Simms v. Commissioner of Social Secuity
ORDER granting 15 Motion for Judgment on the Pleadings --- For the reasons set forth in the ATTACHED WRITTEN OPINION AND ORDER, the Commissioner's motion for judgment on the pleadings is granted and the instant appeal is dismissed. The Cler k of the Court is directed to mail a copy of this Electronic Order and Attached Written Opinion and Order to pro se Plaintiff, enter judgment, and to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/26/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SABRINA SIMMS, pro se,
OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY, :
DORA L. IRIZARRY, Chief United States District Judge:
On January 23, 2013, Sabrina Simms (“Plaintiff”) filed an application for Social Security
disability insurance benefits under the Social Security Act, alleging disability beginning February
1, 2012. 1 (See Certified Administrative Record (“R.”), Dkt. Entry Nos. 12-13 at 232, 270.)
Plaintiff’s application was denied on March 7, 2013 (Id. at 129, 130-35), and she timely requested
a hearing before an Administrative Law Judge (“ALJ”) (Id. at 136-37). On March 18, 2014,
Plaintiff appeared with her counsel and testified before ALJ Hazel C. Strauss. (Id. at 11-64.) On
June 2, 2015, the ALJ held an additional hearing to obtain testimony from a medical expert and
vocational expert (“VE”). (Id. at 65-117.) On August 24, 2015, the ALJ issued a decision finding
that Plaintiff was not disabled. (Id. at 418-41.) On December 1, 2015, the ALJ’s decision became
final when the Appeals Council denied Plaintiff’s request for review. (Id. at 1-4.)
On February 1, 2016, Plaintiff filed this appeal, pro se, seeking judicial review of the
Commissioner’s denial of benefits pursuant to 42 U.S.C. § 405(g). (See Compl., Dkt. Entry No.
1.) The Commissioner of Social Security (“Commissioner” or “Defendant”) made an unopposed
motion pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings on July 20, 2016. (See
Plaintiff’s original application includes February 1, 2012 as the date of onset, though the actual date of onset
appears to be June 15, 2011. (See R. at 17-18.)
Mem. of Law in Supp. of Def.’s Mot. for J. on the Pleadings (“Def.’s. Mem.”), Dkt. Entry No. 16.)
For the reasons set forth below, the Commissioner’s motion is granted and the instant appeal is
Non-Medical and Self-Reported Evidence
Plaintiff was born in 1969 and was 43 years old at the time she allegedly became disabled. 3
(R. at 235.) She obtained an associate’s degree in accounting (Id. at 21, 54, 237), and, at the time
of her alleged disability, she was employed part-time as a direct care counselor for mentally ill
adults (Id. at 21-22, 237, 261.) On June 15, 2011, Plaintiff was struck by an individual she was
caring for, resulting in injuries to her neck, right shoulder, right arm, right hand, headaches,
memory loss, and back spasms. (Id. at 21, 236.) Plaintiff did not return to work after June 15,
2011. (Id. at 21.)
In a disability report dated January 23, 2013, Plaintiff stated that she was five feet seven
inches tall and weighed 125 pounds. (Id. at 236.) In a function report dated February 21, 2013,
she reported that she “can care for [her]self[,] it just take[s] a little more time.” (Id. at 248.) The
function report noted that she has three children whom she cooks for daily unless the pain is
“unbearable.” (Id. at 248-49.) On weekdays, she takes her son to school, looks for work during
the day, and then brings her son home from school. (Id. at 248.) She also reported that she cleans,
does laundry and irons, goes outside during the weekdays (Id. at 250), shops once per month for
two or three hours (Id. at 251), and, on a daily basis, engages in activities such as reading and
Having thoroughly and carefully reviewed the administrative record, the Court finds the Commissioner’s
factual background accurately represents the relevant portions of the record. Accordingly, the background information
that follows is taken substantially from the “Statement of Facts” section of the Commissioner’s motion.
As such, Plaintiff was a “younger person” as defined in 20 C.F.R. § 404.1563(c).
socializing with her children (Id. at 251-52). Plaintiff reported that she is not able to lift as much
as she could prior to being injured, and her injury affects her ability to walk, climb stairs, kneel,
squat, and reach for items. (Id. at 252-53.) She further reported blurred vision when she
experiences a “bad” headache. (Id. at 253.) She reported experiencing headaches “almost every
day” that sometimes are accompanied by nausea and vomiting. (Id. at 258.) She is right handed,
and wears prescription eye glasses. (Id. at 253-54.)
In an appeal disability report submitted May 9, 2013, Plaintiff reported that her condition
had worsened: she was experiencing migraines almost every other day, severe pain in the neck
and right shoulder, and an inability to hold objects in her right hand for prolonged periods of time
without dropping them. (Id. at 272.) She further reported new illnesses and conditions, including
depression and carpal tunnel syndrome in her right hand. (Id. at 273.)
Medical Evidence before the ALJ
During the period between Plaintiff’s onset of disability and the ALJ’s decision, Plaintiff
saw a series of doctors and underwent several diagnostic procedures. On August 10, 2011, Plaintiff
underwent a magnetic resonance imaging (“MRI”) at the referral of Dr. Coral Elcock, Plaintiff’s
chiropractor. (Id. at 384.) The MRI revealed degrees of bulging at C3-C4, C4-C5, C5-C6, and
C6-C7, hypertrophic changes, loss of normal signal intensity, and a slight reversal of the cervical
curvature. (Id. at 384-85.) Plaintiff also underwent electromyographic (“EMG”) and nerve
conduction (“NCV”) testing on September 7, 2011 at the referral of Dr. Lam Cu Quan, M.D.,
Plaintiff’s physical medicine and rehabilitation doctor. (Id. at 348.) These tests indicated mild
neuropathy at the wrist consistent with carpal tunnel syndrome, but did not indicate cervical
Dr. Quan examined Plaintiff on February 2, 2012 for claimed injuries to the head, neck,
and abdomen as a result of a work-related accident on June 15, 2011. (Id. at 346.) At the time of
the exam, Plaintiff did not appear to be in acute distress, and she mounted the exam table without
assistance. (Id.) Dr. Quan noted that Plaintiff’s cervical spine was tender, exhibited muscle
spasms upon palpitation, had a reduced range of motion, and a Spurling’s/Jackson’s test (for nerve
root pain) was positive on the right side. (Id.) A straight leg raise test on the lumbar spine was
negative. (Id. at 347.) Plaintiff’s right shoulder exhibited tenderness, and Plaintiff’s right hand
and wrist exhibited positive Phalen’s and Tinel’s tests. (Id.) Plaintiff had full range of motion of
the lumbar spine, right shoulder, and right hand/wrist. (Id.) A neurological examination revealed
that Plaintiff had reduced sensation in the right hand, 4/5 muscle strength in the right extremities
(including the right knee and ankle), and equal and unremarkable reflexes. (Id.) Dr. Quan
reviewed Plaintiff’s MRI and EMG/NCV and found Plaintiff was experiencing “post contusion
headache syndrome” and “cervical/neck pain – disc bulges.” (Id. at 348) Dr. Quan found Plaintiff
to be temporarily 100% disabled, referred Plaintiff to a neurologist, suggested she avoid strenuous
activities, complete a home exercise program, and attend physical therapy twice a week for four
In connection with Plaintiff’s worker’s compensation claim, Jeffrey Perry, D.O., also
examined her injuries on February 10, 2012. (Id. at 349.) Similar to Dr. Quan, Dr. Perry found
that Plaintiff had limited cervical range of motion, but had normal range of motion elsewhere,
exhibited a negative straight leg raise test, and had intact sensation. (Id. at 350.) He concluded
that further medical treatment was “not medically necessary or medically justifiable,” noting that
claimant was looking for work in her field, and he was of the opinion that she was not disabled.
(Id. at 350-51.)
Plaintiff subsequently saw Dr. Quan four more times on March 1, May 3, June 11, and July
12, 2012, and Dr. Quan continued to find that Plaintiff had a temporary 100% disability. (Id. at
Dr. Elcock examined Plaintiff on September 27, 2012 for neck pain radiating to the right
side and hands, as well as headaches. (Id. at 331-32.) Similar to the other doctors, Dr. Elcock
noted a reduced cervical range of motion, and also muscle spasms at the cervical paraspinal
musculature. (Id. at 331.) She diagnosed Plaintiff with cervical radiculopathy and cervical
strain/sprain and found that Plaintiff temporarily had 100% disability. (Id. at 332.)
Plaintiff next saw Ajoy K. Sinha, M.D., on November 28, 2012 for right wrist, right
shoulder, and neck pain. (Id. at 402.) Dr. Sinha observed positive Tinel’s and Phalen’s tests, as
well as positive right shoulder impingement and Hawkings tests. (Id.) Dr. Sinha suggested carpal
tunnel surgery to Plaintiff, the use of a brace for her right wrist, and conservative care for her
shoulder and neck. (Id.)
Plaintiff returned to Dr. Elcock on January 22, 2013 for neck pain radiating to the right
side of the body and hands and headaches. (Id. at 328-30.) Dr. Elcock found that Plaintiff had
pain upon palpation of the cervical spine from C4-C7 and reduced range of motion of the cervical
spine and upper extremities. (Id. at 328.) She continued to find that Plaintiff had a temporary
100% disability and advised her to avoid activities that would cause stress to the spine. (Id. at 32930.)
On February 7, 2013, Plaintiff saw Sukhbir S. Guram, M.D., of New York Spine Specialist.
(Id. at 368.) Dr. Guram noted reduced range of motion in the cervical spine, tenderness, and
spasms. (Id. at 369.) Dr. Guram diagnosed Plaintiff with cervical sprain and right carpal tunnel
syndrome and advised plaintiff to refrain from activity that could exacerbate her symptoms,
including heavy lifting, carrying, or bending. (Id.) Plaintiff declined to receive epidural steroidal
injections. (Id.) Dr. Guram also requested a new MRI. (Id.)
Maria Sesin, Ph.D., examined Plaintiff on February 27, 2013 for her mental health
complaints. (Id. at 360.) Dr. Sesin reported that Plaintiff was well-groomed, cooperative, and
calm, though her mood was depressed. (Id.) Plaintiff denied suicidal ideation or intent. (Id.) Dr.
Sesin administered the Beck Depression Inventory and Beck Anxiety Inventory and found Plaintiff
to be in the severe range for depression. (Id. at 361.) Dr. Sesin diagnosed Plaintiff with a major
depressive episode, severe, and chronic pain/disability. (Id. at 363-64.)
Linell Skeene, M.D., an orthopedist and the consultative examiner, examined Plaintiff on
March 1, 2013 at the Commission’s request. (Id. at 353-55.) Plaintiff described her job-related
injury and complained of neck pain with an intensity of 4/10 radiating to the right arm, with
intermittent numbness in the fingers of the right arm. (Id. at 353.) Plaintiff reported to Dr. Skeene
that she had received a single cervical epidural block, which she had found unhelpful for her
symptoms, and physical therapy provided only temporary improvement of her symptoms. (Id.)
Plaintiff stated that the neck pain was aggravated by reaching and lifting objects weighing over
ten pounds. (Id.) She is an asthmatic, but other than an inhaler, she only reported taking Tylenol.
(Id.) Plaintiff stated that she is able to care for herself and do household chores. (Id. at 354.)
Dr. Skeene’s examination revealed limited range of motion of the cervical spine and mild
paracervical muscle spasm. (Id.) Plaintiff had a full range of motion of the upper extremities,
thoracic, and lumbar spine, and a straight leg raise test was negative. (Id. at 354-55.) Dr. Skeene
opined that Plaintiff had a moderate limitation for reaching and heavy lifting due to a limited range
of motion of the cervical spine. (Id. at 355.)
A March 6, 2013 MRI of the cervical spine indicated disc herniations at C4-C5, C5-C6,
and C6-C7, with neuroforaminal narrowing, and disc bulges at C2-C3 and C3-C4 with
neuroforaminal narrowing. (Id. at 356.) Dr. Guram reviewed the results of the March 6, 2013 and
August 2011 MRIs with Plaintiff on March 7, 2013. Dr. Guram’s diagnoses remained the same,
and Plaintiff was advised to avoid activities that would exacerbate her symptoms, including heavy
lifting, carrying, or bending. (Id. at 367.)
Plaintiff returned to Dr. Sinha on June 26, 2013, complaining of neck pain radiating to the
right shoulder and right wrist pain (aggravated by lifting, carrying, and overhead activities). (Id.
at 398.) Dr. Sinha noted a right shoulder impingement and reduced range of motion of the cervical
spine. (Id. at 399.) Examination also showed positive Phalen’s and Tinel’s tests. (Id.) As a result,
Dr. Sinha recommended that Plaintiff receive carpal tunnel surgery (Id. at 400), which was
performed on August 13, 2013 (Id. at 393-94). Dr. Sinha also recommended Plaintiff avoid
prolonged sitting, lifting, and overhead activities. (Id. at 400.)
Demetrios Mikelis, M.D., of New York Spine Specialist, examined Plaintiff on March 14,
2014. (Id. at 386.) Dr. Mikelis made findings similar to Dr. Guram (Id. at 386-87), and he
recommended Plaintiff refrain from activities that would exacerbate her symptoms. (Id. at 387.)
Plaintiff again saw Dr. Sinha on March 17, 2014 with continued complaints of neck pain
(aggravated by sitting) and shoulder pain (aggravated by lifting, carrying, and overhead activities).
(Id. at 396.) Dr. Sinha’s findings were unchanged from previous exams, and Dr. Sinha concluded
that Plaintiff had a temporary 100% disability. (Id. at 396-97.)
Dr. Mikelis again saw Plaintiff on December 2, 2014, and his findings and
recommendations remained unchanged. (Id. at 415-16.)
Hearings Before the ALJ
At the March 18, 2014 hearing before the ALJ, Plaintiff initially testified upon questioning
from the ALJ that she was able to perform household chores, including cooking, cleaning, and
doing laundry, drive her son to and from school, shop, and read every day. (Id. at 36-37). She
subsequently testified upon questioning from her attorney that pain in her right arm made it
difficult to lift things, use buttons and zippers, tie her shoes, or write (Id. at 48), and that such pain
made it difficult for her “to do anything.” (Id. at 46.) Though her doctor had prescribed pain
medication, Plaintiff refused to take prescription medications because she did not “want to get
hooked on drugs.” (Id. at 59-60.) The only medication Plaintiff took for her pain was Tylenol.
(Id. at 35.) In response to questions from the ALJ, she testified that she had no issues with walking,
standing, or sitting. (Id. at 47-48.) In response to subsequent questioning from her own attorney,
however, Plaintiff testified that she only was able to sit or stand for approximately 30 minutes to
an hour before having to change positions due to pain and only could walk two or three city blocks
before needing to take a break. (Id. at 56-57.) Though she initially testified that she could lift an
estimated fifteen to twenty pounds (Id. at 50), she later testified that she could not lift a five-pound
bag of sugar when her hand was hurting. (Id. at 58.)
Plaintiff testified that she “always” has “some sort of headache,” though severe headaches
only occurred approximately once or twice per month. (Id. at 22-23.) By taking Tylenol daily for
her headaches she was “able to go about her day.” (Id. at 24.) At the time of the March 18, 2014
hearing, Plaintiff testified that she was no longer seeing a doctor for her headaches. (Id. at 24, 55.)
Plaintiff testified that, since sustaining her injury, she has seen several doctors for
evaluation and treatment of her symptoms, including Dr. Sebastian Lattuga of New York Spine
Specialist; Dr. Lam C. Quan of Sunny View Medical; and Dr. Coral Elcock, a chiropractor. (Id.
at 24-29.) Plaintiff also had received treatment for carpal tunnel syndrome from Dr. Ajoy Sinha
(Id. at 28, 31), had seen a psychologist, Dr. Marie Sesin (Id. at 37-38), and Dr. Jagga Alluri for
headaches (Id. at 60-61).
On June 2, 2015, the ALJ continued the hearing and obtained expert testimony from
medical expert Dr. Ollie Raulston and VE Bruce Martin. (Id. at 69, 100.) Dr. Raulston testified
that while Plaintiff would have functional limitations, including limitations on the amount of
weight she could lift 4, no overhead reaching with her right arm, and limitations to the duration she
can stand, walk, or sit, Plaintiff’s impairments alone and in the aggregate did not meet or medically
equal a listed impairment. (Id. at 76-78.) The ALJ asked the VE whether, given Plaintiff’s age,
education, work experience, and functional limitations, other jobs existed in the national economy
which she could perform. (See Id. at 109.) The VE identified three unskilled, light jobs from the
Dictionary of Occupational Titles (“DOT”): (i) photocopy machine operator (DOT Code 207.685014); (ii) machine attendant-carting (DOT Code 920.685-032); and (iii) usher/ticket taker (DOT
Code 344.667-014). (Id. at 110-11.)
Standard of Review
Unsuccessful Social Security disability benefits claimants may seek judicial review of the
Commissioner’s denial of their benefits in the district court “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).
In reviewing the final determination of the
Commissioner, the district court must determine whether the correct legal standards were applied
and whether substantial evidence supports the decision. See Moran v. Astrue, 569 F.3d 108, 112
Dr. Raulston would restrict Plaintiff to “light work,” which involves lifting no more than 20 pounds at a time,
with frequent lifting or carrying of objects no more than 10 pounds. 20 C.F.R. § 404.1567(b).
(2d Cir. 2009). The former determination requires the court to ask whether “the claimant has had
a full hearing under the [Commissioner’s] regulations and in accordance with the beneficent
purposes of the Act.” Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal citations and
quotation marks omitted). The latter determination requires the court to ask whether the decision
is supported by “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir.
1990)) (internal quotation marks omitted).
The district court is empowered “to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remanding
to the Commissioner is appropriate when “the Commissioner has failed to provide a full and fair
hearing, to make explicit findings, or to have correctly applied the . . . regulations.” Manago v.
Barnhart, 321 F. Supp.2d 559, 568 (E.D.N.Y. 2004). A remand is also appropriate “[w]here there
are gaps in the administrative record.” Rosa v. Callahan, 168 F. 3d 72, 82-83 (2d Cir. 1999)
(quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997)) (internal quotation marks
omitted). “[I]t is the rule in [the Second] [C]ircuit that the [social security] ALJ, unlike a judge in
a trial, must . . . affirmatively develop the record in light of the essentially non-adversarial nature
of a benefits proceeding.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)
(quoting Tejada v. Apfel, 167 F. 3d 770, 774 (2d Cir. 1999)).
A claimant must be disabled to receive disability benefits under the Act. See 42 U.S.C.
§§ 423(a), (d). A claimant is disabled if she establishes an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can . . . be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The claimant bears the initial burden of proof in establishing that she is disabled.
Disability must be established through medical and other evidence that the Commissioner may
require, presented as “medical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques,  show[ing] the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities” that could reasonably produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A).
In determining whether a claimant is disabled under the Act, the ALJ must perform a fivestep inquiry. 20 C.F.R. § 404.1520(a)(4). At the first step, the claimant is not disabled if she is
performing “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). At the second step, the
ALJ considers, without respect to age, education, or work experience, whether the claimant’s
impairment is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). Impairments are severe when they
significantly limit a claimant’s physical or mental ability to conduct basic work activities. 20
C.F.R. § 404.1520(c). At the third step, the ALJ will determine whether the impairment or
combination of impairments meets or medically equals an impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1 (“the Listings”). See 20 C.F.R. §§ 404.1520(a)(iii), (d). If no impairment
exists, the ALJ then makes a finding about the claimant’s residual function capacity (“RFC”). 20
C.F.R. § 404.1520(e). At step four, a claimant is not disabled if she can perform past relevant
work, 20 C.F.R. § 404.1520(a)(iv), and at step five, the ALJ determines whether claimant could
perform other work existing in the national economy in significant numbers, considering
claimant’s age, education, and prior work experience. 20 C.F.R. §§ 404.1520(a)(v), (e), (f).
On August 24, 2015, the ALJ issued a decision denying Plaintiff’s claims. (R. at 418-41.)
The ALJ performed the necessary five-step inquiry in determining that Plaintiff had the RFC
required to perform light work and, therefore, was not disabled. (Id. at 434-36.) At the first step,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 1, 2012,
the alleged onset date. (Id. at 423.) At the second step, the ALJ found severe impairments:
degenerative disc disease of the cervical spine and right carpal tunnel syndrome. (Id.) The ALJ
noted, however, that Plaintiff’s major depressive disorder, right shoulder impingement, and
headaches caused only a minimal limitation on Plaintiff’s ability to work, and, therefore, were not
severe. (Id. at 423-25.) At the third step, the ALJ concluded that Plaintiff’s impairments did not
meet or medically equal an impairment included in the Listings, specifically noting that Plaintiff
did not meet the criteria for Listing 1.00 (musculoskeletal). (Id. at 425.)
At the fourth step, the ALJ found that the Plaintiff was unable to perform her past relevant
work as a psychiatric aide, which requires a “medium exertional” level, but was “performed by the
claimant at the heavy exertional level.” (Id. at 434 (citing 20 C.F.R. § 404.1565)). The ALJ
accorded limited weight to the opinions of Dr. Elcock, Dr. Quan, and Dr. Perry, since their
examinations were for the purposes of Plaintiff’s Worker’s Compensation claim, which uses
standards different from Social Security Disability, and also Dr. Elcock is not an acceptable
medical source since she is a chiropractor. (Id. at 433.) The ALJ gave considerable weight to the
opinions of Dr. Mikelis (Plaintiff’s treating physician), Dr. Skeene (the consultative examiner),
and Dr. Guram, whose opinions were consistent with Dr. Raulston, the Commissioner’s medical
expert. (Id.) The ALJ noted that “[t]he medical records fail to confirm the accuracy of [Plaintiff’s]
assertions and hearing testimony.” (Id.)
At the fifth step, in consideration of Plaintiff’s “age, education, work experience, and
residual functional capacity,” the ALJ found that “there were jobs that existed in significant
numbers in the national economy that [Plaintiff] could have performed” according to the applicable
Medical-Vocational Guidelines at 20 C.F.R. § 404.1569. (Id. at 434.)
The Commissioner moves for judgment on the pleadings, seeking affirmance of the denial
of Plaintiff’s benefits on the grounds that substantial evidence supports its determination that
Plaintiff was not disabled and that the Commissioner applied the correct legal standard. (See
generally Def.’s Mem.) Though pro se Plaintiff was given an additional opportunity to respond
to the Commissioner’s motion, Plaintiff failed to do so, and the Commissioner’s motion is
unopposed. The Court is mindful that “[a] document filed pro se is to be liberally construed, and
a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
Accordingly, the Court interprets the Complaint “to raise the strongest arguments that [it]
suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis
omitted); Weixel v. Bd. of Educ. of the City of New York, 287 F.3d 138, 146 (2d Cir. 2002). Upon
review of the record, the Court finds that the ALJ applied the correct legal standards and her
decision is supported by substantial evidence. Accordingly, for the reasons set forth below, the
denial of benefits is affirmed.
1. The ALJ Adequately Developed the Record
The ALJ has “an affirmative obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d. Cir. 1996) (citing Echevarria v. Sec’y of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982)). In the Second Circuit, “the ALJ, unlike a judge in a trial,
must . . . affirmatively develop the record in light of the essentially non-adversarial nature of a
benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal quotation marks
omitted). This obligation exits “‘even when the claimant is represented by counsel . . . .’” Rosa,
168 F.3d at 79 (internal quotation marks and citation omitted). This obligation includes “seek[ing]
additional information from [the treating physician] sua sponte, Shaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1998), and making “every reasonable effort” to get the required medical documentation,
20 C.F.R. § 416.912(b)(1). 5
Here, Plaintiff was represented at her hearing, and the ALJ sufficiently developed the
administrative record. Plaintiff indicated at the hearing that she was being treated by Dr. Lattuga
(R. at 24), Dr. Quan (Id. at 26-27), Dr. Sinha (Id. at 27-28), Dr. Elcock (Id. at 29), Dr. Sesin (Id.
at 37-38), and Dr. Alluri (Id. at 60). At the time of the hearing, Plaintiff’s medical records were
incomplete in that certain treating physicians had provided incomplete records, or no records of
treatment. (See, e.g., Id. at 25-30.) Plaintiff’s counsel agreed to contact Dr. Lattuga (Id. at 32-33),
Dr. Alluri (Id. at 61-62), Dr. Sinha (Id. at 50), and Dr. Sesin (Id. at 37-40) for additional medical
records. The ALJ agreed to issue subpoenas to Dr. Sinha and Dr. Quan (Id. at 52) and assist
Plaintiff’s counsel by issuing additional subpoenas as needed (Id. at 62). With significant gaps in
the medical record, the ALJ closed the hearing until the medical record was more fully developed.
(Id. at 63-64.)
The record indicates that the ALJ ultimately issued subpoenas to Dr. Sesin (Id. at 118-20),
Dr. Quan (at several possible addresses) (Id. at 175-77, 181-89), and Dr. Sinha (Id. at 178-80).
The subpoenas sent to Dr. Quan could not be delivered (Id. at 380-81, 391-92), and Dr. Sinha
provided a report detailing the carpal tunnel surgery she performed on Plaintiff as well as narrative
progress reports from their appointments. (Id. at 393-94, 396-404.) Dr. Lattuga’s office provided
“Every reasonable effort” is defined as making an initial request, followed by a follow-up request between
ten and twenty days after the initial request. 20 C.F.R. § 416.912(b)(1)(i).
medical records that detailed assessments from Drs. Guram and Mikelis. (Id. at 382-89.) It does
not appear that any additional records were obtained through Plaintiff’s counsel’s efforts or the
Given the ALJ’s and Plaintiff’s counsel’s efforts to develop the medical record following
the first hearing, and the presence of opinions and medical records from four treating physicians,
the Court finds that the ALJ adequately developed the record.
2. Substantial Evidence Supports the ALJ’s Decision
Substantial evidence in the record supports the ALJ’s decision at every step. The record
supports the ALJ’s determination that Plaintiff had not been engaged in substantial gainful activity.
Plaintiff testified that she had not worked since June 15, 2011. (Id. at 21.) The record also supports
the ALJ’s determination that the Plaintiff suffered from severe impairments of degenerative disc
disease of the cervical spine and right carpal tunnel syndrome that had more than a minimal effect
on her ability to work. (Id. at 423.) Plaintiff’s testimony that she could only stand or sit for 30
minutes before having to change positions and could only walk a few city blocks before needing
a break (Id. at 56-57), had difficulty lifting things, using zippers and buttons, writing, and tying
her shoes (Id. at 48) provides sufficient support for the ALJ’s determination that her impairments
had more than a minimal effect on her ability to work and, therefore, were severe.
There is also substantial evidence in the record to support the ALJ’s determination that
Plaintiff’s mental impairment did not have more than a minimal impact on her ability to perform
work. (Id. at 423-24.) In terms of daily living, Plaintiff cares for herself (Id. at 248), cleans, does
laundry, and irons the clothes (Id. at 250), shops at least once per month (Id. at 251), drives her
son to school every day, and does household chores (Id. at 36-37). Plaintiff’s social functioning
also was not more than mildly impacted. Plaintiff testified that she only saw Dr. Sesin five or six
times, and never saw Dr. Rombom, who signed her evaluation. (Id. at 424.) While the ALJ
subpoenaed additional records from Dr. Sesin, no additional records were submitted. There is no
evidence in the record that Plaintiff had difficulty with social relationships; indeed, she reports
socializing with her children without issue. (Id. at 252.) In concentration, persistence and pace,
Plaintiff testified that she tries to read every day (Id. at 37), watches television (Id. at 41), and
drives her son to school (Id. at 36), all of which require the ability to concentrate. Accordingly,
substantial evidence supports the ALJ’s finding that Plaintiff had no more than a mild limitation
to her concentration, persistence and pace. Finally, Plaintiff suffered no episodes of extended
Though Plaintiff was diagnosed with asthma, she last suffered an asthma attack in 2000.
(Id. at 353.) And while Plaintiff testified that she suffers from headaches, treatment with over-thecounter medications alleviates her symptoms, and, at the time of the hearing, she no longer was
receiving treatment for her headaches. (Id. at 24, 55.) The record also shows some evidence of
right shoulder impingement, but the medical expert testified that it was unlikely to last more than
ten months. (Id. at 91-93.) Therefore, there is substantial evidence supporting the ALJ’s
determination that these impairments were not severe. Dr. Raulston, the medical expert, concluded
that the Plaintiff’s impairments did not meet or exceed the criteria of Listing 1.00
(musculoskeletal), and specifically Listings 1.02 (major dysfunction of a joint(s)) and 1.04
(disorders of the spine). (Id. at 76-77.)
Substantial evidence also supports the ALJ’s determination that Plaintiff had an RFC for a
light range of work 6 and was capable of occasionally lifting twenty pounds, frequently lifting ten
pounds, sitting up to six hours, and standing or walking for up to six hours in an eight-hour work
day. (Id. at 425.) The ALJ followed the two-step process of (1) determining whether there is an
“Light work” is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
underlying medically determinable physical or mental impairment that would be expected to
produce the Plaintiff’s pain or symptoms and (2) then evaluating the intensity, persistence, and
limiting effects of the Plaintiff’s symptoms and determine the extent to which they limit Plaintiff’s
The ALJ weighed evidence from several physicians who had a treating relationship with,
or treated Plaintiff: Dr. Guram, Dr. Lattuga, Dr. Quan, Dr. Elcock, Dr. Sinha, Dr. Elcock, Dr.
Skeene, and Dr. Perry. She also weighed evidence from Dr. Raulston, the medical expert.
As a starting point, the ALJ’s physical disability determination is supported by Plaintiff’s
own testimony. See Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112-13 (2d. Cir. 2010)
(“[P]laintiff’s own testimony demonstrate[s] that substantial evidence supports . . . the ALJ’s
determination.”). She testified that she could lift fifteen to twenty pounds with her right hand (R.
at 50), she had no issues with sitting other than getting “fidgety” (Id. at 48), and she had no issues
walking prior to an accident where she injured her leg approximately one month prior to the
hearing (Id. at 47-48). Plaintiff inconsistently testified that she had no problem with standing (Id.
at 48), and that she could only sit or stand for periods of thirty minutes to one hour before having
to change positions (Id. at 56-57).
The ALJ’s RFC determination also is supported by the diagnoses of two of Plaintiff’s
treating physicians, Dr. Guram and Dr. Mikelis. Specifically, Dr. Guram found that Plaintiff
should refrain from activities that could exacerbate her symptoms, including “heavy lifting,
carrying or bending.” (Id. at 367, 369, 387.) Dr. Mikelis similarly noted that Plaintiff should avoid
“heavy lifting, carrying or bending.” (Id. at 416.) Notably, the ALJ’s RFC determination for light
work does not require heavy lifting.
The ALJ gave “great weight” to the opinion of the medical expert, Dr. Raulston, who has
familiarity with the Social Security disability process. (Id. at 433.) Dr. Raulston, whose testimony
was based on a review of the record, diagnosed Plaintiff with degenerative disc disease of the
cervical spine from C3-C7, which he classified as mild to moderate, and chronic cervical strain.
(Id.at 75.) He also diagnosed Plaintiff with carpal tunnel syndrome of a moderate degree, and
noted that she suffered from headaches. (Id. at 75-76.) In concluding that Plaintiff does not meet
an impairment in the Listings, Dr. Raulston considered Listings 1.02 (major dysfunction of a joint)
and 1.04 (disorders of the spine) and found that Plaintiff’s impairments did not meet the
requirements of those Listings. (Id. at 76-77.) Dr. Raulston’s conclusion that Plaintiff had
limitations, including only lifting twenty pounds occasionally and ten pounds frequently, is
consistent with the opinions of both Dr. Mikelis and Dr. Guram. (Id. at 77.)
Dr. Raulston noted that Dr. Sinha indicated that Plaintiff had a problem with her right
shoulder, including possible right shoulder impingement, though there was no indication that the
issue had lasted or would last for twelve months as required under the Act. See 42 U.S.C.
§ 423(d)(1)(A). (R. at 92-93.) In any event, Dr. Raulston testified that accepting Dr. Sinha’s
opinions as true would only change his assessment of Plaintiff’s limitations to include additionally
no overhead reaching. (Id. at 89.) Notably, the VE did not identify any jobs available in the
national economy that require overhead reaching. (Id. at 110-12.)
The ALJ also gave significant weight to the portions of Dr. Skeene’s opinions that were
consistent with Dr. Raulston’s opinions. (Id. at 433.) Dr. Skeene found that Plaintiff had a limited
range of motion in the cervical spine that caused a moderate limitation for heaving lifting and
reaching. (Id. at 355.) This supports a finding of light work, and given the consistencies between
Dr. Skeene’s and Dr. Raulston’s opinions, the ALJ properly weighed Dr. Skeene’s opinion. Nelson
v. Colvin, 2014 WL 1342964, at *12 (E.D.N.Y. Mar. 31, 2014) (ALJ’s “light work” determination
supported by doctor’s finding of a “mild to moderate limitation”); See also 20 C.F.R.
§ 416.927(c)(4) (“[G]enerally, the more consistent and opinion is with the record as a whole, the
more weight we will give to that opinion.”).
The ALJ properly gave little weight to the opinions of Dr. Perry, Dr. Quan, and Dr. Elcock,
who were evaluating Plaintiff in relation to her worker’s compensation claim. See Bitz v. Colvin,
2016 WL 1595383, at *10 (E.D.N.Y. Apr. 20, 2016) (quoting Hankerson v. Harris, 636 F.2d 893,
896-97 (2d Cir. 1980)) (“[W]hile the determination of another governmental agency that a social
security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to
some weight and should be considered.”); See also 20 C.F.R. § 404.1504 (“[A] decision by any
other governmental agency . . . about whether [a claimant] is disabled . . . is based on its rules, it
is not binding on us and is not our decision about whether you are disabled . . . under our rules.”).
Worker’s compensation claims are judged by different criteria, and, as such, they are only entitled
to some weight in the context of Social Security disability claims. Additionally, while the ALJ
properly noted that Dr. Elcock, who is a chiropractor, is not an acceptable medical source, see 20
C.F.R. § 404.1513, the ALJ did not discount her opinions entirely, see Rivera v. Bowen, 665 F.
Supp. 201, 206 (S.D.N.Y. 1987) (citing Monguer v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir.
1983)) (“All courts agree that the opinion of a treating chiropractor . . . must be accorded some
weight . . . .”) (emphasis original).
The ALJ properly found that Plaintiff’s testimony was not entirely credible. (Id. at 428.)
While Plaintiff testified that her pain made it difficult to “do anything” (Id. at 46), her testimony
and the medical records indicate that she cared for herself, did many household chores, and read,
watched television, and socialized with and cared for her children. (See, e.g., Id. at 248, 354.)
Plaintiff’s testimony also was inconsistent in a number of other areas, including how much she
could lift with her right hand (compare Id. at 50 with Id. at 58), and whether she could walk and
stand with no issues (compare Id. at 47-48 with Id. at 56-57). Generally, “it is the function of the
ALJ, not the reviewing court, ‘to resolve evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant.’” Salmini, 371 F. App’x at 113 (quoting Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)). The ALJ did not err in finding that
Plaintiff’s testimony was not entirely credible.
The ALJ also considered the factors relevant to Plaintiff’s symptoms outlined in 20 C.F.R.
§ 404.1529(c)(3), including the Plaintiff’s daily activities and the type, dosage and effectiveness
of medications taken to alleviate symptoms. (R. at 432-33.) Plaintiff’s medical records and
testimony indicate that she takes only Tylenol for her pain, and she has declined to take prescribed
pain medication. (Id. at 35, 59-60.) In terms of daily activities, Plaintiff testified and reported to
her treating physicians that she cares for herself and performs household chores such as cooking,
cleaning, doing laundry, and shopping. (See, e.g., Id. at 248, 354.) She also indicated to Dr. Perry
at a February 2012 examination, approximately eight months after the date of onset of her injuries,
that she was looking for work in the same field. (Id. at 351.) Accordingly, the ALJ’s RFC
determination is supported by substantial evidence.
Finally, the ALJ solicited interrogatory responses from the VE, who concluded that a
person of Plaintiff’s age, educational background, and RFC could perform the jobs of photocopy
machine operator, machine attendant-carting, or usher/ticket taker, all of which are available in
significant numbers nationally. (Id. at 110-12; 434-35.) Importantly, given that there was
conflicting evidence as to Plaintiff’s right shoulder impingement and a prior history of asthma, the
ALJ confirmed with the VE that the available jobs would not expose the hypothetical individual
to respiratory irritants or overhead lifting. (Id. at 112.) The ALJ’s determination is supported by
substantial evidence in the record.
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
granted, and Plaintiff’s appeal is dismissed.
Dated: Brooklyn, New York
September 26, 2017
DORA L. IRIZARRY
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