Prince v. Commissioner of Social Security

Filing 20

MEMORANDUM & ORDER: The Commissioner's 15 Motion for Judgment on the Pleadings is GRANTED. Plaintiff's cross motion for judgment on the pleadings is DENIED. The Clerk of Court is respectfully directed to enter judgment for the Commissioner and to close the case. So Ordered by Judge Nicholas G. Garaufis on 5/9/2016. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------------)(
BRENDA PRINCE,
Plaintiff,

MEMORANDUM & ORDER

-against-

14-CV-5695 (NGG)

CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.

------------------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.
Prose Plaintiff Brenda Prince brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c), seeking judicial review of the Social Security Administration's (the "SSA")
decision that she is not disabled and therefore, does not qualify for Social Security Disability and
Supplemental Security Income benefits. Defendant Carolyn W. Colvin, the Commissioner of
Social Security, (the "Commissioner") has filed a motion, and Plaintiff has filed a cross motion,
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (See Def.'s
Not. ofMot. (Dkt. 15); Pl.'s Opp'n & Mot. for J. on Pleadings ("Pl.'s Opp'n") (Dkt 17).) For the
reasons set forth below, the Commissioner's motion is GRANTED and Plaintiff's cross-motion
is DENIED.

I.

BACKGROUND
A.

The Administrative Law Judge's Decision

Plaintiff claims that she is disabled because she suffers from a number of impairments
that have prevented her from engaging in substantial gainful activity since January 31, 2012.
(See Administrative R. ("R.") (Dkt. 7) at 13.) These impairments include: cervical arthritis and
levoscoliosis, chronic lumbar pain related to a lumbar strain, obesity, depression, hypertension,

hyperlipidemia, vitamin D deficiency, diabetes, astigmatism, dry eyes, bilateral knee pain,
anxiety, anemia, and an abdominal disorder. CM, at 13-14.) The Administrative Law Judge
("ALJ") found that only her cervical arthritis, levoscoliosis, chronic lumbar pain, obesity, and
depression were significant enough to be classified as severe impairments. (Id. at 13.) However,
the ALJ determined that these impairments did not meet or equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. (Id. at 14-19.) The ALJ considered
Plaintiffs ailments and background when determining which jobs Plaintiff could still perform,
and made a ruling that Plaintiff could work as a parking lot attendant, a price marker, or a ticket
seller. (Id. at 20.) When making this decision, the ALJ took into account Plaintiffs claims of
pain and numbness when sitting or standing for too long and included a 30 minute sit/stand
option in his ruling. (Id. at 17, 20.)
B.

Factual Background

Plaintiff was born on September 19, 1961. (Id. at 19.) She has a high school education.
(Id. at 19.) From 1987 until January 1, 2001, Plaintiff was employed as a home health aide. (Id.
at 127.) On January 1, 2001, Plaintiff stopped working as a home health aide because she
needed to take care of her disabled daughter. (Id. at 135.) Plaintiff believes her conditions
became severe enough to keep her from working on January 1, 2007. (Id. at 135.) The relevant
conditions developed over the span of several years include: cervical arthritis and levoscoliosis,
chronic lumbar pain related to a lumbar strain, obesity, and depression. (Id. at 13.)

I.

Relevant Medical Evidence Prior to Plaintiffs January 31, 2012
Supplemental Security Income Application

Prior to the filing of her Supplemental Security Income ("SSI") application, Plaintiff was
treated for hypertension, obesity, diabetes, vision problems, and depression. Mat 238.) On
May 11, 2007, Plaintiff was diagnosed with uncontrolled hypertension and obesity by her then
2

primary physician, Dr. Harris-Davis.

ilil at 240.) On March 5, 2008, Dr. Harris-Davis noted

that Plaintiff had a history of hypertension and headaches, though the headaches had stopped.

ilil) At this time, Plaintiff's hypertension was uncontrolled; accordingly, Dr. Harris-Davis
discussed treating Plaintiff's obesity with diet and weight loss.

ilil) Plaintiff had numerous

follow up visits with Dr. Harris-Davis from March 2008 through June 2008. (&
at 263, 281, 284, 289.) However, her hypertension was never controlled. (Id.)
On October I, 2008, Plaintiff saw Dr. Sandra Robinson who discussed diet and weight
loss with her.

ilil at 298.) Dr. Robinson noted that Plaintiff's hypertension was under control.

(Id. at 301.) Plaintiff's weight had decreased from 287 to 273 pounds. (Id.) Plaintiff saw Dr.
Robinson again on March 23, 2009, and had no specific medical complaints. (Id. at 307.)
Nonetheless, Dr. Robinson noted Plaintiff's obesity and hypertension remained a concern. (@
Plaintiff saw a nutritionist on April 8, 2009; the nutritionist characterized Plaintiffs
hypertension as borderline.

ilil at 308.) At the time, Plaintiff weighed 270 pounds and she was

instructed on proper nutrition. (@
On December 18, 2009, Plaintiff visited the Interfaith Medical Center seeking treatment
for her hypertension. (Id. at 321.) She met with Dr. Inna Grishina, who became her new
primary care doctor and who was her treating physician when she applied for Social Security
Disability benefits. (Id. at 432-33.) Dr. Grishina diagnosed Plaintiff with hypertension and
morbid obesity. (Id. at 322.) Dr. Grishina recommended a low cholesterol diet and a dietary
evaluation. (Id.) On February 9, 2010, Plaintiff returned to Dr. Grishina for a follow up visit.
(Id. at 328.) Dr. Grishina noted that Plaintiff had hyperlipidemia and uncontrolled hypertension.
(Id. at 328.) He also noted that she had a vitamin D deficiency, diabetes, and that her obesity
was still a concern. (Id. at 329.)

3

On February 19, 2010, Plaintiff visited the Interfaith Medical Center complaining of high
blood pressure. (Id. at 342.) She met with Dr. Zewge Deribe, an attending physician at the
center, who noted that Plaintiff had borderline diabetes, which could be diet-controlled. (.hl,
at 347.) Plaintiff reported that she felt comfortable and had occasional headaches. (Id.) Dr.
Deribe indicated that Plaintiffs hypertension was uncontrolled and that Plaintiff had
dyslipidemia and obesity. Mat 348.) Dr. Deribe further noted that Plaintiff, who was already
on the cholesterol-lowering drug, Lipitor, should increase her dosage. (Id.) Plaintiff was also
advised by Dr. Deribe to take this Lipitor at the same time each night. (Id. at 352.)
On March 5, 2010, Plaintiff returned to Dr. Grishina at the Interfaith Medical Center for a
follow up visit; Plaintiff had no complaints. (Id. at 363.) Nonetheless, Dr. Grishina
recommended a referral to a dietician. (Id. at 364)
Throughout 2010, Plaintiff continued treatment at the Interfaith Medical Center for
hypertension, obesity, astigmatism, and diabetes. (Id. at 368-425.) She continued to be
borderline diabetic and exhibited symptoms of hypertension. (Id. at 371.) On May 6, 2010,
Plaintiff saw Dr. Lamont Freeman complaining of blurry vision and difficulty seeing far
distances. (Id. at 375.) She was diagnosed with astigmatism and myopia. (.hl,) Throughout the
remainder of2010 and into 2011, Plaintiff continued to see Dr. Grishina. (Id. at 389-420.)
Plaintiff had no specific complaints but she remained obese and was advised to take her blood
pressure medication as prescribed. (Id. at 394.)
On July 15, 2011, Plaintiff saw Dr. Gopal Kaza, an attending physician at the Interfaith
Medical Center. (.hl, at 419 .) Although Dr. Kaza noted Plaintiffs history of hypertension, Dr.
Kaza found that her hypertension was under control. (Id. at 420.) Dr. Kaza spoke to Plaintiff
about medicine compliance because Plaintiff appeared to have a tendency of not taking her blood

4

pressure medication as prescribed. (Id. at 420.) Plaintiff saw Dr. Kaza at a follow up visit on
October 14, 2011.

ilil at 424.) Dr. Kaza noted Plaintiff's hypertension, dyslipidemia, glucose

intolerance, and obesity remained unchanged. (Id. at 425.)
2.

Rel~vant Medical Evidence From the Date of Plaintiffs SSI Application

Until the Date that Plaintiffs SSI Application was Denied by the ALJ
a.

Evidence Related to Plaintiff's Physical Impairments

Plaintiff visited Dr. Grishina on February 10, 2012. (Id. at 432-33.) Dr. Grishina noted a
swelling in Plaintiff's extremities, which Dr. Grishina classified as edema. (Id. at 433.) But Dr.
Grishina also observed that Plaintiffs hypertension, dyslipidemia, and glucose intolerance were
under control. (Id.) On March 9, 2012, Dr. Grishina noted that Plaintiffs hypertension was
controlled by medication and her hyperlipidemia was stable on Lipitor. (Id. at 442.) Plaintiff
was again counseled concerning her obesity, exercise, and diet. (Id.)
On April 10, 2012, Dr. Jerome Caiati, a doctor hired by the Commissioner of Social
Security to examine Plaintiff, conducted an examination. (Id. at 193-96.) Dr. Caiati noted
Plaintiff's history of hypertension since 1982, diabetes since 1998, and more recently a history of
hyperlipidemia, anemia, depression, astigmatism, vitamin D deficiency, bilateral knee pain, and
an unspecified abdominal disorder. (1l at 193.) At the time, Plaintiff, who was five feet four
inches tall, weighed 272 pounds. (Id.) Plaintiff reported to Dr. Caiati that she could cook, clean,
and do laundry. (Id.) She showered, bathed, and dressed herself. (Id.) She reported that she
spent time watching television and reading. (Id.) During the examination, Plaintiff was in no
acute distress and was able to accomplish the tasks Dr. Caiati asked her to perform. (Id. at 194.)
Specifically, Plaintiff walked with a normal gait and stance, used no assistive devices, and could
walk on her heels and toes without difficulty. (hl,) She could fully squat while holding the
examination table for assistance and had no difficultly rising from a chair, changing for the
5

examination, or getting on and off the examination table. (Id.) Plaintiff had normal range of
motion in her cervical spine, shoulders, elbows, forearms, and wrists. (Id. at 194-95.) Plaintiff
had normal deep reflexes, no sensory deficits, and full strength in her extremities. (Id.) Dr.
Caiati opined that Plaintiff could sit, stand, walk, reach, push, pull, lift, climb, and bend without
restriction. (Id. at 196.)
On May 11, 2012, Plaintiff returned to Dr. Grishina for a follow up. (IQ, at 448-49.) Her
hypertension was moderately controlled and her hyperlipidemia was stable on Lipitor. (IQ,
at 449.) Dr. Grishina reported that Plaintiff was well-motivated with respect to her obesity and
had lost six pounds since her last visit. (IQ,) Dr. Grishina opined that, due to pain in Plaintiffs
legs and tiredness, Plaintiff was limited to walking less than two blocks at a time. (Id. at 448.)
During a follow up visit with Dr. Grishina on August 10, 2012, Plaintiff complained of
migraines. Mat 455.) Accordingly, Plaintiff was referred to a neurologist. (Id. at 456.) Dr.
Grishina noted that Plaintiff had been taking the medication Fluoxetine for depression. (Id.)
Plaintiff saw Dr. Bordes Laurent, a neurologist, on January 17, 2013. (Id. at 462.)
Plaintiff complained of headaches and blurred vision. (Id.) Plaintiff further stated that she slept
poorly and was stressed because she was caring for her autistic child. (Id.) She also complained
ofmusculoskeletal pain, but she was able to walk about freely. (Id. at 462-63.) Dr. Laurent
recommended weight reduction, hydrotherapy, aromatherapy, and physical therapy. (Id. at 463.)
On January 8, 2013, Dr. Min Shen, a physician at the Interfaith Medical Center, had
ordered X-rays of Plaintiffs cervical spine on behalf of Plaintiffs treating physician, Dr.
Grishina. (Id. at 483-84.) Plaintiff saw Dr. Luis Cruz on January 30, 2013, seeking treatment for
neck and back pains. (Id. at 4 70, 502.) Plaintiff reported that her neck and back pains would
begin spontaneously and could last for hours. (Id. at 502.) She rated her pains a four on a scale

6

from one to ten. (Id.) Dr. Cruz did not observe any problems with Plaintiffs right or left
extremities. (Id. at 503-04.) Dr. Cruz recommended physical therapy three times per week.
During Plaintiffs appointment with Dr. Cruz, he reviewed Plaintiffs cervical X-rays taken on
January 8, 2013. (Id. at 483-84.) The X-rays revealed straightening of the curvature of the
spine, small anterolisthesis at the C6-C7 level, and arthritic changes. (Id. at 483-84.) There were
no fractures or compression and the prevertebral space was unremarkable. (Id. at 483.)
On March 6, 2013, Plaintiff saw Dr. Cruz for a follow up visit. (IQ, at 491.) He reported
that she had been going to physical therapy for chronic neck and lower back pains between
February 4, 2013, and February 25, 2013. (Id. at 491-501.) Plaintiff reported improvements in
her lower back, though she continued to complain of neck pain and stiffness. (Id. at 491.) Dr.
Cruz noted that Plaintiff needed to continue physical therapy. (Id.)
Plaintiff was seen by Dr. Laurent for a follow up visit on March 26, 2013. (Id. at 558.)
She complained of bilateral hand numbness over the left side of her body but denied other
complaints, including headaches. (Id.) Examination of the neck revealed it was supple without
tenderness. (Id.) Dr. Laurent diagnosed musculoskeletal pains and cervical anterolisthesis at the
C6-C7 level. (Id.)
b.

Evidence Related to Plaintiffs Mental Impairments

Dr. Michelle Bornstein, a psychologist, conducted a consultative psychiatric examination
on April 10, 2012, on the behalf of the Commissioner of Social Security to assess Plaintiffs
alleged depression. (IQ, at 189-92.) Plaintiff reported no psychiatric history. (Id. at 189.)
Plaintiff stated that she could dress, bathe, groom herself, cook, clean, do laundry, shop, manage
her money, and take public transportation. (Id. at 191.) She did not have any close friends, but
was close with her family. (Id.) Plaintiff reported difficulty falling asleep, loss of appetite,

7

dysphoric moods, crying spells, loss of usual interests, and social withdrawal over the previous
two years. (Id. at 189.) She denied suicidal ideation, plan, or intent. (Id.) Dr. Bornstein did not
find any evidence of anxiety, panic attacks, manic symptoms, thought disorder symptoms, or
cognitive deficits. (Id.) During the examination, Plaintiff was cooperative and demonstrated an
adequate manner of relating, social skills, and overall presentation. (Ml at 190.) Dr. Bornstein
noted that Plaintiffs motor behavior was normal and her eye contact was appropriate. (Id.)
Likewise, her thought processes were coherent and goal directed. (Id.) The doctor wrote that
Plaintiffs mood and affect were dysphoric. (hl) Additionally, Dr. Bornstein noted that her
sensorium was clear and that she was fully oriented. (Id.) Dr. Bornstein further stated that
Plaintiffs concentration and recent and remote memory skills were intact, and her cognitive
functioning was in the low average range. (Id.) Dr. Bornstein concluded that Plaintiff
demonstrated fair insight and judgment. (Id.)
Dr. Bornstein diagnosed Plaintiff with major depressive disorder, mild. (Id. at 191.) She
opined that Plaintiff could follow and understand simple directions and instructions, perform
simple tasks independently, maintain attention and concentration, maintain a regular schedule,
learn new tasks, perform complex tasks independently, make appropriate decisions, relate
adequately with others, and appropriately deal with stress. (Ml)
On May 9, 2012, Dr. Kennedy-Walsh, a psychiatric consultant, reviewed the evidence in
the record and concluded that Plaintiffs affective disorder was not a medically severe
impairment. (Id. at 197-210.) Dr. Kennedy-Walsh found that Plaintiff had no restrictions of
activities of daily living, or maintaining concentration, persistence, or pace. (Id. at 207.)
Although Plaintiff had mild difficulties in maintaining social functioning, she never had repeated
episodes of deterioration. (Id.)

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3.

Evidence Submitted to the SSA's Appeals Council After the ALJ
Rendered His Decision

On July 2, 2012, Dr. Le-Ben Wan, a psychiatrist at Community Counseling and
Mediation, assessed Plaintiff for mental health treatment. (hl, at 580-87.) Plaintiff complained
of a depressed mood stemming from the murder of her nephews (four years earlier) and a
burglary (one year earlier). (Id. at 580.) Her mood had been up and down with more bad days
than good. (Id.) On bad days, Plaintiff had symptoms of social withdrawal, anhedonia, low
energy, poor sleep, poor appetite, and poor concentration. (hl,) Plaintiff stated that she had last
worked in 2000, due to difficulty finding a job and because she had to care for her autistic
daughter. (Id. at 583.) Plaintiff lived alone and took care of her daughter. (Id.) Dr. Wan
diagnosed Plaintiff with a major depressive disorder or adjustment disorder, chronic, with
depressed mood; he assessed a global assessment of function ("GAF") of55. 1 Dr. Wan
recommended unspecified medication and weekly psychotherapy as means of addressing her
depression. (Id. at 586-87.)
On August 4, 2012, Plaintiff returned to Dr. Wan. (Id. at 579.) Plaintiff complained of a
depressed mood and reported visual hallucinations several times per day. (Id.) Dr. Wan
prescribed Prozac. (Id.) Plaintiff missed several scheduled appointments with Dr. Wan before
seeing him again on February 2, 2013. (Id. at 578.) Plaintiff reported that her visual
hallucinations had stopped, but that she had a dysphoric mood. (Id.) She also reported stress
from caring for her autistic daughter. (Id.) The remainder of her mental status examination was
normal. (Id.) On March 2, 2013, Plaintiff returned to Dr. Wan with a stable and improved
mood. (Id. at 577.) Plaintiff saw Dr. Wan for follow up on April 4, 2013, and May 11, 2013.
1
GAF is a measure of overall psychological functioning on a scale of 0 to 100; a GAF between 51 and 60 indicates
moderate symptoms or moderate difficulty in social, occupational, or school functioning. (See Def. 's Mem. at 10
n.3.)

9

Mat 577-76.) At those appointments Plaintiff no longer reported a depressed mood, and her
mental status examination remained unremarkable. (14, at 575-76.)
4.

Evidence Submitted to the District Court After the Appeals Council
Denied Plaintiffs Appeal

On December 11, 2015, Plaintiff went to the Brooklyn Hospital Center, where she was
treated for post-menopausal bleeding and urinary incontinence. (Pl. 's Opp'n. at 2, 9.) Dr.
Haroutyoun Margossian saw Plaintiff on July 28, 2014, and on September 15, 2014, regarding
Plaintiffs urinary incontinence. (Id. at 9.) Dr. Margossian reported surgery had been scheduled
but Plaintiff cancelled the surgery. (Id.)
Plaintiff included in her brief, progress notes from doctors at the Interfaith Medical
Center and Dr. Cruz to indicate that she has continued seeing her neurologist for lumbar and
cervical degenerative joint disease, her opticians for eye care, and her physical therapist for
physical therapy sessions. (14,)
5.

Non-Medical Evidence
a.

Plaintiffs Testimony

Before her hearing, Plaintiff completed a function report on April 6, 2012. (R.
at 144-54.) Plaintiff reported that she shops by phone and mail several times per month, and it
takes her several hours. (Id. at 144.) She is able to pay bills, count change, and manage a
savings account. (Id.) Her conditions have not affected her ability to handle money, nor have
they affected her hobbies ofreading, watching television, and doing puzzles. (Id.) Plaintiff
reported that she does not go out regularly. (Id. at 145.) She also reported that she cannot lift
anything heavy or stand for a long period of time. (14,) Plaintiff wears prescription glasses 24
hours a day because she is far-sighted. (Id. at 146.) She is able to walk one half block before she
has to rest for about 45 minutes. (Id.) She is able to follow written and verbal instructions and
10

can finish what she starts. (Mh) She reported she is able to sit for about an hour and that she has
a hard time climbing stairs. (1Q, at 147.) She is not able to kneel due to knee pain. (Id.) She can
use her hands, though they sometimes feel numb. (Id.) Plaintiff reported that personal care and
light chores take longer than they used to. (Id. at 149.) Her back pain, obesity, and numbness in
her extremities limited her ability to do chores and her anxiety interfered with her sleeping. (Id.)
She also reported trouble remembering things and that she would get anxiety attacks where her
heart rate increased and she would sweat a lot. (1Q, at 152-53.)
During the June 10, 2013, hearing before Administrative Law Judge Jonathan Baird (the
"ALJ"), Plaintiff testified that she worked as a home health aide from 1997-2001, but stopped
working to take care of her autistic daughter full time. (Id. at 36, 39.) She added that she also
stopped working because of a lack of work and her health issues. (Id. at 38-39.) Plaintiff
testified that she did not currently work because of the numbness in her fingers and thighs, and
because she could not walk for a long period of time without stopping to rest. (Id. at 37-38.)
She indicated that she had lower back and neck pains, and that she could not go back to her past
work as a home health aide because it was too physically strenuous. (1Q, at 38-39, 46.)
Plaintiff testified that she could walk for approximately one half block before she had to
stop and rest, but she also testified that she walked three to five blocks to the store. (1Q,
at 40, 42.) She approximated that she could stand for 30 minutes and that if she sat for too long
her feet and thighs became numb. (Id. at 40.) Plaintiff stated she could bend over, but it caused
pain. (Id. at 41.) She also testified that she had been taking Prozac, which had helped her with
depression, caused by the death of her two nephews. (Id. at 45.)

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b.

Vocational Expert: Larry Takki

Larry Takki, a vocational expert, also testified at Plaintiffs hearing. (Id. at 48.) The ALJ
posed a hypothetical question to Mr. Takki, describing an individual of Plaintiffs age,
educational background, and work background, who could perform only light work and could
only occasionally climb ramps and stairs, stoop, kneel, crouch, or crawl. (Id. at 49.) This
hypothetical individual could not climb ladders, roofs, or scaffolds; bend or stand; or carry out or
remember detailed instructions. (Id.) Mr. Takki testified that such an individual could not
perform Plaintiffs past work as a home health aide, because work as a home health aide is semiskilled work, but could perform the jobs of parking lot attendant, price marker, and ticket seller.
(Id. at 49-50.) Mr. Takki also stated that an individual with all of the above limitations, but who
would also require an option of alternating sitting and standing every 30 minutes, could do the
same jobs. (Id. at 50-51.)
II.

PROCEDURAL HISTORY
On January 31, 2012, Plaintiff filed an application for Social Security Disability Benefits,

claiming that she had been disabled since January I, 2007. (Id. at 11.) The SSA denied the
application on May 11, 2012. (Id.) Plaintiff filed a written request for a hearing on
June 29, 2012. (Id.) On June 10, 2013, the ALJ held a video hearing, in which Plaintiff
appeared in Brooklyn, New York, and the ALJ presided over the hearing from Lawrence,
Massachusetts. Larry Takki, an impartial vocational expert, also appeared at the hearing, in
Massachusetts. (M,) On July 26, 2013, the ALJ issued a written decision concluding that
Plaintiff was not disabled within the meaning of the Social Security Act, and denying Plaintiffs
application for Social Security Disability Benefits. (Id. at 21.) Plaintiff requested that the SSA

12

Appeals Council review the ALJ' s unfavorable decision, and the Appeals Council denied the
request for review on July 25, 2014, upholding the ALJ's decision. (Id. at 1-4.)
On September 25, 2014, Plaintiff filed the instant action seeking judicial review of the
SSA's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (See Comp!. (Dkt. 1) iii! 1-2.) The
Commissioner filed her Answer on July 20, 2015. (See Ans. (Dkt. 8).)
III.

LEGAL STANDARD
A.

Review of Final Determinations of the Social Security Administration

Under Rule 12(c), "a movant is entitled to judgment on the pleadings only if the movant
establishes 'that no material issue of fact remains to be resolved and that [she] is entitled to
judgment as a matter of law."' Guzman v. Astrue, No. 09-CV-3928, 2011 WL 666194, at *6
(S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901F.2d266, 269
(2d Cir. 1990)). "The role ofa district court in reviewing the Commissioner's final decision is
limited." Pogozelski v. Barnhart, No. 03-CV-2914 (JG), 2004 WL 1146059, at *9 (E.D.N.Y.
May 19, 2004). "[I]t is up to the agency, and not [the] court, to weigh the conflicting evidence in
the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). "A district court
may set aside the Commissioner's determination that a claimant is not disabled only if the factual
findings are not supported by 'substantial evidence' or if the decision is based on legal error."
Shaw v. Chater, 221F.3d126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). "Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009) (internal quotation marks omitted). Thus, as long as (I) the ALJ applied the
correct legal standard, and (2) the ALJ's findings are supported by evidence that a reasonable
mind would accept as adequate, the ALJ' s decision is binding on the court. See

13

Pogozelski, 2004 WL 1146059, at *9.
B.

Determination of Disability

"To receive federal disability benefits, an applicant must be 'disabled' within the
meaning of the Social Security Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423. A
claimant is "disabled" within the meaning of the Social Security Act ifhe has an "inability 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. § 423( d)(l )(A).
The impairment must be of"such severity that [the claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy." Id.§ 423(d)(2)(A).
The SSA has promulgated a five-step procedure for determining whether a claimant is
"disabled" under the Social Security Act. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In
Dixon v. Shalala, the Second Circuit described this five-step analysis as follows:
The first step in the sequential process is a decision whether the
claimant is engaged in "substantial gainful activity." If so, benefits
are denied.
If not, the second step is a decision whether the claimant's medical
condition or impairment is "severe." If not, benefits are denied.
If the impairment is "severe," the third step is a decision whether
the claimant's impairments meet or equal the "Listing of
Impairments" set forth in ... the social security regulations. These
are impairments acknowledged by the [SSA] to be of sufficient
severity to preclude gainful employment. If a claimant's condition
meets or equals the "listed" impairments, he or she is conclusively
presumed to be disabled and entitled to benefits.
If the claimant's impairments do not satisfy the "Listing of

Impairments," the fourth step is assessment of the individual's
residual functional capacity," i.e., his capacity to engage in basic
14

work activities, and a decision whether the claimant's residual
functional capacity permits him to engage in his prior work. If the
residual functional capacity is consistent with prior employment,
benefits are denied.
If not, the fifth and final step is a decision whether a claimant, in
light of his residual functional capacity, age, education, and work
experience, has the capacity to perform "alternative occupations
available in the national economy." If not, benefits are awarded.

54 F.3d 1019, 1022 (2d Cir. 1995) (internal citations omitted).
The "burden is on the claimant to prove that he is disabled." Balsamo v. Chater, 142
F.3d 75, 80 (2d Cir. 1998) (internal citation and quotation marks omitted). But if the claimant
shows at step four that his impairment renders him unable to perform his past work, there is a
limited shift in the burden of proof at step five that requires the Commissioner to "show there is
other gainful work in the national economy that the claimant can do." Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (per curiam).
In making the determinations required by the Social Security Act and the regulations
promulgated thereunder, "the Commissioner must consider (!) the objective medical facts; (2)
the medical opinions of the examining or treating physicians; (3) the subjective evidence of the
claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's
educational background, age, and work experience." Pogozelski, 2004 WL 1146059, at *10
(citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
Moreover, "the ALJ conducting the administrative hearing has an affirmative duty to investigate
facts and develop the record where necessary to adequately assess the basis for granting or
denying benefits." Id.

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IV.

DISCUSSION
Plaintiff alleges that the ALJ erred in concluding that she was not disabled under the

Social Security Act because he did not have all of her medical history in evidence. (See Pl.'s
Opp'n.) Plaintiff attached a few doctor notes indicating that she was still receiving treatment for
various maladies. However, all of the evidence Plaintiff submitted post-dates the ALJ's decision
of July 26, 2013. (R. at 8-25.) A court may order the Commissioner to consider additional
evidence submitted for the first time to the district court, "only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding .... " 42 U.S.C. § 405(g); see also Schaal v.
Apfel, 134 F.3d 496, 506 (2d Cir. 1998). Evidence is material ifit is both "relevant to the
claimant's condition during the time period for which benefits were denied" and there is "a
reasonable possibility that the new evidence would have influenced the [Commissioner] to
decide claimant's application differently." See Tirado v. Bowen, 842 F.2d 595, 597
(2d Cir. 1998).
However, the majority of the evidence that Plaintiff submitted is cumulative, and
therefore, would not have influenced the ALJ to rule differently. Evidence is considered new if
it is "not merely cumulative of what is already in the record." Id. at 597. Plaintiff included
progress notes from doctors she was already seeing during her SSI application period. However,
these progress notes do not change the facts of her condition during the relevant time period, in
which she applied for and was denied benefits. Similarly, even though there is a summary of a
cervical spine X-ray taken on January 8, 2013, (see Pl.'s Opp'n at 5), which would be during the
relevant period, this X-ray is already contained in the record (see R. at 483-84) and was reviewed
by the ALJ. All of this evidence is merely cumulative because it reiterates and summarizes the

16

same notes from doctors she has been seeing for the past few years, for the same conditions.
There is no new evidence added through these notes and the X-ray.
Plaintiff submitted some new evidence regarding her urinary incontinence and postmenopausal bleeding. However, that evidence is not material to her condition during the
relevant time period because it reflects symptoms and medical problems that Plaintiff developed
after the ALJ's decision became final. See Frye ex re!. A.O. v. Astrue, 485 Fed. App'x. 484, 485
n.l (2d Cir. 2012) (relevant period in SSI claim is between the plaintiffs application date until
the ALJ's decision). Plaintiff submitted new evidence that did not correspond to any of the
medical problems she was experiencing during the time she filed her SSI claim. Because
Plaintiff's medical issues regarding urinary incontinence are not relevant to her condition during
that time period, this information is not material evidence, even if it is new.
While the court may order the ALJ to consider additional evidence ifthe evidence is
material, Plaintiff must also demonstrate that there is "good cause for the failure to incorporate
such evidence into the record in a prior proceeding." Schaal, 134 F.3d at 506; see also 42 U.S.C.
§ 405(g). Plaintiff's new evidence relates to a time period later than the date of the ALJ's
decision, dealing with new issues that are not material to the conditions for which she applied for
benefits. See Johnston v. Colvin, No. 13-CV-2710 (VEC) (FM), 2015 WL 657774, at *10
(S.D.N.Y. Feb. 13, 2015) (finding that the plaintiff's "new information related to a time period
later than the date of the ALJ' s decision" and thus was not admissible because plaintiff could not
demonstrate good cause for not including it before).
Plaintiff's progress notes do not report anything new that the ALJ would not have had
access to when determining her case and her new evidence regarding urinary incontinence and
post-menopausal bleeding are not material. Thus, Plaintiff did not meet her burden of showing

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how any of those medical records would have reasonably influenced the ALJ to decide her SSI
application differently.
A.

The ALJ's Five-Step Determination

While Plaintiff did not raise other objections to the ALJ's determination against her, the
court still assesses the legality of the determination because it is the court's responsibility to
liberally interpret the complaint of a pro se plaintiff. See Randazzo v. Barnhart, 332
F. Supp. 2d 517, 522 (E.D.N.Y. 2004).
Step One

I.

At step one, the court must ask if the ALJ correctly determined whether or not Plaintiff
was engaging in substantial gainful activity. (See R. at 12.) It is undisputed that Plaintiff was
not engaging in substantial gainful activity at the time she filed her SSI application, because she
was not working at all.
2.

ilil at 13.)

Step Two

At step two, the court asks ifthe ALJ determined whether Plaintiff had a medically
determinable impairment that is "severe" or a combination of impairments that is "severe." (Id.
at 12.) The ALJ determined that Plaintiff suffered from the following severe impairments:
cervical arthritis and levoscoliosis; chronic lumbar pain related to a lumbar strain; obesity; and
depression. (Id. at 13.) The ALJ classified these impairments as severe because they caused
more than a minimal limitation in the claimant's ability to perform basic work activities. (Id.)
The rest of Plaintiffs impairments were classified as either non-severe or as non-medically
determinable because the evidence did not support a finding of severe impairments.

ilil at 13-14.) These conditions include Plaintiffs hypertension, hyperlipidemia, vitamin D
deficiency, diabetes, astigmatism, dry eyes, bilateral knee pain, anxiety, anemia, and an

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undiagnosed abdominal disorder. (Id. at 13-14.) The court agrees with this classification of
Plaintiffs impairments because the ALJ correctly applied the definition of"severe." (Id. at 12
(citing 20 C.F.R. § 416.921); see also id. at 13-14.)
3.

Step Three

At step three, the court must ask ifthe ALJ correctly compared Plaintiffs impairments to
those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, when determining if Plaintiffs
impairments made her disabled. (Id. at 12) The ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1. Some of the relevant conditions in Appendix 1 are impairments to
the musculoskeletal system and mental disorders. 2 20 C.F.R. pt. 404, subpt. P, app. 1. The court
concludes that the ALJ did not commit error.
SSA regulations provide that ifthe applicant has "an impairment(s) which meets the
duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), [the SSA)
will find [the claimant) disabled without considering [her] age, education, and work experience."
See 20 C.F.R. § 416.920. Determinations at step three are "based solely on medical evidence."
See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berrv v. Schweiker, 675
F.2d 464, 467 (2d Cir. 1982) (per curiam) (internal quotation marks omitted)).
First, the Commissioner correctly found that the medical record did not provide evidence
that Plaintiffs physical impairments resulted in a compromise of the nerve root or the spinal
cord with evidence of nerve root compression characterized by motor loss, spinal arachnoiditis,
or lumbar spinal stenosis. Therefore, her physical impairments did not result in an inability to
ambulate effectively as defined in Appendix 1. (R. at 14.)

2

The court agrees with the ALJ's determinations of what the relevant Appendix 1 impairments are in this case.

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Second, the Connnissioner correctly determined that Plaintiff's mental impairment did
not satisfy the "paragraph B" criteria, which is a set of impairment-related functional limitations.
He found that Plaintiff's mental impairment did not result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration. (Id.) Based on the medical and opinion
evidence, the ALJ determined that Plaintiff's mental impairments caused only mild restrictions
in her activities of daily living; mild difficulties in social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and no episodes of decompensation. (Id.)
Based on the court's review of the record, this determination was not erroneous.
The court notes that the ALJ also listed Plaintiff's obesity as a severe impairment in step
two, but did not expressly determine whether it qualified as a listed impairment. According to
Appendix 1, the ALJ must consider any additional and cumulative effects of obesity on
Plaintiff's musculoskeletal system. See 20 C.F.R. pt. 404, subpt. P, app. I. Although the ALJ
did not expressly analyze whether Plaintiff's obesity qualified as a listed impairment, the court
notes the ALJ did perform a thorough analysis with respect to Plaintiff's cervical arthritis and
levoscoliosis; chronic lumbar pain related to a lumbar strain; and depression, which are the main
impairments reflected in Plaintiff's testimony and medical records. The ALJ contended Plaintiff
suffers from back pain, obesity, and depression but none of these conditions--or some
combination of them-equal the severity of the listed impairments found in 20 CFR Part 404,
Subpart P, Appendix I. @..,at 14.)
Finally, a court may affirm an ALJ's step-three determination even though the ALJ did
not give an express rationale but where there is sufficient, uncontradicted evidence in the record

20

to provide substantial evidence for the ALJ's conclusion. See Berrv v. Schweiker, 675
F.2d 464, 468 (2d Cir. 1982). Based on its review of the record, the court notes that the ALJ
accounted for the effects of Plaintiffs obesity when determining her residual functional capacity
to perform work, because the ALJ included special requirements such as a sit/stand option to
accommodate Plaintiffs difficulties. (R. at 14-15.)
4.

Step Four

At step four, the ALJ determined that Plaintiff had the residual functional capacity to
perform light work as defined in 20 C.F.R. 416.967(b) except:
[Plaintiff] would require a sit/stand option that would allow
[Plaintiff] to alternate sitting or standing position at 30 minute
intervals throughout the day; [Plaintiff] could only occasionally
climb ramps or stairs; never climb ladders, ropes, or scaffolds;
occasionally stoop, kneel, crouch, or crawl; [Plaintiff] could not
understand, carry-out, or remember any detailed instructions.
(14, at 14-15.) In reaching this determination, the ALJ considered all of Plaintiffs symptoms and

the extent to which these symptoms could reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements of20 C.F.R. 416.929
and S.S.R.s 96-4p and 96-7p. (Id. at 15.)
Indeed, this recommendation seems to take into account Plaintiffs obesity and her
claimed symptoms of numbness in the thighs, which could be a by-product of obesity's effect on
her musculoskeletal system and/or her cervical arthritis and levoscoliosis. The ALJ properly
followed the two-step process in which he must first determine whether there is an underlying
medically determinable physical or mental impairment-i.e., an impairment that can be shown
by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be
expected to produce the claimant's pain or other symptoms. (Id.) Second, once an underlying
physical or mental impairment, which could reasonably be expected to produce the claimant's
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pain or other symptoms has been shown, the ALJ then evaluates the intensity, persistence, and
limiting effects of the claimant's symptoms to determine the extent to which they limit the
claimant's functioning. (Id.) If there is nothing in the medical record to support claims of the
intensity and persistence of certain symptoms, the ALJ must make a finding on the credibility of
the statements, based on a consideration of the entire case record. (Id.) After reviewing the
entire case record, the ALJ determined that while Plaintiffs medically determinable impairments
could reasonably be expected to cause some of the alleged symptoms, Plaintiffs statements
concerning the intensity, persistence, and limiting effects of those symptoms were not credible.
(Id. at 15-16.)
Citing to Plaintiffs medical history, the ALJ determined the record contained little
objective evidence that Plaintiff suffered from any chronic numbness or dysfunction in her upper
or lower extremities as Plaintiff alleged at the hearing. (Id. at 16.) None of the medical records,
doctor's opinions, or any of the X-rays could give a valid, medical explanation for her numbness.
(Id.) Based on the evidence in front of him, the ALJ determined that while Plaintiff suffered
from some lower back pain-which had recently developed and was supported by objective,
medical evidence in the record-it would not limit her beyond light work. (Id.) In addition,
while her obesity and some lower extremity edema could reasonably limit her ability to walk for
a sustained period, she herself admitted in her testimony that she could walk three to five blocks
to the store. (Id. at 17, 42.) While she had added that she would need to take breaks to rest, the
ALJ factored in that accommodation when he added the sit/stand option every 30 minutes to
Plaintiffs residual functional capacity. (Id. at 17.)
Typically, the ALJ is required to give deference to the opinion of the Plaintiffs treating
physician on the issue of disability. Here, Dr. Grishina limited Plaintiff to walking less than two

22

blocks at a time, due to fatigue and pain in her legs. (Id. at 488.) While on the other hand, Dr.
Caiati stipulated that Plaintiff had no limitations. (Id. at 17.) In this case, the court finds that the
ALJ did not err in giving greater weight to the opinion of Dr. Caiati, the physical consultative
doctor who determined that Plaintiff was not disabled, than to Dr. Grishina, one of Plaintiff's
treating physicians. Under the SSA's regulations, "a treating physician's report is generally
given more weight than other reports." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). A
"treating physician" is a physician "who has provided the [claimant] with medical treatment or
evaluation, and who has or who had an ongoing treatment and physician-patient relationship with
the individual." Sokol v. Astrue, No. 04-CV-6631 (KMK) (LMS), 2008 WL 4899545, at *12
(S.D.N.Y. Nov. 12, 2008). The SSA's "treating physician rule" requires an ALJ to give a
treating physician's opinion "controlling weight" if"the issue(s) of the nature and severity of
[the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record." 20 C.F.R. § 404.1527(c). On the other hand, "[w]hen other substantial evidence in the
record"-such as other medical opinions-"conflicts with the treating physician's opinion, that
opinion will not be deemed controlling." Snell, 177 F.3d at 133. In addition, "some kinds of
findings-including the ultimate finding of whether a claimant is disabled and cannot work-are
reserved to the Commissioner" and are, therefore, never given controlling weight. Id. (internal
quotation marks omitted).
Even where an ALJ does not give controlling weight to a treating physician's opinion, the
ALJ must assess several factors to determine how much weight to give the opinion. See 20
C.F.R. § 404.1527(c)(2). Specifically, the ALJ must assess "(i) the frequency of examination
and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the

23

opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is
from a specialist; and (v) other relevant factors." Schaal v. Apfel, 134 F.3d 496, 503
(2d Cir. 1998); see also 20 C.F.R. § 404.1527(c)(2)-(6). While an ALJ need not mechanically
recite each of these factors, he or she must "appl[y] the substance of the treating physician rule."
Halloran v. Bernhart, 362 F.3d 28, 32 (2d Cir. 2004). The court will "not hesitate to remand
when the Commissioner has not provided 'good reasons' for the weight given to a treating
physician's opinion'' or when the court "encounter[s] opinions from ALJ s that do not
comprehensively set forth reasons for the weight assigned to a treating physician's opinion." Id.
at 33.
In this case, the ALJ did provide good reasons for giving more weight to Dr. Caiati's
opinion than to Dr. Grishina's. Dr. Grishina had limited Plaintiff to walking less than two blocks
at a time, due to fatigue and pain in her legs. (Id. at 488.) While the ALJ did not doubt that
Plaintiff experienced some pain and difficulties with lower extremity edema, obesity, and neck
pain, he determined that Dr. Grishina's opinion was not supported by the record as a whole. The
ALJ was correct. First, there is no objective evidence indicating that Plaintiff suffered from any
chronic pain in her lower extremities during her alleged period of disability. (Id.) Second, while
Plaintiffs obesity and lower extremity edema could reasonably limit her abilities to engage in
sustained walking, she herself acknowledged that she could walk three to five blocks to the store.
(Id.) Third, in May 2012, Dr. Grishina described Plaintiffs edema as mild, which undercuts the
persuasiveness of Plaintiffs argument that her edema prevented her from walking long
distances. (Id.) Last, Dr. Grishina' s opinion that Plaintiff could not walk due to pain is
inconsistent with the findings of Dr. Caiati who noted no significant symptoms or limitations in
her lower extremities. (Ml) Dr. Caiati noted that Plaintiff was able to perform a variety of tasks

24

without any pain or difficulty, and specifically noted that Plaintiff walked with a normal gait and
stance, used no assistive devices, and could walk on her heels and toes without difficulty. (Id.
at 193.) There is no objective medical evidence in the record which is consistent with Dr.
Grishina's assessment. This led the ALJ to doubt Plaintiffs credibility as to the severity of her
symptoms and allowed him to give more weight to Dr. Caiati's opinion over Dr. Grishina's.
Even ifthe court were to find that the ALJ erred by crediting Dr. Caitai's assessment
more than Dr. Grishina's, the ALJ still considered Dr. Grishina's opinion by implementing a 30
minute sit/stand option in his recommendation and adopting the vocational expert's
determination that Plaintiff could perform jobs with very little walking. Dr. Grishina limited
Plaintiff to walking two blocks at a time. He placed no limit on total activity. By examining
Plaintiffs job options if she could take sitting breaks, the ALJ addressed Dr. Grishina's
concerns. Therefore, even if crediting Dr. Caiati's assessment was erroneous, the ALJ's ultimate
determination was not erroneous because his determination of Plaintiffs residual functional
capacity to perform light work is still consistent with Dr. Grishina's assessment. See Schisler v.
Bowen, 851F.2d43, 46 (2d Cir. 1988) ("[M]edical opinions will be considered in the context of
all the medical and other evidence in making that decision.").
The ALJ agreed with Plaintiff that she could not perform her past work as a home health
aide; however, he did not agree with Plaintiff that she was incapable of performing less strenuous
work. (R. at 17.) The ALJ reported, "[w]hen asked why she could not perform less strenuous
work, the claimant testified that she cannot work because she has no one to care for her daughter,
explaining that she cannot leave her daughter alone ... [because she] is autistic." (Id.) While
the ALJ expressed "[sympathy] with the claimant's dilemma," having to take care of an autistic
child is not a valid reason to grant disability benefits. (Id.) Plaintiff engages in a variety of

25

activities daily, from going to appointments, shopping, cooking, and performing household
chores. (Id.) While she may need to take breaks due to fatigue, the ALJ correctly determined
that because Plaintiff is able to engage in light work such as household chores, she should be
able to perform light work in the workforce. (Id.)
With regard to Plaintiffs mental impairment, the court agrees with the ALJ that the
objective medical evidence and Plaintiffs treatment history do not support her allegations of
disabling symptoms. (Id. at 18.) Plaintiffs depression mildly interferes with her daily activities,
and Plaintiff even acknowledged that her depressive symptoms have responded to medication.
(Id.) She is still able to go to the store, go to multiple appointments, and maintain a relationship
with her family, all of which require a certain degree of normal social functioning and of which
she is able to sustain despite her depression. (Id.)
5.

Step Five

The court agrees with the ALJ's conclusion, which was based on the vocational expert's
testimony, that a hypothetical individual of Plaintiffs age and background with a residual
functional capacity to perform light work would be capable of employment as a parking lot
attendant, a price marker, and a ticket seller. In reaching this conclusion, the ALJ considered the
entire record, including Plaintiffs description of her symptoms and the extent to which those
symptoms could be reasonably accepted as consistent with the objective medical evidence. (Id.
at 15-19.) See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) ("[T]he ALJ has discretion to
evaluate the credibility of a claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of the pain alleged by the
claimant."). The ALJ determined that the vocational expert's testimony was consistent with the
information contained in the Dictionary of Occupational Titles, with the exception of the

26

sit/stand option that the ALJ included in his assessment of Plaintiffs residual functional
capacity. (R. at 20.) This determination is supported by the medical evidence in the record and
the ALJ's assessment of Plaintiffs credibility. (Id. at 20-21)
V.

CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is

GRANTED. Plaintiff's cross motion for judgment on the pleadings is DENIED. The Clerk of
Court is respectfully directed to enter judgment for the Commissioner and to close this case.
SO ORDERED.

s/Nicholas G. Garaufis

ticiroLAs-o.yoAuuFISCI

Dated: Brooklyn, New York
May'!--, 2016

United States District Judge

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