Brown v. Saul

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Peter B.,

Civil No. 3:20-cv-00966-TOF

Plaintiff,

v.

Kilolo Kijakazi, Acting Commissioner of

Social Security,! March 30, 2022

Defendant.

RULING ON PENDING MOTIONS

The Plaintiff, Peter B.,? appeals the decision of the Commissioner of Social Security

(“Commissioner” or “Defendant”), rejecting his application for Supplemental Security Income

(“SSI”) benefits under Title XVI of the Social Security Act. (Compl., ECF No. 1.) He has moved

the Court for an order reversing or remanding the Commissioner’s decision. (/d. at 3; ECF No.

22.) The Commissioner has moved for an order affirming that decision. (ECF No. 24.)

The Plaintiff makes four principal arguments for reversal or remand. First, he argues that

the Administrative Law Judge (“ALJ”) erred at Step Five of the five-step sequential evaluation

process by relying on faulty testimony from, and a faulty hypothetical to, a vocational expert

1 When the Plaintiff filed this action, he named the then-Commissioner of the Social Security

Administration, Andrew Saul, as the defendant. (Compl., ECF No. 1.) Commissioner Saul no

longer serves in that office. His successor, Acting Commissioner Kilolo Kiyjakazi, is automatically

substituted as the defendant pursuant to Fed. R. Civ. P. 25(d). The Clerk of the Court is

respectfully requested to amend the caption of the case accordingly.

2 Pursuant to Chief Judge Underhill’s January 8, 2021 Standing Order, the Plaintiff will be

identified solely by first name and last initial, or as “the Plaintiff,” throughout this opinion. See

Standing Order Re: Social Security Cases, No. CTAO-21-01 (D. Conn. Jan. 8, 2021).

(“VE”). (ECF No. 22-2, at 1-11.) Second, he asserts that the ALJ erred when she determined that

his alcohol abuse was material to the question of his disability. (Id. at 11-15.) Third, he claims

that the ALJ erred at Step Two of the five-step process when she found that his respiratory,

gastrointestinal and pancreatic impairments were non-severe. (Id. at 15-18.) Fourth and finally,

he claims that the ALJ erred in her assessment of the medical opinion evidence. (Id. at 18-24.)

Having carefully considered the parties’ submissions, and having carefully reviewed the

entire, 916-page administrative record, the Court concludes that the ALJ committed no reversible

legal error and that her decisions were supported by substantial evidence. Accordingly, the

Plaintiff’s Motion to Reverse the Decision of the Commissioner (ECF No. 22) is DENIED, and

the Commissioner’s Motion for an Order Affirming the Decision (ECF No. 24) is GRANTED.

The undersigned will therefore direct the Clerk of the Court to enter judgment in the

Commissioner’s favor, as set forth more fully in Section IV below.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiff applied for Title XVI SSI benefits on March 18, 2016. (R. 210-18.) He

claimed that he could not work due to “chronic pancreatitis, high blood pressure, diabetes, constant

vomiting, hypertension and cholesterol issues.” (R. 117-18, 136.) He alleged a disability onset

date of July 15, 2014. (R. 210.)

A Social Security Administration (“SSA”) disability claims adjudicator opened a file and

sent the Plaintiff’s medical record off for evaluation by Dr. Lois Wurzel, M.D. (R. 127.) Dr.

Wurzel noted the Plaintiff’s “chronic pancreatitis,” but observed that it was in a “setting of active

chronic alcoholism.” (R. 126.) She added that his “abdominal imaging [was] unremarkable.” (Id.)

With respect to high blood pressure, she noted that the Plaintiff was taking anti-hypertensive

medication, and that he had recently had a blood pressure reading of 150/100 and an “unremarkable

[cardiovascular] exam.” (Id.) As to diabetes, she noted that the Plaintiff was taking Metformin;

that he had an AIC reading of 5.4°; and that one of his medical providers had recorded “{n]Jo

sensory deficits” at a recent exam. (/d.) And with respect to “cholesterol issues,” the doctor noted

that the Plaintiff had been taking Atorvastatin and that his cholesterol levels presented “[n]o

functional limitation.” (/d.) In summary, she concluded that the Plaintiff had only one medically

determinable impairment — “5690 — Other Disorders of the Gastrointestinal System” — but that that

impairment was non-severe. (R. 127.)

Although the Plaintiff had not asserted any psychological impairment as a basis for

disability, his medical record contained a number of references to mental health issues, along with

treatment records from a therapist. (R. 117-33.) The SSA therefore sent his medical record to Dr.

Katrin Carlson, Psy.D., for evaluation. (R. 128.) After review, Dr. Carlson concluded that the

Plaintiff had two medically determinable psychological impairments — “2960 — Depressive,

Bipolar and Related Disorders” and “3000 — Anxiety and Obsessive-Compulsive Disorders” — and

that both impairments were severe. (R. 127.) Yet she also concluded that despite these

impairments, the Plaintiff was no more than moderately limited in any area of mental functioning.

(R. 128-30.) With Dr. Wurzel’s and Dr. Carlson’s evaluations in hand, on June 20, 2017, the SSA

determined that the Plaintiff was “not disabled.” (R. 132.)

The Plaintiff then requested that the SSA reconsider its decision. (R. 167-69.) Dr. Barbara

Coughlin, M.D., evaluated his physical impairments at the reconsideration level, and noted that

his “chronic pancreatitis . . . has improved since he started on medical marijuana.” (R. 147.) The

3 “According to the National Institute of Diabetes and Digestive and Kidney Diseases, [t]he

A1C test is a blood test that provides information about a person's average levels of blood glucose,

also called blood sugar, over the past 3 months, and an AIC level of below 5.7 percent is normal,

an AIC level of 5.7 to 6.4 percent indicates prediabetes, and an AIC level of 6.5 percent or above

is indicative of diabetes.” Covey v. Colvin, 204 F. Supp. 3d 497, 501 n.3 (W.D.N.Y. 2016) (internal

quotation marks omitted).

doctor also observed that the Plaintiff had regained weight that he had lost during an earlier bout

of pancreatitis, and that “he feels that his symptoms are manageable.” (Id.) She noted a diagnosis

of chronic obstructive pulmonary disease, but stated that it had “improved on [medication]” and

that he “has had no recent significant exacerbations.” (Id.) Whereas Dr. Wurzel had concluded

that the Plaintiff had only one medically determinable physical impairment, Dr. Coughlin

concluded that he had two – “5960 – Other Disorders of the Gastrointestinal System” and “4960

– Chronic Respiratory Disorders.” But she also determined that both impairments were non-

severe. (R. 148.)

Dr. Kenneth Bangs, Ph.D., reviewed the psychological portion of the file at the

reconsideration level. (R. 148-52.) As Dr. Carlson had done, Dr. Bangs concluded that the

Plaintiff suffered from the severe impairments of “depressive, bipolar and related disorders” and

“anxiety and obsessive-compulsive disorders.” (R. 148.) But he also agreed with Dr. Carlson that

these impairments led to no more than a moderate limitation in any dimension of mental

functioning. (R. 150-52.) With Dr. Coughlin’s and Dr. Bangs’ evaluations in the file, the SSA

affirmed its initial determination of “not disabled” on January 22, 2018. (R. 171.)

The Plaintiff then requested a hearing before an ALJ (R. 174), and Judge Deirdre R. Horton

held a hearing on November 8, 2018. (R. 37-83.) At the hearing, the Plaintiff acknowledged

having abused alcohol in the past. (See R. 69, 71; see also ECF No. 22-2, at 12 (“It is clear that

[Plaintiff] has a history of alcohol abuse, which he himself admitted.”).) But he claimed that even

after “the alcohol issues stopped,” “[t]he pancreatitis continued” – and moreover, he claimed that

he still vomited on a daily basis. (R. 55.) At the same time, he testified that his impairments did

not prevent him from engaging in all activities of daily living. Among other things, he was still

able to “do a lot of walking.” (R. 44, 60.)

A VE named Dennis King also testified at the hearing. (R. 73-87.) The ALJ asked VE

King whether a person with no exertional limitations – but with limitations to simple, routine tasks

in a low-stress environment – could find work in the national economy. (R. 74-75.) He responded

that such a person could perform the jobs of “janitor,” “dishwasher” and “order picker.” (R. 75.)

He further stated that there were 2,604,000 janitor positions, 540,200 dishwasher positions, and

2,046,040 order picker positions available nationally. (Id.) Upon cross-examination by the

Plaintiff’s attorney, VE King explained that these figures reflected the number of jobs in the larger

Standard Occupational Classification (“SOC”) codes of which janitor, dishwasher and order picker

formed parts – not for the three jobs themselves. (R. 83.) But he went on to explain that, at least

in the case of dishwashing, there were at least 460,000 jobs available even if one drilled down

below the SOC level to the level of “restaurant . . . dishwashers.” (R. 84; see also discussion,

Section III.D infra.) In any event, he testified that even these jobs would become unavailable if

the Plaintiff was absent from work more than ten percent of the time. (R. 77.)

After the hearing, the ALJ issued an unfavorable decision. (R. 12-28.) As will be discussed

below, ALJs are required to follow a five-step sequential evaluation process in adjudicating Social

Security claims, and Judge Horton’s written decision followed that format. At Step One of her

analysis, she found that the Plaintiff had not engaged in substantial gainful activity since 2016. (R.

18.) At Step Two, she found that the Plaintiff suffers from the severe impairments of anxiety

disorder, depressive disorder, and alcohol use disorder. (Id.) At Step Three, she concluded that

the Plaintiff’s impairments or combination of impairments did not meet or medically equal the

severity of one of the “Listings” – that is, the impairments listed in 20 C.F.R. 404, Subpart P,

Appendix 1. (R. 18-19.) She then determined that, notwithstanding his impairments, including

the substance use disorder, the Plaintiff retained the residual functional capacity to:

[P]erform a full range of work at all exertional levels but with the following

nonexertional limitations: simple, routine tasks; a low-stress environment with no

strict time or production quotas, but can self-pace. No work with the general public

and in an environment with only minor changes in routine. He would be expected

to be absent from work 4 or more times per month.

(R. 19.) At Step Four, the ALJ found that the Plaintiff was unable to perform any of his past

relevant work. (R. 22.) Finally, at Step Five, the ALJ relied on the VE’s testimony to find that,

“considering all of the claimant’s impairments, including the substance use disorder, the claimant

is unable to make a successful vocational adjustment to work that exists in significant numbers in

the national economy.” (R. 23.) The ALJ found that, if the substance abuse and absenteeism were

to be considered, the Plaintiff would be disabled. (Id.)

Yet “[w]hen there is medical evidence of an applicant's drug addiction or alcoholism

(DAA), ‘the ‘disability’ inquiry does not end with the five-step analysis.’” Polanco v. Berryhill,

No. 3:18-cv-0163 (JAM), 2019 WL 2183121 at *2 (D. Conn. 2019) (quoting Cage v. Comm’r of

Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012)). Instead, pursuant to 42 U.S.C. § 1382c(a)(3)(J), the

Commissioner must further consider whether a claimant’s drug and alcohol abuse – or “DAA” –

“is a contributing factor material to the determination that the claimant is disabled.” Id. at *2.

Thus, “[t]he critical question is whether the SSA would still find the claimant disabled if [he]

stopped using drugs or alcohol.” Cage, 692 F.3d at 123 (internal quotation marks and brackets

omitted). In cases involving DAA, SSA claim adjudicators must therefore “apply the sequential

evaluation process twice.” Soc. Sec. Ruling, (“SSR”) 13-2p.; Titles II & XVI: Evaluating Cases

Involving Drug Addiction & Alcoholism (DAA), 2013 WL 621536, at *7 (S.S.A. Feb. 20, 2013).

In this case, the ALJ went through the sequential evaluation process a second time, in an

effort to determine the materiality of the Plaintiff’s substance abuse disorder. (R. 23.) At Step

Two, she found that the Plaintiff would still have the same severe impairments of anxiety disorder

and depressive disorder. (Id.) At Step Three, she found that he still would not meet the criteria of

any Listing. (R. 24.) She then formulated an RFC that was identical to the one that she formulated

in the first round, except that it no longer contemplated that the Plaintiff would have to miss work

four times a month:

If the claimant stopped the substance use, he would have the functional capacity to

perform a full range of work at all exertional levels but with the following

nonexertional limitations: simple, routine tasks; a low-stress environment with no

strict time or production quotas, but can self-pace. No work with the general public

and in an environment with only minor changes in routine.

(R. 24-25.) In developing this RFC, the ALJ noted that the Plaintiff’s medical record documented

“a pattern or significant reduction in alcohol use” between 2015 and 2017, and that

“[c]orresponding with his reduction in alcohol consumption has been an improvement in the

claimant’s symptoms.” (R. 25.)

At Step Four, the ALJ found that if the Plaintiff stopped abusing substances, he would

continue to be unable to perform past relevant work. (R. 27.) Finally, at Step Five, the ALJ relied

on the VE’s testimony to find that there are jobs that exist in significant numbers in the national

economy that the Plaintiff could perform, including janitor, dishwasher and order picker. (R. 28.)

The ALJ therefore concluded that the Plaintiff’s substance use disorder was a contributing factor

material to the determination of disability, and that he consequently was not disabled within the

meaning of the Social Security Act. (Id.) The Plaintiff appealed, but on May 6, 2020, the Appeals

Council denied his request for review. (R. 1-3.)

The Plaintiff then filed this action on July 10, 2020. (Compl., ECF No. 1.) In his

complaint, he alleged that the ALJ, “Appeals Council and the Commissioner have committed error

as a matter of law” and their findings and conclusions “are not supported by substantial evidence

of record.” (Id. at 3.) On December 11, 2020, the Commissioner denied the allegations of the

complaint by filing the Certified Administrative Record. (ECF No. 19; see also Standing

Scheduling Order, ECF No. 6, at 2 (stating that, in the District of Connecticut, the filing of

administrative record is “deemed an Answer (general denial) to Plaintiff’s Complaint”).) On

February 22, 2021, the Plaintiff moved for an “order reversing the Commissioner’s decision and

awarding benefits” or “an order reversing the decision of the Commissioner, remanding the matter

to the Commissioner for a de novo hearing and a new Decision and Order. . . .” (ECF No. 22-2,

at 24.) On April 20, 2021, the Commissioner moved for an order affirming his final decision.

(ECF No. 24.) The Plaintiff did not file a reply brief, and his time for doing so has expired. (See

ECF No. 6, at 4.) The parties’ motions are therefore ripe for decision.

II. APPLICABLE LEGAL PRINCIPLES

To be considered disabled under the Social Security Act, “a claimant must establish an

‘inability to do 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.’” Smith v. Berryhill, 740

F. App’x 721, 722 (2d Cir. 2018) (summary order) (quoting 20 C.F.R. § 404.1505(a)). To

determine whether a claimant is disabled, the ALJ follows a familiar five-step evaluation process.

At Step One, the ALJ determines “whether the claimant is currently engaged in substantial

gainful activity.” McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue,

537 F.3d 117, 120 (2d Cir. 2008)). At Step Two, the ALJ analyzes “whether the claimant has a

severe impairment or combination of impairments.” Id. At Step Three, the ALJ then evaluates

whether the claimant’s disability “meets or equals the severity” of one of the “Listings” – that is,

the specified impairments listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. At Step

Four, the ALJ uses an RFC assessment to determine whether the claimant can perform any of her

“past relevant work.” Id. And at Step Five, the ALJ considers “whether there are significant

numbers of jobs in the national economy that the claimant can perform given the claimant’s [RFC],

age, education, and work experience.” Id. The claimant bears the burden of proving her case at

Steps One through Four. Id. At Step Five, “the burden shift[s] to the Commissioner to show there

is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,

445 (2d Cir. 2012) (per curiam).

In reviewing a final decision of the Commissioner, this court “perform[s] an appellate

function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). Its role is to determine

whether the Commissioner’s decision is supported by substantial evidence and free from legal

error. “A district court may set aside the Commissioner’s determination that a claimant is not

disabled only if the factual findings are not supported by substantial evidence or if the decision is

based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation marks

omitted).

A disability determination is supported by substantial evidence if a “reasonable mind”

could look at the record and make the same determination as the Commissioner. See Williams v.

Bowen, 859 F.2d 255, 258 (2d Cir. 1988). Although the standard is deferential, “[s]ubstantial

evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507

(2d Cir. 2009) (internal quotation marks and citations omitted). When the decision is supported

by substantial evidence, the Court defers to the Commissioner’s judgment. In other words,

“[w]here the Commissioner’s decision rests on adequate findings supported by evidence having

rational probative force, [this Court] will not substitute [its] judgment for that of the

Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

An ALJ does not receive the same deference if she has made a material legal error. Put

differently, district courts do not defer to the Commissioner’s decision “[w]here an error of law

has been made that might have affected the disposition of the case.” Pollard v. Halter, 377 F.3d

183, 189 (2d Cir. 2004) (internal quotation marks omitted). “Even if the Commissioner’s decision

is supported by substantial evidence, legal error alone can be enough to overturn the ALJ’s

decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (citing Johnson v.

Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

III. DISCUSSION

In this case, the Plaintiff makes four principal arguments for reversal or remand. For

reasons that will become clear, it makes sense to take them in the order of the five-step sequential

evaluation process, rather than the order in which he raised them in his brief.

The Plaintiff argues that the ALJ erred at Step Two in concluding that his “respiratory

disorders, gastrointestinal disorders, and pancreatitis” were “non-severe impairments.” (ECF No.

22-2, at 15-18.) Second, he says that “the ALJ failed to apply the correct analysis to [his] substance

abuse,” in part because she “made a medical judgment that she is wholly incompetent to make.”

(Id. at 11-15.) Third, he contends that “[t]he treating physician rule was not followed.” (Id. at 18-

23.) And fourth and finally, he says that the ALJ’s “findings at Step Five are unsupported,”

because (among other reasons) she relied on VE job incidence numbers that cannot withstand

scrutiny. (ECF No. 22-2, at 1-11.) The Court will examine each claim of error in turn.

A. The Plaintiff’s Claims of Step Two Error

The Plaintiff argues that the ALJ erred at Step Two when she found that his respiratory

disorders, gastrointestinal disorders and pancreatitis were non-severe impairments. (ECF No. 22-

2, at 15.) The ALJ found that “these conditions were being managed medically, and should be

amenable to proper control by adherence to recommended medical management and medication

compliance.” (R. 18.) She found that his pancreatitis, “[i]n particular,” “was being managed

medically and eventually required no treatment.” (Id. (citing R. 698-701).) The Plaintiff contends

that these findings were “wholly unsupported.” (ECF No. 22-2, at 16.)

The legal principles governing Step Two are well established. At Step Two, the ALJ must

determine whether the claimant has a severe, medically determinable impairment that has lasted

or is expected to last for at least twelve months. 20 C.F.R. § 416.920(a)(4)(ii). The SSA’s

regulations do not define the term “severe impairment,” but instead define “non-severe

impairment.” Dawn Lyn C. v. Kijakazi, No. 3:20-cv-545 (TOF), 2021 WL 4398372, at *4 (D.

Conn. Sept. 27, 2021) (quoting Larkin v. Astrue, No. 3:12-cv-35 (WIG), 2013 WL 4647243, at *5

(D. Conn. Apr. 29, 2013), report and recommendation adopted in part, rejected in part, 2013 WL

4647229 (D. Conn. Aug. 29, 2013)). “An impairment or combination of impairments is not severe

if it does not significantly limit your physical or mental ability to do basic work activities.” 20

C.F.R. § 416.922(a); see also Social Security Ruling (“SSR”) 96-3p, 1996 WL 374181, at *1

(S.S.A. July 2, 1996). By implication, therefore, a “severe” impairment is one that “significantly

limits [a claimant’s] physical or mental ability to do basic work.” Woodmancy v. Colvin, 577 F.

App’x 72, 74 (2d Cir. 2014) (summary order).

The purpose of the Step Two severity analysis is to screen out only the weakest claims.

“[T]he standard for a finding of severity under Step Two of the sequential analysis is de minimis

and is intended only to screen out the very weakest cases.” McIntyre, 758 F.3d at 151. In other

words, “[t]he standard at step two is quite low,” O’Connor v. Saul, No. 1:18-cv-00740 CJS, 2020

WL 1242408, at *3 (W.D.N.Y. Mar. 16, 2020), and the “claimant has a minimal burden at step

two as the severity regulation is designed to eliminate only clearly insubstantial claims.” Serrano

v. Astrue, 645 F. Supp. 2d 64, 66 (D. Conn. 2009). Nonetheless, a decision at Step Two “is like

almost any other ALJ decision in that it is entitled to deference from this Court if it is free from

legal error and supported by substantial evidence.” Dawn Lyn C., 2021 WL 4398372, at *5 (citing

Shaw, 221 F.3d at 131). “And the substantial evidence standard is itself deferential.” Id. (citing

Stonick v. Saul, No. 3:19-cv-1334 (TOF), 2020 WL 6129339, at *3 (D. Conn. Oct. 19, 2020)).

Here, the ALJ had a substantial evidentiary basis for regarding the Plaintiff’s respiratory,

gastrointestinal and pancreatic impairments as “non-severe.” The Plaintiff argues that the ALJ

disregarded his “daily vomiting” (ECF No. 22-2, at 16), but from at least 2017 onward, he

consistently denied nausea and vomiting during his visits to his medical providers. (See R. 763

(May 9, 2017); R. 770 (June 2, 2017); R. 768 (June 26, 2017); R. 774 (June 28, 2017); R. 778

(Aug. 16, 2017); R. 784 (Nov. 20, 2017); R. 790 (Feb. 27, 2018); R. 795 (May 2, 2018).) In 2015

he had reported a sixty-pound weight loss due to his gastrointestinal issues (R. 345), but by 2017

he was gaining weight and his doctor reported that he was “in considerabl[y] less stress and pain.”

(R. 698.) By early 2017 he had stopped taking his pancreatitis medication entirely (see R. 715),

and later that year his primary care provider noted that he had “not followed up” with his

gastroenterologist “in years.” (R. 729.) With respect to his respiratory issues, the treatment notes

repeatedly document him denying shortness of breath (e.g., R. 582, 586, 592, 601, 604), and he

testified that he regularly goes for walks without any breathing issues. (See R. 62-64 (testifying

about walking regimen, and identifying “burning feet” and “agoraphobia” as the only reasons why

he misses some days).) All of this is substantial evidence supporting the ALJ’s conclusion that

the Plaintiff’s respiratory, gastrointestinal and pancreatic impairments did not significantly limit

his physical ability to do work. (R. 18.)

The Plaintiff cites contrary evidence in the record, as detailed in his brief. (ECF No. 22-2

at 16 and n.31.) But “[i]t is not the function of this Court to re-weigh evidence or consider de novo

whether [a claimant] is disabled.” Teena H. o/b/o N.I.K. v. Comm’r of Soc. Sec., 521 F. Supp. 3d

287, 292 (W.D.N.Y. 2021). Rather, “[a]bsent a legal error, the Court must uphold the

Commissioner’s decision if it is supported by substantial evidence, even if the Court might have

ruled differently had it considered the matter in the first instance.” Russell v. Saul, 448 F. Supp.

3d 170, 175 (D. Conn. 2020). Stated differently, “[e]ven where the administrative record may also

adequately support contrary findings on particular issues, the ALJ’s factual findings ‘must be given

conclusive effect’ so long as they are supported by substantial evidence.” Genier v. Astrue, 606

F.3d 46, 49 (2d Cir. 2010).

Finally, the Plaintiff makes a one-sentence argument that the ALJ erred at Step Two by

failing to consider his post-traumatic stress disorder. (ECF No. 22-2, at 16 (citing R. 873 and 878-

79).) But that was not his diagnosis at the time of the hearing; by late 2016, the Plaintiff’s mental

health clinicians were assessing him with panic attacks, generalized anxiety disorder and

depression. (R. 653; see also R. 855.) The ALJ addressed those diagnoses in her decision. (R. 20

(noting that the Plaintiff had “been diagnosed with affective disorder,” “anxiety disorder,”

“adjustment disorder” and “depressed mood”); R. 23 (concluding that if the Plaintiff stopped using

alcohol, his “anxiety disorder and depressive disorder” would still be severe impairments); R. 27

(considering whether the Plaintiff’s claimed “limitations in mental and social abilities” were

supported by the record).) In short, the ALJ applied the proper legal standards and had substantial

evidence for her conclusions. Accordingly, there is no error at Step Two.

B. The Plaintiff’s Claims of Error With Respect to Substance Abuse

The Plaintiff argues that the ALJ “failed to apply the correct analysis” to his substance

abuse. (ECF No. 22-2, at 11.) In particular, he contends that the ALJ made an improper “medical

judgment” when she found that his periods of reduced alcohol consumption corresponded with

significant improvements in his physical and mental symptoms – and, by extension, that he would

not be disabled if he stopped his substance use. (Id. at 13.) He says that he “continues to have

significantly limiting physical symptoms,” including “daily vomiting” and “mental impairments,”

“despite a sharp reduction in alcohol use.” (Id. at 14.) The Commissioner disagrees, and argues

that “the ALJ appropriately performed the difficult but necessary task of determining Plaintiff’s

level of functioning if he stopped substance abuse.” (ECF No. 24-1, at 7.)

The Plaintiff’s argument implicates the SSA’s procedures for evaluating the role of drug

and alcohol abuse, or “DAA.” In 1996, Congress amended the Social Security Act to deny

disability benefits to an individual if his or her “alcoholism or drug addiction” is a “material

contributing factor to the disability determination.” 42 U.S.C. § 423(d)(2)(C). Since then, “[w]hen

there is medical evidence of an applicant’s drug or alcohol abuse, the ‘disability’ inquiry does not

end with the five-step analysis.” Cage, 692 F.3d at 123 (citing 20 C.F.R. § 416.935(a)). Rather,

if the ALJ finds after Steps One through Five that the claimant is disabled, she must go one step

further and consider whether the claimant’s DAA was material to that finding. Id. As previously

noted, “[t]he critical question is ‘whether the SSA would still find the claimant disabled if she

stopped using drugs or alcohol.’” Id. (quoting 20 C.F.R. § 416.935(b)(1)) (brackets omitted). The

Commissioner does not bear the burden of proving materiality; instead, “claimants bear the burden

of proving . . . [the] immateriality” of their DAA. Id.

An ALJ may assess materiality by comparing the claimant’s degree of impairment while

abusing substances with his degree of impairment while sober. In Cage, for example, a substance-

abusing mental health patient “spoke normally, had coherent or linear thought processes,” was

able to “perform rote tasks,” and could “interact with others adequately” on the few occasions

when she showed up sober for a mental health evaluation. Id. at 126-27. By contrast, she exhibited

symptoms of depression and attempted suicide during periods when she was abusing cocaine. Id.

at 127. The Second Circuit held that the contrast constituted “substantial evidence” supporting

“the ALJ’s determination that [the claimant] would not be disabled were she to discontinue her

drug and alcohol abuse.” Id.; accord Wehrhahn v. Colvin, 111 F. Supp. 3d 195, 205-06 (D. Conn.

2015) (affirming ALJ decision finding “that the claimant has a greater level of functioning in the

absence of substance abuse”); Velasquez v. Astrue, No. 11-535S, 2013 WL 1415657, at *11 (D.R.I.

Feb. 22, 2013), report and recommendation adopted, 2013 WL 1415586 (D.R.I. Apr. 8, 2013)

(“The Commissioner may base the materiality finding on record evidence during periods of

sobriety.”).

The Plaintiff contends that these sorts of comparisons require “medical judgment” that an

ALJ “is wholly incompetent to make” (ECF No. 22-2, at 13), but this argument is contrary to

binding Second Circuit precedent. In Cage, the Court of Appeals expressly rejected “a brightline

rule that an ALJ cannot find that drug or alcohol use is a contributing factor where there is no

medical opinion addressing the issue.” 692 F.3d at 126 (quotation marks omitted). “[S]uch a rule,

found nowhere in the U.S. Code or C.F.R., is unsound” because “[i]t would unnecessarily hamper

ALJs and impede the efficient disposition of applications in circumstances that demonstrate DAA

in the absence of predictive opinions.” Id.; see also Watson v. Saul, No. 3:19-cv-1504 (RMS),

2020 WL 5700454, at *9 (D. Conn. Sept. 24, 2020) (“Contrary to the plaintiff’s contention, it is

not error per se for an ALJ to reach a decision regarding DAA in the absence of a treating source

opinion addressing whether DAA is a contributing factor to the plaintiff’s alleged disability.”).

Applying these principles, courts often affirm ALJ findings of materiality even when there is no

medical opinion on the issue. In Polanco, for example, the court affirmed a finding of materiality

based solely on treatment notes reflecting “improvements in [the claimant’s] thought processes

and presentation” during his brief periods of sobriety, and other notes documenting that “substance

abuse exacerbates [his] mental health symptoms.” 2019 WL 2183121, at *6.

Substantial evidence supports the conclusion that the Plaintiff’s gastrointestinal and

pancreatic symptoms improved markedly after he reduced his alcohol consumption. The ALJ

accurately noted that as early as April 2015, the Plaintiff reported to his gastroenterologist Dr.

Dorfman that he had cut back on his drinking and was asymptomatic. (R. 25, 350.) In January

2017, the Plaintiff reported that he was feeling better with regard to his pancreatitis, and Physician

Assistant Jillian Perez noted that he had discontinued his medication and had not followed up with

his gastroenterologist. (R. 25, 715.) At that appointment, the Plaintiff complained of abdominal

pain, but denied unexplained weight loss, nausea and vomiting. (R. 25, 716.) Indeed, the record

demonstrates that the Plaintiff consistently reported to his medical provider PA Perez that he was

feeling better, had not followed up with his gastroenterologist, and denied symptoms of weight

loss, nausea or vomiting. (See R. 25-26 (citing R. 763, 770, 774, 776, 778, 784, 790, 795).) “Taken

together, this is relevant evidence that a reasonable mind might accept as adequate to support [the]

conclusion,” Cage, 692 F.3d at 127 (internal quotation marks and citation omitted), that the

medical conditions expecting to cause absenteeism four or more times per month would not be

present in the absence of alcohol abuse. (R. 19.); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118

(2d Cir. 1998) (“[I]t is up to the agency, and not this court, to weigh the conflicting evidence in

the record.”). Faced with this substantial evidence, the Court must uphold these findings and,

consequently, the ALJ's determination that the Plaintiff would not be disabled were he to

discontinue his alcohol abuse.

C. The Plaintiff’s Claims About the ALJ’s Treatment of the Opinion Evidence

The administrative record contained several items of opinion evidence from the Plaintiff’s

treating clinicians, in addition to the opinions from Drs. Wurzel, Carlson, Coughlin and Bangs.

One such opinion came from Jillian Perez, a physician’s assistant at Family Practice and Internal

Medicine of New Haven County LLC, who the Plaintiff saw for physicals, diabetes checks and

cholesterol monitoring. (R. 582-607, 614-20, 626-31, 702-20, 727-34, 742-93.) PA Perez opined

that the Plaintiff would have to “take unscheduled breaks” “a few times a week,” and would be

“off task” for as much as 25% of a given workday. (R. 860-64.) Another clinician, Licensed

Clinical Social Worker John Terry Dukes, opined in late 2016 that the Plaintiff “frequently [had]

a problem” with “[h]andling frustration appropriately,” and “always [had] a problem” with

“(alsking questions or requesting assistance.” (R. 651-57.) Six months later, LCSW Dukes noted

considerable improvement in those dimensions. At that time, the Plaintiff had “average ability”

in the dimension of “[a]sking questions and requesting assistance,” and “better than average

ability” in “[h]Jandling frustration appropriately.” (R. 687-92.) But in June 2018, LCSW Dukes

rated the Plaintiff as “seriously limited” in nearly every mental ability required to do even unskilled

work. (R. 855-59.)4

The ALJ gave these opinions more weight on the first lap through the five-step process

than she did on the second. She gave PA Perez’s opinion “partial weight concerning the period of

time the claimant was actively abusing alcohol,” and “great weight” “concerning expected

absences from work” during his corresponding bouts of pancreatitis, “given the documentation of

[the Plaintiffs] condition in the record.” (R. 21.) But she gave PA Perez’s opinion “little weight

concerning the period of time the claimant was not actively abusing alcohol,” because its statement

“concerning expected absences from work is not supported by the record for” that period, “as her

treatment notes indicated that his gastrointestinal symptoms had improved and he was not actively

4 Some of LCSW Dukes’ opinions were co-signed by an APRN, Philip Frick. (E.g., R. 657,

859.)

17

receiving treatment.” (R. 26 (citing R. 708, 715-20).) Similarly, the ALJ gave “great weight” to

LCSW Dukes’ opinions “concerning the time that the claimant was actively abusing alcohol,”

because his “findings that the claimant has difficulties performing tasks and with social

interactions is consistent with the claimant’s mental condition reported at the beginning of his

psychiatric treatment.” (R. 21.) But she gave those opinions “little weight concerning the time

that the claimant was not actively abusing alcohol,” because “[t]he findings of serious limitations

in mental and social abilities related to work are not supported by the record, which indicated

numerous and varied activities of daily living, including social activities.” (R. 27.)

The Plaintiff assails these weight assignments in a section of his brief entitled “The

Treating Physician Rule Was Not Followed” (ECF No. 22-2, at 18), but he concedes that this is a

misnomer. For claims that, like the Plaintiff’s, were filed before March 27, 2017, the “treating

physician rule” obliged ALJs to give “controlling weight” to a treating physician’s opinion when

the opinion was supported by and consistent with the record. 20 C.F.R. § 416.927(c)(2). To trigger

that rule, however, the opinion had to come from an “acceptable medical source.” 20 C.F.R. §

416.927(a). In this case, the Plaintiff admits that PA Perez, LCSW Dukes and APRN Frick were

not “acceptable medical sources.” (ECF No. 22-2, at 18); see also 20 C.F.R. § 416.913(a)

(effective Sept. 3, 2013 – Mar. 26, 2017) (defining “acceptable medical source” to include

“[l]icensed physicians” and ‘[l]icensed or certified psychologists” but not physician’s assistants,

APRNs or social workers). He consequently acknowledges that “in its strict form the ‘treating

physician rule is not applicable,’ as ‘controlling weight’ is not an issue.” (Id.)

The Plaintiff nonetheless argues that even if her treaters’ opinions were not entitled to

“controlling weight,” the ALJ committed reversible error when she failed to go through the same

weight-assignment process that she would have had to go through if the opinions had come from

licensed physicians or psychologists. Specifically, he argues that the ALJ was required to work

through the so-called “Burgess factors” before assigning less-than-controlling weight to the three

treaters’ opinions, even though they were not “acceptable medical sources.” (ECF No. 22-2, at

18-19.) But the Plaintiff cites no authority for the proposition that the ALJ owes the same process

to a treating PA, APRN or LCSW as to a treating physician or psychologist, and indeed the

regulations are to the contrary. When assigning weight to “[o]pinions from medical sources who

are not acceptable medical sources,” the ALJ was required only to “ensure that the discussion of

the evidence in the determination or decision allows a claimant or subsequent reviewer to follow

the adjudicator's reasoning.” 20 C.F.R. § 416.927(f). In particular, she was not obliged to discuss

all of the factors listed in 20 C.F.R. § 416.927(c) — the factors mirrored in Burgess and Estrella —

because “not every factor for weighing opinion evidence will apply” to every such opinion. 20

C.F.R. § 416.927(f)(1); see also 20 C.F.R. § 416.927(c) (explaining that the six-part test applies

only to “medical opinions”); 20 C.F.R. § 416.927(a)(1) (explaining that, to qualify as a “medical

opinion,” the opinion must come from an “acceptable medical source[]”); Grisel A. v. Kijakazi,

No. 3:20-cv-719 (TOF), 2021 WL 4350565, at *5 (D. Conn. Sept. 24, 2021) (citing 20 C.F.R. §

416.927(f)1). An ALJ’s treatment of such an opinion will be affirmed if her “discussion of the

evidence in the determination or decision allows a claimant or subsequent reviewer to follow [her]

reasoning.” Id.

In Burgess, the Second Circuit held that ALJs must “consider several factors” in deciding

how much weight to assign to a treating physician’s opinion. 537 F.3d at 129. As synthesized in

subsequent cases, those factors include “(1) the frequency, length, nature, and extent of treatment;

(2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with

the remaining evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill, 925

F.3d 90, 95-96 (2d Cir. 2019) (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (brackets

omitted).

19

Here, the ALJ met that undemanding test. In the case of PA Perez, the ALJ explained that

the opinion was “in a checklist format, providing very few explanations,” and more importantly it

was “not supported by the record for the period that the claimant was not abusing alcohol.” (R.

26.) And she went on to explain that the opinion was inconsistent with the record because PA

Perez’s own “treatment notes indicated that [the Plaintiff’s] gastrointestinal symptoms had

improved and he was not actively receiving treatment.” (Id. (citing, inter alia, R. 708 (2017 record

reflecting that Plaintiff “has been feeling better” and had discontinued his pancreatitis medications

and stopped “follow[ing] up” with the physician who was treating it)).) With respect to LCSW

Dukes and APRN Frick, the ALJ gave the June 2018 opinion “little weight concerning the time

that the claimant was not actively abusing alcohol” because “[t]he findings of serious limitations

in mental and social abilities related to work are not supported by the record, which indicated

numerous and varied activities of daily living, including social activities.” (R. 27.) And she

explained what caused her to say this: she cited treatment notes reflecting that the Plaintiff took

daily walks, helped his brother with yard work, and worked on carpentry projects (id. (citing R.

846)); another note indicating that the Plaintiff canceled an appointment because he “need[ed] to

help a friend move” (id. (citing R. 900)) and still other notes indicating that he traveled to

Foxwoods Casino and Misquamicut Beach notwithstanding his claimed agoraphobia. (Id. (citing

R. 905, 910, 913).) The Plaintiff protests that these activities “do[] not translate into an ability to

work eight hours a day” (ECF No. 22-2, at 23), but he “cannot plausibly charge the ALJ with the

legal error of not sufficiently explaining [her]self.” Grisel A., 2021 WL 4350565, at *5. Here, as

in Grisel A., “[t]he Court concludes that, in explaining [her] reasons for assigning little weight to”

the treaters’ opinions, “the ALJ complied with [her] obligations under” 20 C.F.R. § 416.927(f).

Id.

The Plaintiff argues that the ALJ erred in giving more weight to the opinions of the non-

examining state agency consultants than to the opinions of his own treaters (ECF No. 22-2, at 21-

22), but here too, the law contradicts him. He says that it was wrong for the ALJ to give “great

weight” to Drs. Wurzel and Coughlin because the former is a pathologist and the latter a

pediatrician, and neither one is a specialist in gastroenterology. (Id. at 21.) But other courts have

rejected the argument that a state agency consultant must be a specialist in the relevant field before

his or her opinion can be relied upon. In Lovett v. Berryhill, for example, the court observed that

a consulting physician “need not be” “a specialist in the relevant area of medicine,” because “state

agency medical consultants are experts in the Social Security disability programs, and in

appropriate circumstances, their opinions may be entitled to greater weight than the opinions of

treating or examining sources.” No. 3:17-cv-637 (SRU), 2018 WL 4502179, at *8 (D. Conn. Sept.

20, 2018) (quoting SSR-90-6p, 1996 WL 374180, at *2-3) (brackets, ellipses and quotation marks

omitted); see also Peltonich v. Colvin, No. 13-11246-JGD, 2014 WL 4716190, at *11 (D. Mass.

Sept. 19, 2014), aff'd (1st Cir. Aug. 24, 2015) (rejecting argument that non-examining state agency

consultant should not have been relied upon because he was not opining within his specialty). The

Plaintiff also cites cases for the general proposition that non-examining consultants should

ordinarily not be given greater weight than the claimant’s own treaters (ECF No. 22-2, at 21-22),

and that general statement is true enough. But it is equally true that “the regulations permit the

opinions of nonexamining sources to override treating sources’ opinions provided they are

supported by evidence in the record.” Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995); see

also Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (observing that the opinion of a

treating physician “is not binding if it is contradicted by substantial evidence . . . and the report of

a consultative physician may constitute such evidence”). That is the case here; Dr. Wurzel’s

opinions, for example, are supported by citations to imaging studies, blood pressure readings, and

A1C readings.

D. The Plaintiff’s Claims of Step Five Error

Finally, the Plaintiff claims that the ALJ’s “findings at Step Five are unsupported.” (ECF

No. 22-2, at 1-11.) At that step, the ALJ determined that in light of the Plaintiff’s RFC, he would

be able to perform the jobs of janitor, dishwasher and order picker if he stopped his substance use.

(R. 27-28.) The ALJ then determined that these three jobs were available in significant numbers

in the national economy. (R. 28.) She relied on the VE’s testimony in reaching both of these

conclusions (R. 27-28), and in particular, she relied on the VE’s statement that there are 2,604,000

janitor jobs available in the national economy; 540,200 dishwasher jobs; and 2,046,040 order

picker jobs. (R. 28; see also R. 75.)

The legal principles governing Step Five are well settled. At that step, “the Commissioner

must determine that significant numbers of jobs exist in the national economy that the plaintiff can

perform.” McIntyre, 758 F.3d at 150. “An ALJ may make this determination either by applying

the Medical Vocational Guidelines or by adducing testimony of a vocational expert.” Id. If the

ALJ chooses the latter route, she “may rely on a vocational expert’s testimony regarding a

hypothetical as long as there is substantial record evidence to support the assumption upon which

the vocational expert based his opinion.” Id. Although disability claimants bear the burden of

proof at Steps One through Four, “at step five, the burden shifts to the Commissioner to

demonstrate that there is other work that the claimant can perform, based on the claimant’s RFC,

age, education, and past relevant work.” Torres v. Colvin, No. 3:16-cv-809 (JAM), 2017 WL

1734020, at *2 (D. Conn. May 3, 2017) (citing McIntyre, 786 F.3d at 150).

In this case, the Plaintiff begins by assailing the methodology underlying the VE’s job

incidence numbers. At the hearing, the VE explained that he obtained the figures “from the Bureau

of Labor Statistics . . . using the [Dictionary of Occupational Titles, or “DOT”] and . . . going to a

[Standard Occupational Classification, or “SOC”] code.” (R. 83.) In other words, after using the

DOT to identify the jobs that he thought the Plaintiff could do, the VE then used the corresponding

SOC code to determine the number of positions available in the national economy for each of those

jobs. But as the Plaintiff points out, the DOT and the SOC do not align with each other. (ECF

No. 22-2, at 3-4.) Using the order picker job as his example, he notes that that job is but one of

553 DOT job titles that is included in SOC 51-9198.00, “Helpers – Production Workers.” (Id. at

4.) Thus, the Plaintiff argues that the VE had no basis for saying that there were 2,046,040 order

picker jobs in the national economy; the most he reasonably could have said was that there were

2,046,040 “Helper – Production Worker” jobs, of which order picker is but one of 553. (Id.)

Because VEs often use these two data sources to derive job incidence numbers, other

plaintiffs have made the same argument. Some courts in this district and circuit have expressed

concern about the misalignment between the DOT and the SOC, but they nonetheless have

declined to reach the conclusion that the Plaintiff urges here. In DeBiase v. Saul, for example, the

court was “sensitive to the plaintiff’s concern about the vague nature of [a VE’s] testimony

regarding his methodology in arriving at the job incidence numbers for the positions he identified,”

a methodology that seemingly failed to account for the misalignment between the two data sources.

No. 3:19-cv-68 (RMS), 2019 WL 5485269, at *11 (D. Conn. Oct. 25, 2019). It nevertheless

affirmed the ALJ’s decision, because the law “does not require a detailed scrutiny of a vocational

expert’s methods.” Id. (citing Lillis v. Colvin, No. 3:16-cv-269 (WIG), 2017 WL 784949, at *5

(D. Conn. Mar. 1, 2017)). “An identification of the general sources and consideration of the

experience and expertise of the vocational expert suffices; the ALJ need not inquire into the

vocational expert’s precise methodology.” Id. (citing Bradley v. Berryhill, No. 3:16-cv-1478

(JAM), 2017 WL 3314000, at *3-4 (D. Conn. Aug. 3, 2017)). Similarly, in Cortes v. Berryhill the

court described the VE’s failure to account for the misalignment as “troubling,” but nonetheless

affirmed the ALJ’s opinion because “the vocational expert need not provide the exact number of

jobs available for a position.” No. 3:16-cv-1910 (JCH), 2018 WL 1392903, at *11 (D. Conn. Mar.

19, 2018) (citing Brault, 683 F.3d at 450).

The Plaintiff cites a California case that reached a different result. (ECF No. 22-2, at 5-6.)

In Vo v. Colvin, a VE testified that the claimant “could perform the position of ‘inspector’ as

described in DOT 669.687-014,” and “the position of ‘assembler’ as described in DOT 706.684-

030.” No. EDCV 14-01105-DFM, 2015 WL 1383138, at *4 (E.D. Cal. Mar. 24, 2015). The VE

then testified that there were 410,750 “inspector” jobs, and 229,240 “assembler” jobs, available in

the national economy. Id. The ALJ concluded that the claimant was not disabled, but on appeal

the district court observed that DOT code 669.687-014 “is actually entitled ‘dowel inspector,’”

“someone in the woodworking industry who ‘inspects dowel pins for flaws.’” Id. (quoting Dict.

of Occupational Titles, 669.687-104 Dowel Inspector, 1991 WL 686074). It likewise observed

that DOT code 706.684-030 “is actually entitled ‘atomizer assembler,’” “someone who ‘assembles

component parts of perfume atomizers.’” Id. (quoting Dict. of Occupational Titles, 706.684-030

Atomizer Assembler, 1991 WL 679052). The court reversed the ALJ’s decision and remanded

the case because “[i]t strains credulity to accept the VE’s testimony that there are 410,000 people

nationally . . . making a living by inspecting wooden dowels, or that there are 229,000 people

nationally . . . making a living assembling perfume bottle atomizers.” Id. “Remand is appropriate

where ‘no reasonable mind could accept the employment numbers proffered by the VE as

substantial evidence,’” and in Ms. Vo’s case, “‘no reasonable mind’ could believe” the VE’s

numbers. Id. at *5 (quoting Farias v. Colvin, 519 F. App’x 439, 440-41 (9th Cir. 2013) (summary

order)).

This case differs from Vo in two key respects. First, the VE in this case provided some

testimony about how the SOC numbers break down over the individual jobs within the

classification. Specifically, in the case of the “dishwasher” SOC code, he explained that there

were 540,200 jobs in the national economy for all jobs within that code – but he went on to say

that “like, 85, 90%” are restaurant dishwashing positions. (R. 84.) To be sure, he did not explain

where this percentage came from, but the Plaintiff did not ask him to (see id.), and in any event an

ALJ may permissibly regard such testimony as “substantial evidence” even when the VE does not

disclose the underlying data. Cf. Biestek v. Berryhill, 139 S. Ct. 1148, 1157 (2019) (rejecting

plaintiff’s proffered “categorical rule” that, in “every case in which a vocational expert refuses a

request for underlying data,” the “withholding of such data . . . prevent[s] her testimony from

qualifying as substantial evidence”); see also Saad v. Berryhill, No. 3:17-cv-2000 (KAD), 2019

WL 1429541, at *3 (D. Conn. Mar. 30, 2019) (“An ALJ does not err when he relies on a vocational

expert’s testimony that is based on personal experience, labor market surveys, and published

statistical sources in determining the number of jobs available.”) (citing Jones-Reid v. Astrue, 934

F. Supp. 2d 381, 407 (D. Conn. 2012), aff’d, 515 F. App’x 32 (2d Cir. 2013) (summary order)).

Second, to say that there are about 460,000 restaurant dishwasher jobs in the national economy –

that is, 85% of 540,200 – is not like saying that there are 410,000 wooden dowel inspectors. It is

not something that “no reasonable mind could believe.”

In this case, the ALJ did not commit reversible error in relying on the VE’s job incidence

numbers. Even if one disregards the “janitor” and “order picker” figures, the VE’s testimony about

the number of dishwasher jobs provides substantial evidentiary support for the ALJ’s conclusion

that “there would be a significant number of jobs in the national economy that the claimant could

perform.” See Edwards v. Berryhill, No. 3:17-cv-298 (JCH), 2018 WL 658833, at *15 (D. Conn.

Jan. 31, 2018) (agreeing with the Commissioner that, even if some of the VE’s numbers were

“dubious,” “the ALJ was required to identify only one job existing in significant numbers”)

(emphasis in original). 460,000 jobs is a “significant number,” see DeBiase, 2019 WL 5485269,

at *10 (collecting cases), and indeed the Plaintiff does not contend otherwise. (See ECF No. 22-

2, at 1-11.)

The Plaintiff also argues that the ALJ presented a defective hypothetical to the VE because

she did not give meaningful weight to the opinion of any treating physician or clinician (ECF No.

22-2, at 9), but this argument finds no support in the law or the facts of this case. It is well

established that an ALJ may discount the opinion of even a treating physician – let alone a treating

PA, LCSW or APRN – if that opinion is not “well-supported by medically acceptable clinical and

laboratory diagnostic techniques” and is “inconsistent with the other substantial evidence in the . . .

case record.” Stonick, 2020 WL 6129339, at *3 (quoting 20 C.F.R. § 416.927(c)(2)). As explained

in Section III.C supra, where the ALJ assigned less than “meaningful” weight to the opinions of

PA Perez, LCSW Dukes and APRN Frick, she had a sound basis for doing so. An ALJ does not

err when she “decline[s] to include in [her] hypothetical question symptoms and limitations that

[she] had reasonably rejected.” Priel v. Astrue, 453 F. App’x 84, 87-88 (2d Cir. 2011) (summary

order) (citing Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983)).

Finally, the Plaintiff claims that the ALJ erred in failing to include any exertional

limitations in her hypothetical or her RFC. (ECF No. 22-2, at 10-11.) But he does not support this

argument with a citation to any evidence of such limitations; he merely asks the Court to conclude

that it is “preposterous” to expect a 178-pound man to work at the very heavy exertional level. (/d.

at 10-11.) Disability claimants bear the burden to prove their limitations, and that burden is not

met by unsupported, ipse dixit statements of this kind. Although the ALJ determined that the

Plaintiff could perform a “full range of work at all exertional levels” the VE testified that the jobs

of Janitor, Dishwasher and Order Picker are performed at a medium exertional level, not the heavy

exertional level that the Plaintiff asserts.° (R. 24, 28, 75, ECF No. 22-2, at 10-11.) Moreover,

there was substantial evidence of an ability to lift, walk and stand at the light exertional level (e.g.,

R. 862-63), and of the availability of nearly half a million light exertional jobs in the national

economy that the Plaintiff could perform. (R. 75-76 (testimony of VE King regarding the

availability of laundry worker, garment sorter and electronics pre-assembler jobs).) Thus, if it was

error to preclude work at the “very heavy,” “heavy” or “medium” exertional levels, that error was

harmless. See Tyrone P. v. Saul, No. 3:20-cv-112 (SALM), 2021 WL 288788, at *12 n.8 (D. Conn.

Jan. 28, 2021) (observing in dicta that it would have been harmless error for an ALJ to omit a

limitation from a Step Five analysis, where it is clear that the limitation would not have affected

that analysis); Ortiz v. Colvin, 298 F. Supp. 3d 581, 590 (W.D.N.Y. 2018) (finding harmless error

in failure to include limitations in an RFC where positions identified by VE account for such

limitations); Holloman v. Comm’r Soc. Sec., 639 F. App’x 810, 816 (3d Cir. 2016) (finding

6 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or

carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine

that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). Whereas “[h]Jeavy

work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects

weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also

do medium, light, and sedentary work.” Jd. at § 404.1567 (d).

27

harmless error where inclusion of plaintiff's moderate limitation in social functioning in

hypothetical would not have changed the VE’s answers).

IV. CONCLUSION

For the reasons stated above, the Court concludes that the ALJ's decision was supported by

substantial evidence and free from legal error. Therefore, the Plaintiff's Motion for Order reversing

or remanding the Commissioner’s decision (ECF No. 22) is DENIED. The Defendant’s Motion

for an Order Affirming the Decision of the Commissioner (ECF No. 24) is GRANTED.

This is not a recommended ruling. The parties consented to the jurisdiction of the

undersigned Magistrate Judge, who may therefore direct the entry of a judgment of the district

court in accordance with the Federal Rules of Civil Procedure. (ECF No. 10.) Appeals may be

made directly to the appropriate United States Court of Appeals. See 28 U.S.C. § 636(c)(3); Fed.

R. Civ. P. 73(c). The Clerk of the Court is respectfully directed to enter judgment in favor of the

Defendant, and to close this case.

So ordered this 30th day of March 2022 , at Hartford, Connecticut.

/s/ Thomas O. Farrish

Hon. Thomas O. Farrish

United States Magistrate Judge

28