Hills v. Commissioner of Social Security

Filing 24

ORDER granting 12 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is granted and the decision of the ALJ is affirmed. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/7/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-3959 (JFB)
_____________________

DEBRA HILLS,
Plaintiff,
VERSUS

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
July 7, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Debra Hills (“plaintiff”)
commenced this action, pursuant to 42
U.S.C. § 405(g) of the Social Security Act
(“SSA”), challenging the final decision of the
Commissioner of Social Security (the
“Commissioner”)
denying
plaintiff’s
application for disability insurance benefits.
An Administrative Law Judge (“ALJ”) found
that plaintiff had the residual functional
capacity to perform the full range of work at
all
exertional
levels
with
certain
nonexertional limitations, of which there
were a significant number of jobs in the
national economy, and, therefore, that
plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review.

reasons set forth below, the Court finds that
the Commissioner’s decision was based upon
the application of the correct legal standards
and is supported by substantial evidence.
Accordingly, the Commissioner’s motion for
judgment on the pleadings is granted.

The Commissioner now moves for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
Plaintiff did not file an opposition or a crossmotion. In any event, the Court has still
considered the merits of the petition. For the

Plaintiff was born on January 6, 1988 and
resides in Farmingdale, New York. (AR 31.)
Education records from Brennan High
School reflect that, in testing performed when
she was 16 years old, plaintiff achieved a fullscale IQ score of 95, a performance IQ score
of 100, and a verbal IQ score of 87. (Id. 235.)

I. BACKGROUND
A. Facts
The following summary of the relevant
facts is based on the Administrative Record
(“AR”) developed by the ALJ. (ECF No. 10.)
1. Personal History

Ionica assessed polycystic ovary syndrome
(“PCOS”), ordered lab work, and instructed
plaintiff to follow up in two weeks. (Id. 34344.)

Plaintiff received counseling and special
education services for emotional and
behavioral difficulties. (Id. 234, 268, 273.)
She was schooled in a New York State
regular
assessment
program
with
accommodations. (Id. 234, 265.)

The following month, Dr. Ionica’s
physical
examination
findings
were
unchanged. (Id. 345-47.) Dr. Ionica again
assessed PCOS, reviewed the results of a
blood test, recommended fish oil, encouraged
exercise, and prescribed treatment for a
Vitamin D deficiency and to improve
plaintiff’s insulin sensitivity. (Id. 348.)

2. Relevant Medical History
Plaintiff received mental health care from
Nurse Practitioner (“NP”) Michele Kelly in
February 2013, when she complained of
depression, weight gain, and difficulty
finding a job. (Id. 321-22.) NP Kelly
recorded plaintiff’s subjective complaints
and prescribed a three-month supply of
Vyvanse, a central nervous system stimulant;
and Cymbalta, a medication for depression
and anxiety; as well as Ativan, to use on an
as-needed basis for anxiety. (Id.) The
following month, NP Kelly again
documented plaintiff’s subjective complaints
and noted that plaintiff reported no adverse
reaction to the medication. (Id. 322.) In
April 2013, NP Kelly adjusted plaintiff’s
medication regimen, which had not caused
any side effects, but was ineffective. (Id.
323.) Plaintiff next saw NP Kelly twice in
June 2013, and she did not alter plaintiff’s
medication regimen. (Id.) NP Kelly again
documented plaintiff’s reported condition,
and plaintiff was reportedly happier on her
new medications and sleeping better. (Id.)

Plaintiff next saw NP Kelly in August
2013, at which point NP Kelly adjusted
plaintiff’s medication regimen. (Id. 324.) At
her next visit in September 2013, NP Kelly
attributed much of plaintiff’s anxiety and
depression to a possible hormonal imbalance.
(Id. 325.) Notes reflected dyslexia, a sleep
disorder, panic attacks with agoraphobia, and
attention deficit hyperactivity disorder
(“ADHD”). (Id. 326.) In October 2013,
plaintiff expressed an interest in losing
weight, noting that she was distracted but not
depressed. (Id. 334.) Plaintiff expressed
difficulty finding work in November 2013.
(Id. 327.) NP Kelly again recorded plaintiff’s
subjective complaints and detailed her
medication regimen. (Id.)
During a January 2014 visit, NP Kelly
conducted a mental status examination of
plaintiff in which she described plaintiff’s
appearance as casual and clean, and her
attitude as cooperative; noted that plaintiff
related well; and rated plaintiff’s speech as
within normal limits. (Id. 357-58.) NP Kelly
observed that plaintiff maintained good eye
contact and an appropriate affect, but that she
exhibited a depressed and anxious mood. (Id.
358.) NP Kelly found plaintiff’s thought
processes to be oriented, goal-directed, and
coherent, and that she measured full thought
content without hallucinations and paranoia.
(Id.)
Plaintiff’s fund of information,

Plaintiff
was
evaluated
by
endocrinologist Dr. Nicoleta Ionica in June
2013. (Id. 341-44.) Plaintiff reported weight
gain, back pain, anxiety, emotional lability,
depression, and sleep disturbances. (Id. 342.)
Upon examination, plaintiff was fully
oriented, alert, and appropriate, and her
thyroid was normal. (Id. 342-43.) Her
sensation was intact, a motor exam revealed
no dysfunction, and her strength and reflexes
were normal. (Id. 343.) Dr. Ionica also
observed that plaintiff’s eyes, lungs, heart,
abdomen, and skin were normal. (Id.) Dr.
2

hospitalized for these conditions.
(Id.)
Plaintiff stated that she was able to cook,
clean, do laundry, shop, shower, and dress on
a daily basis, and that she also watched
television and socialized with friends. (Id.
301.) Dr. Pollack’s physical examination
findings noted slightly reduced flexion and
adduction of the left hip. (Id. 301-02.) Xrays of plaintiff’s lumbosacral spine and
ankle were negative. (Id. 303-05.) Dr.
Pollack assessed prediabetes, neck pain, left
hip pain, and left ankle pain, for which
plaintiff’s prognosis was “good.” (Id. 303.)
Vocationally, Dr. Pollack opined that
plaintiff had a mild restriction in walking,
climbing stairs, and standing. (Id. 303.)

attention, and concentration were all “fair.”
(Id.) Subsequent treatment visits with NP
Kelly, in March, April, May, and July 2014,
did not reflect a material change in plaintiff’s
condition or further examination findings.
(Id. 359-64.)
Plaintiff presented to internist Dr. Scott
Stein at Stony Brook Internists in August
2014 for a check-up. (Id. 368.) Plaintiff
complained of worsening headaches, and Dr.
Stein ordered a magnetic resonance imaging
(“MRI”) scan of the brain to monitor her
prolactinoma. (Id.) Dr. Stein also observed
an obese abdomen. (Id. 370.) He diagnosed
plaintiff with anxiety, prolactinoma, PCOS,
multiple nevi (atypical moles), an ingrown
toenail, high cholesterol, and diabetes. (Id.
370-71.) In assessing a treatment plan, Dr.
Stein characterized plaintiff’s depression as
stable and noted that she was cooperative;
had an appropriate mood, affect, and normal
judgment; and was non-suicidal. (Id.) He
recommended that plaintiff continue taking
Lexapro and advised her to avoid fatty foods.
(Id. 371.) An MRI scan of the brain and
pituitary gland was performed four days later
and revealed a small, stable left-sided
macroadenoma that was unchanged from a
prior examination. (Id. 372.)

Plaintiff
also
appeared
for
a
psychological consultative examination with
Dr. Kathleen Acer on July 23, 2013. (Id. 29699.)
Plaintiff drove herself to the
examination and reported difficulty sleeping,
increased appetite, depressive symptoms,
distractibility, and panic attacks several times
per year. (Id. 296.) She denied symptoms of
mania, a thought disorder, or thoughts of
suicide. (Id.) Plaintiff acknowledged that
she could dress, bathe, groom herself, cook,
clean, wash laundry, shop and drive. (Id.
298.) She did not manage finances. (Id.)
Plaintiff socialized with friends and
otherwise spent her time taking care of her
birds and doing household chores. (Id.)

3. Medical Opinion Evidence
On July 2, 2013, plaintiff’s gynecologist,
Dr. Lisa Rimpel, opined that plaintiff had no
functional limitations and was not disabled.
(Id. 289-93.)

Upon mental status examination, Dr.
Acer observed that plaintiff was pleasant and
cooperative, dressed appropriately, well
groomed, that her motor behavior was
normal, and that she exhibited appropriate
eye contact. (Id. 297.) Plaintiff’s speech was
clear and fluent, she exhibited adequate
language skills, and her thought processes
were coherent and goal directed. (Id.)
Plaintiff exhibited the full range of affect, a
euthymic (normal) mood, and clear senses.
(Id.) She was fully oriented, and her
attention, concentration, and memory were

Plaintiff attended an internal medicine
consultative examination with Dr. Andrea
Pollack on July 23, 2013. (Id. 300-03.)
Plaintiff reported that she had been taking
oral medication for “prediabetes” since 2013
and had been experiencing neck and hip pain
since a car accident in 2009. (Id. 300.) She
also noted left ankle pain since age 15 after
tearing ligaments in gym class, but was never
3

evidence of limitation” for “[m]aintains basic
standards of personal hygiene and
grooming,” and “[a]bility to use public
transportation.” (Id. 287.)
NP Kelly
checked
boxes
corresponding
to
“[m]oderately limited” for “[u]nderstands
and remembers simple instructions,”
“[m]aintains attention and concentration,”
“[i]nteracts appropriately with others,”
“[m]aintains socially acceptable behavior,”
and ability to perform “[l]ow stress, simple
tasks.” (Id.) NP Kelly checked boxes
corresponding to “[v]ery limited” for
“[u]nderstands and remembers complex
instructions” and “[m]aintains attention and
concentration.” (Id.) NP Kelly checked a
box endorsing that plaintiff was incapable of
participating in activities such as
employment, education, training, work
experience, or vocational rehabilitation/
treatment. (Id.)

all intact. (Id.) Dr. Acer measured plaintiff’s
“intellectual skills” as average, her fund of
information as appropriate to experience, and
her insight and judgment as “good.” (Id. 29798.)
Dr. Acer diagnosed dysthymic disorder.
(Id.) Vocationally, Dr. Acer opined that
plaintiff did “not appear to be significant[ly]
limit[ed] in her ability to follow and
understand directions and instructions,
perform tasks, maintain attention and
concentration, and maintain a regular
schedule.” (Id.) Dr. Acer said that plaintiff
“may have some difficulty dealing with stress
and making appropriate decisions.” (Id.) Dr.
Acer concluded that “[t]he results of the
evaluation d[id] appear to be consistent with
some psychiatric issues; however, in and of
themselves they d[id] not appear to be
significant enough to interfere with
functioning on a daily basis.” (Id.)

On April 18, 2014, NP Kelly filled out a
“Medical Assessment of Claimant’s Ability
to Perform Work Related Activities in a
Mental Impairment Claim” form regarding
plaintiff. (Id. 335-38.) NP Kelly checked
form prompts corresponding to “[g]ood” for
“[a]bility to follow work rules,” “[u]se
judgment,” and “[m]aintain personal
appearance.” (Id. 336-37.) NP Kelly
checked “[f]air” for plaintiff’s ability to
“[d]eal with the public” and “[u]nderstand,
remember, and carry out simple job
instructions.” (Id.) NP Kelly checked
“[m]arkedly impaired” for plaintiff’s ability
to “[r]elate to co-workers”; “[i]nteract with
supervisors”; “[f]unction independently”;
“[m]aintain
attention/concentration”;
“[u]nderstand, remember, and carry out
complex job instructions”; “[u]nderstand,
remember and carry out detailed, but not
complete job instructions”; “[b]ehave in an
emotionally stable manner”; “[r]elate
predictably in social situations”; and
“[d]emonstrate reliability.” (Id.) NP Kelly
checked “[p]oor or none” for plaintiff’s

4. Other Source Opinion Evidence
NP Kelly completed a “Psychiatric
Assessment
for
Determination
of
Employability” form regarding plaintiff for
the Suffolk County Department of Social
Services on April 10, 2013. (Id. 286-87.)
She noted diagnoses of anxiety not otherwise
specified (“NOS”), panic disorder with
agoraphobia, depression NOS, ADHD, and a
Global Assessment of Functioning (“GAF”)
score of 35-50. (Id. 286.) NP Kelly checked
boxes on the form indicating that plaintiff
never experienced acute psychiatric
hospitalization,
hospitalization
for
alcohol/drug use or attempted suicide; that
she
occasionally
needed
medical
hospitalization or emergency room visits and
occasionally decompensated; and that
plaintiff experienced frequent loss of job or
failure to complete an education or training
program, and behavior that interferes with
activities of daily living. (Id. 287.) NP Kelly
also checked boxes corresponding to “[n]o
4

5. Plaintiff and Expert Testimony

ability to “[d]eal with work stresses” and
“[m]aintain schedules in daily routine.” (Id.).
In an addendum attached to the same form,
NP
Kelly
circled
form
prompts
corresponding to “[m]oderate” for plaintiff’s
impairment in personal habits of the claimant
and in her ability to perform simple and
repetitive tasks. (Id. 339-40.) NP Kelly
circled “[m]oderately severe” for plaintiff’s
limitation in ability to relate to other people,
restriction of daily living activities,
constriction of interest, ability to carry out
and remember instructions, and ability to
respond appropriately to supervision and coworkers. (Id.) NP Kelly circled “[s]evere”
for plaintiff’s limitation in ability to respond
to customary work pressures, perform varied
or complex tasks, and tolerate basic workrelated stresses. (Id.)

Plaintiff completed a Function Report on
June 30, 2013 in which she reported daily
activities that included checking her
computer, eating meals, taking medication,
running errands, talking to friends, and
helping her parents around the house unless
she was having a bad day. (Id. 172.) She
cared for pets and had no difficulty attending
to her own personal care. (Id.) Plaintiff
prepared meals—such as frozen entrees,
soup, sandwiches, chicken, rice, and pasta—
on a daily basis. (Id. 173.) Around the house,
plaintiff engaged in cleaning, laundry,
weeding the garden, and cleaning dishes. (Id.
174.) She went outside at least five times per
day and was able to drive. (Id. 174-75.)
Plaintiff shopped in stores and online and did
not pay bills or count change, but she
managed a savings account. (Id. 175.) Her
hobbies included birds, reading, watching
television, sewing, and using the computer.
(Id.) She socialized with friends one to five
times per week and participated weekly in a
role-playing game group. (Id. 176.)

NP Kelly completed the Suffolk County
form a second time, without addendum, on
December 31, 2014, and checked form
prompts corresponding to “[f]air” for
plaintiff’s ability to “[u]se judgment,
“[m]aintain personal appearance” and
“[b]ehave in an emotionally stable manner.”
(Id. 353-55.) NP Kelly checked “[m]arkedly
impaired” for plaintiff’s ability to “[f]ollow
work rules”; “[r]elate to co-workers”; “[d]eal
with the public”; “[f]unction independently”;
“[m]aintain
attention/concentration”;
“[u]nderstand, remember, and carry out
complex job instructions”; “[u]nderstand,
remember and carry out detailed, but not
complete job instructions”; “[u]nderstand,
remember and carry out simple job
instructions”; “[r]elate predictably in social
situations”; and “[d]emonstrate reliability.”
(Id.) NP Kelly checked “[p]oor or none” for
plaintiff’s ability to “[i]nteract with
supervisor[s]”; “[d]eal with work stresses”;
and “[m]aintain schedules in daily routine.”
(Id.)

Plaintiff testified at the January 12, 2015
administrative hearing that she was 27 years
old, had a driver’s license, and had achieved
a GED. (Id. 31-32.) She previously worked
briefly in retail and full-time at a salon for
four-and-a-half months. (Id. 32.) Plaintiff
testified that she was unable to work due to
anxiety and depression, for which she
received treatment from NP Kelly, which
included Lexapro and Ativan. (Id. 32-34.)
She said that she left her retail job at Toys
“R” Us because she “started getting really
bad anxiety” and did not want to waste
anyone’s time, and she testified that she did
not get along with her supervisors and found
them condescending. (Id. 39-41.) Plaintiff
said that she might be capable of performing
a low-stress job from home depending on her
“moods” during the day. (Id. 42.)

5

Meola stated that his testimony was
consistent with the DOT. (Id. 47.)

Plaintiff had never been hospitalized for
anxiety or depression, but she had visited the
emergency room once, in 2011. (Id. 33-34.)
Plaintiff helped her parents around the house
with folding laundry, preparing dinner, and
setting the table. (Id. 35.) She went out to
shop for food and clothes and to attend
Zumba classes every other week. (Id. 36-37.)
Her hobbies included “science-fiction stuff,
fantasy, horror stuff,” and knitting crafts. (Id.
44.) On a typical day, she spent a little time
with her family, with whom she lived, and
about eight hours on the computer, using
Facebook, YouTube, reading articles, and
playing games. (Id. 31, 35, 43-44.) Plaintiff
testified that she found it difficult to get out
of bed in the morning and that she usually did
not wake up until the early afternoon. (Id.
39.)

B. Procedural History
On May 8, 2013, plaintiff filed an
application for supplemental Social Security
Income, alleging that she was disabled
beginning on March 9, 2013. (Id. 141-42.)
On August 5, 2013, the claim was denied (id.
74-78), and plaintiff subsequently requested
a hearing before an ALJ (id. 83-85). On
January 12, 2015, plaintiff appeared with
counsel and testified at the hearing, and VE
Meola also appeared and testified. (Id. at 2750.) The ALJ issued an unfavorable decision
denying plaintiff’s claim on March 16, 2015.
(Id. at 7-21.) The Appeals Council denied
plaintiff’s request for review of the ALJ’s
decision on May 9, 2016, making the ALJ’s
March 16, 2015 decision the final decision of
the Commissioner. (Id. at 1-4.)

Vocational Expert (“VE”) Rocco Meola
also appeared and testified at the January 12,
2015 administrative hearing. (Id. 44-49.)
After concluding that plaintiff had no past
relevant work, the ALJ asked VE Meola to
assume a hypothetical individual with
plaintiff’s vocational profile who could
perform work at all exertional levels, but was
limited to performing simple, routine,
repetitive tasks; low stress jobs, defined as no
work at fixed production rate pace, with work
that is checked at the end of the workday or
workweek rather than hourly or throughout
the day; and positions with only occasional
contact with coworkers and supervisors, and
no contact with the general public. (Id. 4546.) The ALJ then asked VE Meola whether
there were jobs that such an individual could
perform. (Id. 46.) VE Meola testified that
such an individual could perform the
unskilled, light exertional jobs of: (1) Labeler
(Dep’t of Labor, Dictionary of Occupational
Titles (“DOT”) code 920.687-126), 170,000
jobs nationally; (2) Bagger (DOT code
582.687-010), 20,000 jobs nationally; and
(3) Microfilm mounter (DOT code 208.685022), 150,000 jobs nationally. (Id. 46.) VE

Plaintiff filed this pro se action seeking
reversal of the ALJ’s decision on July 13,
2016. (ECF No. 1.) The Court received the
administrative record on October 17, 2016.
(ECF No. 10.) The Commissioner filed a
motion for judgment on the pleadings on
December 16, 2016. (ECF No. 12.) By
Orders dated February 17, 2017 and April 19,
2017, the Court granted plaintiff extensions
of time to file her opposition and/or crossmotion. (ECF Nos. 16, 18.) On June 6, 2017,
the Commissioner informed the Court that
plaintiff had failed to timely file her
opposition and/or cross-motion (ECF No.
21), and, that same day, the Court ordered
plaintiff to submit a letter indicating whether
she stipulated to dismissal of this action, or
whether she consented to the Court deciding
this action based on the complaint, the
underlying administrative record, and
defendant’s motion papers (ECF No. 22). By
letter dated June 8, 2017 and docketed on
June 9, 2017, plaintiff said that she had “hit a
wall” in researching a response to the
6

III. DISCUSSION

Commissioner’s motion and had refused to
stipulate to closing the case. (ECF No. 23.)

A. The Disability Determination
The Court has fully considered all of the
submissions in this action, including the
administrative record.

A claimant is entitled to disability
benefits if the claimant is unable “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 not
less than twelve months.”
42 U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the SSA unless it is “of such severity that he
is not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy.” Id. § 1382c(a)(3)(B).

II. STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ “only if it is based
upon legal error or if the factual findings are
not supported by substantial evidence in the
record as a whole.” Greek v. Colvin, 802
F.3d 370, 374-75 (2d Cir. 2015) (citing
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
2008); 42 U.S.C. § 405(g)). The Supreme
Court has defined “substantial evidence” in
Social Security cases to mean “more than a
mere scintilla” and that which “a reasonable
mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal citation
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Further, “it is up to the
agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
citation omitted); see also Yancey v. Apfel,
145 F.3d 106, 111 (2d Cir. 1998) (“Where an
administrative decision rests on adequate
findings sustained by evidence having
rational probative force, the court should not
substitute its judgment for that of the
Commissioner.”).

The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. See 20
C.F.R. §§ 404.1520, 416.920. The Second
Circuit has summarized this procedure as
follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such an impairment, the [Commissioner] next considers whether the
claimant has an impairment that is
listed in Appendix 1 of the regulations. When the claimant has such
an impairment, the [Commissioner]
will find the claimant disabled.
However, if the claimant does not
have a listed impairment, the
[Commissioner] must determine,
under the fourth step, whether the
7

“[t]hese impairments impose[d] more than
minimal limitations regarding overall
functioning.” (Id. 12.) In addition, the ALJ
determined that plaintiff’s PCOS and
diabetes
mellitus
were
“non-severe
impairments” because plaintiff’s care had
been “routine and symptomatic in nature”; no
restrictions were noted or could be
reasonably discerned; and Dr. Rimpel had
opined that plaintiff was not disabled, which
the ALJ afforded “considerable weight”
because “the record as a whole fail[ed] to
demonstrate that [plaintiff’s PCOS could], in
any way, be considered a severe
impairment.” (Id.)

claimant possesses the residual
functional capacity to perform her
past relevant work. Finally, if the
claimant is unable to perform her past
relevant work, the [Commissioner]
determines whether the claimant is
capable of performing any other
work.
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Id.
The Commissioner “must consider” the
following in determining a claimant’s
entitlements to benefits: “(1) the objective
medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; and (4) the claimant’s
educational background, age, and work
experience.” Id. (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam)).

The ALJ also afforded “some weight” to
Dr. Pollack’s opinion that plaintiff had “mild
restrictions regarding walking, climbing
stairs and standing presumably based on
[plaintiff’s] complaints of neck pain” because
those findings were “consistent with the
record as a whole.” (Id.) However, the ALJ
noted that “complaints of pain cannot serve
to establish a severe impairment.” (Id.)
Finally, the ALJ considered the results of
plaintiff’s August 2014 check-up, which
diagnosed “routine ailments of anxiety,
prolactinoma, an ingrown toenail, multiple
nevi (none of which appeared suspicious),
[PCOS], high cholesterol and diabetes
mellitus . . . .” (Id. 12-13.) He concluded that
“no functional restrictions were noted nor
[could] any reasonably be discerned.” (Id.
13.)

B. Analysis
After carefully reviewing the ALJ’s
decision and the medical evidence that was
before him, the Court finds that substantial
evidence supports the ALJ’s decision to deny
plaintiff benefits under the SSA.
1. Steps One Through Three

The Court finds that substantial evidence
supports the ALJ’s determination that
plaintiff’s anxiety and depression constituted
severe impairments and that plaintiff’s
physical ailments were non-severe.
See
Barnhart v. Walton, 535 U.S. 212, 218
(2002) (holding that a severe “‘impairment’
must last 12 months and also be severe
enough to prevent the claimant from
engaging in virtually any ‘substantial gainful

Applying the five-step inquiry set forth
by the regulations, the ALJ found, at step
one, that plaintiff had not engaged in
substantial gainful activity since May 8,
2013, her application date. (AR. 12.)
At step two, the ALJ found that plaintiff
had severe impairments of depression and
anxiety. (Id. 12-13.) The ALJ concluded that
8

2. Step Four

work’” (quoting 42 U.S.C. § 423(d)(2)(A));
see also 20 C.F.R. §§ 416.909,
416.920(a)(4)(ii).

Because the ALJ determined that plaintiff
did not have a severe impairment considered
per se disabling, he continued to step four of
the analysis—to ascertain plaintiff’s residual
functional capacity (“RFC”) despite her
severe impairments. New York v. Sullivan,
906 F.2d 910, 913 (2d Cir. 1990).

At step three, the ALJ found that
plaintiff’s severe impairments did not meet or
equal the criteria of any impairment that is
listed in Appendix 1 of the regulations and,
accordingly, concluded that plaintiff was not
per se disabled. (AR. 13-16.) The ALJ said
that “the severity of [plaintiff’s] mental
impairments, considered singly and in
combination, do not meet or medically equal
the criteria of listings 12.04 and 12.06.” (Id.
16.) He determined that plaintiff had a “mild
restriction” in “activities of daily living”;
“moderate
difficulties”
in
“social
functioning” and regarding “concentration,
persistence or pace”; and had experienced no
episodes of “decompensation” of extended
duration. (Id.)

The ALJ concluded that plaintiff had the
RFC
to perform a full range of work at all
exertional levels but with the
following non-exertional limitations:
she is limited to simple, routine
repetitive tasks, and low stress jobs
which means no work at a fixed
production rate pace, with work that
is checked at the end of the work day
or work week rather than hourly or
throughout the day. In addition,
[plaintiff] is limited to occasional
contact with co-workers and
supervisors and no contact with
members of the general public.

Because the record lacks any evidence
that
plaintiff’s
mental
impairments
“functionally equal” either (1) marked
limitations in two domains of functioning or
(2) extreme limitation in one domain, the
Court also agrees with the ALJ’s
determination on this issue. See Frye v.
Astrue, 485 F. App’x 484, 487 (2d Cir. 2012)
(“A ‘marked limitation’ is a limitation that is
‘more than moderate but less than
extreme.’”); Gonzalez ex rel. Guzman v.
Sec’y of U.S. Dep’t of Health & Human
Servs., 360 F. App’x 240, 244 (2d Cir. 2010)
(holding that “a disabling depressive
condition pursuant to Subsection C under
Section 12.04 . . . requires plaintiff to
demonstrate, inter alia, a medically
documented history of chronic affective
disorder that lasted at least 2 years and that
caused more than a de minimis adverse
impact on [plaintiff’s] ability to work”).

(AR. 16.)
The ALJ noted that plaintiff “testified
that she is unable to work due to anxiety and
depression”; did not “like to be around
crowds and spen[t] most days in her room on
the computer and with her bird”; but went
“out with friends a few times a month,” had
“good family relationships,” and had been in
a “romantic relationship.” (Id. 17.). In
addition, plaintiff said that she was able to
complete daily chores and drive herself. (Id.)
The ALJ found that the “documentary
record, viewed in its entirety, fail[ed] to
comport with a finding of disability.” (Id.)
He reviewed NP Kelly’s treatment notes
from February 2013 through November 3013
and concluded that they “reflect[ed]
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allegations of anxiety and depression” and
that NP Kelly had prescribed various
medications, but reported “little, if any,
mental status/clinical findings.” (Id.) The
ALJ also reviewed NP Kelly’s April 2013
Suffolk County assessment, which diagnosed
“panic disorder, anxiety and depression” and
opined that plaintiff was “very limited
regarding her ability to understand complex
instructions and maintain attention and
concentration” and moderately limited with
respect to understanding simple instructions,
interacting appropriately with others, and
maintaining socially appropriate behavior.
(Id. 18.)
The ALJ said that he fully
considered
NP
Kelly’s
opinion
notwithstanding its categorization as an
“Other Medical Source,” 1 but he afforded it
“little weight” because it was “inconsistent
with the record as a whole, most particularly
Ms. Kelly’s lack of clinical findings.” (Id.)

the treatment notes. (Id.) Further, the ALJ
found that the evaluations “appear[ed] to be
predicated on subjective complaints, as there
[was] little objective evidence of record.”
(Id.)
Finally, the ALJ afforded “great weight”
to Dr. Acer’s opinion because of her
“specialty in the field of psychology,” her
“complete examination” of plaintiff, and the
consistency of her clinical findings with her
conclusion. (Id. 19.) He noted that Dr. Acer
reported that plaintiff could perform daily
chores and drive herself, and that her
“[m]ental status examination was largely
unremarkable.” (Id. 18-19.) Dr. Acer also
reported normal mood, affect, orientation,
and cognitive functioning and opined that
plaintiff was not significantly limited
vocationally, aside with some difficulties in
dealing with stress and making appropriate
decisions. (Id. 19.)

The ALJ further noted that NP Kelly’s
notes from January 2014 through July 2014
evince “largely subjective complaints of
anxiety and depression” and indicate that
plaintiff stated that she could not “get a job”
or “interact with the public”; however, the
ALJ said that NP Kelly’s January 2014
mental status examination “paint[ed] a
different picture” because it said that
plaintiff’s “appearance was casual and
clean”; “[h]er attitude was cooperative and
she related well”; and her eye contact and
affect were normal. (Id.) In addition,
plaintiff did not experience panic attacks,
hallucinations, or paranoia, and she was
oriented with a full fund of information. (Id.)

Based on the foregoing findings and the
weight ascribed to each opinion, the ALJ
concluded
that plaintiff’s “medically
determinable impairments could reasonably
be expected to cause the alleged symptoms;
however, [plaintiff’s] statements concerning
the intensity, persistence and limiting effects
of these symptoms [were] not entirely
credible . . . .” (Id.) As a result, the ALJ
determined that plaintiff was not totally
disabled, but rather retained the RFC to
perform “basic tasks associated with work”
with some limitations. (Id.)
After reviewing the record, the Court
finds that the ALJ’s conclusions regarding
plaintiff’s RFC are supported by substantial
evidence. The Court notes that, although an
opinion from an “other medical source” such
as a nurse practitioner is not afforded the
controlling weight of the treating physician

Moreover, the ALJ afforded “little
weight” to NP Kelly’s April and December
2014 assessments because her statements
therein that she had seen plaintiff twice
monthly since 2011 were not supported by
1

“Other Medical Source” evidence is “evidence from
a medical source that is not objective medical evidence

or a medical opinion . . . .”
404.1513(a)(3).

10

20 C.F.R. §

rule, the ALJ must still consider it as
probative evidence and “weigh that opinion
according to a number of factors, including
the length, nature, and extent of the treatment
relationship and the frequency of
examination; evidence in support of the
opinion; the opinion's consistency with the
record as a whole; and other relevant factors.”
Evans v. Colvin, 649 F. App’x 35, 38-39 (2d
Cir. 2016) (citing 20 C.F.R. §§ 404.1502,
404.1513(d)(1), 404.1527(c)). However, the
ALJ need not recite and apply every
regulatory factor in assessing an “other
source” opinion. See Atwater v. Astrue, 512
F. App’x 67, 70 (2d Cir. 2013). Further, as
noted, “[g]enuine conflicts in the medical
evidence are for the Commissioner to
resolve.” Veino v. Barnhart, 312 F. 3d 578,
588 (2d Cir. 2002).

by evidence that, in the context of numerous
examinations, [plaintiff] demonstrated a
stable affect, memory for details, and
willingness to cooperate with questioning,”
as well as “evidence that [plaintiff] was able
to attend and participate appropriately with
numerous medical doctors and evaluators”
and “could perform the activities of daily
living.” Roma v. Astrue, 468 F. App’x 16,
19-20 (2d Cir. 2012). In sum, the Court finds
no basis for disturbing the ALJ’s finding that
plaintiff was not totally mentally disabled,
but rather retained RFC to perform basic
tasks in a low-stress environment with
minimal supervision and no contact with the
general public.
3. Step Five
Finally, after determining that plaintiff
did not have any past relevant work, the ALJ
proceeded to step five and considered her
age, education, work experience, and VE
Meola’s testimony in concluding that
plaintiff could perform other work existing in
the national economy, such as that of a
labeler, bagger, and microfilm mounter.
(AR. 19-20.) As a result, the ALJ found that
plaintiff was not disabled within the meaning
of applicable law and regulations. Because
the ALJ’s determination was both wellreasoned and supported by substantial
evidence in the record, the Court affirms this
conclusion.

Here, the Court finds that the ALJ
properly afforded “great weight” to Dr.
Acer’s consultative examination and “little
weight” to NP Kelly’s various opinions based
on the former’s consistency with the medical
evidence and the latter’s divergence from
such evidence and reliance on plaintiff’s
subjective complaints. In addition, the ALJ
fully considered plaintiff’s length of
treatment history with NP Kelly and properly
discounted NP Kelly’s statement that
plaintiff could not engage in employment
because such an assessment is reserved to the
Commissioner. 2 See Harris v. Colvin, 561 F.
App’x 81, 82 (2d Cir. 2014).

***
In sum, the Court finds that there is
substantial evidence in the record to support
the ALJ’s conclusion that plaintiff is not
disabled within the meaning of the SSA, and
that plaintiff had the RFC to perform the full
range of work at all exertional levels with
certain nonexertional limitations.

Taken as a whole, the administrative
record demonstrates that plaintiff was
capable of self-care and social interaction
with certain limitations due to her depression
and anxiety. Thus, the ALJ’s determination
that plaintiff’s “social limitations did not
render [her] totally disabled was supported
2

Accordingly, there is no merit to any contention that
“a therapist who has seen [plaintiff] for fifteen years
should hold more weight than a psychiatrist that [she]

had seen twice, for the case, for a total of less than one
hour.” (June 8, 2017 Letter, ECF No. 23.)

11

IV. CONCLUSION
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is granted and the decision of the
ALJ is affirmed. The Clerk of the Court shall
enter judgment accordingly and close the
case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

Dated: July 7, 2017
Central Islip, NY
***
Plaintiff is proceeding pro se, 10 Kimberly
Avenue, Farmingdale, New York 11738.
The Commissioner is represented by
Assistant United States Attorney Mary M.
Dickman, United States Attorney for the
Eastern District of New York, 271 Cadman
Plaza East, 7th Floor, Brooklyn, New York,
11201.

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