Byron v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James A. Byron
v. 	Case No. 18-cv-684-PB
Opinion No. 2019 DNH 131
Andrew Saul, Commissioner
Social Security Administration
MEMORANDUM AND ORDER
James Byron challenges the denial of his application for
disability insurance benefits pursuant to 42 U.S.C. § 405(g).
He contends that the Administrative Law Judge (“ALJ”) committed
reversible errors at steps three through five of the sequential
analysis required by 20 C.F.R. § 404.1520. 	The Commissioner, in
turn, moves for an order affirming the ALJ’s decision. 	I deny
Byron’s motion and affirm the Commissioner’s decision.
I. 	BACKGROUND
A. 	Procedural Facts
Byron is a 52-year-old man with high school education. 	He
worked as an HVAC technician for fifteen years. 	He alleged
disability as of October 2015, due to a torn tendon in his right
arm, right ulnar nerve transposition at elbow, carpal tunnel
syndrome, diabetes, a herniated disc in the neck, sleep apnea,
and a brain tumor.
Byron’s application was initially denied in February 2017.
On October 25, 2017, he testified at a hearing before ALJ Thomas
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Merrill, who ultimately denied Byron’s claim. 	See Tr. 17-28.
The Appeals Council denied his request for review in June 2018,
rendering the ALJ’s decision the final decision of the
Commissioner. 	See Tr. 3-8. 	Byron now appeals.
B. 	Medical Evidence
In March 2015, Byron suffered a work-related injury to his
right elbow while carrying a tall ladder. 	After doing light-
duty work for the next several months, he stopped working in
October 2015.
Between July 2015 and April 2017, Byron underwent four
surgeries to his right arm. 	After an MRI showed a partial tear
of the extensor muscles in that arm, Dr. Richard Choi performed
a right epicondyle debridement and partial tendon excision. 	Tr.
262, 298. 	Byron had occupational therapy post-surgery. 	See Tr.
380-89.
When Byron continued to complain of pain and clicking in
his right elbow, Dr. Choi performed a second surgery, a right
radiocapitellar anterior capsulectomy, in October 2015. 	Tr.
260. 	Following the surgery, Byron did a second round of
occupational therapy. 	Tr. 352-78.
In April 2016, Dr. Choi performed a third surgery on
Byron’s right arm, a right ulnar nerve transposition, after an
EMG showed ulnar nerve neuropathy. 	Tr. 258, 450. 	Byron again
underwent occupational therapy. 	May and June 2016 occupational
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therapy records noted that he was restricted from performing
heavy activities with his right arm, but that he remained
independent in personal care activities, with some limitations
in more demanding activities such as camping. 	Tr. 336.
At a follow-up visit in June 2016, Dr. Choi noted that
Byron reported pain over his right ulnar nerve, but that his
sensation and elbow motion were intact. 	Tr. 266-67. 	Later that
month, Dr. Choi’s only clinical finding was radial tunnel pain.
Tr. 264-65. 	Byron’s elbow motion was unremarkable and there
were no other sensory or motor problems. 	Id.
In September 2016, Byron presented to his primary care
physician, Dr. Elias Nabbout, requesting sleep medication and a
referral to a second orthopedic surgeon. 	Tr. 309-10. 	Dr.
Nabbout observed normal sensation and motor strength, with no
abnormalities of the extremities, and full range of motion of
the joints without swelling or tenderness. 	Id.
The following month, Byron reported to Dr. Steven Alter a
history of right arm pain and surgical treatment, but positive
findings were limited to tenderness and modest loss of right
grip strength, without loss of range of motion. 	Tr. 319-20. 	He
was able to make a fist and demonstrated normal wrist strength.
Id. 	An MRI of Byron’s right elbow performed that same month
showed mild widening the radiocapitellar joint and a mild sprain
of the radial collateral ligament. 	Tr. 452-53, 325.
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In December 2016, orthopedic surgeon Dr. Charles Cassidy
examined Byron and observed full range of motion of the right
elbow and wrist, with some tenderness and decreased grip
strength. 	Tr. 325. 	In light of the findings of positive ulnar
nerve neuropathy and Byron’s continued complaints of pain, Dr.
Cassidy recommended a radial nerve release surgery. 	See Tr.
325-26.
State agency physician Dr. Louis Rosenthall reviewed
Byron’s records in January 2017. 	He opined that Byron was
limited to frequent reaching with his right arm, should avoid
concentrated exposure to hazards such as machinery and heights,
could lift and carry 25 pounds occasionally and 20 pounds
frequently, and could stand, walk or sit for 6 hours in an 8-
hour workday. 	Tr. 57-61. 	Dr. Rosenthall noted that Byron had
three surgeries and complained of persistent pain in his right
elbow, but multiple clinical examinations within the past year
were “very reassuring, with only abnormality being ligamentous
laxity of lateral ulnar collateral ligament.” 	Tr. 59.
Dr. Cassidy performed a fourth and final surgery on Byron’s
right arm in April 2017. 	After the surgery, Dr. Cassidy
observed mild residual tenderness, but also improved range of
motion in the right arm. 	Tr. 417-19, 421-23. 	Byron had
diminished strength, but he maintained the ability to make a
fist. 	Id. 	He also reported to Dr. Cassidy that his pain was
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well controlled, that he no longer needed prescription pain
medication, and that he was taking Tylenol as needed. 	Tr. 423.
In September 2017, one-time examining orthopedist Dr.
Robert Pennell examined Byron. 	Tr. 454-59. 	Byron complained of
continued pain, weakness, numbness, and tingling when he saw Dr.
Pennell. 	Id. 	He reported that his pain felt better with
prescription pain medication, Tramadol and Gabapentin. 	Id. 	On
examination, he was able to raise both arms straight overhead,
exhibited a range of motion between 5 and 145 degrees in his
right elbow and between 0 and 150 degrees in his left elbow, had
reduced grip strength in his right hand, and had good and equal
abduction strength of the fingers of both hands, with mild
weakness of adduction of the fingers on the right side. 	Tr.
457. 	Dr. Pennell opined that Byron had significant restrictions
to lifting, gripping, twisting and pinching with the right hand,
and that he was “totally and permanently disabled.” 	Tr. 458.
C. 	The ALJ’s Decision
The ALJ assessed Byron’s claim under the five-step,
sequential analysis required by 20 C.F.R. § 404.1520. 	At step
one, he found that Byron had not engaged in substantial gainful
activity since October 13, 2015, his alleged disability onset
date. 	Tr. 19. 	At step two, the ALJ found that Byron’s right
upper extremity impairment was severe. 	Tr. 19. 	The ALJ also
found that his diabetes, colitis, brain tumor, bilateral carpal
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tunnel syndrome, mild obesity, and spinal impairment were not
severe impairments. 	Tr. 20-21. 	At step three, the ALJ
determined that none of Byron’s impairments, considered
individually or in combination, qualified for any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 	Tr. 21-22;
see 20 C.F.R. § 404.1520(d).
The ALJ then found that Byron had the residual functional
capacity (“RFC”) to perform medium work as defined in 20 C.F.R.
§ 404.1567(c), except he could only lift and carry 25 pounds
occasionally and 20 pounds frequently; he had unlimited use of
the hands and feet to operate controls, push, and pull; he could
occasionally climb ladders, scaffolds, and ropes; he could
frequently crawl; and he was limited to frequent reaching with
his right upper extremity. 	Tr. 22.
The ALJ gave “great weight” to Dr. Rosenthall’s opinion,
finding it consistent with, and well supported by, Byron’s
treatment records. 	Tr. 26. 	Acknowledging that Byron underwent
another surgery after Dr. Rosenthall’s review, the ALJ noted
that post-operative examination records were substantially
similar to the records available to Dr. Rosenthall. 	Id. 	The
ALJ gave “little weight” to Dr. Pennell’s opinion, because it
was based on a one-time examination and was inconsistent with
the longitudinal treatment record. 	Tr. 25-26.
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Relying on the testimony of a vocational expert, the ALJ
then found at step four that Byron could perform his past
relevant work as an HVAC technician. 	Tr. 26-27. 	In the
alternative, the ALJ found at step five that other jobs exist in
the national economy that Byron could perform, including an auto
detailer, a hospital cleaner, and a housekeeper/cleaner. 	Tr.
27-28. 	Accordingly, the ALJ concluded that Byron had not been
disabled from the alleged disability onset date through the date
of his decision. 	Tr. 28.
II. 	STANDARD OF REVIEW
I am authorized to review the pleadings submitted by the
parties and the administrative record and enter a judgment
affirming, modifying, or reversing the “final decision” of the
Commissioner. 	See 42 U.S.C. § 405(g). 	That review is limited,
however, “to determining whether the [Commissioner] used the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” 	Ward v. Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000). 	I defer to the Commissioner’s
findings of fact, so long as those findings are supported by
substantial evidence. 	Id. 	Substantial evidence exists “if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,
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769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
If the Commissioner’s factual findings are supported by
substantial evidence, they are conclusive, even where the record
“arguably could support a different conclusion.” 	Id. at 770.
The Commissioner’s findings are not conclusive, however, “when
derived by ignoring evidence, misapplying the law, or judging
matters entrusted to experts.” 	Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999) (per curiam). 	“Issues of credibility and the
drawing of permissible inference from evidentiary facts are the
prime responsibility of the Commissioner, and the resolution of
conflicts in the evidence and the determination of the ultimate
question of disability is for [him], not for the doctors or for
the courts.” 	Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018)
(internal quotation marks and brackets omitted).
III. 	ANALYSIS
Byron alleges that four errors in the ALJ’s decision
warrant remand. 	First, he argues that the ALJ improperly
determined at step three of the sequential analysis that his
right upper extremity impairment did not met or equal a listed
impairment. 	Second, he contends that the ALJ relied upon
outdated agency guidance to evaluate his complaints of pain.
Third, Byron argues that the ALJ improperly relied on Dr.
Rosenthall’s opinion because it was based on an incomplete
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medical record. 	Finally, he maintains that the ALJ posed a
deficient hypothetical to the vocational expert (“VE”), tainting
the ALJ’s conclusions that Byron could perform his past relevant
work and other jobs the VE identified. 	I address each argument
in turn and conclude that none has merit.
A. 	Step Three Evaluation
At step three of the sequential analysis, the ALJ found
that Byron’s right upper extremity impairment did not meet or
equal a listed impairment. 	The ALJ’s finding is supported by
the record.
An ALJ will find a claimant disabled at step three if the
claimant has an impairment that meets the duration requirement
and is listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (“Appendix
1”) or is medically equivalent to a listed impairment. 	See 20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526. 	The claimant bears
the burden to show that he has an impairment or a combination of
impairments that meets or equals a listed impairment. 	Torres v.
Sec’y of Health & Human Servs., 870 F.2d 742, 745 (1st Cir.
1989) (per curiam). 	The listed impairment that Byron claims he
meets, listing 1.02B, pertains to major joint dysfunction. 	See
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02B. 	The listing
requires a claimant to demonstrate “inability to perform fine
and gross movements effectively,” which requires “an extreme
loss of function of both upper extremities.” 	Id.
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The ALJ supportably found that the evidence does not
establish that Byron’s impairment meets or equals listing 1.02B.
No medical source opined that Byron is unable to perform fine
and gross movements in both upper extremities. 	Dr. Pennell
concluded that only Byron’s right arm impairment limited his
ability to work. 	See Tr. 457-58. 	Dr. Pennell’s examination of
the left arm showed normal findings. 	See id. 	And Dr.
Rosenthall found that Byron did not suffer an extreme loss of
function of either arm. 	See Tr. 57-61.
To the extent Byron maintains that the ALJ should have
obtained an updated medical opinion to ascertain whether his
impairment medically equaled a listing, he is wrong. 	Social
Security Ruling 17-2p, in effect at the time of the hearing,
provides that an ALJ is not required to obtain medical expert
evidence at this stage if the ALJ “believes that the evidence
does not reasonably support a finding that the individual’s
impairment(s) medically equals a listed impairment.” 	SSR 17-2p,
2017 WL 3928306, at *4 (Mar. 27, 2017). 	As discussed below, the
ALJ supportably relied on Dr. Rosenthall’s opinion that Byron
did not meet or equal a listed impairment. 	See Tr. 57-61.
B. 	Evaluation of Pain
Byron next argues that the ALJ’s RFC determination cannot
stand because the ALJ did not properly evaluate his complaints
of pain. 	I find that the ALJ supportably discounted his
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subjective reports regarding the intensity, persistence, and
limiting effects of pain as not entirely consistent with the
medical evidence and other evidence in the record.
In crafting a claimant’s RFC, an ALJ must consider all of a
claimant’s alleged symptoms and determine the extent to which
those symptoms can reasonably be accepted as consistent with
objective medical evidence and other record evidence. 	20 C.F.R.
§ 404.1529(a); SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16,
2016). 	This involves a two-step inquiry. 	First, the ALJ must
determine whether the claimant has a “medically determinable
impairment” that could reasonably be expected to produce his
alleged symptoms. 	SSR 16-3p, 2016 WL 1119029, at *3. 	Second,
the ALJ evaluates the “intensity, persistence, and limiting
effects of [those] symptoms” to determine how they limit the
claimant’s ability to perform work-related activities. 	Id. at
*4. 	The ALJ must “examine the entire case record” in conducting
this evaluation, including objective medical evidence, the
claimant’s own statements and subjective complaints, and any
other relevant statements or information in the record. 	Id.;
see Coskery v. Berryhill, 892 F.3d 1, 4 (1st Cir. 2018).
The ALJ cannot disregard the claimant’s statements about
his symptoms solely because they are unsubstantiated by
objective medical evidence. 	See SSR 16-3p, 2016 WL 1119029, at
*5. 	Rather, an inconsistency between subjective complaints and
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objective medical evidence is just “one of the many factors” to
consider in weighing the claimant’s statements. 	Id.
Other factors the ALJ must consider, known as the “Avery
factors” in the First Circuit, include (1) the claimant’s daily
activities;(2) the location, duration, frequency, and intensity
of the pain or symptom; (3) any precipitating and aggravating
factors; (4) the effectiveness of any medication currently or
previously taken; (5) the effectiveness of non-medicinal
treatment; (6) any other self-directed measures used to relieve
pain; and (7) any other factors concerning functional
limitations or restrictions. 	Avery v. Sec’y of Health & Human
Servs., 797 F.2d 19, 29 (1st Cir. 1986); see 20 C.F.R.
§ 404.1529(c)(3). 	But the ALJ is not required to address every
Avery factor in his written decision for his evaluation to be
supported by substantial evidence. 	Deoliveira v. Berryhill,
2019 DNH 001, 2019 WL 92684, at *5 (D.N.H. Jan. 2, 2019).
Instead, the decision need only “contain specific reasons for
the weight given to the individual’s symptoms, be consistent
with and supported by the evidence, and be clearly articulated
so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.” 	SSR 16-3p,
2016 WL 1119029, at *9.
At the hearing, Byron testified that the pain in his right
arm was a constant 6 out of 10 and that it prevented him from
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doing anything with that arm. 	Tr. 38-40. 	The ALJ gave
sufficiently specific reasons for discounting Byron’s complaints
of such disabling pain. 	First, the ALJ cited the inconsistency
between Byron’s complaints and the objective medical evidence.
The ALJ correctly noted that clinical examinations throughout
the relevant period did not evidence a profound loss of function
in Byron’s right arm and showed that he had retained significant
strength and mobility in that arm. 	Second, the ALJ cited
medical records showing that Byron was not taking regular pain
medication, despite his complaints of pain. 	Third, the ALJ
considered Byron’s daily activities. 	Specifically, he cited
occupational therapy records noting that although Byron was
restricted from performing heavy activities with his right arm,
he remained independent in personal care activities, with only
some limitations in more demanding activities such as camping.
Accordingly, the ALJ’s decision to discount Byron’s statements
concerning the intensity, persistence, and limiting effects of
his pain is entitled to deference.
Byron alleges error because the ALJ’s decision cited a
superseded agency ruling concerning subjective symptom
evaluation. 	Specifically, he argues that the ALJ relied on SSR
96-7p, which was superseded by SSR 16-3p in March 2016. 	See
Coskery, 892 F.3d at 4; SSR 16-3p, 2016 WL 1119029, at *1. 	As
Byron acknowledges, the ALJ also cited SSR 16-3p. 	He then
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proceeded to evaluate Byron’s complaints consistent with the
operative ruling. 	I am satisfied that the ALJ applied the
correct standard and that his evaluation of Byron’s subjective
symptoms is supported by substantial evidence.
In any event, any error that stems from the ALJ’s citation
to SSR 96-7p is harmless. 	In enacting SSR 16-3p to replace SSR
96-7p, the agency primarily sought to “eliminate the use of the
term ‘credibility’ from the sub-regulatory policy to make clear
that a subjective symptom evaluation is not an examination of an
individual’s character.” 	Coskery, 892 F.3d at 6 (internal
quotation marks and brackets omitted); see SSR 16-3p, 2016 WL
1119029, at *1 n.1. 	“Despite that change, SSR 16-3p is
materially the same as its predecessor . . . .” 	Freddette v.
Berryhill, 2019 DNH 003, 2019 WL 121249, at *8 n.5 (D.N.H. Jan.
7, 2019). 	As nothing in the ALJ’s decision suggests that his
reliance on the outdated ruling prejudiced Byron, remand on this
basis would “amount to no more than an empty exercise.” 	See
Ward, 211 F.3d at 656.
C. 	Dr. Rosenthall’s Opinion
Byron contends that Dr. Rosenthall’s opinion was based on a
significantly incomplete record and therefore cannot bear “great
weight” that the ALJ attributed to it. 	I disagree.
It can be reversible error for an ALJ to rely on an opinion
of a non-examining consultant who has not reviewed the full
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medical record. 	Brown v. Colvin, 2015 DNH 141, 2015 WL 4416971,
at *3 (D.N.H. July 17, 2015); Ferland v. Astrue, 2011 DNH 169,
2011 WL 5199989, at *4 (D.N.H. Oct. 31, 2011). 	But “the fact
that an opinion was rendered without the benefit of the entire
medical record does not, in and of itself, preclude an ALJ from
giving significant weight to that opinion.” 	Meldrem v. Colvin,
2017 DNH 096, 2017 WL 2257337, at *2 (D.N.H. May 23, 2017)
(quoting Coppola v. Colvin, 2014 DNH 033, 2014 WL 677138, *8
(D.N.H. Feb. 21, 2014)). 	The ALJ may rely on such an opinion
“where the medical evidence postdating the reviewer’s assessment
does not establish any greater limitations, or where the medical
reports of claimant’s treating providers are arguably consistent
with, or at least not ‘clearly inconsistent’ with, the
reviewer’s assessment.” 	Id. (quoting Ferland, 2011 WL 5199989,
at *4).
The ALJ bears the burden of showing that either of these
conditions is present and must make that determination
“adequately clear.” 	Giandomenico v. U.S. Soc. Sec. Admin., 2017
DNH 237, 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017). 	In
doing so, the ALJ may not interpret “raw medical data . . .
until its functional significance is assessed by a medical
expert.” 	Id. at 5; see Manso-Pizzaro v. Sec’y of Health & Human
Servs., 76 F.3d 15, 17 (1st Cir. 1996). 	But he may make
“common-sense judgments about functional capacity based on
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medical findings,” within “the bounds of a lay-person’s
competence.” 	Gordils v. Sec’y of Health & Human Servs., 921
F.2d 327, 329 (1st Cir. 1990). 	Such judgments are possible
“where the evidence shows a ‘relatively mild physical impairment
posing, to the layperson’s eye, no significant restrictions.’”
Giandomenico, 2017 WL 5484657, at *4 (quoting Roberts v.
Barnhart, 67 F. App’x 621, 623 (1st Cir. 2003)).
Dr. Rosenthall rendered his opinion in January 2017, based
on an assessment of extensive medical records, including the
outcomes of the first three surgeries on Byron’s right arm. 	The
ALJ acknowledged that there were additional treatment records
through September 2017, including the outcome of Byron’s fourth
surgery. 	But he found that those records were substantially
similar to the records Dr. Rosenthall reviewed and did not show
a functionally meaningful deterioration in Byron’s condition.
Substantial evidence supports the ALJ’s conclusion that the
subsequent records are not inconsistent with Dr. Rosenthall’s
opinion. 	The ALJ did not improperly rely on raw medical data in
reaching that conclusion but “instead focused on treatment notes
interpreting raw diagnostic results and symptom comparisons
across the record.” 	Marino v. U.S. Soc. Sec. Admin., 2018 DNH
191, 2018 WL 4489291, at *6 (D.N.H. Sept. 19, 2018). 	The ALJ
explained that after the April 2017 surgery, Dr. Cassidy,
Byron’s surgeon, noted improved range of motion in the right
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upper extremity, with only mild residual tenderness. 	Tr. 25,
417-19, 421-23. 	Despite diminished grip strength, Byron
maintained the ability to make a fist. 	Id. 	Dr. Cassidy also
noted that Byron’s pain was well controlled, that he no longer
needed prescription pain medication, and that he was taking
Tylenol as needed. 	Tr. 423. 	Thus, the ALJ acted within the
bounds of lay competence when he concluded that the new records
were not inconsistent with Dr. Rosenthall’s opinion and that the
fourth surgery “improved the claimant’s function without
substantial residual losses of strength and mobility.” 	Tr. 25.1
Byron also points out that Dr. Rosenthall did not review
Dr. Pennell’s examination results and opinion. 	Dr. Pennell had
assessed significant restrictions to lifting, gripping, twisting
and pinching with the right hand. 	See Tr. 457-58. 	The ALJ
assigned that opinion “little weight” because it was from a one-
time examiner and was inconsistent with the longitudinal
treatment record showing that Byron retained significant
functioning in his right arm. 	Tr. 25-26. 	Those are permissible
reasons, supported by substantial evidence, to discount the
opinion. 	See Johnson v. Berryhill, 2017 DNH 214, 2017 WL
1 	Byron lists certain other records that Dr. Rosenthall did
not review, but he makes no argument as to how this evidence
demonstrates a deterioration in his condition. 	In any event,
the ALJ considered those records and supportably concluded that
they are consistent with Dr. Rosenthall’s opinion.
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4564727, at *5 (D.N.H. Oct. 12, 2017) (noting that
“supportability of the opinion by evidence in the record” and
“frequency of examination” are among the factors an ALJ must
consider when weighing the testimony of a physician who is not a
treating source). 	Further, the ALJ permissibly rejected Dr.
Pennell’s opinion that Byron was “totally and permanently
disabled.” 	Such a statement is not a medical opinion but a
legal conclusion reserved for the ALJ. 	See 20 C.F.R.
§ 404.1527(d)(1).
In sum, the ALJ’s adoption of Dr. Rosenthall’s opinion
despite the subsequent record was adequately explained and
supported by the record.
D. 	Evaluation at Steps Four and Five
Finally, Byron challenges the ALJ’s findings at steps four
and five of the sequential analysis that he could perform his
past relevant work as an HVAC technician, as well as other jobs
in the national economy, including an auto detailer, a hospital
cleaner, and a housekeeper/cleaner. 	At the hearing, the ALJ
presented the vocational expert with a hypothetical question
that matched the ALJ’s RFC finding, and the VE testified that a
person with those limitations could perform the above listed
jobs. 	Byron argues that the hypothetical, and by extension the
RFC, was based on Dr. Rosenthall’s opinion but failed to include
two limitations that Dr. Rosenthall had identified: (1) limited
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reaching with the right upper extremity, and (2) avoiding
concentrated exposure to hazards.
Byron is wrong that the hypothetical and the RFC deviated
from Dr. Rosenthall’s opinion as to reaching. 	Dr. Rosenthall
stated that Byron was “[l]imited” in his ability to reach
overhead, in front, and/or laterally with the right extremity.
Tr. 59. 	In the comments section on the same page, Dr.
Rosenthall explained that he “should limit dominant RT frontal &
overhead reaching to frequent use through the workday.” 	Id.
The ALJ included this limitation in the RFC and in the
hypothetical presented to the VE, stating that Byron “is limited
to frequent reaching with the right upper extremity.” 	Tr. 22,
46. 	The VE testified that both the HVAC job and the jobs he
identified would allow for such a limitation. 	Tr. 46-47.
Byron is correct, however, that the ALJ’s hypothetical and
the RFC failed to include Dr. Rosenthall’s limitation to avoid
concentrated exposure to hazards such as machinery and heights.
But the ALJ’s error is harmless. 	Courts routinely find harmless
error “where an alleged limitation that was not included in the
ALJ’s hypothetical (or in the RFC) was not necessary to perform
one or more of the jobs identified by the vocational expert,
according to the Dictionary of Occupational Titles.” 	Freddette,
2019 WL 121249, at *7 (internal quotation marks and brackets
omitted).
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Byron’s past relevant work, as well the jobs identified by
the VE, all accommodate the omitted limitation. 	The Dictionary
of Occupational Titles (“DOT”) specifies that hazards, including
moving mechanical parts, electric shock, high exposed places,
radiation, explosives, toxic caustic chemicals, and other
environmental conditions are “Not Present” in any of the jobs
identified. 	See DOT § 637.261-014, 1991 WL 685487 (HVAC
technician); DOT § 915.687-034, 1991 WL 687878 (auto detailer);
DOT § 323.687-010, 1991 WL 672782 (hospital cleaner); DOT
§ 323.687-014, 1991 WL 672783 (housekeeper/cleaner). 	Because
the ALJ identified jobs that Byron could perform even if the
limitation on exposure to hazards were imported, the error in
failing to assess it was harmless. 	Cf. Ward, 211 F.3d at 656.
IV. 	CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), I grant
the Commissioner’s motion to affirm (Doc. No. 9) and deny
Byron’s motion for an order reversing the Commissioner’s
decision (Doc. No. 7). 	The clerk is directed to enter judgment
accordingly and close the case.
SO ORDERED.
/s/ Paul Barbadoro
Paul J. Barbadoro
United States District Judge
August 14, 2019
cc: 	Darlene M. Daniele, Esq.
Sarah E. Choi, Esq.
Case 1:18-cv-00684-PB Document 10 Filed 08/14/19 Page 20 of 20