Henderson v. Bisignano

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Joshua H.,1
Plaintiff,
v. 6:25-CV-138
(DNH/MJK)
Frank Bisignano,
Commissioner of Social Security
Defendant.
_____________________________________________________________________
Mary Ellen Gill Esq., for Plaintiff
Daniel Stice Tarabelli Esq., Special Asst. U.S. Attorney, for Defendant
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable David N. Hurd, Senior U.S. District Judge:
REPORT-RECOMMENDATION
Joshua brought this action under the Social Security Act (42
U.S.C. § 405(g)) seeking judicial review of the Social Security
Commissioner’s final decision denying his application for benefits. (Dkt.
1.). Joshua did not consent to the jurisdiction of a Magistrate Judge.
(Dkt. 4). So, the Honorable David N. Hurd, Senior U.S. District Judge,
referred this matter to the Court for Report and Recommendation.
Both parties filed briefs (Dkts. 10, 16, 17) which the Court treats as
1 This Report-Recommendation will identify the plaintiff using only his first name
and last initial to protect his privacy.
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motions under Fed. R. Civ. P. 12(c), in accordance with General Order
18.
I. PROCEDURAL HISTORY
On May 10 2022, Joshua filed an application for Title II Disability
Insurance and Title XVI Supplemental Security Income benefits,
alleging disability beginning February 16, 2022. (T. 15).2 The Social
Security Administration denied the claim initially on December 2, 2022,
and again upon reconsideration on July 25, 2023. (Id.). Six days later,
Joshua requested a hearing. (Id.) Administrative Law Judge (“ALJ”)
Dale Black-Pennington held a hearing on March 26, 2024. (T. 38-70). At
the hearing, Attorney Matthew Nutting represented Joshua. (T. 40).
Both Joshua and Vocational Expert Esperanza Distefano testified. (T.
57-70). On May 14, 2024, the ALJ issued an unfavorable decision. (T.
12). The appeals council denied review. (T. 1-6).
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
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II. GENERALLY APPLICABLE LAW
A. Disability Standards
To be considered disabled, plaintiffs seeking Disability Insurance
or Supplemental Security Income benefits must establish that they are
“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 twelve months …” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, plaintiffs’
physical or mental impairment or impairments [must be] of s
uch severity that [they are] not only unable to do [their]
previous work but cannot, considering [their] 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
[they] live[], or whether a specific job vacancy exists for
[them], or whether [they] would be hired if [they] applied for
work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R.
§§ 404.1520 and 416.920, to evaluate Disability Insurance and
Supplemental Security Income disability claims.
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [they are]
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not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits [their]
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 meets or equals the criteria of an
impairment listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will
consider [them] disabled without considering vocational
factors such as age, education, and work experience …
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, [they have] the residual functional capacity to
perform [their] past work. Finally, if the claimant is unable to
perform [their] past work, the [Commissioner] then
determines whether there is other work which the claimant
can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 20 C.F.R.
§§ 404.1520, 416.920. Plaintiffs have the burden of establishing
disability at the first four steps. See Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013). If they establish that their impairment prevents them
from performing their past work, the burden then shifts to the
Commissioner to prove the final step. Id.
B. Scope of Review
When reviewing a final decision of the Commissioner, courts must
determine whether the correct legal standards were applied and
whether substantial evidence supported the decision. Id. at 417; see also
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42
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U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative
record. Id. But this standard is a very deferential standard of review “—
even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at
448. “To determine on appeal whether an ALJ’s findings are supported
by substantial evidence, reviewing courts consider 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 ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988). However, reviewing courts may not substitute their
interpretation of the administrative record for that of the Commissioner
if the record contains substantial support for the ALJ’s decision. Id.; see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
ALJs need not explicitly analyze every piece of conflicting
evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)
(“[W]e are unwilling to require an ALJ explicitly to reconcile every
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conflicting shred of medical testimony[.]”). But ALJs cannot “‘pick and
choose’ evidence in the record that supports [their] conclusions.” Cruz v.
Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6,
2010).
III. FACTS
The record includes Joshua’s medical and mental health
treatment records which the parties are familiar with. The Court will
refer to the pertinent records and the hearing testimony in its analysis
of the parties’ claims, as appropriate.
IV. THE ALJ’S DECISION
At step one of the five-step-sequential analysis, the ALJ
determined that Joshua had “not engaged in substantial gainful activity
since February 16, 2022. (T. 17).
At step two, the ALJ determined that Joshua suffered from “the
following severe ailments: atherosclerotic heart disease; diabetes
mellitus type II with polyneuropathy; essential hypertension; and
hyperlipidemia.” (T. 18). But the ALJ also determined that Joshua’s
“low vision corrected with glasses; fatty liver; cobalamin (vitamin B12)
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deficiency; degenerative disc disease, degenerative joint disease; and
vitamin D deficiency” were non-severe impairments. (Id.).
Next, the ALJ discussed the “paragraph B” criteria. (T. 19). “To
satisfy the paragraph B criteria,” mental impairments “must result in
one extreme limitation or two marked limitations in a broad area of
functioning.” See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(b)
(cleaned up). The four broad areas of mental functioning are: (1)
understanding, remembering, or applying information; (2) interacting
with others; (3) maintaining concentration, persistence, or pace; and (4)
adapting and managing oneself. See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00(C). Here, the ALJ found that Joshua had mild limitations in all
four areas of mental functioning. (T. 19).
At step three, the ALJ determined that Joshua did not have a
single impairment, or combination of impairments, that equaled the
severity of impairments listed in 20 C.F.R Part 404, Subpart P,
Appendix 1. (T. 20).
After this, the ALJ determined that Joshua has the residual
function capacity (RFC) to:
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perform the full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b) except lift and/or carry up to 20
pounds occasionally and 10 pounds frequently; stand or walk
about 6 hours in an 8-hour workday in up to 20 minute
intervals; sit more than 6 hours in an 8-hour workday; able to
occasionally climb ramps or stairs; able to occasionally stoop,
kneel, crouch, and crawl; not able to climb ladders, ropes, or
scaffolds; must avoid hazards such as unprotected heights,
heavy moving mechanical parts, and industrial vibrations.
(T. 21).
In making the RFC determination, the ALJ stated that they
“considered all” of Joshua’s symptoms and “the extent to which those
symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence” (Id.). The ALJ also noted that
they considered “the medical opinion(s) and prior administrative
medical finding(s)” in accordance with 20 C.F.R. §§ 404.1520c, 416.920c.
(Id.).
At step four, the ALJ found that Joshua “is unable to perform any
past relevant work” (T. 26). The ALJ also noted that Joshua was in the
“younger individual age 18-49” category at the time his application was
filed, has at least a high school education, and that “transferability of
skills is not an issue in this case because [Johsua’s] past relevant work
is unskilled.” (Id.) (cleaned up).
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At step five, the ALJ, “considering” Joshua’s “age, education, work
experience and residual functional capacity,” determined that “there are
jobs that exist in significant numbers in the national economy that”
Joshua “can perform.” (Id.). Accordingly, the ALJ determined that
Joshua “has not been under disability, as defined in the Social Security
Act, from February 16, 2022, thorough the date of” the ALJ’s decision.
(T. 27).
V. ISSUES IN CONTENTION
Joshua argues that the District Court should reverse and remand
the ALJ’s decision because the ALJ: (1) failed to explain how they
arrived at the stand/walk option; and (2) improperly analyzed his
mental limitations. (Pl. Br. at 1-2; 7-15). In opposition, the
Commissioner argues that (1) substantial evidence supports the ALJ’s
RFC assessment; and (2) The RFC adequately accounted for Joshua’s
mental impairments. (Def. Br. at 3-8).
VI. DISCUSSION
The Court recommends affirming the ALJ’s decision. First, the
ALJ properly crafted a stand/walk limitation. And second, the ALJ
erred, as Joshua argues, when they did not include a mental limitation
in the RFC. But that error was harmless.
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A. The Court should affirm the ALJ’s decision because the
ALJ’s stand/walk option was more restrictive than
Joshua’s self-imposed limitations.
The District Court should affirm the ALJ’s decision. ALJs are
required to create a logical bridge between the evidence and their
decisions. Here, the ALJ listened to Joshua’s testimony and crafted a
stand/walk option that was more generous than Joshua’s testimony. As
a result, this Court recommends affirming the ALJ’s decision.
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) (summary order). 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). So 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
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(W.D.N.Y. July 6, 2023) (cleaned up). True, an ALJ’s conclusions need
not “perfectly correspond” with any of the medical source opinions cited
in their decision. Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir.
2012). Nor must ALJs “reconcile every conflicting shred of medical
testimony.” Miles v. Harris, 645 F.2d at 124. But ALJs written
decisions must be sufficiently detailed so courts can “conduct an
adequate review” of their “findings.” Shanaye S.M., 2019 WL 1988672,
at *4 (N.D.N.Y. May 6, 2019).
The ALJ’s 20-minute stand/walk option was proper. “As a general
matter, where an ALJ imposes a limitation in his RFC that is more
restrictive than the relevant medical opinions, there is no error and
thus no grounds for remand with respect to that limitation.” Kiyantae
N. v. Comm’r of Soc. Sec., No. 20-CV-6998, 2022 WL 2758309, at *4
(W.D.N.Y. July 14, 2022). Here, Joshua testified that he “can stand” for
“a half-hour to 45 minutes.” (T. 52). But when fashioning Joshua’s RFC,
the ALJ noted that Joshua can “stand or walk about 6 hours in an 8-
hour workday in up to 20-minute intervals.” (T. 21) (cleaned up)
(emphasis added). In essence, the ALJ credited Joshua’s testimony and
fashioned a stand/walk option that was more restrictive than the
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testimony. So there is not error. See, e.g., Stephanie G. v. Comm’r of Soc.
Sec., No. 21-CV-301, 2023 WL 3230429, at *3 (W.D.N.Y. May 3, 2023)
(“even if the ALJ erroneously relied on his lay judgment to add this
more restrictive limitation, Plaintiff has not shown harmful error
justifying remand.”).
Joshua cannot rely on his function report for a different outcome.
In his function report, Joshua wrote that he could walk “10 feet” and
after that, he needs to rest “10-15 minutes” before he can resume
walking. (T. 538). Searching the record, the Court can see that the ALJ
did not credit this evidence and instead credited Joshua’s more recent
statement, which indicates improvement in his health.
Further, the group of cases Joshua relies on are distinguishable.
Joshua cites seven cases for the proposition that ALJ-crafted-highly-
specific sit/stand options without evidence is unavailing. See (Pl. Br. at
9-10). This proposition is true. Yet, Joshua relies on these cases without
context. In each of those cases it is unclear how the ALJ fashioned the
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sit/stand option or what they relied on.3 But here, the Court knows
exactly what the ALJ used to craft the RFC. Joshua testified that he
“can stand” for “a half-hour to 45 minutes” then he has “to rest or just
like, kneel down to where” he is “taking the pressure off” his “back and
legs.” (T. 52). Likewise, Joshua testified that he “can sit for a couple
hours, until” he has “stiffness in his back” then he needs “to get up and
move around.” (T. 53). With this testimony, the ALJ fashioned a
stand/walk option that was more restrictive than Joshua’s testimony. In
sum, the cases Joshua relies on are distinguishable because the Court
can tell what the ALJ relied on.
Even if the Court were to find that the ALJ erred when giving
Joshua the benefit of the doubt, the error is harmless. Despite an ALJ’s
3 William H. v. Comm’r of Soc. Sec., No. 20-CV-6050, 2021 WL 2980339, at *5
(W.D.N.Y. July 15, 2021) (“critically, the ALJ did not adequately explain why she
assessed the specific and less restrictive sit/stand option that she did”); Leo v.
Comm’r of Soc. Sec., No. 1:18-CV-00214-MAT, 2019 WL 4508937, at *7 (W.D.N.Y.
Sept. 19, 2019) (“Even assuming this limitation was made in deference to Plaintiff,
it still needed to be based on substantial evidence.”); Rice v. Colvin, No. 1:15-CV-
00959 (MAT), 2016 WL 7366977, at *2 (W.D.N.Y. Dec. 20, 2016) ( “The ALJ's
decision does not explain what evidence supports this particular sit/stand option,
and the Court can find no support for such a specific restriction in the record.”);
Wojciechowski v. Colvin, 967 F. Supp. 2d 602, 609 (N.D.N.Y. 2013) (“He did find
that Plaintiff could need to sit or stand alternatively without leaving her work
station, but it is not clear how he arrived at this conclusion.”);
Kouadio v. Astrue, No. 08-CV-881-A, 2010 WL 4922672, at *6 (W.D.N.Y. Dec. 2,
2010) (“Here, the ALJ failed to develop the record to support his conclusion that
plaintiff could perform work with a sit/stand option.”).
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procedural error, a court can affirm a decision “if a searching review of
the record assures” it “that the substance of the regulation was not
traversed.” Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293 at *2 (2d
Cir. 2022) (cleaned up). Here the court notes that “the fact that a
limitation was included despite its absence from any medical opinion
means simply that the RFC was more generous than the medical
opinions required, and where an ALJ makes an RFC assessment that is
more restrictive than the medical opinions of record, it is generally not a
basis for remand.” Jacob M. v. Comm’r of Soc. Sec., No. 20-CV-1093,
2022 WL 61007, at *5 (W.D.N.Y. Jan. 6, 2022) (cleaned up).
* * *
Joshua’s secondary argument on this point is unavailing. Joshua
argues that the ALJ “does not state the extent to which” he “could stand
or walk within those 20-minute intervals, and it does not state what”
Joshua “would have to do, or how long he would have to do it between
those intervals.” (Pl. Br. at 8). True, ALJs must specify the functions
plaintiffs can perform and may not simply make “conclusory statements
regarding a plaintiff’s capacities.” Roat v. Barnhart, 717 F. Supp. 2d
241, 267 (N.D.N.Y. 2010) (cleaned up). But plaintiffs must prove their
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RFC. See Smith v. Berryhill, 740 F. App'x 721, 726 (2d Cir. 2018). Here,
Joshua failed to do so. Joshua neither identifies how long he needs to sit
down or rest after walking nor how long he will be off task. Yet he
argues that the ALJ should have crafted an RFC without that
information. See (Pl. Br. at pg. 8). Surely, if the ALJ did so, Joshua
would have argued that the RFC was crafted in error because “the ALJ
substituted his own judgment for competent medical opinion.” Dailey v.
Astrue, No. 09CV-0099, 2010 WL 4703599 at *11 (W.D.N.Y. Oct. 26,
2010) (cleaned up) (identifying opinion substitution as reversable error).
This heads I win, tails you lose argument is unpersuasive. So the
District Court should reject it.
* * *
To conclude, the ALJ crafted a stand/walk option that benefitted
Joshua, and the Court can glean how the ALJ came to this decision. The
ALJ did not err on this score. But even if they did, the error was
harmless. In consequence, this Court recommends affirming the ALJ’s
decision.
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B. The Court should affirm the ALJ’s decision because the
ALJ’s failure to properly analyze the mental health opinion
evidence was harmless.
The District Court should affirm the ALJ’s decision. ALJs must
properly evaluate medical evidence and craft an RFC. Failure to do so is
error. Here, the ALJ failed to include mental limitations in the RFC but
offered unskilled work, which persons with mild or moderate limitations
can perform. So the ALJ’s error was harmless. As a result, this Court
recommends affirming the ALJ’s decision.
“An individual's RFC is [their] maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis.” David Q. v. Comm’r of Soc. Sec., No. 20-CV-1207,
2022 WL 806628, at *4 (W.D.N.Y. Mar. 17, 2022). When “making an
RFC assessment,” ALJs “should consider a claimant’s physical abilities,
mental abilities, symptomology, including pain and other limitations
which could interfere with work activities on a regular and continuing
basis.” Id. Indeed, RFC determinations “must account” for both severe
and non-severe impairments. Jatava L. v. Comm'r of Soc. Sec., No. 20-
cv-772, 2021 WL 4452265, *5 (W.D.N.Y. 2021). ALJs “may find that”
plaintiffs “mental impairments are inconsequential and, thus reject the
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need to incorporate mental limitations into the RFC- but [they] must
explain [their] reasoning for doing so.” Laura Anne H. v. Saul, No. 6:20-
CV-397 (TWD), 2021 WL 4440345, at *11 (N.D.N.Y. Sept. 28, 2021).
Without that explanation, a reviewing court cannot “assess the validity
of the agency’s ultimate findings and afford the claimant meaningful
judicial review.” Shaune H. o/b/o T.A.P. v. Comm’r of Soc. Sec., No.
1:21-CV-222-DB, 2023 WL 1987992 at *3 (W.D.N.Y. Feb. 14, 2023)
(dismissing case because the Court could not “meaningfully review the
ALJ’s conclusions.”).
The ALJ does not make clear why Joshua’s mental health
limitations were not included in the RFC. For starters, the ALJ
identifies that Joshua has mild limitations in all four areas of
functioning. See (T. 19). But that finding is absent from the RFC. See (T.
21). Worse yet, the ALJ fails to explain why this was not included in the
RFC. That is error. Frank B. v. Comm’r of Soc. Sec., No. 20-CV-01324,
2022 WL 1522542, at *5 (W.D.N.Y. May 13, 2022). (remanding because
the Court was “unable to follow the ALJ’s logic for not including any
mental limitations”).
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The Commissioner’s counterargument on this score is unavailing.
On appeal, the Commissioner argues that the ALJ’s assessment of the
opinion evidence shows why the RFC did not contain a mental health
limitation. (Def. Br. at 6). But that argument is a house of cards built on
quicksand.
The ALJ’s assessment of Dr. T. Linden’s opinion was lacking. To
start, Dr. Linden opined that there was “insufficient evidence” to
analyze Joshua’s claim. (T. 105, 107, 109). The ALJ found this opinion
unpersuasive because the treatment notes indicated that Joshua has,
among other things, normal mental status exams, normal mental
status, and a normal thought process. (T. 25) citing (T. 684, 726). But
what the ALJ cites to for this proposition are the exams of a primary
care physician and a cardiologist. (T. 666, 726). On the other hand, the
ALJ omitted Exhibit B10F—treatment notes from the Family
Counseling Center of Fulton County (a mental health facility)—from
their analysis. See (T. 805-824). That exhibit notes that Joshua “was
self-referred and his physician suggest[ed]” he “seek counseling.” (T.
811) (cleaned up). Joshua reported that he has anxiety, he gets
depressed, has difficulty sleeping and has passive thoughts of suicidal
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ideation. (Id.). Worse still, that exhibit is not cited in the ALJ’s decision.
(T. 12-28). In simpler terms, the ALJ relied on the mental health
evidence from non-mental-health practitioners but ignored evidence
from a mental health facility. This was an error. Starzynski v. Colvin,
No. 15-cv-00940, 2016 WL 6956404, at *3 (W.D.N.Y. Nov. 29, 2016) (“It
is plainly improper for an ALJ to cherry-pick evidence that supports a
finding of not-disabled while ignoring other evidence favorable to the
disability claimant.”)
Likewise, the ALJ’s assessment of Consultative Examiner,
Vanessa Laird, Ph.D., was also deficient. When finding Dr. Laird’s
opinion unpersuasive, the ALJ used the same evidence he relied on to
find Dr. T. Linden’s opinion unpersuasive. (T. 25-26). But again, absent
from the ALJ’s analysis is Dr. Laird’s findings that Joshua was anxious,
he was mildly apathetic, his attention and concentration was mildly
impaired, and his recent and remote memory skills were mildly
impaired. (T. 867). Like with Dr. Linden’s opinion, the ALJ adopts the
mental status examination results of non-mental-health practitioners
and ignores a mental health professional’s findings. (T. 25). The ALJ’s
assessment of Dr. Laird’s findings were error. See, e.g., Faure v. Comm’r
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of Soc. Sec., 685 F. Supp. 3d 247, 263 (S.D.N.Y. 2023) (finding that the
ALJ erred when they stated, “that the opinion was not supported by
mental status examinations conducted by treatment providers but” the
ALJ “only referenced the mental status exams that supported her
findings—cherry picking records that supported the finding.”)
Frankly, the ALJ’s supportability analysis is all over the place.
With respect to “supportability,” the current regulations provide “[t]he
more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical
finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920(c)(1). Dr.
Linden opined that he did not have enough information because there
was not enough objective evidence. (T. 105, 107, 109). The ALJ
disagreed. (T. 25). Dr. Laird crafted an opinion after performing a
consultative exam. (T. 868). The ALJ again disagreed with the opinion
and ignored the objective evidence. (T. 25-26). That is not the way to
perform a supportability and consistency analysis. See Angelo A. C. v.
Comm’r, No. 20-CV-1579-A, 2022 WL 682654, at *6 (W.D.N.Y. Mar. 8,
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2022) (“It is well-settled that an ALJ cannot ‘cherry pick’ only the
evidence from medical sources that support a particular conclusion and
ignore the contrary evidence.”).
On appeal, the Commissioner correctly argues that the error is
harmless. The Commissioner argues that the ALJ’s failure to include
mental limitations in the RFC does not matter because “all the jobs the
ALJ relied on at step five are unskilled” jobs. (Def. Br. at 6). “Unskilled
jobs” accommodate moderate limitations regulating emotions,
controlling behavior, and maintaining well-being.” Raymond G. v.
Comm’r of Soc. Sec., No. 21-CV-01172, 2023 WL 5400423, at *4
(W.D.N.Y. Aug. 22, 2023). So when ALJs fail to include mild mental
impairments in their RFC discussions but they offer unskilled jobs at
step five, the error is harmless. See Kevin D. v. Kijakazi, No. 23-CV-
0195, 2023 WL 8436638, at *3 (W.D.N.Y. Dec. 5, 2023) (“Accordingly,
the ALJ’s failure to include limitations to account for plaintiff's mild
mental [limitations] in his RFC determination would, even if erroneous,
be harmless error.”). Here, the ALJ offered three jobs which are all
unskilled, and the record demonstrates that Joshua can perform simple
task. In fact, Joshua has volunteered at the fire department and
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performed other side jobs. (T. 50-51). As a result, the ALJ’s errors were
harmless. See Seth M. D. v. Comm’r of Soc. Sec., No. 1:21-CV-01116,
2024 WL 1130381 (W.D.N.Y. Mar. 15, 2024)
* * *
To sum up, the ALJ erred when they evaluated the medical
opinion evidence and failed to include Joshua’s mental limitation in the
RFC. Yet that error was harmless because the ALJ offered unskilled
jobs at step five. Thus, this Court recommends affirming the ALJ’s
decision.
VII CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Plaintiff’s motion for judgment on the
pleadings (Dkt. 10) be DENIED; and it is further
RECOMMENDED, that Defendant’s motion for judgment on the
pleadings (Dkt. 16) be GRANTED; and it is further
RECOMMENDED, that the decision of the Commissioner be
AFFIRMED
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have 14 days within which to file written objections to the
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23
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, 89 (2d Cir. 1993) (citing Small v. Sec’y of
Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: November 13, 2025
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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