Scott

AUG -7 2026

WESTERN DISTRICT OF NEW YORK ey)

TONYA S., 25-CV-00072-MJR

DECISION AND ORDER

Plaintiff,

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COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States

Magistrate Judge conduct all proceedings in this case.

Plaintiff Tonya S.' (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g)

and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social

Security (“Commissioner’ or “defendant”) denying her applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the

Social Security Act (the “Act”). Both parties have moved for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons,

Plaintiffs motion (Dkt. No. 9) is granted, and defendant’s motion (Dkt. No. 19) is denied.

‘Sly aeeordane- with the Distiiets November 18, 2020, Standing Order, plaintiff is identified by

first name and last initial.

BACKGROUND?

Plaintiff filed applications for DIB and SSI on September 5, 2014, alleging disability

beginning January 1, 2008. (Administrative Transcript [“Tr.”] 16, 211-20). Her applications

were denied at the initial, hearing, and Appeals Council (“AC”) levels. (Tr. 1, 16). Plaintiff

then appealed to this Court, which resuifed in a remand on July 15, 2018. (Tr. 1202-20).

Upon remand, on April 15, 2021, another administrative hearing was held, after

which Plaintiff's applications were denied again. (Tr. 1031-1125). Plaintiff appealed again

to this Court, which resulted in a stipulation for remand on September 1, 2022. (Tr. 2558-

60).

Upon the second remand, a further administrative hearing was held on November

14, 2023, April 23, 2024, and August 20, 2024. (Tr. 2391-2514). Plaintiff appeared at the

hearing, with counsel. A vocational expert (“VE”) also testified. Plaintiff's applications

were once again denied, on September 27, 2024. (Tr. 2339-88). This third appeal to this

Court followed.

DISCUSSION

I. Scope of Judicial Review

The Court’s review of the Commissioner's decision is deferential. Under the Act,

the Commissioner’s factual determinations “shall be conclusive” so long as they are

“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such

relevant evidence as a reasonable mind might accept as adequate to support [the]

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

? The Court presumes the parties’ familiarity with Plaintiff's medical history, which is summarized

in the moving papers.

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and citation omitted). “The substantial evidence test applies not only to findings on basic

evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.

Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s decision

rests on adequate findings supported by evidence having rational probative force,” the

Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,

312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,

read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574

(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

Two related rules follow from the Act’s standard of review. The first is that “[iJt is

the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to

appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &

Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine

conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d

at 588. While the applicable standard of review is deferential, this does not mean that the

Commissioner’s decision is presumptively correct. The Commissioner's decision is, as

described above, subject to remand or reversal if the factual conclusions on which it is

based are not supported by substantial evidence. Further, the Commissioner’s factual

conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. /d.

II. Standards for Determining “Disability” Under the Act

A “disability” is an inability “to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to

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result in death or which has lasted or can be expected to last for a continuous period of

not less than twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A). The

Commissioner may find the claimant disabled “only if his physical or mental impairment

or impairments are of such severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage in any other kind

of substantial gainful work which exists in the national economy, regardless of whether

such work exists in the immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.” Id. §§423(d)(2)(A),

1382c(a)(3)(B). The Commissioner must make these determinations based on “objective

medical facts, diagnoses or medical opinions based on these facts, subjective evidence

of pain or disability, and . . . [the claimant's] educational background, age, and work

experience.” Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in

original) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)).

To guide the assessment of whether a claimant is disabled, the Commissioner has

promulgated a “five-step sequential evaluation process.” 20 C.F.R. §§404.1520(a)(4),

416.920(a)(4). First, the Commissioner determines whether the claimant is “working” and

whether that work “is substantial gainful activity.” /d. §§404.1520(b), 416.920(b). If the

claimant is engaged in substantial gainful activity, the claimant is “not disabled regardless

of [his or her] medical condition or . . . age, education, and work experience.” /d.

§§404.1520(b), 416.920(b). Second, if the claimant is not engaged in substantial gainful

activity, the Commissioner asks whether the claimant has a “severe impairment.” /d.

§§404.1520(c), 416.920(c). To make this determination, the Commissioner asks whether

the claimant has “any impairment or combination of impairments which significantly limits

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[the claimant’s] physical or mental ability to do basic work activities.” /d. §§404.1520(c),

416.920(c). As with the first step, if the claimant does not have a severe impairment, he

or she is not disabled regardless of any other factors or considerations. □□□□

§§404.1520(c), 416.920(c). Third, if the claimant does have a severe impairment, the

Commissioner asks two additional questions: first, whether that severe impairment meets

the Act’s duration requirement, and second, whether the severe impairment is either listed

in Appendix 1 of the Commissioner's regulations or is “equal to” an impairment listed in

Appendix 1. /d. §§404.1520(d), 416.920(d). If the claimant satisfies both requirements

of step three, the Commissioner will find that he or she is disabled without regard to his

or her age, education, and work experience. /d. §§404.1520(d), 416.920(d).

If the claimant does not have the severe impairment required by step three, the

Commissioner's analysis proceeds to steps four and five. Before doing so, the

Commissioner must “assess and make a finding about [the claimant's] RFC based on all

the relevant medical and other evidence” in the record. /d. §§404.1520(e), 416.920(e).

RFC “is the most [the claimant] can still do despite [his or her] limitations.” □□□□

§§404.1545(a)(1), 416.945(a)(1). The Commissioner's assessment of the claimant’s

RFC is then applied at steps four and five. At step four, the Commissioner “compare[s]

[the] residual functional capacity assessment . . . with the physical and mental demands

of [the claimant’s] past relevant work.” /d. §§404.1520(f), 416.920(f). If, based on that

comparison, the claimant is able to perform his or her past relevant work, the

Commissioner will find that the claimant is not disabled within the meaning of the Act. /d.

§§404.1520(f), 416.920(f). Finally, if the claimant cannot perform his or her past relevant

work or does not have any past relevant work, then at the fifth step the Commissioner

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considers whether, based on the claimant’s RFC, age, education, and work experience,

the claimant “can make an adjustment to other work.” /d. §§404.1520(g)(1),

416.920(g)(1). If the claimant can adjust to other work, he or she is not disabled. /d.

§§404.1520(g)(1), 416.920(g)(1). If, however, the claimant cannot adjust to other work,

he or she is disabled within the meaning of the Act. /d. §§404.1520(g)(1), 416.920(g)(1).

The burden through steps one through four described above rests on the claimant.

If the claimant carries his burden through the first four steps, “the burden then shifts to

the [Commissioner] to show there is other gainful work in the national economy which the

claimant could perform.” Carroll, 705 F.2d at 642.

lil. The ALJ’s Decision

At step one of the sequential evaluation, the Administrative Law Judge (“ALJ”)

determined that Plaintiff had not engaged in substantial gainful activity during the relevant

period except for the first quarter of 2019, third quarter of 2019, third quarter of 2022, and

first quarter of 2024. (Tr. 2345). At step two, the ALJ found that Plaintiff had the following

severe impairments: migraine headaches; fibromyalgia; Raynaud’s disease; lumbar

degenerative disc disease; anxiety disorder; depressive disorder; later onset bilateral

knee arthritis, status 2020 left knee arthroscopy; and later onset bilateral hip bursitis. (Tr.

2345-47). At the third step, the ALJ concluded that none of Plaintiff's impairments met or

medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Tr. 2347-51).

After step three, but before step four, the ALJ concluded that Plaintiff had the RFC

to perform a range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and

416.967(a), with additional nonexertional and mental limitations, including “no overhead

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reaching bilaterally.” (Tr. 2351-52). At step four, the ALJ determined that Plaintiff had no

past relevant work. (Tr. 2376). At step five, the ALJ found that there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform. (Tr. 2376-77).

Accordingly, the ALJ determined that Plaintiff is not disabled within the meaning of the

Act. (Tr. 2377).

IV. Plaintiff's Challenge

Plaintiff first argues that the case must be remanded, because the ALJ erred at

step five by failing to reconcile adequately the conflicts between the Dictionary of

Occupational Titles (“DOT”) and the VE’s testimony. The Court agrees.

In his RFC finding, the ALJ found that Plaintiff can perform “no overhead reaching

bilaterally.” (Tr. 2352). However, all the jobs identified by the VE and cited by the ALJ at

step five required frequent reaching. See Preparer, DICOT 700.687-062, 1991 WL

678937; 1991 WL 679616; Touch-up Screener, Printed Circuit Board Assembly, DICOT

726.684-110; Order Clerk, Food and Beverage, DICOT 209.567-014, 1991 WL 671794.

The Second Circuit has held that the term “reaching” as used in the Social Security

regulations includes overhead reaching. Lockwood v. Comm’r of Soc. Sec., 914 F.3d 87,

92 (2d. Cir. 2019) (quoting SSR 85-15). Thus, there is an apparent conflict between the

VE’s testimony and the DOT.

An ALJ may rely on vocational expert testimony, but it “generally should be

consistent” with the DOT. SSR 00-4P. When the two are in conflict, an ALJ must “elicit a

reasonable explanation for the conflict” before relying on that testimony. /d.; see Stover

v. Comm'r of Soc. Sec., No. 17-CV-1029-FPG, 2018 WL 5262463, at *3 (W.D.N.Y. Oct.

23, 2018) (“This Ruling places ‘an affirmative duty on the ALJ to identify and resolve any

conflict between the [VE]’s testimony and the DOT before relying on such testimony.’”).

The ALJ has an affirmative duty that “is not fulfilled simply by taking the [vocational

expert] at his word that his [or her] testimony comports with the [DOT] when the record

reveals an apparent conflict.” Lockwood, 914 F.3d at 93-94 (quoting Washington v.

Comm’r of Soc. Sec., 906 F.3d 1353, 1366 (11th Cir. 2018)). The ALJ has “an

independent, affirmative obligation” to “undertake a meaningful investigatory effort to

uncover apparent conflicts, beyond merely asking the [VE] if there is one.” /d. Thus,

“failure to reconcile” means the VE’s testimony cannot stand as substantial evidence.

Here, at the hearing, the ALJ asked if the testimony was consistent with the DOT,

and the VE replied that it was, except for several factors. (Tr. 2457), including overhead

reaching, which the VE stated was, “implied.” (Tr. 2457). The ALJ then stated that “an

example of that implication would be someone who worked as a craftsman, a drywall

hanger, an electrician, a plumber. Although the DOT doesn’t specifically talk about

overhead reaching, it certainly is implied with regards to those occupations[.]” (Tr. 2457).

It is unclear to the Court how this testimony adequately addressed the

inconsistency. The ALJ asked the VE if there were any inconsistencies between his

testimony in this case and the DOT, and the VE then went on to talk about other jobs that

required overhead reaching. (Tr. 2457). He did not make clear what it means for overhead

reaching to be “implied.” In any event, the VE only discussed other jobs. (Tr. 2457). As

far as the Court can discern, whether an individual needs to reach overhead to be a

drywall hanger or a plumber is not relevant to being a touch-up screener, order clerk, or

bench hand. To adequately address such an inconsistency, the ALJ must elicit from the

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VE testimony as to “how the job can be done by someone with the claimant's limitations.”

Roderick R. v. Comm'r of Soc. Sec., No. 1:21-C\V-00577-TPK, 2023 WL 3642035, at *7

(W.D.N.Y. May 25, 2023); See Rachel F. v. Comm'r of Soc. Sec., No. 1:21-CV-00324

CJS, 2023 WL 2595007, at *8 (W.D.N.Y. Mar. 22, 2023) (remanding where “VE offered

no information about the reaching requirements of the identified jobs as they are actually

performed, nor did she delve into the DOTs narrative descriptions to identify some

difference between overhead reaching and other types of reaching”); Lance P. v. Comm'r

of Soc. Sec., No. 21-CV-06123-FPG, 2023 WL 2573321, at *4 (W.D.N.Y. Mar. 20, 2023)

(holding it was not enough for ALJ to accept VE testimony that he or she “relied upon my

profession knowledge and observations, information obtained ... providing vocational

rehabilitation services”).

Here, neither the ALJ nor the VE addressed what overhead reaching was required

for these jobs and whether the Plaintiff in this case, who could perform no overhead

reaching, could do these jobs. The ALu’s failure to adequately resolve the inconsistency

was error, especially because at step five, the burden shifts to the ALJ. See Nobile v.

Comm'r of Soc. Sec., No. 16-GV-0871, 2017 WL 3054846, at *7 (N.D.N.Y. July 19, 2017)

(“Because these conflicts do raise serious questions that are unresolvable based on the

current record as to whether the vocational expert's testimony constitutes substantial

evidence to support the ALJ's conclusions, remand for further exploration and explanation

related to these issues is warranted, particularly as these conflicts appear to invalidate

the Step Four finding, and the burden then shifts to the ALJ at Step Five.”). As such,

remand is required.

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The ALJ also erred in this case by giving substantial weight to the opinion of the

medical expert, Dr. Heather Berens, M.D. Ph.D., but then failing to explain why he

rejected that part of Dr. Berens’ opinion stating that Plaintiff would be off task 10% to 20%

of the workday. In giving Dr. Berens’ opinion substantial weight, the ALJ needed to either

include the off-task limitation in the RFC or explain why he was rejecting it. Instead, he

ignored it, without explanation.

Generally, an ALJ must “reconcile discrepancies between her RFC assessment

and medical source statements.” Dioguardi v. Comm'r of Soc. Sec., 445 F. Supp. 2d 288,

297 (W.D.N.Y. 2006). When the RFC conflicts with a medical opinion, an ALJ must

“explain why the opinion was not adopted.” /d. While an “ALJ is not obligated to ‘reconcile

explicitly every conflicting shred of medical testimony,’ he cannot simply selectively

choose evidence in the record that supports his conclusions.” /d.; see Caternolo v. Astrue,

No. 6:11-CV-6601 MAT, 2013 WL 1819264, at *9 (W.D.N.Y. Apr. 29, 2013) (“It is a

fundamental tenet of Social Security law that an ALJ cannot pick and choose only parts

of a medical opinion that support his determination.”) (internal quotations omitted). “Thus,

when an ALJ adopts only portions of a medical opinion, he must explain why he rejected

the remaining portions.” Dotson v. Berryhill, No. 17-C\V-129-FPG, 2018 WL 3064195, at

*3 (W.D.N.Y. June 21, 2018) (remanding when ALJ accepted a portion of a medical

source statement, but ignored the specific limitations); see Renee M. B. v. Comm'r of Soc.

Sec., No.1:19-CV-00922 (JJM), 2021 WL 716704, at *7 (W.D.N.Y. Feb. 24, 2021)

(remanding where the ALJ “appeared to incorporate some ... imitations and their severity,

but not others, into the RFC, with no explanation” and “her failure to explain her reasoning

was a legal error”). Failure to provide an explanation requires remand. See Valerie R. v.

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Comm'r of Soc. Sec., No. 1:19-CV-00410 EAW, 2021 WL 671597, at *4 (W.D.N.Y. Feb.

22, 2021) (“The ALJ provided no explanation whatsoever of his thought processes, and

it would be improper for the Court to speculate as to the basis for his conclusions. ...

Remand for further proceedings is thus required.”).

CONCLUSION

For the above reasons, Plaintiff's motion for judgment on the pleadings (Dkt. No.

9) is granted and defendant’s motion for judgment on the pleadings (Dkt. No.19) is denied.

The case is remanded for further administrative proceedings. The Clerk of Court shall

take all steps necessary to close the case.

SO ORDERED.

Dated: August 7, 2026

Buffalo, New York

MICHAEL J. ROBMER

United States Magistrate Judge

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