# Rodriguez v. Commissioner of Social Security

> District Court, E.D. New York · August 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10310153

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310153

## How later opinions describe it (automated extraction)

- noting that the ALJ’s failure to follow the procedural 2019
- finding harmless error where there was no actual conflict between identified occupations and the claimant’s RFC

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

Madelyn Rodriguez,
MEMORANDUM AND ORDER
Plaintiff,
21-cv-5936(KAM)
-against-

Commissioner of Social Security,

Defendant.

--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Madelyn Rodriguez (“Plaintiff”) appeals the final
decision of the Commissioner of the Social Security Administration
(“Defendant”), which found that the Plaintiff was not disabled and
thus not entitled to disability benefits under Title II of the
Social Security Act (the “Act”) or Supplemental Security Income
(“SSI”) under Title XVI of the Act. Presently before the Court
are Plaintiff’s motion for judgment on the pleadings and the
Commissioner’s cross-motion for judgment on the pleadings. For
the reasons set forth below, Plaintiff’s motion is GRANTED, the
Defendant’s motion is DENIED, and the case is REMANDED for further
proceedings based on this Memorandum and Order.
Background
The parties have filed a joint statement of stipulated facts
detailing Plaintiff’s medical history and administrative hearing
testimony, which the Court has reviewed and incorporates by
reference. The Court briefly recounts the facts relevant to the
instant motions. (See generally ECF No. 15, Joint Stipulation of
Facts.)
On January 29, 2019, Plaintiff filed an application for
disability benefits and SSI, alleging disability since August 1,

2017. (ECF No. 16, Administrative Transcript (“Tr.”), at 16.)
Plaintiff claimed that she was disabled due to a back condition,
sciatica, a left knee and left foot condition, and plantar
fasciitis. (Id. at 62.) Her application was denied on March 18,
2019. (Id. at 69-70.)
On July 24, 2019, Plaintiff filed a written request for a
hearing before an administrative law judge. (Id. at 170.)
Administrative Law Judge M. Reeves (the “ALJ”) held a hearing on
February 24, 2020, during which Plaintiff appeared and testified.
(Id. at 30.) By a decision dated May 29, 2020, the ALJ determined
that Plaintiff was not disabled. (Id. at 13.) Plaintiff appealed

the ALJ’s decision to the Appeals Council. (Id. at 201.) On July
9, 2021, the Appeals Council denied review of the ALJ’s decision,
rendering it the final decision of the Commissioner. (Id. at 4.)
This appeal followed. (ECF No. 1, Complaint; ECF Nos. 13, Motion
for Judgment on the Pleadings; 13-1, Memorandum in Support, (“Pl.
Mem.”); ECF Nos. 17, Cross Motion for Judgment on the Pleadings;
17-1, Memorandum in Support, (“Def. Mem.”).)
Legal Standard
I. Standard of Review
Unsuccessful claimants for disability benefits under the Act
may bring an action in federal district court seeking judicial
review of the Commissioner’s denial of benefits “within sixty days
after the mailing . . . of notice of such decision or within such

further time as the Commissioner of Social Security may allow.”
42 U.S.C. § 405(g). “A district court may set aside the
Commissioner’s determination that a claimant is not disabled only
if the factual findings are not supported by substantial evidence
or if the decision is based on legal error.” Burgess v. Astrue,
537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks and
citation omitted); see also 42 U.S.C. § 405(g). “Substantial
evidence is more than a mere scintilla,” and must be relevant
evidence that a “reasonable mind might accept as adequate to
support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (citing Richardson v. Perales, 420 U.S. 389, 401 (1971)

(internal quotation marks omitted)).
If there is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
42 U.S.C. § 405(g). Inquiry into legal error requires the court
to ask whether “the claimant has had a full hearing under the
[Commissioner’s] regulations and in accordance with the beneficent
purpose of the [Social Security] Act.” Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009) (citation omitted). The reviewing court
does not have the authority to conduct a de novo review and may
not substitute its own judgment for that of the ALJ, even when it
might have justifiably reached a different result. See Cage v.
Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
Lastly, federal regulations explicitly authorize a court,

upon reviewing decisions of the Commissioner, to order further
proceedings when appropriate. “The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Remand is warranted
where “there are gaps in the administrative record or the ALJ has
applied an improper legal standard.” Rosa v. Callahan, 168 F.3d
72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39
(2d Cir. 1996) (internal quotation marks omitted)). Remand is
particularly appropriate where further findings or explanation

will clarify the rationale for the ALJ’s decision. Pratts, 94
F.3d at 39. Moreover, if the record before the court provides
“persuasive proof of disability and a remand for further
evidentiary proceedings would serve no purpose,” the court may
reverse and remand solely for the calculation and payment of
benefits. See, e.g., Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013).
II. Determination of Disability
To receive disability benefits, a claimant must be “disabled”
within the meaning of the Act. See 42 U.S.C. §§ 423(a), (d). A
claimant qualifies as disabled under the Act when he or 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.” Id. at § 423(d)(1)(A). The impairment must be of “such
severity” that the claimant is unable to do his previous work or
engage in any other kind of substantial gainful work which exists
in the national economy. Id. at § 423(d)(2)(A). “The Commissioner
must consider the following in determining a claimant’s
entitlement to benefits: ‘(1) the objective medical facts [and
clinical findings]; (2) diagnoses or medical opinions based on
such facts; (3) subjective evidence of pain or disability . . . ;
and (4) the claimant’s educational background, age, and work

experience.’” Balodis v. Leavitt, 704 F. Supp. 2d 255, 262
(E.D.N.Y. 2001) (quoting Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (alterations in original)).
Pursuant to the regulations promulgated by the Commissioner,
a five-step sequential evaluation is used to determine whether the
claimant’s condition meets the Act’s definition of disability. See
20 C.F.R. § 404.1520. This process is essentially as follows:
[I]f the Commissioner determines (1) that the claimant
is not working, (2) that he has a ‘severe impairment,’
(3) that the impairment is not one [listed in Appendix
1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant
is not capable of continuing in his prior type of work,
the Commissioner must find him disabled if (5) there is
not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation
omitted); see also 20 C.F.R. § 404.1520(a)(4).
During this five-step process, the Commissioner must consider
whether the combined effect of all the claimant’s impairments,
including those that are not severe (as defined by the
regulations), would be of sufficient severity to establish
eligibility for Social Security benefits. 20 C.F.R. §§ 404.1523,
404.1545(a)(2). At steps one through four of the sequential five-
step framework, the claimant bears the “general burden of proving
. . . disability.” Burgess, 537 F3.d at 128. At step five, the
burden shifts from the claimant to the Commissioner, requiring
that the Commissioner show that, in light of the claimant’s
residual functional capacity (“RFC”), age, education, and work
experience, the claimant is “able to engage in gainful employment
within the national economy.” Sobolewski v. Apfel, 985 F. Supp.
300, 310 (E.D.N.Y. 1997).
Discussion
I. The ALJ’s Disability Determination
Using the five-step sequential process, the ALJ determined at
step one that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of August 1, 2017. (Tr. at
19.) At step two, the ALJ determined that Plaintiff suffered from
sciatica, arthritis of the left knee, obesity, and left foot
plantar fasciitis. (Id.)

At step three, the ALJ determined that Plaintiff did not have
an impairment or combination of impairments that equaled the
severity of one of the listed impairments in 20 C.F.R. § 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926). (Id.) Specifically,
the ALJ found that the record did not establish that Plaintiff had
a “gross anatomical deformity” because there was no imaging of
joint space narrowing, bony destruction, or ankylosis of the
affected joints under Listing 1.02; the record also did not show
nerve root compression, spinal arachnoiditis, or lumbar spinal
stenosis resulting in pseudoclaudication under Listing 1.04.

(Id.)
Regarding Plaintiff’s RFC, the ALJ found that Plaintiff had the
RFC to perform sedentary work as defined by 20 C.F.R § 404.1567(a),
except with the limitation that Plaintiff must be able to sit and
stand at will. (Id. at 20.) In determining that Plaintiff had
the RFC to perform sedentary work with a sit/stand limitation, the
ALJ relied on Plaintiff’s hearing testimony and medical records,
which included hospital records, the consultative examination
report of Dr. Chaim Shtock, and the records of Dr. Mancuso,
Plaintiff’s treating orthopedic surgeon, Dr. Lora Slabodkina,
Plaintiff’s treating internist, Dr. Vellore Padmanabhan,
Plaintiff’s treating cardiologist, and Dr. Leon Stepensky,
Plaintiff’s treating podiatrist. (Id. at 21-22.)

Finally, at steps four and five, the ALJ found, based on
Plaintiff’s RFC, that she could perform her past sedentary work as
an administrative clerk and that jobs existed in the national
economy that Plaintiff could perform. (Id. at 23.) In arriving
at this conclusion, the ALJ relied on the testimony of a vocational
expert (“VE”); the VE testified that Plaintiff retained the RFC to
perform the sedentary functional demands and job duties of a
telephone solicitor, food checker, and a cutter and paster of press
clipping. (Id. at 24.) Accordingly, the ALJ found that Plaintiff
was not “disabled” within the meaning of the Act and thus not
entitled to disability benefits.

II. Plaintiff’s Ability to Perform Relevant Work
Plaintiff argues that the ALJ’s finding that Plaintiff can
return to past work or perform other jobs in the national economy
is not supported by substantial evidence.1

1 Plaintiff frames her appeal as based on alleged violations of SSR 00-4p, rather
than as a challenge to substantial evidence. (Pl. Mem. at 8-10.) Courts,
however, have found that arguments based on alleged SSR 00-4p violations
challenge whether an ALJ’s decision at the fifth step was based on substantial
evidence. See Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 91 (2d Cir.
SSR 00-4p creates an “affirmative responsibility” for an ALJ
to ask the VE about “any possible conflict” between the VE’s
testimony and the Dictionary of Occupational Titles (“DOT”) before
relying on VE testimony about possible jobs that fit a claimant’s
RFC determination. SSR 00-4p, 2000 WL 1898704, at *4 (2000);
Daragjati v. Colvin, No. 14-cv-2727 (BMC), 2015 WL 427944, at *10

(E.D.N.Y. Jan. 31, 2015) (“SSR 00–4p is written in mandatory
language, and the majority of decisions in this Circuit apply it
according to the way it is written.” (citations omitted)). If the
ALJ discovers that there is an “apparent unresolved conflict”
between the VE’s testimony and the DOT, the ALJ must “elicit a
reasonable explanation for the conflict” and “resolve the conflict
by determining if the explanation given by the VE . . . is
reasonable and provides a basis for relying on the VE . . .
testimony rather than on the DOT information.” SSR 00-4p, 2000 WL
1898704, at *2. Violations of SSR 00-4p occur when the ALJ fails
to ask the VE whether his or her testimony conflicts with the DOT;

courts, however, apply a “harmless error” standard where there is
no apparent conflict or if the conflict was adequately resolved.
See Massachi v. Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 2007)
(noting that the ALJ’s failure to follow the procedural

2019); Diaz v. Astrue, No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *4 (D. Conn.
Sept. 5, 2012) (“Reviewing courts have applied SSR 00–4p and held that the
Commissioner did not produce substantial evidence that there are jobs in the
national economy when the ALJ fails to inquire about an ‘apparent unresolved
conflict’ between the VE's testimony and the DOT.” (citations omitted)).
requirements of SSR 00-4p “could have been harmless, were there no
conflict, or if the vocational expert had provided sufficient
support for her conclusion so as to justify any potential
conflicts[.]”); Coleman v. Astrue, 269 F. App’x 596, 602 (7th Cir.
2008) (summary order) (finding harmless error where sufficient
occupations remained available to claimant even after subtracting

an identified occupation described by the VE in a manner that
conflicted with the DOT); Renfrow v. Astrue, 496 F.3d 918, 921
(8th Cir. 2007) (finding harmless error where there was no actual
conflict between identified occupations and the claimant’s RFC);
Diaz v. Astrue, No. 3:11-cv-317 (VLB), 2012 WL 3854958, at *5 (D.
Conn. Sept. 5, 2012).
Plaintiff contends that the ALJ violated SSR 00-4p because
the ALJ failed to ask about, identify, or resolve an apparent
conflict between (1) the testimony of the VE that certain
identified sedentary occupations could accommodate a sit/stand
option, and (2) the requirements of sedentary work as defined by

DOT, which Plaintiff asserts does not allow for a sit/stand
limitation. (Pl. Mem. at 10.) As a result of the ALJ’s alleged
failure to follow the SSR 00-4p’s requirements, Plaintiff argues
that the ALJ did not properly resolve whether the occupations
identified by the VE support the sit/stand option required by
Plaintiff’s RFC.2 (Id.)
Here, the ALJ did not ask the VE whether there was a conflict
with the DOT. (Tr. at 56-59.) Accordingly, the ALJ violated SSR
00-4p. See Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87,
91 (2d Cir. 2019) (“[SSR 00-4p] tasks the Commissioner with an

affirmative responsibility to ask about any possible conflict[.]”
(internal citation, quotation omitted)). As noted above, however,
violations of SSR 00-4p may amount to “harmless error” if there is
no apparent conflict or if the conflict is resolved. See, e.g.,
Massachi, 486 F.3d at 1154 n.19; Coleman, 269 F. App’x at 602.
Plaintiff asserts that there was an apparent conflict – that DOT’s
definition of “sedentary” work conflicts with the VE’s testimony

2 Plaintiff also argues that other regulations, SSR 96-9 and SSR 83-12, support
her contention that the DOT’s definition of sedentary work does not allow for
a sit/stand option. SSR 96-9 and SSR 83-12 both note that sit/stand limitations
may affect which unskilled sedentary jobs claimants can perform, and instruct
ALJs to consult a VE if the claimant’s RFC requires a sit/stand option. SSR
96-9p, 1996 WL 374185, at *6-7 (1996); SSR 83-12, 1983-1991 Soc.Sec.Rep.Serv.
36, 1983 WL 31253, at *4 (1983). This Court finds that SSR 96-9 and SSR 83-12
do not necessarily preclude an RFC finding of sedentary work for those who
require a sit/stand option, as long as the ALJ consults with a VE concerning
the specific sit/stand limitation. See McIntyre v. Colvin, 758 F.3d 146, 152
(2d Cir. 2014) (“[T]he category of sedentary jobs is large, and the general
definition allows of exceptions. Accordingly, ‘[i]n more complex cases’ a
vocational expert may be consulted to determine whether there is other work in
the national economy that an individual with the ability to do less than the
full range of sedentary work may perform.”) (quoting SSR 96-9p, 1996 WL 374185,
at *9); see also Moore v. Apfel, 216 F.3d 864, 871 (9th Cir. 2000) (“SSR 83–12
does not mandate a finding of ‘disabled.’ Instead, [SSR 83—12] mandates the
use of a VE . . . .” (emphasis added)). SSR 96-9 and SSR 83-12 direct an ALJ
to speak with a VE if a claimant requires a sit/stand option, which the ALJ did
here. Nevertheless, the ALJ’s consultation with a VE regarding the sit/stand
option generally does not satisfy the ALJ’s obligation under SSR 00-4P to ask
about, identify, or resolve apparent conflicts between the VE’s testimony and
the DOT.
that the identified jobs could be performed with a sit/stand
option. (See Pl. Mem. at 6, 9.) Defendant counters that VE
testimony regarding a sit/stand option cannot create an apparent
conflict with the DOT because the DOT is silent about a sit/stand
option. (Def. Mem. at 4.)
The DOT’s definition of sedentary work does not explicitly

mention whether sedentary work allows claimants to sit and stand
at times of their own choosing (i.e., whether sedentary work
accommodates a sit/stand option). Instead, the DOT defines
“sedentary” work as jobs in which “walking and standing are
required only occasionally.” U.S. Dep’t of Labor, Dictionary of
Occupational Titles, App. C (4th ed. 1991). It defines the word
“occasionally” as a condition that exists up to one-third of the
time. Id.
The Second Circuit has not yet decided whether the DOT’s
silence on a sit/stand option within the definition of sedentary
work creates an apparent conflict with VE testimony concerning

sedentary occupations.3 There is a split among the circuit courts
that have addressed this issue.

3 Defendant cites two cases in which the Second Circuit affirmed an ALJ’s
decision to deny benefits based on the ALJ’s finding that the claimant’s RFC
allowed sedentary work with an exception for a sit/stand option. (Def. Mem. at
5.); Tricarico v. Colvin, 681 F. App’x 98 (2d Cir. 2017) (summary order); Pellam
v. Astrue, 508 F. App'x 87 (2d Cir. 2013) (summary order). In neither case,
however, did the district court or the Second Circuit evaluate whether the ALJ
failed to resolve an apparent conflict with the DOT, as relevant here.
The Seventh Circuit has held that “[b]ecause the DOT does not
address the subject of sit/stand options, it is not apparent that
the testimony conflicts with the DOT.” Zblewski v. Astrue, 302 F.
App’x 488, 494 (7th Cir. 2008). District courts within the Second
Circuit have reached the same conclusion. Wellington v. Astrue,
No. 12-cv-3523, 2013 WL 1944472, at *4 (S.D.N.Y. May 9, 2013)

(“Because the DOT does not address the availability of a sit/stand
option, it cannot contradict the vocational expert’s testimony
which endorsed such an option.”); see also Moslow v. Berryhill,
No. 1:16-cv-00198 (MAT), 2019 WL 1508045, at *5 (W.D.N.Y. Apr. 4,
2019); Pitts v. Colvin, No. 14-cv-317S, 2015 WL 3823781, at *6
(W.D.N.Y. June 19, 2015); Pahl v. Colvin, No. 12-cv-3168, 2013 WL
3761545, at *6 (W.D.N.Y. July 16, 2013)).
By contrast, the Ninth Circuit and Third Circuit have found
that a VE’s testimony about a sit/stand option can present an
apparent conflict with the DOT. In Coleman v. Astrue, the Ninth
Circuit decided that many “sedentary” jobs could not accommodate

a sit/stand option, and that the VE’s testimony was too brief and
uninformed to reconcile the conflict. 423 F. App’x 754, 756 (9th
Cir. 2011). In Boone v. Barnhart, the Third Circuit remanded an
ALJ’s decision to give a claimant who could perform “light work”
a sit/stand option. 353 F.3d 203, 211 (3d Cir. 2003). There, the
Third Circuit found that the jobs that the VE identified as being
available to a claimant who could perform “light work” required
standing or walking “throughout the shift,” rather than providing
claimants with the opportunity to sit or stand at will. Id. at
207-08. Some courts within the Second Circuit have held similarly.
See Gallegos v. Colvin, No. 3:13-cv-393 (JBA), 2014 WL 4635418, at
*5 (D. Conn. Sept. 11, 2014) (holding that sit/stand options are
inconsistent with the DOT’s definition of sedentary work and that

the ALJ must therefore provide a “reasonable explanation” for the
conflict before deviating from the DOT).
This Court finds that including the sit/stand limitation in
Plaintiff’s RFC presented an apparent conflict with the DOT’s
definition of sedentary work. The Second Circuit has noted that
the definition of an “apparent conflict” encompasses conflicts
which “seem[] real or true, but are not necessarily so.” Lockwood,
914 F.3d at 93 (quoting Pearson v. Colvin, 810 F.3d 204, 209 (4th
Cir. 2015)). “[SSR 00-4p] mandates that whenever the Commissioner
intends to rely on a vocational expert’s testimony, she must
identify and inquire into all those areas where the expert’s

testimony seems to conflict with the [DOT].” Id. at 92 (emphasis
in original) (alterations, internal quotation and citation
omitted).
The sit/stand option “seems to” conflict with the DOT’s
definition of sedentary work. The DOT defines sedentary work as
including the possibility of standing or walking for up to one
third of the workday. A sit/stand option in an RFC, however, means
that a claimant must be able to choose when to sit and when to
stand, at will. (Pl. Mem. at 10.) Therefore, Plaintiff must be
able to choose any time she needs to sit, stand, or walk, even if
the total time spent in any of those positions is different than
the DOT’s fractional breakdown into thirds, in which claimants
performing sedentary work must be able to sit for two-thirds of

the workday, and stand or walk for one-third of the workday. For
example, there may be days when Plaintiff’s pain only allows her
to stand or walk for a total of one hour per day, even though her
“sedentary” job requires her to stand or walk for two hours per
day (which is less than one-third of the workday). A sit/stand
option would permit Plaintiff to stand or walk for just one hour
per day; it is not clear, however, that all “sedentary work” (or
the three specific sedentary occupations identified by the VE)
would allow Plaintiff to choose to stand or walk for one hour per
day.4 Accordingly, an apparent conflict exists with the sit/stand
option.

The VE’s testimony did not resolve this apparent conflict.
When the ALJ asked if a claimant could sit/stand at will in the
occupations identified by the VE, the VE answered “yes,” but

4 Defendant points out that Plaintiff testified that she could sit for two hours
before needing to stand up and could subsequently sit again (though not without
discomfort). (Def. Mem. at 6, n.2.) But when evaluating how long a claimant
can stand or walk for, “we are hardly dealing with precise numbers.” See
Daragjati, 2015 WL 427944, at *10. The ALJ here determined that Plaintiff
required a sit/stand option, and this Court does not review that determination.
provided no further explanation. (Tr. at 58-59.) This cursory
and nonspecific testimony does not satisfy this Court that the ALJ
resolved the apparent conflict. See Pearson v. Colvin, 810 F.3d
204, 208 (4th Cir. 2015) (“[A]n ALJ has not fulfilled his
affirmative duty ‘merely because the [vocational expert] responds
‘yes’ when asked if her testimony is consistent with the

[Dictionary].’” (citations omitted)). SSR 00-4p provides that
“reasonable explanations” for conflicts can include the use of
information from “reliable publications, information obtained
directly from employers, or from a VE’s . . . experience in job
placement or career counseling.” SSR 00-4p, 2000 WL 1898704, at
*2-3; see also Murray, 2016 WL 5335545, at *13 (explaining that
where the VE acknowledges the inconsistency between the sit/stand
option and the DOT, but nevertheless testifies based on their
knowledge and experience that an occupation would permit the
claimant to alternate between sitting and standing, any potential
conflict is resolved). The VE here did not acknowledge the fact

that the DOT is silent on a sit/stand option, nor did the VE
provide any explanations for the inconsistency.
As a result of the ALJ’s failure to inquire about, identify,
and resolve the apparent conflict, this Court is now left to
speculate as to whether the occupational base identified by the VE
truly accommodates a sit/stand option. Lockwood, 914 F.3d at 93
(2d Cir. 2019) (“But while this Court could guess what the three
jobs .. . identified require in reality . . . [,] [t]he importance
of . . . such details is precisely why the Commissioner bears an
affirmative responsibility to ask about any possibile conflict
between vocational expert evidence and information provided in the
Dictionary.” (citations and internal quotations omitted)). The
Commissioner bears the burden of proof at the fifth step of the
evaluation process. See Daragjati, 2015 WL 427944, at *11.
Accordingly, the ALJ’s failure to abide by the procedural
requirements of SSR 00-4p - by failing to fulfill its affirmative
duty to identify and resolve the apparent conflict - leaves the
Court unable to determine whether the ALJ’s findings at step five
were supported by substantial evidence, and the Court must remand
for further proceedings.
CONCLUSION
For the forgoing reasons, the Plaintiff’s motion is GRANTED,
the Defendant’s motion is DENIED, and this case is REMANDED for
further proceedings consistent with this Memorandum and Order.
SO ORDERED
Dated: August 7, 2023
Brooklyn, New York
YY, ——s~
“Vy - ee ws wwe
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310153. Public record. Not legal advice.