# Anderson

> District Court, W.D. New York · March 10, 2026

URL: https://www.frixlaw.com/law-library/cases/11273682

## Case

- **Full name:** Alexa A. v. Commissioner of Social Security
- **Court:** District Court, W.D. New York
- **Decided:** March 10, 2026
- **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
_______________________________________

ALEXA A.,1

Plaintiff DECISION and ORDER
-vs-
1:24-CV-01235-CJS
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
________________________________________

INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review a final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”)
denying Plaintiff’s application for Social Security Disability Insurance (“DIB”) benefits.
Plaintiff maintains that the Commissioner’s decision must be reversed since it contains
errors of law and is unsupported by substantial evidence, as more specifically set forth
below. Now before the Court is Plaintiff’s application for judgment on the pleadings (ECF
No. 8) and Defendant’s cross-motion for the same relief (ECF No. 12). For reasons
discussed below, Plaintiff’s application is denied, Defendant’s application is granted, and
the action is dismissed.

1 The Court’s Standing Order issued on November 18, 2020, indicates in pertinent part that, “[e]ffective
immediately, in opinions filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), in
the United States District Court for the Western District of New York, any non-government party will be
identified and referenced solely by first name and last initial.”

1
STANDARDS OF LAW
The Commissioner decides applications for disability benefits using a five-step
sequential evaluation process:
A five-step sequential analysis is used to evaluate disability claims. See 20
C.F.R. §§ 404.1520, 416.920. First, the Commissioner considers whether
the claimant is currently engaged in substantial gainful activity. If he is not,
the Commissioner next considers whether the claimant has a severe
impairment2 which significantly limits his physical or mental ability to do
basic work activities.3 If the claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence, the claimant has an
impairment which is listed in the regulations [or medically equals a listed
impairment]. Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe impairment, he
has the residual functional capacity [(“RFC”)] to perform his past work.4
Finally, if the claimant is unable to perform his past work, the Commissioner
then determines whether there is other work which the claimant could
perform. The claimant bears the burden of proof as to the first four steps,
while the Commissioner bears the burden at step five.5

2 “At step two, the ALJ must determine whether the claimant has a ‘severe medically determinable
physical or mental impairment that meets the duration requirement in [20 C.F.R.] § 404.1509, or a
combination of impairments that is severe and meets the duration requirement.’ Id. If not, the claimant is
deemed not disabled, and the inquiry ends.” Koch v. Colvin, 570 F. App'x 99, 101 (2d Cir. 2014); see
also, 20 C.F.R. § 404.1520(a)(4)(ii) (“At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable physical or mental impairment that
meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets
the duration requirement, we will find that you are not disabled.”).
3 The Commissioner’s Regulations define basic work-related activities as follows: “Basic work activities.
When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs.
Examples of these include— (1) Physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3)
Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding
appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a
routine work setting.” 20 C.F.R. § 404.1522 (West 2023).
4 Residual functional capacity “is what the claimant can still do despite the limitations imposed by his
impairment.” Bushey v. Berryhill, 739 F. App'x 668, 670–71 (2d Cir. 2018) (citations omitted); see also,
1996 WL 374184, Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P
(S.S.A. July 2, 1996).
5 “The Commissioner’s burden at step five is to show the existence of possible employment for an
individual with the RFC determined by the ALJ in the fourth step of the sequential analysis.” Smith v.

2
Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir. 2018) (citations and internal quotation
marks omitted).
An unsuccessful claimant may bring an action in federal district court to challenge
the Commissioner’s denial of the disability claim, in which “[t]he court shall have power to
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C.A. § 405(g) (West).
The issue to be determined by the court in such an action is whether the

Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501
(2d Cir. 1998); see also, Barnaby v. Berryhill, 773 F. App'x 642, 643 (2d Cir. 2019) (“[We]
will uphold the decision if it is supported by substantial evidence and the correct legal
standards were applied.”) (citing Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) and
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).”).
“First, the [c]ourt reviews the Commissioner's decision to determine whether the
Commissioner applied the correct legal standard.” Tejada v. Apfel, 167 F.3d 770, 773 (2d

Berryhill, 740 F. App'x 721, 726–27 (2d Cir. 2018) (citation omitted). The ALJ typically does this either by
resorting to the medical vocational “grids” or, where the claimant has a non-exertional impairment, by
taking testimony from a vocational expert [(“VE”)]. See, Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986)
(“[T]he mere existence of a nonexertional impairment does not automatically require the production of a
vocational expert nor preclude reliance on the guidelines. A more appropriate approach is that when a
claimant's nonexertional impairments significantly diminish his ability to work—over and above any
incapacity caused solely from exertional limitations—so that he is unable to perform the full range of
employment indicated by the medical vocational guidelines, then the Secretary must introduce the
testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant
can obtain and perform.”).

3
Cir. 1999); see also, Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (“[W]here an error
of law has been made that might have affected the disposition of the case, this court
cannot fulfill its statutory and constitutional duty to review the decision of the
administrative agency by simply deferring to the factual findings of the [administrative law

judge] [(“]ALJ[)”]. Failure to apply the correct legal standards is grounds for reversal.”)
(citation omitted).
If the Commissioner applied the correct legal standards, the court next “examines
the record to determine if the Commissioner's conclusions are supported by substantial
evidence.” Tejada v. Apfel, 167 F.3d at 773; see also, 42 U.S.C.A. § 405(g) (“The findings
of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”). Substantial evidence is defined as “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Tejada v. Apfel, 167 F.3d at 773 (citation omitted).
The substantial evidence standard is a very deferential standard of review—
even more so than the ‘clearly erroneous’ standard, and the
Commissioner’s findings of fact must be upheld unless a reasonable
factfinder would have to conclude otherwise.” Brault v. Social Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (emphasis in
original). “An ALJ is not required to discuss every piece of evidence
submitted, and the failure to cite specific evidence does not indicate that
such evidence was not considered.” Id.

Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019)
(internal quotation marks omitted); see also, Snyder v. Comm'r of Soc. Sec., No. 22-277-
CV, 2023 WL 1943108, at *1 (2d Cir. Feb. 13, 2023) (“While the substantial evidence
standard requires we find more than a mere scintilla of support for the Commissioner's

4
decision, it is still a very deferential standard of review requiring us to uphold the
Commissioner's findings unless a reasonable factfinder would have to conclude
otherwise.”) (emphasis in original; citations and internal quotation marks omitted); Schillo
v. Kijakazi, 31 F.4th 64, 69 (2d Cir. 2022) (“We may vacate the agency's disability

determination only if it is based on legal error or unsupported by ‘substantial evidence’—
that is, if no reasonable factfinder could have reached the same conclusion as the ALJ.”).
In applying this standard, a court is not permitted to re-weigh the evidence. See,
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.”); see also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL 1406649,
at *4 (S.D.N.Y. May 8, 2007) (“The court does not engage in a de novo determination of
whether or not the claimant is disabled, but instead determines whether correct legal
standards were applied and whether substantial evidence supports the decision of the
Commissioner.”) (citations omitted). “Even where the administrative record may also

adequately support contrary findings on particular issues, the ALJ's factual findings must
be given conclusive effect so long as they are supported by substantial evidence.” Genier
v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks omitted). “In other
words, this Court must afford the Commissioner's determination considerable deference,
and ‘may not substitute its own judgment for that of the [Commissioner], even if it might
justifiably have reached a different result upon a de novo review.’” Melia v. Colvin, No.
1:14-CV-00226 MAD, 2015 WL 4041742, at *2 (N.D.N.Y. July 1, 2015) (quoting Valente
v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984)).

5
When considering whether a particular finding or decision is supported by
substantial evidence, a court also may not rely on any post hoc rationalizations offered
by the Commissioner. However, a court may consider evidence that was evidently
considered by the Administrative Law Judge (“ALJ") even if it was not expressly

mentioned in the administrative decision. See, Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983) (“When, as here, the evidence of record permits us to glean the rationale
of an ALJ's decision, we do not require that he 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. E.g., Berry v. Schweiker, 675 F.2d
464, 469 (2d Cir.1982). In Berry, we noted that, although we would remand for further
findings or a clearer explanation where we could not fathom the ALJ's rationale “in relation
to evidence in the record,” we would not remand where “we were able to look to other
portions of the ALJ's decision and to clearly credible evidence in finding that his
determination was supported by substantial evidence.” Id.[; [s]ee also Miles v. Harris, 645

F.2d 122, 124 (2d Cir.1981) (“Notwithstanding the apparent inconsistency between the
reports of [two doctors], we are unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony ....”).”); see also, Loni S. v. Comm'r of Soc. Sec.,
No. 3:22-CV-805 (CFH), 2023 WL 4195887, at *19 (N.D.N.Y. June 27, 2023) (“The Court
is required to look at the entire ALJ's decision when reviewing for substantial evidence.
See John L. M. v. Kijakazi, No. 5:21-CV-368 (BKS/TWD), 2022 WL 3500187, at *2
(N.D.N.Y. Aug. 18, 2022) (citations omitted) (‘[W]hile a reviewing court may not affirm the
Commissioner's decision based on an impermissible post-hoc rationalization, it may

6
affirm where the ALJ's consideration of the relevant factors can be gleaned from the ALJ's
decision as a whole.’).”).
FACTUAL and PROCEDURAL BACKGROUND
The reader is presumed to be familiar with the factual and procedural history of

this action. Plaintiff’s memorandum of law provides the following summary, to which
Defendant has not objected:
On March 13, 2022, the Claimant filed a Title II application for a period of
disability and disability insurance benefits, alleging disability beginning
August 20, 2020. (Tr. 90) [Plaintiff claimed to be disabled due to a
combination of impairments consisting of “depression, post-traumatic stress
disorder, attention deficit disorder, IBD, severe anxiety, borderline
personality disorder, bipolar one, scoliosis, chronic pain, and fibromyalgia.”
Tr. 239, 242.] The claim was denied initially on July 14, 2022 (Tr. 115),
and upon reconsideration on February 15, 2023. (Tr. 121) Thereafter, the
Claimant filed a written request for hearing received on March 25, 2023. (Tr.
128) On January 18, 2024, [ALJ] Anthony Dziepak held an online video
hearing. (Tr. 183) The Claimant was represented by Kasey Barrett, Esq. of
Neighborhood Legal Services, Inc. and James Sarno acted as Vocational
Expert at the hearing. (Tr. 196) [ALJ] Dziepak found, in a decision dated
April 17, 2024, that the Claimant was not under a disability at any time from
August 22, 2020, the alleged onset date, through September 30, 2021, the
date last insured.

ALJ Dziepak specifically found that the Claimant, born on June 5, 1997, was
24 years old and was classified as a younger individual on the date last
insured. (20 CFR 404.1563) The Claimant has past relevant work as a
coffee house worker, unskilled, so there was no transferability of skills from
the Claimant’s past work (20 CFR 404.1568) and has a high school
education. (20 CFR 404.1564) ALJ Dziepak held that, considering the
Claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national
economy that the Claimant can perform. (20 CFR 404.1569 and 404.1569a)
(Tr. 10)

7
On June 14, 2024, the Claimant requested that the Appeals Council review
the [ALJ’s decision]. (Tr. 19) The Appeals Council, in a decision dated
October 22, 2024, found no reason to review the ALJ’s decision. (Tr. 5) In
so doing, the [ALJ’s decision] became the final decision of the
Commissioner of Social Security. Plaintiff then commenced this action and
this Court has jurisdiction to review the SSA’s final decision pursuant to 42
U.S.C. Section 405(g).

[The ALJ’s decision] found that the Claimant worked after the alleged onset
date of August 22, 2020, but this work activity did not rise to the level of
substantial gainful activity. (Tr. 243) ALJ Dziepak found that, through the
date last insured, the Claimant suffered from the severe impairments of
bipolar disorder, anxiety disorder, trauma-related disorder and fibromyalgia.
[The ALJ found] that the Claimant, through the date last insured, had the
residual functioning capacity to perform light work as defined in 20 CFR
404.1567(b) except the Claimant can sit for six hours in an eight hour
period; stand or walk for six hours in an eight hour period, requires a two to
three minute hourly positional change allowance, can never climb ladders,
ropes or scaffolds, and can never crawl, can never operate vibrating tools,
and can never work at unprotected heights or with heavy moving machinery.
The Claimant can perform simple, repetitive tasks learned by short
demonstration, cannot interact [with the public,] can work around coworkers
with interactions limited to elective superficial conversations, can have
occasional interaction with supervisors, and is able to make simple work-
related decisions and adapt to simple changes in a routine work setting. (Tr.
28)

[The ALJ] found that Claimant had past relevant work as a coffee house
worker, DOT 311.677-010, SVP 2 unskilled light work that the Claimant
actually performed at the medium level. ALJ Dziepak found that the
performance of that past work is precluded, however, by the Claimant’s
inability to interact with the public. Accordingly, the Claimant was unable to
perform his past relevant work as actually or generally performed. ALJ
Dziepak held that, considering the Claimant’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the
national economy that the Claimant can perform, specifically table worker,
DOT 739.687-182, touch up screener, DOT 726.684-110, document
preparer, DOT 249.587-018, photocopy machine operator, DOT 207.685-

8
014, garment sorter, DOT 222.687-014 and laundry sorter, DOT 361.687-
014. Based on the application for Title II Social Security Disability benefits
filed on March 13, 2022, the Claimant was found not to be disabled at any
time from August 22, 2020, the alleged onset date, through September 30,
2021, the date last insured for Title II purposes. (Tr. 33)

ECF No. 8 at pp. 1-3.
As discussed further below, in this action Plaintiff contends that the
Commissioner’s decision must be reversed for essentially four reasons: 1) the ALJ did
not properly consider the opinion of the mental health therapist who began treating
Plaintiff after the last-insured date; 2) the ALJ erred by finding that Plaintiff could perform
unskilled work while having the degree of contact with co-workers and supervisors
described in the RFC finding; 3) the ALJ violated Plaintiff’s due process rights by excusing
the VE from the hearing before counsel’s direct examination of Plaintiff; and 4) the ALJ
erred by making a step-five finding that was supported by VE testimony based on
estimates concerning the number of available jobs.
The Commissioner disagrees and contends that the ALJ’s decision is free of legal
error and supported by substantial evidence.
The Court has carefully considered the parties’ submissions and the relevant
portions of the administrative record.
DISCUSSION
The ALJ did not violate Plaintiff’s Due Process Rights by excusing
the VE from the hearing before counsel had examined Plaintiff

Plaintiff maintains that the ALJ violated Plaintiff’s Due Process by excusing the VE
from the hearing before Plaintiff’s counsel had conducted any direct examination of

9
Plaintiff. See, Pl. Memo of Law, ECF No. 8 at pp. 13-14 (“Following his questioning of the
VE and allowing the Claimant’s counsel to pose questions to the VE, the VE was excused
from the hearing. This prevented the testimony of the Claimant on direct examination by
Counsel to be considered in the ALJ’s formulation of his hypothetical questions to the VE

and it prevented the Claimant’s counsel from considering the Claimant’s testimony in her
own posing of hypothetical questions to the VE[.]”)6; see also, id. at p. 7 (“The VE was
excused from the hearing prior to the Claimant’s counsel being given time for direct
examination of the Claimant.”).
However, the Court finds no merit to this argument. First, Counsel indicated that
she had no further questions for the VE, and did not object to the VE being excused from
the hearing. Tr. 71. Consequently, even assuming arguendo that Plaintiff had some due
process right to have the VE present when Plaintiff’s counsel conducted her direct
examination, which the Court doubts,7 Plaintiff waived such right.
Furthermore, Plaintiff’s argument is based on a fictional premise, namely, that

Plaintiff’s counsel conducted a direct examination of Plaintiff after the VE was excused
from the hearing, and that this was prejudicial, since such testimony might have changed
how the VE answered the ALJ’s hypothetical questions. In fact, though, Plaintiff’s

6 The last aspect of Plaintiff’s argument is particularly puzzling, since Plaintiff’s counsel presumably knew
what information she hoped to elicit from Plaintiff, and could have easily included such information into a
hypothetical to the VE, even if Plaintiff had not yet testified (even though, in fact, Plaintiff had already
testified when counsel examined the VE, as discussed further below).
7 See, e.g., Berkowski v. Comm'r of Soc. Sec., 652 F. Supp. 2d 846, 861 (E.D. Mich. 2009) (“Plaintiff
argues that the ALJ violated his due process rights because he gave hypothetical questions to the VE
prior to the time that counsel had the opportunity to examine claimant. . . . [N]either Plaintiff's brief nor
a reading of the record and hearing transcripts shows any basis to find that Plaintiff's due process rights
were violated.”) (internal quotation marks omitted).

10
counsel did not conduct, or attempt to conduct, any examination of Plaintiff after the VE
was excused from the hearing. See, Tr. 71-75 (Plaintiff’s counsel indicated, after the VE
was excused from the hearing without objection, that she had no further testimony to offer
from Plaintiff: “ALJ: Anything else? ATTY: That’s it, Judge. Thank you.”).8 The

argument therefore appears entirely specious, but, in any event, Plaintiff has not shown
any prejudice from the timing of the VE’s exit from the hearing. Accordingly, this aspect
of Plaintiff’s motion is denied.
The ALJ did not err in relying on the VE’s testimony
concerning the estimated number of available jobs

In finding that Plaintiff could perform other work at step five of the sequential
evaluation, the ALJ relied on the VE’s testimony concerning the number of available jobs.
Tr. 28-29. Plaintiff, though, maintains that the ALJ committed legal error by relying on
such testimony, and that the step-five finding is not supported by substantial evidence,
since the VE’s testimony concerning the number of available jobs was based on
estimates. See, Pl. Memo of Law, ECF No. 8 at p. 14 (“[T]he testimony of the VE regarding
the numbers of each job given that met the ALJ’s hypotheticals, and those jobs cited in
the decision to deny, are admittedly estimates of numbers of jobs and the VE
acknowledged that there are no sources he reviewed that give the actual numbers of

8 To the extent Plaintiff is maintaining that the ALJ somehow prevented counsel from examining Plaintiff
by excusing the VE, see, e.g, Pl. Memo of Law, ECF No. 8 at p. 7 (“The VE was excused from the
hearing prior to the Claimant’s counsel being given time for direct examination of the Claimant.”), the
record shows otherwise. Indeed, the ALJ thrice indicated that after the VE was excused he would allow
counsel the chance to further examine Plaintiff concerning “reliability factors” about which the VE testified,
concerning what an employer would tolerate in terms of an employee either being absent or off-task. Tr.
60, 70, 74. However, counsel declined to conduct any such further examination. Tr. 75. The only
reasonable conclusion to be drawn from the record is that counsel was satisfied with the direct
examination of Plaintiff already conducted by the ALJ, which was completed prior to the VE’s testimony.

11
those jobs. This is also insufficient as a matter of law.”) (citing no authority).
In this regard, Plaintiff maintains that such estimates were “insufficient as a matter
of law” to carry the Commissioner’s burden at step five of the sequential evaluation, even
though Claimant has neither shown, nor even alleged, either that the estimates used by

the VE were either inaccurate, or that the use of such estimates was prohibited by the
Commissioner’s regulations. See, Id.
However, the Court disagrees, and finds that, in general, there is nothing improper
about an ALJ relying on a VE’s job-number estimates, and that, such estimates may
constitute substantial evidence, particularly where, as here, the claimant has not
challenged the accuracy of the estimates. Indeed, the propriety of an ALJ’s reliance on
such estimates is well established. For example, the Ninth Circuit Court of Appeals
recently addressed this issue, stating, in pertinent part:
If the VE testifies that there are occupations that the hypothetical claimant
can perform given the assumed limitations, the ALJ will typically ask the VE
to provide examples of those occupations and “[i]nformation about the
numbers of jobs in each occupation nationally.” Soc. Sec. Admin.,
Vocational Experts Handbook 36 (June 2020).

VEs may use a wide range of data sources and methodologies to generate
job-number estimates. See Biestek, 139 S. Ct. at 1152–53 (describing
different types of data sources VEs may use); Goode v. Comm'r of Soc.
Sec., 966 F.3d 1277, 1284 (11th Cir. 2020) (describing several methods of
job-numbers estimation VEs use). ALJs must inquire about, and VEs must
explain, any inconsistencies between their testimony and the DOT, a
principal source of occupational information for SSA. Social Security Ruling,
SSR 00-4p, 65 Fed. Reg. 75759, 75760 (Dec. 4, 2000); see also Massachi
v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007); Swenson v. Sullivan,
876 F.2d 683, 688 (9th Cir. 1989) (requiring ALJs to reject VE testimony
that is inconsistent with the Medical-Vocational Guidelines). Although a VE

12
may be cross-examined during the proceedings about the data sources or
methodologies underlying her job-number estimates, there is no
requirement that a VE disclose the primary data underlying the estimates
prior to, during, or after the hearing. See SSA Manual, supra, at §§ I-2-5-
48-60, I-2-6-74 (outlining procedures for obtaining VE testimony); see also
Vocational Experts Handbook, supra, at 37 (recommending that VEs have
available “any vocational resource materials” that they are likely to rely on
and be prepared “to thoroughly explain” how they arrived at their opinions,
and specifying that “[i]n some cases, the ALJ may ask you to provide
relevant portions of materials”). Indeed, the Supreme Court recently held
that VE job-numbers testimony may constitute substantial evidence
supporting a finding of no disability even if the VE refuses to disclose the
specific, non-public data sources on which the estimates were based.
Biestek, 139 S. Ct. at 1157.
***
[W]e have characterized uncontradicted VE job-numbers testimony as
“inherently reliable” and “ordinarily sufficient by itself to support an ALJ's
step-five finding.” Ford, 950 F.3d at 1160 (first quoting Buck, 869 F.3d at
1051); see also Kilpatrick v. Kijakazi, 35 F.4th 1187, 1192–93 (9th Cir.
2022). However, a VE may “offer testimony that is so feeble, or
contradicted, that it would fail to clear the substantial-evidence bar.” Biestek,
139 S. Ct. at 1155–56. The substantial evidence inquiry for VE testimony
must proceed on a “case-by-case” basis, taking “into account all features of
vocational expert's testimony, as well as the rest of the administrative
record.” Id. at 1157.

White v. Kijakazi, 44 F.4th 828, 834–35 (9th Cir. 2022) (underlining added).
Here, again, Plaintiff has not shown that the estimates offered by the VE were
inaccurate, but, rather, only baldly asserts that the use of estimates is necessarily
“insufficient as a matter of law.” ECF No. 8 at p. 14. Indeed, Plaintiff’s reply brief insists
that, in order for the VE’s testimony to amount to “substantial evidence,” the VE was
required to give “actual numbers of the jobs about which he was testifying.” ECF No. 13
at p. 2. However, that contention is clearly incorrect. Consequently, this aspect of

13
Plaintiff’s motion is also denied.
The ALJ did not err in finding that Plaintiff could perform other work despite
having limited ability to interact with coworkers and supervisors

At step three of the ALJ’s sequential evaluation, when considering the severity of
Plaintiff’s mental impairments using the “paragraph B criteria,” the ALJ found that Plaintiff
had a “moderate” limitation in interacting with others. Tr. 23. In that regard, the ALJ
observed that Plaintiff’s mental-status-examination results “d[id] not report any deficits in
social interactions,” and that, at the hearing, Plaintiff “was able to respond appropriately
to extensive questioning and did not demonstrate any disruptive behavior.” Tr. 23. The
ALJ also noted that, despite Plaintiff’s impairments, Plaintiff “sustain[ed] a personal
relationship” with a live-in companion,9 maintained “part time work that required almost
constant interaction with the public,” served on the Board of Directors of a community
organization, and attended college. Tr. 23.
Prior to reaching step four of the sequential evaluation, the ALJ found that Plaintiff
had the following RFC for interacting with co-workers and supervisors:
[C]annot perform team or tandem collaborative type work with coworkers;
can work around coworkers with interactions limited to elective superficial
conversations; can have occasional interaction with supervisors.

Tr. 24. When explaining the RFC finding, the ALJ further discussed Plaintiff’s mental
impairments, stating in pertinent part:
Regarding [claimant’s] mental impairments, the claimant’s medical record
documents that [claimant has] a history of treatment for symptoms of

9 Plaintiff testified to having recently moved into an apartment with a girlfriend after having lived at home
with parents.

14
depression and anxiety that have been variously diagnosed as resulting
from bipolar, anxiety, and post-traumatic stress disorders since prior to the
period at issue (Exhibit 1F). Although the claimant testified to disabling
symptoms, [claimant’s] treatment notes consistently report that [claimant
was] alert and cooperative when presenting for treatment and ha[s] had
benign mental exams with no deficits in cognition, attention, or memory
(Exhibit 1F/11, 15, 19, 22, 26, 28, 31, 34; 2F/3, 10; 13F/18, 20, 25, 29).
Indeed, although the claimant testified to having psychotic symptoms
including both visual and auditory hallucinations, these are not documented
in [claimant’s] medical record for the period at issue. Moreover, although
the claimant has reported having periods of both exhaustion and mania
during the period at issue, these are report[ed] within the context of
[claimant’s] work as a barista that required [claimant] to constantly interact
with the public (Exhibit 1F/25). Likewise, although the claimant has reported
periods of increased irritability and grandiose thoughts, these have been
attributed to hormone replacement therapy for gender dysphoria (Exhibit
1F/28, 31; 3F/45). Indeed, these treatment notes frequently report that the
claimant’s mental health symptoms are stable with treatment (Exhibit 1F/2,
5, 20, 23;3F/18, 45). These symptoms indicate that [claimant] require[s] a
work environment that does not require [claimant] to interact with the public
and tolerate only superficial interactions with coworkers and supervisors so
as not to exacerbate [claimant’s] symptoms.

Tr. 26 (emphasis added).
Plaintiff, though, contends that the ALJ’s finding relating to ability to interact with
coworkers and supervisors is erroneous, and requires remand, for essentially two
reasons. First, Plaintiff contends that there is an unexplained contradiction in the ALJ’s
decision concerning Plaintiff’s ability to interact with supervisors, since the RFC finding
indicates that Plaintiff “can work around coworkers with interactions limited to elective
superficial conversations” and “can have occasional interaction with supervisors,” while
the ALJ’s subsequent discussion of that finding indicates that Plaintiff can “tolerate only
superficial interactions with coworkers and supervisors.” See, Pl. Memo of Law, ECF No.

15
8 at p. 12 (“[T]he RFC in the decision provides for occasional interaction with supervisors
when [the subsequent explanation] indicates the ALJ believes the Claimant can tolerate
no more than superficial contact with supervisors as well [as coworkers]. This amounts
to a contradictory statement within the decision that would require remand.”). Plaintiff

asserts that remand is necessary for the ALJ to clarify this alleged disagreement.
Second, Plaintiff contends that if an RFC limits a claimant to only superficial
contact with coworkers and supervisors, then sustained unskilled work is precluded by
Social Security Ruling 85-15. See, Pl. Memo of Law, ECF No. 8 at p. 12 (“[A] person who
can tolerate only superficial contact with coworkers and supervisors does not possess
sufficient ability to interact with coworkers and supervisors required for unskilled work
according to SSR 85-15.”); see also, id. at p. 13 (“Brief and superficial contact is less than
occasional contact, defined as up to one-third of the day. This level of interaction is less
than what is required by SSR 85-15[.] . . . This ruling specifically calls for the ability to
respond appropriately to supervision and coworkers as a requirement for sustaining full-

time unskilled work. The regulation does not limit that requirement to a portion of the
workday or for “elective superficial conversations” as the limitation is defined in the RFC
of the decision.”).
The Commissioner disagrees and maintains, regarding the alleged inconsistency
between the RFC finding and the ALJ’s explanation, that it is a mere typographical error.
That is, the ALJ did not mean to indicate that Plaintiff could have only superficial contact
with supervisors, but, rather, that, consistent with the RFC finding, Plaintiff could have

16
occasional contact with supervisors and superficial interaction with coworkers.10 As
evidence of this, the Commissioner points out that the hypothetical question posed by the
ALJ to the VE, upon which the step-five finding is based, incorporated the RFC finding,
and, in particular, referred to a claimant who would have “occasional interaction with

supervisors.” See, Tr. 64 (The ALJ asked the VE to consider a hypothetical claimant who
could have the following contact with coworkers and supervisors: “Co-workers, nothing
essential about team, tandem project-type work. They’re going to work around co-
workers in a typical office setting engaging in, you know, elective simple conversations,
you know, how is your day going? Did you watch this movie that just came out? Simple
things like that. Occasional interaction with supervisors[.]”). Alternatively, the
Commissioner contends that, even “assuming arguendo that this is not a simple
typographical error,” “these two formulations are not meaningfully distinct, as caselaw
from this District recognizes that an RFC for occasional contact accounts for limitations
to brief and superficial contact.” Def. Memo of Law, ECF No. 12-1 at p. 12.

The Court agrees with the Commissioner and finds no merit to Plaintiff’s arguments
on this point. To begin with, the Court finds that the two statements by the ALJ about
contact with supervisors are not necessarily contradictory or inconsistent, since the term
“occasional” refers to the frequency of contact, while the term “superficial” refers to the

10 See, Def. Memo of Law, ECF No. 12-1 at pp. 11-12 (“Plaintiff’s last challenge to the RFC is based on a
typographical error – namely that the ALJ stated in the body of the decision that Plaintiff required a work
environment that required [claimant] to “tolerate only superficial interactions with coworkers and
supervisors so as not to exacerbate [claimant’s] symptoms.” Commissioner concedes this wording is
slightly different from that in the actual RFC finding which limits Plaintiff to superficial conversations with
coworkers and occasional interactions with supervisors, but given the ALJ’s hypothetical question to the
vocational expert, it is clear the ALJ meant the RFC to reflect occasional interaction with supervisors.”)
(citations omitted).

17
nature or quality of the contact. See, e.g., Robin A. v. Comm'r of Soc. Sec., No. 22-CV-
112SR, 2025 WL 331302, at *6 (W.D.N.Y. Jan. 29, 2025) (Accepting “that there is a
distinction between limitations for superficial interaction, which focuses on the quality of
interaction, and limitations for occasional contact, which focuses on the quantity of time

spent interacting,” citing Maria M. v. Comm'r of Soc. Sec., 21-CV-962, 2024 WL 32210,
at *4 (W.D.N.Y. Jan. 3, 2024))
Moreover, an ALJ may reasonably conclude that a limitation to brief and/or
superficial interaction with others is the functional equivalent of a limitation to occasional
contact:
“There ... [is] a divergence of opinion as to whether a limitation to brief and
superficial interaction with others is the functional equivalent of a limitation
to occasional contact.” Maria M. v. Comm'r of Soc. Sec., No. 1:21-CV-
00962-TPK, 2024 WL 33210, at *3 (W.D.N.Y. Jan. 3, 2024). Decisions from
within this District have reached different conclusions on this issue.
Compare Maria M., 2024 WL 33210, at *3 (concluding that the terms are
not equivalent (collecting cases))11 with Ward v. Comm'r of Soc. Sec., No.
18-CV-1317-FPG, 2020 WL 3035850, at *3 (W.D.N.Y. June 5, 2020)
(“[M]any courts have found that where, as here, an ALJ properly gave
considerable weight to a medical opinion stating a claimant's ability to
handle brief and superficial contact, an RFC containing a limitation to
‘occasional interaction’ is supported by substantial evidence.” (collecting
cases)).

11 See also, Jonathan C. v. Comm'r of Soc. Sec., No. 22-CV-00839-MJR, 2025 WL 2231800, at *3
(W.D.N.Y. Aug. 6, 2025) (“Courts have held that “occasional interaction” and “brief and superficial
contact” are not the same. See Jackson v. Comm'r of Soc. Sec., No. 16-cv-6183 (KAM), 2019 WL
7283518, at *7 (E.D.N.Y. Dec. 27, 2019) (despite affording examining physician's opinion “great weight”
the ALJ failed to incorporate opinion that claimant only capable of brief and superficial contact with others
in her RFC determination, instead finding claimant capable of “occasional contact”); Joann A.D. v. Saul,
No. 3:19-CV-1198 (AVC), 2021 WL 6337747, at *12 (D. Conn. Apr. 28, 2021)(occasional limitations and
no work on teams with coworkers was inconsistent with “brief and superficial” interactions in an opinion
given great weight”). Occasional interaction is a higher level of interaction than brief and superficial.
Jackson v. Comm'r of Soc. Sec., 2019 WL 7283518, at *7.”) (footnote omitted).

18
There are colorable arguments on both sides of this dispute. But in
reviewing the Commissioner's determination, the Court is not called upon
to review the evidence de novo or to ascertain the best interpretation
thereof. “If [the] evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be upheld.” McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (emphasis added). An ALJ in a
particular case may rationally conclude that “brief and superficial” contact
and “occasional” contact are functionally equivalent. See Shaibi v. Berryhill,
883 F.3d 1102, 1107 (9th Cir. 2017) (finding “no obvious inconsistency”
between an opinion that the plaintiff was moderately limited in his
interactions with coworkers and could “relate to others on a superficial work
basis” and the ALJ's RFC finding that the plaintiff was capable of occasional
interaction with coworkers); see also Schmidt v. Kijakazi, No. 21-CV-0319-
BHL, 2022 WL 17584173, at *3 (E.D. Wis. Dec. 12, 2022) (“In most
circumstances, a reasonable person could safely assume that the
superficiality of contacts has some reasonable correlation with their
frequency, especially in the workplace.”).

“A per se rule requiring reversal and remand whenever an ALJ conflates
‘occasional’ and ‘superficial’ is, therefore, at odds with the highly deferential
substantial evidence standard, which itself demands nothing more than
‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Schmidt, 2022 WL 17584173, at *3 (quoting Biestek
v. Berryhill, 587 U.S. 97, 103 (2019)). In this case, the state agency
reviewing psychologists opined that Plaintiff would have only moderate
limitations in his ability to interact adequately with co-workers and
supervisors (see Dkt. 3 at 119, 133), which is fully consistent with a
limitation to occasional contact, see Cynthia A. E. v. Comm'r of Soc. Sec.,
No. 5:22-CV-0974 MAD DEP, 2023 WL 9116628, at *8 (N.D.N.Y. Oct. 17,
2023) (“A moderate limitation in interaction can be reasonably interpreted
as an ability to occasionally interact.”), adopted, 2023 WL 8432332
(N.D.N.Y. Dec. 5, 2023).

Michael G. v. Comm'r of Soc. Sec., No. 1:23-CV-00767 EAW, 2024 WL 3616282, at *5
(W.D.N.Y. July 31, 2024).
Furthermore, even assuming arguendo that the two statements are contradictory,

19
any error by the ALJ in this regard was harmless, since the Court finds it sufficiently clear,
from the ALJ’s decision as a whole, that the RFC finding limits the Plaintiff to occasional
interaction with supervisors, and not to only “superficial interactions” with supervisors.
The RFC finding itself clearly states this, and such finding was incorporated into the

hypothetical question to the VE, and the VE’s answer thereto, upon which the ALJ’s step-
five finding is based. See, e.g., Wearen v. Colvin, No. 13-CV-6189P, 2015 WL 1038236,
at *13 (W.D.N.Y. Mar. 10, 2015) (“Wearen contends that the ALJ determined that he was
unable to walk more than ten feet at a time. The government counters that the ALJ's
finding was that Wearen could not walk more than ten minutes at a time and that the
reference to “feet” was a typographical error. The record, particularly the questions posed
to and answers given by the vocational expert during the administrative hearing,
demonstrate that the government's position is correct.”) (emphasis in original).
Consequently, the discrepancy between the RFC finding and the section of the ALJ’s
decision discussing that finding appears to arise from a typographical error in the

explanatory discussion, which is harmless. See, Thompson v. Barnhart, 75 F. App'x 842,
845 (2d Cir. 2003) (“To the extent Ms. Thompson notes a discrepancy between the
credibility finding made at page 8 of the ALJ decision and that noted at page 10, it is
obvious from the opinion as a whole that the inclusion of the word “not” in the latter finding
represents a typographical error.”); see also, Heitz v. Comm'r of Soc. Sec., 201 F. Supp.
3d 413, 425 (S.D.N.Y. 2016) (“In similar circumstances, courts have found typographical
errors to be harmless if it is obvious from the opinion as a whole that the error is
typographical and not substantive.”) (collecting cases, internal quotation marks omitted).

20
Neither does the Court agree with Plaintiff that a claimant with the RFC found by
the ALJ in this case, as it relates to interactions with coworkers and supervisors, would
necessarily be precluded, by SSR 85-15, from performing unskilled work on a sustained
basis. On this point, Plaintiff insists that “brief and superficial contact is less than

occasional contact, defined as up to one-third of the day,” and also “less than what is
required by SSR 85-15.” Similarly, Plaintiff asserts that, “a person who can tolerate only
superficial contact with coworkers and supervisors does not possess sufficient ability to
interact with coworkers and supervisors required for unskilled work according to SSR 85-
15.”
Plaintiff, though, does not cite any particular language from SSR 85-15 that
expressly supports those contentions. Rather, Plaintiff only quotes the following general
language from the ruling:
The basic mental demands of competitive, remunerative, unskilled work
include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a routine
work setting. A substantial loss of ability to meet any of these basic work-
related activities would severely limit the potential occupational base. This,
in turn, would justify a finding of disability because even favorable age,
education, or work experience will not offset such a severely limited
occupational base.

ECF No. 8 at p. 13. Plaintiff then merely asserts that such language is inconsistent with
the RFC here:
This ruling specifically calls for the ability to respond appropriately to
supervision and coworkers as a requirement for sustaining full-time
unskilled work. The regulation [sic] does not limit that requirement to a
portion of the workday or for “elective superficial conversations” as the

21
limitation is defined in the RFC of the decision. This capability does not
satisfy the requirements of SSR 85-15 and approval of this claim is
appropriate with this limitation.

Id.
However, the Court is not convinced by this bald assertion, unsupported by any
case authority, that an RFC finding such as the one here, limiting contact with coworkers
to “interactions limited to elective superficial conversations,” and contact with supervisors
to “occasional interactions,” would necessarily prevent a claimant from “responding
appropriately to supervision and coworkers” while performing unskilled work.
As preliminary matter, it appears that the amount of contact with coworkers and
supervisors that is required to meet the basic demands of unskilled work can be quite
small, given that such work primarily involves working with things and not people. See,
e.g., Michael G. v. Comm'r of Soc. Sec., No. 5:20-CV-605 (CFH), 2021 WL 2457637, at
*9 (N.D.N.Y. June 16, 2021) (“[T]he primary work functions in the bulk of unskilled work
relate to working with things rather than people. 20 C.F.R. Pt. 404, Subpt. P, app. 2, §
202.000(g). Consistent with this regulatory approach, multiple courts have considered a
limitation to unskilled work to adequately accommodate a claimant's need for only “brief
and superficial” social contact.”) (citation and internal quotation marks omitted).
Indeed, there is no shortage of decisions upholding mental RFC findings limiting
claimants to brief and/or superficial contact with coworkers and supervisors. See, e.g.,
Guadalupe Maria S. v. Comm'r of Soc. Sec., No. 1:22-CV-09489-GRJ, 2023 WL

8720271, at *6 (S.D.N.Y. Dec. 18, 2023) (“To the extent the record documents impairment
in Plaintiff's ability to self-regulate, adapt to changes, respond to stress, demonstrate

22
reliability, function in social situations, and maintain attendance, the ALJ adequately
accounted for these impairments by limiting Plaintiff to work involving simple, routine,
repetitive tasks in a low stress environment; requiring no contact with co-workers and the
public and no more than superficial contact with supervisors; and demanding no more

than occasional decision-making, judgment, and customary changes.”) (emphasis
added); see also, Cur v. Comm'r of Soc. Sec., No. 19-CV-01039, 2020 WL 6488741, at
*1 (W.D.N.Y. Nov. 4, 2020) (Upholding RFC finding limiting claimant to unskilled work
requiring “brief and superficial work-related, task-oriented contact with coworkers and
supervisors and occasional brief and superficial contact with the public.”); Jurado v.
Comm'r of Soc. Sec., No. 6:18-CV-6504-DB, 2020 WL 13557887, at *10, 11 (W.D.N.Y.
Aug. 17, 2020) (“[A]lthough the ALJ rejected the extreme portions of Ms. Phelps’ opinions,
the ALJ nevertheless restricted Plaintiff to a limited range of work, which accounted for
difficulties in Plaintiff's ability to maintain attention and a schedule, and also restricted
Plaintiff to simple/unskilled work that was the same day to day. Moreover, by restricting

Plaintiff to work that entailed, at most, superficial contact with coworkers and supervisors,
and no contact with the public, the ALJ reduced Plaintiff's exposure to distractibility
inherent in working with others. . . . [T]he Court finds no error in the ALJ's mental RFC
finding.”) (emphasis added).
Moreover, numerous courts have rejected the same argument being advanced
here by Plaintiff. See, e.g., Timothy R. v. Bisignano, No. 1:24-CV-1148, 2026 WL 194678,
at *11 (D.N.J. Jan. 26, 2026) (“Plaintiff next contends that the RFC limitation to occasional,
brief, and superficial contact with supervisors, coworkers, and the public is “inconsistent

23
with basic mental demands required to perform all work.” Plaintiff's Memorandum of Law,
ECF No. 6, p. 13 (citing SSR 85-15)[.] . . . Plaintiff's argument is not well taken. This
Court has previously considered and rejected a similar argument, finding that courts
routinely find that an individual can perform unskilled work in the national economy,

despite a limitation to only occasional interaction with coworkers, supervisors, and the
public.”) (collecting cases; citations, internal quotation marks and footnotes omitted); see
also, Jeffery W. v. Comm'r, Soc. Sec. Admin., No. 2:18-CV-00345-HZ, 2019 WL 4167129,
at *7 (D. Or. Aug. 31, 2019) (“Plaintiff argues that the ALJ should have found Plaintiff
disabled given her RFC assessment. According to Plaintiff, the ALJ's assessment that
Plaintiff could handle no more than superficial contact with supervisors commands a
finding of disability under SSR 85-15 because “superficial contact with supervisors” is
incompatible with the ability to “respond appropriately to supervision” as required for
unskilled work. . . . Plaintiff cites no legal support for his argument, and the Court finds
none. Indeed, at least three other district courts have rejected similar arguments in the

context of limitations to minimal or superficial interactions with supervisors. And the
vocational expert identified at least three jobs in the national economy that Plaintiff could
perform with this limitation. Therefore, the Court finds that the ALJ's RFC limiting Plaintiff
to superficial interaction with coworkers does not command a finding of disability under
SSR 85-15.”) (citations omitted). Consequently, this aspect of Plaintiff’s motion is also
denied.
For the various reasons just discussed, this aspect of Plaintiff’s motion is also
denied.

24
The ALJ Properly Evaluated the Opinion of Therapist Andrea Binner,
with whom Plaintiff began treating after the last-insured date

The Court now comes to the primary contention in Plaintiff’s motion, which is that
the ALJ didn’t properly evaluate the opinion of Andrea Binner, Ms Ed, LCSWR (“Binner”),
who did not treat Plaintiff during the relevant period, but who, approximately two years
after Plaintiff’s last-insured date, opined that Plaintiff was completely disabled.
Binner began treating Plaintiff on November 11, 2021, approximately two months
after Plaintiff’s last insured date. Tr. 829. Almost two years later, on August 31, 2023,
Binner completed a “Medical Source Statement of Ability to Do Work-Related Activities
(Mental)” form. Tr. 829-831. Binner checked boxes on the form indicating that Plaintiff
had “marked” limitations in “understanding and remembering complex instructions,”
“carrying out complex instructions,” “mak[ing] judgment[s] on complex work-related
decisions,” “interacting appropriately with the public,” “interacting appropriately with
supervisors,” and “responding appropriately to usual work situations and to changes in
routine work setting.” Tr. 829-830. Binner asserted, in that regard, that Plaintiff
“suffer[ed] from Bipolar I [disorder] w/ psychotic features, PTSD-chronic, ADHD combined
type, autism spectrum disorder [and] gender dysphoria.” Tr. 829. Regarding Plaintiff’s

purported marked inability to interact with supervisors, Binner stated that Plaintiff “has
difficulty accepting feedback from folks in positions of authority. This is related to the
trauma [Plaintiff] has sustained. [Plaintiff] needs to be in control.” Tr. 830.
Notably, Binner offered no opinion as to when those alleged limitations began. In
this regard, in the section below where Binner offered the aforementioned opinions, the

25
printed evaluation form stated, in pertinent part: “The limitations above are assumed to
be your opinion regarding current limitations only. However, if you have sufficient
information to form an opinion within a reasonable degree of medical or psychological
probability as to past limitations, on what date were the limitations you found above first

present?” Tr. 830. Binner left this answer blank, Id., and thus gave no retrospective
opinion concerning Plaintiff’s mental functioning abilities during the relevant period at
issue in this case.
In the ALJ’s explanation of his RFC finding, he noted several instances in which
the medical evidence amassed prior to the last-insured date did not support Plaintiff’s
claim of total disability. For example, the ALJ found that, in general, Plaintiff’s statements
about symptoms were inconsistent with the medical evidence from that period, stating,
“As for the claimant’s statements about the intensity persistence, and limiting effects of
[claimant’s] symptoms, they are inconsistent because they are not reported on a
consistent basis in the medical records from the alleged onset date of August 22, 2020

through the date last insured of September 30, 2021 to the extent that they would preclude
the sustained performance of light exertional, unskilled work with the accommodations
listed in this finding.” Tr. 25. More specifically, concerning Plaintiff’s statements about
physical pain, the ALJ stated that, “although the claimant has alleged disability in part due
to . . . chronic pain, [claimant’s] treatment notes consistently report that [claimant]
presented for treatment in no acute distress and had benign physical exams with no
deficits in strength or sensation during the period at issue.” Tr. 26. Further, the ALJ
observed that Plaintiff’s complaints of hallucinations were not “documented in [claimant’s]

26
medical records for the period at issue.” Tr. 26.
Similarly, the ALJ described Binner’s opinion concerning Plaintiff’s mental abilities
as having only “limited persuasiveness,” primarily since it was not supported by the
medical treatment records during the relevant period between the alleged onset date and

the last-insured date. In particular, the ALJ stated:
In reaching this conclusion, the undersigned has carefully considered the
opinion of Andrea Binner, MS Ed, LCSWR. Counselor Binner reported on a
form dated August 31, 2023 that she has been treating the claimant since
November 11, 2021, over one month after the period at issue and opined
that the claimant’s mental impairments result in marked limitations (Exhibit
17F). Counselor Binner opined in a narrative letter dated February 1, 2024
that the claimant is “unable to work” and that the counselor does not know
of a single job where a supervisor would tolerate their eruption of emotion
(Exhibit 22F). These assessments provide little insight into the claimant’s
functioning during the period at issue because Counselor Binner did not
treat the claimant during the period at issue and the assessments were
rendered over two years after the period at issue. Moreover, as discussed
above, such extreme limitations are inconsistent with the claimant’s
treatment record during the period at issue. As such, they have limited
persuasiveness. However, they are sufficient to support severe medically
determinable impairments characterization prior to the date last insured
given initiation of treatment only six weeks after the date last insured and
warranting work-related restrictions to minimize potential baseline symptom
exacerbation but not total work preclusion given recent ability to perform
SGA public oriented unskilled work.

Tr. 27.
Plaintiff contends that this discussion of Binner’s opinion was inadequate, requiring
remand. Plaintiff first contends that the ALJ failed to provide a sufficient explanation for
why he did not adopt Binner’s opinions, especially since “the treatment by Ms. Binner
commenced less than six weeks after the date last insured herein of September 30,

27
2021.” ECF No. 8 at p. 8. However, the Court disagrees and finds that the ALJ provided
a legally-sufficient explanation for not adopting Binner’s opinions. For example, the
ALJ’s observation that Binner’s opinion “provide[d] little insight into claimant’s functioning
during the period at issue” is clearly well supported, since Binner’s evaluation, written two

years after the last-insured date, did not indicate that the limitations referenced therein
existed during the relevant period. Similarly well-supported is the ALJ’s observation that
the “extreme limitations” in Binner’s opinion were “inconsistent with the claimant’s
treatment record during the period at issue.” Tr. 27. Consequently, the Court finds no
merit to this argument.
Plaintiff further contends that it was “arbitrary” of the ALJ to cite Binner’s opinion
as support for finding that Plaintiff’s mental impairments were severe, but not to include
the asserted limitations therein into the RFC finding. Id. However, this argument is also
meritless, considering that the showing required to satisfy the step-two standard for
severity is de minimis. See, McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (“[A]n

ALJ's decision is not necessarily internally inconsistent when an impairment found to be
severe is ultimately found not disabling: the standard for a finding of severity under Step
Two of the sequential analysis is de minimis and is intended only to screen out the very
weakest cases.”) (citation omitted). As such, the finding that Binner’s opinion supported
the step-two severity finding in no way implies that the ALJ was required to incorporate
the opinion’s limitations into the RFC finding, contrary to what Plaintiff argues. See, e.g.,
Bitterman v. Saul, No. 18-CV-01063 (JMA), 2020 WL 1083637, at *4 (E.D.N.Y. Mar. 6,
2020) (“Plaintiff claims that because ALJ Allen determined that his uncontrolled diabetes

28
mellitus with diabetic retinopathy was a “severe impairment” at step two, it was error not
to include any visual functional limitation in the RFC at step four. However, an ALJ's
decision is not necessarily internally inconsistent when an impairment found to be severe
is ultimately found not disabling: the standard for a finding of severity under Step Two of

the sequential analysis is de minimis and is intended only to screen out the very weakest
cases. There is thus no inherent error in an ALJ's determination simply because an ALJ
finds a plaintiff has a severe impairment, but does not assign corresponding functional
limitations.”) (citations and internal quotation marks omitted).
Plaintiff further contends that it was erroneous for the ALJ not to include functional
limitations from Binner’s opinion into the RFC finding, since he purportedly found Binner’s
opinion “persuasive.” ECF No. 8 at pp. 8-9. (Plaintiff admits that the ALJ never actually
indicated that he found Binner’s opinion persuasive, but nevertheless argues that the ALJ
must have found the opinion somewhat persuasive, since he cited it when finding that
Plaintiff’s mental impairments were severe.) Alternatively, Plaintiff implies that the ALJ

“cherry picked” from Binner’s opinion to find that Plaintiff’s impairments were severe, but
otherwise rejected the opinion when making the RFC finding.12 However, these
arguments are just slight variations of Plaintiff’s prior argument, and are also meritless,
since they rely on the same logical fallacy as that argument.
Finally, as part of this same argument, Plaintiff contends that the ALJ erred in his
decision by misinterpreting the evidence , inasmuch as he “appeared to give great weight

12 See, Pl. Memo of Law, ECF No. 8 at p. 11 (“The ALJ selectively relied on the opinions of [Binner] for
the purpose of deeming impairments severe . . . while excluding the parts of those opinions that would
support a finding of disability.”).

29
in his decision-making to the fact that the Claimant had previously worked full-time as a
barista,” when “it is clear from the record . . . that the work was never more than part-
time.” ECF No. 8 at p. 12. However, Plaintiff fails to support that bald assertion with a
citation to any such statement by the ALJ, whose decision actually shows just the
opposite. For example, the decision expressly found that Plaintiff's work as a barista did
not amount to Substantial Gainful Activity Tr. 21,'% and, referring to that same job,
indicated that Plaintiff had “sustained part time work that required almost constant
interaction with the public.” Tr. 23 (emphasis added).'* Consequently, this argument
also lacks merit.
CONCLUSION
For the reasons discussed above, Plaintiff's motion (ECF No. 8) for judgment on
the pleadings is denied, Defendant’s cross-motion (ECF No.12) for the same relief is
granted, and this action is dismissed. The Clerk of the Court is directed to enter
judgment for Defendant and close this action.
So Ordered.
Dated: Rochester, New York
March 10, 2026 ENTER:
Chaka caste
CHARLES J. SIRAGU
United States Districtdudge

13 See, ALJ’s Decision, Tr. 21 (“The claimant’s summary and detailed earnings records document that
[claimant] earned $1,002.40 in 2020 and $255.84 in 2021 while working at Public Espresso & Coffee.
These earnings do not qualify as substantial gainful employment as defined by the regulations.”) (citation
The decision also made several other references to Plaintiff having sustained such work on a part-time
basis after the alleged onset date, Tr. 23, 24, 26.
30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11273682. Public record. Not legal advice.