UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ BERNICE A., Plaintiff, v. 5:19-CV-0688 (ML) ANDREW SAUL, Commissioner of Social Security Administration, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: ELIZABETH V. KRUPAR, ESQ. Legal Aid Society of Mid-New York, Inc. Counsel for the Plaintiff 221 South Warren Street, Suite 310 Syracuse, New York 13202 SOCIAL SECURITY ADMINISTRATION CANDACE LAWRENCE, ESQ. Counsel for the Defendant J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203
MIROSLAV LOVRIC, United States Magistrate Judge ORDER Currently pending before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 3, 2020, during a telephone
1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. § 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’ □ determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) The Commissioner’s determination that Plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is GRANTED. 3) Plaintiffs motion for judgment on the pleadings (Dkt. No. 11) is DENIED. 4) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiff's Complaint in its entirety. Dated: August18, 2020 Binghamton, New York / Miroslav Lovric United States Magistrate Judge Northern District of New York
1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 --------------------------------------------------------- 4 BERNICE A. 5 -versus- 19-CV-688 6 ANDREW M. SAUL, COMMISSIONER OF 7 SOCIAL SECURITY
8 --------------------------------------------------------- 9 TRANSCRIPT OF TELEPHONE CONFERENCE 10 held in and for the United States District Court, Northern 11 District of New York, at the Federal Building, 15 Henry 12 Street, Binghamton, New York, on August 3, 2020, before 13 the HON. MIROSLAV LOVRIC, United States Magistrate Judge, 14 PRESIDING. 15 16 APPEARANCES: 17 FOR THE PLAINTIFF: 18 LEGAL AID SOCIETY OF MID-NEW YORK, INC. 19 BY: ELIZABETH V. KRUPAR, ESQ. 20 Syracuse, New York 21 22 FOR THE DEFENDANT: 23 SOCIAL SECURITY ADMINISTRATION 24 BY: CANDANCE LAWRENCE, ESQ.
25 Boston, MA 1 THE COURT: I'm going to turn now to the Decision 2 and the Order of the Court, so first I start out with a short 3 introduction. 4 This matter has been referred to me for all 5 proceedings and entry of a final judgment pursuant to the 6 Social Security Pilot Program here in the Northern District 7 of New York under General Order number 18 and in accordance
8 with the provisions of 28 USC Section 636(c) and also Federal 9 Rule of Civil Procedure 73 and also Northern District of New 10 York Local Rule 73.1, and then lastly by way of the consent 11 of the parties. 12 This action involves judicial review of an 13 adverse determination by the Commissioner of Social Security 14 pursuant to 42 United States Code Sections 405(g) and 15 1383(c). In this appeal I have reviewed the following: One, 16 the Social Security Administration Record and Transcript that 17 can be found at docket number 10. Included in that docket 18 number 10 I reviewed the Administrative Law Judge's Hearing 19 Decision and the transcript of oral hearing. 20 In my decision when I do refer to any of the 21 Administrative Record, the Administrative Transcript, I will 22 use the letter T, T as in Thomas, to reference that. So as 23 to the Law Judge's Hearing Decision and Transcript that can 24 be found at T. 7 through 26 and 30 to 51.
25 I also reviewed the plaintiff's brief at 1 docket number 11, the defendant's brief at docket number 12 2 and I generally also reviewed the other entries on the 3 docket. 4 Lastly, I have also taken into consideration 5 today's oral arguments from the parties in reaching and 6 rendering a decision in this matter. 7 The procedural history of the case is as
8 follows: The plaintiff protectively filed for Disability 9 Insurance Benefits, also called DIB, and Supplemental 10 Security Income, known as SSI, for these benefits on 11 March 24, 2016 and alleging disability beginning on 12 December 31, 2015. See docket number 10. 13 The applications were denied initially by 14 notice dated May 19, 2016, see T. 90 through 97. On June 27, 15 2016 plaintiff requested a hearing before an Administrative 16 Law Judge. See T. 98 through 99. The video hearing was held 17 in front of an Administrative Law Judge, who I'll refer to as 18 ALJ, Mr. Stanley Chin, and that occurred on May 17 of 2018. 19 See T. 30 through 51. Additionally, Carly Coughlin, a 20 Vocational Expert, who I will refer to as VE, also testified 21 at that hearing. 22 The ALJ utilized the five-step process for 23 evaluating disability claims, see T. 7 through 26, and found 24 that plaintiff was not disabled from her alleged onset date
25 through the date of the decision because, as the ALJ 1 indicated, she was capable of performing jobs that existed in 2 significant numbers in the national economy. See T. 7 3 through 26. See also 20 CFR Section 404.1520(a)(4), i 4 through v, describing the steps in the sequential evaluation. 5 See also 20 CFR Section 404.1566(b). If the claimant can 6 perform work in the national economy, he is not disabled. 7 On June 8, 2018 the ALJ issued an unfavorable
8 decision. See T. 7 through 26. Plaintiff requested review 9 of the hearing decision before the appeals counsel on 10 July 30, 2018. See T. 165 through 169. On April 16, 2019 11 the appeals counsel denied the request for review. See T. 1 12 through 6, after which time the Commissioner's determination 13 became final and this appeal followed. 14 I want to set forth the generally applicable 15 law and standards that apply in my review and in my reaching 16 a decision. Under the first category of disability standard 17 to be considered disabled, a plaintiff seeking Disability 18 Insurance Benefits or SSI disability benefits must establish 19 that she is unable to engage in any substantial gainful 20 activity by reason of any medically determinable physical or 21 mental impairment which can be expected to result in death or 22 which has lasted or can be expected to last for a continuous 23 period of not less than 12 months. See 42 USC Section 24 1382c(a)(3)(A).
25 In addition, the plaintiff's physical or 1 mental impairment or impairments must be of such severity 2 that he is not only unable to do his previous work but 3 cannot, considering his age, education and work experience 4 engage in any other kind of substantial gainful work which 5 exists in the national economy regardless of whether such 6 work exists in the immediate area in which he lives or 7 whether a specific job vacancy exists for him or whether he
8 would be hired if he applied for work. See 42 United States 9 Code Section 1382c(A)(3)(B). 10 The Commissioner used a five-step process set 11 forth at 20 CFR Sections 404.1520 and 416.920 to evaluate 12 disability insurance and SSI disability claims. 13 First, the Commissioner considers whether the 14 claimant is currently engaged in substantial gainful 15 activity. If he is not, the Commissioner next considers 16 whether the claimant has a severe impairment which 17 significantly limits his physical or mental ability to do 18 basic work activities. If the claimant suffers from an 19 impairment the third inquiry is, whether based solely on 20 medical evidence, the claimant has an impairment which meets 21 or equals the criteria of an impairment listed in Appendix 1 22 of the regulations. If the claimant has such an impairment, 23 the Commissioner will consider him disabled without 24 considering vocational factors such as age, education and
25 work experience. Assuming the claimant does not have a 1 listed impairment, the fourth inquiry is whether, despite the 2 claimant's severe impairment, he has the residual functional 3 capacity to perform his past work. Finally, if the claimant 4 is unable to perform his past work, the Commissioner then 5 determines whether there's other work which the claimant can 6 perform. See Berry V Schweiker at 675 F.2d 464 at 467, 7 Second Circuit 1982. See also 20 CFR Sections 404.1520 and
8 416.920. 9 The plaintiff has the burden of establishing 10 disability at the first four steps; however, if the plaintiff 11 establishes that her impairment prevents her from performing 12 her past work, the burden then shifts to the Commissioner to 13 prove the final step. 14 As for the scope of review. In reviewing a 15 final decision of the Commissioner, a Court must determine 16 whether the correct legal standards were applied and whether 17 substantial evidence supported the decision. See Selian 18 versus Astrue at 708 F.3d at 417. Also see Brault v Social 19 Security Administration Commissioner, 683 F.3d 443 at 448, 20 Second Circuit 2012 and see also 42 United States Code 21 Section 405(g). Substantial evidence is such relevant 22 evidence as a reasonable mind might accept as adequate to 23 support a conclusion. See Talavera versus Astrue, 697 F.3d 24 145 at 151, Second Circuit 2012. It must be more than a
25 scintilla of evidence scattered throughout the administrative 1 record. However, this standard is a very deferential 2 standard of review, even more so than the clearly erroneous 3 standard. See Brault, 683 F.3d at 448. 4 A reviewing court may not substitute it's 5 interpretation of the administrative record for that of the 6 Commissioner if the record contains substantial support for 7 the ALJ's decision. See also Rutherford v Schweiker, 685
8 F.2d 60 at 62, Second Circuit 1982. In reviewing a final 9 decision by the Commissioner under 42 United States Code 10 Section 405, the Court does not determine de novo whether a 11 plaintiff is disabled. See 42 US Code Sections 405(g). Also 12 1383(c)(3). And see also Wagner versus Secretary of Health 13 and Human Services, 906 F.2d 856 at 860, Second Circuit 1990. 14 Rather, the Court must examine the Administrative Transcript 15 to ascertain whether the correct legal standards were applied 16 and whether the decision is supported by substantial 17 evidence. See Shaw versus Chater, 221 F.3d 126 at 131, 18 Second Circuit 2000. Also see Schaal versus Apfel, 134 F.3d 19 496 at 500 to 501, Second Circuit 1998. Substantial evidence 20 is evidence that amounts to more than a mere scintilla and it 21 has been defined as such relevant evidence as a reasonable 22 mind might accept as adequate to support a conclusion. See 23 Richardson versus Perales, 402 United States 389 at 401, 24 1971. If supported by substantial evidence, the
25 Commissioner's factual determinations are conclusive and it 1 is not permitted for the courts to substitute their analysis 2 of the evidence. See Rutherford v Schweiker, 685 F.2d 60 at 3 62, Second Circuit 1982. In other words, this Court must 4 afford the Commissioner's determination considerable 5 deference, and may not substitute its own judgment for that 6 of the Commissioner, even if it might justifiably have 7 reached a different result upon a de novo review. See
8 Valente versus Secretary of Health and Human Services, 733 9 F.2d 1037 at 1041, Second Circuit 1984. 10 An ALJ is not required to explicitly analyze 11 every piece of conflicting evidence in the record. See 12 Mongeur v Heckler, 722 F.2d 1033 at 1040, Second Circuit 1983 13 case. See also Miles versus Harris, 645 F.2d 122 at 124, a 14 Second Circuit 1981 case. However, the ALJ cannot pick and 15 choose evidence in the record that supports his conclusions. 16 See Cruz v Barnhart, 343 F. Supp 2d 218 at 224, a Southern 17 District New York 2004 case. See also Fuller v Astrue, 18 number 09-CV-6279. It can be found at 2010 Westlaw, 5072112 19 at 6. A Western District New York, December 6, 2010 case. 20 The following facts briefly indicate the 21 plaintiff's general background: First, plaintiff was 51 22 years old on December 31, 2015, the date that she alleges she 23 became disabled because of arthritis, a slipped disc, a 24 shoulder injury, depression, and Posttraumatic Stress
25 Disorder. See T. 170 and T. 203. 1 The record shows that she worked part-time or 2 full-time as a taxi driver until December of 2016. See 3 T. 330, 395, 467, 485, 489, 528, 537 and 653. And then 4 beginning in June of 2017 plaintiff worked as a full-time 5 personal home aid. See T. 507 and 659. By December of 2017, 6 however, she was reportedly not getting the work hours she 7 was previously, that she was previously obtaining, and
8 continued to work hard on getting more hours while looking 9 for another job. See T. 661. 10 In May 2018 plaintiff testified that she was 11 working anywhere from 4 to 24 hours a week as a personal care 12 aid but the number of hours depended on if they gave her work 13 and it was supposed to be, according to the plaintiff, to be 14 40 hours. See T. 37 through 38. For additional facts, I 15 direct the parties to the ALJ's decision, that's found at 16 T. 7 through 26. In reaching his decision, the ALJ set forth 17 in a report that's found in T. 7 through 26. 18 I summarize the ALJ's decision as follows: 19 The ALJ indicated, first, the claimant meets the insured 20 status requirements of the Social Security Act through 21 December 31 of 2020. 22 Next, the claimant has not engaged in 23 Substantial Gainful Activity, also known as SGA, since 24 December 31 of 2015, the alleged onset date. See 26 CFR
25 404.1571, et seq. and also 416.971, et seq. 1 Next, the ALJ notes the claimant has the 2 following severe impairments: Right shoulder impairment, 3 cervical spine impairment, bilateral foot impairments, 4 asthma, obstructive sleep apnea, obesity, Posttraumatic 5 Stress Disorder, and depressive disorder and for these severe 6 impairments see 20 CFR 404.1520(c) and 416.920(c). 7 Next, the ALJ notes the claimant does not have
8 an impairment or combination of impairments that meets or 9 medically equals the severity of one of the listed 10 impairments in 20 CFR Part 404, Subpart P, Appendix 1. See 11 20 CFR 404.1520(d). See also 404.1525. Additionally see 12 404.1526. Also see 416.920(d). Also, 416.925 and lastly see 13 416.926. 14 The ALJ notes, after careful consideration of 15 the entire record, the ALJ concluded that the claimant has 16 the residual functional capacity to perform light work as 17 defined in 20 CFR 404.1567(b) and 416.967(b), except she can 18 occasionally climb ladders, ropes and scaffolds. She can 19 occasionally reach overhead with the right upper extremity. 20 She must occasionally avoid exposure to environmental 21 irritants, such as fumes, odors, dust, gases and poorly 22 ventilated areas and she is limited to short and simple 23 instructions and tasks in a routine work setting. 24 The ALJ further noted the claimant is unable,
25 that being not able to, perform any past relevant work. See 1 20 CFR 404.1565 and 416.965. 2 The claimant was 51 years old which is defined 3 as an individual closely approaching advanced age on the 4 alleged disability onset date. See 20 CFR 404.1563 and 5 416.963. 6 The ALJ went on to say the claimant has a 7 limited education and is able to communicate in English. See
8 20 CFR 404.1564 and 416.964. 9 Next, the ALJ indicated transferability of job 10 skills is not material to the determination of disability 11 because using the Medical-Vocational Rules as a framework 12 supports a finding that the claimant is not disabled whether 13 or not the claimant has transferable job skills. See SSR 14 82-41 and 20 CFR Part 404, Subpart P, Appendix 2. 15 The ALJ went on further to state, considering 16 the claimant's age, education, work experience and residual 17 functional capacity there are jobs that exist in significant 18 numbers in the national economy that the claimant can 19 perform. See 20 CFR 404.1569. Also 404.1569(a). Further, 20 416.969 and lastly 416.969(a). 21 The ALJ noted the claimant has not been under 22 a disability, as defined in the Social Security Act, from 23 December 31, 2015 through the date of this decision. See 20 24 CFR 404.1520(g) and 416.920(g).
25 And then lastly, the ALJ's decision and 1 conclusion states that: Based on the application for a 2 period of disability and Disability Insurance Benefits 3 protectively filed on March 24, 2016, the ALJ concluded the 4 claimant is not disabled under Sections 216(i) and 223(d) of 5 the Social Security Act. Based on the application for 6 Supplemental Security Income, which was protectively filed on 7 March 24, 2016, the claimant is not disabled under Section
8 1614(a)(3)(A) of the Social Security Act. 9 In reviewing the record and the plaintiff's 10 and defendant's briefs, I find that there are three essential 11 issues in contention: First, whether the ALJ properly 12 weighed the medical evidence, specifically the opinion of 13 Dr. Saponara; second, whether the ALJ properly assessed 14 plaintiff's subjective symptoms; and third, and last, whether 15 substantial evidence supports the ALJ's step five finding. 16 My analysis and discussion on these three 17 areas of contention is as follows: As to the first issue, 18 whether the ALJ properly weighed the medical evidence, 19 specifically, the opinion of Dr. Saponara. I find that the 20 ALJ did properly weigh the opinion of Dr. Saponara. While 21 the ALJ failed to explicitly apply the Burgess factors when 22 assigning the weight to Dr. Saponara, for the reasons stated 23 in defendant's memorandum of law, I find that the ALJ did not 24 err.
25 More specifically, the ALJ gave a 1 well-articulated rationale for giving only partial weight to 2 Dr. Saponara's opinion. See T. 7 through 26, because it was 3 based on a treating relationship. See T. 19. The ALJ 4 adopted the 20-pound limit for occasional lifting and 5 carrying but rejected the remaining limitations. See T. 15 6 and 19. The ALJ explained that Dr. Saponara's opinion is not 7 entirely consistent with the record as a whole. See T. 19.
8 For example, the limitation on use of foot controls is not 9 consistent with the claimant's reports in May 2016 that she 10 was working 19 hours a week as a driver. See T. 327. 11 Additionally, physical therapy notes from July 2016 noted 12 improvement in walking, standing, and climbing stairs and an 13 examination in October 2016 showed normal ambulation. See 14 T. 468 and 571. See also Anselm versus Commissioner of 15 Social Security at 737 F Appendix 552 at 555, Second Circuit 16 2018. The ALJ may set aside an opinion of a treating 17 physician that is contradicted by the weight of other record 18 evidence. Although the ALJ did not make specific reference 19 to Burgess factors, the ALJ recited Dr. Saponara's 20 specialization as a DPM, and also the ALJ noted the 21 frequency, length, nature and extent of treatment, through a 22 detailed recitation of the medical care plaintiff was 23 afforded by him. See T. at 18. The ALJ detailed recitation 24 of medical care plaintiff was afforded. In his analysis the
25 ALJ addressed Dr. Saponara's treating relationship with 1 plaintiff as a factor in affording his opinion partial weight 2 and identified the medical records, including physical 3 therapy records, that were inconsistent with Dr. Saponara's 4 medical opinion. See T. 19, T. 327 through 333, also 468 and 5 lastly T. 571. 6 Additionally, a searching review of the record 7 by this Court assures the Court that the substance of the
8 treating physician rule was not traversed. The ALJ's 9 decision was therefore also consistent in this way with the 10 Second Circuit's recent holding in Estrella versus Berryhill, 11 925 F.3d 90, Second Circuit 2019. 12 Addressing the factors of standing and walking 13 limitations. The ALJ I find did not adopt Dr. Saponara's 14 opinion that plaintiff could only stand for up to three hours 15 and walk for up to two hours during a workday because it was 16 inconsistent with the record as a whole, including 17 plaintiff's physical therapy notes from July 2016 and the 18 findings from an October 2016 examination. See again T. 19, 19 468 and 571. The ALJ explained that despite plaintiff's 20 history of foot pain due to multiple impairments, including 21 osteoarthritis, pes planus, also known as flat feet, and 22 planter fascitis, the treatment records show improvement with 23 conservative care, including orthotics and physical therapy. 24 See T. at 17. In addition, multiple examinations have shown
25 normal ambulation. Also see T. at 17. Plaintiff's testimony 1 in May 2018 also made clear that her foot pain was largely 2 alleviated by her orthotics and shoes. See T. at 42. 3 Turning to the issue of foot controls. The 4 ALJ also declined to adopt Dr. Saponara's restriction on the 5 use of foot controls because it was not supported by the 6 record. See T. at 16. It is unnecessary for the Court to 7 reach the question since none of the jobs identified by the
8 Vocational Expert, that being agricultural sorter; second, 9 sandwich-board carrier; or third, housekeeper, require the 10 use of foot controls. In other words, none of these jobs 11 identified require any foot controls. The Court notes that 12 any error by the ALJ related to the disputed limitations for 13 foot controls is harmless to the extent these limitations did 14 not impact plaintiff's ability to perform jobs identified by 15 the Vocational Expert and the ALJ. 16 Turning next to the postural and environmental 17 limitations. The ALJ also did not adopt Dr. Saponara's 18 restrictions on climbing stairs, balance, stoop, kneel, 19 crouch or crawl and occasionally be exposed to extreme cold 20 or height or vibrations or unprotected heights and moving 21 mechanical parts and occasionally operate a vehicle. Because 22 none of the jobs identified by the ALJ require any of those 23 functions that I just mentioned and the disability 24 determination would not have changed, the error, if it is an
25 error, is harmless to the extent these limitations did not 1 impact plaintiff's ability to perform jobs identified by the 2 Vocational Expert and the ALJ. 3 I turn next to the second issue of contention, 4 whether the ALJ properly assessed plaintiff's subjective 5 symptoms. I find that the ALJ did properly assess 6 plaintiff's testimony. The ALJ found that plaintiff's 7 statements concerning the intensity, persistence and limiting
8 effects of her symptoms were not entirely consistent with the 9 medical evidence and other evidence in the record. See T. 10 at 16. 11 The ALJ stated, in general, examinations and 12 aging have shown few significant abnormalities. 13 Additionally, treatment has been primarily routine and 14 conservative and the claimant has reported some improvements 15 with treatment. Furthermore the ALJ notes, the claimant's 16 reported activities are not limited to the extent that would 17 be expected to give her complaints of disabling symptoms and 18 limitations. For example, she has been able to maintain 19 part-time jobs, initially as a taxicab driver and later as a 20 personal care attendant, throughout much of the relevant 21 period. 22 The ALJ here did address and consider several 23 of these factors. And, in any event, the Court was able to 24 glean the rationale of the ALJ's decision. Therefore, based
25 on what I just indicated and the fact that the Court finds 1 defendant's arguments persuasive on this point, I find that 2 the ALJ did properly assess the plaintiff's testimony. 3 The third area of contention is whether 4 substantial evidence supports the ALJ's step five finding. 5 At step five of the disability analysis the burden shifts to 6 the ALJ to demonstrate that there is other work in the 7 national economy that plaintiff can perform. See Poupore
8 versus Astrue, 566 F.3d 303 at 306, Second Circuit 2009 case. 9 If the ALJ utilizes a Vocational Expert at the hearing, the 10 VE is generally questioned using a hypothetical question that 11 incorporates plaintiff's limitations. See Aubeuf versus 12 Schweiker, 649 F.2d 107 at 114, Second Circuit 1981. The ALJ 13 may rely on the VE's testimony regarding the availability of 14 work as long as the hypothetical facts the expert is asked to 15 consider are based on substantial evidence and accurately 16 reflect the plaintiff's limitations. See Calabrese versus 17 Astrue, 385 F. Appendix 274 at 276, Second Circuit 2009. 18 Where the hypothetical is based on an RFC analysis supported 19 by substantial facts, the hypothetical is proper. See 20 Calabrese at 276 to 277. 21 At step five, the ALJ had to demonstrate that 22 plaintiff was capable of performing jobs that existed in 23 significant numbers in the national economy. See 20 CFR 24 Section 404.1520(a)(4)(v).
25 In his hypothetical question to the VE, the 1 ALJ described an individual who, among other things, was 2 restricted to using her right arm for overhead reaching on an 3 occasional basis. See T. 47 through 48. In response, the 4 expert identified three jobs that such an individual could 5 perform. First job, sorter. Second job, agricultural 6 products and third job, sandwich-board carrier -- excuse me. 7 Let me do that again. The first job is sorter in
8 agricultural products. The second job is sandwich-board 9 carrier and the third job is housekeeper. See T. at 48. 10 Although the DOT does not specifically address overhead 11 reaching, it does address reaching which is broadly defined 12 as extending hands and arms in any direction. 13 The ALJ failed to resolve a conflict with 14 respect to one of the jobs identified by the expert. The 15 remaining two jobs were conflict free. Consistent with the 16 ALJ's hypothetical question, the sorter and sandwich-board 17 carrier both require occasional reaching. However, the 18 housekeeper job requires frequent reaching. The two jobs, 19 that being the sorter and sandwich-board carrier, were enough 20 to satisfy the Commissioner's burden of demonstrating that a 21 significant number of jobs exist in the national economy that 22 plaintiff can still perform. The Vocational Expert testified 23 that there are a total of 81,000 jobs nationally, that being 24 38,000 sorter jobs and 43,000 sandwich-board carrier jobs.
25 Although the ALJ erred in failing to seek an 1 explanation for the discrepancy between the VE testimony and 2 the DOT, I find that error is harmless in this case for the 3 reasons that I just stated. 4 Wherefore, based on the findings as set forth 5 herein on the record, the ALJ's decision was supported by 6 substantial evidence and, therefore, it is ordered that the 7 Commissioner's decision is affirmed and plaintiff's complaint
8 is hereby dismissed. And it is ordered that judgment be 9 entered for the defendant. 10 All right. That constitutes the Court's 11 decision. As I indicated I will issue a short order and I 12 will attach in the docket the transcript of my Decision and 13 Order that I just delivered on the record. 14 Miss Krupar, is there anything else today? 15 MS. KRUPAR: No, your Honor. Thank you for your 16 time. 17 THE COURT: Okay. Ms. Lawrence? 18 MS. LAWRENCE: No. Thank you very much, your 19 Honor. 20 THE COURT: All right. Thank you both. And have a 21 great rest of the week and thank you very much again for good 22 arguments and good briefs. 23 Court stands adjourned. Thank you. 24 (Court stands adjourned)
25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 5 I, VICKY A. THELEMAN, Federal Official 6 Realtime Court Reporter, in and for the United 7 States District Court for the Northern District of
8 New York, do hereby certify that pursuant to Section 9 753, Title 28 United States Code that the foregoing 10 is a true and correct transcript of the 11 stenographically reported proceedings held in the 12 above-entitled matter and that the transcript page 13 format is in conformance with the regulations of the 14 Judicial Conference of the United States. 15 16 17 /s/ Vicky A. Theleman 18 VICKY A. THELEMAN, RPR, CRR 19 US District Court - NDNY 20 21 22 Dated: August 6, 2020. 23 24