# Zehr v. Kijakazi

> District Court, N.D. New York · August 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10313998

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10313998

## How later opinions describe it (automated extraction)

- holding that “POMS guidelines ‘ha[ve] no legal force, and [they] do [ ] not bind the [Commissioner]’ ”

## Opinion text

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK
______________________________________________________________________
BRIAN Z.,
Plaintiff,
v. 5:20-CV-737
(ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
JUSTIN GOLDSTEIN, ESQ., for Plaintiff
LUIS PERE, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. 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, 8).
I. PROCEDURAL HISTORY
On June 15, 2017, plaintiff filed an application for Disability Insurance Benefits
(“DIB”), alleging disability beginning March 12, 2017. (Administrative Transcript
(“T”) 177-183). Plaintiff’s application was denied initially on September 14, 2017. (T.
65-77, 102-113). Administrative Law Judge (“ALJ”) Robyn L. Hoffman granted
plaintiff’s request for a hearing and heard the testimony of both plaintiff and vocational
expert Josiah L. Pearson on March 13, 2019. (T. 26-64). On March 29, 2019, the ALJ
issued an order denying plaintiff’s claim. (T. 7-24). The ALJ’s decision became the
Commissioner’s final decision when the Appeals Council denied plaintiff’s request for
review on May 5, 2020. (T. 1-6).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that 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 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
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he 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. 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 without considering vocational
fcalacitmorasn stu dcohe ass n aogt eh, aevdeu ac altiisotend, aimndp awiromrke next,p tehrei efnocuer t.h . i.n .q Auisrsyu ims iwngh etthheer,
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 her impairment prevents her from performing
her 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.
Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 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. 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., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (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, at *6 (W.D.N.Y. Dec. 6, 2010).
III. FACTS
Plaintiff was sixty years old on the date of the administrative hearing. (T. 30).
He was a high school graduate who subsequently obtained an associates degree. (T. 30,
201). He was a military veteran who worked at the same large chain retail store for
approximately seventeen years, in two distinct positions. (T. 224-26, 341). From 2000
to 2006, plaintiff managed a small grocery department within the store. (T. 32-35, 224-
25). From 2006 to 2017, plaintiff worked in an overnight stocker position that covered
all departments. (T. 35, 226). This position required frequent lifting of boxes of

merchandise weighing about twenty pounds, and occasional lifting up to fifty pounds.
(T. 226).
After fainting at work, plaintiff was diagnosed with an irregular heartbeat and
had a pacemaker installed in 2013. (T. 37-38, 463). Plaintiff was able to return to his
job after this episode, but worked at a slower pace. (T. 37-38). He also experienced
shortness of breath with heavy exertion, and managed these asthma symptoms with a
rescue inhaler. (T. 38, 222, 463).
In June 2016, plaintiff was diagnosed with Dupuytren’s contractures1 in both
hands. (T. 475). In March 2017, plaintiff had surgery on his left hand. (T. 272-75).
Although the surgery was initially deemed a success, plaintiff still experienced pain and
stiffness in the left hand after six months of physical therapy. (T. 520). He also
received regular injections to alleviate the Dupuytren’s contractures in his right hand.
(T. 771). He had not returned to work since his March 2017 surgery due to the impact
on his ability to grip and lift heavier items. (T. 521, 525).

The ALJ’s decision provides a detailed statement of the medical and other
evidence of record. (T. 13-18). Rather than reciting this evidence at the outset, the
court will discuss the relevant details below, as necessary to address the issues raised by
plaintiff.
IV. THE ALJ’S DECISION
After reviewing the procedural history of the plaintiff’s application and stating
the applicable law, the ALJ found that plaintiff met the insured status requirements
through December 31, 2022, and had not engaged in substantial gainful activity
(“SGA”) since the alleged onset date of March 12, 2017. (T. 12-13). At step two of the

sequential evaluation, the ALJ found that plaintiff had the following severe
impairments: “left hand Dupuytren’s contracture, status post excision (March 2017) left

1 Dupuytren’s contracture is a hand deformity that occurs when knots of tissue form under the
skin of the palm, eventually creating a thick cord that can pull one or more fingers into a bent position.
https://www.mayoclinic.org/diseases-conditions/dupuytrens-contracture/symptoms-causes/syc-203719
43
little finger and carpometacarpal arthroplasty left thumb; arthritis of the left thumb;
right hand Dupuytren’s contracture; and asthma.” (T. 13-14). At step three, the ALJ
found that plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of a Listed Impairment. (T. 14).
At step four, the ALJ found that plaintiff had the RFC to perform less than the
full range of light work, as defined in 20 C.F.R. §§ 404.1567(b). (T. 23-28).
Specifically, she found that plaintiff could occasionally lift and carry twenty pounds,
frequently lift and carry ten pounds, sit for up to six hours, and stand or walk for
approximately six hours in an eight-hour workday with normal breaks. (T. 14-18).

Plaintiff also could perform frequent fine manipulation with both hands and retained
the ability to grasp, hold, turn, raise, and lower objects with either hand. (Id.) The ALJ
also found that plaintiff should avoid exposure to excessive amounts of respiratory
irritants such as dust, odors, fumes, gases and extreme hot and cold temperatures. (Id.)
In making the RFC determination, the ALJ stated that she considered all of the
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. 404.1529” and Social Security Ruling (“SSR”) 16-3p.
(Id.) The ALJ further stated that she considered opinion evidence and prior

administrative medical findings pursuant to 20 C.F.R. §§ 404.1520c. (Id.) The ALJ
also found that plaintiff’s medically determinable impairments could reasonably be
expected to cause his alleged symptoms, but that plaintiff’s statements regarding the
intensity, persistence, and limiting effects of those symptoms were not entirely
consistent with the medical evidence and other evidence in the record. (T. 15).
(T. 18.) The ALJ then evaluated the VE testimony, and found that “[c]onsidering the

[plaintiff’]’s age, education, work experience, and residual functional capacity, the
[plaintiff] has acquired work skills from past relevant work that are transferable to other
occupations with jobs existing in significant numbers in the national economy” that
plaintiff can perform. (T. 18-20). Accordingly, the ALJ determined that plaintiff was
not disabled from the alleged onset date through the date of the ALJ’s decision. (T. 20).
V. ISSUES IN CONTENTION
Plaintiff raises two arguments:

1. The ALJ erred in his RFC determination by failing to properly evaluate the
evidence, including medical opinions, and failing to develop the record by
re-contacting plaintiff’s treating sources. (Plaintiff’s Brief (“Pl.’s Br.”) at
10-22) (Dkt. No. 13).
2. The ALJ’s step five determination was not supported by substantial
evidence because it relied on faulty VE testimony regarding the
transferability of plaintiff’s skills from prior employment. (Pl.’s Br. at 22-
25).
Defendant contends that the Commissioner’s determination should be affirmed because
it was supported by substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 3-17)
(Dkt. No. 17). For the reasons stated below, this court agrees with defendant and will
dismiss the complaint.
VI. RFC/EVALUATING MEDICAL EVIDENCE
A. Legal Standards
1. RFC
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
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 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
(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).
2. Evaluation of Medical Opinion Evidence
The regulations regarding the evaluation of medical evidence have been amended
for claims filed after March 27, 2017, and several of the prior Social Security Rulings,

including SSR 96-2p, have been rescinded. According to the new regulations, the
Commissioner “will no longer give any specific evidentiary weight to medical opinions;
this includes giving controlling weight to any medical opinion.” Revisions to Rules
Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL
168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see 20 C.F.R. §§ 404.1520c(a),
416.920c(a). Instead, the Commissioner must consider all medical opinions and

“evaluate their persuasiveness” based on the following five factors: supportability;
consistency; relationship with the claimant; specialization; and “other factors.” 20
C.F.R. §§ 404.1520c(a)-(c)), 416.920c(a)-(c)).
Although the new regulations eliminate the perceived hierarchy of medical
opinion, the ALJ must still “articulate how [he or she] considered the medical opinions”
and “how persuasive [he or she] find[s] all of the medical opinions.” Id. at
§§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). The two “most important factors
for determining the persuasiveness of medical opinions are consistency and
supportability,” which are the “same factors” that formed the foundation of the treating
source rule. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853. An ALJ is specifically

required to “explain how [he or she] considered the supportability and consistency
factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). With
respect to “supportability,” the new regulations provide that “[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.” Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with
respect to “consistency,” “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not explicitly discuss,
the three remaining factors in determining the persuasiveness of a medical source’s
opinion. Id. at §§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has
found two or more medical opinions to be equally well supported and consistent with
those factors contained in paragraphs (c)(3) through (c)(5). Id. at §§ 404.1520c(b)(3),
416.920c(b)(3).
B. Summary of Medical Opinion Evidence
In this case, the ALJ considered several medical opinions related to plaintiff’s
physical limitations. Plaintiff has challenged the ALJ’s evaluation of these opinions. A
summary of the opinion evidence and the ALJ’s findings are set out below.

1. Consultative Examiner Dr. Kautilya Puri
Dr. Kautilya Puri performed a consultative physical examination of plaintiff on
August 16, 2017. (T. 463-67). Prior to the examination, plaintiff reported a history of
asthma, high blood pressure, and high cholesterol. (T. 463). He described a fainting
episode in 2013 that was likely caused by an irregular heartbeat, and prompted

installation of a pacemaker. (Id.) He also described his surgery and other treatment for
his hand contractures, as well as the continued pain in the left hand when gripping and
lifting (Id.)
During the examination, plaintiff demonstrated a normal gait and the ability to
stand on heels and toes, but he could not walk on them. (T. 464). He used no assistive
devices, and did not require any assistance changing for the examination, getting on

and off the examination table, or rising from a chair. (Id.) Dr. Puri found full flexion,
extension, lateral flexion bilaterally, and full rotary movement bilaterally in both the
cervical and lumbar spine. (T. 465) Plaintiff showed full range of motion in his
shoulders, elbows, forearms, wrists, hips, knees, and ankles bilaterally. (Id.) His joints
movement. (Id.) On examination, Dr. Puri found intact hand and finger dexterity, as
well as full grip strength bilaterally. (Id.)
Based on his examination, Dr. Puri opined that plaintiff had no objective
limitations in communication or fine motor or gross motor activity. (T. 466). In his
opinion, plaintiff had no objective limitations in his gait or activities of daily living, and
had “mild” limitations in his ability to squat, bend, stoop, kneel, grip, and lift weights.

(Id.) Dr. Puri recommended that plaintiff not carry out strenuous activity or be in an
environment likely to increase his respiratory complaints. (Id.)
The ALJ found most of Dr. Puri’s opinion to be persuasive, because it was well-
supported by objective examination findings, and was consistent with the medical
evidence of record and Dr. Krist’s opinion. (T. 17.) She also found Dr. Puri’s opinion

to be consistent with plaintiff’s ability to perform extensive daily activities and hobbies.
(Id.) However, the ALJ found that the restrictions described by Dr. Puri with regard to
bending, squatting, stooping, and kneeling were not supported by the record. (Id.) In
discounting this portion of the opinion, the ALJ noted the lack of complaints about
postural limitations in plaintiff’s functional report and testimony, and the lack of a
diagnosed condition that would suggest postural limitations. (T. 17, 34-38, 217, 465).

2. State Agency Consultant Dr. C. Krist
Dr. C. Krist, a state agency medical consultant, reviewed plaintiff’s
then-current medical records and issued an RFC Assessment on September 14, 2017.
(T. 71-73). The then-available record included Dr. Puri’s consultative examination
for the Dupuytren’s contracture in plaintiff’s left hand. (T. 72-73). Based upon that
review, Dr. Krist opined that plaintiff had the ability to perform light work. (T. 73.)
Specifically, Dr. Krist opined that plaintiff could occasionally lift and/or carry up to
twenty pounds, and could frequently lift and/or carry up to ten pounds. (T. 71). In Dr.
Krist’s opinion, plaintiff could stand and/or walk for a total of about six hours during
an eight hour workday, and could sit for a total of six hours during an eight hour

workday. (Id.) Dr. Krist also opined that plaintiff had no postural limitations, and no
limitations with regard to reaching in any direction or handling, but was limited to
frequent use of his left hand for fine manipulations. (T. 71-72). The consulting
physician further opined that plaintiff should avoid concentrated exposure to extreme
temperatures, wetness, humidity, fumes, odors, and gases due to his history of asthma.

(T. 72).
The ALJ found Dr. Krist’s opinion to be persuasive, because it was “well-
supported by a clear explanation and reference to objective medical evidence.” (T. 17).
He also found the consultant’s opinion to be consistent with the overall record, Dr.
Puri’s opinion, and plaintiff’s description of his own abilities. (Id.) In reaching this
conclusion, the ALJ noted that Dr. Krist’s opinion was further bolstered by the

physician’s “relevant medical and program expertise and knowledge.” (Id.)
3. Orthopedic Surgeon Dr. Jon Loftus
The record did not contain any formal opinion from plaintiff’s treating
physicians. However, the ALJ considered a statement from Dr. Jon Loftus, the surgeon
18).
On September 14, 2017, Dr. Loftus examined plaintiff six months after his hand
surgery. (T. 520-21). Prior to the examination, plaintiff complained that he was lacking
full flexion in all of his fingers, and still had discomfort around the surgical site. (T.
520). During the examination, Dr. Loftus found the extension of plaintiff’s fingers to
be “quite nice” but his flexion arc was not full. (T. 520-21). The physician opined that

“Neither he nor I feel he is ready to return to work and given what he did for his job he
likely will never be able to perform those activities but he will continue his home
exercise program and I will officially keep him out of work and we will see him back in
2 months time.”2 (Id.)
The ALJ did not find this opinion persuasive or give it any evidentiary weight

because it did not identify any functional limitations and it only addressed plaintiff’s
ability to return to his former employment, an issue solely reserved for the
Commissioner. (T. 17-18).
C. Application
Having set forth the legal standard and the various medical opinions, the court

will now explain its basis for concluding that the ALJ’s evaluation of those opinions
and the other record evidence was supported by substantial evidence.

2 The ALJ also incorrectly described treatment notes from Nurse Practitioner Carmelita Woods
(T. 525) and Physician’s Assistant Ryan Bowser (T. 530-531) as notes from Dr. Loftus. (T. 17-18).
These notes contained similar statements that plaintiff was not ready for a return to his previous
employment.
and arthritis in both hands for a number of years. (T. 37, 217-218, 450, 477). He
consistently reported that he had the greatest difficulties with his left hand, even after
March 2017 surgery and physical therapy. (T. 35, 447). At his March 13, 2019 hearing,
plaintiff that he had no problems with his right hand at that time, but his medical
records show a history of treatment with injections, manual manipulation and topical
arthritis cream. (T. 478, 771).

As discussed above, the ALJ found the opinions of Dr. Puri and Dr. Krist to be
persuasive. (T. 17). Plaintiff contends that this reliance to be improper, because Dr.
Puri’s opinion was based upon a single examination, and Dr. Krist’s opinion was based
on an incomplete medical record. Neither contention is valid.
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 such
consultants are qualified experts in the field of social security disability. See Frye 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 in the record."); Miller v. Comm'r of
Soc. Sec., 13-CV-1388 (GLS), 2015 WL 1383816, at *8 (N.D.N.Y. Mar. 25, 2015)

(both consultative examiner and non-examining physician were recognized experts in
evaluation of medical issues in disability claims; [a]ccordingly, their opinions can be
given weight, even greater weight than opinions of treating physicians, when, as here,
they are supported by substantial evidence). Such reliance is appropriate where the
09-CV-486-S, 2010 WL 3211049, at *5 (W.D.N.Y. August 11, 2010) (“State agency
medical consultants are qualified experts in the evaluation of disability claims and as
such, their opinions may constitute substantial evidence if they are consistent with the
record as a whole.”).
Plaintiff has provided no evidence that Dr. Krist’s September 2017 opinion was
made stale by subsequent medical records. Maxwell H. v. Comm'r of Soc. Sec.,

1:19-CV-0148 (LEK/CFH); 2020 WL 1187610, at *5 (N.D.N.Y. March 12, 2020) (A
consultative opinion may become stale “if the claimant's condition deteriorates after the
opinion is rendered and before the ALJ issues his decision.”) (quoting Clute ex rel.
McGuire v. Comm'r of Soc. Sec., No. 18-CV-30, 2018 WL 6715361, at *5 (W.D.N.Y.
Dec. 21, 2018). Instead, the treatment notes after September 2017 indicate that the

documented improvement in plaintiff’s left hand had “plateaued” or reached maximum
medical improvement, suggesting that plaintiff condition had not appreciably changed
since Dr. Krist’s review. (T. 520, 530-31).
Although follow-up treatment notes show that plaintiff still regularly complained
of pain and stiffness in both hands, the overall treatment approach did not change, and
his treatment providers only identified a frustrating lack of continued improvement with

physical therapy, rather than any deterioration in plaintiff’s ability to use his hands. (T.
531). In notes cited by the ALJ, Dr. Loftus reviewed plaintiff’s x-rays in June 2017 and
observed “some scattered degenerative changes but nothing marked,” and
recommended that plaintiff “push” his physical therapy. (T. 16, 510). Imaging reports
disuse following surgery, rather than any deterioration or new impairment. (T. 536). In
September 2018, an orthopedic surgeon, Dr. Walter Short, examined plaintiff’s left
hand and found no evidence of a recurrence of Dupuytren’s or other contractures. (T.
775-776). Dr. Short observed a Dupuytren’s contracture impacting the right ring
finger, and recommended continued injection treatment. (T 775). Plaintiff had a full
range of motion in the other fingers, with normal sensory and motor strength. (Id.)

Accordingly, the ALJ was not required to reject Dr. Krist’s September 2017
opinion or seek an updated consultative report, because the subsequent records do not
contain any additional evidence that may have changed the state medical expert’s
opinion. See Stottlar v. Colvin, 15-CV-0340 (GTS), 2017 WL 972108, at *7 (N.D.N.Y.
Mar. 10, 2017) (noting that “a medical consultant’s failure to consider the complete

medical record does not necessarily compel rejection of the medical consultant's
opinions’ or the ALJ’s finding relying thereon’”). By itself, “[a] gap of time between
when an opinion is rendered and the disability hearing and decision does not
automatically invalidate that opinion.” Majdandzic v. Comm'r of Soc. Sec., No.
17-CV-1172, 2018 WL 5112273, at *3 (W.D.N.Y. Oct. 19, 2018). Only a “meaningful
change” in Plaintiff's condition during the gap will do so. Lamar v. Comm'r of Soc.

Sec., No. 18-CV-829, 2020 WL 548376, at *3 (W.D.N.Y. Feb. 4, 2020). The ALJ
could reasonably conclude that the medical records that post-date Dr. Krist’s opinion
showed no meaningful change.
Plaintiff also contends that the ALJ could not find both Dr. Puri’s opinion and
other, and do not match the RFC determination that plaintiff could frequently perform
fine manipulation with either hand. (Pl.’s Br. at 12-13). Dr. Krist opined that plaintiff
could perform frequent fine manipulation with his left hand, but found no limitations
with plaintiff’s right hand. (T. 71-73). Dr. Puri found no limitations with fine or gross
motor activity, but mild limitations in gripping and lifting weights. (T. 466). The ALJ
considered both these opinions, recognized the slight disparity between them, and

extended the restrictions on fine manipulation bilaterally in light of record evidence of
continuing mild residual impacts in both hands despite continuing treatment. (T. 16-17,
503-504, 510, 515, 531).
The ALJ’s approach to formulating plaintiff’s RFC was valid. She was not
required to accept every limitation in the various medical opinions nor craft an RFC

mirroring a particular opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013)
(“Although the ALJ's conclusion may not perfectly correspond with any of the opinions
of medical sources cited in his decision, he [is] entitled to weigh all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.”). The
decision to discount specific portions of the consultative opinions was also within her
discretion. See Walker v. Colvin, No. 3:15-CV-465 (CFH), 2016 WL 4768806, at *10

(N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may properly ‘credit those portions of a
consultative examiner's opinion which the ALJ finds supported by substantial evidence
of record and reject portions which are not so supported.”).
“[A]lthough there was no medical opinion providing the specific restrictions
record contains sufficient evidence from which an ALJ can assess the [claimant's]
residual functional capacity.’” Cook v. Comm'r of Soc. Sec., 818 F. App'x 108, 109 (2d
Cir. 2020) (quoting Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. 2013));
Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017) (where “the record
contains sufficient evidence from which an ALJ can assess the [plaintiff's] residual
functional capacity, a medical source statement or formal medical opinion is not

necessarily required.”). In this case, the ALJ cited treatment notes showing showed
improved function in the left hand following surgery but also documented arthritic
changes, stiffness, and generalized pain. (T. 15, 445, 478, 510, 515, 775). The ALJ also
noted the diagnosis of Dupuytren’s contractures in plaintiff’s right hand that required
injections to relieve symptoms, despite generally normal examination results. (T. 15,

771-773). In addition, the ALJ considered plaintiff’s statements that he was able to
vacuum, mow the lawn, shop for groceries, camp, and play computer games despite
pain and stiffness in his hands. (T. 16, 214-215, 355).
Plaintiff contends that the ALJ still had an obligation to contact Dr. Loftus to
supply an opinion on plaintiff’s functional limitations, beyond what was found in the
treatment notes. (Pl.’s Br. at 19-20). However, plaintiff has not identified any gap in

the record that would be filled by such opinion. Bradley W. v. Comm’r of Soc. Sec.,
No. 19-1217, 2020 WL 5848833, at *13 (N.D.N.Y. Oct. 1, 2020) (“the ALJ is no longer
required to recontact the treating source in order to properly develop the record”);
Benjalee W. v. Saul, No. 18-1261, 2020 WL 1029023, at *5 (N.D.N.Y. Mar. 3, 2020)
is ‘adequate to permit the ALJ to make a disability determination.’”); Rodriguez v.
Colvin, No. 14-CV-1129, 2016 WL 447715, at *7 (N.D.N.Y. Feb. 4, 2016) (where ALJ
had plaintiff’s treatment records, as well as consultative medical opinions detailing the
functional limitations caused by such impairments, ALJ was under no duty to seek a
medical source statement from a treating provider before making his determination).
The ALJ devoted the bulk of her decision to an analysis of plaintiff’s hand

impairments, in large part due to plaintiff’s unequivocal testimony that the ongoing
difficulty with his left hand was the primary reason that he was unable to return to
work. (T. 15, 39). Plaintiff has similarly focused his arguments before this court on his
ability to use his hands. (Pl.’s Br. at 11-18). However, the ALJ also evaluated
plaintiff’s cardiac history and management of his asthma symptoms as part of the RFC

analysis. (T. 14-15). The ALJ cited cardiology treatment notes indicating that plaintiff
had no significant cardiopulmonary difficulty such as chest pain or tightness, and his
high blood pressure and high cholesterol appeared well-controlled with medication. (T.
13-14, 306, 316, 327, 391). Likewise, plaintiff’s asthma appeared well-controlled with
as-needed use of his rescue inhaler and home nebulizer. (T. 15, 38-39, 260). The ALJ
still accounted for this impairments by limiting plaintiff to light work away from

respiratory irritants, and the court finds that this determination was supported by
substantial evidence. (T. 14-15).
Because the ALJ adequately explained her reliance on the medical records and
plaintiff’s testimony as well as the persuasiveness of the medical opinion evidence, she
that she further develop the record.
VII. Step Five Determination/Transferability of Skills
A. Legal Standards
If a claimant is unable to perform a full range of a particular exertional category
of work, or the issue is whether a claimant’s work skills are transferable to other jobs,
then the ALJ may utilize the services of a vocational expert. 20 C.F.R. §§ 404.1566,

416.966. A vocational expert may provide testimony regarding the existence of jobs in
the national economy and whether a particular claimant may be able to perform any of
those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176,
180 (8th Cir. 1988); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983).
If the ALJ utilizes a VE at the hearing, generally, the VE is questioned using a

hypothetical question that incorporates plaintiff’s limitations. Although the ALJ is
initially responsible for determining the claimant’s capabilities based on all the
evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a
hypothetical question that does not present the full extent of a claimant’s impairments
cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of
Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.

Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be
“substantial record evidence to support the assumption upon which the vocational
expert based [her] opinion.” Dumas, 712 F.2d at 1554. See also Peatman v. Astrue, No.
5:10-CV-307, 2012 WL 1758880, at *7 n.5 (D. Vt. May 16, 2012) (the hypothetical
impairments) (citations omitted); Green v. Astrue, No. 08 Civ. 8435, 2012 WL
1414294, at *18 (S.D.N.Y. April 24, 2012) (citing Dumas, 712 F.2d at 1553-54).
Applicable Social Security regulations state that a claimant will be considered to
have skills that are “transferable” when the “skilled or semi-skilled work activities [the
claimant] did in past work can be used to meet the requirements of skilled or
semi-skilled work activities of other jobs or kinds of work.” 20 C.F.R. §

404.1568(d)(1) (noting that this “depends largely on the similarity of occupationally
significant work activities among different jobs”). The regulations explain that
transferability of skills is “most probable and meaningful” among jobs in which: (1) the
same or lesser degree of skills is required; (2) the same or similar tools and machines
are used; and (3) the same or similar raw materials, products, processes or services are

involved. 20 C.F.R. § 404.1568(d)(2). However, a complete similarity of all three
factors is not necessary for transferability. 20 C.F.R. § 404.1568(d)(2).
SSA has provided further guidance on transferability of skills. SSR 82–41,
Work Skills and Their Transferability as Intended by the Expanded Vocational Factors
Regulations, 1982 WL 31389, at *1 (S.S.A. Feb. 26, 1979). SSR 82-41 provides that
transferability is most probable and meaningful among the jobs in which the same or

lesser degree of skill is required and that, generally, the greater the degree of acquired
skills, the less difficulty an individual will experience in transferring skills to other
jobs. Id., 1982 WL 31389, at *5. In addition, “when a finding is made that a claimant
has transferable skills, the acquired skills must be identified and specific occupations to
Id., 1982 WL 31389, at *7.
B. Application
Advancing age is an important factor associated with transferability because it
reduces the possibility of making a successful vocational adjustment. Id. at *5. SSR
82-41 provides:
To find that an individual who is age 55 or over and is limited to sedentary
work exertion has skills transferable to sedentary occupations, there must
be very little, if any, vocational adjustment required in terms of tools, work
processes, work settings or the industry. The same is true for individuals
who are age 60 and older and are limited to light work exertion.
Individuals with these adverse vocational profiles cannot be expected to
make a vocational adjustment to substantial changes in work simply
because skilled or semiskilled jobs can be identified which have some
degree of skill similarity with their PRW. In order to establish
transferability of skills for such individuals, the semiskilled or skilled job
duties of their past work must be so closely related to other jobs which
they can perform that they could be expected to perform these other
identified jobs at a high degree of proficiency with a minimal amount of
job orientation.
Id. at *5.
Plaintiff was 58 years old when he filed his DIB application, and 60 years old at
the time of the disability determination, so the ALJ questioned the VE regarding
plaintiff’s transferable skills as well as the vocational adjustment needed to work in
representative occupations, and incorporated this expert testimony into her step five
determination. (T. 18, 42-43). The VE testified that plaintiff had acquired the
transferable skills of inventory control, customer service, and operation of electric
powered loading machinery during his prior employment. (T. 42-43). He also testified
the positions of shipping checker and shipping order clerk with little, if any, vocational
adjustment. (T. 19, 45-47).
Plaintiff makes two related arguments with regard to the ALJ’s transferability
analysis at step five - a general contention that the VE testimony did not establish that
plaintiff could make a successful vocational transition to other jobs, and a specific
contention that the VE erred by identifying available jobs that were classified under

different Work Field (“WF”) and Materials, Products Subject Matter and Services
(“MPSMS”) in the Dictionary of Occupational Titles, when compared to plaintiff’s
prior work. (Pl.’s Br. at 22-25).
This court will address the narrower argument first. In making this argument,
plaintiff relies on Program Operations Manual System (“POMS”) DT 25015.017, an

internal SSA manual that recommends searching for occupations with the same or
similar WF and MPSMS codes as part of the “Transferability of Skills Assessment.”
Plaintiff's argument fails. As the defendant correctly notes, POMS 25015.017
specifically provides that “[a]n absolute similarity of all these factors [tools, machines,
raw materials, products, processes or services] is not necessary. POMS DI
25015.017(C)(3) (available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015017).

Moreover, the law of this Circuit is clear that POMS, as an internal policy guidance
manual, does not impose judicially enforceable duties on an ALJ. Tejada v. Apfel, 167
F.3d 770, 775 (2d Cir. 1999) (holding that “POMS guidelines ‘ha[ve] no legal force,
and [they] do [ ] not bind the [Commissioner]’ ” ) (quoting Schweiker v. Hansen, 450
5698056, at *5 (November 4, 2019) (“[T]he POMS manual is merely internal guidance,
and is not intended to be relied upon to create any right enforceable by law.”).
Although the Second Circuit has not addressed the specific question of whether
transferability of skills requires the same or similar WF or MPSMS codes, multiple
federal courts have decisively rejected this argument. See Jones v. Comm’r of Soc.
Sec., No. 8:19-CV-2962-T-30JSS, 2020 WL 8083592, at *6 (M.D. Fla. December 21,

2020) (noting that the federal courts have consistently rejected the argument that
reliance on the WF and MPSMS codes is required when assessing transferability of
skills in a social security proceeding); Cordileone v. Saul, No. CV 18-06388-JEM,
2019 WL 5847832, at *8 (C.D. Cal. November 7, 2019) (collecting cases that rejected
the argument that transferability of skills requires similarity of WF or MPSMS codes);

Solomon v. Comm'r of Soc. Sec. Admin., No. CV-18-00306-PHX-DWL, 2019 WL
1359129, at *4 (D. Ariz. Mar. 26, 2019) (rejecting plaintiff's argument that because the
MPSMS codes for his prior work position and a possible future work position were
different, this meant that plaintiff would require significant vocational adjustment to
work in the new position, and noting that the “ALJ’s transferability determination was
supported by the [VE’s] testimony, which is itself substantial evidence sufficient to

uphold the ALJ’s decision”); Bird v. Berryhill, No. 17-1785-CJB, 2019 WL 1568519,
at * (D. Del. April 10, 2019) (rejecting argument that the ALJ erred in finding that
plaintiff’s prior skills were transferrable to jobs identified by the VE because the
and rejects plaintiff’s argument regarding WF and MPSMS codes.
Plaintiff’s more general challenge to the transferability of skills is premised on
the VE’s testimony that the representative occupations that plaintiff could perform may
have “employer-specific skills as to their system and operations, which is usually
learned within that SVP timeframe.” (Pl.’s Br. at 22, citing T. 58). Plaintiff contends
that these additional “employer-specific skills” could take at least three and potentially

six months of training and experience to acquire, and thus the jobs require additional
skills beyond those transferable from Plaintiff’s prior work. (Pl.’s Br. at 23).
This argument is not persuasive, because the VE consistently testified that the
representative occupations would not require additional vocational adjustment. For
example, the ALJ asked:

Q: All right. Are there any additional skills required of these
occupations?
A: Your Honor, I - - no, I don’t believe there would be. These are all
shipping, inventory control related positions . . . .
Q: All right. And just focusing since he’s now 60, can you tell me are
those occupations still similar to his past work that he would need to
make very little bit [sic] any vocational adjustments in terms of
tools, work processes, work settings, or the industry?
A: Your Honor, I believe that overall yes - - or no. There wouldn’t - -
the position should fall within the requirements for transferability at
3 Of course, a match of the WF or MPSMS codes can be substantial evidence that skills
acquired in prior work are transferable to another job. Gibbons v. Comm’r of Soc. Sec., No. 19-CV-
33Sr, 2020 WL 4432073, at *7 (W.D.N.Y. July 31, 2020). That does not mean there is a requirement
that the job codes match.
skills that would need to be learned from that standpoint.
(T. 46).
As the following excerpts show, Plaintiff’s representative pursued this same line
of questioning during his cross-examination of the VE.
Q: Okay. Now, Mr. Pearson, if we have different work fields in
different materials, products and subject matters codes, would the
claimant have more than very little, if any, vocational adjustment to
these occupations if he’s working in a different work field or if he’s
using different materials, products and subject matters?
A: I think - - there’s always that potential, but with the type of work
we’re looking at, which all three positions really involve essentially
that stock checking component and the inventory control, I don’t
believe that, you know, that would be exactly true in this
circumstance.
Q: But by very definitely [sic] if we’re using different materials,
products and subject matters, wouldn’t there be more than very little
vocational adjustment?
A: I guess - - no, I guess I’m not agreeing with that . . . I think overall
the task and skills acquired to perform these tasks would really
remain the same, and the products although might be somewhat
different, we’re still doing the same basic task with these jobs.
(T. 48-49).
Q: But wouldn’t that working at a transportation services warehouse - -
wouldn’t that encompass the work field code as opposed to the
materials products and subject matter code?
A: No, I don’t believe so. . . . the difference - - if there’s a difference
would potentially - - it would be different settings of warehouses.
We’re looking at warehouse jobs working in essentially different
industries, but the skills associated with it and the fact that it’s a
warehouse setting would all remain the same. It would just be a
different industry potentially that they’d be working in.
Q: And that would be the only skill necessary to perform shipping
checker and shipping clerk jobs? There wouldn’t be any other skills
that someone would have to learn to do these positions?
A: I really - - no, I don’t believe so. I mean, besides employer-specific
skills as to their system and operations, which is usually learned
within that SVP timeframe, no I don’t believe so.
(T. 58).
The VE repeatedly emphasized that the basic work skills in the representative
occupations were the same or similar as those plaintiff had acquired through his prior
work. He also clarified that while there may be an adjustment period to a new industry
or employer, the basic job tasks associated with the occupations were all the same.
Accordingly, the VE testimony relied upon by the ALJ provided substantial evidence
that Plaintiff’s skills would translate to specific other jobs that existed in significant
numbers in the national economy.
The ALJ’s reliance upon the detailed VE testimony is sufficient to satisfy her
obligations under 20 C.F.R. § 404.1568(d)(1) and SSR 82-41, and she marshaled
substantial evidence to support her determination that other work existed in significant
numbers in the national economy that plaintiff could perform. Accordingly, the ALJ's

transferability of skills findings, and the ultimate determination that plaintiff was not
disabled, were supported by substantial evidence.
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff’s
complaint is DISMISSED, and it is
Dated: August 11, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313998. Public record. Not legal advice.