Barone v. Kijakazi
DECISION AND ORDER denying 22 Motion for Judgment on the Pleadings; granting 26 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's Motion for Judgment on the Pleadings (Docket No. 22) is DENIED; the Commissione r's Motion for Judgment on the Pleadings (Docket No. 26) is GRANTED; and this case is DISMISSED. The Clerk is directed to enter final judgment in favor of the Commissioner and then close the file.. (Signed by Magistrate Judge Gary R. Jones on 11/13/2023) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
----------------------------------------------------GARY R. JONES, United States Magistrate Judge:
In October of 2019, Plaintiff Dominique B. 1 applied for Supplemental
Security Income Benefits under the Social Security Act. The Commissioner
of Social Security denied the application. Plaintiff, represented by
Gonzalez & Goetz, David B. Goetz, Esq., of counsel, and Bruno, Gerbino,&
Soriano, LLP, Vincent Frank Gerbino, Esq., of counsel, commenced this
action seeking judicial review of the Commissioner’s denial of benefits
under 42 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to the
jurisdiction of a United States Magistrate Judge. (Docket No. 25).
This case was referred to the undersigned on November 8, 2022.
Presently pending are the parties’ Motions for Judgment on the Pleadings
Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United States.
under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket Nos. 22,
26). For the following reasons, Plaintiff’s motion is due to be denied, the
Commissioner’s motion is due to be granted, and this case is dismissed.
Plaintiff applied for benefits on October 7, 2019, alleging disability
beginning January 1, 2009. (T at 244-50). 2 Plaintiff’s application was
denied initially and on reconsideration. She requested a hearing before an
Administrative Law Judge (“ALJ”).
A hearing was held on February 12, 2021, before ALJ Sharda Singh.
(T at 65-90). Plaintiff appeared with an attorney and testified. (T at 71-85).
The ALJ received testimony from Dr. Jewel Euto, a vocational expert. (T at
86-89). A second hearing was held on August 13, 2021. (T at 91-113).
Plaintiff appeared with her attorney. (T at 91). The ALJ received testimony
from Yaakov Taitz, a vocational expert (T at 109-111), and Dr.
Chukwuemeka Efobi, a medical expert. (T at 97-106, 108).
On November 8, 2021, the ALJ issued a decision denying the
application for benefits. (T at 13-33). The ALJ found that Plaintiff had not
Citations to “T” refer to the administrative record transcript at Docket No. 17.
engaged in substantial gainful activity since October 7, 2019, the date she
applied for benefits. (T at 18). The ALJ concluded that Plaintiff’s bipolar
disorder, anxiety disorder, and attention deficit hyperactivity disorder were
severe impairments as defined under the Social Security Act. (T at 19).
However, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 19).
At step four of the sequential analysis the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform a full
range of work at all exertional levels, with the following non-exertional
limitations: she can perform simple, routine, repetitive tasks, in a work
setting that requires no more than occasional contact with supervisors, coworkers, and the public. (T at 21).
The ALJ found that Plaintiff had no past relevant work. (T at 26).
Considering Plaintiff’s age (59 on the application date), education (at
least high school), work experience (no past relevant work), and RFC, the
ALJ determined that there were jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (T at 26). Therefore, the ALJ
found that Plaintiff had not been under a disability, as defined under the
Social Security Act, and was not entitled to benefits for the period between
October 7, 2019 (the application date) and November 8, 2021 (the date of
the ALJ’s decision). (T at 27-28). On July 7, 2022, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the
Commissioner’s final decision. (T at 1-7).
Plaintiff commenced this action, by and through her counsel, by filing
a Complaint on August 22, 2022. (Docket No. 1). On February 9, 2023,
Plaintiff filed a motion for judgment on the pleadings, supported by a
memorandum of law. (Docket No. 22). The Commissioner interposed a
cross-motion for judgment on the pleadings, supported by a memorandum
of law, on April 7, 2023. (Docket Nos. 26, 27). On April 21, 2023, Plaintiff
submitted a reply memorandum of law in further support of her motion.
(Docket No. 28).
II. APPLICABLE LAW
Standard of Review
“It is not the function of a reviewing court to decide de novo whether a
claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
The court’s review is limited to “determin[ing] whether there is substantial
evidence supporting the Commissioner's decision and whether the
Commissioner applied the correct legal standard.” Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings,
which are considered conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla”
and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec.,
562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by
substantial evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145,
151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has
applied an improper legal standard,” or when the ALJ’s rationale is unclear,
remand “for further development of the evidence” or for an explanation of
the ALJ’s reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she
lacks the ability “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months ....” 42 U.S.C. §
A claimant’s eligibility for disability benefits is evaluated pursuant to a
five-step sequential analysis:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has
a “severe impairment” which limits his or her mental or physical
ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner
must ask whether, based solely on medical evidence, claimant
has an impairment listed in Appendix 1 of the regulations. If the
claimant has one of these enumerated impairments, the
Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and
4. If the impairment is not “listed” in the regulations, the
Commissioner then asks whether, despite the claimant's severe
impairment, he or she has residual functional capacity to
perform his or her past work.
5. If the claimant is unable to perform his or her past work, the
Commissioner then determines whether there is other work
which the claimant could perform.
See Rolon v. Commissioner of Soc. Sec., 994 F. Supp. 2d 496, 503
(S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),
The claimant bears the burden of proof as to the first four steps; the
burden shifts to the Commissioner at step five. See Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner
determines whether claimant can perform work that exists in significant
numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101,
103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
Plaintiff raises two primary arguments in support of her request for
reversal of the ALJ’s decision. First, Plaintiff argues that the ALJ’s
assessment of the medical opinion evidence was flawed, which
undermines the RFC determination. Second, she challenges the ALJ’s
step five analysis. This Court will address both arguments in turn.
Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical
opinion in determining whether a claimant is disabled under the [Social
Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013
WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§
404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated
new regulations regarding the consideration of medical opinion evidence.
The revised regulations apply to claims filed on or after March 27, 2017.
See 20 C.F.R. § 404.1520c. Because Plaintiff applied for benefits after that
date, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical
opinions,” but rather considers all medical opinions and “evaluate[s] their
persuasiveness” based on supportability, consistency, relationship with the
claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a),
(b)(2). The ALJ is required to “articulate how [he or she] considered the
medical opinions” and state “how persuasive” he or she finds each opinion,
with a specific explanation provided as to the consistency and
supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent
with evidence from other medical sources and non-medical sources.” Dany
Z. v. Saul, 531 F. Supp. 3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. §
416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence
from other medical sources and nonmedical sources,” the “more
persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is
supported by relevant objective medical evidence and the medical source’s
supporting explanations.” Dany Z, 531 F. Supp. 3d at 881. “The more
relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s)
or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §
404.1520 (c)(1), 416.920c(c)(1).
In January of 2021, Dr. Vander Rathore, Plaintiff’s treating
psychiatrist since June of 2019, completed a medical assessment of ability
to do work-related activities (mental) form.
Dr. Rathore opined that Plaintiff had poor or no ability to relate to coworkers, deal with the public, deal with work stress, or maintain attention
and concentration. (T at 1018). He also assessed poor to no capacity with
respect to Plaintiff’s ability to understand, remember, and carry out complex
or detailed job instructions. (T at 1019).
Dr. Rathore rated Plaintiff’s ability to understand, remember, and
carry out simple job instructions as fair, assessed no limitation in her ability
to follow work rules, and opined that she retained good skills with respect to
interacting with a supervisor and functioning independently. (T at 10181019). He further opined that Plaintiff had poor to no ability to relate
predictably in social situations, good capacity for maintaining personal
appearance and behaving in an emotionally stable manner, and fair ability
to demonstrate reliability. (T at 1019).
In August of 2021, Dr. Rathore submitted a follow-up letter, in which
he explained that Plaintiff’s prognosis was poor and opined that she could
not maintain concentration in a work setting due to high anxiety, bipolar
disorder, and ADHD. (T at 1044).
Dr. Konstantinos Tsoubris performed a consultative psychiatric
evaluation in March of 2020. He diagnosed bipolar I disorder, unspecified
anxiety disorder, panic disorder, post-traumatic stress disorder, and
substance use disorder. (T at 894). Dr. Tsoubris assessed mild limitation in
Plaintiff’s ability to understand, remember, or apply simple or complex
directions and instructions; marked impairment as to interacting adequately
with supervisors, co-workers, and the public; no limitation in sustaining
concentration and consistently performing a task; marked impairment in
sustaining an ordinary routine and regular attendance; and marked
limitation in regulating emotions, controlling behavior, and maintaining well10
being. (T at 893-84). Dr. Tsoubris characterized Plaintiff’s prognosis as
poor. (T at 894).
Dr. Tsoubris performed a second consultative psychiatric evaluation
in October of 2020. He diagnosed bipolar 1 disorder, unspecified anxiety
disorder with panic attacks, and opiate use and stimulant disorders, in
remission and characterized Plaintiff’s prognosis as guarded. (T at 944).
Dr. Tsoubris assessed mild limitation in Plaintiff’s ability to
understand, remember, or apply simple directions and instructions; marked
limitation as to understanding, remembering, or applying complex
directions and instructions; marked impairment as to using reason and
judgment to make work-related decisions; marked impairment in interacting
adequately with supervisors, co-workers, and the public; marked limitation
in sustaining concentration and consistently performing a task; marked
impairment in sustaining an ordinary routine and regular attendance; and
marked limitation in regulating emotions, controlling behavior, and
maintaining well-being. (T at 944).
The ALJ found the opinions of Dr. Tsoubris and Dr. Rathore partially
persuasive. (T at 25-26). In sum, the ALJ accepted that Plaintiff had
moderate limitations with respect to social interaction and maintaining
concentration, persistence, and pace, but found unpersuasive the treating
and examining doctors’ assessment of marked impairment. (T at 20, 2526).
For the following reasons, the Court finds the ALJ’s decision
supported by substantial evidence and consistent with applicable law.
First, the ALJ’s decision is supported by other medical opinion
evidence. Dr. Hoffman, a non-examining State Agency review physician,
assessed mild limitation in Plaintiff’s ability to understand, remember, or
apply information; moderate impairment as to interacting with others;
moderate limitation with respect to concentration, persistence, and pace;
and moderate impairment in adapting and managing herself. (T at 120).
Dr. Hoffman opined that Plaintiff could meet the basic demands of
competitive, remunerative, unskilled work, including the ability to
understand, remember, and carry out simple instructions; respond
appropriately to supervision, co-workers, and usual work situations; and
deal with changes in a routine work environment. (T at 124).
Dr. Bruni, another State Agency review physician, opined that Plaintiff
had mild limitation in her ability to understand, remember, or apply
information; moderate impairment as to interacting with others; moderate
limitation with respect to concentration, persistence, and pace; and
moderate impairment in adapting and managing herself. (T at 137).
Although Dr. Bruni indicated marked limitation in Plaintiff’s ability to
understand and remember detailed instructions, Dr. Bruni explained in the
narrative portion of the assessment that Plaintiff retained the ability to
understand simple, and some detailed, instructions. (T at 137, 142).
Dr. Chukwuemeka Efobi reviewed the record and testified as a
medical expert at the second administrative hearing, during which he was
cross-examined by Plaintiff’s counsel. Dr. Efobi recognized the following
diagnoses: unspecified bipolar mood disorder (due to substance abuse);
unspecified anxiety disorder (rule out substance induced anxiety);
generalized anxiety and panic; rule-out post-traumatic stress disorder; and
substance abuse disorder (in remission). (T at 98).
Dr. Efobi opined that Plaintiff had no more than moderate limitation in
any area of mental functioning but would perform best with simple tasks
involving no more than occasional interaction with others. (T at 101). He
found the treatment record inconsistent with the medical opinions
assessing marked impairment in Plaintiff’s ability to maintain concentration
and regulate her emotions. (T at 101-106).
These opinions, which are consistent with a reasonable reading of
the record (as discussed further below), provide support for the ALJ’s
decision to discount the more restrictive limitations assessed by Dr.
Tsoubris and Dr. Rathore. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d
Cir. 1995)(noting that “opinions of nonexamining sources [may] override
treating sources’ opinions provided they are supported by evidence in the
record”)(citing Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)); see also
Botta v. Colvin, 669 F. App’x 583, 584 (2d Cir. 2016); Distefano v. Berryhill,
363 F. Supp. 3d 453, 474 (S.D.N.Y. 2019)(“‘[S]tate agency physicians are
qualified as experts in the evaluation of medical issues in disability claims,’
and as such, ‘their opinions may constitute substantial evidence if they are
consistent with the record as a whole.’”)(quoting Leach ex rel. Murray v.
Barnhart, 02 Civ. 3561, 2004 U.S. Dist. LEXIS 668, at *26 (S.D.N.Y. Jan.
Second, the ALJ reasonably read the treatment record as
inconsistent with the very restrictive assessments provided by Dr. Tsoubris
and Dr. Rathore, and more consistent with the less restrictive findings of
Dr. Hoffman, Dr. Bruni, and Dr. Efobi.
Treatment notes show that Plaintiff experienced improved focus and
concentration with medication for ADHD. (T at 22-23, 819, 823, 829, 840,
858, 864, 876, 906, 923, 946, 962, 1025, 1036). Although Plaintiff reported
psychiatric symptoms characteristic of her diagnoses, mental status
examinations generally documented unremarkable findings, with Plaintiff
presenting as cooperative, oriented, and stable. (T at 23, 841, 846, 849,
852, 855, 859, 861, 865, 870, 877, 879, 883, 885, 888, 899, 903, 907, 910,
917, 920, 924, 930, 932, 936, 938, 947, 957, 963, 969, 1026, 1035, 1040).
While ALJs must be careful not to overestimate the significance of a
claimant’s ability to be cooperative and appropriate during brief visits with
supportive medical providers, such evidence can support a decision to
discount marked or extreme limitations. See, e.g., Knief v. Comm'r of Soc.
Sec., No. 20 Civ. 6242 (PED), 2021 WL 5449728, at *1–2, 8–9 (S.D.N.Y.
Nov. 22, 2021) (affirming ALJ decision based on treatment records and
mental status examinations that claimant had “meaningful, but not
profound, mental restrictions” with chronic anxiety and mood disturbances,
adequately treated with regular psychiatric appointments and psychiatric
medications); Burchette v. Comm'r of Soc. Sec., No. 19 CIV. 5402 (PED),
2020 WL 5658878, at *10 (S.D.N.Y. Sept. 23, 2020)(“In sum, Dr. Phillips’
opinion, combined with largely unremarkable mental status examination
findings in the treatment record and plaintiff's ADLs, provide substantial
evidence for the ALJ's RFC determination.”).
In addition, the ALJ relied on evidence that Plaintiff engaged in
activities inconsistent with the more extreme assessments of limitation. In
particular, Plaintiff stated that she was “busy running” a vintage antique
shop with her mother during the time period in question. (T at 23, 849, 923,
926, 968, 1034).
The ALJ could not determine whether Plaintiff’s participation in the
operation of a small business constituted substantial gainful activity and
assumed for purposes of the decision that the work did not rise to that level
(T at 18).
The ALJ, however, could nevertheless rely on Plaintiff’s performance
of this work as a basis for discounting the more restrictive assessments of
her abilities. See 20 C.F.R. §§ 404.1571, 416.971; Rivers v. Astrue, 280
F.App'x 20, 23 (2d Cir. May 28, 2008); Justin B. v. Comm'r of Soc. Sec.,
No. 20-CV-01810-MJR, 2022 WL 17592399, at *8 (W.D.N.Y. Dec. 13,
The ALJ also noted that Plaintiff’s activities of daily living included
cooking, driving, watching television, knitting, and shopping. (T at 23, 7885, 378-82, 406-14, 893, 943).
While ALJs must not overinterpret a claimant’s ability to perform
limited activities of daily living, an ALJ may discount an assessment of
marked impairment where, as here, the claimant’s activities are arguably
not consistent with that level of impairment. See Santana v. Saul, No. 18
CIV. 10870 (PED), 2019 WL 6119011, at *8 (S.D.N.Y. Nov. 18, 2019)
(collecting cases recognizing ALJ’s ability to discount assessment as
inconsistent with claimant’s activities); see also Dorta v. Saul, No.
19CV2215JGKRWL, 2020 WL 6269833, at *6 (S.D.N.Y. Oct. 26, 2020).
Lastly, the ALJ did not disregard the evidence of limitation in
Plaintiff’s mental functioning but instead limited her to work requiring no
more than simple, routine, repetitive tasks, with only occasional contact
with supervisors, co-workers, and the public. (T at 21). See McIntyre v.
Colvin, 758 F.3d 146, 150-51 (2d Cir. 2014)(finding that ALJ appropriately
accounted for moderate work-related psychiatric limitations by limiting the
claimant to unskilled, low stress work involving limited contract with others);
see also Platt v. Comm'r of Soc. Sec., 588 F. Supp. 3d 412, 422 (S.D.N.Y.
2022)(collecting cases); Walters v. Saul, No. CV 19-3232 (AYS), 2021 WL
4861521, at *11 (E.D.N.Y. Oct. 19, 2021); Jacqueline L. v. Comm'r of Soc.
Sec., 515 F. Supp. 3d 2, 12 (W.D.N.Y. 2021).
Plaintiff offers an alternative reading of the record and a different
weighing of the competing medical opinions. However, for the reasons
discussed above, the Court concludes that the ALJ’s decision is supported
by substantial evidence and, therefore, must be sustained under the
deferential standard of review applicable here. See DuBois v. Comm'r of
Soc. Sec., No. 20-CV-8422 (BCM), 2022 WL 845751, at *8 (S.D.N.Y. Mar.
21, 2022)(“To be sure, there is some evidence in the record that would
support the conclusion that plaintiff had greater limitations than those the
ALJ built into her RFC. But that is not the test.”); Brault v. SSA, 683 F.3d
443, 448 (2d Cir. 2012) (per curiam)(“The substantial evidence standard
means once an ALJ finds facts, [a court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.”)(emphasis in
original) (citation and internal quotation marks omitted).
Step Five Analysis
At step five of the sequential analysis, the Commissioner determines
whether claimant can perform work that exists in significant numbers in the
national economy. The Commissioner bears the burden of proof at this
step. See Butts, 416 F.3d at 103; 20 C.F.R. § 404.1560(c)(2).
In the present case, the ALJ found that there were jobs that exist in
significant numbers in the national economy that Plaintiff can perform. (T at
26-27). In reaching this conclusion, the ALJ relied on the opinions of two
vocational experts. The first testified that a hypothetical claimant with a
somewhat more restrictive RFC than Plaintiff could perform the
representative occupations of laundry checker, warehouse stubber, and
cutter II fabrication. (T at 27, 87-88). The second vocational expert opined
that a hypothetical claimant with the same RFC as Plaintiff could perform
the representative occupations of hand packager, cleaner industrial, and
price marker. (T at 27, 110-111).
Plaintiff challenges the ALJ’s step five findings, arguing that the ALJ
failed to resolve an apparent conflict between the vocational experts’
testimony and the Dictionary of Occupational Titles (“DOT”).
The Social Security Administration has taken administrative notice of
the DOT, which is published by the Department of Labor and provides
detailed descriptions of the requirements for a variety of jobs. See 20 CFR
§ 416.966 (d)(1).
Social Security Ruling 00-4p provides that when a vocational expert
testifies regarding job requirements, the ALJ has “an affirmative
responsibility to ask about any possible conflict between that [testimony]
and information provided in the DOT ….” SSR 00-4p.
If there appears to be a conflict between the DOT and the vocational
expert’s testimony, the DOT is “so valued” that the ALJ is obliged to obtain
a “reasonable explanation” for the conflict. Brault, 683 F.3d at 446(citing
SSR 004-p); see also Lockwood v. Comm'r of SSA, 914 F.3d 87, 91 (2d
Plaintiff argues that the DOT descriptions for five of the six
representative occupations relied upon by the ALJ require the ability to
carry out detailed instructions. According to Plaintiff this presents an
unresolved conflict between the vocational experts’ testimony and the DOT.
The Court disagrees for the following reasons.
First, the DOT descriptions evidence that the jobs in question require
commonsense understanding sufficient to carry out detailed, but
uninvolved, written or oral instructions. Courts in this Circuit have generally
concluded that claimants limited to simple, routine tasks are not precluded
from performing such jobs. See Laboriel v. Saul, No. 18-CV-5294-KPFOTW, 2019 WL 6831762, at *12 (S.D.N.Y. Aug. 22, 2019)(collecting
cases); Benique v. Kijakazi, No. 20CV3243PAEOTW, 2021 WL 4894582,
at *7 (S.D.N.Y. Sept. 10, 2021).
Second, even if five of the six occupations were eliminated on this
basis, the cutter II fabrication position would still be available. The
vocational expert testified that there were 54,000 of those jobs available in
the national economy. (T at 27, 88).
The Social Security Act and Commissioner’s regulations do not
“provide a definition for a ‘significant’ number of jobs.” Koutrakos v. Colvin,
No. 3:13-CV-1290 (JGM), 2015 WL 1190100, at *21 (D. Conn. Mar. 16,
2015). Courts have held that the “significant number” threshold is “fairly
minimal,” and they are “generally guided by numbers that have been found
‘significant’ in other cases.” See Hamilton v. Comm'r of Soc. Sec., 105 F.
Supp. 3d 223, 229-30 (N.D.N.Y. 2015)(collecting cases).
While there is authority to suggest that 4,000-5,000 jobs are not a
significant number, see id., a total number over 17,000 is considered
sufficient to satisfy the Commissioner's step five burden. See Mota v.
Comm'r of Soc. Sec., No. 20-CV-07294 (SN), 2022 WL 464098, at *12
(S.D.N.Y. Feb. 15, 2022)(9,600 jobs is a significant number); Hanson v.
Comm'r of Soc. Sec., No. 15-CV-150 (GTS) (WBS), 2016 WL 3960486, at
*13 (N.D.N.Y. June 29, 2016) (finding that national numbers from 9,000
and up was “significant”), adopted by Hanson v. Colvin, 2016 WL 3951150
(N.D.N.Y. July 20, 2016); Gray v. Colvin, No. 12-CV-6485L, 2014 WL
4146880, at *6 (W.D.N.Y. Aug. 19, 2014)(16,000 jobs is significant).
Lastly, Plaintiff argues that the ALJ erred by relying on the vocational
experts’ testimony, as their testimony was based on the DOT, which has
not been updated since 1991 and is therefore outdated and unreliable.
This argument has been consistently rejected by courts in this Circuit
and Plaintiff cites no authority to support a contrary conclusion. See Strong
v. Berryhill, No. 17-CV-1286F, 2019 WL 2442147, at *6 (W.D.N.Y. June 12,
2019)(collecting cases); Johnson v. Saul, No. 3:19-cv-01222, 2020 WL
6562402, at *11 (D. Conn. Nov. 9, 2020) (“[I]t is well settled that the DOT,
despite not having been updated in more than 25 years, remains an
accepted basis for vocational opinion according to the Commissioner's
rules.”); Harrison v. Comm'r of Soc. Sec., No. 20-CV-5282 (BCM), 2022 WL
1289357, at *11 (S.D.N.Y. Apr. 29, 2022).
For the foregoing reasons, Plaintiff’s Motion for Judgment on the
Pleadings (Docket No. 22) is DENIED; the Commissioner’s Motion for
Judgment on the Pleadings (Docket No. 26) is GRANTED; and this case is
DISMISSED. The Clerk is directed to enter final judgment in favor of the
Commissioner and then close the file.
s/ Gary R. Jones
Dated: November 13, 2023
GARY R. JONES
United States Magistrate Judge
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