Powless v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MONICA P.,
Plaintiff,
5:25-CV-70
v. 	(DJS)
FRANK BISIGNANO, Commissioner
of Social Security,
Defendant.
____________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
Attorney for Plaintiff
250 South Clinton Street, Suite 210
Syracuse, NY 13202
U.S. SOCIAL SECURITY ADMIN. 	KRISTINA D. COHN, ESQ.
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER1
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a
decision by the Commissioner of Social Security that Plaintiff was not disabled. 	Dkt.
1 Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this
District’s General Order, this matter has been referred to the undersigned to exercise full
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No. 1. Currently before the Court are Plaintiff’s Motion for Judgment on the Pleadings
and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 11, 13, & 14. For
the reasons set forth below, Plaintiff’s Motion for Judgment on the Pleadings is denied
and Defendant’s Motion for Judgment on the Pleadings is granted.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1982. Dkt. No. 6, Admin. Tr. (“Tr.”) at p. 313. She has at
least a high school education. 	Tr. at p. 341. 	She has not worked since December 1,
2021. 	Tr. at p. 340. 	She has past work experience as a hair cutter and a home health
aide. 	Tr. at p. 341. 	Plaintiff alleges disability based on severe depression manic,
arthritis, fibromyalgia, irritable bowel syndrome, Raynaud’s disease, long COVID, high
blood pressure, and cholesterol. Tr. at p. 340.
B. Procedural History
Plaintiff applied for supplemental security income and disability insurance
benefits on January 18, 2022. 	Tr. at p. 66. 	She alleged a disability onset date of
December 1, 2021. Id. 	Plaintiff’s applications were initially denied on July 20, 2022.
Tr. at pp. 146-165. Reconsideration was denied on November 18, 2022, Tr. at pp. 168-
193, after which Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). Tr. at pp. 196-97. Plaintiff appeared at a hearing before ALJ Bruce S. Fein on
jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Dkt. No. 4
& General Order 18.
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April 16, 2024, at which Plaintiff and a vocational expert (“VE”) testified. 	Tr. at pp.
34-60. On April 24, 2024, the ALJ issued a written decision finding Plaintiff was not
disabled. 	Tr. at pp. 15-28. 	On December 10, 2024, the Appeals Council denied
Plaintiff’s request for review, thereby making the ALJ’s decision the final decision of
the Commissioner. Tr. at pp. 1-6.
C. The ALJ’s Decision
In his decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff met the insured status requirements of the Social
Security Act through March 31, 2026. Tr. at p. 17. Second, the ALJ found that Plaintiff
had not engaged in substantial gainful activity since December 1, 2021, the alleged onset
date. Id. Third, the ALJ determined that Plaintiff had the following severe impairments:
cervical and lumbar degenerative disc disease, right rotator cuff tear, obesity, post-
traumatic stress disorder, major depressive disorder, and generalized anxiety disorder.
Tr. at p. 18. 	Fourth, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. § 404, Subpart P, App. 1. Tr. at p. 19. Fifth, the ALJ
found that Plaintiff has the residual functional capacity to perform sedentary work
except that she:
can occasionally climb ramps or stairs, never climb ropes, ladders or
scaffolds. [Plaintiff] can occasionally balance, stoop, kneel, crouch or
crawl. [Plaintiff] can frequently reach with the right upper extremity. She
should avoid concentrated exposure to extreme cold and pulmonary
irritants such as fumes, odors, gases, dust, poorly ventilated areas.
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[Plaintiff] is limited to work in a low stress job defined as only occasional
decision making, changes in the work setting and judgment required on
the job.
Tr. at p. 21. Sixth, the ALJ found that Plaintiff is unable to perform any past relevant
work. 	Tr. at p. 26. 	Next, the ALJ found that transferability of job skills was “not
material to the determination of disability because using the Medical-Vocational Rules
as a framework supports a finding that the [Plaintiff] is ‘not disabled,’ whether or not
the [Plaintiff] has transferable job skills.” Id. The ALJ then determined that, based on
Plaintiff’s age, education, work experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform.
Tr. at pp. 26-27. The ALJ, therefore, concluded that Plaintiff is not disabled. Tr. at p.
27.
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 	42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). 	Rather, the Commissioner’s
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. 	See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
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the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). 	“Substantial evidence” is evidence that
amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that
the court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” 	Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
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B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. 	The Supreme Court has recognized the validity of this sequential
evaluation process. 	Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). 	The five-step
process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. 	If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry is
whether, 	based 	solely 	on 	medical 	evidence, 	the 	claimant 	has 	an
impairment which is listed in Appendix 1 of the regulations. 	If the
claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe impairment, he
has the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Under the cases previously discussed, the claimant bears the burden of the
proof as to the first four steps, while the [Commissioner] must prove the
final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).
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III. ANALYSIS
Plaintiff raises three claims of error for review in this proceeding. First, Plaintiff
argues that the ALJ improperly evaluated the opinion of treating source Digant
Nanavati, M.D. (“Dr. Nanavati”), because the ALJ “failed to adequately explain his
consideration of the factors of supportability and consistency in his rationale for finding
the physical restrictions which Dr. Nanavati assessed to be unpersuasive.” Dkt. No. 11,
Pl.’s Mem. of Law at pp. 6-11. Second, Plaintiff asserts that “[t]he RFC failed to account
for moderate mental limitations adopted at step three in the sequential evaluation
process, and the ALJ offered no explan[a]tion for the discrepancy.” 	Id. at pp. 12-14.
Third, Plaintiff claims that, “[e]ven if the RFC were found to be adequate, the jobs cited
by the ALJ in this case do not exist in significant numbers.” Id. at pp. 14-19. Defendant
responds that the ALJ’s decision is supported by substantial evidence and should be
affirmed. Dkt. No. 13, Def.’s Mem. of Law at pp. 4-16.
A. Mental Limitations
Plaintiff argues that the ALJ failed to explain a discrepancy between his finding
of limitations at Step Three and the mental restrictions included in the RFC at Step Four,
which Plaintiff claims fail to properly account for these limitations. Pl.’s Mem. of Law
at pp. 12-14. Plaintiff’s claims of error are not a basis for remand.
Here, a review of the ALJ’s decision reveals that, at Step Three, the ALJ found
that Plaintiff has “moderate limitations” in her “ability to concentrate, persist, or
maintain pace.” Tr. at p. 20. The ALJ further noted that, while Plaintiff “contended that
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she has limitations in concentrating generally and focusing generally,” she also “said
that she is able to drive, prepare meals, and manage funds.” Id. Thereafter, at Step Four,
in considering Plaintiff’s RFC, the ALJ determined that Plaintiff “is limited to work in
a low stress job defined as only occasional decision making, changes in the work setting,
and judgment required on the job.” Tr. at p. 21.
Despite Plaintiff’s arguments to the contrary, there is no discrepancy between the
ALJ’s finding of moderate limitations at Step Three and the mental restrictions set by
the ALJ at Step Four because determinations at Step Three and Step Four “require
distinct analysis.” 	Richard B. v. Comm’r of Soc. Sec., 2021 WL 4316908, at *6
(W.D.N.Y. Sept. 23, 2021) (citation omitted). 	While the analysis at Step Three
“concerns the functional effects of mental impairments, the RFC analysis at [S]tep
[F]our specifically considers work-related physical and mental activities in a work
setting.” 	Id. (quotation omitted) (emphasis in original). 	“As a result, a finding
at [S]tep[] . . . [T]hree does not automatically translate to an identical finding at [S]tep
[F]our,” and thus a Step Three finding of a moderate limitation does not control at the
Step Four RFC determination. Id. (quotation omitted).
For example, in Pidgeon v. Comm’r of Soc. Sec., the plaintiff argued “that the
ALJ was required to expressly include the moderate limitations (in concentration,
persistence and pace) identified at Step 3 in the RFC determination,” but the court found
that this argument “lack[ed] merit because the ALJ’s findings at [S]tep 3 of the
sequential analysis are not an RFC determination” and it is not “necessarily error for an
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ALJ not to include findings made at Step 3 in the RFC.” 2017 WL 4680412 (W.D.N.Y.
Oct. 18, 2017).
In any event, Plaintiff’s argument fails for two additional reasons. First, Plaintiff
assumes—without 	explanation—that 	adoption 	of 	a 	moderate 	restriction 	in
concentration, persistence, and pace would have impacted the outcome of the ALJ’s
decision, Pl.’s Mem. of Law at p. 14, but “moderate mental limitations do not necessarily
indicate disabling functional restrictions that would prevent a claimant from performing
the basic mental demands required for unskilled work.” 	Crumedy v. Comm’r of Soc.
Sec., 2017 WL 4480184, at *5 (N.D.N.Y. Oct. 6, 2017) (citations omitted).
Additionally, the ALJ’s mental RFC finding is supported by substantial evidence.
Dennis Noia, Ph.D., observed that Plaintiff’s memory, attention, and concentration were
intact, Tr. at pp. 24 & 477, and concluded that Plaintiff had no limitations sustaining
concentration and performing a task at a consistent pace. Tr. at pp. 25 & 478. C. Walker,
Ph.D., and Y. Sherer, Psy.D., also found that Plaintiff’s memory, attention, and
concentration were intact and concluded that Plaintiff’s mental health impairments were
non-severe. Tr. at pp. 25, 75, 91, 110-11, & 128-29. Dr. Nanavati observed that Plaintiff
was alert, oriented, and had a normal mood. Tr. at pp. 468 & 472. Other records indicate
that Plaintiff’s judgment, insight, and memory were normal. 	Tr. at pp. 24, 424, 428,
712, 716, 718, 721, & 737. 	While Plaintiff “contended that she has limitations in
concentrating generally and focusing generally,” Tr. at p. 20, Plaintiff, at times, reported
that she could concentrate fully with only “slight difficulty.” Tr. at pp. 804 & 846.
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Accordingly, Plaintiff has not pointed to any error in the ALJ’s analysis at Steps
Three and Four warranting remand.
B. Opinion of Digant Nanavati, M.D.
Plaintiff also argues that the ALJ improperly evaluated the opinion of Dr.
Nanavati. Pl.’s Mem. of Law at pp. 6-11. Plaintiff further asserts that, as a result, the
RFC determination in this case lacks substantial evidentiary support. 	Id. at p. 7. 	The
Court disagrees.
The ALJ recounted Dr. Nanavati’s statements that Plaintiff: in an eight-hour
workday, could stand or walk less than two hours and can sit about two hours; could
never lift and carry less than ten pounds; can rarely twist or climb; could never stoop or
squat; and would be absent from work more than four days each month and off task
more than twenty percent of the time. Tr. at p. 25; but see also Tr. at p. 875 (medical
source statement prepared by Dr. Nanavati stating that Plaintiff could “never” and
“rarely” lift and carry less than ten pounds in a competitive work situation, meaning that
Plaintiff could lift and carry less than ten pounds between one percent to thirty-three
percent of an eight-hour workday). 	Initially, the ALJ recognized that, as Plaintiff’s
healthcare provider, Dr. Nanavati is “in a unique position to understand [Plaintiff’s]
impairments and resultant limitations.” Tr. at pp. 25-26. Nevertheless, the ALJ found
Dr. Nanavati’s opinion not persuasive because, according to the ALJ, it was not
supported by objective evidence and was not consistent with the other opinions of
record. 	Id. 	The ALJ further explained that Dr. Nanavati’s “own reports fail to reveal
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the type of significant clinical and laboratory abnormalities one would expect with the
noted level of impairment.” Tr. at p. 26.
On review, the Court notes that, “under the Social Security Administration’s
latest regulations, which apply because [Plaintiff] filed her claim for benefits after
March 27, 2017, no special deference is given to the opinion of the treating physician.”
Tibbles v. Comm’r of Soc. Sec., 2023 WL 3477127, at *2 (2d Cir. May 16, 2023)
(citation omitted). Instead, ALJs are “to consider the submitted medical opinions based
on several factors set forth in the regulations and to explain how the two most important
factors – supportability and consistency – applied to each opinion.” 	Rushford v.
Kijakazi, 2023 WL 8946622, at *1 (2d Cir. Dec. 28, 2023) (quotations omitted).
Here, the ALJ’s rationale in finding Dr. Nanavati’s opinion not supported by
objective evidence and not consistent with other opinions of record is sufficiently
explained earlier in the decision during the ALJ’s discussion of other records and
opinions. Nicole A.W. o/b/o K.A.H. v. Comm’r of Soc. Sec., 2024 WL 5400278, at *7-8
(N.D.N.Y. Nov. 19, 2024), report and recommendation adopted sub nom. Nicole W. on
behalf of K.A.H. v. Comm’r of Soc. Sec., 2025 WL 368791 (N.D.N.Y. Feb. 3, 2025)
(citing cases).
First, with regard to Plaintiff’s ability to stand, walk, and sit, the ALJ stated in
his 	decision 	that, 	during 	a 	December 	2022 	orthopedic 	appointment, 	a 	physical
examination of Plaintiff “showed that she transitioned from sitting to standing, and
walked with a non-antalgic gait.” Tr. at pp. 23, 585, & 660; see also Tr. at pp. 592 &
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663 (same as to Plaintiff’s November 2022 orthopedic appointment); Tr. at pp. 669
(same as to Plaintiff’s June 2022 medical records). The ALJ also noted that T. Schmidt-
Deyoung, M.D. (“Dr. Schmidt-Deyoung”), opined that Plaintiff could stand and walk
up to four hours, Tr. at pp. 24-25, and Elke Lorensen, M.D. (“Dr. Lorensen”), opined
that “there were no gross limitations for sitting, standing, walking, and using the hands.”
Tr. at pp. 25 & 484. 	The ALJ further discussed Dr. Lorensen’s findings during her
physical examination of Plaintiff in July 2022, which “showed a normal gait without the
use of an assistive device,” and revealed that Plaintiff’s “strength was 5/5 in the upper
and lower extremities” and “[h]er straight leg raise testing was negative bilaterally.” Tr.
at p. 23.
In any event, the RFC properly accounts for any limitations in Plaintiff’s ability
to stand and walk. 	Tr. at p. 21. 	Dr. Nanavati opined that, in an eight-hour workday,
Plaintiff could stand or walk less than two hours. Tr. at p. 25. The RFC restricts Plaintiff
to sedentary work. Tr. at p. 21. “Jobs are sedentary if walking and standing are required
occasionally,” 20 C.F.R. § 404.1567(a), which means that walking and standing occur
“from very little up to one-third of the time,” and would “generally total no more than
about 2 hours of an 8-hour workday.” SSR 83-10. As such, the restrictions that the ALJ
set in determining Plaintiff’s RFC incorporate the limitations in standing and walking
cited by Dr. Nanavati. Tr. at pp. 21 & 25.
Second, with regard to Plaintiff’s ability to lift, Dr. Nanavati’s medical source
statement opines that Plaintiff could “never” and “rarely” lift and carry less than ten
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pounds in a competitive work situation, which, according to the instructions contained
in the medical source statement, means that Plaintiff could lift and carry less than ten
pounds between one percent to thirty-three percent of an eight-hour workday. Tr. at p.
875. 	This finding is contradicted by Dr. Lorensen’s conclusion that Plaintiff had
moderate limitations for lifting, which the ALJ noted in his opinion. 	Tr. at p. 25. 	By
comparison, “[m]edium, or moderate, work activity involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”
Martell v. Apfel, 2000 WL 567012, at *6 (S.D.N.Y. May 9, 2000) (quoting 20 C.F.R. §
416.967(c)). 	The RFC’s restriction to sedentary work thereby accounts for any
limitations in Plaintiff’s ability to lift because sedentary work is defined “as involving
lifting no more than [ten] pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.” SSR 83-10.
In addition, the aforementioned restrictions contained in the RFC are also
supported by the findings of M. Perrotti, M.D. (“Dr. Perrotti”) and Dr. Schmidt-
Deyoung, which the ALJ found somewhat persuasive. Tr. at p. 25. Dr. Perrotti opined
that Plaintiff could stand and/or walk about six hours in an eight-hour workday and
could sit more than six hours in an eight-hour workday. Tr. at pp. 77-78. Dr. Perrotti
also opined that Plaintiff could occasionally lift and/or carry fifty pounds and could
frequently lift and/or carry twenty-five pounds. Id. Dr. Schmidt-Deyoung opined that
Plaintiff could stand/or walk about four hours in an eight-hour workday and could sit
more than six hours in an eight-hour workday. 	Tr. at pp. 113 & 131. 	Dr. Schmidt-
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Deyoung also opined that Plaintiff could occasionally lift and/or carry twenty pounds
and could frequently lift and/or carry ten pounds. Id.
Third, 	as 	for 	Plaintiff’s 	postural 	limitations, 	including 	twisting, 	climbing,
stooping, and squatting, the ALJ determined that Plaintiff had the RFC to occasionally
do such activities, but could never climb ropes, ladders, or scaffolds. Tr. at p. 21. This
is consistent with the findings of Dr. Perrotti and Dr. Schmidt-Deyoung discussed by
the ALJ in his opinion. 	Tr. at pp. 24-25. 	More specifically, the ALJ noted that Dr.
Perrotti 	had 	opined 	that 	Plaintiff 	“is 	able 	to . . . climb[] 	ramps 	and
stairs . . . occasionally” and that Plaintiff “should never climb ladders, ropes, and
scaffolds. 	Tr. at p. 24. 	Similarly, the ALJ noted that Dr. Schmidt-Deyoung had
concluded that Plaintiff would be able to perform postural activities occasionally. 	Tr.
at pp. 24-25. In addition, this portion of the RFC is supported by the ALJ’s discussion
of Dr. Lorensen’s physical examination of Plaintiff, during which Dr. Lorensen
observed that Plaintiff’s squat was “40% of full.” Tr. at pp. 23 & 482.
Fourth, with regard to Plaintiff’s absence from work and time off task, as
previously explained, the ALJ’s mental RFC finding is supported by substantial
evidence. See supra at p. 9.
Finally, while Plaintiff takes issue with the fact that the ALJ stated that Dr.
Nanavati’s “own reports fail to reveal the type of significant clinical and laboratory
abnormalities one would expect with the noted level of impairment,” Tr. at p. 26, as
Defendant correctly points out, “Dr. Nanavati’s extreme limitations were unsupported
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by his own findings, which showed that Plaintiff had only moderate tenderness in the
cervical spine but normal neurological findings and intact gait along with no signs of
acute distress.” Def.’s Mem. of Law at p. 9 (citing Tr. at pp. 598, 602, 618-19, 637, 644,
648, & 655).
Accordingly, 	substantial 	evidence 	supports 	the 	ALJ’s 	conclusion 	that 	Dr.
Nanavati’s opinion was not supported by objective evidence and was not consistent with
other opinions of record, as well as the ALJ’s RFC determination.
C. Numerosity of Jobs
Finally, Plaintiff argues that, even assuming, arguendo, that the RFC was
adequate, the jobs cited by the ALJ do not exist in significant numbers. Pl.’s Mem. of
Law at pp. 14-19. This argument is without merit.
Here, at Step Five of the sequential analysis, the ALJ relied on the testimony of
the VE in determining whether jobs exist in significant numbers in the national economy
that Plaintiff can perform. Tr. at pp. 26-27. Upon the ALJ’s inquiry, the VE affirmed
that: he is familiar with jobs that exist in the national economy; his testimony would be
based on his knowledge, education, training, and experience; and his testimony would
be consistent with the Dictionary of Occupational Titles, unless he stated otherwise. Tr.
at pp. 54-55. In considering Plaintiff’s residual functional capacity, the VE testified that
Plaintiff could perform the sedentary jobs of electronics inspector, optical goods
polisher, and print machine tender. Tr. at pp. 27 & 56-57. The VE further stated that
there are 16,000 electronics inspector jobs, 14,000 optical goods polisher jobs, and
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11,000 print machine tender jobs in the national economy. 	Id. 	Based on this
information, the ALJ concluded that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. Id.
Plaintiff argues, however, that “the number of jobs offered by the [VE] are
outdated and inaccurate.” 	Pl.’s Mem. of Law at p. 15. 	In support of this argument,
Plaintiff claims that, according to SkillTRAN’s Job Browser Pro, at the time of the
hearing in 2024, there were only 1,220 electronics inspector jobs, 1,018 optical goods
polisher jobs, and 198 print machine tender jobs, for a total of only 2,436 jobs. 	Id. at
pp. 15-16. 	Plaintiff claims that this total “falls well below the standard that has been
recognized in practice in this jurisdiction to be a significant number of jobs.” Id. at 19.
The argument that the Dictionary of Occupational Titles (“DOT”) is outdated and
unreliable has been consistently rejected by courts in this Circuit. See Angela Lynn H.
v. Comm’r of Soc. Sec., 2025 WL 1369400, at *7 (S.D.N.Y. May 9, 2025) (citing cases);
Spencer D.B. v. Comm'r of Soc. Sec., 2024 WL 4665803, at *9 (S.D.N.Y. Nov. 4, 2024)
(citing cases). 	“20 C.F.R. §§ 404.1566(d), 416.966(d) take administrative notice that
the DOT is a reliable source of information on jobs existing in the national economy.”
Parry v. Comm’r of Soc. Sec. Admin., 2021 WL 7711082, at *6 (S.D.N.Y. Dec. 1, 2021),
report and recommendation adopted, 2022 WL 922732 (S.D.N.Y. Mar. 29, 2022).
Additionally, courts have found that “the ALJ is entitled to give credit to the
[VE’s] testimony.” Oliveras v. Comm’r of Soc. Sec. Admin., 2025 WL 563910, at *11
(E.D.N.Y. Feb. 20, 2025). 	This is so even where the VE’s numbers conflict with
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counsel’s job data research, Pamela M. H. v. Comm’r of Soc. Sec., 2024 WL 1468906,
at *8 (N.D.N.Y. Feb. 22, 2024), report and recommendation adopted, 2024 WL
1131043 (N.D.N.Y. Mar. 15, 2024); Poole v. Saul, 462 F. Supp. 3d 137, 165 (D. Conn.
2020), and particularly where, as here, “Plaintiff . . . failed to challenge the vocational
expert’s numbers at the hearing.” Glessing v. Comm’r of Soc. Sec., 2021 WL 1390640,
at *12 (E.D.N.Y. Apr. 13, 2021), aff’d, 2022 WL 457243 (2d Cir. Feb. 15, 2022)
(citation omitted). “[A] vocational expert’s testimony may count as substantial evidence
even when unaccompanied by supporting data.” 	Id. (quoting Biestek v. Berryhill, 139
S. Ct. 1148, 1155 (2019)); see also Pamela M. H. v. Comm’r of Soc. Sec., 2024 WL
1468906, at *6 (citations and quotations omitted) (explaining that “the ALJ need not
inquire into the vocational expert’s precise methodology” and that the “VE was not
required to identify with specificity the figures or sources supporting his conclusion”).
As such, here, the ALJ reasonably credited the VE’s testimony, “which was given on
the basis of the expert’s professional experience and clinical judgment, and which was
not undermined by any evidence on the record.” McIntyre v. Colvin, 758 F.3d 146, 152
(2d Cir. 2014); see Michael H. v. Comm’r of Soc. Sec., 2022 WL 768658, at *15
(W.D.N.Y. Mar. 14, 2022).
Accordingly, the ALJ’s determination that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform, Tr. at pp. 26-27, is
supported by substantial evidence.
Case 5:25-cv-00070-DJS Document 15 Filed 02/10/26 Page 17 of 18

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IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings is DENIED;
and it is further
ORDERED, 	that 	Defendant’s 	Motion 	for 	Judgment 	on 	the 	Pleadings 	is
GRANTED; and it is further
ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED and the Complaint is DISMISSED; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.
Dated: February 10, 2026
Albany, New York
Case 5:25-cv-00070-DJS Document 15 Filed 02/10/26 Page 18 of 18