21-157-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 NOTATION ASUMMARY 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 29th day of September, two thousand twenty-one.

PRESENT:

RICHARD C. WESLEY,

RICHARD J. SULLIVAN,

Circuit Judges,

BRIAN M. COGAN,

District Judge.*

_____________________________________

Rodney Keith Wright,

Plaintiff-Appellant,

v. 21-157

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.
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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 DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Appellant Rodney Wright, proceeding pro se, sought review of a final 

determination by the Commissioner of Social Security (“Commissioner”) denying 

his 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, the district court remanded the case for 

further development of the record. After a second hearing on Wright’s DIB claim 

in 2018, the Commissioner again denied his DIB application, and Wright brought 
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a second challenge in federal court. This time, 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 moved 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 parties’

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 decision 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. 
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Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citation and quotation marks 

omitted). After a careful review of the record, we conclude that the ALJ applied 

the correct legal standards and that his determination that Wright is not disabled

is 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 Commissioner 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 the 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 benefits. 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 steps 
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of the inquiry. At step four, the Commissioner assesses the claimant’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 found 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, 
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the Commissioner determined that Wright was not disabled, and therefore not 

entitled to benefits.

In 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 an impairment listed in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. 

The district court disagreed, concluding that the evidence relied on by Wright did 

not refer to his insomnia, which in any event did not meet the definition of any 

listed impairment. 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 listed impairment definition for any condition; they 

demonstrate only that he complained of poor sleep. And, as the Commissioner 

noted, Wright reported that 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 district 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 Affairs 
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Medical Center doctors such as Drs. Christine Fitzpatrick, Simon Raskin, and Raz 

Winiarsky. It did not require the ALJ to obtain supplemental opinions from 

consulting 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 determination 

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.
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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 the 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, the 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 suitable 
9

would require him to sit for more than six consecutive hours, the limit prescribed 

by the ALJ in his residual functional capacity analysis. See DOT § 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