plaintiff contends “[t]he vocational expert’s testimony conflicted with the information in
the Dictionary of Occupational Titles, and the ALJ did not properly identify nor resolve this
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conflict” regarding overhead reaching. Dkt. No. 10 at 7-11. Additionally, Plaintiff argues the
ALJ “did not properly evaluate Dr. Brown’s treating opinion.” Id. at 11-14. Lastly, Plaintiff
argues “[t]he ALJ failed to account for mental health limitations in the RFC, which was harmful
considering the ALJ found Plaintiff capable of performing semiskilled work.” Id. at 14-16.
Defendant counters “the ALJ properly identified and reasonably resolved the conflict between
the VE’s testimony, and the information contained in the DOT regarding the reaching
requirements of the Tax Preparer position, as required by SSR 00-4p and Lockwood.” Dkt. No.
11 at 7; see also id. at 6-9. Defendant further argues “the ALJ properly evaluated the
supportability and consistency of Dr. Brown’s opinion outlining disabling physical restrictions.”
Id. at 11; see also id. at 10-14. Lastly, Defendant argues “the ALJ reasonably excluded any
work-related mental limitations from the RFC.” Id. at 18; see also id. at 14-19.
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
“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.
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App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds a 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
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
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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 opinion of Jennie Brown,
M.D.
On March 12, 2024, Dr. Brown, Plaintiff’s primary care provider, submitted a medical
source statement. T. 774-76. Dr. Brown stated she had been treating Plaintiff since 2020, but
she did not state the frequency of her treatment relationship with Plaintiff. T. 774. Dr. Brown
diagnosed Plaintiff with “cervical [and] lumbar multilevel degenerative disc disease and spinal
stenosis.” Id. She opined Plaintiff was “incapable of even ‘low stress’ jobs” due to “current
status working [with] pain unable to tolerate.” Id. Dr. Brown opined Plaintiff could walk less
than one city block without rest or severe pain, could sit for ten minutes at one time, and stand
for ten minutes at one time. Id. She further opined Plaintiff could sit and stand/walk for at least
six hours in an eight-hour working day with normal breaks, but would need a job that permits
shifting positions at will from sitting, standing, or walking. Id.
Additionally, Dr. Brown opined Plaintiff would need unscheduled breaks during an eight-
hour day every ten minutes for ten minutes. T. 775. She opined Plaintiff could rarely lift and
carry ten pounds or less, look down (sustained flexion of neck), turn her head right or left, look
up, hold her head in static position, twist, stoop (bend), crouch/squat, grasp, turn, or twist objects
with her hands, perform fine manipulations with her fingers, or reaching with her arms including
overhead. T. 775-76. She could never lift and carry 20 to 50 pounds, climb ladders, or stairs. T.
775. Lastly, Dr. Brown opined that due to her impairments Plaintiff would have “good days”
and “bad days,” would be absent from work more than four days per month, and her pain or
other symptoms would frequently interfere with her attention and concentration. Id.
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The ALJ found Dr. Brown’s opinion unpersuasive because she did not provide
“significant objective support for her opinion on the document itself, and her underlying
treatment records do not support her opinion that the claimant has disabling limitations.” T. 23.
a. 	Supportability
Plaintiff contends “the ALJ’s conclusory rejection of Dr. Brown’s opinion, failing to
properly consider how supported the opinion was by Dr. Brown’s treatment notes and by the rest
of the record, was insufficient.” Dkt. No. 10 at 13. The Court disagrees.
“To analyze supportability, the ALJ must conduct ‘an inquiry confined to the medical
source’s own records that focuses on how well a medical source supported and explained their
opinion.” Ayala v. Kijakazi, 620 F. Supp. 3d 6, 30 (S.D.N.Y. 2022) (quoting Vellone v. Saul, No.
1:20-cv-00261, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021)).
Dr. Brown offered no supporting explanation for her opinions. T. 774-76. As noted, the
ALJ explained “Dr. Brown provided no significant objective support for her opinion on the
document itself, and her underlying treatment records do not support her opinion that the
claimant has disabling limitations.” T. 23. Although the supportability factor is concerned with
“objective medical evidence . . . presented by [the] medical source,” 20 C.F.R. §§
404.1520c(c)(1), 416.920c(c)(1), not the entire record, Dr. Brown failed to present any objective
medical evidence in support of her medical opinion. T. 774-76. “The supportability factor asks
how well a medical source supported their opinion(s) with objective medical evidence and
supporting explanations.” Carmen M. v. Comm’r of Soc. Sec., No. 20-CV-06532-MJR, 2021
WL 5410550, at *4 (W.D.N.Y. Nov. 19, 2021). Dr. Brown failed to offer any explanations or
objective medical evidence in support of her highly restrictive opinions about Plaintiff’s
functional limitations. When asked in the medical source statement form “[p]lease describe any
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other limitations . . . that would affect your patient’s ability to work at a regular job on a
sustained basis,” Dr. Brown left the question blank. T. 776.
Moreover, a review of the records from St. Joseph’s Physicians Family Medicine –
Liverpool (“St. Joseph’s Physicians”), Dr. Brown’s practice group, shows that Dr. Brown’s
opinion is unsupported by her own treatment notes, and notes of other providers in her practice
group. See generally T. 700-54. Although Dr. Brown noted in her opinion a diagnosis of
“cervical [and] lumbar multilevel degenerative disc disease and spinal stenosis,” T. 774, and that
Plaintiff could only sit and stand for 10 minutes at one time before needing to change positions,
id., at virtually every encounter with Dr. Brown and other providers at St. Joseph’s Physicians,
Plaintiff repeatedly exhibited normal range of motion and denied back and muscle pain. T. 714-
15, 722-23, 734-35.
Dr. Brown also noted in her opinion that Plaintiff could rarely move her head in any
direction, stoop, twist, crouch or squat. T. 775. Although Plaintiff complained once about
feeling dizzy from standing up, bending over and tuning her head, T. 730, Plaintiff repeatedly
had normal examinations. T. 701-02, 705-06, 714-15, 722-23, 735, 739-40, 743-44, 748-49,
753. Dr. Brown lastly opined Plaintiff’s attention and concentration would frequently interfere
with performing even simple tasks and she would be absent more than four days per month as a
result of the impairments or treatment. T. 776. However, Plaintiff had only five treatment
encounters with Dr. Brown’s practice group between January 2021 and May 2023, two of which
were telemedicine visits. T. 700-54. At each visit, Plaintiff was alert and oriented, with normal
mood, behavior, and thought content. T. 702, 705-06, 715, 735, 753. Although on January 28,
2022, a mood disorder was noted, it was also reported Plaintiff was “[n]ot interested in
medication [f]or mood disorder[;] previously referred to psychiatry. She does not want to follow
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through with psychiatry or discuss mood disorder.” T. 709. Thus, substantial evidence
accordingly supports the ALJ’s conclusion that Dr. Brown’s opinion lacked supportability. See,
e.g., Krystle H. v. Comm’r of Soc. Sec., No. 3:20-CV-855(TWD), 2022 WL 888225, at *6
(N.D.N.Y. Mar. 25, 2022) (concluding substantial evidence supported the ALJ’s conclusion that
a medical opinion was unpersuasive where it lacked a supporting explanation and citations to
objective medical evidence).
b. 	Consistency
Dr. Brown’s opinion is also inconsistent with evidence from other medical sources and
nonmedical sources in the record. T. 774-76; see also 20 C.F.R. §§ 404.1520c(c)(2),
416.920c(c)(2). In evaluating this aspect of Dr. Brown’s opinion under the consistency factor,
the ALJ concluded it was inconsistent with the opinion of A. Saeed, M.D., A. Vinluan, M.D.,
and Elke Lorensen, M.D. T. 23. The ALJ found these other opinions to be “highly persuasive”
because they were supported by a detailed narrative rationale which cited supporting objective
medical evidence and other evidence from the underlying record. T. 22.
“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., No. 20 CIV.
6222 (SLC), 2022 WL 951049, at *5 (S.D.N.Y. Mar. 30, 2022). “The 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. § 416.920c(c)(2). None of the physicians
diagnosed Plaintiff with any condition or made any medical findings that would support the
highly restrictive limitations opined by Dr. Brown. See T. 54-60, 71-77, 656-60.
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Dr. Lorensen’s exam of Plaintiff revealed a normal gait and stance. T. 657. She did not
use an assistive device; she could walk on heels and toes without difficulty; her squat was 40%
of full; she did not need help changing for the exam or getting on and off the exam table; and she
was able to rise from chair without difficulty. Id. She had a normocephalic head and supple
neck. T. 658. She exhibited full flexion and extension of her cervical spine and full lateral
flexion bilaterally. Id. While she had a reduced range of motion in lumbar flexion, extension
and lateral flexion, straight leg raises were negative bilaterally. Id. She presented with full range
of motion in the elbows, forearms, wrists, fingers and ankles bilaterally. Id. Her joints were
stable and nontender, and strength was equal and full in both upper and lower extremities. Id.
No muscle atrophy was present in her extremities and her hand and finger dexterity were intact
with full and equal grip strength bilaterally. T. 659.
Dr. Lorensen ultimately opined that Plaintiff had “no gross limitations for sitting,
standing, walking, and using the hands. Moderate limitations for bending, lifting, carrying,
pushing, pulling, and overhead reaching.” T. 659. Dr. Brown’s proposed limitations are
accordingly inconsistent with the opinion of Dr. Lorensen, and the opinions of Drs. Saeed and
Vinluan, whose opinions largely comport with Dr. Lorensen’s opinion as noted by the ALJ; and
Dr. Brown’s limitations are inconsistent with Dr. Lorensen’s exam of Plaintiff. Compare T. 54-
60, 71-77, 656-60, with T.774-76; see generally 20 C.F.R. § 416.920c(c)(2). Thus, substantial
evidence supports the ALJ’s evaluation of Dr. Brown’s opinion since her opinion was clearly
inconsistent with the record as a whole.
In sum, Plaintiff’s challenge to the ALJ’s review of Dr. Brown’s opinion is without merit
since the opinion is not supported by the treatment records of Dr. Brown and the records of
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others in her practice group, and the opinion is inconsistent with the overall record. Accordingly,
there is no error in the ALJ’s evaluation of Dr. Brown’s opinion.
2. 	The ALJ properly accounted for Plaintiff’s limitations within the
RFC
Plaintiff further argues the ALJ “failed to explain why he did not include any mental
limitations whatsoever in the RFC, despite himself finding Plaintiff mildly limited in all four
domains.” Dkt. No. 10 at 14. In making his RFC determination, the ALJ discussed at length the
evidence regarding Plaintiff’s mental health impairments. T. 18-22. The ALJ found Plaintiff to
have mild limitations in all four paragraph B categories noting in the first broad area of
functioning:
claimant alleges that she has difficulty remembering information
and completing tasks. 	However, the claimant states that she can
prepare meals, pay bills, shop, drive, read, and play games. 	In
addition, the record shows that the claimant has been able to provide
information about her health, describe her prior work history, and
respond 	to 	questions 	from 	examining 	doctors. 	State agency
psychological consultant M. D’Ortona, Psy.D. concluded that the
claimant has no limitations in understanding, remembering, or
applying information, while State agency psychological consultant
O. Fassler, Ph.D. concluded that the claimant has mild limitations in
understanding, 	remembering, 	or 	applying 	information. 	Dante
Alexander, Psy.D., a consultative examining psychologist, found no
evidence of limitation in the claimant’s ability to understand,
remember, or apply simple or complex directions and instructions,
and no evidence of limitation in the claimant’s ability to use reason
and judgment to make work-related decisions.
T. 18 (internal citations omitted). In the second broad area of functioning, interacting with
others, the ALJ noted:
[a]ccording to her statements, the claimant is able to get along with
others, 	shop, 	spend 	time 	with 	friends 	and 	family, 	and 	deal
appropriately with authority. The medical evidence shows that the
claimant has been described as pleasant and cooperative. 	Dr.
D’Ortona 	concluded 	that 	the 	claimant 	has 	mild 	limitations
interacting with others, while Dr. Fassler concluded that claimant
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has no limitations interacting with others. Dr. Alexander found no
evidence of limitation in the claimant’s ability to interact adequately
with supervisors, coworkers, and the public.
T. 19 (internal citations omitted). In the next functional areas of Plaintiff’s ability to concentrate,
persist, or maintain pace, the ALJ noted:
[t]he claimant contends that she has limitations in concentrating and
maintaining a regular work schedule. 	On the other hand, the
claimant also said that she is able to drive, prepare meals, watch
television, read, play games, manage funds, and use the internet.
These activities require the ability to concentrate, persist, and/or
maintain pace. As noted above, the claimant currently is employed
on a part-time basis as a tax preparer, which is a job that requires
attention to detail. Dr. D’Ortona concluded that the claimant has no
limitations in her ability to concentrate, persist, or maintain pace.
Dr. Fassler found that the claimant has mild limitations in this area.
Dr. Alexander found no evidence of limitations in the claimant’s
ability to sustain concentration and perform a task a[t] a consistent
pace, and no evidence of limitation in her ability to sustain an
ordinary routine and regular attendance at work.
Id. (internal citations omitted). Finally, in the domain of Plaintiff’s ability to adapt or manage
herself, the ALJ noted:
[t]he claimant asserted that she has difficulties handling change and
managing her mood. That said the claimant also stated that she is
able to handle self-care and personal hygiene tasks, care for pets,
and care for children. 	Medical records state that the claimant
appears to have appropriate grooming and hygiene and has a normal
mood and affect. Dr. D’Ortona concluded that the claimant has mild
limitations adapting and managing herself, and Dr. Fassler also
found that the claimant has mild limitations adapting and managing
herself. 	Dr. Alexander found no evidence of limitation in the
claimant’s ability to regulate her emotions, control her behavior, and
maintain her well-being, no evidence of limitation in her ability to
maintain personal hygiene and appropriate attire, and no evidence
of limitation in her awareness of normal hazards and ability to take
appropriate precautions.
Id. (internal citations omitted). The ALJ then explicitly considered whether Plaintiff’s mental
health impairments would cause her to have limitations in work-related mental activities and
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found that they would not. T. 19. As detailed above, the medical opinions of record regarding
Plaintiff’s mental impairments support the ALJ’s conclusion.
Plaintiff apparently argues that having found mild limitations in all four of the functional
areas at step two, the ALJ was required to incorporate some form of limitation in work-related
mental functioning into the RFC. Dkt. No. 10 at 15. However, “when substantial evidence in
the record supports only mild limitations in mental functioning, and ALJ is not required to
include mental limitations or restrictions in the RFC.” Julia M. v. Comm’r of Soc. Sec., No. 21-
CV-00972, 2023 WL 7002557, at *3 (W.D.N.Y. Oct. 24, 2023) (collecting cases). Here, the
ALJ’s determination was supported by substantial evidence—namely, the medical opinions of
Drs. D’Ortona, Fassler and Alexander, which were uncontradicted by any other medical opinion.
“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.” Id.
Ultimately, it was Plaintiff’s burden to prove a more restrictive RFC than found by the
ALJ. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018). The ALJ reasonably
concluded that Plaintiff has not done so, thus remand is not warranted on these grounds.
B. 	The ALJ Failed to Resolve the Conflict Between the VE Testimony and the
Dictionary of Occupational Titles
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
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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) (quoting SSR 00-4p, 2000 WL 1898704 (SSA 2000) (alteration in original)). 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).
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. Commissioner, 914 F.3d 87, 92 (2d Cir.
2018); see also Brault v. Commissioner, 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 a number of occupations requiring occasional or frequent reaching
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under the DOT. 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 restriction of
being “unable to reach overhead” could perform Plaintiff’s past relevant work of a tax preparer.
T. 41. According to the DOT, this occupation requires “frequent” reaching. See Dictionary of
Occupational Titles 219.362-070, 1991 WL 671965. The VE testified her analysis of the
occupation was consistent with the DOT and its companion publications other than the issue of
overhead reaching, off task, and absence tolerance. T. 41-42. The VE stated “I’m certainly
relying on my experience only with regard to overhead reaching. It’s not specifically discerned
in the DOT or the SCO but, yes, the RFC would allow for performance of the tax preparer.” T.
41.
Plaintiff argues “the VE’s statement that she relied only on her experience” as the
explanation for “the issue of consistency with the DOT” and the VE’s testimony was
insufficient. Dkt. No. 10 at 8. The Court agrees. While the VE identified the conflict, she did
not explain how the occupation 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 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 the “court concluded that it was perfectly
reasonable for the ALJ to rely on the VE’s testimony instead of the information contained in the
DOT.” Dkt. No. 11 at 9, quoting Peter W., 2022 WL 523744, at *11 (“The conflict was
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identified and described by the VE regarding the reaching issue, and she provided a plausible
explanation.”) (internal 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 [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 decreased range of motion in both of Plaintiff’s shoulders. T. 20, 55, 72.
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 [p]laintiff’s RFC could perform the representative occupation.” Id. Here “[t]he
VE offered no indication that [s]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 [s]he relied on h[er] experience does not specifically
address the conflict. Nor did the ALJ adequately address the conflict and resolve why the job[]
would not require greater overhead reaching.” Id. “The fact that the VE’s opinion was based on
h[er] own ‘knowledge and experience’ does not resolve the conflict.” Id. (citing Lockwood., 914
F.3d 87 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 job. 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
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‘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. (citations and alterations
omitted). 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 job other than to rely on her
experience, T. 41-42, 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, and that conflict was not sufficiently
resolved. Upon remand, the Commissioner should obtain an explanation from a VE concerning
this apparent conflict given Plaintiff’s inability to reach overhead, and/or obtain opinion
evidence from the VE about other jobs, if any, Plaintiff can do with her limitations.
VII. 	CONCLUSION
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10)
be GRANTED; and it is further
RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
11) be DENIED; and it is further
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
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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: January 12, 2026
Syracuse, New York
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