Parent v. Kijakazi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

WAYNE P.,

Plaintiff,

v. 8:22-CV-653

(ATB)

KILOLO KIJAKAZI,

Defendant.

______________________________________________________________________

MARK A. SCHNEIDER, ESQ., for Plaintiff

GEOFFREY M. PETERS, 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, 5).

I. PROCEDURAL HISTORY

On March 29, 2019, plaintiff protectively filed an application for Supplemental

Security Income (“SSI”), alleging disability beginning January 1, 2017.

(Administrative Transcript (“T.”) 64). Plaintiff’s application was denied initially on

July 23, 2019 (T. 64), and upon reconsideration on January 28, 2020 (T. 96). On

October 1, 2020, Administrative Law Judge (“ALJ”) Andrew J. Soltes, Jr. conducted a

hearing during which plaintiff and vocational expert (“VE”) Sharon Morra testified. (T.

33-63). Plaintiff was represented by non-attorney representative Kayla Hebert during

1

the hearing. (T. 43). On November 30, 2020, the ALJ issued an order denying

plaintiff’s claim. (T. 10-22). This decision became the Commissioner’s final decision

when the Appeals Council denied plaintiff’s request for review on June 14, 2022. (T. 1-

3).

II. GENERALLY APPLICABLE LAW

A. Disability Standards

To be considered disabled, a plaintiff seeking DIB or Supplemental Security

Income 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

2

such an impairment, the [Commissioner] will consider him 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, 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 ex rel. Williams v. Bowen, 859 F.2d 255,

258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of

3

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) (“[W]e 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 thirty-seven years old on the date of the administrative hearing. (T.

41). He lived with his girlfriend, his girlfriend’s daughter, and two roommates. (T. 41).

He did not have a valid driver license or vehicle, at the time of the hearing. (T. 46-47).

One of his roommates drove him to appointments. (T. 47). His highest level of

education was the completion of the tenth grade, in special education. (Id.).

In 2005, plaintiff worked for a big-box store as a stocker for a little less than a

year, and then worked for six months as a seasonal work farmer in 2006. (T. 44-45).

Plaintiff had various short-term job placements through staffing agencies from 2006 to

2008 and in 2018. (T. 43-44). In 2018, plaintiff worked at a warehouse for about a

week but stopped working because of his “social phobia.” (T. 43). Plaintiff testified he

is unable to work because he “get[s] paranoid and really nervous around people.” (T.

4

48). He testified he only leaves the house to go shopping about once a month. (T. 49-

50).

Plaintiff has been seeing a therapist, once every three to four weeks, for

approximately one and a half years. (T. 51-52). He testified that his condition has

stayed “about the same” during treatment, and that he currently takes medication for

anxiety and depression. (Id.). He testified that he uses an inhaler for Chronic

Obstructive Pulmonary Disease (“COPD”). (T. 53). Because of his COPD, plaintiff is

out of breath after ten minutes of walking and has trouble lifting objects heavier than

fifteen pounds. (T. 53). Plaintiff testified that he currently smokes a pack of cigarettes

a day. (T. 54). He testified that he has no difficulty standing but has limitations sitting

because of Attention-Deficit/Hyperactivity Disorder (“ADHD”). (T. 53-54).

The ALJ’s decision provides a detailed statement of the medical and other

evidence of record. (T. 10-22). 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

The ALJ first determined at step two of the sequential evaluation, that plaintiff

had not engaged in substantial gainful activity since his application date of March 29,

2019. (T. 12). Next, the ALJ found that plaintiff has the following severe impairments:

chronic obstructive pulmonary disease, attention deficit hyperactivity disorder,

persistent depressive disorder, social anxiety disorder, and posttraumatic stress disorder.

(Id.). At the third step, the ALJ determined that plaintiff’s impairments did not meet or

5

medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part

404, Subpart P. (Id.).

At step four, the ALJ found that plaintiff had

[T]he residual functional capacity to perform a full range of work at all

exertional levels but with the following nonexertional limitations: [plaintiff]

must avoid concentrated exposure to dust, fumes, gases, and other

pulmonary irritants; must avoid extreme temperatures; [plaintiff] can

perform unskilled, low stress occupations, where [sic] are defined as those

consisting of simple, routine tasks and entailing no more than basic work-

related decisions; [plaintiff] can occasionally interact with supervisors and

coworkers, but can never interact with the public; and [plaintiff] can tolerate

rare changes in the workplace setting.

(T. 15).

In making the RFC determination, the ALJ stated that he 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. [§] 416.929” and Social Security Ruling (“SSR”) 16-3p.

(Id.). The ALJ further noted that he considered “the medical opinion(s) and prior

administrative medical finding(s)” pursuant to 20 C.F.R. [§] 416.920c. (Id.). After

considering plaintiff’s statements regarding his symptoms, along with the other

evidence of record, the ALJ concluded plaintiff’s “statements concerning the intensity,

persistence and limiting effects of these symptoms are not fully consistent with the

evidence.” (T. 16). The ALJ then noted that plaintiff has no past relevant work and a

limited education. (T. 21). Ultimately, the ALJ then determined there were jobs

existing in significant numbers in the national economy that someone with plaintiff’s

age, education, work experience, and residual functional capacity could perform. (T.

6

21). Accordingly, the ALJ ruled that plaintiff was not disabled from the application

date of March 29, 2019, through the date of the ALJ’s decision. (T. 22).

V. ISSUES IN CONTENTION

Plaintiff raises four arguments:

1. The ALJ failed to properly evaluate the medical opinions and “erroneously

gave controlling weight to the Commissioner’s non-examining consultants

and to his own medical knowledge.” (Plaintiff’s Brief (“Pl.’s Br.”) at 15-

21) (Dkt. No. 9).

2. The ALJ’s step three determination regarding mental health listed

impairments was not supported by substantial evidence. (Pl.’s Br. at 21-

22).

3. The ALJ erred by not finding plaintiff would be off task for at least 10% of

the time, when the ALJ also found moderate limitations in the paragraph B

functional areas. (Pl.’s Br. at 22-23).

4. The ALJ’s RFC assessment was not supported by substantial evidence due

to the ALJ’s failure to incorporate a restriction that plaintiff could not be

exposed to any pulmonary irritants. (Pl.’s Br. at 23-24).

Defendant contends that the Commissioner’s determination should be affirmed because

it was supported by substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 2-14)

(Dkt. No. 10). For the reasons stated below, this court agrees with the defendant and

finds the ALJ’s decision was supported by substantial evidence.

DISCUSSION

VI. LISTED IMPAIRMENT

A. Legal Standard

“Plaintiff has the burden of proof at step three to show that [his] impairments

meet or medically equal a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 272

(N.D.N.Y. 2009) (citing Naegele v. Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y.

7

2006)). “To meet a Listing, [p]laintiff must show that [his] medically determinable

impairment satisfies all of the specified criteria in a Listing.” Rockwood, 614 F. Supp.

2d at 272 (citing 20 C.F.R. § 404.1525(d)). “If a claimant’s impairment ‘manifests only

some of those criteria, no matter how severely,’ such impairment does not qualify.”

Rockwood, 614 F. Supp. 2d at 272 (quoting Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). Additionally, a court may be able to uphold an ALJ’s finding that a plaintiff

does not meet a Listing even where the decision lacks an express rationale for that

finding if the determination is supported by substantial evidence. Rockwood, 614 F.

Supp. 2d at 273 (citing Berry, 675 F.2d at 468).

B. Analysis

Plaintiff argues that he was “presumptively disabled” because his mental health

conditions met or equaled Listings 12.04, 12.06, and 12.15. (Pl.’s Br. at 21-22). The

ALJ found that plaintiff’s severe mental impairments included attention deficit

hyperactivity disorder, persistent depressive disorder, social anxiety disorder, and

posttraumatic stress disorder (“PTSD”). (T. 12). However, the ALJ concluded that

because plaintiff did not meet the requirements of paragraphs B or C of the mental

health listings, his impairments did not meet the listings criteria. (T. 14-15). For the

following reasons, the court concludes that the ALJ’s listing determination at step three

was supported by substantial evidence.

The ALJ specifically addressed listings 12.04 and 12.06 in his step three analysis.

To meet listing 12.04 (Depressive, Bipolar and Related Disorders), a plaintiff must

establish the criteria of paragraphs A and B or the criteria of paragraphs A and C. 20

C.F.R. § 404, Subpart P, App. 1, Listing 12.04. The paragraph A criteria requires

8

medical documentation of either a depressive disorder or bipolar disorder, while

paragraph B requires extreme limitation of one area or a marked limitation of two areas

of mental functioning, which include (1) understanding, remembering or applying

information, (2) interacting with others, (3) concentrating, persisting or maintaining

pace, and (4) adapting or managing oneself. Id. Paragraph C requires a medically

documented history of the existence of the disorder over a period of at least two years,

with evidence of both (a) medical treatment, mental health therapy, psychosocial

support(s), or a highly structured setting(s) that is ongoing and that diminishes the

symptoms and signs of the mental disorder; and (b) marginal adjustment, that is,

minimal capacity to adapt to changes in environment or to demands that are not already

part of daily life. Id.

A plaintiff’s burden for meeting listing 12.06 (Anxiety and Obsessive

Compulsive Disorders) is similar, requiring the claimant to establish the criteria of

paragraphs A and B or the criteria of paragraphs A and C. 20 C.F.R. § 404, Subpart P,

App. 1, Listing 12.06. Paragraph A entails medical documentation of an anxiety

disorder; panic disorder or agoraphobia; or obsessive-compulsive disorder. Id.

Paragraph B again requires an extreme limitation of one area or a marked limitation of

two areas of mental functioning. Id. The “serious and persistent” criteria for paragraph

C are also identical to those under listing 12.04. Id.

In his decision, the ALJ explicitly discussed each of the paragraph B criteria, and

cited evidence in the record supporting each consideration. (T. 12-21). In particular,

the ALJ relied on a report from a consultative examiner who examined plaintiff and

discussed plaintiff’s activities of daily living. (T. 13 (citing T. 428-32)). He also

9

considered the findings from two state agency consultants who reviewed plaintiff’s

then-existing medical records. (T. 13 (citing T. 70-71, 85-86, 538-39, 589-91)).

Ultimately, the ALJ found that plaintiff has no more than moderate limitations in

understanding, remembering or applying information; in interacting with others; in

adapting and managing oneself, and concentrating, persisting or maintaining pace. (T.

13-14). In support of these findings, the ALJ noted consultative examiner Dr.

Hartman’s opinion that plaintiff’s attention, concentration, and memory were only

mildly impaired. (T. 13). The ALJ also noted Dr. Hartman’s observation that plaintiff

was “cooperative, but quite anxious” upon examination, and that his speech was clear

and fluent. (Id.). The ALJ further noted Dr. Hartman’s observation that plaintiff was

well groomed and “reported that he can dress, bathe, and groom himself, cook, clean,

and manage his money.” (T. 14 (citing 428-32)). The ALJ considered that plaintiff had

no close friends other than his girlfriend and immediate family when determining he

would have moderate difficulties in interacting with others. (T. 13). The ALJ therefore

concluded that plaintiff’s mental impairments did not cause at least two marked

limitations or one extreme limitation, and that the paragraph B criteria of Listings 12.04

and 12.06 were not satisfied. (T. 14-15). The ALJ also reasonably concluded that the

evidence failed to establish the presence of paragraph C criteria, based on the record

evidence. (Id.).

To the extent plaintiff argues that other opinions in the record might have

supported a finding of disability, the ALJ adequately explained why he rejected those

opinions, as further discussed below. Accordingly, the ALJ was not required to adopt

their restrictive limitations in his listing analysis. See, e.g., Daniel E. v. Kijakazi, No.

10

6:20-CV-1270 (DEP), 2022 WL 602533, at *8 (N.D.N.Y. Mar. 1, 2022) (“[T]he mere

fact that Dr. Stang opined that plaintiff meets the criteria of the mental Listings does not

obligate an ALJ to find that the plaintiff meets a Listing. The ALJ both provided a

detailed explanation regarding why he found plaintiff did not meet or equal a mental

listing and appropriately explained his reasons for not relying on Dr. Stang’s opinion in

general.”).

Plaintiff argues that a finding of disability was also appropriate because the

record establishes that he met or equaled the criteria of listing 12.15 (Trauma-and

Stressor-Related Disorders). The ALJ did not explicitly consider listing 12.15 in his

decision; however, any error the ALJ committed by not explicitly discussing listing

12.15 is harmless. This listing has the exact same paragraph B requirements as listings

12.04 and 12.06. Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04(B), 12.06(B),

with 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.15(B). Thus, because the ALJ clearly

found that plaintiff’s mental impairments did not meet the criteria for listings 12.04 and

12.06, he implicitly determined that plaintiff’s impairments did not meet the criteria for

listing 12.15. See, e.g., Cote v. Berryhill, No. 3:17-CV-1843, 2018 WL 4092068, at

*12-13 (D. Conn. Aug. 28, 2018) (“Each of the listings that were considered by the ALJ

(Listings 12.02 and 12.06) has the same paragraph B criteria as the listings plaintiff

argues should have been considered (Listings 12.08 and 12.10)[;] . . . [a]s a result, the

ALJ did not err in failing to explicitly consider Listings 12.08 and 12.10[;] [t]he ALJ

assessed the paragraph B criteria for Listings 12.02 and 12.06, which are the same for

Listings 12.08 and 12.10, and the ALJ’s assessment of that criteria is supported by

substantial evidence.”); Sweet v. Comm’r of Soc. Sec., No. 6:15-CV-0156 (GTS/WBC),

11

2016 WL 11478205 at *3 (N.D.N.Y. July 6, 2016) (“Any error the ALJ may have made

in failing to specifically discuss Listing 12.04 was harmless because the criteria outlined

in 12.04(B) is identical to the paragraph (B) criteria of Listing 12.02 and 12.04 and the

criteria in 12.04(C) is identical to the (C) criteria of 12.02(C)[;] [t]herefore, because the

ALJ’s determination that the record did not support a finding that [p]laintiff met the

paragraph (B) and (C) criteria of Listings 12.02 and 12.06, the same reasoning, when

applied to Listing 12.04, would reach the result that [p]laintiff did not meet Listing

12.04”); Rye v. Colvin, No. 2:14-CV-170, 2016 WL 632242 at *5-6 (D. Vt. Feb. 17,

2016) (“Because the ALJ assessed the paragraph B criteria for Listing 12.04, and that

criteria is the same for Listing 12.08, and because the ALJ’s assessment of that criteria

is supported by substantial evidence, the ALJ did not err in failing to explicitly consider

Listing 12.08 at step three”).

For the reasons stated above, the court finds that the ALJ properly considered

plaintiff’s impairments in conjunction with the Listings and reasonably concluded that

his impairments did not meet or medically equal a listing singly or in combination.

Remand is not required based on the ALJ’s step-three findings because they are

supported by substantial evidence.

VII. 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

12

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 can perform and may not simply make conclusory statements regarding a

plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267 (N.D.N.Y. 2010);

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),

13

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

sources, deference to specific medical opinions, and assigning “weight” to a 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

14

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 the

record, but not exactly the same, the ALJ must articulate how he or she considered

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 both treating source and consulting opinions

related to plaintiff’s mental limitations. Plaintiff has challenged the ALJ’s evaluation of

these opinions. A summary of the relevant opinion evidence and the ALJ’s findings are

set out below.

15

1. Dr. Hartman

Dr. Hartman performed a consultative psychiatric evaluation of plaintiff on May

31, 2019. (T. 428). Upon examination, he observed plaintiff’s posture and motor

behavior was normal and his eye contact was appropriate. (T. 430). He observed

plaintiff’s attention and concentration “appeared to be mildly impaired[,]” his judgment

was fair to poor, and his insight was poor. (T. 430). He also observed “[plaintiff] could

do the counting without difficulty, but he made errors in the calculations and serial 7s.”

(T. 430). Based upon his psychiatric evaluation, Dr. Hartman opined that plaintiff is

able to understand, remember, or apply simple directions and instructions. He

is able to maintain personal hygiene and maintain awareness of hazards. He

has moderate difficulties using reason and judgment. He has moderate

difficulty sustaining an ordinary routine. He has marked difficult interacting

adequately with others. He has marked difficulty sustaining concentration.

He has marked difficulty regulating his emotions and marked to extreme

difficulty understanding, remembering, and applying complex directions.

(T. 431). The ALJ found this opinion to be “unpersuasive because his clinical

observations do not support a finding of marked or extreme limitations.” (T. 19). The

ALJ also found the opinion unpersuasive because the medical evidence since the

protective filing date was “not consistent with the limitations that Dr. Hartman

assessed.” (T. 19).

2. S. Hennessey, PhD

Dr. Hennessey is a DDS consultant who reviewed plaintiff’s file on July 23,

2019. (T. 74-77). Dr. Hennessey opined that plaintiff was moderately limited in his

ability to understand, remember, and carry out detailed instructions, but had no

limitations with respect to understanding, remembering, and carrying out short and

16

simple instructions. (T. 74). He also opined plaintiff would be moderately limited in

his ability to interact with the general public and to “complete a normal workday and

workweek without interruptions . . . [and] to perform at a consistent pace without an

unreasonable number and length of rest periods.” (T. 75). However, he also stated that

the opinion of the consultative examiner (Dr. Hartman) that plaintiff had marked

difficulties in social interaction and sustained concentration was “considered and

evaluated as not persuasive, because the [plaintiff] was noted to display only mildly

impaired attention/concentration during the assessment, with fluent speech and

appropriate eye contact.” (T. 77). Dr. Hennessey opined plaintiff was moderately

limited in his “ability to respond appropriately to changes in the work setting” and “to

set realistic goals or make plans independently of others.” (T. 75). The ALJ found Dr.

Hennessey’s opinion “generally persuasive because his findings are largely consistent

with the medical evidence concerning [plaintiff’s] mental health issues.” (T. 20).

3. M. Marks, PhD

Dr. Marks is a disability determination services (“DDS”) consultant who

reviewed plaintiff’s file on January 28, 2020. (T. 89-93). Based on his review, Dr.

Marks opined that plaintiff was moderately limited in his ability to understand,

remember, and carry out detailed instructions, but had no limitations in following short

and simple instructions. (T. 89-90). He also opined plaintiff would be moderately

limited in his ability to interact with the general public and to “complete a normal

workday and workweek without interruptions . . . [and] to perform at a consistent pace

without an unreasonable number and length of rest periods.” (T. 90). However, he also

17

opined plaintiff would still “be able to maintain adequate attention and concentration to

perform simple work routines.” (T. 92). He opined plaintiff was moderately limited in

his “ability to respond appropriately to changes in the work setting” and “to set realistic

goals or make plans independently of others.” (T. 91). The ALJ found Dr. Marks’

opinion “generally persuasive because his findings are largely consistent with the

medical evidence concerning [plaintiff’s] mental health issues.” (T. 20).

4. NPP Jennifer Kanaly

NPP Kanaly is a psychiatric nurse practitioner who has treated plaintiff since

March 6, 2019. (T. 551; Pl.’s Br. at 2 n.1). NPP Kanaly opined, on September 22,

2020, plaintiff would be unable to meet competitive standards or has no useful abilities

to function with respect to nearly all mental abilities and aptitudes. (T. 634-35). She

stated that plaintiff would be extremely limited in his ability to understand information,

remember information, apply information, interact with others, concentrate, persist,

maintain pace, adapt in the workplace, and manage himself in the workplace. (T. 636).

She also opined plaintiff would be off task for at least twenty-five percent of the day

and would be absent from work thirty days per month. (T. 637). The ALJ found NPP

Kanaly’s opinion “wholly unpersuasive because her findings are not remotely

consistent with [plaintiff’s] mental health treatment records, which show that

[plaintiff’s] condition significantly improved with continued therapy and medication

management.” (T. 20).

C. Analysis

1. Evaluation of Medical Evidence

18

Plaintiff argues the ALJ erred by giving “controlling weight” to the

Commissioner’s non-examining consultants and to his own medical knowledge. (Pl.’s

Br. at 15-21). He specifically argues that the ALJ failed to properly evaluate the

medical opinions of Dr. Marks, Dr. Hennessey, Dr. Hartman, and NPP Kanaly. (Id.).

At the outset, the court notes that the ALJ did not give “controlling weight” to

consultative examiners Drs. Marks and Hennessey, as the prevailing regulations no

longer require an ALJ to weigh the various medical opinions. The ALJ did, however,

find the opinions of both Drs. Marks and Hennessey generally persuasive. (T. 20).

The ALJ’s decision in this case reflects his consideration of the relevant

regulatory factors in weighing the state agency consultants’ medical opinions. (T. 19-

20). For example, with respect to supportability, the ALJ properly noted that Drs.

Marks and Hennessey “based their findings purely on a review of [plaintiff’s] file.” (T.

20). Moreover, each of these sources provided a detailed, multi-page explanation in

conjunction with their opinions, in which they cited to objective evidence throughout

the record. (T. 76-77, 91-93). The ALJ also considered the consistency factor with

respect to their opinions, noting that Drs. Marks and Hennessey’s findings were

“largely consistent with the medical evidence concerning [plaintiff’s] mental health

issues.” (T. 20).

The ALJ also adequately considered the regulatory factors with respect to Dr.

Hartman’s opinion. With respect to supportability, the ALJ found the consultative

examiner’s opinion “unpersuasive because his clinical observations do not support a

finding of marked or extreme limitations[.]” (T. 19). To this end, Dr. Hartman

observed that plaintiff only “appeared to be mildly impaired” in attention and

19

concentration, but ultimately opined plaintiff would have “marked difficulty sustaining

concentration” and “rule[d] out attention deficit hyperactivity disorder.” (T. 430-31).

Dr. Hartman also observed that plaintiff had “coherent and goal directed” thought

process and “fair to poor” judgment but then opined plaintiff would have “moderate

difficulties using reason and judgment.” (T. 430-31).

With respect to consistency, the ALJ determined that “the medical evidence since

the protective filing date of March 29, 2019 is not consistent with the limitations

assessed” by Dr. Hartman. (T. 19). Specifically, the ALJ noted that despite Dr.

Hartman’s restrictive opinions, plaintiff’s “mental health treatment records since [the

consultative examination] show that [plaintiff’s] condition significantly improved with

therapy and psychotropic medications.” (T. 19). Dr. Hartman examined plaintiff on

May 31, 2019, and plaintiff’s mental health treatment records extend until September

15, 2020. (T. 428, 670). The ALJ summarized and explicitly considered plaintiff’s

mental health treatment records from March 28, 2019, through May 5, 2020. (T. 16-

19). During that period, plaintiff generally reported that he was “doing good” or

improving. (Id.). On August 19, 2020, plaintiff stated he was “starting to feel a little

better” and “doing ok.” (T. 653). Arguably, plaintiff’s mental health started to

downtrend within a few months prior to the ALJ issuing his disability determination

hearing. On August 31, 2020, he stated there was minimal improvement, he was

anxious, and described irritability. (T. 659). On September 15, 2020, plaintiff stated he

was not “feeling the greatest. [He was] angry and irritable” and his symptoms were

getting worse. (T. 665).

20

Furthermore, the ALJ’s analysis of NPP Kanaly’s opinion was not so deficient as

to warrant remand. Admittedly, the ALJ considered the consistency of NPP Kanaly’s

opinion with the record as a whole; however, he did not address the supportability

factor as it related to her opinion. The ALJ found NPP Kanaly’s opinion “wholly

unpersuasive because her findings are not remotely consistent with [plaintiff’s] mental

health treatment records, which show that [plaintiff’s] condition significantly improved

with continued therapy and medication management.” (T. 20). The ALJ further noted

plaintiff’s “condition significantly improved with continued therapy and medication

management.” (T. 20).

The ALJ’s failure to explain how he considered the supportability of the NPP

Kanaly’s opinion was procedural error. Nevertheless, the ALJ’s decision could still be

affirmed if “‘a searching review of the record’ assures us ‘that the substance of the

[regulation] was not traversed.’” Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293,

at *2 (2d Cir. June 17, 2022) (citations omitted). Here, the court finds the substance of

the regulation was not traversed because NPP Kanaly did not support the restrictive

limitations she assessed with any explanation or citation to objective evidence in the

record. In particular, NPP Kanaly did not explain what findings supported her rather

extreme opinion that plaintiff would miss thirty days per month of work, or her

determination that plaintiff would be off task for at least twenty-five percent of the day.

(T. 637). She also failed to explain which impairments would cause plaintiff’s absences

and off task behavior. (Id.). NPP Kanaly rated all of the categories of mental abilities

to do unskilled work as “unable to meet competitive standards” or “no useful ability to

21

function” without explaining what findings or impairments supported her

determinations. (T. 634).

Plaintiff further argues the ALJ erred by not considering the other factors for

evaluating medical opinions, under 20 C.F.R. § 404.1520I, including relationship with

the plaintiff and specialization. The ALJ was not required to explain how he considered

these factors, however, because an ALJ’s duty to articulate consideration of them is

triggered when he or she “find[s] that two or more medical opinions or prior

administrative medical findings about the same issue are both equally well-supported

(paragraph (c)(1) of this section) and consistent with the record (paragraph (c)(2) of this

section) but are not exactly the same[.]” 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).

In this case, there were no two opinions that triggered this requirement. In any event,

the court is still able to ascertain the ALJ considered these factors. With respect to Drs.

Marks and Hennessey, the ALJ noted that they were DDS consultants who only

reviewed plaintiff’s file. (T. 20). With respect to Dr. Hartman, the ALJ noted that Dr.

Hartman was a consultative examiner who conducted a psychiatric evaluation of

plaintiff. (T. 19). With respect to NPP Kanaly, the ALJ explicitly acknowledged NPP

Kanaly’s treating relationship with the plaintiff and also noted she was an NPP. (T. 16,

20). Therefore, it is clear the ALJ considered the relationship with the plaintiff and

specialization when evaluating the medical opinions.

Plaintiff also argues that the “ALJ cherry picked the notes that [plaintiff’s]

limitations were improving with treatment and medication.” (Pl.’s Br. at 20). Plaintiff

argues the “notes show that NPP Kanaly was regularly adjusting his medications and

that he was having side effects from his medications.” (Id.). First, the ALJ explicitly

22

noted when the medication was increased, decreased, or changed in his summary of the

appointments. (T. 16-19). Second, 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). Therefore, the ALJ was not required to explicitly analyze plaintiff’s side

effects to his medications.

Here, the ALJ did not pick out a few isolated instances of improvement but

pointed to the results of almost every relevant mental examination status, which were

largely normal. (T. 16 (citing T. 392-94, 396-98, 569-71, 577-580, 582-588, 608-11,

617-19, 621-23, 625-27, 629-31)). Additionally, the ALJ specifically analyzed the most

egregious treatment record, occurring on July 25, 2019, in his decision. (T. 17).

However, the majority of the notes not analyzed by the ALJ were similar in nature to

the notes analyzed in the decision. (T. 565, 573-75, 605-07, 653-664). There were only

two notes not explicitly analyzed by the ALJ where plaintiff’s mental health appeared to

deteriorate. The December 4, 2019 note where plaintiff had a setback does not rise to

the level of cherry-picking because the setback was quickly followed by a positive

treatment after plaintiff requested an increase in medication. (T. 612-15, 617-19). On

August 4, 2020, plaintiff stopped taking his medication and “fe[lt] more aggravated

now” and “worse.” (T. 641). On August 12, 2020, after resuming medication, plaintiff

stated there was minimal improvement again. (T. 647-51).

Additionally, the court does not find the ALJ rejected medical opinions in favor

of his own judgment. (Pl.’s Br. at 20). The ALJ properly relied on the state agency

23

consultants’ opinions along with plaintiff’s objective medical evidence to support his

RFC finding. When the stage agency consultants, NPP Kanaly, and Dr. Hartman

reached differing conclusions, this created a conflict in the record. “Because it is the

sole responsibility of the ALJ to weigh all medical evidence and resolve any material

conflicts in the record where the record provides sufficient evidence for such a

resolution, the ALJ will weigh all of the evidence and see whether it can decide whether

a claimant is disabled based on the evidence he has, even when that evidence is

internally inconsistent.” Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (citing

Richardson v. Perales, 402 U.S. 389, 399 (1971).

Although “the opinion of a non-examining state agency consultant is ordinarily

not a sufficient substitute for the opinion of the claimant’s treating provider,” Vecchitto

v. Saul, No. 3:19-CV-726, 2020 WL 4696791, at *6 (D. Conn. Aug. 13, 2020), courts

have repeatedly held that “an ALJ is entitled to rely upon the opinions of both

examining and non-examining State Agency medical consultants, since such

consultants are deemed to be qualified experts in the field of social security disability.”

Christina K. v. Comm’r of Soc. Sec., No. 20-CV-1244, 2022 WL 409576, at *4

(W.D.N.Y. Feb. 10, 2022) (emphasis added). In this case, the ALJ’s written decision

“makes it clear that he considered [Drs. Marks and Hennessey’s] opinions as just one

part of a larger analysis of plaintiff’s treatment.” Johnathan M. v. Comm’r of Soc. Sec.,

No. 3:21-CV-1076, 2022 WL 18831465, at *6 (N.D.N.Y. Nov. 9, 2022). For example,

the ALJ did not discount NPP Kanaly and/or Dr. Hartman’s findings wholly on the

basis of these opinions, but looked to their consistency with the record as a whole and

the degree of support provided for their opinions. Moreover, Dr. Marks analyzed

24

plaintiff’s record on reconsideration in early 2020 and had access, not only to Dr.

Hartman’s report, but also to more recent medical records, including those of NPP

Kanaly. See id. (distinguishing plaintiff’s disability case from those cases in which “the

ALJ tries to rely too heavily on the opinion of a non-examining State Agency consultant

who reviewed the file early in the disability development process[,]” and rendered their

opinion prior to that of the consultative examiner). Accordingly, the ALJ’s assessment

of the medical evidence of record is not a basis for remand in this instance.

2. RFC Mental Limitations

Plaintiff also argues that the ALJ erred by not incorporating all of plaintiff’s

mental limitations in the RFC. (Pl.’s Br. at 22). However, plaintiff does not identify

any specific limitations that the ALJ failed to include. (Id.). The ALJ restricted

plaintiff to only “perform[ing] unskilled, low stress occupations . . . consisting of

simple, routine tasks and entailing no more basic work-related decisions.” (T. 15).

This demonstrates that the ALJ considered plaintiff’s moderate difficulties in

understanding, remembering, or applying information when determining his RFC. (T.

13). The ALJ also limited plaintiff to only occasional interactions with

supervisors/coworkers and no interaction with the public. (T. 15). This demonstrates

the ALJ considered plaintiff’s moderate difficulties in interacting with others. (T. 13).

Finally, the ALJ restricted plaintiff to only rare changes in the workplace setting. (T.

15). This demonstrates the ALJ considered plaintiff’s moderate difficulties in adapting

or managing oneself. (T. 14).

To the extent that the ALJ did not include any limitations regarding

concentrating, persisting, or maintaining pace in plaintiff’s RFC, the ALJ did note that

25

NPP Kanaly observed plaintiff had a normal attention span on multiple occasions and

was attentive during some sessions. (T. 16-19). Additionally, the ALJ noted that NPP

Kanaly detected no signs of attentional or hyperactive difficulties in one of their

sessions. (T. 18). It is clear based on these observations that the ALJ considered

plaintiff’s moderate difficulties in concentrating, persisting, or maintaining pace when

determining plaintiff’s RFC. (T. 14).

Moreover, even assuming that the ALJ should have adopted some of Dr.

Hartman’s marked limitations, “courts within the Second Circuit have repeatedly held

that marked limitations in mental functioning, including a marked limitation in the

ability to deal with stress, do not mandate a finding of disability, but can be addressed

with additional limitations to a plaintiff’s RFC, such as limiting plaintiff to simple,

routine and repetitive tasks in a work environment free of fast-paced production

requirements.” Kya M. v. Comm’r of Soc. Sec., 506 F. Supp. 3d 159, 166 (W.D.N.Y.

2020) (cleaned up). Here, the ALJ specifically tailored the RFC in consideration of

plaintiff’s mental limitations. Plaintiff has failed to satisfy his burden of introducing

evidence demonstrating that he was otherwise unable to perform work commensurate

with the ALJ’s RFC finding. See Reynolds v. Colvin, 570 F. App’x 45, 47 (2d Cir.

2014) (“A lack of supporting evidence on a matter where the claimant bears the burden

of proof, particularly when coupled with other inconsistent record evidence, can

constitute substantial evidence supporting a denial of benefits.”); Dumas v. Schweiker,

712 F.2d 1545, 1553 (2d Cir. 1983) (“The [Commissioner] is entitled to rely not only

on what the record says, but also on what it does not say.”). Accordingly, the court

26

does not find any error in the ALJ’s incorporation of plaintiff’s mental limitations in his

RFC.

3. Off Task Behavior

Plaintiff argues the ALJ erred by not finding plaintiff would be off task more than

ten percent of the workday, when the ALJ also found plaintiff would have moderate

limitations in all paragraph B criteria areas. (Pl.’s Br. at 22-23). NPP Kanaly opined

that plaintiff would be off task more than twenty-five percent of the day and would need

to be absent from work thirty days per month because of his impairments. (T. 637).

However, the ALJ also noted that NPP Kanaly found plaintiff had a normal attention

span in multiple appointments and did not always exhibit ADHD. (T. 18-19). For the

reasons discussed above, plaintiff properly found NPP Kanaly’s opinion wholly

unpersuasive. In particular, NPP Kanaly’s opinion that plaintiff’s impairments would

virtually prevent him from attending work at all in a given month is belied by her own

treatment notes.

The ALJ also noted Dr. Hartman determined plaintiff’s attention, concentration,

and memory were only mildly impaired. (T. 16).

A mere finding of a “moderate” limitation, without other evidence in the

record to support a need to be off task as a result of an individual’s mental

impairment, need not be interpreted as denoting disabling impairment of

functioning. Rather, as has been noted many times in this district, a moderate

limitation is not inconsistent with the ability to perform unskilled work. See

Katherine Marie S. v. Comm’r of Soc. Sec., [No.] 18-CV-0233, 2019 WL

1427456, at *9 (N.D.N.Y. Mar. 29, 2019) (Dancks, M.J.) (stating that “courts

within the Second Circuit have routinely held that individuals suffering from

‘moderate’ difficulties with memory, concentration, and handling stress could

reasonably be found to have the residual functional capacity to perform

‘simple, routine and repetitive tasks’”) (internal alterations omitted)

27

Maria A. R. v. Kijakazi, No. 6:21-CV-0290 (DEP), 2022 WL 2954376, at *10 (N.D.N.Y

July 26, 2022) (finding no error where the ALJ did not find an off task limitation, when

there was only one source who opined a need for plaintiff to be off task and substantial

evidence supported the exclusion of an off task limitation).

Plaintiff cites Jennifer E. v. Commissioner, where this court found the ALJ

substituted his lay opinion for that of the treating provider. (Pl.’s Br. at 22-23).

However, Jennifer E. was decided under the treating physician rule where treating

providers were given controlling weight “so long as [their opinion was] ‘well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in the case record.’” Jennifer E. v.

Comm’r of Soc. Sec., No. 3:19-CV-0321 (ATB), 2020 WL 2059823, at *4 (N.D.N.Y

Apr. 29, 2020) (citing Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)); Sue-Anne O.

M. v. Saul, No. 3:20-CV-00301, 2021 WL 6551096, at *9 n.14 (D. Conn. Sept. 22,

2021) (“These cases . . . refer to the weighing of evidence, a requirement under the old

regulations, and are not persuasive under the new regulations, which no longer require

the weighing of evidence”). Moreover, in Jennifer E., there were multiple opinions

finding plaintiff would be off task more than thirty percent of the week. Jennifer E.,

2020 WL 2059823, at *10. Here, NPP Kanaly is the only opinion in the record finding

plaintiff would be off task, and the degree to which she opined that plaintiff would be

off task and/or absent does not find adequate support in the record. (T. 637). Thus, this

court finds the ALJ did not err by not including an off-task limitation.

28

4. Pulmonary Irritants

Plaintiff finally argues that the ALJ erred by limiting plaintiff to avoid

concentrated exposure to pulmonary irritants instead of avoiding all exposure to

pulmonary irritants. (Pl.’s Br. at 23-24). The ALJ found the severity of plaintiff’s

chronic obstructive pulmonary disease did not meet the listing for a chronic respiratory

disorder because plaintiff did “not have a FVC of 1.75 or less or a FEV of 1.4 or less.”

(T. 12). The ALJ noted plaintiff’s pulmonary function test on May 31, 2019, showed

plaintiff had a FVC of 3.26 and a FEV of 1.63. (T. 12). Consultative examiner Dr.

Wassef opined plaintiff “should not be exposed to extremes in temperature, secondhand

smoke, perfumes, chemicals, or any type of respiratory irritants.”1 (T. 437). The RFC

included the limitation, plaintiff “must avoid concentrated exposure to dust, fumes,

gases, and other pulmonary irritants.” (T. 15).

Plaintiff cites Cassandra H. v. Comm’r. of Soc. Sec., No. 8:19-CV-226 (ATB),

2020 WL 1169404, at *1 (N.D.N.Y Mar. 10, 2020) to support his argument. (Pl.’s Br.

at 23). In Cassandra H., this court did not decide whether the ALJ erred by only

limiting plaintiff to concentrated exposure as opposed to any exposure. Cassandra H.,

2020 WL 1169404, at *15. Instead, the court held “even if the ALJ erred in

determining that plaintiff should avoid only ‘concentrated’ exposure, all but one of the

jobs listed by the VE did not involve any exposure to pulmonary irritants [and]. . . [a]ny

error would have been harmless.” Cassandra H., 2020 WL 1169404, at *15. Similarly,

in this case, the jobs cited by the VE do not expose workers to pulmonary irritants. See

1 The ALJ incorrectly noted that “Dr. Wassef assessed that [plaintiff] should not be exposed to

temperature extremes, secondhand smoke, perfumes, chemicals, or any type of respiratory

irritants.” (T. 19).

29

DICOT 729.687-010 Assembler, Electrical Accessories I, 1991 WL 679733; DICOT

922.687-086 Returned-goods Sorter, 1991 WL 688139; DICOT 559.687-074, Inspector

and Hand Packager, 1991 WL 683797. Thus, this court finds even if the ALJ erred, it

was harmless error.

WHEREFORE, based on the findings above, it is

ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff’s

complaint its DISMISSED, and it is

ORDERED, that the Clerk enter JUDGMENT FOR DEFENDANT.

Dated: June 12, 2023

30