Stephens

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

AMY S., DECISION

Plaintiff, and

v. ORDER

FRANK J. BISIGNANO,1 Commissioner of 24-CV-6075LGF

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: KONOSKI & PARTNERS, P.C.

Attorneys for Plaintiff

BRYAN MATTHEW KONOSKI, of Counsel

180 Tices Lane

Suite 204, Bldg. A

East Brunswick, New Jersey 08816

MICHAEL DiGIACOMO

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

ANDREEA LAURA LECHLEITNER, and

SIXTINE FERNANDEZ

Special Assistant United States Attorneys, of Counsel

Social Security Administration

Office of General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

JURISDICTION

On October 2, 2025, the parties to this action, consented pursuant to 28 U.S.C. §

636(c) to proceed before the undersigned. (Dkt. 14). The matter is presently before the

1 Frank J. 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).

court on motions for judgment on the pleadings filed by Plaintiff on April 17, 2024 (Dkt.

No. 8),2 and by Defendant on July 1, 2024 (Dkt. No. 12).

BACKGROUND

Plaintiff Amy S. (“Plaintiff”), brings this action under Titles II and XVI of the Social

Security Act (“the Act”), 42 U.S.C. §§ 405(g) and § 1383(c)(3), 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 September 27,

2021, for Social Security Disability Insurance Benefits under Title II of the Act (“DIB”),

and Supplemental Security Income under Title XVI of the Act (“SSI”) (together,

“disability benefits”). AR at 345-68.3 Plaintiff initially alleged she became disabled on

November 17, 2020 (“disability onset date” or “DOD”), based on a hip problem, post-

traumatic stress disorder (“PTSD”), anxiety disorder, a knee problem, a hand/wrist/arm

problem, a shoulder problem, immune thrombocytopenia purpura (autoimmune bleeding

disorder causing broken capillaries presenting as flat, tiny red or brown spots on the

skin), migraines, asthma, and allergies. AR at 345, 384, 387. Plaintiff later amended

her DOD to September 27, 2021. AR at 32, 57, 63.4 Plaintiff’s applications initially were

denied January 7, 2022, AR at 92-129, and upon reconsideration on February 9, 2022.

2 Plaintiff did not file a separate motion document, but only Plaintiff’s Brief (Dkt. 8) in support of such a

motion.

3 References to “AR” are to the Bates-stamped pages of the Administrative Record electronically filed in

by Defendant on March 19, 2024 (Dkt. 6).

4 Although Plaintiff last worked on November 17, 2020, because she then collected unemployment

insurance through September 2021, during which time Plaintiff certified she was ready, willing, and able

to work, Plaintiff amended her DOD to September 27, 2021, which is also the date she applied for

disability benefits. AR at 57.

AR at 130-69. Plaintiff timely requested a hearing before an administrative law judge

(“ALJ”), AR at 227-28, and on June 17, 2022, an administrative hearing was held via

telephone before ALJ Robyn L. Hoffman (“the ALJ”) (“administrative hearing”), located

in Syracuse, New York. AR at 51-88. Appearing and testifying by telephone at the

administrative hearing were Plaintiff, represented by Lauren Moss, Esq. (“Moss”). A

vocational expert (“VE”), one Steven Sachs (“the VE”), was available, but because

during the hearing Moss advised that there was outstanding evidence, the ALJ declined

to have the VE testify. AR at 32. The outstanding evidence was subsequently

submitted and admitted into the evidence. Id.

On December 2, 2022, the ALJ issued a decision denying Plaintiff’s claim (“the

ALJ’s Decision”), AR at 29-50, which Plaintiff appealed to the Appeals Council. AR at

198. On November 8, 2023, the Appeals Council issued a decision denying Plaintiff’s

request for review, rendering the ALJ’s Decision the Commissioner’s final decision at

that time. AR at 4-10. On February 5, 2024, Plaintiff commenced this action seeking

judicial review of the ALJ’s Decision.5

On April 17, 2024, Plaintiff filed “Plaintiff’s Brief” (Dkt. 8) which the court treats as

both a motion for judgment on the pleadings (“Plaintiffs’ Motion”), and as a

memorandum of law in support of Plaintiff’s motion (“Plaintiff’s Memorandum”). On July

1, 2024, Defendant filed a motion for judgment on the pleadings (Dkt. 12) (“Defendant’s

Motion”), attaching Commissioner’s Brief in Support of His Motion for Judgment on the

Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Civil Rule 5.5 (Dkt. 12-

5 Plaintiff requested, and was granted, a thirty-day extension of time to commence this action. AR at 1-3,

89-91.

1) (“Defendant’s Memorandum”). On July 17, 2024, Plaintiff filed Plaintiff’s Reply Brief

(Dkt. 17) (“Plaintiff’s Reply”). Oral argument was deemed unnecessary.

Based on the following, Plaintiff’s Motion is DENIED, Defendant’s Motion is

GRANTED and the Clerk of the Court is DIRECTED to CLOSE the file.

FACTS6

Plaintiff Amy S. (“Plaintiff”), born on May 17, 1984, was 37 years old as of her

alleged amended DOD of September 27, 2021, and 38 years old as of December 7,

2022, the date of the ALJ’s decision. AR at 44, 53, 63, 350. Plaintiff attended school in

special education classes until the 11th grade, and completed two years of college,

obtaining an associate’s degree in medical administrative assistant, and obtained a

certificate in food safety. AR at 84, 388. When applying for disability benefits, Plaintiff

lived in a room in her mother’s house, AR at 78, 363, but as of the administrative

hearing, Plaintiff lived with her fiancé and her daughter in a camper on property owned

by her mother. AR at 62. Plaintiff has a driver’s license, but stopped driving in

November 2021 because intermittent numbness in her leg interferes with Plaintiff’s

ability to operate the accelerator and brake pedals. AR at 83, 402. Plaintiff’s past

relevant work (“PRW”) includes employment as an assistant manager at a convenience

store, a crew member in a restaurant, and a floor associate/cashier in a retail store. AR

at 389-473.

6 In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for

determining the pending motions for judgment on the pleadings.

It is undisputed that Plaintiff suffers from degenerative disc disease of the lumbar

spine and morbid obesity. Plaintiff attributes her back impairment to a fall in August of

2019. AR at 62, 699, 947. Plaintiff receives primary care at Rochester Medical Group

Wolcott Internal Medicine and Medical Center (“Wolcott Medical Center”) where her

care team includes Daniel J. Koretz, M.D. (“Dr. Koretz”), and Physician’s Assistant

(“PA”) Richard M. Acome (“PA Acome”). AR at 580-830, 744-851, 1120-57, 1170-

1203. On November 8, 2020, Plaintiff commenced treatment for pain management at

New York Spine and Wellness Center (“Spine & Wellness”) where she saw Raymond

Alcuri, M.D. (“Dr. Alcuri”), Ryan McConn, M.D. (“Dr. McConn”), and nurse practitioner

(“NP”) Katherine Halleck (“NP Halleck”). AR at 831-35, 1050-58, 1159-66, 1206-13,

1216-1224. On September 1, 2021, Plaintiff, upon referral from Wolcott Medical Center,

was examined at Syracuse Orthopedic Specialists, PC (“Syracuse Orthopedics”) for low

back pain. AR at 836-37. On September 22, 2021, Plaintiff was seen at the Auburn

Community Hospital Pain Clinic (“Auburn Pain Clinic”) where she was examined by

Parikshith Sumathi, M.D. (“Dr. Sumathi”). AR at 831-34. Upon PA Acome’s referral,

Plaintiff attended physical therapy (“PT”) at Carey & Daley – Wolcott from October 5,

2021 to December 6, 2021. AR at 852-65, 958-75.

Plaintiff underwent diagnostic imaging testing for her back impairment that

consistently showed Plaintiff with mild degenerative disc disease of the lumbar spine.

These tests include a September 19, 2019 MRI of Plaintiff’s lumbar spine taken after the

fall which Plaintiff maintains precipitated her back impairment, AR at 588, 699, 947, a

November 9, 2020 lumbar spine MRI, id. at 1050, a May 16, 2022 MRI of Plaintiff’s

lumbar spine, id. at 1159-60, and June 8, 2022, electro-diagnostic studies, including

EMG (electromyography test to evaluate nerves and muscles) and nerve conduction

testing. Id. at 1206.

In connection with her disability benefits application, on November 23, 2021,

Plaintiff underwent an internal medicine examination by consultative physician

Harbinder Toor, M.D. (“Dr. Toor”), who remarked that Plaintiff was using a walker that

was prescribed by a physician, and that the walker was medically needed for standing

and walking. AR at 948. After examining Plaintiff, Dr. Toor’s medical source statement

(“Dr. Toor’s opinion”) included that Plaintiff has moderate to marked limitations for

standing, walking, squatting, bending, lifting and carrying, moderate limitations to sitting

for a long time, moderate limitations reaching, pushing, and pulling with the right

shoulder, pain can interfere with Plaintiff’s routine, and Plaintiff should avoid irritants and

other factors that can precipitate asthma. AR at 949-50. Plaintiff’s medical records

were reviewed on January 6, 2022, at the initial determination level by State agency

medical consultant J. Randall, M.D. (“Dr. Randall”), who found Plaintiff not disabled (AR

at 120-26), and on February 8, 2022, at the reconsideration level by S. Putcha, M.D.

(“Dr. Putcha”), who also found Plaintiff not disabled. (AR at 136-48).

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she 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

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,7 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

7 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. 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

Commissioner must then consider the applicant’s “residual functional capacity” or “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.

In the instant case, the ALJ found Plaintiff meets the Act’s insured status

requirements for DIB through December 31, 2025, AR at 35, and has not engaged in

substantial gainful employment (“SGA”), since September 27, 2021, the amended DOD

and application date. Id. The ALJ found Plaintiff has the severe impairments of

degenerative disc disease of the lumbar spine and morbid obesity, id., and non-severe

impairments of asthma, and gastroesophageal reflux disease (“GERD”), as well as

medically determinable but non-severe mental impairments of anxiety, post-traumatic

stress disorder (“PTSD”), and panic attacks, id. at 35-37, but considering all of Plaintiff’s

severe and non-severe impairments, that Plaintiff did not have an impairment or

combination of impairments that meets or medically equals the severity of any

impairment listed in 20 C.F.R. Part 404, Subpt. P, Appx. 1. Id. at 37. The ALJ further

determined Plaintiff retains the residual functional capacity (“RFC”) to perform sedentary

work as defined in 20 C.F.R. § 416.967(a),8 with limitations including that she can

occasionally lift and carry ten pounds, frequently lift/carry less than ten pounds, sit for

six hours, stand and/or walk for two hours, all in an eight-hour workday with normal

breaks, occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds,

occasionally balance, stoop, kneel, crouch, and crawl, and is limited to performing work

that needs little or no judgment to do simple duties that may be learned on the job in a

short period of time. Id. at 37-42. Plaintiff is unable to perform her PRW, but given her

age, education, and RFC, with transferability of skills irrelevant to the disability

determination, Plaintiff’s RFC permits Plaintiff to perform the full range of sedentary

work. AR at 43. Accordingly, the ALJ found Plaintiff not disabled as defined in the Act

from September 27, 2021, the date the applications were filed, through December 7,

2022, the date of the ALJ’s decision. Id. at 34.9

8 Sedentary work

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in carrying out job duties.

Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria

are met.

20 C.F.R. §§ 404.1567(a), 416.967(a).

9 Because the ALJ found Plaintiff capable of performing a full range of sedentary work, the ALJ was not

required to obtain testimony from a VE regarding what jobs Plaintiff can perform. See Taylor v. Barnhart,

83 Fed.Appx. 347, 350 (2d Cir. 2003) (testimony from a vocational expert is required only when non-

exertional limitations “‘so narrow[ ] [the claimant’s] possible range of work as to deprive [her] of a

meaningful employment opportunity.’” (quoting Bapp, 802 F.2d at 605-06) (brackets in Taylor).

3. Analysis of Plaintiff’s Arguments

In support of her motion, Plaintiff argues that the ALJ committed legal error by

failing to find Plaintiff’s walker was a medical necessity, Plaintiff’s Memorandum at 8-18,

and also failing to consider whether Plaintiff’s need for a walker to effectively ambulate

met the requirements for a listed impairment, specifically, Listing § 1.15 pertaining to

disorders of the skeletal spine resulting in compromise of a nerve root. 20 C.F.R. Part

404, Subpart P, Appendix 1 § 1.15 (“Listing § 1.15”). Id. at 18-20. Defendant argues

that substantial evidence in the record supports both the ALJ’s finding that Plaintiff’s

walker was not a medical necessity, Defendant’s Memorandum at 5-13, as well as the

ALJ’s determination that Plaintiff’s back impairment did not meet or equal a listed

impairment. Id. at 13-17. In reply, Plaintiff argues the ALJ failed to properly evaluate

the medical necessity of Plaintiff’s walker, Plaintiff’s Reply at 1-4, and whether Plaintiff’s

use of the walker established Plaintiff’s back impairment meets the criteria for Listing §

1.15.

Preliminarily, whether Plaintiff’s use of the walker is a medical necessity is

significant for two reasons. First, if the walker is a medical necessity, then the ALJ was

required to incorporate its use into the RFC assessment and consult with a vocational

expert to determine whether such use would significantly erode the number of

sedentary jobs Plaintiff could work. See Charles F. v. Comm'r of Soc. Sec., 2021 WL

963585, at *4 (W.D.N.Y. 2021) (“[W]hen there is medical documentation about [an

assistive device] in the record, an ALJ's failure to determine whether [that device] is

medically necessary or to incorporate the use of [that device] into the RFC is legal

error.”). Second, requiring use of a walker to effectively ambulate could establish that

Plaintiff meets the criteria for disability based on a listed impairment, particularly Listing

§ 1.15.

In arguing Plaintiff’s walker was a medical necessity, Plaintiff points to

statements by three separate medical professionals that Plaintiff requires a walker

including Dr. Putcha, Dr. Toor, and Plaintiff’s pain management provider, as well as

Plaintiff’s own asserted need for the walker to prevent her from falling. Plaintiff’s

Memorandum at 5-15. In particular, Plaintiff argues that upon examination by

consultative physician Dr. Toor, Plaintiff was found with an abnormal gait, limping to the

right side, and unable to stand for more than five minutes without a walker, with Dr. Toor

concluding that Plaintiff “needs the walker medically for standing and walking.” Id. at 10

(citing AR at 948). Dr. Putcha also found Plaintiff needed a walker, id. (citing AR at

145), and as of September 22, 2021, Plaintiff’s Wolcott Medical Center notes indicate

that Plaintiff’s “Provider at Pain Management recommended a walker, id. (citing AR at

586), a recommendation that was reiterated by NP Halleck on July 20, 2022 when

Plaintiff was “encouraged to use necessary assistive devices including walker [as a] fall

precaution.” Id. (citing AR at 1223).

In contrast, Defendant argues the ALJ properly relied on the entire administrative

record in determining the walker was not a medical necessity for Plaintiff including

treatment notes from Wolcott Medical Center, Plaintiff’s primary care provider, where

Dr. Koretz’s physical examinations of Plaintiff were remarkable only for morbid obesity,

lumbar spine tenderness, and positive straight leg raise testing on the right, for which

follow up with pain management was recommended, Defendant’s Memorandum at 6-7,

and PA Acome who refused to prescribe a walker for Plaintiff, AR at 586, Defendant’s

Memorandum at 5-6, and examination at the Auburn Pain Clinic by Dr. Sumathi who

also reviewed Plaintiffs’ MRI results and recommended “conservative management with

[physical therapy] and core strength, id. at 6, and that Plaintiff maintain an ideal body

weight. Id. Defendant also maintains that most of the references in the administrative

record to Plaintiff’s use of a walker are mere observations, rather than an actual

recommendation that Plaintiff use such assistive device, id. at 8-12, and that because

sedentary work primarily requires sitting, even if Plaintiff’s use of the walker is a medical

necessity, such use is not inconsistent with an RFC for sedentary work. Here, careful

review of the administrative record demonstrates that Plaintiff has not established that

her use of a walker is a medical necessity.

Pursuant to SSR 96-9p,10 the use of a hand-held assistive device to effectively

ambulate, in some instances, may significantly erode the occupational base for

individuals who must use such devices. SSR 96-9p, Titles II & XVI: Determining

Capability to Do Other Work-Implications of A Residual Functional Capacity for Less

Than A Full Range of Sedentary Work, 1996 WL 374185, at *7 (July 2, 1996) (providing

policies for assessing an individual’s ability to do work when he or she has been

assessed with an RFC for less than the full range of sedentary work). Where the record

suggests that a plaintiff requires the use of an assistive device to stand or walk, the ALJ

should determine whether the device is “medically required.” Id. See Charles F., 2021

WL 963585, at *4. “Plaintiff bears the burden to establish medical necessity.” Vanever

v. Berryhill, 2018 WL 4266058, *2 (Sept. 6, 2018 W.D.N.Y. 2018). For a device to be

10 “SSR” is an acronym for “Social Security Ruling.” Social Security Rulings are agency rulings “published

under the authority of the Commissioner of Social Security and are binding on all components of the

Administration. These rulings represent precedent final opinions and orders and statements of policy and

interpretations that [the SSA] ha[s] adopted.” 20 C.F.R. § 402.35(b)(1).

considered “medically required,” there must be “medical documentation establishing the

need for a hand-held assistive device to aid in walking or standing.” SSR 96-9p, 1996

WL 374185 at *7. Additionally, the documentation must describe “the circumstances for

which [the device] is needed (i.e., whether all the time, periodically, or only in certain

situations; distance and terrain; and any other relevant information).” Id. If “medical

need for an assistive device has been established, the ALJ must incorporate that device

into the RFC.” Vanever v. Berryhill, 2018 WL 4266058 at *2. See also SSR 96-9p

(where there is a medically-required hand-held device, consultation of a vocational

resource may be “especially helpful” in determining if/how the assistive device impacts a

claimant's ability to work). “Although SSR 96-9p does not mandate that the hand-held

assistive device be prescribed to be considered medically necessary, it does require

specific medical documentation establishing the need for a hand-held assistive device

to aid in walking or standing, and describing the circumstances surrounding its need.”

Hoke v. Colvin, 2015 WL 3901807, at * 14 (N.D.N.Y. June 25, 2015) (citing SSR 96-9p,

1996 WL 374185, at * 7). Moderate limitations in walking and standing, an unsteady

gait, and mere observation by a medical provider that a plaintiff used an assistive device

are not medical evidence establishing use of an assistive device to effectively ambulate

is medically necessary as § 96-9p requires. Id. Here, Plaintiff has not met her burden

of establishing her use of a walker to ambulate is medically necessary because the

evidence on which Plaintiff relies does not satisfy the requirements of SSR 96-9p.

First, insofar as Dr. Toor reported on November 23, 2021, that Plaintiff “is using a

walker prescribed by a physician,” AR at 948, not only does Dr. Toor not describe the

circumstances in which Plaintiff needs the walker, but the record is devoid of any

evidence that any medical provider prescribed a walker for Plaintiff’s use; rather, the

evidence in the record shows notes regarding a “telephone encounter” at 1:37 P.M. on

September 22, 2021, when Plaintiff called Wolcott Medical Center and reported

“Provider at Pain Management recommended a walker, but can’t afford one. Can she

[Plaintiff] get a script for this?” AR at 586 (underlining in original). Subsequent

telephone encounter notes show PA Acome requesting to see Plaintiff’s Pain

Management note to review the request for a walker, id., and on September 24, 2021,

PA Acome responded that upon reviewing the Pain Management note, he “did not see

any mention of getting her [Plaintiff] a walker, the[y] said she should go to physical

therapy and work on core strengthening.” Id. (underlining in original). Nor is there any

explanation in the administrative record as to why, if Pain Management recommended a

walker, Pain Management did not provide Plaintiff with a prescription for a walker.

Although the “Provider at Pain Management” mentioned in the telephone

encounters is not further identified, Defendant construes, and Plaintiff does not dispute,

the reference is to Dr. Sumathi at Auburn Pain Clinic by whom Plaintiff was initially

evaluated for her back pain at 11:12 A.M. the morning of September 22, 2021.

Defendant’s Memorandum at 6 (citing AR at 831-35). Significantly, a thorough review of

the treatment notes from Plaintiff’s initial visit at the Auburn Pain Clinic, including Dr.

Sumathi’s examination and assessment, reveals no mention of Plaintiff obtaining a

walker; rather, Dr. Sumathi recommended Plaintiff conservative treatment including

physical therapy, core strengthening, a home exercise program, other-the-counter pain

medications, and maintaining an ideal body weight. AR at 831-35. At the administrative

hearing, Plaintiff testified that her physical therapist recommended a cane, but Plaintiff’s

physician refused the request, so Plaintiff purchased the cane on her own.11 AR at 69-

70. Plaintiff further testified that after purchasing the cane, her back got worse so in

September 2021, Plaintiff asked her doctor if she could obtain a walker through

insurance, but her doctor told her it was not medically necessary. AR at 70. Plaintiff

eventually purchased a walker on her own.12 Id. Accordingly, Plaintiff’s statement to

Dr. Toor that she was using a walker that was prescribed for her thus is not supported

by the record.

With regard to the February 7, 2022 assessment at the reconsideration level of

administrative review by State agency review physician Dr. Putcha that Plaintiff “has

difficulty with walking long distances, thus, walker needed,” AR at 145, not only is Dr.

Putcha’s assessment that Plaintiff needs the walker to walk long distances not

supported by the documents Dr. Putcha reviewed, but Dr. Putcha’s complete

assessment establishes that this determination is based on Dr. Toor’s November 23,

2021 consultative examination. AR at 144-45. Because, as discussed above,

Discussion, supra, at 14-15, Dr. Toor’s statement that Plaintiff “is using a walker

prescribed by a physician” is not supported by the administrative record, it logically

follows that Dr. Putcha’s reliance on Dr. Toor’s assessment is also unsupported by the

record. Moreover, despite assessing Plaintiff as needing a walker, Dr. Putcha found

Plaintiff with an RFC for performing sedentary work and, thus, not disabled. AR at 147.

Relevantly, courts within the Western District of New York have found that the use of an

11 The court is unable to find any support in the administrative record for Plaintiff’s testimony that her

physical therapist recommended or prescribed a cane.

12 When Plaintiff purchased the walker on her own is not in the record, but Plaintiff was first observed

using the walker at the consultative examination by Dr. Toor on November 23, 2021. AR at 948.

assistive device, including a cane or walker, for “aid in ambulation is not inconsistent

with an RFC for sedentary work.” Stower v. Saul, 2020 WL 897411, at * 5 (W.D.N.Y.

Feb. 25, 2020) (citing Zeler v. Comm’r of Soc. Sec., 2019 WL 210841, at * 3 (W.D.N.Y.

Jan. 16, 2019) (“the finding of sedentary work is consistent with the use of a cane for

walking that is a minor part of job duties.”) (citing 20 C.F.R. § 416.967(a) (“Although a

sedentary job is defined as one which involves sitting, a certain amount of walking and

standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.”), and Cortes v.

Chater, 1997 WL 36979, at *4 (E.D.N.Y. Jan. 17, 1997) (“Plaintiff is capable of at least

occasional standing and walking, albeit sometimes with the assistance of a cane.

Plaintiff testified she was ‘not sure’ how much weight she could lift or carry, but no

medical or other evidence suggests she could not lift light objects.”)).

As for Plaintiff’s argument that Wolcott Medical Center notes indicate that

Plaintiff’s “Provider at Pain Management recommended a walker, Plaintiff’s

Memorandum at 10 (citing AR at 586), Plaintiff again references the telephone

encounter between Plaintiff and Wolcott Medical Center which establishes that PA

Acome not only did not prescribe a walker for Plaintiff, but also that PA Acome’s review

of the notes from Pain Management fail to establish that anyone from Pain Management

recommended or prescribed a walker. See Discussion, supra, at 14-15. Plaintiff also

asserts that on July 20, 2022, Plaintiff’s pain management provider “reiterated” the

recommendation for a walker by equivocally stating Plaintiff was “encouraged to use

necessary assistive devices including walker [as a] fall precaution,” Plaintiff’s

Memorandum at 10 (citing AR at 1223 (italics added)), but this suggestion does not

establish use of the walker was medically required. Furthermore, the numerous other

references in the record that Plaintiff used a walker, see, e.g., AR at 971 (physical

therapy daily progress notes documenting that on November 29, 2021, Plaintiff was

“ambulating with a rolling walker for support”); 986 (PA Acome observing at

hypertension check on December 2, 2021 that Plaintiff was “using a rolling walker with

brakes); 1188 (PA Acome observing on May 13, 2022 that Plaintiff “[w]alks with

walker.”), are mere observations that Plaintiff uses a walker and are insufficient to

establish Plaintiff’s use of a walker is medically required, much less describe the

circumstances requiring Plaintiff use a walker. See Sandra S. v. Comm’r of Soc. Sec.,

2022 WL 4368281, at * 4 (W.D.N.Y. Sep. 21, 2022) (citing Leda I. v. Comm’r of Soc.

Sec., 545 F.Supp.3d 27, 32 (W.D.N.Y. 2021) (“simply observ[ing]” the plaintiff used an

assistive device to ambulate did not establish the assistive device was medically

necessary)); Hoke, 2015 WL 3901807, at * 14 (citing SSR 96-9p, 1996 WL 374185, at *

7).

The evidence on which Plaintiff relies to satisfy the requirements of SSR 96-9p

also conflicts with other evidence in the record, and it is for the ALJ to resolve “[g]enuine

conflicts in the medical evidence” of record. See Veino v. Barnhart, 312 F.3d 578. 588

(2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to

resolve.” (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)). Such conflicting

evidence includes diagnostic imaging evidence on which the ALJ relied. In particular,

an MRI of Plaintiff’s lumbar spine taken November 9, 2020 showed mild degenerative

disc disease of the lumbar spine, greatest at L4-L5, with mild right neural foraminal

narrowing at L4-L5 from a right foraminal disc protrusion. AR at 40 (citing AR at 1050).

A May 16, 2022 MRI of Plaintiff’s lumbar spine showed mild degenerative changes at

L4-L5 with a right foraminal disc protrusion, slightly increased from prior exam, which

encroaches on the exiting right L4 nerve root. Mild to moderate right neural foraminal

narrowing, progress, and no left neural foraminal narrowing or spinal canal narrowing.

Id. at 41 (citing AR at 1159-60). On June 8, 2022, electro-diagnostic studies, including

EMG and nerve conduction testing, showed normal peroneal nerve (nerve that

branches from the sciatic nerve and provides sensation to the front and sides of the legs

and the tops of the feet), no evidence of acute right lumbar motor radiculopathy, and all

examined muscles showed no evidence of electrical instability. Id. (citing AR at 1206).

This testing is consistent with an MRI of Plaintiff’s lumbar spine taken September 19,

2019, shortly after the fall to which Plaintiff attributes her back impairment, which

showed L4-L5 diffuse disc building eccentric to the right with a very small right far lateral

disc protrusion abutting the exiting right L4 nerve root, mild degenerative disc disease at

L4-L5, but no spinal canal or neural foraminal stenosis. AR at 588. Although the ALJ

did not specifically mention the September 19, 2019 MRI, the ALJ “is not required to

specifically discuss every piece of medical evidence in the record.” Thompson v.

Comm'r of Soc. Sec., 2018 WL 4103181, at *4 (W.D.N.Y. Aug. 29, 2018) (citing and

quoting Brault v. Social Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (noting

that “[a]n ALJ does not have to state on record every reason justifying a decision” and

that an “ALJ's failure to cite specific evidence does not indicate that such evidence was

not considered”) (internal quotations omitted in Thompson). See also Cichocki v.

Astrue, 729 F.3d 172, 178 n. 3 (2d Cir. 2013) (“remand is not required where the

‘evidence of record permits us to glean the rationale of an ALJ’s decision’” (quoting

Mongeur v. Heckler, 722 F.2d 103, 1044 (2d Cir. 1983))); Berry v. Schweiker, 675 F.2d

464, 469 (2d Cir. 1982) (remand is not warranted where the court can look to other

portions of the ALJ’s decision for credible evidence and find the ALJ’s determination

was supported by substantial evidence). In this case, the ALJ also observed that

several treatment providers considered Plaintiff’s reported symptoms to be out of

proportion to what was seen on diagnostic imaging. See, e.g., AR at 40 (citing AR at

1055 (Dr. McConn commenting on March 15, 2022 that Plaintiff’s “symptoms seemed

somewhat out of proportion to what is seen on MRI”).

The ALJ also considered Plaintiff’s activities of daily living to be inconsistent with

Plaintiff’s claims that she is disabled. AR at 41. In particular, the ALJ considered that

Plaintiff reports performing daily childcare, feeds and takes care of her dog, cooks, does

laundry, mows the lawn, drives, shops, reads, watches television, does bead work, and

socializing with friends. Id. (citing AR at 400-02, 948, 955). The ALJ specifically stated

that his RFC assessment of Plaintiff was based on objective evidence in the record,

Plaintiff’s course of treatment for her back impairment, Plaintiff’s reported activities of

daily living, and medical opinions. AR at 42. Although not specifically mentioned by the

ALJ, the administrative record also contains evidence that on October 11, 2021, a

month after PA Acome declined Plaintiff’s request for a prescription for a walker, Plaintiff

was observed able to ambulate without much difficulty, AR at 662, and at PT on

October 25, 2021, Plaintiff reported the previous weekend, she walked through a mud

bog, then rode to Batavia where she walked around for a few hours. Id. at 862.

With regard to Plaintiff’s argument, Plaintiff’s Memorandum at 14-15, that the ALJ

improperly “cherry-picked” evidence from the record to support the RFC determination,

and relies on “a single notation” that “Plaintiff’s gait was ‘intact’ to support his finding”

that Plaintiff’s use of a walker was not medically necessary, such argument “boils down

to a disagreement with the ALJ's weighing of the evidence, and it is ‘not the function of

this Court to re-weigh evidence or consider de novo whether [Plaintiff] is disabled.’”

Justin C. v. Comm’r of Soc. Sec., 2026 WL 369091, at *6 (W.D.N.Y. Feb. 10, 2026)

(quoting 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) (quoting Pellam v. Astrue, 508 Fed.Appx. 87, 91 (2d Cir. 2013) (“We

think that Pellam is, in reality, attempting to characterize her claim that the ALJ's

determination was not supported by substantial evidence as a legal argument in order

to garner a more favorable standard of review.”), and citing Lisa T. v. Kijakazi, 2022 WL

2207613, at *3 (D. Conn. June 21, 2022) (“an allegation of cherry-picking is seldom

successful because crediting it would require a court to re-weigh record evidence,” and

“what a claimant may label as cherry-picking can often be described more neutrally as

weighing the evidence”)). Again, the ALJ “is not required to specifically discuss every

piece of medical evidence in the record.” Thompson, 2018 WL 4103181, at *4 (citing

and quoting Brault, 683 F.3d at 448).

Because Plaintiff failed to establish that her use of a walker was medically

necessary, the ALJ was not required to incorporate Plaintiff’s use of the walker into the

RFC determination. See Charles F., 2021 WL 963585, at *4 (“[W]hen there is medical

documentation about [an assistive device] in the record, an ALJ's failure to determine

whether [that device] is medically necessary or to incorporate the use of [that device]

into the RFC is legal error.”). Nor is the court required to consider Plaintiff’s further

argument, Plaintiff’s Memorandum at 18-20, that Plaintiff meets the criteria for disability

based on Listing 1.15 of the SSA’s Listing of Impairments, which requires use of an

assistive device to effectively ambulate. 20 C.F.R. Part 404, Subpart P, Appx. 1, § 1.15.

Accordingly, on this record, the court finds Plaintiff has failed to meet her burden

of proof at to the medical necessity for use of a walker, and the ALJ’s decision was

supported by substantial evidence in the record, requiring Plaintiff’s Motion be DENIED

and Defendant’s Motion be GRANTED.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 8) is DENIED; Defendant’s

Motion (Dkt. 12) 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: February 26, 2026

Buffalo, New York