2 1

- 157

- cv Wright v. Comm’r UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29 th d a y of Septembe r, two thousand twenty

- one . PRESENT: RICHARD C. WESLE Y, RICHARD J. SULLIVAN, Circuit Judges, BRIAN M. COGAN, District Judge. *

_____________________________________ Rodney Keith Wright , Plaintif f

- Ap pellant , v. 2 1

- 157 Commissioner of Social Security , Defendant

- Appellee

.

_____________________________________

* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation.2 FOR PLAINTIFF
- APPELLANT: Rodney Keith Wright , pro se , Brooklyn, NY

. FOR DEFENDANT
- APPELLEE: Varuni Nelson, Arthur Swerdloff, Rachel G. Balaban , Assistant United States Attorneys, for Jacquelyn M. Kasulis , Acting United States Attorney for the Eastern District of New York, Brooklyn , NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York ( Hall , J .).

UPON DU E CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED

. Appellan t Rodney Wright , p roceeding pro se, sought review of a final determination by the Commissioner of Social Security (“Commissioner”) denying
h is application for disability insurance benefits (“DIB”). Wright ’s original application for benefits in 2014 was denied in 2015. Wright challenged the denial in federal district court, and in 2017, t he district court remanded the case for further development of the record . A fter a second hearing on Wright’s DIB claim
in 2018 , t he Commissio ner again denied his DIB application , and Wright brought3 a second challenge in federal court. Th is tim e , the district court granted the Commissioner’s motion for judgment on the pleadings , finding that substantial evidence supported the decision by the administrative law judge (“ALJ”) that Wright was not disabled

. Wright timely appealed and has also move d to vacate the judgment below , arguing that the ALJ failed to develop the record in
accordance with the district court’s 2017 remand

. We assume the pa rties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal , to which we refer only as necessary to resolve the appeal

. We review de novo a district court’s judgment on the pleadings. Jasinski v. Barnhart , 341 F.3d 182, 184 (2d Cir. 2003). When the judgment upholds a benefits determination by the Commissioner, we conduct a de novo review of the
administrative record “ ‘ to determine whether there is substantial evidence supporting the Commissioner’s decisio n and whether the Commissioner applied the correct legal standard. ’” Zabala v. Astrue , 595 F.3d 402, 408 (2d Cir. 2010) (quoting Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002)). “ The substantial
evidence standard means ” that “once an ALJ finds facts , we can reject those facts only if a reasonable factfinder would have to conclude otherwise .” Brault v. Soc. Sec.4 Admin., Comm’r , 683 F.3d 443, 448 (2d Cir. 2012) ( citation and quotation marks omitted). After a careful review of the record, w e conclude that the ALJ applied the correct legal standards and that his determination that Wright i s not disabled
i s supported by substantial evidence.
The Commissioner has a five

- step process for assessing whether a claimant is disabled under 42 U.S.C. § 423 . The first step is “whether the claimant is engaged in ‘substantial gainful activity.’” Dixon v. Shalala , 54 F.3d 1019, 1022 (2d Cir. 1995) (citation omitted)

. If so, he is not entitled to benefits. 404 C.F.R. § 1520(a)(4)(i). At step two, the Commis sioner considers “whether the claimant’s medical condition or impairment is ‘severe.’” Dixon , 54 F.3d at 1022 (citation omitted). If not, he is not entitled to benefits. 404 C.F.R. § 1520(a)(4)(ii). At the third step, the Commissioner probes whether th e claimant’s ailments are among or equal to the “‘listed’ impairments” set forth in the appendix to the Social Security regulations. Dixon , 54 F.3d at 1022 (citation omitted). A claimant whose condition meets one of these impairments is entitled to benef its. 404 C.F.R. § 1520(a)(4)(iii)

. If the claimant’s condition does not match a listed impairment, he may still be entitled to benefits, provided he can clear the fourth and fifth steps5 of the inquiry. At step four, the Commissioner assesses the claiman t’s “residual functional capacity,” i.e., the claimant’s capacity to perform work tasks such as standing, sitting, bending, crawling, and lifting or carrying objects. Dixon , 54 F.3d
at 1022 (citation and quotation marks omitted)

. If the claimant’s residual functional capacity permits him to perform his past relevant work, he is not
disabled. 404 C.F.R. § 1520(a)(4)(iv). If he cannot perform his past work, however, he is entitled to benefits unless, at step five, the Commissioner can demonstrate that he “has the capacity to perform alternative occupations available in the national economy.” Dixon , 54 F.3d at 1022 (citation and quotation marks omitted). In this case, the Commissioner found at step three that Wright’s ailments

were not among or equal to the listed impairments set forth in the appendix to the Social Security regulations, but concluded at step four that Wright lacked the residual functional capacity to perform his past relevant work

. The
Commissioner nevertheless foun d at step five that Wright had the capacity to undertake several other jobs that exist in large numbers in the national economy, such as surveillance systems monitor, lens inserter, or order clerk. Accordingly,6 the Commissioner determined that Wright was not disabled, and therefore not
entitled to ben efits.
I n the district court , Wright argued that the ALJ failed to consider evidence
of his insomnia when determining at step three that his conditions had not met the
definition of a n impairment listed in 20 C.F.R. §§ 404.1520(d) , 404.1525, 404.1526

. The district court disagreed, conclud ing that the evidence relied on by Wright did not refer to his insomnia, which in any event did not meet the definition of any
l isted i mpairment. On appeal, Wright contends that the medical records related
to his insomnia refute the district court’s findings

. The records , however, do not
show that he meets the l isted i mpairment definition for any condition ; they
demonstrate only that he complained of poor sleep. And, as the Commissioner
note d , Wright reported tha t his insomnia began improving in May 2017. Wright also argues that the ALJ failed to properly develop the record following the first remand , particularly since the consultant doctors did not consider any medical evidence after 2015

. We disagree. The dis trict court’s
remand order directed the Commissioner to obtain medical records from medical providers that the ALJ had not considered in 2015

– namely non

- Veterans Affairs7 Medical Center doctors such as Drs. Christine Fitzpatrick, Simon Raskin, and Raz Winiarsky. It did not require the ALJ to obtain supplemental opinions from
consult ing physicians like Dr. Rita Clark

. Indeed, Wright’s counsel stated at the
2018 hearing before the ALJ that he did not believe there were any other outstanding records that should be before the ALJ . Accordingly, the ALJ properly developed the record based on the remand order. Similarly, Wright asserts that the ALJ and Appeals Council should have
considered the fact that Wright was deemed disabled by the Department of Veterans Affairs (“VA”) in 2019 . But, as the district court noted, the ALJ could
not have considered the 2019 VA decision because it was issued nearly a year after the ALJ’s decision. And while our case law makes clear that “ the determinati on of another governmental agency that a social security disability benefits claimant
is disabled

. . . is entitled to some weight and should be considered , ” Cutler v. Weinberger , 516 F.2d 1282, 1286 (2d Cir. 1975) ; see also Rivera v. Colvin , 592 F. App’x 32, 33 (2d Cir. 2015) (same) , the record reflects that the agency did just that with respect to the VA’s earlier, July 2014 assessment of Wright’s disability

.8 Wright further contends the ALJ erred by refusing to consider Wright’s subjective symptoms of fibromyalgia and by refusing to find that Wright suffered
from that disease based on his subjective symptoms alone. But Wright does not point to any instance where the ALJ disregarded his subjective reports of pain. In fact, the ALJ noted both Wright’s symptoms and the clinical findings and credited Wright by finding that his fibromyalgia was a medically determinable impairment. In addition to his complaints about the ALJ’s weighing of medical evidence, Wright argues at length that the ALJ misused the testimony of the vocational expert and failed to heed the information contained in the Dictionary of Occupational Titles (“DOT”)

. We disagree. Although t he vocational expert did opine that someone requiring frequent unscheduled breaks could not retain employment in the national economy, the record did not compel the conclusion that Wright would need such frequent breaks

. Rather, th e vocational expert
testified that a hypothetical person with Wright’s ailments could maintain employment at a range of sedentary jobs. Moreover, contrary to Wright’s assertion, the DOT does not indicate that any of the three jobs identified as suitable9 w ould require him to sit for more than six consecutive hours , the limit prescribed by the ALJ in his residual functional capacity analysis

. See D OT § 209.567

- 014 , 1991 WL 671794 (order clerk), DOT § 379.367

- 010 , 1991 WL 673244 (surveillance systems monitor), DOT § 713.687

- 026 , 1991 WL 679273 (lens inserter).
We have considered all of Wright ’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court
and DENY Wright’s motion to vacate the judgment

. FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court