6:24-cv-01477•Stevens v. Bisignano
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ CLAUDETTE M. S., Plaintiff, v. 6:24-CV-01477 (MAD/TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. _____________________________________________ APPEARANCES: OF COUNSEL: HILLER COMERFORD INJURY JUSTIN GOLDSTEIN, ESQ. & DISABILITY LAW Attorney for Plaintiff 6000 North Bailey Avenue, Suite 1A Amherst, NY 14226 SOCIAL SECURITY ADMINISTRATION KRISTINA COHN, 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 Mae A. D’Agostino, United States District Judge, pursuant to 20 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial for Social Security Benefits. Both parties filed briefs, which the Court treats as motions Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 1 of 23
2 under Federal Rule of Civil Procedure 12(c) in accordance with General Order 18. Dkt. Nos. 11, 12. Plaintiff filed a reply brief which simply relied on her original arguments and authority as set forth in her primary brief. Dkt. No. 13. 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 1974. T. 200.1 She completed eleventh grade and received special education services. T. 224. Plaintiff protectively filed a Title XVI application for Supplemental Security Income, alleging disability beginning April 16, 2020, due to “arthritis in whole body, whole back problems, spinal issues, COPD, bi-polar, depression, anxiety, mood swings, panic attacks, asthma, seasonal allergies, former substance abuse/cocaine, right wrist – granular cysts.” T. 200-06, 223. Plaintiff’s initial claim was administratively denied on October 26, 2020, and again on reconsideration September 13, 2021. T. 78, 99. This determination was upheld after a disability hearing and a decision of an Administrative Law Judge (“ALJ”) dated May 25, 2022. T. 12-25, 31-65. The Appeals Council denied Plaintiff’s request for review on April 12, 2022, and Plaintiff thereafter commenced a proceeding in this Court. T. 1-6, 1314-48. The parties stipulated to an Order dated January 2, 2024, reversing the final decision of the Commissioner, and directing the case be remanded for further administrative proceedings. T. 1351-52. On February 8, 2024, the Appeals Council remanded the claim to an ALJ for further proceedings. T. 1357-59. ALJ Mary Pelton held a hearing on August 1, 2024, where vocational expert (“VE”) 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. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 2 of 23
3 Robert Baker and Plaintiff testified. T. 1266-85. In a decision dated August 19, 2024, the ALJ determined Plaintiff “was not disabled prior to July 15, 2024, but became disabled on that date and has continued to be disabled through the date of this decision.” T. 1254. Plaintiff now seeks this Court’s review. Dkt. No. 1. 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 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). Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 3 of 23
4 supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Further, where evidence is deemed susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983). “To determine on appeal whether an ALJ’s findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (additional citation omitted). If supported by substantial evidence, the Commissioner’s findings must be sustained “even where substantial evidence may support the plaintiff’s position and despite that the court’s independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford, 685 F.2d at 62) (additional citations omitted). A reviewing court cannot substitute its interpretation of the administrative record in place of the Commissioner’s if the record contains substantial support for the ALJ’s decision. See Rutherford, 685 F.2d at 62. 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. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 4 of 23
5 B. Standard for Benefits To be considered disabled, a plaintiff seeking disability benefits must establish she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). Additionally, the claimant’s: physical or mental impairment or impairments [must be] of such severity that [s]he is not only unable to do 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 Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 5 of 23
6 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 the date of application. T. 1240. At step two, the ALJ found Plaintiff had severe impairments of a history of learning disability, obesity, chronic obstructive pulmonary disease, asthma, bipolar disorder, anxiety disorder, depressive disorder, bilateral carpal tunnel syndrome, status post right ganglion cyst removal and carpal tunnel release, lumbar spondylosis with radiculopathy, and degenerative disc disease of the cervical spine. Id. At step three, the ALJ determined 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. Part 404, Subpart P, Appendix 1. Id. Before reaching step four, the ALJ concluded Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, specifically the claimant should never climb ladders, ropes, scaffolds; can occasionally climb ramps or stairs; can occasionally balance as defined by the SCO; can occasionally crouch, stoop, kneel, or crawl; can occasionally reach overhead and can reach in other directions frequently bilaterally; can frequently handle, finger, and feel bilaterally; can occasionally push and pull; should avoid concentrated exposure to dust, odors, fumes, gases, and poor ventilation, as well as wetness and extreme hot and extreme cold, and humidity; should avoid all exposure to hazards, such as unprotected heights and dangerous moving machinery; can understand, remember, and carry out simple instructions; can use judgment to make simple work-related decisions; should work in a job with occasional changes in routine work setting; cannot perform work requiring a specific production rate or perform work which requires hourly quotas; can have occasional interaction with coworkers, supervisors, and the public; and can frequently flex, extend, and rotate her cervical spine. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 6 of 23
7 T. 1243-44. In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and the extent to which those symptoms could “reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. § 416.929 and [Social Security Ruling] 16-3p.” T. 1244. The ALJ further stated she considered the 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 her alleged symptoms; however, the Plaintiff’s statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported. T. 1244-45. Proceeding to step four of the sequential evaluation, the ALJ determined Plaintiff did not have past relevant work. T. 1252. At step five, the ALJ concluded Plaintiff was not disabled prior to July 15, 2024, but became disabled on that date and has continued to be disabled through the date of her decision. T. 1254. V. CONTENTIONS Plaintiff contends “[t]he ALJ failed to resolve the conflict between the VE’s testimony and Dictionary of Occupational Titles (DOT) regarding overhead reaching, and the occupations identified by the VE consist of obsolete jobs.” Dkt. No. 11 at 16-24. Plaintiff further alleges “[t]he ALJ failed [to] explain how the evidence supports Plaintiff’s ability to frequently flex, extend, and rotate her cervical spine.” Id. at 24-28. Next, Plaintiff contends “[t]he ALJ’s findings regarding social interaction support a finding of disability at step five, and the step five finding is unsupported by substantial evidence.” Id. at 28. Lastly, Plaintiff contends “[t]he ALJ erred in her evaluation of Plaintiff’s manipulative limitations.” Id. at 31-35. Defendant counters, Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 7 of 23
8 “[i]n determining Plaintiff’s RFC, the ALJ properly considered the medical opinions of record.” Dkt. No. 12 at 8-13. Defendant also argued “[t]he ALJ’s step five finding is supported by substantial evidence.” Id. at 13-17. VI. DISCUSSION A. Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s Neck and Manipulative Limitations 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. App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an RFC finding “when there is substantial evidence in the record to support each requirement listed in the regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted). In assessing a plaintiff’s RFC, an ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are qualified experts in the field of social security disability. See Frey ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary order) (“The report of a State agency medical consultant constitutes expert opinion evidence which can be given weight if supported by medical evidence Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 8 of 23
9 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). ALJs must “conduct a distinct analysis that” permits “adequate review on appeal.” Aung Winn v. Colvin, 541 F. App’x 67, 70 (2d Cir. 2013). Every conclusion the ALJ reaches must be supported by relevant medical evidence. See Heckman v. Comm’r of Soc. Sec., No. 18-CV-6032, (LJV), 2019 WL 1492868, at *3 (W.D.N.Y. Apr. 4, 2019). Indeed, the ALJ’s decision must create “an accurate and logical bridge from the evidence to” their “conclusion.” Shanaye S. M. v. Comm’r of Soc. Sec., No. 5:18-CV-0217 (TWD), 2019 WL 1988672, at *4 (N.D.N.Y. May 6, 2019) (cleaned up). When ALJs “determine the specific amount of time a claimant can spend on certain activities” that assessment cannot be based on their “own surmise.” William C. v. Comm’r of Soc. Sec., No. 21-CV-06341 (MJR), 2023 WL 4361366, at *3 (W.D.N.Y. July 6, 2023) (cleaned up). 1. Relevant Medical Evidence Non-examining medical consultant L. Dekeon, Ph.D., found Plaintiff’s spine disorders non-severe. T. 76. Ultimately it was determined Plaintiff was not disabled because the claim was insufficient for a disability determination. T. 77. Upon reconsideration with L. Haus, Psy. D., Plaintiff’s medical conditions worsened, and she had to wear a wrist brace. T. 81. Plaintiff’s carpal tunnel syndrome was found non-severe, and her disorders of the skeletal spine were found severe. T. 89. Plaintiff reported activities of daily living including being independent with personal and household activities, caring for her six-year-old child, having a boyfriend, using the computer, watching television, and reading. T. 90. Plaintiff “did not allege any specific Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 9 of 23
10 functional limitations to assess for credibility” therefore “[t]he assessments were based upon the objective evid[ence] in file.” T. 91. C. Krist, D.O., opined Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds. T. 93. Plaintiff could stand and/or walk and sit for about six hours in an eight-hour workday and had unlimited ability to push and/or pull including operation of hand and/or foot controls. Id. Dr. Krist opined Plaintiff could occasionally climb ramps, stairs, ladders, ropes and scaffolds and had unlimited ability in other areas of postural limitations, due to decreased sensation in the lower extremities. T. 94-95. Dr. Krist opined Plaintiff did not have manipulative limitations. T. 95. On June 28, 2017, Kautilya Puri, M.D., completed an internal medicine examination. T. 373-78. Plaintiff’s main complaint was sharp low back pain that increased with moving, bending, lifting, twisting, squatting, standing, and walking. T. 373. This pain decreased with medication and rest. Id. Plaintiff reported “she can do some cooking, cleaning, laundry, and childcare. She can shower, bathe, and dress. She watches [television] and goes out.” T. 374. On exam, Plaintiff had a normal gait and used no assistive device. Id. Her squat was “markedly decreased though she sits with no difficulty.” Id. Plaintiff needed no help changing for the examination or getting on and off the examination table and was able to rise from the chair without difficulty. Id. Her neck was supple with no masses, jugular vein distention, thyromegaly or bruits. Id. Her cervical spine showed full flexion, extension, lateral flexion bilaterally, and fully rotary movement bilaterally. T. 375. Plaintiff had full range of motion of her shoulders, and her hand and finger dexterity were intact. Id. Her grip strength was five out of five bilaterally. Id. Dr. Puri opined Plaintiff “did not have objective limitations to communication or fine motor/gross motor activity.” T. 376. She further opined Plaintiff “had Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 10 of 23
11 mild limitations to her gait and to her activities of daily living on examination today with mild- to-moderate limitations to squatting, bending, stooping, kneeling and lifting weights.” Id. On August 27, 2019, Gilbert Jenouri, M.D., completed an internal medicine examination. T. 439-49. Plaintiff reported her activities of daily living included “cooking once a week, cleaning twice a week, laundering once a week, showers twice a week, and dresses on occasion.” T. 439. She also reported watching television and listening to the radio. Id. Upon examination, her neck was supple with no masses, jugular vein distention, thyromegaly or bruits. T. 440. Plaintiff’s cervical spine showed full flexion, extension, lateral flexion bilaterally, and rotary movements bilaterally. T. 441. She had full range of motion in her shoulders and hands. Id. Plaintiff’s wrists had dorsiflexion to the right 50 degrees and to the left 60 degrees. Id. Her palmar flexion was 50 degrees to the right and 30 degrees to the left. Id. Plaintiff’s ulnar deviation was 20 degrees to the right and 30 degrees to the left. Id. For radial deviation, Plaintiff’s right hand was ten degrees and 20 degrees for her left hand. Id. Plaintiff’s hand and finger dexterity were intact, and her grip strength was five out of five bilaterally. Id. Dr. Jenouri opined Plaintiff had mild restrictions in bending, stair climbing, lifting, carrying, walking and standing long periods. T. 442. On September 2, 2021, Corina Gonzales, M.D., completed an internal medicine examination. T. 782-87. Dr. Gonzales noted arthritis throughout Plaintiff’s body including her cervical spine. T. 782. She also noted an August 2019 x-ray that showed her cervical spine had “moderate degenerative changes at C5 to C6, mild degenerative changes at C4 through C5 and minimal retrolisthesis of C3 and C4.” Id. Plaintiff reported her activities of daily living included being able to cook and clean every other day. T. 783. She was able to do laundry and shop daily. Id. She provided childcare to her daughter daily. Id. Plaintiff was also able to shower, Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 11 of 23
12 bathe, and dress daily. Id. Lastly, Plaintiff reported she watched television and listened to the radio. Id. On examination her neck was supple with no masses, no jugular vein distention, no thyromegaly or bruits. T. 784. Plaintiff’s cervical spine showed 20 degrees flexion and extension. Id. Her cervical spine lateral flexion to the right was 30 degrees and 10 degrees to the left. Id. Plaintiff’s cervical spine rotation was 60 degrees to the right and was full to the left. T. 785. Plaintiff had tenderness and spasms over the cervical, thoracic, and lumbar spine. Id. Plaintiff’s shoulder flexion was 130 degrees bilaterally. Id. Her shoulder abduction and adduction were full bilaterally, with internal rotation 45 degrees and external rotation 60 degrees bilaterally. Id. There was pain over her shoulders and mid back at the end range of flexion, abduction, and internal rotation. Id. Plaintiff’s wrist dorsiflexion to the right was 40 degrees with pain, and to the left was full. Id. Her palmar flexion to the right was 40 degrees with pain and the left was full. Id. Her radial and ulnar deviation were full bilaterally. Id. Plaintiff’s hand and finger dexterity were intact bilaterally. T. 786. Her fisting was full bilaterally with four plus out of five grip strength bilaterally. Id. Plaintiff was able to tie without difficulty, but zippering and buttoning were stiff, clumsy, and awkward on the right side. Id. Dr. Gonzales opined Plaintiff had moderate limitations to bending, lifting, carrying, and to activities requiring frequent head movement. Id. She also opined Plaintiff had mild to moderate limitations to prolonged standing, prolonged walking, prolonged sitting, pushing, pulling, climbing stairs, and reaching overhead bilaterally. Id. Dr. Gonzales further opined Plaintiff had mild limitations to handling, fingering, and operating hand controls on the right. Id. She opined Plaintiff should avoid activities that require moderate or greater levels of exertion, avoid respiratory irritants, and avoid unprotected heights and moving on uneven ground. Id. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 12 of 23
13 On December 1, 2023, Sharon Revan, M.D., completed an internal medicine examination. T. 2554-57. Plaintiff reported she showers and dresses herself. T. 2555. She needed help lifting anything heavy, and with cooking, cleaning, laundry, and shopping. Id. Plaintiff watched television and she colored. Id. On examination her neck was supple with no masses, no jugular venous distention, no thyromegaly or bruits. T. 2556. Plaintiff’s cervical spine showed full flexion, extension, lateral flexion, and full rotary movement bilaterally. Id. She had full range of motion of her elbows, forearms, wrists and fingers bilaterally. Id. Plaintiff’s hand and finger dexterity were intact. Id. Fisting was full and grip strength five out of five bilaterally. Id. Dr. Revan opined Plaintiff had mild limitations with the right upper extremity for gross motor activity of the right shoulder. T. 2557. She also opined mild to moderate limitations with daily living due to her back pain. Id. 2. Analysis There is no question that Plaintiff has numerous limitations which were accounted for in the ALJ’s RFC. Essentially, the ALJ accepted many of the limitations set forth by the various doctors, as she found all of them generally partially persuasive. T. 1250-52.3 After the court’s remand, the ALJ obtained additional evidence and medical reports which provided support for the weight given to the various medical source statements. See, e.g., T. 1778-2775 (medical records generated after the May 25, 2022, decision, T. 12-25). When an ALJ finds a particular medical opinion to be persuasive, the ALJ is not required to adopt every limitation contained in the opinion when making an RFC determination. See, e.g., Melaine L. v. Comm’r of Soc. Sec., No. 5:22-CV-87 (ATB), 2022 WL 17992220, at *9 (N.D.N.Y. Dec. 29, 2022) (“The ALJ was 3 The ALJ found the opinion of state agency psychological consultant L. Haus, Psy. D., not persuasive based on Plaintiff’s mental limitations and therefore it does not apply to the analysis in this section. T. 1252. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 13 of 23
14 not required to accept every limitation in the various medical opinions or to craft an RFC mirroring a particular opinion.”) (citation omitted). With respect to Plaintiff’s argument that the ALJ failed to provide explanation for the ability of frequent movement of Plaintiff’s neck, although there is evidence in the record that Plaintiff has limits on such motion, as cited above, the majority of the treatment notes state Plaintiff had a normal neck. T. 413, 419, 422, 425, 428, 1026. Plaintiff rarely reported symptoms of pain in her neck. T. 393, 396, 532, 537, 544, 545, 549, 554, 693, 698-99, 1025. Lastly, Plaintiff had a full range of motion in her neck and cervical spine. T. 375, 398, 400, 441, 2556, 2576. The same is true with respect to Plaintiff’s argument the ALJ erred in her evaluation of Plaintiff’s manipulative limitations. Although Plaintiff has some reduced range of motion of the wrists, treatment notes showed Plaintiff has near-to-full range of motion of the shoulders, elbows, forearms, and hands bilaterally. T. 375, 441, 785. The ALJ noted on March 15, 2024, the “orthopedic record states that the claimant was ‘doing great’ following her February 27, 2024 surgery and that she had full range of motion of her wrist and fingers and good sensation in her fingers.” T. 1246 (citing T. 2714). The ALJ additionally noted: Most of the claimant’s consultative physical examinations have been negative for dexterity, strength, or sensation deficits involving her hands. For example, the claimant exhibited intact hand and finger dexterity, 5/5 grip strength, and no sensory deficits during her consultative physical examinations on June 28, 2017, August 27, 2019, and December 1, 2023. She exhibited intact hand and finger dexterity during her September 2, 2021 consultative physical examination but also exhibited 4/5 grip strength; stiff, clumsy, and awkward zippering and buttoning with the right hand; and decreased sensation in the right upper extremity during the same examination. T. 1246 (citing T. 375, 441, 785-86, 2556). Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 14 of 23
15 The ALJ also considered Plaintiff’s activities of daily living throughout the period in question, in addition to the activities cited above in great detail. T. 1249-50. Thus, the ALJ’s RFC findings were supported by substantial evidence in the record and the ALJ did not err with respect to Plaintiff’s neck and additional manipulative limitations in the RFC. However, as discussed below, the ALJ’s step five determination is not properly supported, and thus the undersigned recommends the matter be remanded to the Commissioner. B. The ALJ Partially Erred in her Step Five Findings As step five of the sequential analysis, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. The Commissioner bears the burden of proof at this step. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2). In the present case, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. T. 1253. 1. The ALJ Did Not Err by Relying on the VE’s Testimony Regarding Plaintiff’s Social Interactions Plaintiff argues “the current ALJ found greater social limitations, and it is unclear how the prior testimony regarding occasional interactions would not prevent work at step five.” Dkt. No. 11 at 29. The premise of Plaintiff’s argument, however, is faulty. In both the 2022 and 2024 hearings, the hypothetical posed to the VE included an individual could “have occasional [interaction/contact] with co-workers, supervisors, and the public.” T. 60, 1279. The VEs responded there were three jobs in the national economy Plaintiff could perform at the sedentary exertional level. T. 60, 61, 1280. As the VEs provided available jobs at both hearings, there is no conflict to reconcile. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 15 of 23
16 Plaintiff’s representative posed the question at the 2022 hearing, “[w]ould there be any occupations that exist where someone could learn how to train to do the occupation on Day 1 where they’re only having occasional interaction with a supervisor or a coworker?” T. 63. The VE responded no occupations with that restriction existed, but that within the first three days an individual would frequently be with a coworker or a supervisor during the training period to learn how to do the occupation. Id. With this information neither the VE nor the ALJ stated Plaintiff would not be able to do the jobs provided given the occasional interaction restriction. T. 63-64. Notably Plaintiff has the same representative at the 2022 and 2024 hearings. T. 31, 1266. As such the representative was aware of the potential issue and had the opportunity to question the new VE about social interaction but chose not to. See Brault v. Soc. Sec. Admin., Comm’r., 683 F. 3d 443, 450-51 (2d Cir. 2012) (holding Plaintiff’s attorney had a full opportunity to explain his objections in significant detail. If no objections were given, nothing more was required by the ALJ). Even if the 2022 and 2024 VEs’ testimonies were conflicting, which they are not, Plaintiff has not cited any legal authority for the proposition that an ALJ must consider on remand prior VE testimony given in connection with a vacated decision. Dkt. No. 11. In contrast, the Commissioner cites a Second Circuit case generally holding that an ALJ need not address conflicting evidence from a hearing that was vacated. Dkt. No. 12 at 15 (citing Uffre v. Astrue, No. 06-CV-7755, 2008 WL 1792436, at *7 (S.D.N.Y. Apr. 18, 2008) (an “ALJ making a decision in a case on remand . . . is to consider the case de novo when the Appeals Council has vacated the ALJ’s previous decision” concluding the “first decision has no bearing on these proceedings”)). In sum, the Court finds the ALJ did not err in relying on this part of the VE testimony. Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 16 of 23
17 2. The ALJ Did Not Err by Relying on the VE’s Proposed Occupations The ALJ relied on the opinion of VE Robert Baker who testified that a hypothetical claimant with the limitations set forth in the RFC determination could perform the representative occupations of addresser, tube operator, and document preparer. T. 1253, 1280. Plaintiff objects to the representative occupations as obsolete and to the VE’s testimony as based on outdated information. Dkt. No. 11 at 19-24. While some courts have expressed concern where the ALJ relied on representative occupations that appear to be obsolete in the modern economy—see, e.g., Maldonado v. Comm’r of Soc. Sec., No. 21-CV-7594 (RWL), 2023 WL 243617, at *10 (S.D.N.Y. Jan. 18, 2023); Lynch v. O’Malley, No. 22-CIV-5620-CS-AEK, 2024 WL 728483, at *14 (S.D.N.Y. Feb. 21, 2024); Applefeld v. Comm’r, Soc. Sec. Admin., No. SAG-17-517, 2018 WL 1136571, at *5 n.1 (D. Md. Mar. 1, 2018); Feeley v. Comm’r of Soc. Sec., No. CIV. 14-4970 KM, 2015 WL 3505512, at *11 (D. N.J. June 3, 2015)—other courts, including the Second Circuit in an unpublished decision, have declined to accept this type of argument, finding that the ALJ is entitled to rely on the VE’s testimony and refusing to make a judicial finding as to whether an occupation is obsolete. See Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011) (“We decline Bavaro’s invitation to take judicial notice of the decline of the photofinishing industry and deem the position infeasible for her. A vocational expert testified to the existence of such jobs at the national and regional level. The ALJ was entitled to credit that testimony . . . and we will not disturb that finding based upon Bavaro’s conclusory proclamations to the contrary.”); see also Angi W. v. Comm’r of Soc. Sec., No. 21 Civ. 0557 (CJS), 2023 WL 2595008, at *11 (W.D.N.Y. Mar. 22, 2023) (“[T]he Court would be loath to conduct its own analysis of job types and job availability and second guess the vocational expert’s conclusions.”); Lucius R. v. O’Malley, No. 3:22-CV-01312-MPS, 2024 WL Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 17 of 23
18 1200181, at *22 (D. Conn. Jan. 22, 2024); Medranda v. O’Malley, No. 23 CIV. 6633 (SLC), 2024 WL 4100567, at *8 (S.D.N.Y. Sept. 6, 2024) (“The Court is not the proper authority to assess the types of jobs Ms. Medranda could perform and how many positions exist in the national economy.”). On June 22, 2024, the Social Security Administration issued an “Emergency Message” imposing heightened requirements on ALJs considering certain representative occupations “whose continued widespread existence multiple courts have questioned.” Denise W. v. Comm’r of Soc. Sec., No. 23-CV-1098S, 2025 WL 322249, at *7 n.4 (W.D.N.Y. Jan. 29, 2025) (quoting Soc. Sec. Admin. Emergency Message (EM)-24027). In particular, when faced with one of the designated occupations, the ALJ is required under the Emergency Message to obtain additional evidence to determine that occupation’s requirements, as the job is presently performed, are consistent with the claimant’s RFC and that the position still exists in the national economy in numbers that alone, or in combination with other representative occupations, are significant. See Coles v. Comm’r of Soc. Sec., No. 24-CV- 6119 (OEM), 2025 WL 2024366, at *6 (E.D.N.Y. July 21, 2025). Among the representative occupations identified by the VE in the present case, the Emergency Message identifies all three as potentially obsolete occupations. See EM-24027, available at https://secure.ssa.gov/apps10/reference.nsf/links/01062025092030AM (last accessed Jan. 27, 2026). For purposes of this argument the Court will only focus on the job of document preparer as it was the only job with a significant number of jobs nationally at 17,336 jobs. See Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018) (acknowledging that jobs with 9,000 to 10,000 positions available nationwide “have typically be found to be sufficiently ‘significant’ to meet the Commissioner’s burden”). Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 18 of 23
19 The Court finds no reversible error in the ALJ’s step five determination in this regard. First, the Emergency Message did not become effective until January 6, 2025, after the date of the ALJ’s decision. T. 1254. Second, in any event, the ALJ satisfied the heighted duty of inquiry. The ALJ asked the VE whether the tools and work processes had changed for the document preparer position. T. 1281. The VE testified “these days we also have scanning for document storage, so it’s the same exact activity that you see in the description for the document preparer, but it’s not only done for microfilming; it’s also done for scanning.” T. 1281. The Court, therefore, concludes that to the extent the heightened duty applied to the ALJ in this case, the ALJ satisfied it. The Court also notes Plaintiff’s counsel was given the opportunity to cross- examine VE Baker during the administrative hearing, T. 1283, and his credentials were unchallenged in the underlying administrative proceedings. 3. The ALJ Failed to Resolve the Conflict between the VE’s 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 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.”). Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 19 of 23
20 When assessing the requirements of a particular occupation, an ALJ should primarily rely upon the DOT, but may also use VE testimony to resolve more complex vocational issues. See Antonio P. v. Comm’r of Soc. Sec., No. 3:21-CV-62, 2021 WL 5768545, at *8 (D. Conn. Dec. 6, 2021) (summarizing SSR 00-4p, 2000 WL 1898704, at *2 (SSA Dec. 4, 2000)). SSR 00-4p provides VE testimony should generally be consistent with the occupational information contained in the DOT, and when there is an “apparent” unresolved conflict, the ALJ must obtain a “‘reasonable explanation for the conflict before relying on the [vocational expert’s testimony].’” Murray v. Colvin, No. 15-CV-6384, 2016 WL 5335545, at *13 (W.D.N.Y. Sept. 23, 2016) (alteration in original) (quoting SSR 00-4p, 2000 WL 1898704 (SSA 2000)). Where, however, the DOT is silent on an issue, there is no actual conflict between the VE’s 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, 683 F.3d at 446 (“a VE whose evidence conflicts with the DOT must provide a reasonable explanation to the ALJ for the conflict.”). In Lockwood, 914 F.3d at 92, 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 to “occasionally reach overhead and can reach in other directions frequently bilaterally” could Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 20 of 23
21 perform the representative tasks of addressor, tube operator, and document preparer. T. 1279-80. According to the DOT, each of these occupations require “frequent” reaching. See Dictionary of Occupational Titles 209.587-010, 1991 WL 671797, id. 239.687-014, 1991 WL 672235, id. 249.587-018, 1991 WL 672349. The VE testified his analysis of available occupations was consistent with the DOT other than the issue of reaching overhead. T. 1283. The VE stated, “[s]ome things I mentioned, such as . . . breaking out any kind of reaching overhead versus reaching in all directions, [are not discussed] so those portions of the hypothetical are based on my experience and my training.” Id. Plaintiff argues the “VE did not provide testimony as to what reaching is required for the three occupations identified, and the VE did not explain how the three occupations requiring frequent reaching could still be performed with a limitation to occasional overhead reaching.” Dkt. No. 11 at 17-19. This Court agrees. While the VE identified the conflict, he did not explain how the occupations could be performed despite requiring frequent reaching. 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 cites 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 the record need only establish that “[t]he conflict was identified and described by the VE regarding the reaching issue, and [that the VE] provided a plausible explanation.” Dkt. No. 12 at 14 (quoting Peter W., 2022 WL 523744, at *11 (citation omitted)). Here, the VE did not provide a plausible explanation and “[t]he VE offered no indication that he relied on job observation, research or specific knowledge Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 21 of 23
22 of the job.” Matthew M., 2022 WL 3346949, at *4. “Given that the DOT does not break down directional reaching, the VE’s response that he relied on his experience does not specifically address the conflict. Nor did the ALJ adequately address the conflict and resolve why the jobs would not require greater overhead reaching.” Id. “The fact that the VE’s opinion was based on his own ‘knowledge and experience’ does not resolve the conflict.” Id. (citing Lockwood, 914 F.3d at 92). Reaching is defined as “extending the hand and arms in any direction.” SSR 85-15, 1985 WL 56857, at *7 (Jan. 1, 1985). Thus, there is an apparent conflict between the RFC and the identified jobs. See Lockwood, 914 F.3d 87 at 92. “Testimony that a claimant with overhead reaching limitations is capable of performing a job that the Dictionary describes as requiring ‘reaching,’ then, creates at least an apparent conflict that triggers the Commissioner’s duty to elicit an explanation that would justify crediting the testimony.” Id. (citations and alterations omitted). 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 jobs other than to rely on his experience, T. 1283, which as explained above, is insufficient. Based on the foregoing, the ALJ’s finding that Plaintiff was not disabled as defined by the SSA was not supported by substantial evidence in the record because the ALJ improperly relied on VE testimony that conflicted with the DOT. Upon remand, the Commissioner should obtain an explanation concerning this apparent conflict. VII. CONCLUSION WHEREFORE for the reasons stated herein, it is hereby RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) be GRANTED; and it is further Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 22 of 23
23 RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) 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 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 30, 2026 Syracuse, New York Case 6:24-cv-01477-MAD-ML Document 14 Filed 01/30/26 Page 23 of 23
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