Mai v. John Doe, Commissioner of Social Security Administration

Filing 17

ORDER granting 13 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, the Court finds that the ALJ applied the proper legal standards and his find ings are supported by substantial evidence in record. Accordingly, the Court GRANTS the Commissioners motion for judgment on the pleadings and DENIES Plaintiffs cross-motion. The Clerk of Court is respectfully directed to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 9/29/2017. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HONG MAI,

Plaintiff,

MEMORANDUM
& ORDER

− against −

15−CV−7448 (PKC)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Hong Mai (“Plaintiff”), appearing pro se, brings this action under 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of the Social Security Administration’s (“SSA”)
denial of her claim for Supplemental Security Income (“SSI”). The parties have cross-moved for
judgment on the pleadings.

For the reasons set forth below, the Court GRANTS the

Commissioner’s motion and DENIES Plaintiff’s motion.

Accordingly, the Commissioner’s

decision is affirmed.
BACKGROUND
I.

Procedural History
Plaintiff filed an application for SSI on March 27, 2002, alleging disability beginning on

January 1, 1996, due to heart problems, tuberculosis, thyroid disease, diabetes, high cholesterol,
breathing difficulties, and skin problems. (Tr. 1 97, 101.) On June 21, 2002, the SSA denied
Plaintiff’s claim. (Tr. 86−87.) On June 25, 2002, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 89.) That hearing initially was scheduled for April 5,

1

The abbreviation “Tr.” refers to citations to the certified administrative record (1-1276).

2004, but Plaintiff failed to appear. (Tr. 95.) After the hearing was rescheduled, Plaintiff appeared
pro se before ALJ Sol A. Wieselthier on August 23, 2004. (Tr. 31, 34.) In a decision dated
December 27, 2005, ALJ Wieselthier denied Plaintiff’s claims. (Tr. 12−14.) ALJ Wieselthier’s
decision became final on April 19, 2006, when the Appeals Council denied Plaintiff’s request for
review. (Tr. 5−7.) Plaintiff appealed ALJ Wieselthier’s decision to this Court. (Tr. 584−90.) In
an opinion dated July 10, 2007, the Honorable Allyne R. Ross remanded the case to the
Commissioner for further development and re-evaluation of the record. (Tr. 587.) The Appeals
Council then vacated ALJ Wieselthier’s decision and remanded the case to ALJ Wieselthier, who
held another hearing on April 8, 2008. (Tr. 593, 675.) Plaintiff again appeared pro se at the
hearing before ALJ Wieselthier. (Tr. 677−78.)
On November 7, 2008, the ALJ Wieselthier again found that Plaintiff was not disabled. (Tr.
560−69.) On November 27, 2008, Plaintiff filed a notice of disagreement. (Tr. 556.) The Appeals
Council denied Plaintiff’s request for review on January 11, 2010, thereby making ALJ Wieselthier’s
decision on remand final. (Tr. 553(A)−55.) Following the denial, Plaintiff again appealed the
decision to this Court. (See Tr. 749.) On March 10, 2011, Plaintiff filed a second application for
SSI, which was later consolidated with the March 27, 2002 application. (See Tr. 777.) On November
7, 2011, Judge Ross again remanded the case to the Commissioner. (Tr. 749−54.) The Appeals
Council then remanded the case to ALJ Hazel C. Strauss. (Tr. 797−98.) On September 13, 2012,
Plaintiff appeared at a hearing before ALJ Strauss. (Tr. 1207.) In a July 18, 2013 decision, ALJ
Strauss found that the Plaintiff was not disabled. (Tr. 777−795.) On May 12, 2014, Plaintiff was
determined to be a class member eligible for relief pursuant to Padro v. Colvin, No. 11-CV-1788
(CBA), 2013 WL 5719076 (E.D.N.Y. Oct. 1, 2013). (Tr. 722, 831−36.) Thus, her case was

2

reassigned to ALJ Michael Friedman, 2 who was not one of the ALJs identified in Padro. (Tr. 722,
739.) ALJ Friedman held a hearing on August 6, 2015, and on October 20, 2015, issued a decision
finding that Plaintiff was not disabled. (Tr. 722−39.) The Appeals Council received the Plaintiff’s
request for appeal on December 2, 2015. (Tr. 715.) On March 30, 2016, the Appeals Council found
Plaintiff’s request for an appeal untimely because she did not send her objections within thirty days
of ALJ Friedman’s decision. (Tr. 715−16.) Accordingly, ALJ Friedman’s October 20, 2015
decision is the final decision of the Commissioner that is subject to judicial review in the instant
action, which Plaintiff commenced on December 15, 2015. (Dkt. No. 1.)
II.

ADMINISTRATIVE RECORD
A.

Medical Evidence
1.

Treating Physicians
a.

Bellevue Hospital Center Physicians (Before March 27, 2002) 3

Beginning in 1995, Plaintiff was treated at Bellevue Hospital Center (“Bellevue”) for a
range of conditions including asthma, hypothyroidism, 4 cardiovascular disease, hepatitis,

2

Unless otherwise indicated, references to the “ALJ” in these proceedings refer to ALJ
Friedman.
3

The Court has divided Plaintiff’s medical treatment at Bellevue Hospital into two
periods—before March 27, 2002 (the date on which Plaintiff’s SSI application was filed) and after
March 27, 2002—because the relevant time period for an application for SSI benefits is “the date
the SSI application was filed, to . . . the date of the ALJ’s decision.” Frye ex rel. A.O. v. Astrue,
485 F. App’x. 484, 488 n. 2 (2d Cir. 2012) (summary order). Although the Court summarizes
Plaintiff’s pre-March 27, 2002 medical history, as discussed infra, the ALJ reviewing Plaintiff’s
application may discount or disregard the treatment and medical opinions rendered during this preapplication period.
4

Hypothyroidism is a condition in which the thyroid does not produce enough of certain
hormones. Untreated hypothyroidism can cause obesity, joint pain, infertility, and heart disease,
among other health problems. See Hypothyroidism, MAYO CLINIC,
http://www.mayoclinic.org/diseases-conditions/hypothyroidism/home/ovc-20155291 (last visited
Sept. 18, 2017).
3

tuberculosis, non-insulin dependent diabetes mellitus (NIDDM), 5 peripheral neuropathy, 6
blepharitis, 7 hyperlipidemia, 8 and hyporeflexia. 9 In November 1995, Plaintiff had a positive
purified protein derivative (PPD) 10 test, which was treated for six months with isonicotinic acid
hydrazide (INH). 11 (Tr. 145.) In December of 1995, Plaintiff, on referral from NENA Health
Council, presented to the Bellevue Emergency Department with complaints of an enlarged thyroid.
(Tr. 543−44.) Dr. James Go performed a thyroid biopsy for which the results were consistent with
a nodular goiter. 12 (Tr. 541–542.) In February 1996, Dr. Go opined that Plaintiff was able to
“resume regular employment.” (Tr. 538.) In June 1996, Plaintiff underwent a left thyroidectomy
in China. (Tr. 151−52, 519, 535.)

NIDDM is the former designation for Type II diabetes. See Non−insulin Dependent
Diabetes Mellitus (NIDDM), STEDMAN’S MEDICAL DICTIONARY 243400.
5

6

Peripheral neuropathy is a result of damage to peripheral nerves that can cause
weakness, numbness, and pain in hands, feet, and other parts of the body. See Peripheral
Neuropathy, MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/peripheralneuropathy/home/ovc-20204944 (last visited Sept. 18, 2017).
7

Blepharitis is an inflammation of the eyelids. See Blepharitis, STEDMAN’S MEDICAL
DICTIONARY 106660.
8

Hyperlipidemia occurs when elevated levels of lipids are in the blood plasma. See
Hyperlipidemia, STEDMAN’S MEDICAL DICTIONARY 424210.
9

Hyporeflexia is a condition in which the reflexes are weakened. See Hyporeflexia,
STEDMAN’S MEDICAL DICTIONARY 430160.
10

Purified protein derivative (PPD) skin test is a method used to diagnose silent (latent)
tuberculosis infection.
See PPD skin test, U.S. NATIONAL LIBRARY OF MEDICINE,
https://medlineplus.gov/ency/article/003839.htm (last visited Sept. 18, 2017).
11

Isonicotinic acid hydrazide is the “first-line and probably most commonly used
antituberculosis drug.” See Isoniazid, STEDMAN’S MEDICAL DICTIONARY 459320.
12

A goiter is an enlargement of the thyroid gland that can cause difficulty swallowing
and breathing. See Goiter, MAYO CLINIC, http://www.mayoclinic.org/diseasesconditions/goiter/home/ovc-20264589 (last visited Sept. 18, 2017).
4

In September 1996, Plaintiff returned to Bellevue Emergency Department for flu treatment.
(Tr. 519.) Radiology results from October 1996 revealed that Plaintiff’s heart was within normal
limits and her lungs were clear. (Tr. 461.) During an evaluation with Dr. Erkan 13 on October 28,
1996, Plaintiff related that she had a history of Hepatitis B and a heart problem. (Tr. 536.) Dr.
Erkan noted that the “only lab abnormality is [high] glucose.” (Id.) A lab report from November
18, 1996, showed that Plaintiff was positive for Hepatitis B surface antibody (anti-HBs). 14 (Tr.
484.) A thyroid ultrasound on November 19, 1996, indicated “no nodules . . . within the left
thyroid lobe” and a “small hypoechoic right thyroid lobe nodule . . . not seen on prior study.” (Tr.
462.)
On December 9, 1996, Dr. Tierney, from Bellevue’s Chest Clinic, reported that Plaintiff
had an unclear history of heart disease and her electrocardiogram (“ECG”) showed a normal sinus
rhythm. (Tr. 531.) Additionally, Dr. Tierney noted that testing revealed no evidence of pulmonary
disease. (Id.) Further, Dr. Tierney reported that Plaintiff refused exercise testing, stating that “she
was told in China ‘not to exercise.’” (Id.) On January 21, 1997, Dr. Tierney wrote that Plaintiff
was complaining of shortness of breath. (Tr. 529.) Six days prior, an echocardiogram (“Echo”)
revealed that Plaintiff had a normal left ventricular ejection fraction. 15 (Id.) On March 10, 1997,

13

The Court does not indicate the first name of a physician or other individual, or the
specialty of a physician or other medical professional, where that information is not apparent from
the record.
14

“The presence of [Hepatitis B surface antibodies] is generally interpreted as indicating
recovery and immunity from HBV infection. Anti−HBs also develop in a person who has been
successfully vaccinated against hepatitis B.” See Hepatitis B FAQs for Health Professionals
CENTERS
FOR
DISEASE
CONTROL
AND
PREVENTION,
https://www.cdc.gov/hepatitis/hbv/hbvfaq.htm (last visited Sept. 18, 2017).
15

An ejection fraction refers to the “fraction of the blood contained in the ventricle at the
end of diastole that is expelled during its contraction.” See Ejection Fraction, STEDMAN’S
MEDICAL DICTIONARY 352700.
5

Dr. Tierney noted that Plaintiff was administered a methacholine challenge 16 after complaining of
shortness of breath. (Tr. 497.) Dr. Tierney reported that Plaintiff stated that she felt better after
being administered the methacholine challenge. (Id.) Dr. Tierney reported that Plaintiff became
“excited and agitated when [the doctor] attempted to explain the purpose of the methacholine to
her.” (Id.)
On May 22, 1997, Dr. Rahman, who treated Plaintiff at Bellevue’s Primary Care Clinic,
examined Plaintiff and noted that Plaintiff had a normal Echo in January 1997 and was not believed
to have cardiovascular disease. (Tr. 465.) He also noted that Plaintiff did not have Hepatitis B
and was immune to it, and did not have asthma. (Id.) Dr. Rahman also noted that Plaintiff’s lungs
were clear. (Id.) On June 3, 1997, Dr. Rahman reported that Plaintiff refused an exercise stress
test (“EST”), 17 and that it was extremely unlikely that Plaintiff had cardiovascular disease. (Tr.
466.) Dr. Rahman also wrote that Plaintiff did not have Hepatitis B. (Id.) Dr. Rahman also opined
that if the endocrinology department wished to have Plaintiff undergo thyroid suppression therapy,
they could do so slowly with a low dosage; Plaintiff was scheduled for a follow-up with the
endocrinology department. (Id.) Clinical records from July 1997 indicate that Plaintiff refused
exercise testing and became “very agitated and insisted that she had asthma.” (Tr. 459.) Plaintiff
was then prescribed Serevent, 18 though her methacholine challenge was negative. (Id.)

16

Methacholine is a potent bronchoconstrictor. A methacholine challenge test is typically
performed when there is no clear clinical diagnosis of asthma. See Methacholine Challenge Test,
STEDMAN’S MEDICAL DICTIONARY 906580.
17

Exercise stress testing is a standard procedure for assessing the effect of stress on cardiac
function and identifying coronary artery disease. See Stress Test, STEDMAN’S MEDICAL
DICTIONARY 908470.
18

“Serevent Diskus is a prescription medicine used to control symptoms of asthma and to
prevent symptoms such as wheezing.” Medication Guide: Serevent Diskus, U.S. FOOD AND DRUG
6

From 1997 to June 2002, Plaintiff was primarily under the care of Dr. Christina Tan (“Dr.
Tan”) at Bellevue. In November 1997, Plaintiff was listed as an inpatient for a thyroid gland
operation, which had a final diagnosis of a right nodular goiter, at No. 458 Hospital of the People’s
Liberation Army of China. (Tr. 153.) In a note for Dr. Tan on April 23, 1998, the examining
physician at Bellevue reported that a head and neck exam was negative for a discrete palpable
mass. (Tr. 453.) Plaintiff insisted on the presence of a mass and became very angry during the
exam. (Id.) On May 8, 1998, Plaintiff reportedly presented to the primary care clinic with
complaints of right upper quadrant pain stating, “My liver hurts—I want medicine for Hepatitis
B.” (Tr. 450.) The triage nurse instructed Plaintiff to try Tylenol for the pain. (Id.) An abdominal
ultrasound conducted on July 1, 1998, revealed a “heterogeneous echogenic liver consistent with
fatty infiltration or hepatocellular disease,” 19 which, according to the results, “demonstrate[d] no
significant interval change when compared with [a] prior study [on April 1, 1997].” (Tr. 1149–
50.) Additionally, the results indicated that there was “no evidence of cholelithiasis 20 or bile duct
dilatation.” (Tr. 1150.)
On August 20, 1998, Dr. Tan reported to the Immigration and Naturalization Service that
Plaintiff had a “history of angina” and “no mental disability [or] impairment,” (Tr. 146) and that
Plaintiff had been permanently disabled since 1996 (Tr. 147). On October 1, 1998, Dr. Tan
reported that a recent pulmonary function test (“PFT”) from September 1998, revealed that

ADMINISTRATION,
https://www.fda.gov/downloads/Drugs/DrugSafety/ucm089125.pdf
visited Sept. 18, 2017).

(last

19

The prefix “hepat” refers to the liver. See Hepat-, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/hepat- (last visited Sept. 28, 2017).
20

Cholelithiasis is the presence of concretions in the gallbladder or bile ducts. See
Cholelithiasis, STEDMAN’S MEDICAL DICTIONARY 170460.
7

Plaintiff did not have an obstructed airway. (Tr. 411.) In an evaluation form dated December 10,
1998, another physician reported that Plaintiff had clear lungs. (Tr. 409.) A triage nurse reported
on January 8, 1999, that Plaintiff requested a change in prescription and complained of a painful
growth in her right breast. (Tr. 407.) A bilateral mammogram, followed by a bilateral ultrasound
in March 1999, showed no signs of malignancy. (Tr. 399, 401.) The bilateral ultrasound
demonstrated no discrete cystic or solid lesion. (Tr. 399.) In February 1999, Dr. Tan noted that
Plaintiff’s pulmonary function was stable and that she should continue Serevent, as necessary, and
Lipitor. 21 (Tr. 403.) In March 1999, Dr. Geraldine Tan reported that Plaintiff’s thyroid was not
enlarged and that her lungs were clear. (Tr. 303.)
During an emergency room visit on April 26, 1999, Plaintiff was diagnosed with contact
dermatitis resulting from “overuse of Loprox.” 22 (Tr. 391.) Plaintiff mentioned that she had
suffered from the condition for about six months. (Tr. 390.) Dr. Tan reported that Plaintiff’s
pulmonary function was stable in June 1999. (Tr. 400.) In July 1999, Plaintiff had a normal ECG.
(Tr. 244.) A note from Bellevue’s Dermatology Department dated August 27, 1999, reported that
Plaintiff’s rash had improved. (Tr. 396.) On November 12, 1999, Plaintiff once again returned to
the emergency room with complaints of itchiness and dermatitis. (Tr. 369−71.) She was
prescribed Benadryl and told to continue use of Triamcinolome and hydrocortisone on affected
areas. (Id.)

21

Lipitor is an enzyme blocking medication used to decrease the amount of cholesterol in
the blood. See Atorvastatin (Oral Route), MAYO CLINIC, http://www.mayoclinic.org/drugssupplements/atorvastatin-oral-route/description/drg-20067003 (last visited Sept. 18, 2017).
22

Loprox is used to treat fungal infections. See Ciclopirox (Topical Route), MAYO CLINIC,
http://www.mayoclinic.org/drugs-supplements/ciclopirox-topical-route/description/drg20062888 (last visited Sept. 18, 2017).
8

In January 2000, Plaintiff was diagnosed with strep pharyngitis. (Tr. 366−67.) On
February 22, 2000, it was noted that Plaintiff had a history of chronic obstructive pulmonary
disease (“COPD”), but that the condition was stable. (Tr. 360.) On April 13, 2000, Dr. E. Liu,
who treated Plaintiff at Bellevue’s Primary Care Clinic, stated that Plaintiff had no thyroid
complaints, but complained of COPD and a heart condition. (Tr. 359.) In September 2000,
Plaintiff was prescribed Sudafed for an upper respiratory infection. (Tr. 356.) A chest x−ray from
December 29, 2000, showed “no focal pulmonary infiltrate, plural effusion, or pneumothorax,”
and the “cardio-mediastinal silhouette was within normal limits.” (Tr. 1148.) On March 29, 2001,
Plaintiff presented to primary care physician, Dr. Jen Lin, in a wheelchair. (Tr. 250.) Dr. Lin
noted that Plaintiff used the wheelchair for tachycardia 23 and shortness of breath; however, she
noted that Plaintiff was physically able to walk. (Id.) Plaintiff had decreased reflexes and proximal
weakness in the lower extremities, as well as an abnormal gait. (Id.) An ECG from the same day
was normal and revealed a normal sinus rhythm. (Tr. 162.)
On May 1, 2001, Dr. X. Gao, a neurologist, examined Plaintiff and noted that she
complained of generalized weakness since 1996. (Tr. 249, 1164.) Dr. Gao assessed Plaintiff’s
lower left extremity strength at 3/5 and lower right extremity strength at 4/5, and Plaintiff’s motor
strength at 5/5. (Id.) Dr. Gao also opined that Plaintiff had a slow gait. (Id.) Listing myelopathy24

23

Tachycardia is a heart disorder in which the heart beats faster even while at rest. See
Tachycardia, MAYO CLINIC, http://www.mayoclinic.org/diseasesconditions/tachycardia/home/ovc-20253857 (last visited Sept. 18, 2017).
24

Myelopathy is a spinal cord disorder that can result in many symptoms including neck,
arm, and lower back pain, as well as difficulty walking. See Myelopathy, JOHN HOPKINS
MEDICINE HEALTH LIBRARY,
http://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disorders/myelopathy
_22,Myelopathy/ (last visited Sept. 18, 2017).
9

as a rule-out diagnosis, Dr. Gao prescribed Plaintiff Neurontin 25 and ordered further testing
including an MRI of the brain and cervical spine. (Id.) On May 15, 2001, Dr. Gao noted that the
Neurontin had improved Plaintiff’s numbness symptoms. (Tr. 247, 1164.) Dr. Gao listed a
primary diagnosis of myelopathy on an order form for an electric wheelchair in May 2001. (Tr.
1120−21.)
A June 11, 2001 MRI of Plaintiff’s brain was normal. (Tr. 1147.) On June 26, 2001, Dr.
Lin opined that Plaintiff had symptoms like panic attacks and made a note to “rediscuss” the
shortness of breath and asthma in the future. (Tr. 242.) Dr. Lin further noted that Plaintiff’s
tachycardia was “likely [secondary] to medication.” (Id.) In August 2001, Dr. Lin remarked that
Plaintiff’s MRI showed a mild cervical spondylosis mass behind the left mandibular gland, but
that Plaintiff’s PFT and all other exams were within normal limits. (Tr. 333.) A July 2001 note
from neurology stated that the mass “appear[ed] unrelated to [the] current work[ing] [diagnosis].”
(Tr. 241.) After a routine eye exam on August 30, 2001, Dr. Kleiman, an ophthalmologist, wrote
that Plaintiff showed no signs of retinopathy. (Tr. 236.)
In a follow-up neuropathic exam with Plaintiff on October 12, 2001, Dr. Gao noted the
possibility of general weakness and peripheral neuropathy, and that Plaintiff’s lower extremity
strength measured 3/5. (Tr. 235.) He also renewed Plaintiff’s prescription for Neurontin and
advised Plaintiff to reschedule electromyogram and nerve conduction velocity testing. (Id.) In
December 2001, Dr. Lin noted that Plaintiff refused to undergo psychiatric evaluation and
questioned whether Plaintiff was wheelchair-bound secondary to a psychiatric disorder. (Tr. 232.)

25

Neurontin is an anticonvulsant typically used to prevent seizures. It is also used to
“relieve pain for certain conditions in the nervous system.” Gabapentin (Oral Route), MAYO
CLINIC,
http://www.mayoclinic.org/drugs-supplements/gabapentin-oral-route/description/drg20064011 (last visited Sept. 18, 2017).
10

In January 2002, Plaintiff complained of tachycardia after 5 minutes of ambulation during
a visit; however, her pulse and blood pressure remained stable during this time. (Tr. 228.) The
physician reported that Plaintiff had a full range of motion in all extremities, and her strength was
5/5 in her upper and lower extremities. (Id.) The physician concluded that Plaintiff did not meet
the criteria for an electric wheelchair and recommended a neurological or psychiatric evaluation
in light of his findings. (Id.)
b.

Dr. George Hall and Dr. Oppenheimer (March 2000 to April 2001)

Dr. George Hall treated Plaintiff from March 11, 2000, to April 3, 2001. (See Tr. 156−224.)
On March 11, 2000, Plaintiff complained of a skin rash, but denied having chest pain, abdominal
pain, or shortness of breath. (Tr. 216.) Plaintiff showed no signs of atrophy, edema, or cyanosis,
nor was there a motor or sensory deficit. (Tr. 214.) Plaintiff’s lungs were clear to auscultation
and percussion with no crackles or rales. (Id.) Her pulses were regular and systematic with no
heart murmur or rub. (Id.) In a follow up visit on March 17, 2000, Dr. Hall wrote that Plaintiff
complained of having left leg pain when she walked “a lot.” (Tr. 212.) Dr. Hall noted that Plaintiff
had left leg and knee tenderness. (Id.) Dr. Hall reported no abnormalities for Plaintiff’s heart and
lungs. (Id.) Finding no other abnormalities and noting that Plaintiff denied chest pain, palpitation,
and shortness of breath, Dr. Hall diagnosed Plaintiff with gastroenteritis. (Tr. 211.) On April 8,
2000, Dr. Hall diagnosed Plaintiff with leg cramping, shortness of breath and tachycardia on
exertion. (Tr. 210.) As part of his treatment plan, he listed “wheelchair for leg cramp when
walking and [shortness of breath and] palpitations on exertion, fatigue on exertion.” (Id.) On
April 11, 2000, Dr. Hall reported that Plaintiff complained of palpitations and chest tightening on
exertion. (Tr. 209.) He noted that her pulse was rapid. (Id.)

11

Plaintiff continued to complain of leg cramps, and was referred to New York Downtown
Hospital for further evaluation of her symptoms on April 18, 2000. (Tr. 208, 632.) Dr. Beno
Oppenheimer, who treated Plaintiff at New York Downtown Hospital, reported on April 24, 2000,
that Plaintiff’s studies revealed no evidence of ischemia 26 and that her 2D Echo and ECGs were
normal. (Tr. 639.) Noting that Plaintiff’s heart rate was 98 beats per minute, Dr. Oppenheimer
opined that there was no evidence of cardiac disease. (Id.) In a physical examination also
conducted on April 24, 2000, it was noted that Plaintiff complained of palpitations worsening on
exertion; Plaintiff was referred to the cardiology department. (Tr. 207.)
Throughout May 2000, Plaintiff complained of body skin rashes, itching, diarrhea,
abdominal pain, nausea, palpitations, shortness of breath, dizziness, sinus inflammation, and throat
discharge. (Tr. 204−206.) On May 21, 2000, Plaintiff was diagnosed with sinusitis, vaginitis,
chronic skin itching, and acne valgaria. (Tr. 205.) On May 24, 2000, Dr. Hall authorized Plaintiff
to use non-emergency ambulette services via a Medicaid transportation prior approval form. (Tr.
640−43.) According to the form, Plaintiff reportedly had arthritis, asthma, congestive heart failure,
resting tachycardia, and shortness of breath on exertion. (Tr. 640.) Dr. Hall noted that Plaintiff
could ambulate inside using only a cane, and that Plaintiff required an escort to ambulate outside
or to use a bus or a subway. (Tr. 641.) He also indicated that Plaintiff needed to be lifted or carried
up and down stairs to enter or exit from her home or a medical office. (Id.) On May 30, 2000, Dr.
Hall examined Plaintiff for complaints of on and off heart palpitations, throat discharge, purulent
sinus inflammation, and vaginal itching.

(Tr. 204.)

Plaintiff reported no pulmonary,

cardiovascular, or neurological abnormalities, but noted that Plaintiff did use a wheelchair. (Id.)

26

Ischemia is a local loss of blood due to a mechanical obstruction of the blood vessel. See
Ischemia, STEDMAN’S MEDICAL DICTIONARY 457640.
12

On May 30, 2000, Dr. Hall also wrote a note opining that Plaintiff was “unable to work physically
at th[at] time.” (Tr. 157.)
On June 7, 2000, Plaintiff visited Dr. Hall for treatment of a skin rash and a stuffy nose.
(Tr. 203.) She also continued to complain of palpitations upon exertion, though she denied chest
pains. (Id.) Dr. Hall noted tachycardia, yet reported no pulmonary or neurological problems. (Id.)
On August 17, 2000, in a note “To Whom It May Concern,” Dr. Hall listed Plaintiff’s diagnoses
as resting tachycardia, shortness of breath, palpitations on exertion, leg cramps and fatigue when
walking, hypercholesterolemia, chronic skin pruritus, allergic rhinitis, acute sinusitis, asthma, and
recurrent vaginitis.” (Tr. 156.) He noted that the wheelchair was prescribed for Plaintiff’s
palpitations, shortness of breath, leg cramps, and fatigue when walking. (Id.) Dr. Hall opined that
Plaintiff needed “continuous medical attention and assistance.” (Id.)
On August 21, 2000, Dr. Hall diagnosed Plaintiff with an upper respiratory infection and
allergic dermatitis; however, he otherwise reported no pulmonary, cardiovascular, or neurological
problems. (Tr. 202.) Findings were similar four days later on August 25, though Plaintiff
complained of gastrointestinal problems. (Tr. 201.) In September 2000, Plaintiff complained of
dizziness, fatigue, poor appetite, and itchy skin. (Tr. 199−200.) Plaintiff complained of itchy skin
throughout the month of October, as well as joint pain on October 4, 2000. (Tr. 198–99.) Dr. Hall
found no edema, cyanosis, motor or sensory deficit, or any other abnormalities at that time. (Id.)
Plaintiff’s chief complaint on November 3, 2000, was “diabetes/high blood sugar” with the
associated symptoms of body itchiness, thirst, and polyuria. (Tr. 167.) Dr. Hall also noted that
Plaintiff complained of palpitations with exercise and anxiety, joint stiffness that was relieved with
movement, rashes with excoriation on extremities and body, and leg weakness. Plaintiff was in a
wheelchair, and exhibited an anxious mental state. (Tr. 168-70.) Dr. Hall reported no other

13

abnormalities. (See Tr. 167-170.) Dr. Hall diagnosed Plaintiff with palpitations, uncontrolled
NIDDM, and atopic dermatitis. (Tr. 170.) In a separate note from the same day, Dr. Hall wrote
that Plaintiff was physically disabled. (Tr. 158.) In a form, dated November 15, 2000, to the New
York City Housing Authority, Dr. Hall stated that Plaintiff had been diagnosed with heart disease
since 1996 and that she had been using a wheelchair prescribed by him since April 2000. (Tr.
159.) He opined that Plaintiff needed continuous medical care and assistance because she was
unable to walk and was physically disabled. (Id.) He stated that he did not have the medical record
before him when he completed the form. (Id.) In a progress narrative note, also dated November
15, 2000, Dr. Hall indicated that Plaintiff reported all previous complaints from November 3, 2000,
as stable. (Tr. 178−79.) Plaintiff again did not report weakness, fatigue, wheezing, chest pains,
muscle weakness, joint pains, loss of feelings or sensations, or gait disturbances. (Tr. 177−79.)
Dr. Hall did note that Plaintiff was experiencing tachycardia, but also noted that there were no
visible precordial pulsations or heaves, the rhythm was regular, S1 and S2 were normal, and there
were no audible bruits, murmurs, gallops, pericardial rubs, or clicks. (Tr. 180.) Plaintiff was
diagnosed with atopic dermatitis, palpitations, and fatigue and/or weakness in the legs. (Id.) A
follow-up on November 28, 2000, had similar results, and all previous symptoms that Plaintiff had
reported were listed as improved, except for the intermittent itchy skin, which was reported as
stable. (Tr. 173−74.) Dr. Hall reported Plaintiff’s tachycardia as improved and stated that
Plaintiff’s NIDDM was controlled. (Tr. 175.)
Dr. Hall’s notes from December 2000 to April 2001 show that Plaintiff reported itching
skin and epigastric upset. (Tr. 190−96.) Dr. Hall also noted that Plaintiff continued to suffer from
NIDDM, itchy skin, high cholesterol, vaginitis, hypothyroidism, diarrhea, allergic rhinitis, allergic
dermatitis, and tachycardia. (Id.) On February 6, 2001, in a note “To Whom It May Concern:”

14

Dr. Hall wrote that it “will be more beneficial if she [is] still on her wheelchair until her cardiac
condition improve[s].” (Tr. 625.)
c.

Bellevue Hospital Center (After March 27, 2002)

On May 30, 2002, Plaintiff had a follow-up examination for her previously diagnosed
conditions. (Tr. 322.) The examining physician noted lower extremity weakness, but also noted
that upper extremity motor function was normal. (Id.) Plaintiff’s NIDDM was reported as poorlycontrolled and her cholesterol as well-controlled. (Id.) Additionally, it was noted that Plaintiff’s
cardiac history had never been documented. (Id.) An ECG from the same day, showed a normal
sinus rhythm and a non-specific T-wave abnormality. (Tr. 301.) Another ECG conducted on July
1, 2002, revealed a mildly increased left ventricular ejection fraction, but was otherwise a normal
study. (Tr. 304.) June and October 2002 examinations in which Plaintiff complained of a cough
and thyroid issues, respectively, did not result in any other pulmonary or cardiac abnormalities.
(Tr. 319−20.)
On January 7, 2003, Plaintiff complained of experiencing chest and back pain after taking
Zyrtec D.

(Tr. 297.)

A January 29, 2003 ultrasound of Plaintiff’s thyroid identified a

heterogeneous left thyroid lobe with two discrete nodules. (Tr. 1146.)
On February 17, 2004, 27 Dr. James Murphy, noted that Plaintiff was in a wheelchair for
“no clear reason.” (Tr. 1137.) He opined that Plaintiff had a complicated medical history with

27

The Court notes that between January 2003 and February 2004, the medical records do
not indicate that a physician examined Plaintiff, though she frequently visited the Bellevue clinic
to request prescription refills. She also received a flu shot during this period. (See Tr. 288–96.)
15

possibly malingering 28 or Munchausen 29 with other psychiatric components. (Id.) Dr. Murphy
further noted that Dr. Lin had discontinued Plaintiff’s prescriptions for Serevent and Zocor because
there was no evidence of increased cholesterol and Plaintiff’s asthma diagnosis was unclear. (Id.)
Dr. Lin had intended to conduct a PFT when Plaintiff was off the medication. (Id.) After Dr.
Murphy explained that Plaintiff should not take the medication until Dr. Lin could re-evaluate her,
Plaintiff became agitated and requested a new primary care physician, asking specifically for Dr.
Tanner. (Id.) Dr. Murphy agreed to arrange for a new physician, and told Plaintiff that he would
not provide her with Serevent or Zocor 30 until she underwent further evaluation. (Id.)
A March 3, 2004 pulmonary examination revealed that there was no evidence of
obstructive dysfunction at large airways and no bronchodilator response. (Tr. 283.) On June 7,
2004, Plaintiff sought emergency contraception at the Bellevue clinic and was noted as being
wheelchair-bound for no clear reason. (Tr. 1135.) During a follow-up exam for diabetes on July
27, 2004, Plaintiff was once again described as being wheelchair-bound for no clear reason. (Tr.
1134.) Plaintiff’s diabetes was noted as controlled while her asthma was noted as well-controlled.
(Id.) Plaintiff had a regular heart rate and rhythm, and her lungs were clear to auscultate bilaterally.
(Id.) Plaintiff had no pain issues. (Id.) During Plaintiff’s visit to the clinic on December 6, 2004,

28

Malingering is the feigning of an illness or disability to escape work, elicit sympathy, or
gain compassion. See Malingering, STEDMAN’S MEDICAL DICTIONARY 524700.
29

Munchausen syndrome is the “[r]epeated fabrication of clinically convincing simulations
of disease for the purpose of gaining medical attention.” The syndrome refers to people “who
wander from hospital to hospital feigning acute medical or surgical illness and giving false and
fanciful information about their medical and social background for no apparent reason other than
to gain attention.” See Munchausen Syndrome, STEDMAN’S MEDICAL DICTIONARY 885850.
30

Zocor is used to reduce blood levels of low-density lipoprotein cholesterol. Drugs:
Simvastatin
Information,
U.S.
FOOD
AND
DRUG
ADMINISTRATION,
https://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProvide
rs/ucm203669.htm (last visited Sept. 18, 2017).
16

the examiner noted that Plaintiff had had an abnormal mammogram on November 9, 2004, and
that Plaintiff was in a motorized wheelchair in no apparent distress. (Tr. 1133.) The physician
also reported that Plaintiff walked with a halting gait with rhythmic hip flexion. (Id.) Plaintiff had
a regular heart rate and rhythm, and her lungs were clear to auscultate bilaterally. (Id.) Plaintiff
had no edema or pain issues at the time. (Id.) Plaintiff received prescriptions to treat her asthma
and diabetes. (Id.)
At a January 6, 2005, routine gynecologic examination, Dr. Louis Mucelli reported that
Plaintiff had a regular heart rate and rhythm and was experiencing no pain at the time. (Tr.
1011−12.) On February 15, 2005, Dr. Chen Tan, noted that Plaintiff had a flat affect, rhinorrhea,
watery eyes and a cough; Plaintiff was diagnosed with an upper respiratory infection and reported
no pain issues at the time. (Tr. 982.) On March 16, 2005, Dr. Tanner referred Plaintiff to
ophthalmology after complaints of red, watery eyes. From April 2005 to November 2005, the
ophthalmology clinic treated Plaintiff for blepharitis. (Tr. 975−76, 979, 981.) In a follow-up visit
for her blepharitis with Dr. Tanner on August 2, 2005, he noted that Plaintiff had tachycardia with
a 2/6 systolic murmur. (Tr. 977.) Dr. Tanner reported that Plaintiff was in a wheelchair in no
apparent distress, that Plaintiff did not have edema or any pain issues at the time, and that her lungs
were clear. (Id.)
When Plaintiff complained of dysuria on January 30, 2006, she was in a wheelchair, alert,
active, and in no acute distress. (Tr. 974.) Plaintiff reported no pain issues at the time other than
that associated with her cystitis diagnosis. (Id.) On February 16, 2006, Dr. Tanner again referred
Plaintiff to an ophthalmologist for further treatment and evaluation of her left eye. (Tr. 1004.) On
March 9, 2006, Dr. Tanner reported that Plaintiff’s diabetes, lipids, and blood pressure were all
well-controlled. (Tr. 972.) Plaintiff was alert, oriented, and in no apparent distress. (Id.) Dr.

17

Tanner noted a regular heart rate and rhythm, as well as clear respiratory function. (Id.) He also
noted that Plaintiff was able to transfer from her wheelchair to the examination table without
assistance and that she reported no pain or edema. (Id.) On October 4, 2006, Dr. Tanner again
reported that Plaintiff’s asthma, hypothyroidism, diabetes, and lipids were well-controlled. (Tr.
1097.) Plaintiff continued to use a motorized wheelchair and was still able to transfer to the
examination table without difficulty. (Id.) Cardiovascular and respiratory findings were normal,
and Plaintiff reported no pain or edema. (Id.)
On January 17, 2007, Dr. Tanner reported that Plaintiff was medically optimized for
cataract surgery on her left eye. (Tr. 1094.) Plaintiff underwent left cataract surgery at Brook
Plaza Ambulatory Surgical Center on February 5, 2007. (Tr. 1092.) She tolerated the procedure
well and was transferred to the recovery room in good condition. (Id.)
On March 13, 2007, Plaintiff presented at Bellevue to have new lab tests taken; however,
her most recent lab tests were less than two months old, and there was no indication that new tests
needed to be taken. (Tr. 1051.) Plaintiff had no complaints and was doing well on her current
medication. (Id.) Plaintiff was instructed to return in June 2007 for new lab tests. (Id.) On June
12, 2007, Dr. Tanner stated that Plaintiff’s diabetes, blood pressure, lipids, and hypothyroidism
were all well-controlled. (Tr. 1162.) His examination also revealed normal cardiovascular
activity, and he reported that Plaintiff had no edema or pain issues at the time. (Id.)
Plaintiff returned to Dr. Tanner on March 31, 2009. (Tr. 1160.) Dr. Tanner stated that this
was Plaintiff’s first visit with him since June 12, 2007. (Id.) During the March 31, 2009 visit, Dr.
Tanner noted that Plaintiff was in a motorized wheelchair, but in no acute distress. (Tr. 1160.)
Plaintiff reported intermittent left upper back pain, which she treated with Lidoderm patches. (Tr.
1160−61.) Dr. Tanner reported that Plaintiff’s diabetes was uncomplicated and that Plaintiff was

18

not experiencing any edema in the extremities; he diagnosed Plaintiff with benign essential
hypertension. (Id.)
On September 2, 2009, Plaintiff presented to Dr. Reesheman Cowart, a podiatrist at the
Bellevue Podiatry Clinic, with complaints of pain in the right lateral sinus tarsi and pain when
walking. (Tr. 971.) Plaintiff stated that she had weakness when walking due to “nerve problems.”
(Id.) Upon examination, Dr. Cowart noted that Plaintiff experienced mild pain upon palpitation
of the lateral right sinus tarsi. (Id.) Dr. Cowart reported 2+ distal pulses throughout joints without
erythema, warmth, or swelling.

(Id.)

Dr. Cowart assessed the problem as unspecified

enthesopathy of the ankle and tarsus. (Id.) He instructed Plaintiff to continue using Lidoderm
patches, wearing proper shoe gear, and soaking her feet in warm water. (Id.) He also ordered xrays for further evaluation. (Id.) The x-rays revealed no evidence of acute fracture or dislocation;
there were no areas of erosion or aggressive appearing bone. (Tr. 1071.) The soft tissues were
unremarkable. (Id.) However, the x-ray identified a small posterior calcaneal enthesophyte 31 and
a small os tibiale externum. 32 (Id.)
Plaintiff was scheduled to undergo cataract surgery on her right eye (“Right Cataract
Surgery”) on October 21, 2009. (Tr. 969.) During a pre-operative clearance examination on
October 5, 2009, Dr. Tanner reported that Plaintiff’s blood pressure, lipids, diabetes, and thyroid

31

An enthesophyte is a bone spur. See The Mechanism of Formation of Bony Spurs
(Enthesophytes) in the Achilles Tendon, U.S. NATIONAL LIBRARY OF MEDICINE,
https://www.ncbi.nlm.nih.gov/pubmed/10728751 (last visited Sept. 28, 2017). The calcaneus is
the heel bone. See Calcaneus (Heel Bone) Fractures, AMERICAN ACADEMY OF ORTHOPAEDIC
SURGEONS, http://orthoinfo.aaos.org/PDFs/A00524.pdf (last visited Sept. 28, 2017).
32

An accessory navicular, also known as os tibiale externum, is “an extra bone or piece of
cartilage located on the inner side of the foot just above the arch.” See Accessory Naviular
Syndrome,
AMERICAN
COLLEGE
OF
FOOT
AND
ANKLE
SURGEONS,
http://www.acfas.org/footankleinfo/Accessory_Navicular_Syndrome.htm (last visited Sept. 18,
2017).
19

function were all well-controlled. (Id.) Further, he reported that Plaintiff was in no apparent
distress and able to transfer from her wheelchair to the examination table. (Id.) Neurological
examination revealed markedly weak hip flexion bilaterally.

(Id.)

No cardiovascular or

respiratory abnormalities were reported. (Id.) Plaintiff did not have pain issues at the time. (Id.)
Clearing Plaintiff for Right Cataract Surgery, Dr. Tanner noted that Plaintiff’s revised cardiac risk
index was zero, no cardiac preoperative evaluation was indicated, and Plaintiff was medically
optimized. (Id.) Medications for diabetes, hypothyroidism, benign essential hypertension, mixed
hyperlipidemia, and asthma were continued; Plaintiff was instructed not to take aspirin beginning
a week before the surgery. (Tr. 969−70.) Additionally, Dr. Tanner assessed that Plaintiff had
developmental coordination disorder of unclear etiology. (Tr. 970.) Plaintiff underwent Right
Cataract Surgery at Brook Plaza Ambulatory Surgical Center on October 21, 2009. (Tr. 1103.)
Plaintiff tolerated the procedure well. (Id.)
Plaintiff visited the Bellevue Clinic on October 30, 2009, to request refills for Lidoderm
patches and eye drops. (Tr. 967.) No pain issues were reported. (Id.)
On November 9, 2009, Plaintiff again presented to the Bellevue with complaints of foot
pain. (Tr. 965−66.) Dr. Ramin Hastings, reported that Plaintiff complained of a mass on her foot
and a fullness around her ankle, as well as pain that occurred randomly. (Tr. 965.) Plaintiff was
concerned that the bump on her foot was a lymph node and that she had cancer. (Id.) Dr. Hastings
noted that Plaintiff was wheelchair-bound, was able to transfer from her wheelchair to the exam
table, and appeared to be in no acute distress. (Id.) Plaintiff denied fatigue, chest pain, dyspnea, 33
or cough. (Id.) She had a normal heart rate and rhythm, and her lungs were clear to auscultate
33

Dyspnea is the shortness of breath. See Shortness of Breath, MAYO CLINIC,
http://www.mayoclinic.org/symptoms/shortness-of-breath/basics/definition/sym-20050890 (last
visited Sept. 18, 2017).
20

bilaterally. (Id.) Upon examination of the extremities, Dr. Hastings noted no cyanosis, clubbing,
or edema, and that distal pulses were 2+ throughout. (Id.) Plaintiff experienced no pain upon
palpitation of the foot; though, Dr. Hastings reported a small soft lesion on the plantar aspect of
the right ankle joint, which was non-tender, moveable, and non-erythematous. (Id.) Dr. Hastings
reported similar findings on Plaintiff’s other foot and ankle. (Id.) Plaintiff was assessed with
enthesopathy of the ankle and tarsus. (Tr. 966.) Plaintiff reported minimal pain, though Dr.
Hastings noted that she was using many Lidocaine patches on her feet. (Id.) Dr. Hastings ordered
x-rays of the left foot, and referred Plaintiff to podiatry noting that Plaintiff had failed to follow up
after a previous examination in September 2009. (Tr. 965−66.) Same day x-rays of the left foot
revealed minimal arthrosis at the metatarsophalangeal joint of the first toe and a small accessory
navicular. (Tr. 1070.) No calcaneal enthesophyte, acute fracture or dislocation was found. (Id.)
On February 2, 2010, Plaintiff was examined by Debra A. Galione, N.P., for complaints of
a cough. (Tr. 963−64.) Plaintiff denied experiencing asthma symptoms, myalgia, fatigue, chest
pain, chest tightness, lower extremity edema, dyspnea, wheezing, or shortness of breath. (Id.) No
cardiovascular abnormalities were noted. (Id.) Sudafed was prescribed for an acute upper
respiratory infection and nasal congestion. (Tr. 964.) Plaintiff reported no pain issues during her
visit. (Tr. 963.)
In April and May 2010, Plaintiff returned to the clinic to renew her prescriptions. (Tr.
961−62.) She reported no pain issues at either visit. (Id.) On August 2, 2010, Dr. Tanner reported
that Plaintiff presented without complaints. (Tr. 959−60.) Blood pressure, diabetes, and lipids
were well-controlled. (Tr. 959.) Plaintiff’s eyesight was better following cataract surgery. (Id.)
Dr. Tanner noted that Plaintiff was wearing Lidocaine patches on her elbows, ankles, left buttock,
and right inner thigh. (Id.) Plaintiff was in no apparent distress and able to transfer from the

21

wheelchair to the examination table. (Id.) Neurological examination revealed 4+ hip flexion
bilaterally. (Id.) No cardiovascular or respiratory abnormalities were noted. (Tr. 959−60.) Dr.
Tanner continued prescriptions for Plaintiff’s diabetes, benign essential hypertension,
hypothyroidism, allergic rhinitis, asthma, and mixed hyperlipidemia. (Id.)
On September 16, 2010, ophthalmologist Yonah Hamlet, M.D., reported that Plaintiff’s
eyesight was 20/20 bilaterally after having previously been assessed as 20/20 in the right eye and
20/30 in the left eye on March 5, 2010. (Tr. 1085−86.)
In a letter dated October 21, 2010, Dr. Tanner noted that Plaintiff was able to transfer from
the wheelchair to the examination table during visits. (Tr. 1118.) He also stated that Plaintiff had
required a wheelchair for many years and was unable to walk more than a few feet at a time, and
that he considered Plaintiff to be medically disabled because of severe bilateral lower extremity
weakness. (Id.)
Plaintiff presented to the Bellevue Podiatry Clinic in October 2010 with pain in her
posterior heel and with swelling in the “sinus tarsi area b/1 feet.” (Tr. 958.) Dr. Cowart noted
positive pain upon palpitation of the posterior Achilles tendon bilaterally. (Id.) Dr. Cowart
diagnosed Plaintiff with unspecified enthesopathy of the ankle and tarsus. (Id.) A lower extremity
MRI from December 8, 2010, revealed incomplete evaluated edema within the right flexor halluces
longus and soleus muscles, as well as a similar edema pattern on the left side. 34 (Tr. 1067.)
Diagnostic considerations included chronic exertional muscle compartment syndrome or muscle
strain. (Id.) The report noted that other infectious and inflammatory etiologies for myositis,
including polymyositis, 35 were to be considered. (Id.) On December 15, 2010, Plaintiff, still
34

The exam revealed swelling in Plaintiff’s calf muscles and ankles.

35

Polymyositis is an inflammatory disease that causes bilateral muscle weakness. Its
symptoms include difficulty climbing stairs, rising from a seated position, and lifting objects or
22

complaining of pain in both feet, followed up with Dr. Cowart. (Tr. 956.) Plaintiff was
administered an injection of Lidocaine in each foot and instructed on proper foot care. (Id.)
Plaintiff received refills for Flonase and Lidoderm patches on November 10, 2010. (Tr.
957.) She returned to the clinic for refills of her diabetes medication on December 31, 2010. (Tr.
1126−27.) On January 20, 2011, Plaintiff’s prescriptions for Hydroxyzine and Ranitidine were
refilled. (Tr. 1053.) On February 7, 2011, she asked for renewals of Lidoderm, Lipitor, and
Singulair. (Tr. 955.) Dr. Rahman noted that there was an issue of repeat prescriptions. (Id.)
On February 9, 2011, Plaintiff returned to the Podiatry Clinic for a follow-up with Dr.
Cowart. (Tr. 993−94.) Plaintiff reported decreased pain to the bilateral sinus tarsi. (Id.) Dr.
Cowart noted that Plaintiff had an unstable gait. (Id.) Examination revealed joints without
erythema, warmth, or swelling. (Id.) Distal pulses were 1+ throughout the extremities. (Id.) Dr.
Cowart assessed Plaintiff with enthesopathy of the ankle and tarsus, and administered an injection
of Lidocaine. (Id.)
On March 4, 2011, Dr. Cowart performed a follow-up examination of Plaintiff, in which
she reported decreased pain. (Tr. 992.) Dr. Cowart noted positive mild pain upon palpation of the
lateral sinus tarsi. (Id.) Plaintiff’s motor strength was assessed throughout at 5/5, and her sensory
was intact. (Id.) Dr. Cowart reported 2+ distal pulses throughout the extremities with no erythema,
warmth, or swelling. (Id.) Dr. Cowart assessed Plaintiff with enthesopathy of the ankle and tarsus,
and administered an injection of Lidocaine. (Id.)

reaching overhead. It is an uncommon disease that has been known to emerge over weeks or
months typically affecting people in their 30s, 40s, and 50s. See Polymyositis, MAYO CLINIC,
http://www.mayoclinic.org/diseases-conditions/polymyositis/home/ovc-20341050 (last visited
Sept. 18, 2017).
23

On March 13, 2011, Dr. Tanner signed an environmental assessment for mobility
equipment form indicating that Plaintiff was able to use her wheelchair in her apartment. (Tr.
1112−13.) On March 25, 2011, Plaintiff requested prescription refills and an electric wheelchair
from Hazel Alviar, a physician’s assistant in the Bellevue Clinic. (Tr. 995.) Plaintiff received
refills of Flonase and Gabapentin. (Id.) Ms. Alviar listed Plaintiff’s clinical indication as
“lumbago” and referred her to the Social Work department and to the Brace Clinic for evaluation
before receipt of an electric wheelchair. (Id.) On June 8, 2011, Dr. Jennifer Knishinsky reported
that Plaintiff requested unscheduled medication refills of Lidoderm and Albuterol. (Tr. 996.)
On August 2, 2011, Dr. Tanner prescribed a motorized wheelchair. (Tr. 1117.) The next
day, Plaintiff was examined at the Bellevue Emergency Clinic for complaints of arm pain. (Tr.
1109−11.) X-rays of the left shoulder were unremarkable. (Tr. 1065.)
On September 6, 2011, Plaintiff requested refills of Fluticasone, Ranitidine, and Lipitor.
(Tr. 996.) Dr. Kara Greenwald noted that Plaintiff frequently came in for refills. (Id.) On the
same day, a physician’s order signed by Dr. Tanner described Plaintiff as having developmental
coordination disorder and marked thigh weakness. (Tr. 1116, 1119.) Dr. Tanner wrote on a form
regarding Plaintiff’s need for mobility assistive equipment that Plaintiff had “[coronary] heart
disease and [angina], obstructive lung disease etc.” (Tr. 1114.) He described Plaintiff as
“[generally] weak, tired, and [having] eye [cataracts].” (Id.) He stated that Plaintiff could not use
a cane, walker, or scooter for daily activities. (Id.) Dr. Tanner reported that Plaintiff did not have
a caregiver and could not self-propel in a manual wheelchair. (Id.) Dr. Tanner opined that “she
need[s] the power wheelchair [for a] life time.” (Tr. 1117.)
On October 14, 2011, Dr. Michael Cantor, of the Ambulatory Care Clinic at Bellevue,
treated Plaintiff for a urinary tract infection. (Tr. 990.) Plaintiff denied chest pain and dyspnea.

24

(Id.) No cardiovascular or respiratory abnormalities were noted. (Id.) Plaintiff had no other
complaints. (Id.) In a consultation request, Dr. Cantor further noted that Plaintiff was wheelchairbound due to leg weakness, but had never had physical therapy. (Tr. 997.)
On December 10, 2011, Dr. Owen Keiran, responded to interrogatories intended for Dr.
Tanner. (Tr. 1151−58.) The form was completed “by a review of medical records.” (Tr. 1157.)
Dr. Keiran reported that Plaintiff had been treated for diabetes mellitus, hypertension,
hypothyroidism, asthma, “leg weakness [secondary to] ?,” and chronic pain syndrome. (Tr. 1152.)
He indicated that her current symptoms were foot pain and that her left leg weakness was greater
than her right leg weakness. (Id.) With respect to clinical findings as of the last examination, Dr.
Keiran noted that cranial nerves, deep tendon reflexes, station and gait, and gross and fine
manipulation had not been tested. (Tr. 1153−54.) He also stated that motor testing, including
muscle weakness and tone, were not described in the physical examination. (Id.) Dr. Keiran
indicated that Plaintiff did not have a significant abnormality in gait. (Tr. 1154.) Moreover, when
prompted to indicate a reason for Plaintiff’s wheelchair use, he stated that Plaintiff “reports that
she [cannot] walk.” (Id.) Dr. Keiran also indicated that sensory examination was not tested and
mental status was not described. (Tr. 1155.) He also noted that plaintiff had no significant
interference with communication. (Id.) When asked to describe any limitations of physical
activity as demonstrated by fatigue, palpitation, dyspnea, or angina discomfort with ordinary
physical activity, Dr. Keiran wrote: “See above. Non ambulatory by [complaint]. Based on
medical records.” (Tr. 1156.) Dr. Keiran indicated that Plaintiff had no limitation on what she
was able to lift and carry; however, he noted that she was in a wheelchair dependent position. (Id.)
Dr. Keiran stated that Plaintiff’s ability to stand or walk was limited to an unspecified degree. (Tr.
1157.) He based this limitation on Plaintiff’s own report that she was non-ambulatory. (Id.) There

25

was no limit on Plaintiff’s ability to sit, nor were there other limitations including postural,
manipulative, visual, communicative, and environmental. (Id.) Moreover, Dr. Keiran indicated
that he could not provide a medical opinion regarding Plaintiff’s ability to do work related
activities because he only reviewed the medical records. (Id.)
On December 20, 2011, Plaintiff returned to Bellevue for a diabetes follow-up with Dr.
Tanner. (Tr. 988−89.) Plaintiff’s diabetes, lipids, blood pressure, and thyroid stimulating hormone
were “all at target.” (Id.) Dr. Tanner noted that Plaintiff was using a conventional wheelchair,
and she was still able to transfer from the chair to the examination table. (Id.) No abnormalities
were noted with regard to cardiovascular or respiratory function. (Id.) Examination revealed no
edema of the extremities. (Id.) Dr. Tanner continued Plaintiff’s medications for hypothyroidism,
benign essential hypertension, lumbago, asthma, and mixed hyperlipidemia. (Tr. 988−89.)
Plaintiff presented to the Bellevue Clinic on January 11, 2012, with complaints of a cough.
(Tr. 985−87.) Plaintiff reported occasionally using Albuterol three times a day, though her typical
use was once daily. (Tr. 985.) The examining nurse practitioner, Debra Galione, noted that
Plaintiff had been diagnosed with asthma in 1997, yet she had not had any emergency room visits,
hospitalizations, or steroids. (Id.) Plaintiff’s peak flow was measured at 550 with 98% pulse
oxygen. (Id.) Plaintiff denied fatigue, chest pain, and dyspnea. (Id.) Nurse practitioner Galione
noted no cardiovascular or respiratory abnormalities. (Id.) Examination of the extremities reveal
no cyanosis, clubbing, or edema. (Tr. 986.) Plaintiff was diagnosed with a likely viral upper
respiratory infection and prescribed Flunisolide for her symptoms. (Id.)
A consultation request from February 29, 2012, reveals that Dr. Tanner referred Plaintiff
to the rehabilitation medicine clinic. (Tr. 999.) Dr. Tanner reported that Plaintiff was a diabetic
who had been using a motorized wheelchair for years and was applying for a new one. (Id.) Dr.

26

Tanner noted that it was unclear why Plaintiff was wheelchair-dependent, so he asked for reevaluation of the need for a motorized wheelchair. (Id.)
On April 13, 2012, Plaintiff sought medication refills from the Bellevue Clinic. (Tr.
983−84.) She also complained of dysuria. (Id.) Plaintiff denied chest pain and dyspnea. (Id.) No
cardiovascular or respiratory abnormalities were noted. (Id.) On April 16, 2012, Plaintiff was
prescribed Ampicillin to treat her dysuria. (Tr. 1077.)
On March 20, 2013, Dr. Hall responded to interrogatories from the SSA Office of
Disability Adjudication and Review. (Tr. 1181−82.) Dr. Hall wrote that he had diagnosed Plaintiff
with NIDDM, itching skin, and hypocholesteremia. (Tr. 1181.) He stated that high sugar in
Plaintiff’s blood test, complaints of skin itching, and high cholesterol in Plaintiff’s blood test were
the objective or diagnostic evidence for his diagnoses. (Id.) When asked if Plaintiff was ever
evaluated by a neurologist or other medical professional for a wheelchair or motorized wheelchair,
Dr. Hall replied, “No.” (Id.) He further responded that Plaintiff’s resting pulse and resting ECG
showing tachycardia, as well as her complaints of palpitations, shortness of breath, leg cramps,
and fatigue, supported the need for a wheelchair. (Id.) When asked whether Plaintiff had a
pulmonary disease, Dr. Hall reported that Plaintiff had shortness of breath on exertion. (Id.) Dr.
Hall then expressed doubt concerning Plaintiff’s history of asthma and stated that no PFT had been
done. (Id.) Lastly, Dr. Hall answered that during the time he was treating Plaintiff, there was no
objective evidence that would support a heart condition. (Tr. 1182.)
In January and February 2014, after last examining Plaintiff on December 24, 2013, Dr.
Gao completed order forms requesting a motorized wheelchair for Plaintiff’s lifetime. (Tr. 88397.) Dr. Gao listed diagnoses of peripheral neuropathy, wrist pain, adhesive capsulitis of the
shoulder, cervicalgia, and muscle weakness. (Tr. 883.) Dr. Gao separately listed diagnoses of

27

lumbar disc displacement, superficial phlebitis of the leg, edema, and atherosclerosis of native
arteries of the extremities, not otherwise specified. (Tr. 884.) Dr. Gao further stated that Plaintiff
had been diagnosed with peripheral neuropathy for over 10 years, that she was in a wheelchair and
was not able to walk more than a few steps at home, and that she had chronic neck and lower back
pain. (Tr. 884, 891.) She also had left side weakness. (Tr. 891.) Dr. Gao stated that Plaintiff
needed a power wheelchair to independently get around inside and outside of her home. (Tr. 884.)
Her cardio status was noted to be impaired with functional limitations “on exertion.” (Tr. 885.)
A May 14, 2014 MRI of the right ankle revealed no soft tissue mass at the site of clinical
concern, and noted that unencapsulated lipomas were difficult to exclude on imaging. (Tr. 90304.) An August 14, 2014 CT-scan for hematuria revealed unremarkable findings, aside from mild
bilateral renal cortical scarring, which may be related to prior ascending collecting system
infections. (Tr. 902.)
On August 27, 2014, Dr. Hall’s physician’s assistant, Peter Wong, completed a medical
request for home care for three days per week, listing Plaintiff’s diagnoses as follows: uncontrolled
NIDDM; asthma without acute exacerbation; postsurgical hypothyroidism; chronic gastritis,
without mention of hemorrhage; pure hypercholesterolemia; difficulty in walking; pain of the
ankle and/or heel; and diabetic neuropathy (nerve damage from diabetes). (Tr. 898–901.) The
form also noted “limited range of motion, muscular motor impairment;” it listed diagnoses of
diabetes since 1998; pulmonary block disease since 1996; neuroglia pain 2000; high cholesterol
since 1998; and stomach disorder since 1998. (Tr. 899–900.) The form indicated that Plaintiff
had been referred for skilled nursing and a homecare aide on December 2, 2013. (Tr. 901.)
A June 9, 2015 endoscopic evaluation yielded an impression of mild gastritis and
gastroesophageal reflux disease (GERD), and biopsies revealed antral mucosa with mild chronic

28

gastritis, and gastric oxyntic type mucosa with mild chronic superficial non-specific gastritis. (Tr.
905-07.)
On July 24, 2015, Plaintiff was admitted for three days to St. John’s Episcopal Hospital
for treatment of diverticulitis. (Tr. 908-16.)
2.

Consultative Physicians
a.

Dr. Steven Rocker (May 2002)

At the request of the Commissioner, Dr. Steven Rocker, M.D., performed a consultative
examination of Plaintiff on May 20, 2002. (Tr. 252−59.) Plaintiff reported to Dr. Rocker that she
had rapid heartbeat, shortness of breath, diabetes, and elevated cholesterol. (Tr. 252.) She also
stated that she had had exposure to tuberculosis. (Id.) Dr. Rocker opined that Plaintiff was
“questionably short of breath at rest.” (Id.) He noted that she did not complain of chest pain, nor
did she report polyphagia, polyuria, or polydipsia. 36 (Id.) Plaintiff had no complaints of visual
impairment, paresthesia, or renal disorder.

(Id.)

Dr. Rocker opined that Plaintiff was “a

suboptimal historian” as she was unclear about her medical history. (Id.) At the time, Plaintiff
was taking the following medications: Zocor, Levoxyl, 37 Ranitidine, Neurontin, and Glucophage.
(Id.)
Dr. Rocker described Plaintiff as well-developed, well-nourished, well-groomed, and in no
acute distress. (Id.) Plaintiff presented in a wheelchair and propelled herself in her wheelchair by

36

Common symptoms of diabetes mellitus include “increased urinary frequency
(polyuria), thirst (polydipsia), hunger (polyphagia), and unexplained weight loss.” About diabetes,
WORLD
HEALTH
ORGANIZATION,
http://www.who.int/diabetes/action_online/basics/en/index1.html (last visited Sept. 18, 2017).
37

Levoxyl is a medication used to reduce the size of thyroid glands or goiters. See
Levothyroxine
(Oral
Route),
MAYO
CLINIC,
http://www.mayoclinic.org/drugssupplements/levothyroxine-oral-route/description/drg-20072133 (last visited Sept. 18, 2017).
29

using her legs on the ground in a manner equivalent to walking. (Id.) Plaintiff was able to transfer
to and from the examination table without difficulty.

(Tr. 253.)

Examination of the

musculoskeletal system revealed that Plaintiff had extensible full function of the legs. (Id.) Dr.
Rocker stated that Plaintiff was able to walk without real difficulty, though she claimed to be
unable to heel walk, toe walk, or tandem walk, and she had no muscular atrophy. (Id.) All of
Plaintiff’s joints had a full range of motion and were without deformity, swelling, warmth, or
tenderness. (Id.) The peripheral pulsations of Plaintiff’s extremities were intact and she had no
clubbing, cyanosis, or edema. (Id.) Neurological examination revealed hyporeflexia throughout
and negative leg raising. (Id.) Plaintiff’s motor and sensory functions were normal and her
cerebellar functions were intact. (Id.) No cardiovascular or pulmonary abnormalities were noted.
(Id.) Chest x-rays were negative. (Tr. 259.) Dr. Rocker found no objective cardiac impairment
during the examination or after review of the available information despite reported history of
tachycardia. (Tr. 253.) He noted Plaintiff’s history of diabetes and hyperlipidemia. (Id.) In
reference to Plaintiff’s status post thyroidectomy, Dr. Rocker opined that it was not a limiting
problem because Plaintiff was on replacement medication. (Id.) Dr. Rocker further noted that
Plaintiff had possible peripheral neuropathy based upon her medication. (Id.) Dr. Rocker
concluded that based on the objective finding, Plaintiff was able to perform sedentary, light, and
moderate work activity. (Id.) His prognosis was fair. (Id.)
b.

Dr. Anthony Buonocore (May 2002)

On May 7, 2002, state agency medical consultant, Dr. Anthony Buonocore, M.D., reviewed
Plaintiff’s record to assess her need for a wheelchair. Dr. Buonocore reported that Plaintiff’s
dyspnea diagnosis and need for a wheelchair were unexplained by the record. (Tr. 263.) On June
19, 2002, in a subsequent review of the record, Dr. Buonocore noted that Plaintiff was able to walk
into the exam room without assistance at her consultative examination with Dr. Rocker on May
30

20, 2002. (Tr. 262.) He also stated that Plaintiff’s PFTs did not meet the Listing for an impairment.
(Id.) He reported that Dr. Hall’s medical practice had assured him that Plaintiff needed the
wheelchair for any walking outside of the exam room. (Id.) Dr. Buonocore referenced the
Bellevue Rehabilitation Service statement that Plaintiff became tachycardic after walking for five
minutes. (Tr. 262; see Tr. 288.) Dr. Buonocore contacted Plaintiff’s neurologist, Dr. Gao, on June
18, 2002. (Tr. 261.) Dr. Gao reportedly stated that neurological testing resulted in a negative
work-up, including negative MRIs. (Id.) Dr. Gao also reported to Dr. Buonocore that Plaintiff
had unexplained weakness without any abnormal neurological signs. (Id.)

Dr. Buonocore

concluded that Plaintiff could stand and walk two hours in an eight-hour day and could carry and/or
lift ten pounds occasionally. (Tr. 265.)
3.

Expert Medical Testimony
a.

Dr. Richard Wagman

ALJ Wieselthier appointed Dr. Richard Wagman, M.D., to review Plaintiff’s medical
record and testify as an impartial medical expert at the ALJ Hearing on April 8, 2008. (Tr.
711−14.) Dr. Wagman testified that, since 2000, Plaintiff had been a non-insulin diabetic. He
noted that the condition was adequately controlled. (Tr. 712.) He further testified that Plaintiff
had a history of hypothyroidism secondary to two surgical procedures in 1996 and 1998; however,
this condition was also well controlled. (Id.) With regard to Plaintiff’s asthma, Dr. Wagman
opined that the history was “vague” because Plaintiff’s PFTs had been normal. (Id.) Plaintiff’s
walking problem had been worked up at Bellevue and described as a nonphysiological gait pattern.
(Id.) Dr. Wagman explained that this description meant that the doctors had found nothing of an
organic nature to explain Plaintiff’s condition. (Id.) He referenced Dr. Rocker’s statement that
Plaintiff could walk without difficulty and stated that there was nothing in the record to suggest
the need for a wheelchair. (Id.) Dr. Wagman noted that MRIs of Plaintiff’s brain and spine had
31

been within normal limits. (Id.) Additionally, Dr. Wagman noted that there was no information
available in the record to support Plaintiff’s alleged eye cancer. (Tr. 713; see Tr. 703−04.) Dr.
Wagman stated that he was not sure “how much of an impairment there [was] at all.” (Tr. 713.)
He then opined that Plaintiff would be able to perform light work. (Id.) After the hearing, Dr.
Wagman received copies of records that had been subpoenaed from Dr. Hall. (Tr. 615.) Upon
review of these records, Dr. Wagman indicated that the new evidence would not change his
testimony. (Tr. 950; see Tr. 570−71.)
b.

Dr. Gerald Greenberg

At the hearing before ALJ Strauss on September 13, 2012, Dr. Gerald Greenberg, M.D., a
board-certified specialist in pulmonary disease, testified as a medical expert. (Tr. 1255−69;
1271−75; see Tr. 820−24.) After reviewing Plaintiff’s file, Dr. Greenberg opined on Plaintiff’s
medical history since March 27, 2002. (Tr. 1257.) Dr. Greenberg reported that Plaintiff’s history
included diabetes, two thyroidectomies, cataract surgery, lumbago, asthma, and complaints of
peripheral neuropathy. (Tr. 1258, 1260, 1262.) Dr. Greenberg opined that Plaintiff’s asthma was
well-controlled. (Tr. 1264.) With respect to Plaintiff’s cardiac condition, Dr. Greenberg noted the
test performed by Dr. Oppenheimer, which indicated that there was no evidence of cardiac disease.
(Tr. 1266−67; see Tr. 639.) While Plaintiff had reported pain in her left shoulder, Dr. Greenberg
noted that no objective evidence or laboratory test existed to confirm a diagnosis of rheumatoid
arthritis. (Tr. 1267−68.) Moreover, Dr. Greenberg reported that there were no documented
impairments that could be attributed to Plaintiff’s need for a wheelchair and the objective evidence
did not indicate that she was necessarily limited to a wheelchair. (Tr. 1261, 1263, 1268.) Further,
he noted that the physical examinations documented in Plaintiff’s file would not preclude
sedentary work. (Tr. 1263.) Dr. Greenberg recommended sending Plaintiff for a consultative
examination, including a possible psychiatric evaluation. (Tr. 1268.) Dr. Greenberg concluded
32

that the record did not indicate that Plaintiff had an impairment that met or medically equaled a
Listing. (Id.)
B.

Non-Medical Evidence
1.

Plaintiff’s Self-Reporting

In an SSA Disability Report dated March 20, 2002, Plaintiff stated the she was limited in
her ability to work because of heart problems, tuberculosis, diabetes, high cholesterol, thyroid
disease, skin problems, allergies, and breathing difficulties. (Tr. 101.) She reported that her illness
began on January 1, 1996, and that she had not worked since that date. (Id.) Plaintiff stated that
she stopped working because she was too tired and would fall asleep while working. (Id.) She
had previously held jobs as a computer analyst and an office clerk. (Tr. 102.)
Plaintiff noted that Bellevue Hospital had treated her for diabetes, high cholesterol, thyroid
disease, breathing difficulties, skin problems, and allergies. (Tr. 103.) She also indicated that Dr.
Hall had prescribed a wheelchair as treatment for her resting tachycardia, shortness of breath,
palpitations on exertion, allergies, and skin problems. (Id.) She noted receiving INH treatment
from the NENA Health Council and undergoing thyroid surgery in China. (Tr. 104−05.) Her
medications at that time were Neurontin, Glucophage, Serevent, Zocor, Zyrtec, Ranitidine,
Levoxyl, Lac−Hydrin, and Nitrostate. (Tr. 106−08.)
On March 27, 2002, SSA field office representative “D. Farro” conducted a face-to-face
interview with Plaintiff. (Tr. 110−13.) Farro noted that Plaintiff had filed a disability claim in
February 1998, which was denied. (Tr. 110.) Farro indicated that Plaintiff had difficulties with
understanding, coherency, concentrating, answering, standing, walking, and seeing. (Tr. 112.)
In SSA reports from April 2002, Plaintiff stated that she began having chest pain in
November 1995. (Tr. 115.) She reported that the pain eventually spread to her hand, leg, back,
and neck causing her to feel tired and affected her ability to do daily activities. (Tr. 115−17,
33

125−31.) She stated that, in June 1996, she was diagnosed with cardiovascular disease at the
Research Institute of Guangdong Province. (Tr. 115.) Plaintiff noted that she felt the pain
whenever she had to lift something or concentrate for a long time.

(Tr. 116.) She took

nitroglycerin and Neurontin to relieve the pain. (Id.)
Plaintiff reported that she lived alone in an apartment at the time and that her daily activities
consisted of eating, doing laundry, loading the dishwasher, preparing simple meals, reading,
listening to the radio, fixing clothes, playing computer games, and collecting stamps. (Tr. 12425.) She stated that she needed a housekeeper and home attendant to help with mopping and
cleaning because she was too tired to do those activities on her own. (Tr. 126−27.) Plaintiff
reported that she went outside once every week or two with assistance, and she traveled using
public transportation, but that she did not go out alone. (Tr. 127.) She stated that she was able to
shop, pay bills, and handle a savings account. (Tr. 128.) Her social activity consisted of talking
to someone “once in a while.” (Tr. 129.) Plaintiff reported that her ability to lift things, stand,
walk, sit, climb stairs, kneel, and use her hands were affected by her illnesses. (Id.) She stated that
she tried to avoid walking and that she could not concentrate for a long time because she was tired.
(Tr. 130.) During a telephone call on May 9, 2005, Plaintiff explained to the SSA district office
that she would not attend consultative examinations because she already had a primary medical
doctor. (Tr. 553.)
2.

Plaintiff’s Testimony

At the August 23, 2004 hearing before ALJ Wieselthier, Plaintiff testified as follows: She
stated that she had been using a motorized wheelchair for nearly two years. (Tr. 35, 59.) Plaintiff
lived in a wheelchair accessible apartment in New York City public housing (“City Housing”).
(Tr. 40.) She stated she received $254 per month in welfare payments, which she used to pay her
monthly rent of $117. (Tr. 41, 45.) She had a license to drive a car, but had not driven since
34

January 1996. (Tr. 43.) She had traveled to the hearing by bus, and stated that she did not use the
subway because of inconsistent wheelchair access. (Tr. 43−45.) Plaintiff testified that she had a
Master of Computer Science from City College and was able to speak, read, and write English,
Mandarin, and Cantonese. (Tr. 46−47, 53.) She stated that she had attended basic training for the
United States Army, but was discharged. (Tr. 47−49.) Plaintiff reported that she had worked as a
computer analyst in China from 1982 to 1987 and that she worked as an office clerk in New York
until December 1995, but that she had to quit because she was too “sleepy.” (Tr. 49−51.) Plaintiff
reported that for activities she made clothes, collected stamps, watched television, listened to
music, read newspapers, cooked, shopped, and performed household chores, including making her
bed, cleaning, vacuuming, and ironing her clothes. (Tr. 73−79.) Plaintiff also stated she could
dress herself and that she rarely visited friends, but visited her parents twice a year. (Tr. 79−81.)
Plaintiff testified that her biggest problem at the time was that she felt too tired; however,
she could not state the reason or provide a diagnosis that caused her fatigue. (Tr. 54.) Plaintiff
stated that she received treatment for diabetes at Bellevue Hospital and was prescribed Actos and
Metformin to treat the condition. (Tr. 56−57.) Plaintiff testified that medication helped with her
thyroid problem. (Tr. 58.) She also testified that she was prescribed the motorized wheelchair
because of general weakness. (Tr. 59.) The head, back, and leg pain that she experienced and
treated with patches and Neurotin often lasted all day. (Tr. 60−61, 63.) Plaintiff testified that if
she took more than two or three steps, or if she stood for more than a minute or two, her legs would
begin to shake and she would become tired. (Tr. 65.) She also testified that she could pick things
up from the floor, kneel, grip objects, and carry a gallon of milk. (Tr. 67−70.) Plaintiff stated that
she saw a psychiatrist who told her that she did not have any mental impairments. (Tr. 67.)

35

Additionally, Plaintiff reported that she had shortness of breath and that she had been diagnosed
with asthma. (Tr. 82−83.)
On April 8, 2008, Plaintiff testified at a second hearing before ALJ Wieselthier. (Tr.
677−714.) Plaintiff again identified her activities as making clothes, watching television, reading
the newspaper, shopping, and performing household chores. (Tr. 708−09.) She reported sleeping
about 10 hours each day. (Tr. 707.) Plaintiff stated that Dr. Hall had prescribed the wheelchair
because Plaintiff had a heart condition and was “too tired.” (Tr. 680−81.) Plaintiff stated that her
car had been repossessed in 1996, and that she had not driven since that time. (Tr. 683.) Plaintiff’s
friend had driven her to the hearing. (Id.) Plaintiff was still hesitant to use the subway because of
the lack of ramps and elevators. (Tr. 685.)
Plaintiff clarified testimony that she had given at the 2004 hearing about being discharged
from the Army, explaining that she was discharged because of her tuberculosis. (Tr. 686−87.)
Plaintiff reiterated that her biggest problem was that she was tired and did not have the energy to
stay awake. (Tr. 688.) Plaintiff testified that she had been visiting the Bellevue Clinic since 1998
for treatment of asthma and diabetes. (Tr. 688−89.) She reported that her diabetes and high
cholesterol were under control. (Tr. 689, 691.) Plaintiff reiterated that she had difficulty walking
more than one or two steps, or standing more than one or two minutes. (Tr. 694−95.) She also
mentioned that she had back and leg pain. (Tr. 694, 699.) Plaintiff reported using Neurotin,
Lidocaine patches, Chinese medicine, and massages to relieve pain. (Tr. 696, 699.) Plaintiff stated
that she was still tired and she was often dizzy, which she partially attributed to her diabetes. (Tr.
697.) She testified that she could pick items up from the floor, and that she did not find sitting
problematic, nor did she have issues grasping items. (Tr. 700.) Plaintiff later testified that if she

36

sat too long, she felt pain. (Tr. 706.) Plaintiff further testified to having received treatment for
eye cancer, cataract surgery in her left eye, and two thyroid surgeries. (Tr. 698, 702−06.)
Another hearing was held before ALJ Strauss on September 13, 2012. (Tr. 1207−76.)
Plaintiff testified that she had not worked in the last 15 years and had not driven since 1996. (Tr.
1215-16.) Plaintiff stated that dizziness and sleepiness had prevented her from working. (Tr.
1216-18.) Plaintiff had not seen a doctor for her “sleep problem.” (Tr. 1220.) Plaintiff testified
that she had taken medicine for tuberculosis, and then needed to “stay home and take a break.”
(Id.) Plaintiff still lived alone in her apartment, and a friend had driven her to the hearing. (Tr.
1215, 1238.) Plaintiff further reported that Dr. Gao at Bellevue Hospital prescribed a motorized
wheelchair in 2001, because she could not walk due to her body being inflexible. (Tr. 1222−23.)
Plaintiff used Access-A-Ride to visit her parents, and often traveled to other places by bus because
the subway was unreliable. (Tr. 1239−40.)
At the time of the hearing, Plaintiff reported that she took three medications for her
diabetes, which was sometimes uncontrolled. (Tr. 1225−26.) Plaintiff also reported taking
Gabapentin for nerve pain throughout her body. (Tr. 1226−27.) Plaintiff specifically identified
pain in her left shoulder, upper and lower back, neck, elbow, knees, ankles, hip, and buttocks. (Tr.
1227−29.) Gabapentin helped relieve the needle sensation Plaintiff often felt in her hands. (Tr.
1229.) Plaintiff testified that medication did not alleviate her shoulder pain, which she had
experienced for more than a year. (Tr. 1230.) Plaintiff reported that she had tried to see a pain
specialist; however, she felt as though physical therapy was not helpful. (Tr. 1245−46.) She
testified that she was able to stand ten to twenty minutes, and sit one to two hours. (Tr. 1248.)
Plaintiff further testified that she had been prescribed Prednisone, which she took for a
period of ten days, to relieve her bronchitis and persistent cough. (Tr. 1231−32.) She also testified

37

that she no longer had dizzy spells and that she had been diagnosed with a heart problem when she
visited China in 1997. (Tr. 1233.) She went to China to receive medical care because she did not
have insurance in the United States. (Tr. 1221.) At the time of the hearing, Plaintiff was taking
Lisinopril for her fast heart rate; Ranitidine for stomach problems; Singulair for mucus and a
cough; Advair, an asthma pump and Nasonex for asthma; Glimepiride and Actos for diabetes;
Trilipix for cholesterol; Tramadol and Lidoderm patches for pain; and Hydroxyzine HCL for
itching. (Tr. 1234−37.) Plaintiff wore glasses because she reportedly could not see at a distance.
(Tr. 1244.) Plaintiff testified that she had tried physical therapy two times, but it had not helped
with her conditions. (Tr. 1245−46.)
A typical day for Plaintiff involved preparing food for herself, washing clothes, cleaning
her apartment, and watching television. (Tr. 1237.) She reported using her computer to write
letters, watch movies, read news articles, shop, and communicate with friends via email or
Facebook. (Tr. 1241.) Plaintiff also reported collecting stamps and stones, and that she sometimes
made clothes with a foot-operated sewing machine. (Tr. 1240, 1245.) Plaintiff was able to feed,
shower, and bathe herself, as well as care for other personal needs. (Tr. 1246.) She occasionally
had trouble dressing herself because of left shoulder pain, though she reported being able to lift
ten to twenty pounds with both arms. (Tr. 1246−50.) She testified that she had difficulty raising
her left arm because of the pain, and an x-ray had revealed a “bruise.” (Tr. 1249−1250.) She
stated that she could stand for ten to twenty minutes, sit for one to two hours, and could only take
two to three steps at a time. (Tr. 1248.)
Plaintiff reported that Bellevue Hospital had become difficult to visit because they did not
treat her cough. (Tr. 1250.) She previously saw Dr. Tanner every six months at Bellevue;
however, because her current wheelchair was not motorized, she was unable to visit him as often.

38

(Tr. 1251, 1253.) Without a motorized wheelchair, she needed help pushing herself up and down
a hill to get to and from a hospital. (Tr. 1251−52.) Additionally, Plaintiff testified that she refused
to attend the scheduled consultative medical examinations because she believed the doctors created
“fake reports.” (Tr. 1223−24.)
At a fourth hearing on August 6, 2015, before ALJ Friedman, 38 Plaintiff testified that she
was in a wheelchair because she could not walk normally. (Tr. 1197.) She arrived to the hearing
with her home attendant via Access-A-Ride. (Tr. 1194, 1200−01.) She stated that though she had
stopped using one for a while, she had been using a home attendant for several years. (Tr.
1198−99.) She lived alone in her apartment, but she often received help from a friend, particularly
with grocery shopping. (Tr. 1197, 1199, 1204.) Her home attendant assisted in preparing food
and cleaning. (Tr. 1204.) A typical day for the Plaintiff involved making breakfast, watching
television, and learning Spanish. (Tr. 1204−05.)
Plaintiff reportedly suffered from coughing fits in the winter and was often unable to
receive swift medical care from Bellevue, so she began seeing a private doctor. (Tr. 1201.) She
reported that diabetes had caused vision problems that resulted in two cataract surgeries. (Id.)
Plaintiff also experienced a frequent urge to urinate because of her diabetes. (Tr. 1202.) She stated
that she had visited the Bellevue Emergency Center two or three months prior to the hearing due
to her asthma. (Tr. 1203.)
As in the September 2012 hearing, Plaintiff reported that she needed a new motorized
wheelchair in order to be able to travel alone. (Tr. 1205−06.) She stated that her neurologist told
her that her muscles were weak; therefore, she could not walk. (Tr. 1197−98.) She also mentioned

38

After Plaintiff was determined to be a class member in the Padro lawsuit, her case was
reassigned to ALJ Michael Friedman, who held a fourth hearing. (Tr. 722, 831−36.)
39

that an infection had affected her walking. (Id.) She stated that she did not feel pain in her legs;
she lacked flexibility. (Tr. 1199−1200.) Plaintiff later testified that she felt pain if she pushed
down on her leg. (Tr. 1203.) Plaintiff testified that she could stand for a couple of minutes and
was able to take two or three steps before getting tired. (Tr. 1200.) She further stated that she
could sit for a couple of hours. (Id.) She also reported that her arms did not have strength. (Tr.
1200.)
DISCUSSION
I.

STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”)

may bring an action in federal district court seeking judicial review of the Commissioner’s denial
of their benefits “within sixty days after the mailing . . . of notice of such decision or within such
further time as the Commissioner of Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3).
In reviewing a final decision of the Commissioner, the Court’s role is “limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting
Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)) (internal quotation marks
omitted). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (alterations and
internal quotation marks omitted)). In determining whether the Commissioner’s findings were
based upon substantial evidence, “the reviewing court is required to examine the entire record,
including contradictory evidence and evidence from which conflicting inferences can be drawn.”
Id. (internal citation omitted). However, “it is up to the agency, and not this court, to weigh the
conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
40

1998). If there is substantial evidence in the record to support the Commissioner’s findings as to
any fact, they are conclusive and must be upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue,
729 F.3d 172, 175−76 (2d Cir. 2013).
II.

ELIGIBILITY
BENEFITS

STANDARD

FOR

SOCIAL

SECURITY

DISABILITY

To receive SSI, claimants must be disabled within the meaning of the Act. Claimants
establish disability status by demonstrating 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)(1)(A), 1382c(a)(3)(A). The claimant bears the
initial burden of proof on disability status and must demonstrate disability status by presenting
medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic
techniques,” as well as any other evidence the Commissioner may require.

42 U.S.C. §§

423(d)(5)(A), 1382c(a)(3)(D); but see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[W]here
there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a
claimant’s medical history even when the claimant is represented by counsel or by a paralegal.”
(alterations and quotation marks omitted)).
ALJs must conduct a five-step inquiry to determine whether a claimant is disabled under
the Act as set forth in 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1). If at any step the ALJ finds
that the claimant is either disabled or not disabled, the inquiry ends there.

20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). First, the ALJ determines whether the claimant is currently
engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If so,
the claimant is not disabled. If not, the ALJ proceeds to the second step to determine whether the
claimant suffers from a “severe medically determinable physical or mental impairment that meets
41

the duration requirement.” 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is
“severe” if it “significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is not severe, the claimant is
not disabled. If the claimant has a severe impairment, the ALJ proceeds to the third step, which
considers whether the impairment meets or equals one of the impairments listed in Appendix 1 to
Subpart P of part 404 (“Listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also
20 C.F.R. Pt. 404, Subpart. P, Appendix 1.
If the ALJ determines at step three that the claimant has a listed impairment and meets the
duration requirement, the ALJ will find the claimant disabled. Id. If the claimant does not have a
listed impairment, the ALJ makes a finding about the claimant’s “residual functional capacity”
(“RFC”) before moving onto steps four and five. 20 C.F.R. §§ 404.1520(e), 416.920(e). A
claimant’s RFC is an assessment of “the most [the claimant] can still do despite [his or her physical
or mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). At the fourth step, the ALJ
considers whether, in light of the claimant’s RFC, he or she is able to perform past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, the claimant is not disabled. If not, the
ALJ proceeds to the fifth step, where the burden shifts to the ALJ to demonstrate that the claimant
has the capacity to perform other substantial gainful work existing in the national economy,
considering the claimant’s RFC, age, education, and work experience.

20 C.F.R. §§

404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the claimant is not disabled. If not, the claimant is
disabled and entitled to benefits. Id.
III.

THE ALJ’S DECISION
On October 20, 2015, the ALJ issued a decision denying Plaintiff’s claims. (Tr. 722−39.)

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March
27, 2002. (Tr. 725.)
42

At step two, the ALJ found that Plaintiff had the following medically determinable
impairments: diabetes mellitus, hypertension, asthma, sinusitis, reflux esophagitis, tachycardia, a
small calcaneal enthesophyte, allergies, pruritus, neuropathy, a history of cataract surgeries, and a
history of thyroidectomy. (Id.) However, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that significantly limited (or was expected to significantly limit)
her ability to perform basic work activities for twelve consecutive months. (Id.) The ALJ found
that while Plaintiff’s medically determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements regarding the intensity, persistence, and limiting effects of
her symptoms were not credible. (Tr. 726.) The ALJ noted that at the September 13, 2012 hearing,
Plaintiff testified that her medications were helpful and although Plaintiff stated she was not taking
physical therapy because it was unhelpful, the record revealed that she had never tried physical
therapy. (Id.) Further, the ALJ noted Plaintiff’s testimony at the September 2012 hearing that, on
a typical day, she was able to prepare food, wash clothes, clean her apartment, and sometimes
shop. (Tr. 727.) Moreover, Plaintiff had the ability to use a computer to write letters, read
newspapers, watch movies, send emails, and place orders. (Id.)
The ALJ did not give “controlling weight” to Plaintiff’s primary care physician, Dr.
Tanner, because many of Dr. Tanner’s opinions and diagnoses were not supported by the objective
medical evidence in the record and, were at times, inconsistent. (Tr. 733.) Moreover, the ALJ
concluded that Dr. Tanner’s notes showed that he had “complied with [Plaintiff’s] requests” and
“continu[ed] the treatment as always” for his own financial interests. (Id.) The ALJ also noted
that other physicians had indicated that Plaintiff’s need for a wheelchair was unclear, and Dr.
Tanner himself stated that the need should be reevaluated. (Tr. 733-34.)

43

The ALJ also found that the opinions of Dr. Keiran, who had completed interrogatories
propounded by the ALJ to Dr. Tanner, were not entitled to “significant weight,” because Dr. Keiran
had never treated Plaintiff and his opinions were based entirely on Bellevue’s medical records.
(Tr. 734.)
Additionally, the ALJ noted that Dr. Hall’s prescription of the wheelchair was based on
Plaintiff’s own complaints and not on objective data. (Id.) Further, the ALJ gave “significant
weight” to a physician’s April 24, 2000 note, which concluded that Plaintiff did not have cardiac
disease, because the opinion “was made by a physician with specific expertise[ ] after objective
testing.” (Tr. 734–35.) The ALJ also gave “significant weight” to the opinion of Dr. Rocker, a
consultative examiner, who reported, based on objective findings, that Plaintiff was able to
perform sedentary, light, and moderate work activity. (Tr. 735.) By contrast, the ALJ gave “very
little weight” to state agency review consultant Dr. Buonocore’s opinion from 2002, that Plaintiff
could only stand and walk two hours in an eight-hour day because Dr. Buonocore was a nontreating, non-examining source whose opinion lacked objective support. (Id.)
The ALJ emphasized that Plaintiff’s claims of disability were “disproportionate” to the
record and were not supported by physical examinations or diagnostic testing. (Tr. 736.) He
reiterated that Plaintiff’s diabetes was described as “‘uncomplicated’ and under fair control,” and
that Plaintiff did not display classic manifestations of diabetes. (Id.) He noted that multiple
physical examinations and diagnostic testing throughout Plaintiff’s lengthy medical history were
unremarkable, normal, or essentially negative, and that Bellevue physicians noted the possibility
of Plaintiff malingering or having Munchausen’s syndrome. (Id.) The ALJ further noted that
Plaintiff’s “medical treatment has been conservative,” her asthma was frequently recorded as
“well-controlled,”, and her pulmonary function testing gave “no evidence of obstructive

44

dysfunction.” (Id.) The ALJ also noted that, on other occasions, Plaintiff had refused testing to
confirm whether she had asthma. (Id.) Additionally, the ALJ considered Plaintiff’s sinusitis as a
“minor illness” which was “entirely self-limiting.” (Tr. 737.) He found that Plaintiff’s vision
difficulties were only temporary, thus, the ALJ concluded that they did not reach Listing-level
severity. (Id.) The ALJ also considered that there were no objective findings to support a finding
of severe lumbago, that Plaintiff’s blood pressure had typically been in normal range, and that,
even though Plaintiff had at least one ECG consistent with tachycardia, the evidence was not
enough to establish heart disease, because her other results were “borderline normal.” (Tr.
736−37.)
Based on a review of the record, the ALJ concluded that Plaintiff had not been under a
disability, as defined in the Act, since March 27, 2002, the date the application was filed. (Tr.
739.)
IV.

ANALYSIS
The Court finds that the ALJ’s decision is supported by substantial evidence in the record.

Accordingly, the ALJ’s decision is affirmed in its entirety.
A.

Substantial Evidence Supported the ALJ’s Finding that Plaintiff had not
Engaged in Substantial Gainful Activity Since the Application Date

At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity
since the application date of March 27, 2002. (Tr. 725.) A plaintiff performing substantial gainful
work activity cannot be found disabled. 20 C.F.R. § 416.920(a)(4)(i). The ALJ’s finding is
supported by substantial evidence because the record reflects that Plaintiff has not been employed
since January 1, 1996, the alleged onset date. (Tr. 49−50, 97, 723.)

45

B.

Substantial Evidence Supported the ALJ’s Finding that Plaintiff’s Medically
Determinable Impairments Were Not Severe

The ALJ’s determination at step two that Plaintiff did not have an impairment or
combination of impairments, which significantly limited (or was expected to significantly limit)
her ability to perform basic work-related activities for 12 consecutive months is supported by
substantial evidence. (Tr. 725.) In finding that Plaintiff’s combination of impairments was not
severe, the ALJ reviewed the record and considered the opinion evidence in the record, affording
proper weight to the physicians and the experts. Indeed, as set forth in detail below, the ALJ
conducted a thorough review of Plaintiff’s medical history and carefully considered the opinions
of the treating, non-treating, consultative physicians, and medical experts, as well as the objective
medical evidence, in deciding what weight, if any, to give those opinions. The ALJ also considered
Plaintiff’s subjective symptoms and found that Plaintiff’s allegations were not supported by the
objective medical evidence in the record and, at times, was inconsistent with Plaintiff’s own
testimony. (Tr. 725.)
1.

The ALJ Properly Weighed the Opinions of the Plaintiff’s Treating
and the Consultative Physicians

A treating source’s opinion is entitled to controlling weight when it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent with
other substantial evidence of record. 20 C.F.R. § 416.927(c)(2). When determining the weight to
give to a treating physician, various factors must be considered to determine how much weight
should be given. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. §
404.1527(d)(2)). “Specifically, the ALJ must consider (i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii) the evidence in support of the opinion;
(iii) the opinion’s consistency with the record as a whole; (iv) whether the opinion is from a

46

specialist; and (v) other relevant factors.” Bailey v. Comm’r of Soc. Sec., No. 13−CV−2858, 2016
WL 3962950, at *7 (E.D.N.Y. July 21, 2016) (quoting Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.
1998)) (alterations and internal quotation marks omitted); see also 20 C.F.R. §§
404.1527(c)(2)−(6). Further, the ALJ must give good reasons for the lack of weight given to a
treating physician. See Schaal, 134 F.3d at 503–04.
(a)

Treating Primary Care Physician Dr. Tanner

The ALJ concluded that Plaintiff’s treating primary care physician, Dr. Tanner, was not
entitled to controlling weight because Dr. Tanner’s opinion lacked support from objective medical
evidence and was inconsistent with the record as a whole. (Tr. 733.) The ALJ noted that in 2010,
Dr. Tanner opined that he considered Plaintiff to be medically disabled, and asserted that she
needed a wheelchair because of lower extremity weakness. (Tr. 733; Tr. 1118.) The ALJ
concluded that Dr. Tanner’s records did not show objective clinical or diagnostic findings that
corroborated his diagnosis of “bilateral lower extremity weakness.” (Tr. 733.) The ALJ relied on
treatment notes showing that Dr. Tanner, as well as other physicians, frequently reported Plaintiff’s
ability to transfer from her wheelchair to the examination table without assistance. (Tr. 731–33;
Tr. 965−66, 972, 1097.) Further, the ALJ noted that multiple physicians, including Dr. Tanner, at
Bellevue, had opined that Plaintiff’s need for a wheelchair was unclear, and that Dr. Tanner himself
stated that the need should be reevaluated. (Tr. 731, 733–35.) Furthermore, the ALJ noted that
although evaluation notes from Bellevue Hospital stated that Plaintiff had neuropathy, the
neuropathy diagnosis was not corroborated by positive clinical tests, such MRIs and EMGs. (Tr.
733; Tr. 1147.) He also noted that Plaintiff’s own testimony and many physicians’ reports
indicated that Plaintiff was able to stand and take “a few steps.” (Tr. 727, 730–31, 733; Tr. 694.)

47

With regard to Dr. Tanner’s treatment of Plaintiff’s asthma, the ALJ noted that Dr. Lin
from Bellevue reported that Plaintiff’s asthma diagnosis was unclear and that, when Dr. Lin sought
to conduct a PFT, Plaintiff became agitated, refused the PFT, and requested treatment by Dr.
Tanner. (Tr. 731, 1137.) When Dr. Tanner treated Plaintiff a few months later, he never confirmed
the asthma diagnosis with objective testing; he simply reported that her asthma was wellcontrolled. (Tr. 731.) The ALJ noted that even though “pulmonary function testing showed no
evidence of obstructive disease,” Dr. Tanner continued treating Plaintiff for asthma. (Tr. 731, 733;
Tr. 1134.) Moreover, the ALJ noted that other medical doctors at Bellevue noted “there was no
clear reason . . . for a diagnosis of asthma.” (Tr. 733; Tr. 1136−37.) The ALJ sought to receive
clarification about Plaintiff’s diagnoses from Dr. Tanner by sending interrogatories to him. (Tr.
1151.) Dr. Tanner did not respond to the ALJ’s interrogatories, however; Dr. Keiran, a nontreating physician completed them instead. (Id.)
Medical sources are given more weight upon presentation of relevant medical evidence
supporting their opinion. 20 C.F.R. § 416.927(c)(3). Though Dr. Tanner was Plaintiff’s primary
medical doctor for many years, the Court finds the ALJ’s determination that Dr. Tanner’s opinion
was inconsistent with the objective evidence in the record was sound, and is supported by the
record before the Court. Accordingly, the Court finds that the ALJ provided “good reasons” for
not giving controlling or significant weight to Dr. Tanner’s opinion. See Camille v. Colvin, 652
F. App’x 25, 27 (2d Cir. 2016) (ALJ demonstrates “good reason” for giving little weight to the
opinion of a treating physician where the opinion is inconsistent with the source’s own treatment
notes); Legg v. Colvin, 574 F. App’x 48, 49 (2d Cir. 2014); Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) (holding that “the less consistent [a doctor’s] opinion is with the record as a whole, the
less weight it is given”).

48

(b)

Non-Treating Physician Dr. Kieran

The ALJ also did not give significant weight to Dr. Keiran’s opinions, as set forth in the
responses to the ALJ’s interrogatories that were intended for Dr. Tanner, about Plaintiff’s
limitations, because Dr. Keiran had not treated Plaintiff and had only provided his opinion based
on a review of records, without specifying the particular records reviewed. (Tr. 734.) The Court
finds that the ALJ was proper in not affording significant weight to Dr. Keiran’s opinion because
he was a non-examining, non-treating physician with no specialization and little understanding of
the agency’s disability programs. See 20 C.F.R. § 416.927(c). Furthermore, to the extent that Dr.
Kiernan relied on Dr. Tanner’s treatment records, Dr. Kiernan’s opinions suffered from the same
ambiguities and deficiencies as Dr. Tanner’s opinions, which the interrogatories were actually
intended to clarify or resolve, if possible.
(c)

State Agency Review Consultant Dr. Buonocore

The ALJ assigned “very little weight” to state agency review consultant Dr. Buonocore’s
opinion that Plaintiff could stand and walk two hours in an eight-hour day and carry and/or lift ten
pounds occasionally, because Dr. Buonocore was a non-treating, non-examining source, and his
opinion lacked objective support. (Tr. 735.) Indeed, Dr. Buonocore’s finding that Plaintiff could
stand and walk for two hours in an eight-hour day is not supported by any medical evidence in the
record. (Id.) Accordingly, the Court finds that the minimal weight afforded to Dr. Buonocore’s
opinion was proper. See 20 C.F.R. § 416.927(c).
(d)

Consultative Examiner Dr. Rocker

With regard to the opinion of consultative examiner, Dr. Rocker, the Court finds that the
ALJ properly gave Dr. Rocker’s opinion significant weight. (Tr. 735.) Dr. Rocker opined that
Plaintiff was able to perform sedentary, light, and moderate work activity. (Id.) As the ALJ found,

49

Dr. Rocker’s opinion was consistent with Plaintiff’s normal neurological examinations and the
absence of any objective testing showing any functional limitations. (Id.) The ALJ reasoned that
Dr. Rocker’s opinion was deserving of significant weight because Dr. Rocker examined the patient
and his findings were consistent with the objective medical evidence in the record. The Court
finds that the weight afforded to Dr. Rocker’s opinion was properly based on its consistency with
the medical evidence and Dr. Rocker’s greater understanding of the disability programs and their
evidentiary requirements. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a
medical opinion is with the record as a whole, the more weight [the ALJ] will give to that medical
opinion.”); Rosier v. Colvin, 586 F. App’x 756, 758 (2d Cir. 2014) (ALJ properly relied on
consultative examiner’s evaluation to reject treating physician’s opinion where the treating
physician’s opinion was inconsistent with other substantial evidence in the record); Parker v.
Berryhill, No. 15-CV-342, 2017 WL 1196470, at *3 (W.D.N.Y. Mar. 31, 2017) (stating that
familiarity with SSA rules and regulations was a proper reason to afford more weight to a
consultative examiner); Rivera v. Colvin, No. 15-CV-3857, 2015 WL 9591539, at *16 (S.D.N.Y.
Dec. 18, 2015) (“An ALJ may give greater weight to a consultative examiner’s opinion than a
treating physician’s opinion if the consultative examiner’s conclusions are more consistent with
the underlying medical evidence.”).
(e)

Consultative Medical Expert Dr. Greenberg

Similarly, the Court agrees with the ALJ’s reasoning in giving significant weight to the
opinion of independent medical expert, Dr. Greenberg, a Pulmonary Disease Specialist. (Tr. 735;
Tr. 820−24.) Dr. Greenberg opined that Plaintiff had no impairment that met or was medically
equal to a Listing. Dr. Greenberg noted the following in supporting his opinion: (1) the inability
to identify a cause of Plaintiff’s pain symptoms; (2) the absence of any diagnosis or other objective

50

factor accounting for Plaintiff’s need for a wheelchair; (3) Plaintiff’s well-controlled asthma; (4)
Plaintiff’s normal stress test results; and (5) the lack of evidence confirming cardiac disease. (Tr.
735; Tr. 1255−68.) The ALJ gave significant weight to Dr. Greenberg’s opinion because “Dr.
Greenberg [had] appropriate expertise, and [had] reviewed claimant’s record and heard her
testimony; furthermore, he [was] familiar with Social Security Regulations and the opinion is
consistent with the record.” (Tr. 735) The Court finds that the weight afforded to Dr. Greenberg’s
opinion was proper. See 20 C.F.R. § 416.927(c)(6) (“[T]he amount of understanding of our
disability programs and their evidentiary requirements that a medical source has . . . and the extent
to which a medical source is familiar with the other information in [Plaintiff’s] case record are
relevant factors that [the ALJ] will consider in deciding the weight to give to a medical opinion.”);
Selian, 708 F.3d at 418 (“[T]o override the opinion of [a] treating physician . . . the ALJ must
explicitly consider whether the physician is a specialist.”); Micheli v. Astrue, 501 F. App’x 26, 29
(2d Cir. 2012) (“[N]oting that the applicable regulations ‘permit the opinions of nonexamining
sources to override treating sources’ opinions provided they are supported by evidence in the
record.’” (quoting Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995))); LaClair v. Colvin, No.
6:12-CV-816, 2013 WL 5218067, at *2 n.4 (N.D.N.Y. Sept. 16, 2013) (finding that an ALJ
properly considered the expert’s knowledge of the SSA’s disability programs when determining
the amount of weight to accord the expert’s opinion).
(f)

Treating Physician Dr. Hall

While the ALJ gave no weight to Dr. Hall’s treatment notes, because they were inconsistent
with his subsequent interrogatory responses and not supported by objective evidence in the record,
the ALJ accorded significant weight to Dr. Hall’s interrogatory responses dated March 20, 2013,

51

which the ALJ found were supported by objective evidence in the record. (Tr. 738; Tr. 1181–82.)
The Court finds that the ALJ’s consideration and weighing of Dr. Hall’s opinions was proper.
Dr. Hall treated Plaintiff for a significant period prior to the relevant period. 39 (Tr. 738);
see Frye ex rel. A.O., 485 F. App’x. at 485 n.1 (relevant time period is date the SSI application
was filed to date of ALJ’s decision). The ALJ noted that although Dr. Hall indicated in his
treatment notes that Plaintiff needed a wheelchair, that opinion was not supported by examination
findings. (Tr. 738.) In response to the ALJ’s interrogatories, Dr. Hall indicated that Plaintiff had
not been evaluated by a neurologist or other medical professional regarding her need for a
wheelchair. (Tr. 738; Tr. 1181.) The ALJ further noted that, Dr. Hall indicated that he had not
reported in his treatment record for Plaintiff any diagnostic evidence supporting a need for a
wheelchair, but had instead based his opinion primarily on one ECG test that showed tachycardia,
though other tests were normal or borderline normal. 40 (Id.) Dr. Hall also indicated that no
pulmonary function testing was done to support his diagnosis of asthma, nor was any objective
testing done to support the diagnosis of a heart condition. (Id.)
The Court finds that the ALJ allocated the proper weight to Dr. Hall’s treatment notes (i.e.,
none) and his interrogatory subsequent responses (i.e., significant), given that Dr. Hall’s treatment
notes were inconsistent with his interrogatory answers and unsupported by the objective medical

39

The Court notes that Plaintiff was examined by neurologist, Dr. Gao, during 2001, prior
to the relevant period. (Tr. 1164.) Though he prescribed Plaintiff’s wheelchair, the record shows
that Dr. Gao discharged Plaintiff from the Neurology Clinic after a negative work-up, including a
negative MRI and a negative EMG. (Tr. 261); see Monette, 269 F. App’x. at 113 (treating
physician rule does not technically apply when claimant was not treated during relevant period);
Blanda, 2008 WL 2371419, at *13 (noting that a physician’s opinion was “not entitled to
controlling weight as he was not a treating physician during the period in contention”)).
40

Dr. Hall also based his opinion on Plaintiff’s subjective complaints of palpitation,
shortness of breath, leg cramping and fatigue. (Tr. 1181.) These complaints, however, were not
supported by objective evidence in his record.
52

evidence, whereas, his interrogatory responses were consistent with the objective medical
evidence. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical opinion is
with the record as a whole, the more weight [the ALJ] will give to that medical opinion.”). Further,
it was not erroneous for the ALJ to give significant weight to Dr. Hall’s interrogatory responses,
even though Dr. Hall treated Plaintiff outside the relevant period. See Monette v. Astrue, 269 F.
App’x. 109, 113 (2d Cir. 2008) (summary order) (noting that treating physician rule does not
technically apply when physician did not treat claimant during the relevant period; however, the
opinion of a physician who treated claimant outside the relevant period may still be given
significant weight); Rogers v. Astrue, 895 F. Supp. 2d 541, 550 (S.D.N.Y. 2012) (finding
physician’s opinion was entitled to significant weight even though physician treated plaintiff
outside the relevant period, where physician treated plaintiff for several months and his notes
frequently referenced the symptoms at issue).
(g)

Dr. Oppenheimer 41

The ALJ properly gave significant weight to Dr. Oppenheimer’s specialized opinion that
was based on a 2D Echo and ECG indicating that there was no evidence of ischemia or cardiac
disease. (Tr. 733−34; Tr. 639); see Petrie v. Astrue, 412 F. App’x. 401, 407 (2d Cir. 2011) (“The
regulations provide that an opinion of a specialist regarding medical issues related to his or her
area of specialty must be given more weight than the opinion of a source who is not a specialist.”);
Rodriguez v. Barnhart, No. 04-CV-949, 2004 WL 2997876, at *9 (S.D.N.Y. Dec. 28, 2004)

41

Although Dr. Oppenheimer would ordinarily qualify as a treating physician, because he
treated Plaintiff outside the relevant period, the treating physician rule does not apply to him. See
Monette, 269 F. App’x. at 113 (noting that treating physician rule does not technically apply to
physician who did not treat claimant during the relevant period). Nonetheless, the ALJ was entitled
to give significant weight to Dr. Oppenheimer’s opinion. Id. (opinion of physician who treated
claimant outside the relevant period may still be given significant weight).
53

(“Generally, an ALJ should give the opinion of . . . a specialist additional weight.”). Like Dr. Hall,
the ALJ gave proper weight to the opinion of Dr. Oppenheimer because, although Dr.
Oppenheimer treated Plaintiff outside the relevant period, his opinion addressed one of Plaintiff’s
alleged symptoms that is at issue and that was referenced frequently throughout the record in this
case. See Monette, 269 F. App’x. at 113; see also Rogers, 895 F. Supp. at 550.
(h)

Dr. Christina Tan

Similarly, the ALJ did not give any weight to Dr. Christina Tan’s August 20, 1998 opinion
that Plaintiff “had been disabled since 1996” because it was not supported by objective medical
evidence, as discussed herein, and because the opinion was made well before the relevant period.
(Tr. 728); see Monette, 269 F. App’x. at 113 (treating physician rule does not technically apply
when claimant was not treated during relevant period); Blanda v. Astrue, No. 05-CV-5723, 2008
WL 2371419, at *13 (E.D.N.Y. June 9, 2008) (noting that a physician’s opinion was “not entitled
to controlling weight as he was not a treating physician during the period in contention”)). Despite
opining that Plaintiff was permanently disabled as of 1996, none of the tests administered by Dr.
Tan or her medical findings support this conclusion. (See, e.g., Tr. 453 (April 1998 exam showed
no palpable masses in neck and head area); Tr. 1149–50 (July 1998 ultrasound showed no
significant changes from Plaintiff’s ultrasound a year earlier); Tr. 411 (September 1998 PFT
showed no obstructed airway); Tr. 399, 401, 409 (December 1998 and March 1999 exams showed
that Plaintiff’s lungs were clear); Tr. 403 (February 1999 exam showed stable pulmonary function;
July 1999 ECG was normal).) Moreover, the ultimate disability determination is reserved for the
Commissioner. 20 C.F.R. § 404.927(d)(2); see also Snell, 177 F.3d at 133 (“[T]he Social Security
Administration considers the data that physicians provide but draws its own conclusions as to

54

whether those data indicate disability. A treating physician’s statement that the claimant is disabled
cannot itself be determinative.”).
(i)

Dr. X. Gao

The ALJ did not address Dr. Gao’s 2001 opinions, and was not required to do so as it was
outside the relevant period. See Monette, 269 F. App’x. at 113 (treating physician rule does not
technically apply when claimant was not treated during relevant period). The ALJ did consider,
however, Dr. Gao’s 2014 opinions as evidenced in Plaintiff’s Physician’s order for a wheelchair.
(see Tr. 735–36.) The ALJ noted that Dr. Gao reported that Plaintiff had neck and low back pain
as well as leg weakness from neuropathy; he also noted that the only positive findings were 4/5
strength in the hips, knees and feet. (Id.) The ALJ did not give Dr. Gao’s 2014 opinion controlling
weight because it was not supported by the other evidence in the record. (Id.) Accordingly, the
Court finds that the ALJ afforded proper weight to the opinions of all of the doctors who treated,
examined, or rendered opinions about Plaintiff.
2.

The ALJ Properly Evaluated Plaintiff’s Subjective Symptoms

After considering the evidence in the record, the ALJ found that Plaintiff had no medically
determinable impairments that could reasonably be expected to produce her alleged symptoms,
and that there was no objective corroborative evidence supporting Plaintiff’s statements about the
intensity, persistence, and limiting effects of her symptoms. (Tr. 736.) The ALJ’s findings about
Plaintiff’s subjective symptoms are supported by substantial evidence.
“When an ALJ determines that a claimant’s own statements regarding her symptoms are
not supported by the record, that ‘decision must 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.’” Frazier v. Comm’r of Soc. Sec., No. 16-CV-4320, 2017 WL
55

1422465, at *11 (S.D.N.Y. Apr. 20, 2017) (quoting SSR 16-3p, 2016 WL 1119029, at *9 (Mar.
16, 2016)). ALJs must use a two-step process for assessing a claimant’s statements about pain and
other limitations:
At the first step, the ALJ must decide whether the claimant suffers
from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged . . . . If the claimant does
suffer from such an impairment, at the second step, the ALJ must
consider the extent to which the claimant’s symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence of record. The ALJ must consider
statements the claimant or others make about his impairment(s), his
restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course
of examination or treatment, or to the agency during interviews, on
applications, in letters, and in testimony in its administrative
proceedings.
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (quotations, citations and brackets omitted) (citing
20 C.F.R. §§ 404.1529(a), 404.1529(b), and the now-superseded SSR 96-7p); see also SSR 16-3p,
2016 WL 1119029, at *2; Burgess v. Colvin, 15-CV-9585, 2016 WL 7339925 at *11 (S.D.N.Y.
Dec. 19, 2016) (quoting SSR 16-3p for an explanation of the two-step process for assessing
claimants’ statements about their symptoms). An evaluation of a claimant’s subjective symptoms
is not an evaluation of the claimant’s character. See Burgess, 2016 WL 7339925, at *15 n.2 (citing
SSR 16−3p42 (“[S]ubjective symptom evaluation is not an examination of an individual’s
character.”)).
Here, the ALJ properly applied the two-step process, and substantial evidence supported
his determination that Plaintiff’s allegations were disproportionate to the record and were not

42

SSR 16-3p superseded SSR 96-7p and provided updated guidance on evaluating a
claimant’s subjective symptoms and their impact on the claimant’s ability to perform work.
Frazier, 2017 WL 1422465, at *11 (citing SSR 16-3p, 2016 WL 1119029). SSR 16-3p espouses
a more holistic analysis of the claimant’s symptoms, and “eliminate[s] the use of the term
‘credibility’” from sub-regulation policy. SSR 16-3P, 2016 WL 1119029, at *1.
56

supported by the medical evidence. (Tr. 736.) First, the ALJ reviewed the evidence for each of
Plaintiff’s medically determinable conditions and found that each of the conditions was either
“well-controlled,” a minor condition that did not affect her functional ability, or unsupported
entirely by the medical evidence. (See Tr. 736–38.) The ALJ determined that Plaintiff had the
following medically determinable impairments: diabetes mellitus, hypertension, asthma, sinusitis,
reflux esophagitis, tachycardia, a small calcaneal enthesophyte, allergies, pruritus 43, neuropathy,
a history of cataract surgeries, and a history of thyroidectomy. (Tr. 725.) The ALJ found that
none of these impairments or combination of impairments significantly limited (or was expected
to significantly limit) Plaintiff’s ability to perform basic work-related activity for a 12-month
period. (Id.)
The ALJ considered the fact that during the relevant period, Plaintiff’s diabetes was
reported as “well-controlled” on most occasions after the initial diagnosis. (Tr. 736; Tr. 170,
174−175, 959−60, 1162.) The ALJ also noted Dr. Rocker’s report that Plaintiff did not experience
common symptoms of diabetes such as polyphagia, polyuria, 44 or polydipsia. (Tr. 736; Tr. 252.)
The ALJ also remarked that Plaintiff’s blood pressure levels were typically within normal range,
suggesting that any hypertension was benign. (Tr. 736; Tr. 228, 969, 972, 1097, 1162.) With
regard to the Plaintiff’s asthma, the ALJ noted that it was consistently described as “stable” and
“well-controlled” and her pulmonary function testing gave “no evidence of obstructive
dysfunction.” (Tr. 736; Tr. 283, 465, 963.) He also noted that after a Bellevue physician indicated

43

Pruritus is usually caused by dry skin, which results in an uncomfortable and irritating
sensation.
Itchy skin (pruritus), MAYO CLINIC, http://www.mayoclinic.org/diseasesconditions/itchy-skin/home/ovc-20262856 (last visited Sept. 18, 2017).
44

Plaintiff, however, did report a frequent urge to urinate, which is a common symptom of
polyuria. (Tr. 1202.)
57

that it was unclear whether Plaintiff had asthma, Plaintiff refused testing on multiple occasions to
confirm her asthma diagnosis. (Tr. 736; Tr. 466, 453, 459.) While Plaintiff frequently complained
of “cold−like symptoms” that were diagnosed as sinusitis, the ALJ noted that this was a minor
condition. (Tr. 737; Tr. 156, 963.) Similarly, the ALJ noted that Plaintiff’s pruritus diagnosis was
minor and entirely self-limiting. (Tr. 737.) Additionally, the ALJ determined that Plaintiff’s reflux
esophagitis is a non−severe illness for which the record contained “no evidence of any
complications or functional restrictions.” (Id.) He also noted that Plaintiff had a single ECG that
was consistent with tachycardia, but her results were otherwise “borderline normal;” other
diagnostic exams revealed no cardiac disease. (Id.; Tr. 639, 1266.)
The ALJ noted that Plaintiff’s enthesopathy of the ankle and tarsus was described as “mild
pain on palpation” and did not result in “loss of power, sensation, reflex, or gait abnormality.” (Tr.
737; Tr. 971.) Further, he noted that Plaintiff was successfully treated for the condition with
Lidocaine injections. (Tr. 737; Tr. 992, 1071.) With respect to her eyesight, the ALJ noted that
Plaintiff underwent two successful cataract surgeries that resulted in 20/20 vision bilaterally. (Tr.
737; Tr. 1085−86, 1092, 1103.) Thus, he concluded that any vision difficulties were only
temporary and did not meet Listing-level severity. (Tr. 737) Further, the ALJ stated that Plaintiff’s
treatment “has been conservative” as she has not had any serious hospitalizations since 1996 other
than her two successful cataract surgeries. (Tr. 737); Mollo v. Barnhart, 305 F. Supp. 2d 252, 264
(E.D.N.Y 2004) (noting that “the ALJ’s decision to discount the plaintiff's subjective complaints
of pain [was] supported by substantial evidence” because of, among other factors, “the
‘conservative’ nature of [claimant]’s treatment”). The ALJ also noted that between January 2003

58

and March 2004, Plaintiff presented to the clinic only for prescription refills. (Tr. 730; see Tr.
1137, 1146.) 45
With regard to Plaintiff’s neurological condition, the ALJ referenced Plaintiff’s own
testimony that she was able to stand and take a few steps, despite claims of wheelchair dependency.
(Tr. 727; Tr. 65.) The ALJ noted Dr. Buonocore’s communication with neurologist Dr. Gao, in
which Dr. Gao stated that Plaintiff’s neurological assessment was negative. (Tr. 735; Tr. 249.)
Moreover, in multiple examinations both before and after the application date, Plaintiff was
described as neurologically normal. (Tr. 728–36; Tr. 168, 214, 261, 992, 1147.) The ALJ noted
that in 2000, Dr. Hall stated that he had prescribed Plaintiff’s wheelchair for heart palpitations,
shortness of breath, leg cramp, and fatigue when walking on foot. (Tr. 729; Tr. 156.) Yet, in 2011,
Dr. Tanner stated that Plaintiff was confined to a wheelchair due to “leg weakness.” (Tr. 733; Tr.
997.) Further, the ALJ noted that multiple physicians at Bellevue, including Dr. Tanner, opined
that Plaintiff’s need for a wheelchair was unclear. (Tr. 731, 735; Tr. 228.)
Finally, by February 2014, Dr. Gao noted only slightly reduced strength of 4/5 in both of
Plaintiff’s lower extremities. (Tr. 891.) Although Dr. Gao asserted in that report that Plaintiff had
been diagnosed with peripheral neuropathy for over ten years (Tr. 884, 891), and physician’s
assistant Mr. Wong stated in August 2014 that Plaintiff had diabetic neuropathy or neuralgia pain

45

The Court notes that Plaintiff’s medical record also reflects that between June 2007 and
March 2009, she did not seek medical care of any kind, a nearly two-year gap without treatment
or prescription refills. (Tr. 1160.) See Vered v. Colvin, No. 14-CV-4590, 2017 WL 639245, at
*16 (E.D.N.Y. Feb. 16, 2017) (citing S.S.R. 16-3P, 2016 WL 1119029, at *8 (“[I]f the frequency
or extent of the treatment sought by an individual is not comparable with the degree of the
individual’s subjective complaints, or if the individual fails to follow prescribed treatment that
might improve symptoms, we may find the alleged intensity and persistence of an individual’s
symptoms are inconsistent with the overall evidence of record.”)).

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since 2000 (Tr. 898–99), these assertions are in contravention by the medical evidence from the
prior ten years, which generally indicated only “possible” peripheral neuropathy. (See Tr. 253,
982.)

Similarly, the ALJ noted that Plaintiff usually reported no pain issues to her treating

providers (Tr. 731–32; see, e.g., Tr. 961, 962, 969, 972, 981−82, 1097, 1132, 1134, 1197), and she
testified at the August 2015 hearing that she did not have any pain in her legs. (Tr. 1199–1200,
1203.) Accordingly, substantial evidence supports the ALJ’s finding that neuropathy did not
constitute a severe impairment.
Additionally, the ALJ determined that many of Plaintiff’s conditions occurred
intermittently over time in Plaintiff’s vast medical record or were one-time conditions now
resolved. (Tr. 728, 737.)
“Because [Plaintiff’s subjective] symptoms suggest a greater impairment than can be
shown by objective evidence, the ALJ [was] entitled to consider [her] daily activities.” Miller v.
Astrue, No. 12-CV-3709, 2013 WL 5614114, at *12 (S.D.N.Y. Aug. 30, 2013). The ALJ
considered Plaintiff’s daily activities, and noted that she was able to prepare food, wash clothes,
clean her apartment, shop, watch television, use a computer, read a newspaper, and make clothes
with a foot-operated sewing machine, among other things. (Tr. 727.) The ALJ also noted that
Plaintiff lived alone and traveled on public transportation alone to attend welfare appointments,
and to shop at the supermarket and pharmacy. (Id.) He further noted that although Plaintiff stated
that she was not doing physical therapy because it was not helping her, the record indicated that
Plaintiff never had any physical therapy. (Tr. 726); see 20 C.F.R. § 416.929(c)(3)(v) (stating that
ALJs may consider whether Plaintiff received treatment other than medication).

The ALJ

emphasized Plaintiff’s own testimony regarding her functional capacity in which she stated she
could walk a few steps, stand ten to twenty minutes at a time, sit for one to two hours, and lift

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about twenty pounds with both hands. (Tr. 727.) He also noted that Plaintiff testified, before ALJ
Strauss in 2015, that she could sit for several hours. (Id.) Lastly, the ALJ considered that Plaintiff
had refused to undergo scheduled consultative examinations, which he noted made evaluating
Plaintiff’s symptoms more difficult. (Tr. 738.) He determined that Plaintiff’s refusal to undergo
the scheduled consultative examinations further discredited Plaintiff’s claim that she had a medical
need for a wheelchair because this need was not otherwise evidenced in the record. (Id.)
The ALJ provided a multitude of specific reasons supporting his determination that the
intensity, persistence, and limiting effects of Plaintiff’s symptoms were not consistent with the
other evidence in the record, which this Court finds to be supported by substantial evidence in the
record. Accordingly, the Court finds that the ALJ’s conclusion that Plaintiff’s impairments did
not prevent her from performing light and sedentary work activities and, as such, were not severe,
was supported by substantial evidence in the record. See Faucette v. Comm’r of Soc. Sec., No. 13CV-4851, 2015 WL 5773565, at *12 (S.D.N.Y. Sept. 30, 2015) (“A claim may be denied at step
two only if the evidence shows that the individual’s impairments, when considered in combination,
. . . do not have more than a minimal effect on the person’s physical or mental [abilities] to perform
basic work activities.”). Thus, the ALJ properly found that Plaintiff was not disabled, thereby
denying the claim at step two. See McManus v. Comm’r of Soc. Sec., 298 F. App’x. 60, 61 (2d
Cir. 2008) (affirming the ALJ’s decision to “den[y] [claimant]’s application for benefits at step
two of the Commissioner’s five-step sequential review process” because the ALJ’s determination
that the claimant’s impairments “were not ‘severe’ impairments within the meaning of the Social
Security scheme” was supported by substantial evidence (internal citations omitted)).

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CONCLUSION
For the reasons set forth above, the Court finds that the ALJ applied the proper legal
standards and his findings are supported by substantial evidence in record. Accordingly, the Court
GRANTS the Commissioner’s motion for judgment on the pleadings and DENIES Plaintiff’s
cross-motion. The Clerk of Court is respectfully directed to enter judgment and close this case.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 29, 2017
Brooklyn, New York

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