# Weller v. Kijakazi

> District Court, N.D. New York · September 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10315176

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 7, 2022
- **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/10315176

## How later opinions describe it (automated extraction)

- Finding we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony

## Opinion text

NORTHERN DISTRICT OF NEW YORK
SHAWN W.,
Plaintiff,
v.
1:20-CV-1513
KILOLO KIJAKAZI, ACTING (ATB)
COMMISSIONER OF SECURITY,
Defendant.
IRWIN M. PORTNOY, ESQ., , for Plaintiff
LISA SMOLLER, 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, 5).
I. PROCEDURAL HISTORY
On April 3, 2018, plaintiff filed an application for a period of disability and
disability insurance benefits (“DIB”), alleging that he became disabled on September

11, 2014. (Administrative Transcript (“T.”) 19, 154-60). The claim was denied initially
on August 24, 2018. (T. 90-94). Plaintiff requested a hearing, which was held on
December 11, 2019 before Administrative Law Judge (“ALJ”) Dale Black-Pennington.
(T. 41-74). Plaintiff testified at the hearing, represented by counsel. (Id.) ALJ Black-
Pennington issued an unfavorable decision on February 3, 2020, which became the
review on October 6, 2020.1 (T. 1-5 (AC Denial), 19-35 (Hearing 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 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 [she] is not only unable to do [her] previous work but cannot,
considering [her] 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
[she] lives, or whether a specific job vacancy exists for [her], or whether
[she] would be hired if [she] 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.
1 As noted by ALJ Black-Pennington in her decision, plaintiff filed a previous application for
disability benefits on April 1, 2015, which was denied initially on July 1, 2015. (T. 19). A different
ALJ issued an unfavorable decision on March 15, 2017, and the Appeals Council denied plaintiff's
request for review on March 28, 2018, making it Commissioner's final decision. (Id.) Plaintiff did not
further appeal the Commissioner's March 28, 2018 decision. (Id.) ALJ Black-Pennington specifically
stated that any discussion of the evidence prior to March 28, 2018 was for “historical and contextual
purposes only and [did] not constitute reopening.” (T. 19). Plaintiff has raised an issue regarding
reopening which I will discuss below.
engaged in substantial gainful activity. If [she] is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits [her] 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 [her] disabled without considering
vocational factors such as age, education, and work experience …
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, [she] has the
residual functional capacity to perform [her] past work. Finally, if the
claimant is unable to perform [her] 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.
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).
III. FACTS
Plaintiff was born on August 24, 1965 and was 54 years old at the time of the
ALJ’s hearing. (T. 45). Plaintiff is married and lives alone with his wife, who works

full-time as a nurse. (T. 46-47). Plaintiff testified that he had a drivers’ license, and he
could drive, but did not drive very far. (T. 47). Although his wife drove him an hour to
the ALJ’s hearing, plaintiff testified that he had no problem getting there. (Id.) Plaintiff
has a high school diploma and testified that he had no problem reading, writing, or
“conservation.” (T. 48).

Plaintiff’s last work was as an “Operating Engineer” for a union contractor. (Id.)
Plaintiff left that job on September 12, 20143 after he was injured at work and has not
worked since that time. (T. 48-49). Plaintiff testified that he injured his hip, and that
this injury was the basis for his failure to return to work. (T. 49). He stated that he
never looked for any other employment because he did not feel like there was anything

else that he could do. (Id.) Plaintiff testified that his knees, both hips, left ankle, and
left shoulder, together with back pain, limited his ability to work. (T. 49-50). Plaintiff
testified that he was in pain all day, every day, most of the time, “as long as” he was on
his feet, and even if he sat “at times for long periods.” (T. 50-51). For pain relief,
plaintiff sat, rested, or took Tylenol.4 (Id.) Plaintiff took a variety of other non-pain
medications, including Losartan for his blood pressure and Klonopin for his anxiety

and depression. (T. 51-52). Plaintiff testified that the Klonopin was helping his
anxiety, but it made him drowsy/sleepy. (T. 52).
Plaintiff testified that he could only walk about 100 yards before his legs, knees,
hips, and back began to bother him. (T. 53). Plaintiff stated that he could stand for 20
minutes and could sit for 20 to 40 minutes “at the most.” (Id.) He stated that his

2 Boards of Cooperative Educational Services. https://www.boces.org/
3 Plaintiff’s date of onset is September 11, 2014, and the ALJ confirmed that after plaintiff
testified that his last day of work was September 12, 2014. (T. 48-49).
4 Plaintiff later testified that he tried “injections” to relieve the pain, but that they did not work.
(T. 60).
tunnel syndrome caused him to drop things “quite a bit,” but generally, he had normal

use of his hands. (Id.) Later, plaintiff testified that if he was making coffee, doing
dishes, or grabbing something out of the refrigerator, he dropped things. (T. 58-59).
However, he did not have trouble performing fine manipulations. (T. 59).
Plaintiff testified that his depression caused him to have some memory problems,
and that he had a lot on his mind, so that he forgets “numbers” and things that he “has

to do.” (T. 53-54). However, he could follow a story on television and could read and
follow stories when he read the morning newspaper. (T. 54). Plaintiff did not like to be
in crowds of more than 20 people and had some shortness of breath if he climbed stairs
or walked long distances. (Id.) Plaintiff slept only about four hours per night. (T. 54-
55).
Plaintiff took care of his own personal hygiene daily, ran the vacuum, and

accompanied his wife to grocery shop once per week.5 (T. 55). Plaintiff’s wife did the
cooking, but plaintiff could make himself lunch if his wife was at work. (Id.) Plaintiff
enjoyed watching hockey twice a week, but did not have other hobbies and did not
belong to any churches, lodges, community groups, or other organizations. (Id.) In
response to questioning by his attorney, plaintiff testified that, if he lifted or worked too

much with his joints, the next day he would be so sore that he could “hardly move.” (T.
56). Plaintiff also testified that he took breaks 15 or 20 minutes if he was doing

5 Later, plaintiff testified that grocery shopping was an ordeal, that he had to lean on the cart,
and by the time he was done, his back and his legs were “burning.” (T. 61). When he got back home,
he had to sit and rest them. (T. 62).
in the basement, and plaintiff was afraid of falling because he had trouble with balance.

(T. 57). He stated that, recently, he had fallen three times. (Id.)
Plaintiff testified that he was going to have to undergo a knee replacement but
was waiting until his recent ankle tendon replacement healed. (Id.) He stated that his
ankle was still sore, notwithstanding the surgery. (Id.) Plaintiff had already undergone
two hip replacement surgeries, and if he sat on the couch for too long, he would have a

significant amount of lower body numbness which he relieved by standing “until it goes
away,” then sitting back down.6 (T. 58). Plaintiff testified that the problems with his
shoulder prevented him from lifting more than 20 pounds, or “lift it” over his head. (Id.)
Although he testified that the impairment affected his ability to “reach,” he did not cite
any specifics. (Id.)
Plaintiff testified about his sleep apnea, which disrupted his sleep and caused him

to be tired during the day, causing him to fall asleep on the couch from 20 minutes to 2
hours daily. (T. 59). Plaintiff also stated that he had cardiac impairments, and that he
had undergone three cardiac ablations, two of which had failed, while the third “so far
is okay.” (T. 60). Plaintiff testified that he had good and bad days, but he had about
four “bad” days per week, during which he would not be in a good mood. (T. 60-61).

However, he tried to get out of the house and drive around “the block” with his dog. (T.
61). Occasionally, plaintiff went to a wrestling match with his brother. (Id.)

6 Later plaintiff stated that he had been diagnosed with “Meralgia Paresthetica,” which caused
numbness in his legs if he stood for an extended period of time. (T. 59-60). When this occurred,
plaintiff would have to sit for 5 to 10 minutes until he could stand again. (T. 60).
he drank 6-12 cans of beer three times per week. (T. 63). Plaintiff testified that he used

the alcohol as a “self-medicator [sic],” but that he was working on it, and he was “trying
to slow down.” (Id.) Plaintiff stated that he spoke to his primary care physician about
his mood. (Id.)
The ALJ took testimony from VE Cherie Plant. (T. 64-72). VE Plante stated that
plaintiff’s previous work as an operating engineer was medium in exertional level with
an SVP of 6.7 The first hypothetical question posed by the ALJ assumed an individual

of the plaintiff’s age education and prior work experience who was able to lift and/or
carry up to 20 pounds occasionally and 10 pounds frequently, was able to stand, walk,
or sit for six hours of an eight hour day, but required “the ability to change positions for
comfort.” (T. 66). The individual would be able to occasionally climb ramps or stairs,
occasionally crawl, and occasionally reach in all directions with his left hand. (Id.)

Finally, the individual would be able to occasionally manage change to the workplace
environment. (Id.)
The VE stated that this hypothetical individual would not be able to perform
plaintiff’s prior work, but that he could perform the unskilled,8 light work jobs of sales

7 “Specific Vocational Preparation [SVP], as defined in Appendix C of the Dictionary of
Occupational Titles, is the amount of lapsed time required by a typical worker to learn the techniques,
acquire the information, and develop the facility needed for average performance in a specific
job-worker situation.” https://www.onetonline.org/help/online/svp. An occupation with an SVP of six
takes over one year and up to two years to learn. Id. This was “skilled” work. (T. 66).
8 The VE testified that, even though plaintiff’s prior work was skilled, those skills would only
be transferable to medium work, and thus, she chose only unskilled work for this plaintiff, who could
only perform a restricted range of light work. (T. 66-67).
notwithstanding that, during the period in question, the plaintiff’s age went from

“younger individual,” to someone “approaching advanced age” when he turned 50. (T.
67-68). The VE specifically testified that the plaintiff’s reaching limitation on the left
(non-dominant) side would not affect the availability of these jobs because most of the
reaching could be done using the dominant right hand. (T. 68).
The VE discussed time off-task and unscheduled absences, however, her estimate

of what an employer would allow was “inaudible” in the transcript. (T. 68). She did
state that she knew of no employer who would tolerate 20% time off task. (Id.) The VE
stated that an employer would tolerate approximately 6 to 8 unscheduled absences per
year, with the possibility of 1 or 2 additional days “for good reason.” (Id.) Plaintiff’s
counsel asked whether the jobs would still be available if the individual could only
stand for 20 minutes, but then have to sit down, and if he walked for 20 minutes, he

would have to sit down. (T. 70). The VE stated that the ticket taker and the cashier
positions would still be available. (Id.) If the individual were limited to “frequent”
handling or reaching with both hands, the jobs would still be available. (T. 72).
However, if the individual could not handle or reach at all, there would be no jobs
available. (Id.)

There is a substantial amount of medical evidence in the administrative record.
Rather than reciting the evidence at the outset, I will discuss the relevant materials in
my analysis of plaintiff’s claims.
At step one of the sequential evaluation, the ALJ found that plaintiff met the

insured status requirements for DIB through December 31, 2019, and that plaintiff had
not engaged in substantial gainful activity from September 11, 2014 until his date last
insured. (T. 21). The ALJ found the following severe impairments at step two: atrial
disorder, status post three ablations; obstructive sleep apnea; left rotator cuff tear, status
post left shoulder replacement; hypertension; spinal stenosis and spondylosis;

degenerative joint disease of the bilateral hips, status post replacement; bilateral carpal
tunnel syndrome; bilateral femoral cutaneous neuropathy; degenerative joint disease of
the left ankle, status post tendon repair; degenerative joint disease of the bilateral
knees; obesity; major depressive disorder; major anxiety disorder; and alcohol use
disorder. (T. 21-22). The ALJ also found that plaintiff’s gastroesophageal reflux
disorder (“GERD”) was non-severe, and his chronic obstructive pulmonary disorder

(“COPD”) not medically determinable. (T. 22).
At step three, the ALJ found that the severity of plaintiff’s impairments did not
meet or equal the severity of a listed impairment. (T. 22-25). The ALJ considered
Listings 1.02 (major dysfunction of a joint); 1.04 (disorders of the spine); 4.00H
(hypertension as a listed impairment); 4.05 (recurrent arrhythmias); 11.04 (peripheral

neuropathy); 12.04 (depressive, bipolar and related disorders); and 12.06 (anxiety and
obsessive compulsive disorders). (Id.) Finally, the ALJ considered plaintiff’s obesity
for which there is no listing, but may be considered as exacerbating “a co-morbid”
condition to medically equal a listed impairment. (T. 24).
expressed to the VE in the hypothetical question. (T. 26-33). The ALJ found that

plaintiff could perform light work, with the exceptions noted above. (Id.) The ALJ
further found that plaintiff could not perform his past relevant work. However, based
upon the testimony of the VE, the ALJ found at step five that plaintiff could perform
the jobs of Sales Attendant, Cashier II, and Ticket Taker, notwithstanding any
additional limitations on plaintiff’s ability to reach and his need for positional changes.

(T. 34-35).
V. ISSUES IN CONTENTION
Plaintiff raises the following arguments in support of his position that the ALJ’s
decision is not supported by substantial evidence:
1. The ALJ erred in finding that plaintiff suffered from alcohol use disorder
and that it was a severe impairment. (Pl.’s Br. at 15-16) (Dkt. No. 24).
2. The ALJ erred in evaluating treating and examining sources and failed to
develop evidence relative to plaintiff’s carpal tunnel syndrome. (Pl.’s Br.
at 16-20).
3. The ALJ erred in evaluating the Listing of Impairments. (Pl.’s Br. at 20-
21).
4. The ALJ erred in evaluating plaintiff’s statements about pain and other
limitations. (Pl.’s Br. at 21-23).
5. The ALJ erred in determining plaintiff’s RFC, age, and transferability of
skills. (Pl.’s Br. at 23-24).
6. The ALJ erred in questioning the VE. (Pl.’s Br. at 24-25).
7. The ALJ erred in failing to reopen the prior application. (Pl.’s Br. at 25-
26).
and the complaint should be dismissed. (Def.’s Br. at 3-31) (Dkt. No. 27). For the

following reasons, this court agrees with the defendant and will dismiss the complaint.9
VII. REOPENING
A. Legal Standards
“Where a claimant seeks to reopen a claim where a final decision has been
rendered, the Commissioner may refuse such as request under the doctrine of res

judicata.” Saxon v. Astrue, 781 F. Supp. 2d 92, 99 (N.D.N.Y. 2011) (citing Dunn v.
Astrue, No. 08-CV-0704, 2010 WL 376390, at *3 (W.D.N.Y. Jan. 27, 2010)). “The
Commissioner’s decision not to reopen a prior determination is not a final decision for
the purposes of § 405(g), and thus federal courts lack jurisdiction to review the
administrative decision not to reopen a previous claim for benefits.” Id. (citing Byam v.
Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)). “There are two circumstances in which

the federal courts may review the Commissioner’s decision not to reopen a disability
application: (1) where the Commissioner has constructively reopened the case; and (2)
“where the claimant has been denied due process.” Id. (quoting Byam, 336 F.3d at 179).
Although an ALJ can be deemed to have constructively reopened an application where
he reviews the entire record and renders a decision on the merits, “[a] matter is not

constructively reopened when the ALJ merely discusses prior proceedings and evidence
to describe a claimant’s background.” Id. (citing Grant v. Shalala, No. 93-CV-0124,
1995 WL 322589, at *7 (W.D.N.Y. Mar. 13, 1995)).

9 The court will consider plaintiff’s arguments out of order for consistency with the sequential
analysis.
In this case, the ALJ specifically stated that any discussion of the evidence prior

to March 28, 2018 was for “historical and contextual purposes only and [did] not
constitute a reopening.” (T. 19). Thus, this court has no jurisdiction to review the final
decision not to reopen. Plaintiff does not make any of the arguments above that could
allow this court to assume jurisdiction over such a decision. He does not claim that the
ALJ specifically or constructively reopened the case, and he does not claim that

plaintiff was denied due process. Rather, plaintiff argues that
Although the administrative record here contained reports
reflecting the prior period, that decision was not in file. It may
show clear error on the face of the decision by an erroneous
RFC considering his age and lack of transferrable skills. 20
C.F. R.§§ 404.988, 989 in the same way that the ALJ did here.
The ALJ should have obtained it to decide reopening. Schaal
v. Apfel, 138 F.3d 496, 503-505 (2d Cir. 1989)[.]
(Pl.’s Br. at 26).
It appears that plaintiff is arguing that the current ALJ should have obtained the
prior ALJ’s decision in order to make her reopening determination because the prior
decision may have been erroneous.10 Because plaintiff’s argument does not establish
either of the exceptions listed above, this court is without jurisdiction to review the
Commissioner’s decision not to reopen the previous application, and the plaintiff must
establish that he became disabled from March 28, 2018 until December 31, 2019, his

10 Plaintiff also noted that the prior decision was governed by the “treating physician rule,” and
perhaps the relevant analysis would have been more likely to show an error by the ALJ. However,
plaintiff’s argument is conclusory and does not establish the requirements for either exception to the
rule governing reopening.
VIII. SEVERE IMPAIRMENT

A. Legal Standards
A severe impairment is one that significantly limits the plaintiff’s physical and/or
mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c);
see also 20 C.F.R. §§ 404.1521(a), 416.921(a) (noting that an impairment is not severe
at step two if it does not significantly limit a claimant’s ability to do basic work

activities).
The Regulations define “basic work activities” as the “abilities and aptitudes
necessary to do most jobs,” examples of which include, (1) physical functions such as
walking, standing, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to

supervision, co-workers and usual work situations; and (6) dealing with changes in a
routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). “Severity” is determined
by the limitations imposed by an impairment, and not merely by its diagnosis. The
mere presence or diagnosis of a disease or impairment is not, by itself, sufficient to
deem a condition severe. Monique Danielle W. v. Comm’r of Soc. Sec., No. 5:18-CV-

184 (DNH), 2019 WL 2358529, at *4 (N.D.N.Y. June 4, 2019) (quoting Zenzel v.
Astrue, 993 F. Supp. 2d 146, 152 (N.D.N.Y. 2012)).
An ALJ should make a finding of “‘not severe’ . . . if the medical evidence
establishes only a ‘slight abnormality’ which would have ‘no more than a minimal
5:18-CV-627 (GLS), 2019 WL 4757381, at *1 (N.D.N.Y. Sept. 30, 2019) (quoting

Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999)).
Although an impairment may not be severe by itself, the ALJ must also consider “the
possibility of several such impairments combining to produce a severe impairment . . .
.” Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3 (1985). However, a
combination of “slight abnormalities,” having no more a minimal effect on plaintiff’s

ability to work, will not be considered severe. Id. The ALJ must assess the impact of
the combination of impairments, rather than assessing the contribution of each
impairment to the restriction of activity separately, as if each impairment existed alone.
Id.
The step two analysis “may do no more than screen out de minimis claims.” Vogt
on behalf of Vogt v. Comm’r of Soc. Sec., No. 18-CV-231, 2019 WL 4415277, at *4

(W.D.N.Y. Sept. 16, 2019) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.
1995)). If the disability claim rises above a de minimis level, then the ALJ must
undertake the remaining analysis of the claim at step three through step five. Dixon, 54
F.3d at 1030.
B. Analysis

Generally, plaintiffs argue that the ALJ erred in failing to find that an impairment
was severe. In this case, plaintiff argues that the ALJ erred in determining that
plaintiff’s alcohol use disorder was severe. Plaintiff argues that no acceptable medical
source diagnosed such a disorder, and that the ALJ’s error somehow affected the way
has no merit.

As defendant points out, at step two, the ALJ found that plaintiff’s alcohol abuse
disorder was severe. (T. 22). In June 2018, consultative examiner Dr. Robert Greene,
M.D. specifically diagnosed “Alcoholism.” (T. 470). During the examination, plaintiff
admitted to drinking six to eight, and sometimes twelve beers per day. (T. 468). On
March 11, 2016, in a preoperative cardiology consultation, Dr. Bashir Iqbal, M.D.

noted that one of plaintiff’s “problems” was alcohol abuse, even though he later wrote
“history of alcohol abuse.” (T. 409, 410). The doctor noted that, although plaintiff had
cut down on his drinking “significantly,” he had “binge drinking episodes” two to three
times per month. (T. 409). In August of 2016, Dr. Iqbal again listed one of plaintiff’s
“problems” as “alcohol abuse.” (T. 412). He noted that plaintiff had cut down on his
drinking, but “when he does drink, he drinks 12 beers.” (T. 412).

In February of 2017, Dr. Iqbal observed that plaintiff was drinking 15 beers “at
least 3-4 times per week.” (T. 414). Dr. Iqbal’s “problem list” included alcohol abuse,
and his “impression” included “history of alcohol abuse.” (T. 414, 415). On September
6, 2017, Dr. Iqbal noted that since plaintiff’s last visit, he was “binge drinking a 12
pack of beer more than four times a week.” (T. 417). His “impression” included

“history of alcohol abuse.” (T. 418). In March of 2018, Dr. Iqbal noted that plaintiff
was only drinking on the weekends, but he drank 10 to 15 beers each day Friday
through Sunday. (T. 421).
In September of 2018, Dr. Iqbal noted that plaintiff was drinking six beers a day,
abuse (T. 488), his problem list specifically stated “alcohol abuse” (T. 488), and it was

clear from the doctor’s note that plaintiff was still drinking. (T. 487). On October 19,
2018, in an electrophysiology consultation, Dr. Henry Tan, M.D. noted that plaintiff
still drank a “six pack or so” four times per week. (T. 497). On December 5, 2019,
plaintiff’s treating physician, Donald R. Merrihew, M.D. wrote a letter, stating that one
of plaintiff’s “disabilities” was “Alcoholism.” (T. 581).

Plaintiff argues that neither consultative examining psychologist, Brett T.
Hartman, Psy.D. nor non-examining psychologist T. Bruni, Ph.D. diagnosed alcohol
abuse disorder. While it is true that Dr. Bruni did not diagnose or mention plaintiff’s
alcohol abuse (T. 82-83), Dr. Hartman noted both plaintiff’s alcohol and cannabis use.
In his diagnoses, he wrote: “Rule out cannabis and alcohol use disorder.” (T. 461-62)
(noting that plaintiff drank 6-12 cans of beer three times per week). This notation

indicates that the diagnosis of alcohol abuse disorder was a possibility, and it should be
“ruled out,” but that Dr. Hartman may not have had enough information from his one
visit with the plaintiff to make the determination.11
Plaintiff’s previous medical records also show a history of alcohol abuse. In

11 As stated above, the internal medicine consultant, Dr. Greene did make a diagnosis of
alcoholism. (T. 470). At best, there is conflicting evidence in the record that is the province of the ALJ
to resolve. Tammy S. o/b/o A.L.S., No. 1:20-CV-931 (DB), 2022 WL 1488431, at * 11 (W.D.N.Y. May
11, 2022) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998) (“It is for the SSA, and not this court, to weigh the conflicting evidence in the
record”); Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“In our review, we defer to
the Commissioner’s resolution of conflicting evidence.”). “‘If evidence is susceptible to more than one
rational interpretation, the Commissioner’s conclusions must be upheld.’” Id. (quoting McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014)).
day. (T. 286). At the hearing, plaintiff testified that he drank 6-12 cans of beer three

days per week and admitted that he used alcohol to “self-medicat[e].” (T. 62-63). He
testified that he was trying to cut down because he would like to be around to see his
daughter get married. (T. 63). Thus, the ALJ’s determination that plaintiff’s alcoholism
was a medically determinable, severe impairment is supported by substantial evidence,
including a specific diagnosis by his own treating physician, further supported by Dr.

Greene’s consultative diagnosis.
In any event, any alleged error did not harm the plaintiff. The ALJ did not use
plaintiff’s alcoholism as a basis for denying his claim, and plaintiff makes no such
argument.12 Instead, plaintiff argues that the ALJ’s error in finding that alcohol abuse
disorder was a severe impairment “exemplified the ALJ’s selective evaluation of
evidence in other contexts, e.g. the evaluation of the B criteria in the listings of

Impairments. [(T. 24).] It also exemplified the ALJ’s conflation with a light exertional
level, the need to alternately sit and stand, his age, past work and lack of transferrable
skills.” (Pl.’s Br. at 16).
Plaintiff may be arguing that the ALJ’s selectivity in making her severity

12 The ALJ proceeded to consider the subsequent steps in the sequential analysis. In fact, the
ALJ later considered plaintiff’s difficulty with stress, exacerbating his alcohol use disorder to limit
plaintiff to a job with only occasional changes in the work environment. (T. 33). Generally, plaintiffs
allege that the ALJ erred in failing to find that an impairment was severe. Because the ALJ did not use
plaintiff’s alcoholism to deny his claim, if she did make an error at step two, it was harmless. An error
is harmless, and remand is not required, where the “‘application of the correct legal principles to the
record could lead only to the same conclusion.’” Gonzalez v. Kijakasi, No. 21-CV- 2685 (JLC), 2022
WL 3330346, at *9 (S.D.N.Y. August 12, 2022) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
2010) (alteration omitted)) (other citations omitted).
ALJ engaged in “cherry picking” the evidence. As stated above, this court finds that

the ALJ did not err in her step two determination and will address plaintiff’s subsequent
claims of cherry picking below.
IX. LISTING OF IMPAIRMENTS
A. Legal Standards
At step three of the disability analysis, the ALJ must determine if plaintiff suffers

from a listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s
burden to establish that his or her medical condition or conditions meet all of the
specific medical criteria of particular listed impairments. Gabriel C. v. Comm’r of Soc.
Sec., No. 6:18-CV-671 (ATB), 2019 WL 4466983, at *4 (N.D.N.Y. Sept. 18, 2019)
(citing inter alia Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). “Nonetheless, the ALJ
is required to explain why a claimant failed to meet or equal the listings [w]here the

claimant’s symptoms as described by the medical evidence appear to match those
described in the Listings.” Ramirez Morales v. Berryhill, No. 6:17-CV-06836, 2019
WL 1076088, at *3 (W.D.N.Y. Mar. 7, 2019) (quoting Rockwood v. Astrue, 614 F.
Supp. 2d 252, 273 (N.D.N.Y. 2009) (citation and internal quotations omitted)). If a
plaintiff’s impairment “manifests only some of those criteria, no matter how severely,”

such impairment does not qualify. Debra E. v. Comm’r of Soc. Sec., No. 6:18-CV-513
(NAM), 2019 WL 4233162, at *6 (N.D.N.Y. Sept. 6, 2019) (quoting Sullivan v. Zebley,

13 Even if the ALJ found alcoholism to be non-severe, the ALJ would have been entitled to
consider it when making a determination at the subsequent steps. The regulations provide that
combined effects of all impairments must be considered, regardless of whether any impairment, if
considered separately, would be of sufficient severity. 20 C.F.R. §§ 404.1523, 416.923.
present medical findings equal in severity to all the criteria for the one most similar

listed impairment.” Sullivan v. Zebley, 493 U.S. at 531 (emphasis added).
Obesity was eliminated as a listed disability in October of 1999. See S.S.R. 00-
3p. The agency, however, has made changes to the listings to ensure that they still
address obesity, and the description of obesity as a potential contributing factor to
disability is now referenced in section 1.00(Q) of the Listings. The regulations state

that,
[o]besity is a medically determinable impairment that is often
associated with musculoskeletal disorders. Obesity increases
stress on weight-bearing joints and may contribute to
limitation of the range of motion of the skeletal spine and
extremities. The combined effects of obesity with a
musculoskeletal disorder can be greater than the effects of
each of the impairments considered separately. We consider
the additional and cumulative effects of your obesity when we
determine whether you have a severe musculoskeletal
disorder, a listing-level musculoskeletal disorder, a
combination of impairments that medically equals the severity
of a listed impairment, and when we assess your [RFC].
20 C.F.R. Pt. 404, subpt. P, App. 1 § 1.00(Q).
B. Analysis
Plaintiff argues that the ALJ did not sufficiently explain whether plaintiff’s
obesity medically equaled the severity of a listed impairment in accordance with SSR
19-2p. (Pl.’s Br. at 20). Plaintiff argues that this error affected the ALJ’s analysis of all
the listings. Until 2019, the obesity regulations were governed by SSR 02-1p. On May
20, 2019, the agency issued SSR 19-2p, replacing SSR 02-1p, and reflecting some new
2374244, at *1-2 (2019).14 The 2019 ruling applies in this case. (T. 24).

The ALJ cited SSR 19-2p in her analysis of obesity during step three of the
sequential evaluation. (T. 24). She recognized that “the functional limitations caused
by obesity might medically equal the criteria of some listing when considered alone or
may increase the severity of a comorbid condition to the point that the combination of
impairments equals the criteria of a listing.” (Id.) However, she found that the medical

evidence of record did not indicate that the plaintiff’s obesity rose to the level described
by any listing. (Id.) She also stated that plaintiff’s obesity “in conjunction with” his
other impairments did not medically equal “the criteria of another listed impairment.”
Finally, the ALJ stated that she considered the “effects” of plaintiff’s obesity in
assessing his RFC at step four. (Id.)
The ALJ considered each of the potential listed impairments and compared

plaintiff’s functional abilities to the requirements of the Listings, finding that plaintiff’s
impairments did not meet the requisite levels of severity. (T. 22-25). As stated above,
plaintiff’s impairments must meet or medically equal all of the requirements of a listing.
Although SSR 19-2p states that obesity may increase the severity of other comorbid

14 The introduction to SSR 19-2p states that SSR 02-1p was published on September 12, 2002
to
provide guidance on the evaluation of obesity in disability claims. Since
then, we published several final rules that revise some of the criteria we
use to evaluate disability claims under Titles II and XIV of the Act. We
are issuing this SSR to reflect the changes to the rules we have published,
and advances in medical knowledge, since publication of SSR 02-1p.
2019 WL 2374244, at *2.
to the level of the limitations required for a listed impairment, notwithstanding his

obesity.
Plaintiff argues that “[the ALJ] ignored the fact that over time, [plaintiff’s]
obesity and sleep apnea as well as his other impairments medically equaled listing 1.04.
12.04 and 12.06. (Pl.’s Br. at 20). Other than citing plaintiff’s ankle surgery and
injections for pain, the plaintiff does not specify how the ALJ erred in her

determination of his physical impairments in relation to the requirements of the various
listed impairments.
The ALJ considered Listing 1.02 (major dysfunction of a joint). (T. 22-23). The
listing requires “an inability to ambulate effectively.” (T. 22). The ALJ cited the
definition of “ineffective ambulation,” as described in the regulations at Listing 1.00(J).
(T. 22-23). The ALJ noted that “despite an occasionally antalgic gait due to his

multiple musculoskeletal impairments, [plaintiff] maintained good strength in the
lower extremities and continued to ambulate independently without use of an assistive
device throughout the longitudinal record.”15 (T. 23) (emphasis added).
The ALJ also considered Part B of Listing 1.02, which requires involvement of
one peripheral joint in each upper extremity, resulting in an inability to perform fine

and gross movements effectively, which is defined as an “extreme” loss of function,

15 The medical records, cited by the ALJ, indicate a longitudinal history of “normal” or “steady”
gait patterns, with occasional antalgic gait. (T. 322, 328, 332, 336 (antalgic), 384, 469, 497, 541
(antalgic gait), 546 (antalgic gait)). However, notwithstanding the occasional antalgic gait, plaintiff’s
strength was “intact” in his bilateral lower limbs, except for his left ankle dorsiflexion, which on May
22, 2018 was 4/5. (T. 546).
personal hygiene, sorting and handling papers or files, and placing files in a filing

cabinet. (T. 23). The ALJ cited various parts of the record showing that plaintiff
demonstrated good strength in both upper extremities, with intact grip strength and
manipulative abilities, despite the decreased range of motion in his left shoulder. (T.
23) (See T. 384, 469-70). Plaintiff testified that, even though he dropped things, he
generally had “normal” use of his hands, he was able to regularly lift 20 pounds and

had no trouble with fine manipulations or taking care of personal hygiene. (T. 53, 55,
58-59).
In the ALJ’s analysis of Listing 1.04 (disorders of the spine), she stated that,
although imaging of plaintiff’s lumbar spine showed mild stenosis and spondylosis,
there was no evidence of the compromise of a nerve root or the spinal cord as required
by the listing. (T. 23) (citing T. 543, 546). The ALJ also noted that plaintiff showed no

motor loss, and despite his occasional antalgic gate, continued to ambulate
independently. (T. 23) (various citations to the record omitted). Plaintiff makes no
other reference to physical listings.
Although not directly related to plaintiff’s obesity, the ALJ undertook an
extensive analysis of the requirements of both Listings 12.04 and 12.06 with respect to

plaintiff’s mental impairments. (T. 24-25). Plaintiff argues that the ALJ “did not
sufficiently evaluate the s [sic] “overlap” between . . . abilities to understand,
remember, or apply information, and to concentrate, persist, or maintain pace-given the
need to pay attention when using both abilities.” (Pl.’s Br. at 20). In support of this
(“RCEMD”), 81 FR 66138-01, 2016 WL 5341732, at *66144 and argues that the

“DSM-5 definitions for these terms are not consistent with how we have used these
words in our program in the past . . . ,” claiming that mild intellectual disabilities might
have moderate or marked limitations “in understanding, remembering or applying
information, depending on the facts.” (Pl.’s Br. at 20-21). Plaintiff further argues that
the ALJ mischaracterized plaintiff’s activities at home, that he slept a lot, and that his

mental activity was minimal. (Pl.’s Br. at 21).
As defendant points out, plaintiff cites comments to the RCEMD that were not
adopted by the Commissioner, and they do not somehow change the criteria for
evaluation of mental impairments. In any event, in this case, the ALJ looked to the
medical records to determine that plaintiff had “mild” limitations in memory,
understanding, remembering or applying simple or complex instructions, even with his

continued alcohol use. (T. 24). The ALJ cited records from both consulting and
treating sources. (See e.g. (T. 24) (citing T. 463 (consultative), 670, 674, 682, 686, 690,
694, 698 (treating)). Plaintiff had a “moderate” limitation in adapting or managing
himself because he reported a history of social anxiety and difficulty managing stress
that exacerbated his use of alcohol, with negative thoughts that at times interrupted his

daily activities. (T. 25) (citing T. 460-61). The longitudinal record did not support any
greater limitations, and plaintiff did not meet the “B” criteria of the listings which
require at least two “marked” or one “extreme” limitation. (T. 25). Plaintiff has failed
to show that the ALJ’s assessment was not supported by substantial evidence and, thus,
X. RFC/WEIGHT OF THE EVIDENCE/CONSISTENCY

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. Weight of the Evidence
In making a disability determination, the ALJ weighs all the evidence of record
and carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL
374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL
374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a
listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether
the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,
the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The
ALJ must clearly state the legal rules that he applies and the weight that he or she
accords the evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL
2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

The regulations regarding the evaluation of medical evidence were 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).

3. Credibility/Consistency
In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must
take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence
presented by claimants regarding their symptoms, which fall into seven relevant factors

including ‘daily activities’ and the ‘location, duration, frequency, and intensity of
[their] pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326,
2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3);
Social Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in
In 2016 the Commissioner eliminated the use of term “credibility” from the “sub-

regulatory policy” because the regulations themselves do not use that term. SSR 16-3p,
81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.16
The evaluation of symptoms involves a two-step process. First, the ALJ must
determine, based upon the objective medical evidence, whether the medical
impairments “could reasonably be expected to produce the pain or other symptoms

alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).
If so, at the second step, the ALJ must consider “‘the extent to which [the
claimant’s] alleged functional limitations and restrictions due to pain or other
symptoms can reasonably be accepted as consistent with the [objective medical
evidence] and other evidence to decide how [the claimant’s] symptoms affect [her]
ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter

alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in
original).17
If the objective medical evidence does not substantiate the claimant’s symptoms,
the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d
Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s

16 The standard for evaluating subjective symptoms has not changed in the regulations. Rather,
the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the
claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court will
remain consistent with the terms as used by the Commissioner.
17 The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996) which was
superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.
related factors: (1) claimant’s daily activities; (2) location, duration, frequency, and

intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)
other treatment received to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s functional
limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3).
B. Analysis
The plaintiff makes a variety of arguments, all related to the ALJ’s RFC
determination. Plaintiff claims that the ALJ (1) failed to properly weigh the letters of
treating physician, Dr. Merrihew; (2) failed to properly analyze plaintiff’s complaints of
pain and exertional limitations, and (3) failed to develop evidence regarding plaintiff’s

reported tendency to drop things.
First, the court notes that the new regulations regarding the evaluation of
evidence apply in his case because his current application was filed after March of
2017. The “‘most important factors’” to be considered when evaluating the
persuasiveness of medical opinions and prior administrative medical findings are

“‘supportability’” and “‘consistency.’” Boswell v. Comm’r of Soc. Sec., No. 21 Civ.
2364 (JPC/GRJ), 2022 WL 3714669, at *4 (S.D.N.Y. Aug. 29, 2022) (citing 20 C.F.R.
§ 404.1520c(a)).
Plaintiff’s treating primary care physician, Dr. Merrihew, submitted two letters.
The second letter was dated March 15, 2020 and was submitted to the Appeals Council.

(T. 15). In denying plaintiff’s request for review, the Appeals Council found that Dr.
Merrihew’s second letter would not have changed the ALJ’s decision and was not
“exhibited.”18 (T. 2).
Dr. Merrihew’s first letter was a laundry list of plaintiff’s diagnoses, but the only
functional limitation included in that letter was a “20 lb weight lifting limit” based on

plaintiff’s left shoulder replacement. (T. 581). Dr. Merrihew’s second letter was more
detailed regarding plaintiff’s diagnoses, including the reference to an MRI which
showed compression deformities of the intervertebral discs with associated
degenerative changes. (T. 15). The doctor noted that injections had not helped with
pain relief and that currently (in 2020), the plaintiff was taking hydrocodone, which
made him drowsy and made it difficult to complete tasks, “making sedentary work all

but out of the question.” (Id.) Dr. Merrihew also stated that “recently,” plaintiff was
experiencing bilateral arm and wrist pain due to carpal tunnel syndrome. (T. 15).
Other than his conclusory reference to sedentary work, Dr. Merrihew gave no
medical opinion regarding plaintiff’s functional abilities in his 2020 letter, and as
defense counsel argues, Dr. Merrihew’s statement that plaintiff’s condition worsened in

the last six months was not supported by the medical evidence in the record. (Def.’s Br.
at 8-9) (citing T. 441, 476, 469-70, 522, 527, 536, 542-543, 488, 494, 497, 500) (all
showing normal gait, full strength (except for his ankle which was rated 4/5), and good

18 This means that the letter was not given an exhibit number even though it has become part of
the record and may be considered by the court.
have changed the ALJ’s opinion, and that determination is supported by substantial

evidence.19 (T. 2).
Plaintiff argues that Dr. Merrihew’s diagnoses are supported by the record. The
ALJ did not dispute the doctor’s diagnoses, and in fact, used the 20 pound weight limit
proposed by Dr. Merrihew in determining that plaintiff could perform light work with
the additional restrictions, caused by the other medical impairments diagnosed by
plaintiff’s treating physician.20 The ALJ stated that Dr. Merrihew’s 2019 statement

regarding plaintiff’s ability to lift was consistent with Dr. Greene’s consultative
examination, showing a decreased range of motion in the left shoulder and bilateral
carpal tunnel syndrome with pain and tingling in both hands. (T. 33) (citing T. 469-70).
The ALJ found Dr. Merrihew’s 2019 opinion “persuasive.” A diagnosis alone does not
direct a finding of disability. Thomas Roy W. v. Comm’r of Soc. Sec., No. 8:19-CV-972

(GLS), 2020 WL 4365607, at *3 (N.D.N.Y. July 30, 2020) (diagnosis alone without a
finding as to the severity of symptoms and limitations does not mandate a finding of
disability) (quoting Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008); Ogbunugafor
v. Barnhart, No. 01 Civ.10961 (SAS), 2002 WL 31886260, at *3 (S.D.N.Y. Dec. 27,
2002) (citation omitted). Rather, the functional limitations caused by plaintiff’s

impairments should direct the ALJ’s determination of plaintiff’s RFC. Id.
In making the RFC determination, the ALJ carefully considered all the other

19 As stated above, plaintiff’s “date last insured” was December 31, 2019. Thus, if his
conditioned worsened after that date, it would not be relevant to the current application.
20 Plaintiff testified that he could lift 20 pounds. (T. 53).
“omitted” or “failed to understand” evidence, plaintiff does not specify what evidence

the ALJ omitted or failed to understand. A review of the ALJ’s decision shows that she
carefully considered all of plaintiff’s impairments, with citations to specific pages in the
record supporting her conclusions. (T. 26-33). The ALJ considered plaintiff’s obesity
(T. 27); cardiac impairments including atrial fibrillation, sycopal events, blood
pressure, and ablation procedures (T. 27-28); respiratory impairments and related sleep

apnea (T. 28); knee impairments, related previous surgeries, and upcoming knee
replacement (T. 28-29); ankle impairments, including his split tendon tear, together
with related limitations (T. 28-29); hip replacements; lower back impairments (T. 28-
29);21 bilateral femoral cutaneous neuropathy (T. 29); carpal tunnel syndrome (T. 29-
30); and depression and anxiety (T. 30).
The ALJ considered medical opinions from R. Mohanty, M.D., a consultative

state-agency physician, who opined that plaintiff could perform light work, with
frequent crawling an climbing, but only occasional reaching with the left upper
extremity. (T. 31) (citing T. 84-85). However, the ALJ also recognized that Dr.
Mohanty did not see the entirety of the record, and found that Dr. Mohanty’s opinion
was “generally consistent” with the record and “generally persuasive,” in combination

with the other medical evidence. (T. 31).

21 Although plaintiff argues that Dr. Merrihew’s 2020 letter mentioned “an” MRI, confirming
plaintiff’s back impairments, the ALJ specifically referred to “imaging of the lumbar spine in May
2018,” which “confirmed degenerative changes with spinal canal and foraminal stenosis.” (T. 29). The
ALJ had already considered the diagnosis to which Dr. Merrihew may have been referring in his letter.
Thus, the ALJ did not omit consideration of relevant evidence.
Rosas, M.D. and Dr. Jonathan Gainor, M.D. (T. 32). On April 27, 2018, Dr. Gainor

recommended that plaintiff avoid working in an environment which required him to get
in and out of heavy machinery because such activities could aggravate plaintiff’s back
pain. (T. 32) (citing T. 548). Dr. Rosas saw plaintiff for his left ankle arthritis and
instability. (T. 513). On June 20, 2019, Dr. Rosas stated that plaintiff should not return
to work at a job involving prolonged standing or walking, but did not define how long

plaintiff could perform either activity. (T. 32) (citing T. 513).
The ALJ found these opinions “generally persuasive” because, although they
treated plaintiff during the relevant time period, the conclusions were not well
supported or consistent with the evidence from both treating and examining providers
which showed that plaintiff generally maintained full strength and an independent gait,
despite an occasional decrease in range of motion in his back, left ankle, and left

shoulder. (T. 32) (citing inter alia T. 470, 497, 541, 546). The ALJ concluded that the
findings reflected a need for some postural, exertional, and reaching limitations, but
they were not consistent with the two doctor’s proposed limitations. (Id.) The court
would also point out that the ALJ imposed restrictions that would compensate for
plaintiff’s limitations,22 and the light work proposed by the VE did not involve getting

in and out of heavy machinery.
With respect to plaintiff’s mental impairments, the ALJ considered the opinion of

22 Although Dr. Rosas stated that plaintiff could likely never return to a job which involved
prolonged standing or walking, the VE proposed jobs in which the plaintiff could change positions “for
comfort.” (T. 26). Thus, plaintiff would not be required to perform the jobs that Dr. Rosas believed he
could not do, and the ALJ’s analysis of their opinions was supported by substantial evidence.
did not have a severe mental impairment. (T. 31). The ALJ stated that the record was

consistent with mild limitations in most areas of functioning. However, plaintiff’s
persistent alcohol use to cope with stress and anxiety “supports finding a moderate
limitation in adapting and managing himself.” (Id.) Because Dr. Bruni’s opinion did
not reflect that findings and did not appear consistent with the opinion of Dr. Brett
Hartman’s (the examining consultant), the ALJ found Dr. Bruni’s opinion

unpersuasive. (Id.)
The ALJ found Dr. Hartman’s June 13, 2018 opinion “persuasive.” (T. 32). His
opinions were supported by objective testing and consistent with the available mental
health records which noted generally managed anxiety symptoms,23 but ongoing
problems with alcohol abuse. (T. 32) (citing inter alia T. 669-700). These records are
from plaintiff’s treating internist, Dr. Merrihew, citing many normal findings, including

intact memory, appropriate mood and affect, and normal speech. (See e.g. T. 700).
Plaintiff argues that the ALJ should have developed the evidence regarding his
inability to grasp objects due to carpal tunnel syndrome; the length of time that he
would be able to sit, stand, or walk before changing positions; and his mental

23 On several occasions, plaintiff reported to Dr. Merrihew that the “medication helps” his
anxiety. (T. 669, 672, 680, 684, 688, 692). Plaintiff also reported varying levels of severity. On April
18, 2019, plaintiff reported that the anxiety was 5/10 at its most intense, while in May of 2019, he
reported that the anxiety was 3/10 at its most intense. (T. 699, 672). In June of 2019, plaintiff reported
that the anxiety was 4/10 at its most intense, and on August 29, 2019, plaintiff reported that the anxiety
was 3/10 at its most intense. (T. 676, 684). In December of 2019, Nurse Practitioner Kathleen
Emerson noted that “patient with history of anxiety reports his symptoms are controlled with current
medication regimen.” (T. 698). Thus, the ALJ’s finding that the plaintiff’s anxiety symptoms were
generally managed is supported by substantial evidence in the record.
(Pl.’s Br. at 17-20). The ALJ has an affirmative duty to develop the record. Pratts v.

Chater, 94 F.3d 34, 37 (2d Cir. 1996). However, the ALJ need not supplement the
record further when no gaps exist. See Schillo v. Kijakazi, 31 F.4th 64, 76 (2d Cir.
2022) (holding that the ALJ did not fail to develop the record when the claimant did not
identify missing medical records).
There are no gaps in this case, sufficient to require the ALJ to obtain additional

evidence regarding any of the functions asserted by plaintiff. Plaintiff argues that the
ALJ should have obtained more information regarding plaintiff’s ability to perform the
jobs listed by the VE because of the limitations posed by plaintiff’s carpal tunnel
syndrome. (Pl.’s Br. at 17-18). Plaintiff claims that the jobs proposed by the VE
required handling objects frequently, but plaintiff testified that he dropped things when
he reached into the refrigerator. (Id.)

In this case, the ALJ included manipulative restrictions in plaintiff’s RFC,
limiting plaintiff to only occasional reaching in all directions with his left (non-
dominant) hand. The ALJ’s opinion was more restrictive than that of Dr. Greene, who
concluded that plaintiff had moderate to marked limitations for performing “overhead”
activities with his left upper extremity. (T. 26, 471). However, although plaintiff

testified that he dropped things, he also testified that he could lift 20 pounds and that he
had no trouble with fine manipulation such as “buttoning buttons” or “tying shoes.” (T.
58-59). The ALJ cited the report of Dr. Todd Jorgenson, M.D., who performed the
electrodiagnositc study in 2017 and found that, while plaintiff “demonstrated
maintained full strength throughout both hands, wrists, and elbows.” (T. 29) (citing T.

382-84). The ALJ also cited Dr. Greene’s finding that plaintiff had 5/5 grip strength
and “intact” finger and hand dexterity. (T. 30, 470). Given the medical evidence
supporting the ALJ’s determination, she was not required to obtain additional evidence
regarding the plaintiff’s carpal tunnel syndrome or his ability to handle objects.
Plaintiff also argues that the ALJ failed to develop the record regarding the
length of time that he could sit, stand, or walk before changing positions.24 The RFC

included a requirement that plaintiff be able to change positions from sitting, standing,
or walking “for comfort.” (T. 26). The ALJ considered plaintiff’s own testimony that
he would need to change positions for relief. (T. 33, 53, 60). The VE testified that the
individual would be able to change positions and not impede the work that he or she
was performing. (T. 69). The VE understood that the plaintiff would be required to

change positions “at will.” (Id.) Thus, the ALJ was not required to obtain additional
evidence regarding a specific amount of time that plaintiff could perform the various
functions.
Plaintiff also argues that the ALJ should have developed evidence about the
“extent and frequency of plaintiff’s good and bad days.” (Pl.’s Br. 19). Plaintiff does

24 Plaintiff cites the program operations manual (“POMS”) which provides that the need to
alternate between sitting and standing might erode the occupational base of “sedentary work.” (Pl.’s Br.
at 18 & n.33). The court would first point out that the ALJ found that plaintiff could perform “light,”
not “sedentary” work, and that the section cited by the plaintiff applies when the ALJ is considering
using the Medical Vocational Guidelines. 20 C.F.R. Pt. 404, Subpt. P App. 2. When the occupational
base of work is eroded by additional restrictions, the ALJ must obtain a VE, and in this case, the ALJ
did obtain a VE in order to determine what other work plaintiff could perform. See SSR 96-9p, 1996
WL 374185, at *7 (July 2, 1996).
Hartman’s consultative psychiatric report and states that the ALJ “selected” only the

mild restrictions, while ignoring the “fair” or “moderate” restrictions. (Id.) The ALJ
did not “select” only the mild restrictions. As stated above, Dr. Hartman’s only
“moderate” restriction was with respect to regulating emotions, and the ALJ limited
plaintiff to only occasional changes in the work environment.25 (T. 463). Dr. Hartman
stated that plaintiff had a “fair” ability to interact adequately with others and sustain an

ordinary routine. (Id.) Plaintiff notes that the Listings equate “moderate” with “fair,”
thus, plaintiff had “moderate” restrictions in his ability to interact with others and
sustain an ordinary routine. (Pl.’s Br. at 10) (citing Listing 12.00(F)(2). Even if plaintiff
had more than one moderate restriction, it would not prevent him from performing
unskilled work with the additional restriction imposed by the ALJ. See Shawn V. v.
Comm’r of Soc. Sec., No. 1:20-CV-0997 (WBC), 2021 WL 3022295, at *4 (W.D.N.Y.

July 16, 2021) (“The Second Circuit has held that moderate limitations in work-related
functioning does not significantly limit, and thus prevent, a plaintiff from performing
unskilled work.”) The ALJ did not have to include additional restrictions in the
hypothetical to account for these moderate limitations. Id.
Plaintiff also argues that the ALJ mischaracterized his daily activities. (Pl.’s Br.

at 19). The ALJ did not mischaracterize the plaintiff’s activities. Rather, the ALJ
found that plaintiff’s statements regarding his activities, as well as his ability to

25 The ALJ stated that “the claimant’s noted difficulty managing stress and anxiety, particularly
as it exacerbates his alcohol use disorder, supports limiting the claimant to only occasional changes in
the work environment.” (T. 33). It is clear that the ALJ was not only “picking” the mild limitations,
but was considering plaintiff’s entire mental condition.
made to medical personnel. (T. 30). Plaintiff argues that except for riding around the

neighborhood in his truck with his dog or socializing with his brother, he stayed home
and did little. (Pl.’s Br. at 19). However, plaintiff told Dr. Hartman that he was able to
take care of his personal hygiene, prepare simple meals, perform household chores with
breaks, go shopping with his wife for 30 minutes at a time, watch television, check on
his 80-year-old father, and use the computer. (T. 463). Plaintiff told Dr. Greene that he

cooked light meals six times per week, went shopping once a week with his wife,
watched TV,26 read, and went out to socialize with friends. (T. 468). The ALJ included
the plaintiff’s statements in her opinion, concluding that “[u]ltimately, the objective
evidence of record does not support the claimant’s subjective symptom reports. (T. 30-
31, 33). The ALJ also considered that, despite some limitations, including a limited
range of motion in his left shoulder, the plaintiff maintained good strength in his upper

and lower extremities. (T. 30).
The ALJ properly analyzed plaintiff’s subjective symptoms. She cited the two-
part standard governing the analysis of subjective complaints. (T. 26). She discussed
plaintiff’s allegations regarding his limitations, as discussed above, including the
effects of medication, and any aggravating factors.27 Although the ALJ recognized that

plaintiff’s medically determinable impairments could cause his symptoms, she found
that his statements concerning the intensity, persistence, and limiting effects

26 At the hearing, plaintiff testified that he watched hockey twice per week. (T. 55).
27 The ALJ specifically took into consideration plaintiff’s difficulty dealing with stress and self-
medication with alcohol affecting his functional abilities. (T. 31).
evidence in the record. (T. 27).

Plaintiff claims that the ALJ ignored plaintiff’s statements about the frequency of
his palpitations. (Pl.’s Br. at 22-23). The ALJ undertook an extensive discussion of the
history of plaintiff’s cardiac impairment. (T. 27-28). She noted his history of atrial
fibrillation, which was initially stabilized, but recurred in March of 2018, when plaintiff
reported to Dr. Iqbal possible episodes “once or twice per week for the past six

months.” (T. 27) (citing T. 420). However, when he checked his pulse during these
episodes, “it was regular.” (Id.) Plaintiff had started walking a mile each day, which
improved his exercise tolerance. (T. 27) (citing T. 420-21).
The ALJ recognized that later in 2018, plaintiff returned to the cardiologist
complaining of increased fatigue and episodes of palpitation, although he denied
syncope or near syncope. (T. 27) (citing T. 487). The report cited by the ALJ includes

plaintiff’s statement that he was having episodes two to three times per week lasting up
to 45 minutes. (T. 488). The ALJ stated that cardiologists recommended a
cardioversion procedure, which was performed in September of 2018. (T. 27). The ALJ
then discussed plaintiff’s subsequent repeat ablation. (T. 28). Although plaintiff’s
pulmonary care providers noted that he continued to experience some symptoms in

2019, plaintiff could speak in complete sentences, without shortness of breath,
maintained normal breath sounds, blood pressure and heart rhythm.28 (T. 28) (citing T.

28 The report cited by the ALJ was written in February of 2019 by plaintiff’s pulmonary
physician Surendra Nevatia, M.D. while examining plaintiff to clear him for his ankle surgery. (T.
499).
not simply “cherry pick” the evidence, she 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).
Plaintiff argues that the ALJ failed to properly consider plaintiff’s claims of

daytime somnolence and failed to include this symptom in the RFC. Plaintiff testified
that his sleep apnea made him tired during the day and that his anxiety medication,
Klonopin made him drowsy. (T. 52, 59). However, the court notes that in 2019, during
the follow up examinations with Dr. Merrihew’s office for his anxiety, plaintiff denied
fatigue and insomnia. (T. 674, 678, 682, 686, 690, 694, 698). Thus, the ALJ did not err
in failing to include plaintiff’s alleged drowsiness in the RFC.

Finally, plaintiff argues that the ALJ did not adequately evaluate plaintiff’s
“forgetfulness,” citing Dr. Hartman’s report, finding that plaintiff made errors in
calculation and was slow with “serial 7s.” (Pl.’s Br. at 23). While plaintiff’s citation to
the record is correct, Dr. Hartman concluded, nothwithstanding the errors and slowness,
plaintiff’s attention, concentration, and memory were only “mildly” impaired. (T. 462-

63). The court notes that reports from Dr. Merrihew and NP Emerson throughout 2019
indicate “intact” memory, normal mood and affect, appropriate speech, and normal

29 The court notes that in October of 2018, plaintiff told Dr. Tan that other than the palpitations,
chest tightness, and “sometimes” shortness of breath, he did not have any lightheadedness, dizziness,
syncope or near syncope. (T. 497). Plaintiff’s physical examination on the same day showed “regular
rate and rhythm.” (Id.)
moderate impairment in mental functioning will not prevent the individual from

performing unskilled work. Thus, the ALJ did not err in her evaluation of the
plaintiff’s memory or in failing to add a further limitation to the RFC.
Plaintiff claims that the ALJ did not properly consider the combination of his
impairments in determining the RFC. (Pl.’s Br. at 23-24). The ALJ specifically stated
that she was considering plaintiff’s impairments in combination when determining

plaintiff’s RFC. (T. 20, 21, 26, 27). There is no indication in her analysis that she did
not do so. In fact, the RFC specifically covers the combination of plaintiff’s physical
and mental impairments, incorporating plaintiff’s need to change positions, his left-
sided reaching limitations, and his difficulty handling stress. Thus, the plaintiff’s
argument in this regard must fail.
XI. STEP FIVE AND VOCATIONAL EXPERT

A. Legal Standards
At step five of the disability analysis, the burden shifts to the ALJ to demonstrate
that there is other work in the national economy that plaintiff can perform. Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009). “Work which exists in the national
economy” means work existing in significant numbers “either in the region where the

individuals live or in several regions of the country.” McCusker v. Comm’r of Soc. Sec.,
No. 1:13-CV-1074, 2014 WL 6610025, at *3 (N.D.N.Y. Nov. 20, 2014) (quoting SSR
82-53, 1982 WL 3134, at *3 (1982) (internal quotation marks removed).
In the ordinary case, the ALJ carries out this fifth step of the sequential disability
The Grids divide work into sedentary, light, medium, heavy, and very heavy categories,

based on the extent of a claimant’s ability to sit, stand, walk, lift, carry, push, and pull.
20 C.F.R. Pt. 404, Subpt. P, App. 2; Zorilla v. Chater, 915 F. Supp. 662, 667 n.2
(S.D.N.Y. 1996). See also 20 C.F.R. §§ 404.1567 & 416.967. Each exertional category
of work has its own Grid, which then takes into account the plaintiff’s age, education,
and previous work experience. Id. Based on these factors, the Grids help the ALJ

determine whether plaintiff can engage in any other substantial work that exists in the
national economy. Id.
“Although the grids are ‘generally dispositive, exclusive reliance on [them] is
inappropriate’ when they do not fully account for the claimant’s limitations.” Martin v.
Astrue, 337 F. App’x 87, 90 (2d Cir. 2009) (citation omitted). When significant
nonexertional impairments30 are present or when exertional impairments do not fit

squarely within Grid categories, the testimony of a vocational expert is required to
support a finding of residual functional capacity for substantial gainful activity.
McConnell v. Astrue, 6:03-CV-0521 (TJM), 2008 WL 833968, at *21 (N.D.N.Y. Mar.
27, 2008) (citing, inter alia, Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
If the ALJ utilizes a VE at the hearing, the VE is generally questioned using a

hypothetical question that incorporates plaintiff’s limitations. See Aubeuf v. Schweiker,
649 F.2d 107, 114 (2d Cir. 1981). Although the ALJ is initially responsible for

30 A “nonexertional” limitation is a limitation or restriction imposed by impairments and
related symptoms, such as pain, that affect only the claimant's ability to meet the demands of jobs
other than the strength demands. 20 C.F.R. §§ 404.1569a(c), 416.969a(c).
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). Conversely, the ALJ may rely on a VE’s testimony regarding the availability of
work as long as the hypothetical facts the expert is asked to consider are based on

substantial evidence and accurately reflect the plaintiff’s limitations. Calabrese v.
Astrue, 358 F. App’x 274, 276 (2d Cir. 2009). Where the hypothetical is based on an
ALJ’s RFC analysis, which is supported by substantial facts, the hypothetical is proper.
Id. at 276-277.
B. Analysis
Plaintiff argues that the ALJ conflated light and sedentary work, age, and

transferability of skills, and that if the ALJ had utilized the Medical Vocational
Guidelines (“the Grids”) for sedentary work,31 they would have directed a finding of
disabled. (Pl.’s Br. at 24). However, the ALJ found that plaintiff could perform a range
of light work, with the additional requirement of a sit-stand option, in addition to the
reaching and mental restrictions noted above.32 The VE specifically stated that there

were at least three jobs in the light work category in which the plaintiff could sit or
stand for comfort, required only occasional reaching with his left hand, and which had

31 In support of his argument, plaintiff cites 20 C.F.R. Pt. 404, Subpt. P., App. 2 § 201.10.
32 This is further evidence that the ALJ was considering the “combination” of plaintiff’s
impairments to arrive at the appropriate RFC.
Plaintiff’s argument regarding transferability of skills and age is unclear as the

ALJ’s hypothetical asked for unskilled work, where transferability is not an issue, and
the ALJ used the “closely approaching advanced age category” which is the oldest
category applicable to plaintiff. (See T. 67) (hypothetical question).
Plaintiff argues that the VE’s testimony is flawed, and has attached the
Dictionary Of Occupational Titles (“DOT”) descriptions for two of the jobs that she
proposed.33 (Pl.’s Br. at 25 & Pl.’s App. 1-3). Plaintiff argues that the show that the

jobs proposed by the VE, sales attendant, cashier II, and ticket taker all require
“frequent” reaching. Thus, plaintiff’s RFC does not fit into these descriptions because
the ALJ noted that he could reach only “occasionally” with his left arm.
The DOT gives a job type a specific code. In this case, Cashier II is listed in the
DOT as “211.462–010 Cashier II.” The listing establishes, among other things, the

minimum skill and physical exertion levels required to perform that job. (Pl.’s App. 2).
A VE whose evidence conflicts with the DOT must provide a “reasonable explanation”
to the ALJ for the conflict. Brault, 683 F.3d at 446 (citing See Social Security Ruling
(SSR) 00-4p, Policy Interpretation Ruling: Titles II and XVI: Use of Vocational Expert
and Vocational Specialist Evidence, and Other Reliable Occupational Information in

Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000)).

33 The court notes that Appendix 1 and 2 are Sales Attendant and Cashier II respectively. (Pl.’s
App. 1-2). Plaintiff’s Appendix 3 is a duplicate of the Sales Attendant description. Plaintiff has failed
to include a DOT description for the Ticket Taker position, but the court is aware of the argument that
plaintiff is attempting to make and will discuss the exhibits as if a description of all three jobs had been
attached.
the hearing, the VE clearly and reasonably explained the discrepancy.34 She testified

that plaintiff’s limitation to “occasional reaching” on the left side would not affect his
ability to perform these jobs because “[he] could primarily use [his] right upper
extremity, which also happens to be the dominant hand and so the left upper extremity
would only need to reach occasionally.” (T. 68). The VE also opined that an individual
who needed to change positions “for comfort” could also perform these jobs. In

response to a question from plaintiff’s attorney, the VE testified that an individual who
could only perform one activity for approximately 20 minutes before having to change
positions could still perform the jobs of ticket taker and cashier II. (T. 70). The VE
based her testimony on the DOT and her experience “in the field of rehabilitation.” (T.
72). Thus, the fact that the DOT requires “frequent” reaching in the occupations cited
by the VE does not create a discrepancy in her testimony and does not change

plaintiff’s ability to perform the jobs because there is no requirement that the frequent
reaching must be bilateral, and there was no limitation on plaintiff’s ability to reach
with his right upper extremity.
Finally, plaintiff argues that the VE erred because she proposed only national job
numbers, rather that regional numbers. (Pl.’s Br. at 25). As long as the VE shows one

job “in the national economy” that plaintiff can perform, the Commissioner has met his
burden at step five. Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011) (citing 42

34 Prior to the VE’s testimony, the ALJ instructed her to explain any of her opinions that
differed from the DOT, “advise us of the difference and give us a basis for your opinion or definition.”
(T. 65).
VE “identify with specificity the figures or sources supporting [her] conclusion, at least

where [she] identified the sources generally.” Bonilla- Bukhari v. Berryhill, 357 F.
Supp. 3d 341, 354-55 (S.D.N.Y. 2019) (quoting McIntyre v. Colvin, 758 F.3d 146, 152
(2d Cir. 2014)).
WHEREFORE, based on the findings above, it is
ORDERED, that the decision of the Commissioner is AFFIRMED, and

plaintiff’s complaint is DISMISSED, and it is
ORDERED, that the Clerk enter judgment for the DEFENDANT.
Dated: September 7, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315176. Public record. Not legal advice.