Lee v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MONIQUE L.,
Plaintiff,
v. 	5:25-CV-00167 (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 	HUGH DUN RAPPAPORT, 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. 13, 17. Plaintiff filed a reply brief which simply relied on her original arguments and
authority as set forth in her primary brief. Dkt. No. 18. Oral argument was not heard. For the
reasons that follow, the Court recommends Plaintiff’s motion be granted, Defendant’s motion be
denied, and the Commissioner’s decision be reversed and remanded.
II. 	BACKGROUND
Plaintiff was born in 1962. T. 229.1 Plaintiff protectively filed a Title XVI application
for Supplemental Security Income alleging disability beginning January 1, 2020, due to
depression, anxiety, “chronic pain syndrome (pinch nerve in neck left arm),” arthritis left arm,
right arm injury, and gall stones. T. 229-35, 298.
Plaintiff’s initial claim was administratively denied on October 26, 2022, and again on
reconsideration on February 22, 2023. T. 66, 67, 68, 76.2 A hearing was conducted on February
29, 2024, before Administrative Law Judge (“ALJ”) Gretchen Greisler. T. 32-50. The ALJ
heard the testimony of the Plaintiff and Vocational Expert (“VE”) Mary Vasishth. Id. On May
8, 2024, ALJ Greisler issued an unfavorable decision, which became the final decision of the
Commission when the Appeals Council denied Plaintiff’s request for review on December 18,
2024. T. 15-26, 1-6. Plaintiff commenced this action on February 6, 2025. Dkt. No. 1.
1 The Administrative Record/Transcript is found at Dkt. No. 9. 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.
2 The Court notes the ALJ and both parties state Plaintiff’s claim was initially denied on October
31, 2022, and upon reconsideration March 10, 2023. T. 15; Dkt. Nos. 13 at 1, 17 at 2. After a
review of the record the Court finds the initial claim was denied on October 26, 2022, and upon
reconsideration February 22, 2023. T. 66, 67, 68, 76.
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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).
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).
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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“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.
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IV. 	THE ALJ’S DECISION
In applying the five-step disability sequential evaluation, the ALJ determined Plaintiff
has not engaged in substantial gainful activity since March 30, 2022, the application date. T. 17.
At step two, the ALJ found Plaintiff has severe impairments of cervical spine disorder, left
shoulder disorder, right upper extremity ulna neuropathy, and carpal tunnel syndrome. Id. At
step three, the ALJ determined Plaintiff did not have an impairment or combination of
impairments that met or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. T. 21. Before reaching step four, the ALJ concluded
Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, “except she
can occasionally stoop, balance, crouch, crawl, kneel, and climb stairs and ramps, but cannot
climb ladders, ropes or scaffolds or work at unprotected heights. She cannot reach overhead
bilaterally, but can frequently reach in other directions bilaterally. She can frequently handle,
finger, and feel.” Id.
In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and the
extent to which those symptoms could “reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on requirements of 20 C.F.R. § 416.929 and [Social
Security Ruling] 16-3p.” Id. The ALJ further stated she considered medical opinions and prior
administrative medical findings pursuant to 20 C.F.R. § 416.920c. Id. The ALJ found Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, “however, the claimant’s statements concerning the intensity, persistence and
limiting effect of these symptoms are not entirely consistent with the medical evidence and other
evidence in the record[.]” T. 22. Proceeding to step four of the sequential evaluation, the ALJ
determined Plaintiff is able to perform her past relevant work as a receptionist. T. 25. The ALJ
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did not make and alternative step five finding, and concluded Plaintiff was not under a disability
since March 30, 2022, the date the application was filed. T. 25.
V. 	CONTENTIONS
Plaintiff contends “[t]he RFC is unsupported by substantial evidence because the
vocational expert’s testimony conflicted with the information in the Dictionary of Occupational
Titles and the ALJ did not properly identify or resolve this conflict.” Dkt. No. 13 at 7, see also
7-11. Defendant counters “Plaintiff cannot sustain her burden of establishing that the ALJ
committed any reversible error when she relied on the VE’s testimony that Plaintiff could return
to her past work.” Dkt. No. 17 at 3.
VI. 	THE ALJ FAILED TO RESOLVE THE CONFLICT BETWEEN THE VE
TESTIMONY AND THE DICTIONARY OF OCCUPATIONAL TITLES (“DOT”)
An ALJ may engage a vocational expert to opine on the jobs a hypothetical person of the
claimant’s age, education, and RFC could perform in the national economy. 20 C.F.R. §
404.1560(b)(2) (“a vocational expert . . . may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairments can meet the demands of the claimant’s previous work”).
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 (S.S.A. 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.
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23, 2016) (alteration in original) (quoting SSR 00-4p, 2000 WL 1898704). 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.”).4 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
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 restrictions that
she “cannot reach overhead bilaterally, but can frequently reach in other directions bilaterally,”
could perform the representative tasks of a receptionist as generally performed. T. 45-46.
According to the DOT, the receptionist occupation required “frequent” reaching. See Dictionary
of Occupational Titles 237.367-038, 1991 WL 672192. The VE stated her testimony was
consistent with the DOT and the Standard Occupational Classification system other than,
relevant here, overhead reaching and direction of reaching. T. 49. The VE further testified that
4 The Court notes SSR 00-4p was rescinded and replaced by SSR 24-3p on January 6, 2025.
SSR 24-3p states “[i]t expects that federal courts will review final decisions using the rules that
were in effect at the time SSA issued the decisions.” § 27:72. Discrepancies between VE
testimony and DOT, 3 Soc. Sec. Disab. Claims Prac. & Proc. § 27:72 (2nd ed.). Since the ALJ’s
decision was signed May 8, 2024, SSR 00-4p applies.
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“[t]he overhead reach, direction of reach, is not addressed, Your Honor. . . . So, those particular –
of course . . . all of those things I base on my experience.” Id.
Plaintiff argues the “testimony the ALJ elicited from the VE on the issue of consistency
with the DOT” was insufficient. Dkt. No. 13 at 8. This Court agrees. While the VE identified
the conflict, she did not adequately explain how the job of receptionist could be performed
despite requiring frequent reaching. The VE stated, “someone my have to put things at a certain
level for this individual if they’re unable to reach overhead. But, basically, it would be a one-
time thing and I don’t think it causes any issue.” T. 46. 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 held “the ALJ adequately resolved
that conflict because (a) the VE ‘explained the DOT did not distinguish between overhead and
lateral reaching’; (b) the ALJ ‘relied on [the VE’s] professional experience in analyzing job
requirements before concluding an individual with [p]laintiff’s RFC could perform the
representative occupations’; and (c) ‘the conflict was identified and described by the VE
regarding the reaching issue, and she provided a plausible explanations.’” Dkt. No. 17 at 8,
quoting Peter W., 2022 WL 523744, at *11 (citation omitted). Here, the VE did not provide a
plausible explanation and, contrary to the Commissioner’s argument, the facts from Peter W. are
distinguishable 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
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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.
While in this case the ALJ questioned the VE regarding right versus left limitations, the ALJ
ultimately limited Plaintiff to no overhead reaching bilaterally. T. 21, 45-46, 49.
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 occupations.” Peter W., 2022
WL 523744, at *11. 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 jobs 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 at 92).
The Commissioner argues, “the VE effectively testified that the ‘frequent reaching’ entry
in the Receptionist DOT Section refers to reaching in directions other than overhead, and that a
person would be able to perform the Receptionist Job even if she ‘cannot reach overhead.’ There
is thus no actual conflict between the Receptionist DOT Section (which the VE indicated does
not require overhead reaching, but does require frequent reaching in other directions; see DOT §
237.367-038) and the RFC finding . . . .” Dkt. No. 17 at 5 (emphasis in original, internal
citations omitted). However, the VE clearly testified “[t]he overhead reach, direction of reach, is
not addressed” in the DOT. T. 49.
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Reaching is defined as “extending the hand and arms in any direction.” SSR 85-15, 1985
WL 56857, at *7 (SSA 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
‘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). Here, the VE’s 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. 46, 49, which, as explained above, is insufficient.
Based on the foregoing, the ALJ’s finding that Plaintiff was not disabled as defined by
the Social Security Act was not supported by substantial evidence in the record because the ALJ
improperly relied on VE testimony that conflicted with the DOT. Upon remand, the
Commissioner should obtain an explanation from a VE concerning this apparent conflict given
Plaintiff’s inability to reach overhead, and/or obtain opinion evidence on 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. 13)
be GRANTED; and it is further
RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
17) be DENIED; and it is further
RECOMMENDED that the Commissioner’s decision denying Plaintiff benefits be
REMANDED.
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: January 15, 2026
Syracuse, New York
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