Preston

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________________

LAKEISHA P.,

Plaintiff,

v. CASE NO. 1:24-cv-00306

(JGW)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________________

J. Gregory Wehrman, U.S. Magistrate Judge,

MEMORANDUM-DECISION and ORDER

The parties consented in accordance with a standing order to proceed before the

undersigned. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).

The matter is presently before the Court on the parties’ cross-motions for judgment on

the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docs. 12,

16.) Upon review of the administrative record and consideration of the parties’ filings,

Plaintiff’s Motion for Judgment on Pleadings (Doc. 12) is DENIED, Defendant’s Motion

for Judgment on the Pleadings (Doc. 16) is GRANTED, and the decision of the

Commissioner is AFFIRMED.

I. RELEVANT BACKGROUND

A. Procedural Background

On September 23, 2019, Plaintiff protectively filed an application for a period of

disability and disability insurance benefits, alleging a disability onset date of January 18,

2019. (Tr. 109-10.) Plaintiff’s claim was denied initially and on reconsideration. (Tr. 108,

119.) She then timely requested a hearing before an Administrative Law Judge (ALJ)

and appeared with counsel for a telephonic hearing before ALJ Stephen Cordovani on

January 14, 2021. (Tr. 62-107.) On February 17, 2021, the ALJ issued an unfavorable

decision, finding that Plaintiff had several severe impairments, including a neck injury,

upper back injury, right wrist injury, and right hip injury, but ultimately found she was not

disabled. (Tr. 133-54.) The Appeals Council granted her request for review, vacated the

ALJ’s decision, and remanded the matter for consideration of additional treatment

records. (Tr. 155-60.) Thereafter, the ALJ held another telephonic hearing on June 21,

2022, (Tr. 40-61), and on February 1, 2023, issued another unfavorable decision, finding

that Plaintiff was not disabled, (Tr. 15-39). The Appeals Council denied her request for

review, (Tr. 1-6), and Plaintiff timely filed her appeal to this Court.

B. Factual Background1

Plaintiff was born on July 6, 1980, and alleged disability beginning on January 18,

2019. (Tr. 109.) Plaintiff finished high school and one year of college. (Tr. 375.) Her

disabling conditions were initially alleged to include a neck injury, upper back injury, right

hip injury, right wrist injury, depression, anxiety, ADHD, anthropophobia, panic attacks,

obsessive compulsive disorder, and head trauma. (Tr. 109-10.) At the hearing, Plaintiff’s

counsel indicated that he agreed with the ALJ’s previous finding that Plaintiff’s neck injury,

upper back injury, right wrist injury, and right hip injury were all severe impairments, but

he also believed that her depression, anxiety, and PTSD were severe impairments. (Tr.

44.)

1 This recitation of facts primarily includes testimony from the hearing before the ALJ. Other facts will be

developed throughout the opinion as relevant to the Court’s analysis.

Plaintiff testified at the second hearing regarding her living situation, explaining that

her daughter lived with her and took care of her. (Tr. 45.) Plaintiff indicated that her

condition had changed dramatically in the time between the initial and second hearing.

(Tr. 47.) She explained that her depression and anxiety had worsened, and she struggled

to focus and remember things. (Id.) But she described that her physical pain had

remained mostly unchanged in that she still experienced a lot of pain. (Tr. 47-48.) Plaintiff

testified that she treated biweekly with her therapist and also saw a psychiatrist who

prescribed her medication. (Tr. 48.) She indicated that she experienced short-term

memory loss as a side effect of one of her medications. (Tr. 48-49.) Plaintiff explained

that her anxiety and depression limit her ability to focus, and so she has trouble reading

and watching a movie. (Tr. 49.) She indicated that she was able to concentrate through

a thirty-minute show, but she had difficulty processing what was happening. (Tr. 49-50.)

Plaintiff also confirmed her prior testimony that she was able to lift four to five

pounds (although she indicated she was not sure if she could do any lifting anymore),

could stand for ten minutes at a time, and stand for three minutes. (Tr. 50.) She also

indicated that she continued to experience panic attacks, at least three to four a day, if

not more. (Id.) The attacks could last thirty minutes if she was able to take her medication

and could last all day without her medication. (Tr. 51.) She also confirmed her prior

limitations with her right hand. (Id.)

The ALJ also received testimony from a vocational expert (VE). (Tr. 52-60.) The

ALJ posed several hypotheticals to the VE, asking the VE to assume an individual “of the

same age, education, and work experience as [Plaintiff].” (Tr. 53.) He then asked the VE

to assume that “the individual is capable of a range of light exertional activity with standing

and walking however limited to four hours in an eight-hour day. They can frequently climb

ramps and stairs. Frequently climb ladders, ropes, and scaffolds. Frequently balance and

kneel. Occasionally stoop and occasionally do overhead work.” (Id.) The VE confirmed

that Plaintiff’s past work would not be available to the hypothetical individual, but she

testified there would be other jobs available, including an office helper, routing clerk, and

photocopy machine operator. (Tr. 54.)

The second hypothetical included the same limitations but added occasional

handling and fingering with the right dominant hand. (Tr. 55.) The VE initially indicated

there would be no jobs for that hypothetical, but upon further review, testified that a school

bus monitor job would be available. (Id.) If the right dominant hand limitation on handling

and fingering were adjusted from occasional to frequent, the VE testified that the jobs of

office helper, routing clerk, and photocopy machine operator would remain. (Tr. 56.)

Finally, the ALJ included an additional limitation of understanding, remembering,

and carrying out simple instructions and tasks; no involvement in supervisory duties, no

independent decision-making, no strict quotas, minimal changes in work routine and

processes, and only occasional interaction with supervisors, coworkers, and the general

public. (Tr. 56-57.) The VE responded that the routing clerk and photocopy machine

operator would remain applicable. (Tr. 57.) The VE confirmed that her opinions were

based on her training, education, work experience, and how she understands the jobs to

be performed in combination with the DOT. (Id.)

C. ALJ’s Decision

Generally, in his decision, the ALJ made the following findings of fact and

conclusions of law.

1. The claimant last met the insured status requirements of the Social Security Act

on December 31, 2021. (Tr. 21.)

2. The claimant did not engage in substantial gainful activity during the period from

her alleged onset date of January 18, 2019, through her date last insured of

December 31, 2021 (20 CFR 404.1571 et seq.). (Tr. 21.)

3. Through the date last insured, the claimant had the following severe

impairments: neck injury, upper back injury, right wrist injury, and right hip injury

(20 CFR 404.1520(c)). (Tr. 21.)

4. Through the date last insured, the claimant did not have an impairment or

combination of impairments that met or medically equaled the severity of one

of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526). (Tr. 23.)

5. Through the date last insured, the claimant had the residual functional capacity

to perform less than the full range of light work as defined in 20 CFR

404.1567(b), because she was able to lift and/or carry twenty pounds

occasionally and ten pounds frequently, stand and/or walk for a total of four

hours in an eight-hour workday, and sit for a total of six hours in an eight-hour

workday. In addition, the claimant was able to frequently balance, kneel, climb

ramps and stairs, and climb ladders, ropes, and scaffolds, as well as

occasionally stoop and perform overhead work. (Tr. 23.)

6. Through the date last insured, the claimant was unable to perform any past

relevant work (20 CFR 404.1565). (Tr. 31.)

7. The claimant was born on July 6, 1980, and she was 41 years old, which is

defined as a younger individual, age 18-49, on the date last insured (20 CFR

404.1563). (Tr. 31.)

8. The claimant has at least a high school education (20 CFR 404.1564). (Tr. 31.)

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the claimant is “not disabled,” whether or not the claimant has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). (Tr.

31.)

10. Through the date last insured, considering the claimant’s age, education, work

experience, and residual functional capacity, there were jobs that existed in

significant numbers in the national economy that the claimant could have

performed (20 CFR 404.1569 and 404.1569a). (Tr. 31.)

II. LEGAL STANDARD

A. Standard of Review

“In reviewing a final decision of the SSA, this 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). Substantial evidence is defined as “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 496, 501

(2d Cir. 2009). “To determine on appeal whether the ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining evidence

from both sides, because an analysis of the substantiality of the evidence must also

include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d

Cir. 1988). If the evidence is susceptible to more than one rational interpretation, the

Commissioner’s determination must be upheld. McIntyre v. Colvin, 758 F.3d 146, 149 (2d

Cir. 2014). “Where an administrative decision rests on adequate findings sustained by

evidence having rational probative force, the court should not substitute its judgment for

that of the Commissioner.” Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).

B. Standard to Determine Disability

To be disabled under the Social Security Act (“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.

20 C.F.R. § 416.905(a). The Commissioner must follow a five-step sequential evaluation

to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §

416.920(a).

At step one, the claimant must demonstrate that he is not engaging in substantial

gainful activity. 20 C.F.R. § 416.920(b). At step two, the claimant must demonstrate that

he has a severe impairment or combination of impairments that limits the claimant’s ability

to perform physical or mental work-related activities. 20 C.F.R. § 416.920(c). If the

impairment meets or medically equals the criteria of a disabling impairment as set forth

in Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”), and satisfies the durational

requirement, the claimant is entitled to disability benefits. 20 C.F.R. § 416.920(d). If the

impairment does not meet the criteria of a disabling impairment, the Commissioner

considers whether the claimant has sufficient residual functional capacity (RFC) for the

claimant to return to past relevant work. 20 C.F.R. § 416.920(e)-(f). If the claimant is

unable to return to past relevant work, the burden of proof shifts to the Commissioner to

demonstrate that the claimant could perform other jobs which exist in significant numbers

in the national economy, based on claimant’s age, education, and work experience. 20

C.F.R. § 416.920(g).

III. ANALYSIS

Plaintiff asserts three arguments in support of remand. First, Plaintiff contends that

the Routing Clerk job as set forth in the Dictionary of Occupational Titles (DOT), and on

which the ALJ relied in part to find Plaintiff not disabled, is obsolete, thereby rendering

the ALJ’s step five determination unsupported by substantial evidence. (See Doc. 12-1

at 16.) Second, Plaintiff argues that the ALJ failed to properly evaluate the favorable

opinions of consultative examining physician Dr. Liu. (See id. at 22.) Finally, Plaintiff

maintains that the ALJ improperly substituted his own lay opinion for that of the expert

medical providers. (See id. at 26.)

A. The ALJ’s Step Five Findings are Supported by Substantial Evidence.

Plaintiff argues that the ALJ erred by relying on the VE’s testimony that the job of

Routing Clerk, as described in the DOT, exists in significant numbers in the current

national economy. (Doc. 12-1 at 18.) Plaintiff contends that the Routing Clerk position is

obsolete and cannot serve as substantial evidence at step five to support the ALJ’s

decision. (See id. at 19.) Plaintiff further maintains that, if the Routing Clerk job is

disregarded, the remaining jobs identified by the VE do not exist in sufficient numbers to

satisfy the “significant number” requirement at step five, thereby requiring remand. (See

id.)

Based on the VE’s testimony during the hearing, the ALJ determined that “jobs

existed in significant numbers in the national economy” that Plaintiff could have performed

when considering her “age, education, work experience, and residual functional capacity.”

(Tr. 31.) Specifically, he noted:

To determine the extent to which these limitations eroded the unskilled light

occupational base through the date last insured, I asked the vocational

expert at the June 21, 2022, hearing whether jobs existed in the national

economy for an individual with the claimant’s age, education, work

experience, and residual functional capacity. The vocational expert testified

that, given all of these factors, the individual would have been able to

perform the requirements of representative occupations such as:

a) Office Helper (DOT#239.567-010) (Light, SVP 2): there are 6,841

jobs in the national economy

b) Routing Clerk (DOT#222.587-038) (Light, SVP 2): there are

25,152 jobs in the national economy

c) Photocopy Machine Operator (DOT#207.685-014) (Light, SVP 2):

there are 6,188 jobs in the national economy

Although the vocational expert’s testimony is not fully consistent with the

information contained in the Dictionary of Occupational Titles (“DOT”), there

is a reasonable explanation for the discrepancy. The claimant’s standing

and walking limitation of four hours in an eight-hour workday, and her

occasional overhead work limitation, are not directly addressed in the DOT;

however, due to the vocational expert’s experience, expertise, and reliable

testimony at the June 21, 2022, hearing, the vocational expert’s responses

are accepted in accordance with Social Security Ruling 00-4p. The

vocational expert noted all restrictions and still identified jobs based on

personal professional experience.

(Tr. 32.)

At step five, the Commissioner has the burden to demonstrate that a claimant can

perform other jobs which exist in significant numbers in the national economy, based on

claimant’s age, education, and work experience. See 20 C.F.R. § 416.920(g). “Work

exists in the national economy when there is a significant number of jobs (in one or more

occupations) having requirements which [Plaintiff is] able to meet with [her] physical or

mental abilities and vocational qualifications.” 20 C.F.R. § 416.966(b).

According to Plaintiff, the Routing Clerk position as described in the DOT is

obsolete because, given technological advances, such a job cannot exist in any

significance within the national economy. But beyond this conjecture, Plaintiff offers no

actual evidence in support of her contention.

To the contrary, the Court acknowledges that evidence exists that supports the

continued viability of this position. First, the Social Security Administration has not

characterized the position as obsolete. While the Social Security Administration has

instructed that certain jobs can no longer support a step five determination, it has not

done so with the Routing Clerk position. See EM-24026 available at

https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM, (last visited

December 3, 2025); see also EM-24027 REV, available at

https://secure.ssa.gov/apps10/reference.nsf/links/01062025092030AM (last visited

December 3, 2025). The Court sees no reason to substitute its judgment for that of the

Administration.

Moreover, at least two courts that have examined the question of whether the

Routing Clerk position is obsolete have concluded that it is not. See Gonzalez v. Comm'r

of Soc. Sec., No. 8:23-CV-106-JSS, 2024 WL 489494, at *9 (M.D. Fla. Feb. 8, 2024)

(recognizing that “beyond counsel's bare assertions, Plaintiff has provided no

documentation or evidence to support her argument that technological advances have

rendered the DOT's description of routing clerk obsolete”); see also Brown v. Comm'r of

Soc. Sec., No. 2:20-cv-446-JES-MRM, 2021 WL 3476405, at *6 (M.D. Fla. June 29,

2021), report and recommendation adopted, 2021 WL 3163972 (M.D. Fla. July 27, 2021).

Plaintiff primarily rests her argument for obsolescence on the out-of-district case

of Kelly P. v. Saul, 5:18cv00777-MAA, 2019 WL 3573591, at *1 (C.D. Cal. Aug. 6, 2019).

However, as Defendant points out, even that court declined to find the position obsolete.

See id. at *6 (“To be sure, what is commonly known about the national job market is

inadequate to find that the occupation of router, as it is described in the DOT, is

completely obsolete.”) Instead, it found that the number of jobs associated with that

position had been eroded by the lessened need for this type of position, and thus

concluded that the “significant number” requirement was not satisfied based on the

circumstances of that case. See id. (“But it is readily conceivable that technological

advances . . . have led to the reduction, at least to a modest extent, in the number of

router jobs . . . . Even a modest reduction of the 28,000 jobs the VE identified — such a

reduction of 15 percent of that number because of technological advances — would mean

that the number of available jobs is no longer significant.”)

However, even if the Routing Clerk job were excluded from consideration, the

remaining jobs of Office Helper and Photocopy Machine Operator would satisfy the

“significant number” requirement, thus providing sufficient evidence for the ALJ’s step five

finding. According to the VE’s testimony, the available number of jobs for each of these

positions is 6,841 and 6,188 jobs, respectively. (See Tr. 32; 54.) This equals 13,029 total

jobs. Importantly, courts within this district recognize that, while “there is no bright line test

to be applied here[,] . . . numbers between 9,000 and 10,000 have generally been

considered to be sufficient to satisfy the Commissioner's step five burden.”2 Rae L. v.

Comm'r of Soc. Sec., No. 1:22-CV-00921-TPK, 2025 WL 2611384, at *7 (W.D.N.Y. Sept.

10, 2025) (citing Sanchez v. Berryhill, 336 F. Supp. 3d 174, 177 (W.D.N.Y. 2018);

Pichardo v. Comm'r of Soc. Sec., 714 F. Supp. 3d 183, 195 (E.D.N.Y. 2024) (identifying

13,400 jobs as satisfying the significant number requirement); George v. Saul, No. 3:19-

cv-01456, 2020 WL 6054654, at *5 (D. Conn. Oct. 14, 2020) (10,500 jobs); Holly W. v.

Comm'r of Soc. Sec., No. 22-cv-512S, 2023 WL 4445586, at *4 (W.D.N.Y. July 11, 2023)

(11,800 jobs); Sarah Ann Z. v. Comm'r of Soc. Sec., No. 1:19-cv-01110(JJM), 2021 WL

1206516, at *8 (W.D.N.Y. Mar. 31, 2021) (9,840 jobs)).

While Plaintiff argues that a single job must meet the “significant number”

threshold, the regulation’s plain language contains no such requirement, and courts within

this district have concluded as much. See Sarah Ann Z., 2021 WL 1206516, at *7;

2 The Court notes that Kelly P. remains inapplicable even under this argument. In Kelly P., the “significant

number” threshold identified with by that court was approximately 25,000. Kelly P., 2019 WL 3573591, at

*6. The threshold is lower in this Circuit, and thus remains satisfied by the other jobs identified by the VE.

Schrader v. Saul, No. 18-cv-898-MJR, 2020 WL 2847276, at *4 (W.D.N.Y. June 2, 2020)

(finding two separate positions totaling 11,557 jobs satisfied the “significant numbers”

requirement). Similarly, contrary to Plaintiff’s contention, the Court notes that the

regulation specifically requires significant numbers in the national economy, not the local

economy. See 20 C.F.R. § 416.966(b).

Therefore, the Court finds the ALJ’s step five determination to be supported by

substantial evidence.

B. The ALJ Properly Evaluated Dr. Liu’s Opinions.

Plaintiff next asserts that the ALJ erred by failing to properly evaluate the favorable

physical RFC opinions of consultative examining physician Dr. Liu. (See Doc. 12-1 at

24.) Plaintiff argues that, contrary to the ALJ’s conclusions, Dr. Liu’s clinical findings do

support his opinion and, moreover, Dr. Liu reviewed a significant portion of Plaintiff’s

medical history, which the ALJ did not consider in his evaluation of Dr. Liu’s opinion. (See

id. at 24-25.) Finally, Plaintiff contends that the ALJ improperly denied Plaintiff’s request

to examine Dr. Liu in a supplemental hearing even though the ALJ noted that Dr. Liu’s

opinion was “internally inconsistent.” (See id. at 25.)

Pursuant to the Revisions to Rules Regarding the Evaluation of Medical Evidence

(“Revisions to Rules”), 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan. 18, 2017),

applicable to claims filed on or after March 27, 2017, the Commissioner is no longer

required to afford any specific evidentiary weight to medical opinions, but is obligated to

consider all medical opinions and evaluate their persuasiveness based on the following

five factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4)

specialization; and (5) other factors, with particular importance placed upon consistency

and supportability. Jacqueline L. v. Comm’r of Soc. Sec., 515 F. Supp. 3d 2, 7 (W.D.N.Y.

2021) (citing 20 C.F.R. § 416.920c(a) & (c)). To allow a reviewing court to trace the path

of an ALJ’s reasoning, an ALJ is required to explain his consideration of the supportability

and consistency factors by pointing to specific evidence in the record to support the ALJ’s

findings regarding medical opinions. Id. (citing 20 C.F.R. § 416.920c(b)(2)).

With respect to supportability, the more relevant the objective medical evidence

and supporting explanations presented by a medical source in the opinion, the more

persuasive the medical findings will be. Id. (citing 20 C.F.R. § 416.920c(c)(1)). Similarly,

with respect to consistency, the more consistent a medical opinion is with the evidence

from other medical and nonmedical sources, the more persuasive the medical opinions

will be. Id. (citing 20 C.F.R. § 416.920c(c)(2)). Supportability focuses on the fit between

a medical opinion offered by the source and the underlying evidence presented by the

source to support that opinion, while consistency focuses on how well a medical source

opinion is supported by the entire record. Rosario v. Comm’r of Soc. Sec, 20 Civ. 7749,

2022 WL 819810, at *8 (S.D.N.Y. Mar. 18, 2022). “Even though ALJs are no longer

directed to afford controlling weight to treating source opinions – no matter how well

supported and consistent with the record they may be – the regulations still recognize the

‘foundational nature’ of the observations of treating sources, and ‘consistency with those

observations is a factor in determining the value of any [treating sources] opinion.’” Id.

(quoting Shawn H. v. Comm’r of Soc. Sec., Civil Action No. 2:19-cv-113, 2020 WL

3969879, at *6 (D. Vt. July 14, 2020)) (alteration in original).

Furthermore, genuine conflicts in the medical evidence are for the ALJ to resolve.

Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). While the ALJ is not obligated to

explicitly reconcile every conflicting shred of medical evidence, the ALJ cannot selectively

choose evidence in the record to support the ALJ’s conclusions. Gecevic v. Sec. of Health

& Human Servs., 882 F. Supp. 278, 286 (E.D.N.Y. 1995).

In his decision, the ALJ thoroughly examined Dr. Liu’s second opinion, issued in

June 2022:

Meanwhile, I note that the claimant underwent a second consultative

internal medicine examination with Dr. Liu in June 2022, but I find that this

report is not persuasive, because the specific opinions are internally

inconsistent, and they are inconsistent with the medical evidence and other

opinions in this file through the date last insured (Exhibit 23F). In a narrative

medical source statement, Dr. Liu writes that the claimant “has mild to

moderate limitation for prolonged walking, bending, kneeling, squatting,

lifting, carrying, overhead reaching, prolonged sitting, standing, and stair

climbing” (Exhibit 23F, page 5). This narrative medical source statement is

less restricting than the one he put forth in February 2020, and it has no

manipulative limitations. However, in his check-box medical source

statement, Dr. Liu indicates that the claimant can only sit for two hours in

an eight-hour workday (Exhibit 23F, page 7). Such significant sitting

restrictions are inconsistent with the medical evidence, including the well-

supported opinions of Dr. Miller, who indicated that the claimant is able to

sit for six hours in an eight-hour workday. Dr. Liu’s check-box reaching,

postural, and environmental limits appear overstated, especially when

considered in balance with the medical evidence through the date last

insured, as well as Dr. Liu’s own clinical findings. In the first examination,

the claimant had difficulty moving her neck, but in the second examination,

those findings improved—Dr. Liu assigned limits with reaching in all

directions in his check box-report, but in light of the claimant’s improved

findings, these reaching limits were not incorporated into the claimant’s

residual functional capacity. It is also noted that Dr. Liu indicated that the

claimant is able to perform activities of daily living such as shopping, using

public transportation, preparing simple meals, feeding herself, caring for her

personal hygiene, and sorting, handling, and using paper files (Exhibit 23F,

page 11).

(Tr. 29-30.)

The Court finds that the ALJ properly considered and evaluated Dr. Liu’s 2022

opinion. First, he thoroughly detailed the reasons supporting his evaluation of the opinion,

including the supportability and consistency factors. The ALJ specifically noted that he

found the opinion unpersuasive because “the specific opinions are internally inconsistent,

and they are inconsistent with the medical evidence and other opinions in this file through

the date last insured.” (Id.) He then carefully explained why portions of Dr. Liu’s opinions

were inconsistent with other evidence in the record. (See Tr. 30.) The ALJ noted that

such limitations were not supported by Dr. Liu’s own examination of Plaintiff, nor his

findings as to her daily living activities. (See id.)

As the parties recognize, Dr. Liu’s 2022 opinion is internally inconsistent.

Specifically, even though Dr. Liu’s “medical source statement” finds only a “mild to

moderate limitation for prolonged walking, bending, kneeling, squatting, lifting, carrying,

overhead reaching, prolonged sitting, standing, and stair climbing,” (see Tr. 1305), in the

checkbox portion of the opinion, he opined that Plaintiff could sit or stand for only one

hour at one time without interruption, could only walk two hours at a time without

interruption, and could only sit or stand for two hours total in a work day, (see Tr. 1307).

Dr. Liu further opined that Plaintiff’s ability to reach, climb ladders and scaffolds, kneel,

crouch, crawl, and tolerate unprotected heights, extreme cold, move mechanical parts,

and operate a motor vehicle was limited to “occasionally.” (See Tr. 1308-10.) Thus, the

ALJ properly weighed this internal inconsistency against the opinion’s overall

persuasiveness.

Further, the ALJ properly found that the opinion was inconsistent with the record,

including all other medical opinions. There were seven medical opinions in the record

addressing Plaintiff’s physical impairments. Three of them appear to be limited to a

particular condition and Plaintiff’s ability to return to work in spite of that condition, (see

Tr. 28-29) (identifying opinions by independent medical examiners Drs. Cohen and

Horner, who addressed Plaintiff’s lumbar spine allegations, and Dr. Rubinshteyn, who

addressed injuries causally connected to her motor vehicle accident, not all of Plaintiff’s

injuries), while the remaining four addressed Plaintiff’s condition as a whole and more

specifically examined her physical abilities, (see id.). While the Court acknowledges

certain of the opinions were found to be unpersuasive by the ALJ because they addressed

only the issue of Plaintiff’s ability to return to work, which is an issue reserved for the

Commissioner, it is still noteworthy that those physicians opined she could return to work

without limitation.

Moreover, the other opinions, authored by state agency reviews Drs. Miller and

Lawrence, as well as including the first opinion by consultative examining physician Dr.

Liu, did not contain anywhere near the level of restriction suggested by Dr. Liu’s 2022

checkbox responses. Indeed, Dr. Lawrence opined that Plaintiff could sit for six hours in

an eight-hour day, and he assigned no postural, manipulative, or manipulative limitations.

(See Tr. 116.) Similarly, Dr. Miller opined that Plaintiff could sit for six hours in an eight-

hour day, assigned no manipulative or environmental limitations, but she did impose

certain postural limitations, including limiting Plaintiff to climbing

ramps/stairs/ladders/ropes/scaffolds, balancing, kneeling, crouching, and crawling

frequently, while stooping only occasionally. (See Tr. 129-30.) Finally, Dr. Liu’s first

opinion assigned Plaintiff with “moderate limitation for prolonged walking, bending,

kneeling, squatting, lifting, carrying, overhead reaching, prolonged sitting, standing, and

stair climbing.” (Tr. 737.) While this is more stringent than the 2022 narrative opinion, it

certainly is not as restrictive as the checkbox portion of the report. As the ALJ properly

concluded, these restrictions were outliers as compared to the other opinions in the

record, including Dr. Liu’s earlier opinion. (Tr. 30.)

Additionally, as found by the ALJ, these additional restrictions do not appear to be

supported by Dr. Liu’s physical examination. The ALJ noted that Plaintiff exhibited certain

limitations in moving her neck during the first examination, but not the second, yet Dr.

Liu’s reaching limitations were more restrictive in the checkbox portion of the second

opinion. (Tr. 30.) Having reviewed the reports, it does appear that during the first

examination, Dr. Liu noted that Plaintiff “declined to change the position of her neck due

to severe pain,” (see Tr. 736), and Plaintiff was able to move her neck during the second

examination, (see Tr. 1304). While Plaintiff takes issue with the ALJ’s analysis, and points

the Court to other facts she contends supports an alternative conclusion, those facts

create at most a conflict within the evidence, which is to be resolved by the ALJ. Veino,

312 F.3d at 588. And, once resolved by the ALJ, it cannot be overturned by this Court

unless “a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec.

Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (citation

omitted). The Court is plainly prohibited from re-weighing the evidence as Plaintiff

requests. See also Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (“Krull’s

disagreement is with the ALJ’s weighing of the evidence, but the deferential standard of

review prevents us from reweighing it.”). Simply put, Plaintiff’s disagreement with the

ALJ’s resolution of conflicting evidence is not grounds for remand.3 See David C. v.

3 Plaintiff’s claim that the ALJ failed to consider Dr. Liu’s review of Plaintiff’s medical records does not

change this conclusion. It is well-settled that the ALJ’s “failure to cite specific evidence does not mean such

evidence was not considered.” Brault, 683 F.3d at 448 (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir.

1998); Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (“we do not require that [the ALJ] have

mentioned every item of testimony presented to him or have explained why he considered particular

evidence unpersuasive or insufficient to lead him to a conclusion of disability.”)

Comm’r of Soc. Sec., No. 6:23-cv-06510-CJS, 2024 WL 4347151, *18 (W.D.N.Y. Sept.

30, 2024) (citing Lisa M. o/b/o J.S. v. Comm’r of Soc. Sec., No. 1:21-cv-00292 EAW, 2023

WL 3943997, at *3 (W.D.N.Y. June 12, 2023) (“A disagreement with how the ALJ weighed

the evidence is not a valid basis to challenge the ALJ’s determination.”).

The Court acknowledges that an ALJ has a duty to develop a claimant's complete

medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing 20 C.F.R. §§

404.1512(d)–(f)). However, “where there are no obvious gaps in the administrative

record, and where the ALJ already possesses a ‘complete medical history,’ the ALJ is

under no obligation to seek additional information in advance of rejecting a benefits

claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chater,

77 F.3d 41, 48 (2d Cir. 1996)). In this case, there were multiple medical expert opinions,

at least seven, and a complete medical history spanning from 2016 through 2021. The

record was certainly complete enough for the ALJ to make a decision. See also Janes v.

Berryhill, 710 F. App’x 33, 34 (2d Cir. 2018) (“[An] ALJ is not required to develop the

record any further when the evidence already presented is adequate for the ALJ to make

a determination as to disability.”)

Moreover, while Plaintiff argues that the ALJ wrongly denied her request to cross-

examine Dr. Liu, the Court disagrees. First, the record plainly reflects that the ALJ did, in

fact, request Dr. Liu’s appearance at a hearing, and the request was denied due to Dr.

Liu’s availability. (See Tr. 469) (“we initiated a request to have Dr. Hongbiao Liu cross-

examined by the claimant’s rep. We reached the level of HOCALJ Bell and was officially

denied. A letter will be sent to the Rep to inform them of the agency’s decision.”) Second,

the Court notes that the ALJ offered Plaintiff’s counsel the opportunity to further develop

the record, but Plaintiff chose not to. (See Tr. 470) (informing Plaintiff’s counsel that the

request to examine Dr. Liu was denied because he was not available and requesting

counsel to advise “whether or not you[] are requesting any further development of the

record.”) When Plaintiff did not request additional action regarding Dr. Liu’s opinion, the

ALJ properly found the record to be sufficiently developed and closed. See, e.g., Stephani

G. v. Comm’r Soc. Sec., No. 1:21-cv-00435, 2024 WL 493501, at * 5 (W.D.N.Y. Feb. 7,

2024) (concluding that the ALJ discharged his duty to develop the record by holding open

the record for submission of records but ultimately closing the record when counsel did

not request assistance obtaining the outstanding records and the record otherwise

contained sufficient evidence to support the disability decision); see also Schillo, 31 F.4th

at 76 (providing that “a deficiency in the reasoning by a treating physician is not the same

as a gap in the treatment records”). And, even if Dr. Liu had affirmed his restrictions,

given their inconsistency with the remaining medical expert and objective evidence, the

ALJ’s decision to find it unpersuasive would have been supported by substantial

evidence, as discussed above.

Accordingly, the Court finds no error in the ALJ’s evaluation of Dr. Liu’s 2022

opinion.

C. The ALJ Did Not Improperly Substitute His Own Opinion for the Medical

Experts.

In her last argument, Plaintiff contends that the ALJ erred by effectively rejecting

all medical opinions in favor of two agency reviewer opinions, which Plaintiff classifies as

stale, resulting in an RFC formulated by substituting the ALJ’s own lay opinion for that of

medical experts. (See Doc. 12-1 at 31.) Plaintiff contends that these opinions were stale

because they were issued in 2020, before significant medical evidence was entered into

the record, including Dr. Tracy’s treatment records, Dr. Simmons’ 2019 report and

medical records, Dr. Huckell’s opinion recommending surgery, and Dr. Liu’s 2022 opinion.

(See id. at 31, 33, 35.)

As a preliminary matter, a claimant’s RFC is the most she can still do despite her

limitations and is based on all relevant evidence in the record. See 20 C.F.R. §§

404.1520(e), 404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996).

The regulations explicitly provide that the RFC is an administrative finding reserved to the

Commissioner and not a medical finding. 20 C.F.R. § 404.1527(d); Schillo v. Kijakazi, 31

F.4th 64, 78 (2d Cir. 2022) (recognizing that “the ALJ bears ‘the final responsibility’ for

making RFC determinations”); see also Desirae D. v. Comm’r of Soc. Sec., 20-cv-00054-

JGW, 2021 WL 2042576, at *3 (W.D.N.Y. May 21, 2021). As such, the RFC conclusion

“need not perfectly match any single medical opinion in the record, so long as it is

supported by substantial evidence.” Schillo, 31 F.4th at 78. Indeed, an ALJ is permitted

to “weigh all of the evidence available to make an RFC finding that [is] consistent with the

record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). This remains

the case even if the ALJ decides not to afford controlling weight to any of the medical

opinions in the record. Schillo, 31 F.4th at 78. “An ALJ need not reconcile every conflict

in the record but must set forth the crucial factors in his determination with sufficient

specificity to enable a reviewing court to decide whether the determination is supported

by substantial evidence.” Rebecca B. v. Comm’r of Soc. Sec., 22-cv-00631-HKS, 2025

WL 90625, at *4 (W.D.N.Y. Jan. 14, 2025) (citing Estrella v. Berryhill, 925 F.3d 90, 95 (2d

Cir. 2019)).

To be sure, “medical source opinions that are conclusory, stale, and based on an

incomplete medical record may not be substantial evidence to support an ALJ finding.”

Camille v. Colvin, 104 F. Supp. 3d 329, 343 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25 (2d

Cir. 2016). While a medical opinion is not necessarily stale based on its age, it may be

stale if it does not account for a plaintiff’s deteriorating condition. See Samantha T. v.

Comm’r of Soc. Sec., Case No. 1:22-cv-139 (JGW), 2024 WL 4582825, at *5 (W.D.N.Y.

Oct. 25, 2024) (internal citations omitted). That said, “[a] more dated opinion may

constitute substantial evidence if it is consistent with the record as a whole

notwithstanding its age.” Anthony F. v. Comm’r of Soc. Sec., Case No. 23-cv-33-FPG,

2023 WL 7294874, at *4 (W.D.N.Y. Nov. 6, 2023) (internal quotation omitted). “Where

the submitted evidence did not directly contradict a doctor's opined limitations, and

further, the ALJ analyzed the recent evidence, the doctor's opinion was not impermissibly

stale.” Robin H. v. Comm'r of Soc. Sec., No. 1:21-CV-507-DB, 2023 WL 3645489, at *13

(W.D.N.Y. May 25, 2023). Plaintiff bears the burden of showing that her condition

deteriorated after the medical opinions were provided. See Christopher C. v. Comm’r

Soc. Sec., Case No. 20-cv-1774, 2022 WL 16797970, at *4 (W.D.N.Y. Nov. 8, 2022)

(citing Vincent B. v. Comm’r of Soc. Sec., 561 F. Supp. 3d 362, 367 (W.D.N.Y. 2021)).

Having carefully reviewed the ALJ’s decision, the Court finds that the RFC was

formulated based on the record as a whole and was supported by substantial evidence.

While Plaintiff seems to argue that the ALJ rejected all opinions but for the agency

reviewer opinions of Drs. Lawrence and Miller, the Court disagrees. Rather, the ALJ

reviewed and considered the medical record, including treatment records and expert

opinions, and formulated a unique RFC based on Plaintiff’s condition. It is true that the

ALJ did find unpersuasive the independent medical examiner opinions of Drs. Cohen,

Horner, and Rubinshteyn. (See Tr. 28-29.) However, each of those opinions concluded

that Plaintiff could return to work without limitations, which would not support Plaintiff’s

position.

Further, the ALJ carefully considered the opinion of Dr. Liu rendered in 2020,

finding it “generally persuasive,” although he rejected the manipulative limitations finding

them inconsistent with updated medical records. (See id.) While Plaintiff takes issue with

the ALJ’s exclusion of any handling and fingering limitations on her right hand, as such

limitations were imposed in the 2021 RFC,4 (see Doc. 12-1 at 34), the Court finds no

error. The ALJ thoroughly explained why he rejected the manipulative limitations

contained within Dr. Liu’s 2020 opinion:

I note that Dr. Liu also indicated that “the claimant has moderate limitation

for fine manipulation with the right hand to zipper, button, and tie”, but I find

that this aspect of his opinion, the manipulative limitations, is not

persuasive, because it is not consistent with the medical evidence, including

the updated medical evidence, through the date last insured (Exhibit 6F,

page 5). Dr. Liu’s February 2020 clinical findings appear internally

inconsistent, as he noted moderate difficulty with right hand fine

manipulation, but also noted intact hand and finger dexterity (Exhibit 6F,

page 5). Another physical examination of the right hand shortly afterwards,

in March 2020, revealed no atrophy, full motion of the digits, and normal

sensation (Exhibit 19F, page 4). I note that both reviewing medical

consultants, James Lawrence, M.D., and Donna Miller, D.O., did not assign

any manipulative limitations (Exhibit 2A, page 8; Exhibit 4A, page 11;

Exhibits 8F). The medical evidence submitted after the hearing also shows

minimal clinical findings to support any manipulative limitations. An August

2019 physical examination revealed 4/5 and 5/5 flexion strength of the

fingers (Exhibit 21F, page 8). An orthopedic physical examination from the

same month, August 2019, revealed full hand strength and firm grip strength

(Exhibit 21F, page 37). A June 2022 physical examination revealed intact

hand and finger dexterity with full bilateral grip strength (Exhibit 23F, page

4).

4 Because the Appeals Council vacated the original decision, that decision and the resulting RFC has no

res judicata effect on this decision. See Parvon v. Comm'r of Soc. Sec., No. 18-CV-226-FPG, 2020 WL

1131220, at *4 (W.D.N.Y. Mar. 9, 2020) (collecting cases).

(Tr. 28-29.) The ALJ supported his rejection of the manipulative limitations by specific

record evidence, as required. See Terrence S. B. v. Comm'r of Soc. Sec., No. 1:22-CV-

0380 (JJM), 2024 WL 4131237, at *5 (W.D.N.Y. Sept. 10, 2024) (recognizing that “[the

ALJ’s] explanation was sufficiently specific to satisfy his obligation to construct an

accurate and logical bridge between his recitation of the facts and the conclusions he

reached”)(internal citation and quotation omitted). And an ALJ is permitted to reject

portions of medical opinions to the extent they are not consistent with the medical record.

See April W. v. Comm’r of Soc. Sec., No. 1:24-cv-00044-MAV, 2024 WL 4804778, at *5

(W.D.N.Y. Nov. 14, 2024) (recognizing that an ALJ “is free to reject portions of medical-

opinion evidence not supported by objective evidence”) (quoting Demeca P. v. Comm’r

of Soc. Sec., No 1:22-cv-0504, 2024 WL 4505265, at *4 (W.D.N.Y. Oct. 16, 2024)).

Importantly, Plaintiff offers no evidence of deterioration following the agency review

opinions so as to render those opinions stale. The ALJ carefully detailed the record

evidence, including from the period after the opinions were issued, and no deterioration

was identified. (Tr. 26-30.) Indeed, Plaintiff herself testified that her condition has

remained the same. (Tr. 47-48.)

Moreover, the ALJ expressly analyzed and considered the records of Dr. Tracy:

Since the last hearing, updated treatment records from Jerry J. Tracy, III,

M.D., were added to the file and carefully considered; I find that the new

records do not warrant a different assessment. A June 2016 left shoulder

MRI revealed only mild tendinopathy (Exhibit 21F, page 92). A March 2019

lumbar spine MRI was normal (Exhibit 21F, page 88). A March 2019 cervical

spine MRI revealed disc herniations with minimal encroachment (Exhibit

21F, page 90). A July 2019 Independent Medical Examination (IME) from

Dr. Cohen indicated no need for further treatment, and that the claimant can

return to work without restrictions (Exhibit 21F, page 69—this IME report

was already in the file, see Exhibit 17F). An August 2019 pain management

treatment note revealed limited ranges of motion, and that opiates would no

longer be prescribed (Exhibit 21F, pages 100-101).

(Tr. 27.)

The other evidence cited by Plaintiff merely reflects that back surgery was a

potential treatment option, which the ALJ recognized:

[Dr. Huckell] noted that she was reasonable candidate for cervical

discectomy and fusion at C4-C5. Notably, however, examination findings

were unchanged from his previous visits, with normal gait and full strength,

despite some reduced range of motion (Exhibit 10F, page 2). By September

2020, the claimant told Dr. Huckell that she continued to have constant pain

that brought her to tears at times. Because he could not guarantee

improvement with surgery or time, she has declined to have surgery.

(Tr. 27.) Importantly, as the ALJ acknowledged, Plaintiff ultimately declined to have

surgery. (See id.) Thus, the ALJ considered the evidence Plaintiff identified as

unavailable to the agency reviewers, and which was not inconsistent with their opinions,

thereby defeating any claim that the opinions were stale. See Robin H., 2023 WL

3645489, at *13 (recognizing that “[w]here the submitted evidence did not directly

contradict a doctor's opined limitations, and further, the ALJ analyzed the recent evidence,

the doctor's opinion was not impermissibly stale.”)

Plaintiff further maintains that the ALJ acknowledged the staleness of the opinions

by noting that further restrictions than opined by Dr. Lawrence were required. (See Doc.

12-1 at 34.) The Court disagrees. The ALJ did not characterize Dr. Lawrence’s opinion

as outdated, but rather acknowledged that further restrictions were supported by the

medical evidence. This is entirely appropriate—not evidence of a stale opinion. See

Jason S. v. Comm’r of Soc. Sec., No. 21-cv-101-RJA, 2023 WL 4991928, at *3 (W.D.N.Y.

Aug. 4, 2023) (recognizing that “[w]hile the state agency consultant’s opinion is only

partially consistent with the record in its entirety, the ALJ accounted for any discrepancies

by imposing greater restrictions”) (internal citations omitted). An ALJ is expressly charged

with creating an RFC that is consistent with the medical record as a whole, see Matta,

508 F. App’x at 56, which is precisely what the ALJ did here.

Finally, as discussed above, the record before the ALJ was certainly complete

enough for the ALJ to make a decision. See a/so Janes, 710 F. App’x at 34 (“[An] ALJ is

not required to develop the record any further when the evidence already presented is

adequate for the ALJ to make a determination as to disability.”)

Based on the foregoing, the Court finds no basis for remand. ACCORDINGLY, it

is:

ORDERED that Plaintiff's Motion for Judgment on the Pleadings (Doc. 12) is

DENIED, and it is further

ORDERED that Defendant’s Motion for Judgment on the Pleadings (Doc. 16) is

GRANTED.

The Clerk of Court is DIRECTED to close this case.

Dated: December 8, 2025 J. Gregory Wehrman JU

Rochester, New York HON. J. Gregory Wehrman

United States Magistrate Judge

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