# Boysha v. Commissioner of Social Security

> District Court, W.D. New York · August 25, 2025

URL: https://www.frixlaw.com/law-library/cases/11127002

## Case

- **Court:** District Court, W.D. New York
- **Decided:** August 25, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________

LEON J. B.,

DECISION
Plaintiff, and
v. ORDER

22-CV-569-LGF
FRANK BISIGNANO,1 COMMISSIONER OF
SOCIAL SECURITY, (consent)

Defendant.
______________________________________

APPEARANCES: HILLER COMERFORD INJURY & DISABILITY LAW PLLC
Attorneys for Plaintiff
IDA M. COMERFORD,
ELIZABETH ANN HAUNGS, and
MARY ELLEN GILL, of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226

MICHAEL DiGIACOMO
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
GEOFFREY M. PETERS, and
GRAHAM MORRISON,
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235

1 Frank Bisignano became the Commissioner of the Social Security Administration on May 7, 2025, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION

On May 19, 2025, the parties to this action consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned in accordance with this court’s June 29, 2018
Standing Order. (Dkt. 19). The matter is presently before the court on motions for
judgment on the pleadings filed on February 16, 2023 by Plaintiff (Dkt. 14), and on April
12, 2023 by Defendant (Dkt. 16).

BACKGROUND

Plaintiff Leon J. B. (“Plaintiff”), brings this action under Titles II and XVI of the
Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s applications
(“applications”) filed with the Social Security Administration (“SSA”) on March 31, 2016,
for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Act, AR2 at
184-92, and for Supplemental Security Income (“SSI”) under Title XVI of the Act, AR at
175-83 (together, “disability benefits”). Plaintiff alleges he became disabled on June 23,
2013, based on a heart attack, pacemaker, and stents. AR at 175, 184, 258, 262.
Plaintiff’s applications initially were denied on June 17, 2016. AR at 87-96, 111-16.
On August 17, 2016, Plaintiff requested an administrative hearing before an
administrative law judge with the SSA (“ALJ”), AR at 117-19, which was granted with an
administrative hearing held on August 31, 2018, before ALJ Mary Mattimore (“ALJ
Mattimore”), located in Buffalo, New York, with Plaintiff appearing via video
teleconference from Olean, New York (“first hearing”). AR at 55-86. Appearing and

2 References to “AR” are to the Bates-numbered pages of the Administrative Record electronically filed by
Defendant in four parts on October 19, 2022 (Dkts. 6 - 9).
testifying by telephone at the first hearing were Plaintiff, represented by legal counsel
Jeanne Murray, Esq., along with an impartial vocational expert (“VE”) Dawn Blythe.
On September 27, 2018, ALJ Mattimore issued a decision denying Plaintiff’s
claim, AR at 8-23 (“First ALJ Decision”), which Plaintiff timely appealed to the Appeals

Council. AR at 169-72. On May 22, 2019, the Appeals Council denied Plaintiff’s
request for review, AR at 1-7, rendering the ALJ’s Decision the Commissioner’s final
decision on Plaintiff’s disability benefits applications at that time. On July 22, 2019,
Plaintiff commenced an action in this court seeking review of the First ALJ Decision
denying Plaintiff disability benefits, with cross-motions for judgment on the pleadings
filed on April 30, 2020 (Plaintiff) and May 21, 2020 (Defendant). Leon J.B. v.
Commissioner of Social Security, 19-CV-958-HKS. By Order filed February 9, 2021,
Leon J.B. v. Commissioner of Social Security, 2021 WL 456904 (W.D.N.Y. Feb. 9,
2021), judgment on the pleadings was granted in favor of Plaintiff and denied as to
Defendant, with the matter remanded to the Commissioner for further assessment and

clarification of Plaintiff’s residual functional capacity (“RFC”). Accordingly, on March 17,
2021, the Appeals Council vacated the First ALJ Decision and remanded the matter to
an ALJ for further proceedings.
Upon remand, another administrative hearing was scheduled for August 19,
2021, before ALJ Mattimore, but was adjourned because a medical expert who was
scheduled to appear was not ready. AR at 1007-15. The matter was then reassigned
to ALJ Bryce Baird (“ALJ Baird” or “the ALJ”), before whom a second administrative
hearing was held on December 7, 2021 (“second hearing”). AR at 955-1006. Because
of the COVID 19 pandemic, the second hearing was held via teleconference before ALJ
Baird located in Buffalo. Appearing and testifying at the second hearing were Plaintiff,
represented by Mr. Valentine, Esq., an impartial medical expert Joseph R. Gaeta, M.D.,
a cardiologist (“Dr. Gaeta”), and impartial VE Amy Vercillo (“the VE”). On March 28,
2022, the ALJ issued a decision denying Plaintiff disability benefits (“Second Hearing

Decision”). AR at 930-54. This action challenging the Second Hearing Decision
followed on July 22, 2022.
On February 16, 2023, Plaintiff moved for judgment on the pleadings (Dkt. 14)
(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 14-1) (“Plaintiff’s Memorandum”). On April 12,
2023, Defendant moved for judgment on the pleadings (Dkt. 16) (“Defendant’s Motion”),
attaching the Commissioner’s Memorandum of Law in Support of Her Motion for
Judgment on the Pleadings and in Response to Plaintiff’s Brief, Pursuant to Local Rule
5.5 (Dkt. 16-1) (“Defendant’s Memorandum”). On May 3, 2023, Plaintiff filed Plaintiff’s
Reply to Commissioner’s Memorandum in Support (Dkt. 17) (“Plaintiff’s Reply”). Oral

argument was deemed unnecessary.
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.

FACTS3
Plaintiff Leon J.B. (“Plaintiff”), born May 8, 1967, was 46 years old as of his
alleged disability onset date (“DOD”) of June 23, 2013, and 54 years old as of March 28,
2022, the date of the Second ALJ Decision. AR at 175, 184, 258, 945. Plaintiff lives in

3 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.
a house with his wife, who helps Plaintiff care for three pet dogs, and his adult daughter.
AR at 275-76, 978. Plaintiff’s impairments prevent him from doing anything too
strenuous, but he does not require any assistance tending to grooming and self-care,
Plaintiff’s wife prepares meals, and Plaintiff can perform some household and yard

chores. Id. at 276-78. Plaintiff goes outside daily, has a driver’s license, and regularly
drives which is his primary mode of transportation. Id. at 278, 977-78. Plaintiff shops
for household items as needed, can handle money and pay bills. Id. at 278-79.
Plaintiff’s hobbies include watching television, golfing, hunting, and fishing, although he
golfs, hunts, and fishes less now than prior to his heart attack in 2013 because he tires
easily. Id. at 279. Plaintiff has no trouble getting along with others, but his socialization
is generally limited to visiting with others and talking on the telephone. Id. at 279-80.
Plaintiff maintains physical activity leaves him short of breath, and his pacemaker
interferes with Plaintiff’s ability to raise his left arm. Id. at 280.
Although he attended school in regular classes, Plaintiff did not graduate high

school, but obtained a GED in 1989, and has not completed any specialized job
training, trade, or vocational school. AR at 263, 978. Plaintiff’s past relevant work
(“PRW”), includes as a construction worker, laborer, and housing inspector. AR at 263.
After his heart attack, Plaintiff continued to work as a housing inspector on a part-time
basis and reported income through 2020.4 AR at 173-74, 1284-88, 1302-08. Plaintiff
last worked as a housing inspector for Cattaraugus Development Corporation until
August 2020 when Plaintiff was laid off. AR at 979-80. After he was laid off, Plaintiff

4 At the second hearing, the ALJ mentioned that Plaintiff’s earnings for 2015 exceeded the level for
substantial gainful activity which would render Plaintiff ineligible for disability benefits for that year. AR at
981. Plaintiff then stated he intended to amend his disability onset date to May 7, 2017, AR at 982, but
Plaintiff never did amend the disability onset date. AR at 934.
collected unemployment benefits until they were exhausted in September 2021. AR at
979-80.
It is undisputed that Plaintiff had a myocardial infarction (heart attack) on June
23, 2013, for which Plaintiff was initially treated in the emergency room at Olean

General Hospital (“OGH”), AR at 380-400, and under underwent surgical placement of
stents on June 25, 2013, by Vijay S. Iyer, M.D., Ph.D. (“Dr. Iyer”), at Buffalo General
Hospital. AR at 357-66. On June 4, 2014, Plaintiff underwent a coronary stress test
that ruled out critical coronary artery disease, but showed a marked hypertensive blood
pressure response to exercise. AR at 421, 562. On February 6, 2015, Plaintiff was
noted to have poor chronotropic incompetency (inability to appropriately increase heart
rate in response to physical activity or stress), and a marked hypertensive blood
pressure response to exercise. AR at 426. To treat both conditions, referred to as “sick
sinus syndrome,” Plaintiff underwent surgical placement of a pacemaker on February
27, 2015, performed by Safi M. Malik, M.D. (“Dr. Malik”), at OGH. AR at 408-11.

In connection with his disability benefits applications, Plaintiff, on June 6, 2014,
underwent an internal medicine examination by consultative physician Michael
Rosenberg, M.D. (“Dr. Rosenberg”), whose physical examination was essentially
normal. AR at 579-83 (“Dr. Rosenberg’s opinion”). Dr. Rosenberg’s diagnoses
included, by history, coronary artery disease with bradycardia (slow heartbeat),
asymptomatic at present, hypertension, and history of dyspnea (shortness of breath),
with Plaintiff’s prognosis “stable.” AR at 582. Dr. Rosenberg’s medical source
statement included that Plaintiff “is restricted from activity that requires moderate or
great exertion secondary to his history of shortness of breath exacerbated by exercise.”)
Id. at 583. Plaintiff’s medical records were reviewed on February 24, 2020, by State
Agency single decision maker (“SDM”)5 Tracey Passantino (“SDM Passantino”), who
concluded Plaintiff has ischemic heart disease (diminished blood and oxygen supply to
heart muscle due to narrowed or blocked arteries), and essential hypertension (high

blood pressure with not identifiable secondary cause), but is not disabled. AR at 91-96.
During the period relevant here, Plaintiff was followed for his heart condition at
Great Lakes Cardiology (“Great Lakes Cardiology”) where he regularly saw Nurse
Practitioner (“NP”) Cliff Pyne (“NP Pyne”). Beginning in 2017, Plaintiff commenced
receiving primary care at Cuba Family Health Care (“Cuba FHC”) where he was treated
by Phyllis Bessey, FNP-C (“NP Bessey”), and NP Jodi Kottwitz (“NP Kottwitz”). AR at
1378-1453; 1571-84.

DISCUSSION

1. Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when he is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s

5 Single decision-makers or “SDMs” are “non-physician disability examiners who may make the initial
disability determination in most cases without requiring the signature of a medical consultant.” Myia M. v.
Kijakazi, 2023 WL 5694937, at *4 n. 6 (W.D.N.Y. Sept. 5, 2023) (quoting Mae B. v. Comm’r of Soc.Sec.,
2021 WL 2643177, at *5 (W.D.N.Y. June 28, 2021) (further internal quotation omitted)). Notably, an
SDM’s assessment of disability is not a medical opinion for the purposes of appeals. Alberalla v. Colvin,
2014 WL 4199689, at * 10 (W.D.N.Y. Aug. 22, 2014) (citing SSA’s Program Operations Manual System
(“POMS”) DI 24510.050(C)). Accordingly, “it is error for an ALJ to give weight to the opinion of a[n] SDM.”
Myia M., 2023 WL 5694937, at *4 n. 6 (quoting Mae B., 2021 WL 2643177, at *5).
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,6 if supported by substantial

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
In short, the issue is not whether substantial evidence supports the claimant’s
argument, but “whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.
T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very
deferential standard of review,’ ‘once an ALJ finds facts, we can reject those facts only if

6 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
a reasonable factfinder would have to conclude otherwise.’” Id. at 58-59 (quoting Brault
v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original).
2. Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI
benefits.7 Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable

regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). The first step is to determine whether the applicant is engaged in substantial
gainful activity during the period for which the benefits are claimed. 20 C.F.R. §§
404.1520(b) and 416.920(b). The second step is whether the applicant has a severe
impairment which significantly limits the physical or mental ability to do basic work
activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and
416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or
“the Listings”), and meets the duration requirement of at least 12 continuous months,
there is a presumption of inability to perform substantial gainful activity, and the claimant
is deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the

7 Although the SSI program has special economic eligibility requirements, the requirements for
establishing disability under Title II, 42 U.S.C. § 423(d), and Title XVI, 42 U.S.C. § 1382c(a)(3), are
identical, so that “decisions under these sections are cited interchangeably.” Donato v. Sec'y of Health
and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
Commissioner must then consider the applicant’s residual functional capacity (“RFC”)
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. §§ 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant

work (“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains
capable of performing PRW, disability benefits will be denied, id., but if the applicant is
unable to perform PRW relevant work, the Commissioner, at the fifth step, must
consider whether, given the applicant’s age, education, and past work experience, the
applicant “retains a residual functional capacity to perform alternative substantial gainful
work which exists in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).
The burden of proof is on the applicant for the first four steps, with the Commissioner
bearing the burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and
416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). All five steps need

not be addressed because if the claimant fails to meet the criteria at either of the first
two steps, the inquiry ceases and the claimant is not eligible for disability benefits, but if
the claimant meets the criteria for the third or fourth step, the inquiry ceases with the
claimant eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
3. Second ALJ Decision
In the instant case, the ALJ found Plaintiff meets the Act’s insured status
requirement for SSDI through June 30, 2025, and has not engaged in substantial gainful
activity (“SGA”) since June 23, 2013, Plaintiff’s asserted disability onset date (“DOD”),
and that Plaintiff’s income from part-time work through 2020 does not rise to the level of
substantial gainful activity (“SGA”).8 AR at 936. The ALJ found Plaintiff suffers from the
severe impairments of history of heart attack with stent placement and pacemaker,
coronary artery disease, and hypertension, id. at 936, but that Plaintiff’s hyperlipidemia,
bradycardia, arrythmia, sick sinus syndrome, right shoulder impingement syndrome, left

wrist hyperextension, history of carpal tunnel, diabetes mellitus, mild obesity, hernia,
dyspnea, dermatitis, benign prostate hyperplasia, sleep disturbance, fatigue, vitamin
deficiencies, and anemia do not have more than a minimal effect on Plaintiff’s ability to
perform physical or work activities and, as such, are not severe impairments. AR at
936-37. The ALJ further considered Plaintiff’s anxiety and post-traumatic stress
disorder (“PTSD”), for which there is no evidence in the record prior to June 2021, but
found that the record is devoid of any records showing Plaintiff received specialized
mental health treatment, counseling, or psychotropic medication management for such
mental health impairments, AR at 937, and also found the record supports no more than
a mild/minimal limitation in Plaintiff’s ability to perform basic work activities and therefore

are non-severe, AR at 937-38, and that Plaintiff does not have an impairment or
combination of impairments meeting or medically equal to the severity of any listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 938. The ALJ found
that despite Plaintiff’s impairments, Plaintiff retains the RFC to perform less than the full
range of light work as defined by 20 C.F.R. § 404.1567(b) and § 416.967(b), in that
Plaintiff can lift and/or carry twenty pounds occasionally, and ten pounds frequently,
stand and/or walk for six hours in an eight-hour workday, sit for six hours in an eight-
hour workday, Plaintiff cannot climb external ladders, ropes, or scaffolds, can rarely

8 The ALJ clarified that Plaintiff’s income from his part-time employment in 2015 did not exceed the
current level for SGA. AR at 936.
(defined as up to 1/6th of an eight-hour workday),, climb step ladders, and occasionally
climb ramps or stairs, and Plaintiff cannot be exposed to such hazards as unprotected
heights or moving machinery, and cannot drive a commercial vehicle or carry
passengers for hire. AR at 939-42. The ALJ further found Plaintiff, despite his

impairments, remains capable of performing his PRW as a housing inspector. Id. at
942-43. The ALJ alternatively determined that Plaintiff, based on his age of 46 as of
June 23, 2013, his DOD, which was then considered a younger individual, 20 C.F.R. §
404.1563(c) and § 416.963(c), which age category changed to “closely approaching
advanced age” when Plaintiff turned 50 on May 7, 2017, 20 C.F.R. § 404.1463(d) and §
416.963(d),9 high school education, and work experience with transferability of skills not
relevant, can perform other jobs existing in significant numbers in the national economy
including as a paint-spray inspector, labeler, and small products assembler. AR at 943-
45.10 Accordingly, the ALJ found Plaintiff was not disabled as defined in the Act from
June 23, 2013, the asserted DOD, through the date of the Second ALJ Decision. Id. at

945. Here, Plaintiff does not challenge the Second ALJ Decision with regard to the first
three steps of the five-step sequential analysis but, rather, the ALJ’s determination at
the fourth-step that Plaintiff’s retains the RFC to perform his PRW as a housing

9 Although as of March 28, 2022, Plaintiff was less than six weeks from turning 55 on May 7, 2022, and
thus in the “advanced age” category, 20 C.F.R. § 404.1563(e) and 416.963(e), which category would
direct a determination that Plaintiff is disabled based on the Medical-Vocational Guidelines set forth in 20
C.F.R. Part 404, Subpart P, App. 2, (“the Grids”), the ALJ determined that use of the advanced age
category “is not supported by the limited adverse impact of all factors on the claimant’s ability to adjust to
work.” AR at 944.

10 As Plaintiff argues, Plaintiff’s Memorandum at 16, the ALJ incorrectly refers to the paint-spray inspector
job as a “small product inspector.” However, Plaintiff’s assertion that the ALJ also incorrectly refers to the
marker II job as a “labeler” is not correct because the Dictionary of Occupational Titles, on which the SSA
relies in classifying jobs, provides that “labeler” is an alternative title for the “marker II” job.
inspector, and the ALJ’s alternative determination at the fifth step that there exist in the
national economy jobs which Plaintiff, based on his RFC, can perform.
4. Analysis of the Arguments
In support of his motion, Plaintiff argues the ALJ’s determination at Step 4 of the

sequential analysis that Plaintiff can perform his past relevant work as a housing
inspector is not supported by substantial evidence in the record because Dr. Gaeta
testified that Plaintiff could not climb ladders yet the ALJ found Plaintiff could climb step
ladders as required for the housing inspector job and Plaintiff did not perform his
housing inspector job long enough to learn it, Plaintiff’s Memorandum at 10-16, the ALJ
failed to order a physical consultative examination regarding Plaintiff’s physical
impairments to his right shoulder and left wrist, id. at 16-19, and the ALJ failed to order
a consultative psychiatric evaluation of Plaintiff’s anxiety disorder. Id. at 19-20. In
response and in support of Defendant’s motion, Defendant argues that the
Commissioner’s Step 4 determination is supported by substantial evidence in the

record, Defendant’s Memorandum at 12-17, substantial evidence supports the ALJ’s
RFC assessment including the ALJ’s reliance on Dr. Gaeta’s opinion testimony at the
second hearing, id. at 17-21, and the ALJ’s exercise of his discretion in declining to
schedule a psychiatric consultative examination was reasonable. Id. at 22-26. In reply,
Plaintiff argues Defendant has not squarely responded to Plaintiff’s arguments in
support of judgment on the pleadings and references out-dated case law. Plaintiff’s
Reply at 1-4. There is no merit to Plaintiff’s arguments.
With regard to Plaintiff’s challenges to the ALJ’s determination that Plaintiff’s
RFC permitted Plaintiff to perform his PRW as a housing inspector, the court first
addresses Plaintiff’s argument, Plaintiff’s Memorandum at 11-15, that the ALJ
erroneously determined that Plaintiff could perform his PRW as a housing inspector
despite there being no substantial evidence in the record that Plaintiff could climb a
stepladder, or whether such job required Plaintiff to also climb external ladders. As

Defendant argues, however, Defendant’s Memorandum at 12-15, substantial evidence
supports the ALJ’s determination that Plaintiff retains the RFC to perform his past work
as a housing inspector.
Much of Plaintiff’s argument on this point focuses on testifying impartial medical
expert Dr. Gaeta’s testimony that Plaintiff ‘should not climb ladders or scaffolds.” AR at
965. Plaintiff maintains that despite this testimony, the ALJ posed hypotheticals to the
VE that impermissibly distinguished between external ladders and stepladders, with the
VE agreeing that Plaintiff could perform his PRW if able to climb stepladders. Plaintiff’s
Memorandum at 11-13. This argument is, however, without merit because the ALJ’s
determination that Plaintiff could climb stepladders is supported by the Cardiac Residual

Functional Capacity Questionnaires completed by Great Lakes Cardiology NP Pyne on
August 30, 2018, AR at 920-24 (“August 30, 2018 Assessment”), and October 25, 2021,
AR at 1601-06 (“October 25, 2021 Assessment”). Significantly, in both the August 30,
2018, and October 25, 2021 Assessments, NP Pyne reported Plaintiff had normal
cardiac examinations that showed normal cardiac function, was asymptomatic, with
excellent prognosis, no shortening of life expectancy, and could work with only minor
restrictions such as moderate stress, sitting six hours in an eight-hour workday, and
standing or walking four hours in an eight-hour workday, occasional postural limitations,
and some environmental restrictions such as avoiding concentrated exposure to
extreme heat and heavy machinery, AR at 920-24, 1601-06, NP Pyne also indicated
Plaintiff could occasionally climb ladders and frequently climb stairs. AR at 923, 1605.
Although Pyne is a nurse practitioner rather than a medical doctor, the ALJ sufficiently
articulated, as required by 20 C.F.R. §§ 404.1527(f) and 416.927(f),11 that he was fiving

significant weight to NP Pyne’s assessments insofar as they are not inconsistent with
Dr. Gaeta’s opinion rendered during his testimony, and both assessments were in
Plaintiff’s file when reviewed by Dr. Gaeta. AR at 941. Significantly, “[t]he ALJ is
permitted to discount the opinion of a treating physician if it is inconsistent with other
substantial evidence in the record.” Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2002).
Here, Dr. Gaeta is an impartial medical expert rather than a treating physician such that
his opinion is not subject to the so-called treating physician rule. Further, interpreting
Dr. Gaeta’s reference that Plaintiff should avoid “ladders” to mean all ladders regardless
of size is very broad and inconsistent with NP Pyne’s assessment that Plaintiff had, at
most, an occasional restriction from climbing ladders which assessment was based

upon examinations of significant longitude as to support the ALJ’s grant of greater
weight to NP Pyne’s assessments rather than Dr. Gaeta’s opinion. 20 C.F.R. §§
404.1527(f) and 416.927(f). This narrower construction is consistent with the fact that
Plaintiff, despite testifying that his housing inspection job regularly required Plaintiff to
check smoke detectors, AR at 990, Plaintiff never mentioned any problem with climbing
ladders but, instead, consistently maintains he is unable to work because he has no
energy, AR at 981, and sitting for long periods of time is his greatest struggle. AR at
987. Further, the VE clarified that the type of ladder Plaintiff may be required to use in

11 Because Plaintiff’s disability applications were filed prior to March 27, 2017, the opinion evidence is
subject to the treating physician’s rule set forth in 20 C.F.R. §§ 404.1527 and 416.927.
his job as a housing inspector, rather than a building inspector, would not be an external
ladder but would be a step ladder within a home to check fire detectors mounted on a
ceiling and light bulbs. Id. at 994-95. Accordingly, substantial evidence in the record
supports the ALJ’s interpretation of Dr. Gaeta’s opinion testimony that Plaintiff should

avoid ladders to refer only to external ladders such as would be suitable for climbing
onto a roof, rather than a step ladder that would be used within a home.
Nor is there any merit to Plaintiff’s argument, Plaintiff’s Memorandum at 15-16,
that because Plaintiff performed his housing inspector job only part-time, Plaintiff could
not have adequately learned the job which is categorized in the Dictionary of
Occupational Titles (“DOT”)12 at specific vocational preparation (“SVP”) level 7, given
that SVP 7 work requires “[o]ver 2 years and up to and including 4 years” to learn.13
See Dictionary of Occupational Titles, Appendix C: Components of the Definition Trailer,
§ II. Specific Vocational Preparation (SVP), available at: https//www.occupationalinfo.
org/appendxc_1.html# (last visited Aug. 13, 2025). Rather, as Defendant observes,

Defendant’s Memorandum at 15-16, Plaintiff worked at the housing inspector job for
almost ten years, i.e., from 2011 to 2020, AR at 246-27, 1302-04, and nothing in the
DOT provides that an SVP level 7 job performed on a part-time basis cannot be learned
within the specified time. Nor is there any evidence that Plaintiff had any special work
restrictions as Plaintiff suggests. Plaintiff’s Memorandum at 15-16 (referencing AR at
193-94 (SSA Work Activity Questionnaire completed by Plaintiff’s employer,

12 The SSA primarily relies on the Dictionary of Occupational Titles or “DOT” “for information about the
requirements of work in the national economy.” Social Security Ruling 00-4P, Policy Interpretation
Ruling: Title II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable
Occupational Information in Disability Decisions, 2000 WL 1898704, at * 2 (S.S.A. Dec. 4, 2000).

13 Other than insinuating that Plaintiff’s inability to fully learn the housing inspector job precludes
considering such employment as PRW, the relevance of this argument is not clear.
Cattaraugus Development Corporation regarding Plaintiff’s work as a Housing Quality
Standards Inspector). Rather, the form to which Plaintiff refers provides that Plaintiff
sets his own hours for work, and that Plaintiff did work under special, albeit, unspecified,
conditions, “during the health crisis,” that Plaintiff’s work was satisfactory, and that

otherwise Plaintiff could and did complete all usual job duties without special
assistance. AR at 193-94. Accordingly, there is no merit to Plaintiff’s argument that
because Plaintiff’s employment as a housing inspector was on a part-time basis,
Plaintiff never fully learned the job.
Even if the ALJ erred in finding Plaintiff retained the RFC to perform his PRW as
a housing inspector, such error was harmless because substantial evidence in the
record supports the ALJ’s step 5 determination that there are several alternative jobs in
the national economy that Plaintiff can perform. See David W. v. Comm’r of Soc. Sec.,
2018 WL 6088095, at *12 (N.D.N.Y. Nov. 20, 2018) (holding the ALJ’s error at step 4 in
determining that the plaintiff could perform PRW was harmless where substantial

evidence in the record supported the ALJ’s alternative and correct identification of other
jobs existing in the national economy that the plaintiff could perform based on his RFC).
The jobs, initially identified by the VE at the second hearing, AR at 998, include working
as a paint-spray inspector, marker II, and assembler, small products I, all of which are
“light work” and none of which require use of any ladders. AR at 944-45.
Insofar as Plaintiff maintains that the ALJ, in formulating Plaintiff’s RFC, also
failed to take into account limitations posed by Plaintiff’s right shoulder and left wrist
impairments,14 Plaintiff’s Memorandum at 16-17, the record establishes the ALJ did

14 Plaintiff is left-hand dominant. AR at 988, 1385.
consider such impairments and substantial evidence in the record supports the ALJ’s
determination that such non-severe impairments did not require incorporating additional
limitations into the RFC.15 Specifically, the ALJ considered that medical evidence in the
record shows Plaintiff “has been medically managed for . . . right shoulder impingement

syndrome, left wrist hyperextension, history of carpal tunnel . . . .” AR at 936. The ALJ
remarked that the record contains a reference to “a history of left-sided carpal tunnel
surgery, but there is no medial evidence of residual deficits.” AR at 937 (citing AR at
550 (office treatment note dated September 3, 2013 indicating Plaintiff’s past surgical
history included “left carpal tunnel release”). The ALJ further noted Plaintiff’s left carpal
tunnel release occurred in 2004. Id.
The only evidence in the record that Plaintiff’s right shoulder and left wrist
impairments caused any limitations in Plaintiff’s ability to work is found in a Physical
Residual Functional Capacity Questionnaire completed by NP Kottwitz at Cuba FHC
June 1, 2021, AR at 1373-1377 (“June 1, 2021 Assessment”), in which Plaintiff was

reported to have complained of a “frozen right shoulder,” AR at 1373, no diagnosis
regarding the shoulder was given. The June 1, 2021 Assessment also indicated that
Plaintiff hand limitations with reaching, handling and fingering included that grasping,
turning, and twisting objects, as well as fine finger manipulations, were limited to 50%
with the right hand and 5% with the left hand, and Plaintiff was unable to reach
overhead with either arm. AR at 1367. Not only are these limitations not supported by

15 The court notes that Plaintiff, by failing to challenge the ALJ’s failure at Step 2 to find Plaintiff’s right
shoulder and left wrist impairments to be severe medical impairments, has waived such objection. See
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir 2009) (issues not raised before the district court in support
of judgment on the pleadings are waived).
substantial evidence in the record, but these limitations are in contrast to other evidence
in the record.
In particular, although Plaintiff attributes his right shoulder and left wrist
impairment to a fall in 2004, Plaintiff did not include such impairments in his disability

benefits applications in which he claims he is unable to work because of his heart
attack, pacemaker, and stents. AR at 262. Dr. Rosenberg’s June 6, 2016 consultative
internal medicine examination reported Plaintiff’s left wrist surgery, id. at 581, but upon
examination Plaintiff had full range of motion (“ROM”), bilaterally, of shoulders, elbows,
forearms, and wrists, joints were stable and nontender and without redness, heat,
swelling, or effusion (abnormal fluid accumulation), hand and finger dexterity was intact
and grip strength was 5/5 bilaterally, id. at 582, and Dr. Rosenberg made no diagnosis
and assessed no limitations to Plaintiff’s ability to work based on any shoulder or wrist
impairment. Id. at 582-83. This is consistent with Plaintiff’s testimony at the second
hearing, attributing both his right shoulder and left wrist impairments to a fall off a wall in

2004 while working at his previous job as a construction worker at Owl Homes, AR at
989, with the ALJ commenting that Plaintiff later, in 2007, worked at a junkyard where
Plaintiff was required to regularly lift 50 to 75 lbs. AR at 937 (referencing AR at 263).
Further, treatment notes from Cuba FHC show that on September 29, 2020, NY
Bessey reported Plaintiff denied any limitations of movement, muscle aches, joint pain,
swelling, and joint swelling, AR at 1388, and upon examination, upper extremities were
“normal to inspection and palpation,” with full ROM bilaterally, motor strength 5/5
bilaterally, no sensory or motor deficits were noted, and reflexes and coordination were
normal. AR at 1390. NP Bessey reported the same findings on January 29, 2021. AR
at 1384-86. Although on June 1, 2021, NP Kottwitz, who had not previously examined
Plaintiff, AR at 1373, reported Plaintiff complained about a frozen right shoulder, and of
constant pain and swelling of his left wrist “with any repetitive use,” AR at 1575, and
observed that Plaintiff had moderate swelling of his left wrist, id. at 1576, NP Kottwitz

did not report similar findings at a subsequent examination of Plaintiff on September 9,
2021, but only that Plaintiff’s upper extremities showed motor strength at 5/5 bilaterally,
no focal sensory or motor deficits were noted, and reflexes and coordination were
normal. Id. at 1573. Moreover, despite testifying at the second hearing that he cannot
reach overhead with both arms, Plaintiff explained that in performing his housing
inspection job, he would test smoke detectors by reaching up with his left arm. AR at
990. Significantly, Plaintiff’s second hearing testimony does not include any statements
attributing his inability to perform his PRW as a housing inspector to any impairments of
his right shoulder or left wrist; rather, when questioned as to what made the job
untenable, Plaintiff responded, “Probably the sitting down for any length of time

anymore,” including sitting while driving to various inspection sites and the follow-up
office work. AR at 987. Accordingly, the ALJ’s failure to incorporate additional work
restrictions into the RFC based on Plaintiff’s non-severe right shoulder and left wrist
impairments is supported by substantial evidence in the record.
As regards Plaintiff’s argument that the ALJ was required to obtain a psychiatric
evaluation of Plaintiff’s anxiety and PTSD, Plaintiff’s Memorandum at 19-20, as
Defendant counters, Defendant’s Memorandum at 22-24, whether to order a psychiatric
evaluation was within the ALJ’s discretion. See Simon v. Colvin, 2013 WL 4094612, at
*6–7 (W.D.N.Y. Aug. 13, 2013) (finding no psychiatric consultative evaluation needed
where substantial evidence in the record to support ALJ's conclusion). Further, “[a]n
ALJ is not obligated to order a consultative examination if the facts do not warrant or
suggest the need for such an examination.” Brown v. Astrue, 2012 WL 2953213, at *7
(W.D.N.Y. July 19, 2012). Here, the ALJ’s decision not to order a psychiatric evaluation

is supported given that Plaintiff points to no medical evidence of any limitations
stemming from his asserted anxiety and PTSD; rather, Plaintiff is repeatedly found to
have no limitations attributed to any mental health impairments. See, e.g., October 25,
2021 Assessment (NP Pyne reporting Plaintiff’s physical symptoms and limitations
would not “cause emotional difficulties such as depression or chronic anxiety”), and
September 9, 2021 Treatment Note (AR at 1573-74) (NP Kottwitz reporting Plaintiff
“[d]enies psychiatric symptoms,” with normal mood, appropriate affect, and judgment
and insight grossly intact). Although NP Kottwitz did assess Plaintiff with anxiety due to
Plaintiff’s concern that he might experience another cardiac episode, AR at 1574,
Plaintiff denied NP Kottwitz’s offer to prescribe Plaintiff with antianxiety medication. Id.

The ALJ considered this evidence as well as that NP Kottwitz initially established
treatment with Plaintiff on June 1, 2021, the same date she rendered her assessment
that Plaintiff has anxiety that contributes to his physical condition and increases with
stress. AR at 942 (referencing AR at 1373-77). In short, in the absence of any medical
evidence supporting that Plaintiff’s anxiety and possible PTSD imposes limitations on
Plaintiff’s ability to work, the ALJ’s decision not to order a psychiatric evaluation was
reasonable. See William M. v. Comm’r of Soc. Sec., 2023 WL 7294872, at * 4
(W.D.N.Y. Nov. 6, 2023) (where there are no apparent gaps in the record or any
ambiguities needing further explanation, the ALJ does not err in failing to order a further
consultative examination).
Moreover, as the ALJ observed, AR at 939, Plaintiff testified that he only stopped
working in August 2020 because he was laid off, AR at 979, after which Plaintiff

collected unemployment benefits until they were exhausted in September 2021. Id.
Significantly, a claimant’s application for unemployment benefits is considered to
indicate the claimant is able to work. See Stellmaszyk v. Berryhill, 2018 WL 4997515,
at * 29 (S.D.N.Y. Sept. 28, 2018) (claimant’s application for unemployment benefits
represented she was able to work and was “facially inconsistent” with, and did not
support her disability claim); Rich v. Comm’r. of Soc. Sec., 2009 WL 2923254, at * 1
(W.D.N.Y. Sept. 10, 2009) (noting the plaintiff’s receipt of unemployment benefits
evidences the ability to work).
The Second ALJ Decision thus is supported by substantial evidence.

CONCLUSION
Based on the foregoing, the Second ALJ Decision that Plaintiff is not disabled is
supported by substantial evidence in the record. Accordingly, Plaintiff’s Motion (Dkt. 14)
is DENIED; Defendant’s Motion (Dkt. 16) is GRANTED. The Clerk of Court is
DIRECTED to close the file.
SO ORDERED.

/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: August 25, 2025
Buffalo, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11127002. Public record. Not legal advice.