Jordan v. Commissioner of Social Security

NORTHERN DISTRICT OF NEW YORK

GARY J.,1

Plaintiff,

v. 6:19-CV-1186

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

STEVEN R. DOLSON, for Plaintiff

MOLLY CARTER, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 7).

I. PROCEDURAL HISTORY

Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) on April 6, 2012, alleging disability beginning

June 15, 2011. (Administrative Transcript (“T.”) 52-53, 64-79, 148). These

applications were initially denied on May 10, 2012. (T. 52-53, 64-79). Plaintiff made a

timely request for a hearing, which was held on February 4, 2013 before Administrative

1 In accordance with recent guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Northern

District of New York in June 2018 in order to better protect personal and medical information of non-

governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only her

an unfavorable decision. (T. 13-19). The Appeals Council denied plaintiff’s request for

review of the ALJ’s decision. (T. 1-3). Plaintiff filed an action in the Northern District

of New York, challenging the Commissioner’s decision. Gary J. v. Comm’r of Soc.

Sec., 8:15-CV-436 (GTS). On July 15, 2016, Chief Judge Glenn T. Suddaby reversed

and remanded the Commissioner’s decision for further administrative proceedings,

specifically to consider the opinions of two of plaintiff’s treating physicians. (T. 664,

667-77) (copy of Chief Judge Suddaby’s 7/15/16 Decision and Order). On October 20,

2016, the Appeals Council remanded plaintiff’s case to an ALJ for evaluation in

accordance with Chief Judge Suddaby’s decision. (T. 682).

In its October 20, 2016 order, the Appeals Council also consolidated plaintiff’s

subsequent applications for both DIB and SSI, which plaintiff filed on March 21, 2016

and were initially denied in May of 2016.2 (T. 682, 726-27). The new hearing began

before ALJ Gibbs on February 14, 2017, but was postponed for plaintiff to hire an

attorney and obtain additional medical evidence. (T. 591-97). The hearing was

reconvened on May 31, 2017 before ALJ Lisa Martin. (T. 598-629). Plaintiff appeared

with counsel, and ALJ Martin also heard testimony from Vocational Expert (“VE”)

Carly Coughlin. (Id.) On October 11, 2017, ALJ Martin issued an unfavorable

decision. (T. 731-42).

On January 31, 2019, the Appeals Council reviewed ALJ Martin’s decision and

determined that the plaintiff’s applications were not properly consolidated pursuant to

2 The subsequent applications alleged a disability onset date of March 2, 2013. (T. 704).

third ALJ for proper consideration. (T. 751-52). The Appeals Council directed specific

actions by the ALJ on remand. (T. 752). Plaintiff appeared with counsel at a video

hearing before ALJ Elizabeth Koennecke on June 17, 2019. (T. 630-54). At the June

2019 hearing, the ALJ also heard testimony from VE Michelle Urbacher. (T. 642-54).

On July 11, 2019, ALJ Koennecke issued an unfavorable decision, finding that plaintiff

was not disabled from his original alleged onset date of June 15, 2011 to the date of her

decision. (T. 554-79). Because the plaintiff did not file exceptions to the ALJ’s

decision, and the Appeals Council did not review the ALJ’s decision on its own, the

ALJ’s decision became the final decision of the Commissioner sixty-one days after ALJ

Koennecke’s decision. (T. 552) (20 C.F.R. §§ 404.984(d), 416.1484(d)). Plaintiff has

filed this action, requesting review of the Commissioner’s final decision.

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that he 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

whether a specific job vacancy exists for him, or whether he would be hire

if he applied for work

42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20

C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI

disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

significantly limits his physical or mental ability to do basic work

activities. If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has an impairment

which 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 him disabled with-out 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, he has the

residual functional capacity to perform his past work. Finally, if the

claimant is unable to perform his past work, the [Commissioner] then

determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that his impairment prevents him from performing

his past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

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. However, 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, 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). However, a reviewing court may not substitute its

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).

An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we are unwilling to require an

ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the

ALJ cannot “pick and choose evidence in the record that supports his conclusions.”

Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-

CV-6279, 2010 WL 5072112 (W.D.N.Y. Dec. 6, 2010).

The majority of the plaintiff’s 2019 administrative hearing was devoted to

questioning plaintiff about his former work and questioning the VE about the

possibility that plaintiff could still perform other work in the national economy, based

on his RFC. Plaintiff was born on May 16, 1972, making him 39 years old at the time

of his original disability onset date. (T. 633). In his March 21, 2016 application,

plaintiff alleged that he was disabled as the result of Post Traumatic Stress Disorder

(“PTSD”), anxiety, depression, right hip deformity, degenerative disc disease, and

arthritis in his back, hip, and knees. (T. 704-705). Plaintiff had a high-school education

and previous work experience as an order puller/warehouse worker and forklift

operator. (T. 575, 634, 641-42).

From 2007 to 2012, plaintiff worked at Alfred Publishing, first as a “picker” and

then as a forklift operator. (T. 641). The order picker position involved walking around

with a cart and an order sheet, “picking” music books from the shelves. (T. 642). He

would continue to push the cart and select the appropriate books off the shelves until

the order was filled. (T. 644). If the order was large, by the time plaintiff was finished,

the cart could contain 60-70 books, weighing up to 150 pounds. (Id.) Plaintiff was

given thirty minutes for lunch and “a couple” of ten minute breaks, but was on his feet

the rest of the 8-hour shift. (Id.)

The forklift operator position involved driving a forklift and picking up items to

put on a pallet. (T. 642). However, plaintiff testified that it was a “man-up forklift,” so

he was required to stand in order to drive it. (T. 644). Plaintiff stated that he drove the

on the pallet, returning only when the order was complete. (T. 645). Plaintiff testified

that the job involved constant reaching to get the cases of books onto the pallet. (Id.)

At ALJ Koennecke’s 2019 hearing, she also questioned plaintiff about the work

that he did after his alleged date of onset. (T. 634-37). From March to June of 2018,

plaintiff attempted to work at Price Chopper. (T. 635). Plaintiff worked as an overnight

stocker for approximately 21-30 hours per week, but had to quit because he was unable

to climb the ladders, stoop as frequently as required, or lift the amount of weight that

was required for the job.3 (T. 635). Plaintiff also testified that the job required him to

be on his feet all of the time, and the frequent stooping bothered his back, hip, and

knees. (T. 636).

From late 2017 to early 2018, plaintiff performed work as a shipping loader at

the Family Dollar Store. (T. 636). However, he testified that he only worked there for

three months because he was required to work 7 to 10-hour shifts, and he was unable to

perform the rapid, repetitive lifting, from 5 to 80 pounds. (Id.) Plaintiff testified that,

during the time that he worked at the Family Dollar, his back and knees bothered him

so much that, in the morning, he could barely walk or move. (Id.)

Finally, for approximately one month in 2018, plaintiff worked at Mohawk

Equipment, a hospital supply company. (T. 637). Plaintiff testified that this was a

“picker position” in which he loaded hospital supplies onto a pallet, using a “pallet

jack.” (Id.) Plaintiff stated that he could not perform the physical requirements of the

3 Plaintiff testified that the position required lifting anywhere from 5 to 50 pounds. (T. 635).

down movement. (Id.)

ALJ Koennecke also questioned plaintiff about the knee surgery that he had since

the last ALJ’s hearing. (T. 638). Plaintiff testified that the meniscus surgery went well,

but that he still had pain in his knees, attributable to his arthritis. (Id.) Plaintiff stated

that it was “unbearable” to stand after long periods of walking. (Id.) Plaintiff estimated

that he could only walk for ten minutes and stand for fifteen minutes because his knees

and his back would begin to bother him. (Id.) Plaintiff stated that he tried not to kneel

at all because he was afraid that he would never be able to get up. (Id.)

Plaintiff testified that approximately twice per month, he experienced

“blackouts,” but they did not happen “a lot,” and that “everything just kind of goes . . .

blurry . . . for a few minutes . . . .” (T. 639). Plaintiff testified that he believed that his

physical condition was getting worse. (T. 640). He also stated that he was still in

“mental treatment,” but the medication, counseling, and treatment “definitely helps.”

(Id.)

The VE explained the vocational requirements of plaintiff’s past relevant work,

and stated that because of the weight that plaintiff was required to lift or the pressure

that he needed to exert on the books, the picker job was “very heavy” as performed, and

the forklift operator was “heavy” as performed.4 The ALJ posed a hypothetical

question, asking the VE to assume that an individual was “younger,” with a high school

education, and past relevant work as discussed above. (T. 647). The ALJ’s hypothetical

4 The VE testified that the Dictionary of Occupational Titles (“DOT”) classified both jobs as

“medium” level exertion. (T. 646).

during an eight-hour workday and could spend “the rest of the time” sitting. (T. 647).

The individual would need to change positions every forty-five minutes for just one to

two minutes, could not climb ladders, ropes or scaffolds, was capable of “occasional

postural movements [of] all other types,” but was precluded from dangerous work-

related hazards such as unprotected heights and moving machinery. (T. 647). Mentally,

the individual was limited to detailed, but not complex, work tasks, which did not

involve a “fast assembly quota,” and he would be off-task up to five percent of the

workday. (T. 647).

The VE testified that, based on the above hypothetical, the individual could not

perform plaintiff’s past relevant work, but could perform the jobs of storage facility

rental clerk (unskilled, light work with 27,000 jobs in the national economy) and

photocopying machine operator (unskilled light work with 13,000 in the national

economy). The VE also testified in detail as to how she arrived at the job numbers. (T.

648). The VE specifically stated that she also used her experience with “placement

activities with employers,” because the DOT does not address changes in position. (T.

649). The VE testified that there were also sedentary jobs that such an individual could

perform, such as charge account clerk (unskilled, sedentary with 5000 jobs in the

national economy), food and beverage order clerk (unskilled, sedentary with 4000 in

the national economy), and call-out operator (unskilled, sedentary with 13,000 in the

Plaintiff’s counsel asked the VE if the light work jobs would require “some

degree of pushing and pulling ability.” (T. 651). The VE answered in the affirmative,

stating that the light work jobs would require “exerting” up to 20 pounds of force

“occasionally.” (Id.) The VE also testified that, if an individual needed to change

positions “at will” or could not stoop at all, he would not be able to perform any of the

jobs. (T. 651). The VE further stated that, in order to perform sedentary jobs, the

individual must be able to sit for at least 20 to 25 minutes before standing in order to

complete job duties and could not leave the work station “at will to walk because it

would result in an excessive amount of time off-task.” (T. 652). Finally, the VE

testified that all jobs would be eliminated if the individual were unable to reach at all.

(T. 652). Reaching is defined as “[e]xtending the arms in any direction away from the

body.” (T. 653).

There is a great deal of medical evidence in the record, much of which is not

relevant to this decision. The ALJ conducted a detailed discussion of the medical and

other evidence of record in her lengthy decision. (T. 557-75). Rather than summarizing

the medical evidence at the outset, I will refer to the pertinent records during my

discussion of the plaintiff’s argument.

IV. THE ALJ’S DECISION

After finding that plaintiff had not engaged in substantial gainful activity

5 The VE defined “reaching” as “[e]xtending the arms in any direction away from the body.” (T.

653). Plaintiff does not allege that he has any simple reaching limitations. In any event, plaintiff’s

activities, such as bowling, basketball, and volleyball, are inconsistent with any significant reaching

limitation.

the following severe impairments at step two of the sequential analysis: lumbar spine

impairment, left knee degenerative joint disease, right hip impairment, and obesity. (T.

557-61). The ALJ conducted an extensive analysis of all of plaintiff’s other

impairments, finding that some did not meet the 12-month durational requirement,

some were non-severe,7 and some were not medically determinable impairments. (Id.)

At step three of the sequential evaluation, the ALJ found that plaintiff did not

have an impairment or combination of impairments that met or equaled the severity of a

listed impairment. (T. 561-62). In making this determination, the ALJ considered

Listing 1.02 (major dysfunction of a joint); Listing 1.03 (reconstructive surgery of a

major weight-bearing joint); Listing 1.04 (disorders of the spine); Listing 11.08 (spinal

chord disorders); Listing 11.14 (peripheral neuropathy); Listing 14.09 (inflammatory

arthritis); “and near listings under 1.00 for musculoskeletal impairments, 11.00 for

neurological disorders, and 14.00 for impairments of the immune system.” (T. 561).

The ALJ also considered the effect of plaintiff’s obesity. (Id.)

At step four the ALJ determined that the plaintiff had the following RFC:

the claimant has the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) and 416.967(b),

except the claimant has the following additional limitations: is

limited to 5 hours of standing and/or walking and the rest of

the day sitting in an 8-hour workday; needs an opportunity to

change position every 45 minutes for 1-2 minutes; is

6 The ALJ found that the work that plaintiff performed after his onset date did not rise to the

level of SGA, but she considered the plaintiff’s work activity after 2011 in determining his RFC. (T.

557).

7 None of plaintiff’s mental impairments were considered severe. (T. 558-60).

limited to occasional postural motions; is precluded from all

dangerous work hazards, such as unprotected heights and

exposure to moving machinery; is limited to detailed, but not

complex, work tasks not involving a fast assembly quota pace;

and will be off-task up to 5 percent of the workday due to

symptom exacerbations.

(T. 562). In making this determination, the ALJ conducted a detailed discussion of the

medical evidence of record and considered plaintiff’s stated symptoms and activities.

(T. 562-75). The ALJ engaged in a lengthy discussion of plaintiff’s daily activities,

including social and athletic activities and his work attempts, finding that these

activities “[do] not support the degree of limitation alleged by the [plaintiff].” (T. 565).

Plaintiff’s “work activity,” although not rising to the level of SGA, “does indicate that

his activities of daily living have, at least at times, been somewhat greater than was

alleged by the [plaintiff].” (Id.) The ALJ also discussed the weight that she afforded

the reports by medical and other providers, including a thorough discussion of the two

medical providers who were the subjects of Chief Judge Suddaby’s remand order. (T.

566-75). The ALJ also discussed the determinations of other agencies and their relative

weight in the Social Security analysis. (T. 567-68).

Based on the above RFC, at step four of the sequential analysis, the ALJ found

that plaintiff could not perform his past relevant work. (T. 575-76). However, after a

thorough discussion of the VE’s testimony and findings, the ALJ determined that jobs

exist in significant numbers for the plaintiff. (T. 576-78). The ALJ concluded that

plaintiff was not disabled from his June 15, 2011 date of onset through the date of the

ALJ’s decision. (T. 578-79)

Plaintiff raises the following argument in support of his position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ committed reversible error in failing to perform a function-by-

function analysis prior to making plaintiff’s RFC determination. (Point I)

(Pl.’s Br. at 6-9) (Dkt. No. 9).

Defendant argues that the Commissioner’s decision is supported by substantial

evidence. (Def.’s Br. at 3-8) (Dkt. No. 12). For the following reasons, this court agrees

with the defendant and will affirm the Commissioner’s decision.

VI. RFC

A. Legal Standards

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, 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); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,

728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.

Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,

307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

B. Application

Plaintiff’s only argument is that the ALJ’s RFC evaluation is not supported by

substantial evidence because she failed to conduct a “function-by-function” analysis of

the plaintiff’s exertional abilities, particularly with respect to the plaintiff’s ability to

push and pull. As stated above, however, the ALJ found that plaintiff could perform

“light work,” consistent with the definition of light work contained in the regulations,

together with additional limitations on the plaintiff’s ability, inter alia, to sit, stand,

The regulations define light work as

lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even

though the weight lifted may be very little, a job is in this

category when it requires a good deal of walking or standing,

or when it involved sitting most of the time with some

pushing and pulling of arm or leg controls. To be considered

capable of performing a full or wide range of light work, you

must have the ability to do substantially all of these activities.

20 C.F.R. 404.1567(b) and 416.967(b). Plaintiff argues that in failing to specify how

much weight the plaintiff could push or pull, the ALJ’s RFC evaluation is fatally

flawed because there is evidence in the record that plaintiff has some limitations in

pushing and pulling.

Plaintiff cites two medical source statements that allegedly support his argument.

First, counsel cites an April 16, 2012 treatment note authored by Dr. Michael Zahn,8

M.D. and Michael Failing, RPAC, stating that plaintiff would be “‘appropriate for a job

without a lot of heavy lifting, pushing, or pulling.’” (Pl.’s Br. at 8) (citing T. 237). The

second opinion cited by counsel is a statement by Dr. Marc Bergeron, M.D.9 stating that

plaintiff should not push, pull, lift, or carry more than 25 pounds occasionally, 12

pounds frequently.” (Id.) (citing T. 543). Plaintiff’s counsel states that “overall, the

8 Plaintiff was referred to orthopedic surgeon, Michael Zahn in March of 2012 for a

consultation on plaintiff’s hip, after an MRI showed a labral tear. (T. 235-38, 240). Michael Failing is

a Physicians’ Assistant who works with Dr. Zahn and also signs some of the reports. The April 16,

2012 treatment note states that plaintiff was initially seen for his back by Dr. Rudolph A. Buckley, a

spine surgeon who also practices at Hamilton Orthopedic Surgery. (T. 235, 240).

9 Plaintiff was evaluated on July 23, 2012 by orthopedic surgeon, Dr. Marc Bergeron, Superior

Medical Consultants, for purposes of Workers’ Compensation. (T. 535-44).

address the limitations on pushing and pulling given.”10 (Pl.’s Br. at 8).

Neither of the opinions cited support the plaintiff’s argument. In Cichocki v.

Astrue, 729 F.3d 172, 177 (2d Cir. 2013), the Second Circuit refused to adopt a per se

rule, requiring remand if the ALJ fails to provide a “function-by-function” analysis.

The relevant inquiry is whether the ALJ applied the “correct legal standards and

whether . . . the determination is supported by substantial evidence. Id. The court

further stated that

[w]here an ALJ’s analysis at Step Four regarding a claimant’s

functional limitations and restrictions affords an adequate

basis for meaningful judicial review, applies the proper legal

standards, and is supported by substantial evidence such that

additional analysis would be unnecessary or superfluous, we

agree with our sister Circuits that remand is not necessary

merely because an explicit function-by-function analysis was

not performed.

Id. (citing inter alia Zatz v. Astrue, 346 F. App’x 107, 111 (7th Cir. 2009) (“[A]n ALJ

need not provide superfluous analysis of irrelevant limitations or relevant limitations

about which there is no conflicting medical evidence.”))

In this case, the ALJ limited plaintiff to a range of light work. The ALJ did not

cite a specific weight limitation on “pushing and pulling,” at the hearing. However, at

the hearing, plaintiff’s counsel asked the VE whether light work required “some degree

of pushing and pulling ability.” (T. 651). In response, the VE stated that light work “is

10 In his report, Dr. Bergeron made other assessments of plaintiff’s abilities, but the ALJ

specifically analyzed which portions of the report she was relying on and why she chose to give less

weight to other statements made by this physician (T. 570-71), and plaintiff’s argument only involves

the finding with respect to pushing and pulling.

651). This is the same weight limitation as for lifting and carrying. Including such a

finding in the RFC would have been superfluous. By limiting plaintiff to light work,

the ALJ did not need to further explain the required “pushing and pulling” ability.

According to the VE, the maximum weight that an individual would be required to push

or pull is inherent in the definition of light work.11

Even if the court were to determine that the ALJ erred in failing to specify that

plaintiff would be required to push or pull up to 20 pounds occasionally and 10 pounds

frequently, any error would be harmless. According to Cichocki, supra, remand is not

automatically required, even without a function-by-function analysis.12 Instead, the

11 The VE’s statement is supported by the Social Security Rulings (“SSR”), the Dictionary of

Occupational Titles (“DOT”) and the Selected Characteristics of Occupations (“SCO”) defined in the

DOT. (Def.’s Br. at 5-6). As defense counsel points out, SSR 83-14 states that the term “exertional”

has the same meaning in the Social Security Regulations as it does in the DOT. SSR 83-14, 1983 WL

31254, at *1 (Jan. 1, 1983). In the SCO (a DOT supplement), occupations are classified as sedentary,

light, medium, heavy, and very heavy, depending upon the degree of primary strength requirements of

those occupations. Id. There are three work positions – standing, walking, and sitting, as well as four

worker movements of objects – lifting, carrying, pushing, and pulling. Id. The SCO defines light work

as requiring the exertion of “up to 20 pounds of force occasionally, or up to 10 pounds of force

frequently, or a negligible amount of force consistently to move objects.” Selected Characteristics of

Occupations in the Revised Dictionary of Occupational Titles, App. C, § 1 (U.S. Dep’t of Labor 1993).

The SCO makes it clear that light work required no more that 20 pounds of “exertion,” whether that is

in the form of lifting, carrying, pushing, or pulling. Thus, an individual limited to light work would not

be expected to push or pull more than 20 pounds occasionally.

12 Most of the cases cited by plaintiff predate Cichocki, and some of those cases ordered remand

for additional deficiencies in the ALJ’s decision. See Rockwood v. Astrue, 614 F. Supp. 2d 252, 280

(N.D.N.Y. 2009) (case predates Cichocki, and the court notes that the ALJ’s decision did not contain

any specificity regarding the plaintiff’s functional abilities); Crysler v. Astrue, 563 F. Supp. 2d 418,

443-44 (N.D.N.Y. 2008) (case predating Cichocki and remanded for a multitude of other errors);

Bennett v. Astrue, No. 1:06-CV-549 (NAM), 2009 WL 1035106, at *13 (N.D.N.Y. Apr. 17, 2009)

(predated Cichocki, and case was also remanded based on a violation of the treating physician rule);

Hluska v. Astrue, No. 6:06-CV-0485 (LEK/VEB), 2009 WL 799967, at *19 (N.D.N.Y. Mar. 25, 2009)

(case predated Cichocki, and was remanded primarily because the ALJ failed to follow the treating

physician rule - court merely stated that on remand, the ALJ should also perform a function-by-

substantial evidence. In Cortez v. Comm’r of Soc. Sec., No. 7:16-CV-1012 (CFH),

2017 WL 3524674, at *10-11 (N.D.N.Y. Aug. 15, 2017), the court found that the ALJ’s

omission of a function-by-function assessment did not merit remand, [m]ost notably,

[when] there is no evidence indicating that physical limitations existed that were not

encompassed within the overall category of sedentary work,” plaintiff did not cite any

evidence showing that he had greater limitations, and the ALJ’s findings were

supported by substantial evidence. See also Columbel v. Comm’r of Soc. Sec., No.

6:16-CV-773 (CFH), 2017 WL 3175599, at *13 (N.D.N.Y. July 26, 2017) (court did

not remand under Cichocki for failure to perform a function-by-function analysis when

plaintiff failed to point to medical evidence suggesting an inability to perform the basic

requirements of the exertional category of work assessed by the ALJ).

As stated above, neither of the medical records cited by plaintiff is inconsistent

with a finding that plaintiff could occasionally push or pull up to 20 pounds and

frequently push or pull up to 10 pounds. Dr. Zahn stated that plaintiff would be

“appropriate” for a job without any “heavy lifting, pushing, or pulling.” (T. 237). This

statement is not inconsistent with a finding that plaintiff could push or pull up to 20

pounds occasionally and 10 pounds frequently. Dr. Bergeron’s statement that plaintiff

should be limited to pushing, pulling, lifting, or carrying more than 25 pounds

function analysis); Miles v. Barnhart, No. 6:06–CV–391 (LEK/GHL), 2008 WL 5191589, at *9

(N.D.N.Y. Dec. 8, 2008) (predating Cichocki and remanding after finding that failure to do a function-

by-function analysis was not harmless error in that case). The only cased cited by plaintiff that post-

dated Cichocki is Merkley v. Comm’r of Soc. Sec., No. 7:16-CV-1394 (GTS), 2017 WL 4512448, at

*8-9 (N.D.N.Y. Oct. 10, 2017) (remanding after determining that the failure to perform an analysis of

plaintiff’s reaching ability was not harmless error).

perform in a light work occupation. Thus, Dr. Bergeron’s statement is not inconsistent

with a finding that plaintiff could perform light work. The ALJ discussed both Dr.

Zahn and Dr. Bergeron in her decision. (T. 570).

A review of the ALJ’s decision, in general, also supports her RFC determination.

The ALJ discussed plaintiff’s ability to push and pull in her discussion of the report of

consultative physician Dr. Brian Cole. (T. 566). The ALJ refers to pushing and pulling

ability and specifically states that the plaintiff’s “ability to push and pull is unlimited,

other than for the weight limits already established by the light exertional level.” (T.

566). Although, not very clear, the ALJ appears to mean that plaintiff’s ability to push

and pull is unlimited up to the amount established by the definition of light work.

Clearly, the ALJ considered plaintiff’s ability to push and pull.

The ALJ’s also discussed plaintiff’s daily activities at length, which at times

during the relevant period, included bowling, basketball, and volleyball. (T. 565, 570).

On February 23, 2016, plaintiff reported to his counselor that he had been going to the

bowling alley to “practice for his upcoming league.” (T. 1365). On March 3, 2017,

plaintiff told the nurse in Dr. LaFrance’s13 office that he had “returned to playing

basketball and volleyball” after his 2016 knee surgery. (T. 2103). The ALJ concluded,

based upon reports from plaintiff’s treating physicians, Dr. Zahn, Dr. Russell LaFrance,

M.D., and PA Failing, that the plaintiff retained “considerable physical capacity, except

for work involving high-impact activities or heavy lifting, pushing, or pulling.” (T.

13 Dr. LaFrance is one of plaintiff’s orthopedic surgeons. (T. 2100-2101) (2016 surgical report).

570). None of these activities are inconsistent with a finding that plaintiff may push or

pull sufficient weight to be able to perform light work activities. The medical records

support the ALJ’s findings. Thus, the ALJ’s RFC determination is supported by

substantial evidence.

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner is AFFIRMED and this case

DISMISSED, and it is

ORDERED, that the Clerk enter judgment for DEFENDANT.

Dated: May 27, 2020 A fon) Ye Be Ho

Andrew T. Baxter

U.S. Magistrate Judge

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