Fooks v. Colvin

Filing 14

ORDER denying 7 Motion for Judgment on the Pleadings; granting 10 Motion for Judgment on the Pleadings; denying 13 Motion for Judgment on the Pleadings. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied. The Acting Commissioner's motion for judgment on the pleadings is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/17/2018. (Baum, Sabrina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-7127 (JFB)
_____________________

TREINA FOOKS,
Plaintiff,
VERSUS

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________
MEMORANDUM AND ORDER
January 17, 2018
____________
JOSEPH F. BIANCO, District Judge:
Plaintiff Treina Fooks (“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”) 1 denying plaintiff’s
application for social security disability
benefits. (ECF No. 1.) An Administrative

1

Plaintiff commenced this action against Carolyn W.
Colvin, who was then the Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court is directed to
substitute Nancy A. Berryhill, who now occupies that
position, as defendant in this action.
2

The ALJ specified the following exceptions to the
sedentary work that plaintiff can perform: no climbing

Law Judge (“ALJ”) determined that plaintiff
had the residual functional capacity to
perform certain “sedentary work” as defined
in 20 C.F.R. 404.1567(a). 2 The ALJ
determined that plaintiff is further limited to
unskilled tasks in a low-stress job. The ALJ
then determined that there were a significant
number of jobs in the national economy that
suited plaintiff’s limitations, and, therefore,
of ladders, ropes, or scaffolds; occasional climbing of
ramps or stairs; occasional balancing, stooping,
kneeling, crouching, or crawling. The ALJ also
determined that certain environmental limitations
exist: plaintiff must avoid exposure to hazards such as
moving machinery and unprotected heights, as well as
concentrated exposure to irritants such as fumes,
odors, dust, gas, and poorly ventilated areas.

The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. (ECF
No. 6.) A more exhaustive recitation is
contained in the parties’ submissions to the
Court and is not repeated herein.

daughter. (Id. at 42.) On a typical day after
her injury, plaintiff stated that she performed
personal care, did laundry, cleaned in places
that did not require bending or climbing, and
watched television, read, and wrote. (Id. at
20, 178.) Plaintiff reported that she would go
out two to three times a week and that she
could travel alone by walking or using public
transportation. (Id. at 20.) Plaintiff reported
that she had a driver’s license but did not own
a car. (Id. at 177, 178.) Plaintiff reported that
she could go food shopping and pay her bills,
and that she would spend time with others
approximately two times a month. (Id. at 20.)
She reported that she had no problems getting
along with family, friends, neighbors, and
authority figures, and that she could follow
spoken and written instructions.
(Id.)
Plaintiff reported that she was taking
medication including Latuda, Setrasaline,
Lodapine, and Lumigan. (Id. at 55.)

A. Personal and Work History

B. Relevant Medical History

Plaintiff was born in 1970 and was 42
years old at the onset of her disability on
October 16, 2012. (AR at 12, 72.) Plaintiff
received a high school education, and
completed a year of college. (Id. at 37.)
Plaintiff’s past relevant work history includes
participating in a work-study program at
Suffolk County Community College, caring
for the elderly and disabled at an elderly care
home, working as a customer service
representative at a promotional company,
working as a teacher’s aid in the Central Islip
School District, and working as a certified
nurse’s assistant at the Patchogue Nursing
Center. (Id. at 38-41.) Plaintiff was working
at the elderly care facility on October 16,
2012 when she stopped working due to a fall
that she alleges caused injury to her foot,
ankle, and lower back. (Id. at 43.)

Plaintiff was admitted to Southside
Hospital on October 16, 2012. (Id. at 223.)
Plaintiff’s chief complaints were of left ankle
injury, ankle swelling, and ankle pain that she
sustained from a fall that occurred “just prior
to presentation” at the hospital. (Id.) Plaintiff
reported that her only past medical history
was a “history of hypertension.” (Id.) The
hospital record indicated that plaintiff had a
normal respiratory rate and was alert and
oriented to time, person, and place. (Id. at
224.) The record indicated that, upon a
nursing assessment of plaintiff’s lower left
leg, plaintiff denied numbness/tingling and
had a full range of motion. (Id.) The same
document indicated that plaintiff rated her
pain as a six out of ten. (Id. at 225.)
Plaintiff’s psychological assessment revealed
that plaintiff reported no thoughts of suicide
in the prior two months, and had never
attempted to commit suicide. (Id.) Plaintiff
was discharged with an ankle stirrup splint
and was instructed to follow up with a doctor

that plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). (ECF No. 7.) The Acting
Commissioner opposes the motion and crossmoves for judgment on the pleadings.
For the reasons set forth below, the Court
denies plaintiff’s motion for judgment on the
pleadings,
and
grants
the
Acting
Commissioner’s cross-motion for judgment
on the pleadings.
I.

FACTUAL BACKGROUND

During her hearing before ALJ Patrick
Kilgannon on June 16, 2015, plaintiff
reported that she lived with her 20-year-old

2

“some” pain and restricted terminal range of
motion and terminal flexion and extension.
(Id.) Lumbosacral spine was stable to stress
on examination.
(Id.)
Plaintiff was
prescribed Motrin and Percocet for pain
control purposes and instructed to begin
physical therapy/rehabilitation for her ankle.
(Id.) Plaintiff was also instructed to follow
up regarding her back pain (Id.)

in two to three days. (Id. at 226.) A radiology
report from this hospital visit found a
“widening of the first [sic] second cuneiform
joint space which may indicate a Lisfranc
fracture.
Remaining osseous structures
intact.” (Id. at 227.) The radiology report
also states that “[n]o facture is seen. The
tibiotalar articulation appears intact. The
medial malleolus and lateral malleolus each
appear intact. Soft tissues are intact.” (Id. at
228.)

Dr. Rao followed up with plaintiff on
November 12, 2012. (Id. at 233.) Plaintiff
reported that her pain level was moderate,
rated eight to nine out of ten. (Id.) Plaintiff
reported a history of asthmatic bronchitis and
asthma. (Id. at 234.)

Plaintiff was examined by Jhansi Rao,
M.D. (“Dr. Rao”) on October 18, 2012. (Id.
at 230.) At this time, plaintiff reported a pain
level of moderate, rated four to six. (Id.) Dr.
Rao reported normal respiratory movements
and normal breathing sounds. (Id. at 231.)
Dr. Rao also reported that plaintiff was
oriented to time, place, and person. (Id.) Dr.
Rao told plaintiff to treat the injury with ice,
rest, compression, and elevation. (Id.)

Dr. Dicpinigaitis followed up with
plaintiff on December 26, 2012. (Id. at 250.)
Plaintiff still complained of left ankle pain.
(Id.) Dr. Dicpinigaitis noted that plaintiff
continued to walk with a mild antalgic gait at
normal walking speed. (Id. at 251.) Plaintiff
was prescribed a CAM walker/fracture boot
at this time, and was advised to continue
physical therapy and rehabilitating her ankle.
(Id.)

Plaintiff was examined by Paul
Dicpinigaitis, M.D. (“Dr. Dicpinigaitis”) on
November 5, 2012. (Id. at 247.) Plaintiff’s
chief complaints were injury to her left ankle,
with acute onset of pain, some swelling, and
difficulty walking/bearing weight on her
ankle. (Id.) Plaintiff reported a pain rating of
nine out of ten. (Id.) Dr. Dicpinigaitis
performed X-rays on plaintiff’s left leg and
foot. (Id.) No X-ray showed any obvious
fractures, dislocations, or gross arthropathies.
(Id.) Dr. Dicpinigaitis noted that plaintiff had
a history of lower back pain. (Id.) Plaintiff
was also complaining of “bilateral leg
numbness, weakness, and tingling, especially
in the area of the ankle/feet.” (Id.) Upon
physical examination of plaintiff, Dr.
Dicpinigaitis noted that plaintiff walks with
an antalgic gait. (Id. at 248.) He also noted
a slightly restricted range of motion of
plaintiff’s ankle due to pain and swelling, yet
plaintiff’s ankle was stable to gentle stress
upon examination.
(Id.)
Regarding
plaintiff’s back pain, Dr. Dicpinigaitis noted

Dr. Dicpinigaitis followed up with
plaintiff again on January 7, 2013. (Id. at
252.) At that time, plaintiff had had an MRI
of both her ankle and her lumbosacral spine.
(Id.)
Dr. Dicpinigaitis wrote that he
identified from plaintiff’s ankle MRI a
chronic achy FL tear with scar remodeling.
(Id.)
He also identified lower lumbar
spondylosis with left-sided foraminal disc
protrusion at L4-5 contacting the exiting left
L4 nerve root. (Id.) Plaintiff received an
injection in her left ankle of a
lidocaine/steroid preparation and was told to
continue physical therapy for her ankle and
back. (Id. at 253.)
Plaintiff was examined by an independent
medical examiner, Robert Moriarty, M.D.
(“Dr. Moriarty”) on January 8, 2013. (Id. at
236.) Dr. Moriarty’s inspection of plaintiff’s

3

chronic pain. (Id.) Plaintiff was prescribed
Cymbalta and advised to see Dr. Elaine
Schaefer for psychiatric follow-up. (Id. at
242, 243.)

left foot revealed no visible deformities. (Id.
at 238.)
Further inspection revealed
tenderness over the dorsolateral aspect of the
foot to palpation, mild weakness to ankle
dorsiflexion, a plantar flexion of five out of
five strength, and no instability. (Id.) Dr.
Moriarty concluded that plaintiff was
“temporary moderate partial (50%)”
disabled. (Id.)

Plaintiff was examined by Elaine
Schaefer, D.O. (“Dr. Schaefer”) on July 29,
2013. (Id. at 430.) Plaintiff reported
herniated discs in her back and a sprained left
ankle. (Id.) Plaintiff reported that her ankle
“still hurts her and gets swollen,” and that the
pain was worse with movement. (Id.) Dr.
Schaefer noted that she was referred by
orthopedics (Dr. Brandenstein) because
plaintiff found that she was “crying all the
time,” and had a lack of motivation. (Id.)
Plaintiff reported a history of depression.
(Id.) Plaintiff reported that her concentration
was “not good,” and that she had trouble
paying attention. (Id.) Plaintiff reported
having “a loss of interest in doing things.”
(Id.) Plaintiff reported that she did not have
suicidal or homicidal ideations or plans. (Id.)
Plaintiff reported that she was interested in
restarting medication, and that she was
optimistic that she would feel better in the
future and was optimistic for her future. (Id.)
In a psychiatric exam, Dr. Schaefer noted that
plaintiff was oriented to person, place, and
time. (Id. at 432.) Plaintiff’s insight and
judgment were reportedly intact. (Id.) Dr.
Schaefer also noted that plaintiff had no eye
pain, no eyesight problems, no shortness of
breath, no wheezing, and no cough. (Id. at
431.) Dr. Schaefer prescribed Zoloft to help
plaintiff with her depression. (Id.)

Dr. Dicpinigaitis followed up with
plaintiff on March 11, 2013. (Id. at 255.)
Plaintiff noted “some initial improvement” in
symptoms from the cortisone injection from
her last follow-up visit. (Id.) Plaintiff also
noted that her ankle pain could still reach up
to eight to nine out of ten. (Id.) Dr.
Dicpinigaitis advised plaintiff that, at that
time, she should either accept her symptoms
as they were, or consider surgical
intervention. (Id. at 256.)
Plaintiff was examined by Daniel
Brandenstein, D.O. (“Dr. Brandenstein”) on
March 26, 2013. (Id. at 245.) Plaintiff’s
chief complaint was lumbago, and that the
pain had been worsening. (Id.) Plaintiff
stated that aggravating factors were standing,
lying down, and activity in general, and that
there were no alleviating factors. (Id.)
Plaintiff claimed that her pain at examination
was approximately eight to nine and, at its
worst, ten. (Id.) Dr. Brandenstein found that
plaintiff’s leg motor strength was “easily”
five out of five, and range of motion was
“actually relatively well maintained” with
forward flexion to approximately 45-50
degrees. (Id. at 246.) Dr. Brandenstein noted
that her MRI demonstrated some lumbar
degenerative changes at L4-5 and L5-S1.
(Id.)

Dr. Schafer examined plaintiff again on
October 4, 2013. (Id. at 427.) Plaintiff
reported that she was already feeling better
on Zoloft, but asked for her prescription to be
refilled for continued use. (Id.) Plaintiff
reported that she was examined by a
psychiatrist for evaluation and was advised to
stay on Zoloft. (Id.) Plaintiff’s daughter was
present for this examination, and noted a
positive difference in plaintiff. (Id.) Plaintiff

Dr. Brandenstein followed up with
plaintiff on July 2, 2013. (Id. at 242.) At this
time, plaintiff was seen for her back pain.
(Id.) Dr. Brandenstein noted visible signs of
depression (tearfulness). (Id.) Plaintiff
stated that she was depressed due to her

4

(Id.)
Dr. Herman wrote that from a
psychological/psychiatric perspective, there
did not appear to be evidence of significant
limitation with respect to plaintiff’s ability to
follow and understand simple directions and
instructions, perform simple tasks, maintain
attention and concentration, maintain a
regular schedule, learn new tasks, and make
appropriate, simple, work-related decisions.
(Id. at 262.) Dr. Herman did note, however,
that there did appear to be evidence of
moderate limitation with respect to plaintiff’s
ability to perform complex tasks and
appropriately deal with stress. (Id.) Dr.
Herman concluded that plaintiff’s psychiatric
problems did not appear to be significant
enough to interfere with her ability to
function on a daily basis. (Id.)

reported that she was eating and sleeping
well. (Id.) Plaintiff reported that her
concentration was better and that she felt
more active and more positive than she had at
her previous visit with Dr. Schaefer. (Id.)
Plaintiff reported that she did not have
suicidal or homicidal ideations or plans. (Id.)
In a psychiatric exam, Dr. Schaefer noted that
plaintiff was oriented to person, place, and
time. (Id. at 429.) Plaintiff’s insight and
judgment were reportedly intact. (Id.) Dr.
Schaefer also noted that plaintiff had no eye
pain, no eyesight problems, no shortness of
breath, no wheezing, and no cough. (Id. at
428.) Dr. Schaefer re-prescribed Zoloft to
treat plaintiff’s depression. (Id.)
Plaintiff was examined by Paul Herman,
Ph.D. (“Dr. Herman”) for a psychiatric
evaluation on October 23, 2013. (Id. at 260.)
Dr. Herman noted as background information
the fact that plaintiff left work in 2012 due to
medical, not psychiatric difficulties. (Id.)
Dr. Herman’s notes about plaintiff’s
psychiatric history include that plaintiff had
not been hospitalized or treated for
psychiatric reasons, but includes her recent
prescription of psychiatric medication
sertraline though a general M.D. (Id.) Dr.
Herman noted that plaintiff’s “current
functioning” included difficulty falling
asleep and staying asleep due to sleep apnea,
varying appetite, and occasional tearfulness
when ruminating about her life difficulties,
including her financial problems, medical
problems, lack of work, uncertain future, and
chronic pain. (Id.) Plaintiff also reported that
she was experiencing a lack of motivation.
(Id. at 261.) Dr. Herman noted that no other
psychiatric or psychological symptoms were
reported. (Id.) Dr. Herman noted that
plaintiff’s thought process was coherent and
goal directed with no evidence of
hallucinations, delusions, or paranoia in the
setting. (Id.) Plaintiff reported no significant
difficulties with activities of daily living
related to psychological or psychiatric issues.

Plaintiff was examined by Saadia Wasty,
M.D. (“Dr. Wasty”) on November 18, 2013.
(Id. at 265.) Plaintiff’s chief complaints were
lower back and ankle pain. (Id.) Plaintiff
rated her back pain as an eight or nine out of
ten. (Id.) Plaintiff stated that nothing
relieved the pain. (Id.) Plaintiff rated her
ankle pain to be seven or eight out of ten.
(Id.) Plaintiff stated that she found relief with
rest and elevation. (Id.) Plaintiff stated that
she had had asthma since 1987, but had not
had any admissions to the hospital for
asthma. (Id.) Plaintiff stated that she had an
inhaler, and experienced shortness of breath
on heavy exertion. (Id.) Plaintiff also stated
that she had had depression since 1987. (Id.
at 266.) Plaintiff had had no hospitalizations
due to depression, and denied suicidal or
homicidal ideations. (Id.) Plaintiff also
stated that she was diagnosed with glaucoma
in 2004. (Id.) Plaintiff stated that she had
intermittent pain in her right eye, which was
associated with visual color changes, and was
aggravated with reading. (Id.) Plaintiff rated
her pain as a five to seven out of ten. (Id.)
Dr. Wasty noted that plaintiff had a normal
gait, but had difficulty walking on her heels
or toes. (Id. at 267.) Plaintiff did not use an
5

on Zoloft. (Id.) Plaintiff reported that she
had no crying episodes while on Zoloft, and
that she had become more social. (Id.)
Plaintiff reported that her family had noticed
a positive change in her. (Id.) Plaintiff
reported that her concentration was better and
that she was doing better at work. (Id.)
Plaintiff reported that she had a “better
attitude.” (Id.) Plaintiff reported that her
appetite was “so-so.” (Id.) Plaintiff reported
that she did not have suicidal or homicidal
ideations or plans. (Id.) In a psychiatric
exam, Dr. Schaefer noted that plaintiff was
oriented to person, place, and time. (Id. at
426.) Plaintiff’s insight and judgment were
reportedly intact. (Id.) Plaintiff was represcribed Zoloft. (Id.)

assistive device, and was able to rise from a
chair without difficulty. (Id.) Dr. Wasty
noted that plaintiff’s lumbar spine flexion
was 80 degrees, extension 10 degrees, and
lateral flexion 30 degrees bilaterally. (Id. at
268.) Dr. Wasty noted full range of motion
of hips, knees and ankles bilaterally. (Id.)
Dr. Wasty noted no redness, heat, swelling,
or effusion. (Id.) In a medical source
statement, Dr. Wasty found that plaintiff had
moderate to marked limitation to squatting
and kneeling, and moderate limitation to long
periods of sitting, standing, walking, bending
forward, and heavy lifting. (Id. at 269.) Dr.
Wasty further found that plaintiff should
avoid heavy exertion due to asthma, and
avoid environments with smoke, dust, and all
known respiratory irritants due to asthma.
(Id.)
Dr. Wasty recommended a
psychological evaluation. (Id.)

Dr. Hecht followed up with plaintiff on
April 14, 2014. (Id. at 365.) Dr. Hecht noted
the same tenderness and restricted range of
motion in both the lumbar spine and left ankle
as at previous visits. (Id.) Dr. Hecht injected
Depo-Medrol 80mg and Lidocaine to
plaintiff’s right lower lumbar paravertebral
trigger point. (Id.) Dr. Hecht noted that
plaintiff was not interested in physical
therapy or further pain management. (Id.)

Plaintiff was examined by Robert Hecht,
M.D. (“Dr. Hecht”) on January 13, 2014. (Id.
at 301.) Dr. Hecht reported that plaintiff had
tenderness in the lumbar spine and restricted
range of motion. (Id.) Dr. Hecht also noted
that plaintiff had tenderness and restricted
range of motion with her left ankle. (Id.) Dr.
Hecht diagnosed plaintiff with lumbosacral
sprain-strain and derangement of the left
ankle, “secondary to a work injury that
occurred on October 16, 2012.” (Id.)

Plaintiff was examined by Dr. Schaefer
again on April 21, 2014. (Id. at 421.)
Plaintiff reported having received injections
into her back and left ankle from Dr. Hecht.
(Id.) Plaintiff reported that she did not find
that physical therapy was helping. (Id.) Dr.
Schaefer noted plaintiff’s history of
depression, as well as her Zoloft prescription.
(Id.) Plaintiff reported “feeling great on it,”
and that she felt “a lot calmer.” (Id.)
Plaintiff’s daughter, who was present for the
examination, also reported a positive change
in plaintiff’s behavior. (Id.) Plaintiff
reported being more energetic and in better
spirits. (Id.) Plaintiff reported that she was
eating and sleeping well. (Id.) In a
psychiatric examination, plaintiff was
reportedly oriented to person, time, and

Dr. Hecht followed up with plaintiff on
January 27, 2014. (Id. at 300.) After
examining the MRI results of plaintiff’s left
ankle and spine, Dr. Hecht noted that plaintiff
had a chronic anterior talofibular ligament
tear in her left ankle, and disc protrusion L4L5 contacting the L5 nerve root in her lumbar
spine. (Id.) Dr. Hecht noted the same
tenderness and restricted range of motion in
both the lumbar spine and left ankle as at
previous visits. (Id.)
Dr. Schaefer examined plaintiff at a
follow-up visit on February 14, 2014. (Id. at
424.) Plaintiff reported feeling “much better”

6

Plaintiff reported little interest or pleasure in
“doing things,” and several days of feeling
down, depressed or hopeless. (Id.) In this
questionnaire, plaintiff reported that nearly
every day she had trouble falling or staying
asleep, or that she was sleeping too much.
(Id.) Plaintiff reported that nearly every day
she felt tired or had little energy. (Id.)
Plaintiff reported that nearly every day, she
had a poor appetite or was overeating. (Id.)
Plaintiff reported that “several days” she felt
bad about herself or that she was a failure, or
had let her family down. (Id.) Plaintiff
reported that “several days” she had thoughts
that she would be better off dead or of hurting
herself in some way. (Id.) Plaintiff reported
that she ran out of psychiatric medication a
month prior, but did not follow up with the
psychiatrist. (Id.) Plaintiff also reported that,
in the few days prior to her visit, she had had
negative thoughts and cried a lot. (Id.) In a
review of her symptoms, plaintiff denied
shortness of breath at rest and shortness of
breath with exertion, and denied wheezing.
(Id. at 461.) Dr. Ehab refilled plaintiff’s
prescription for sertraline for her depression,
and referred her to psychiatry. (Id. at 464.)

place. (Id. at 422.) Plaintiff’s insight and
judgment were intact and her mood was
normal. (Id.) Plaintiff was reportedly
talkative and pleasant, and had good eye
contact. (Id.) Plaintiff’s patient health
questionnaire (“PHQ”) calculated a severity
index of 2, and a diagnosis of “minimal”
depression. (Id.) In her assessment, Dr.
Schaefer noted “depression” and renewed
plaintiff’s Zoloft prescription. (Id. at 423.)
Dr. Hecht followed up with plaintiff on
June 23, 2014. (Id. at 370.) Plaintiff reported
that the injection Dr. Hecht administered in
her lumbar spine at the last visit did not help.
(Id.) Dr. Hecht noted the same tenderness
and restricted range of motion in plaintiff’s
left ankle and lumbar spine as at earlier visits.
(Id.)
Dr. Hecht administered another
injection of Depo-Medrol 80mg and
Lidocaine into plaintiff’s ankle. (Id.) Dr.
Hecht reported that the procedure was well
tolerated. (Id.) Dr. Hecht recommended
lumbar orthosis for better control of
plaintiff’s back pain and orthosis for the left
ankle to better control the pain and increase
stability. (Id.)

Dr. Moriarty examined plaintiff again on
September 2, 2014. (Id. at 441.) Plaintiff
reported receiving injections from Dr. Hecht
to her lower back and left ankle. (Id. at 442.)
Plaintiff reported pain and stiffness to her left
ankle. (Id.) Plaintiff reported that her ankle
felt unstable when she walked for long
distances. (Id.) Plaintiff reported pain in her
lower back that radiated down her left leg.
(Id.) Plaintiff also reported the sensation of
tingling in her left lateral calf and left ankle
and the outer aspect of her left foot. (Id.) Dr.
Moriarty noted that there was tenderness over
the lateral aspect of the ankle in response to
palpation. (Id. at 443.) Dr. Moriarty also
noted that range of motion testing to the ankle
revealed a mild restriction in dorsiflexion, a
mild restriction in plantar flexion, and a mild
restriction in eversion. (Id.) Dr. Moriarty

Plaintiff returned to see Dr. Hecht on July
21, 2014. (Id. at 375.) Plaintiff reported that
the injection she received on June 23, 2014 in
her left ankle had helped, and that she would
like to try one for her back. (Id.) Dr. Hecht
noted the same tenderness and restricted
range of motion in both the lumbar spine and
left ankle as at previous visits. (Id.) Dr.
Hecht administered the same injection to
plaintiff’s left lower lumbar paravertebral
trigger point as he had to plaintiff’s ankle.
(Id.) Dr. Hecht noted that the procedure was
well tolerated. (Id.)
Plaintiff was examined by Hanna Ehab,
M.D. (“Dr. Ehab”) on August 6, 2014. (Id. at
460.)
During a depression screening,
plaintiff took a patient health questionnaire
and got a score of 9, mild depression. (Id.)

7

depression over the past year since her exhusband had died. (Id.) Plaintiff reported a
poor appetite, and that she was sleeping too
much. (Id.) Plaintiff reported that she had no
motivation and low self-esteem.
(Id.)
Plaintiff reported isolating and passive
suicidal ideation. (Id.) Plaintiff reported past
sexual, physical and verbal abuse, and past
manic moods. (Id.) Plaintiff reported that
she had felt depressed for most of her life, and
that she attempted suicide at the age of 12
when she took pills from her mother’s
cabinet. (Id.) Plaintiff reported that she was
fired from her job as a home health aide
because of her depression. (Id.) Plaintiff
reported a history of physical abuse/neglect,
verbal/emotional
abuse,
sexual
abuse/molestation, and being a witness to
violence and witnessing domestic violence,
but plaintiff did not wish to discuss the details
at that time. (Id. at 474-75.)

noted that plaintiff’s left foot demonstrated
mild weakness to dorsiflexion. (Id.) Dr.
Moriarty noted that plaintiff walked with a
slight limp on her left side. (Id.) Dr.
Moriatry’s impression was a left ankle
sprain/strain
with
chronic
ongoing
symptomatology. (Id.) Dr. Moriarty noted
that the best treatment for plaintiff at this
point would be a self-directed home exercise
program, efforts at weight loss, and the use of
an ankle support brace. (Id. at 444.) Dr.
Moriarty found that plaintiff appeared to
have
achieved
maximal
medical
improvement as to her ankle injury, and that
the case was “amenable to a scheduled loss of
use regarding the left ankle.” (Id.) Dr.
Moriarty found that, due to the chronic ankle
sprain with persistent pain and some motion
loss, plaintiff demonstrated a 20% scheduled
loss of use of the left foot. (Id.)
Plaintiff was admitted to the Catholic
Charities Mental Health Services clinic in
Bay Shore (“Catholic Charities”), New York,
on September 19, 2014. (Id. at 273-90.)
While at this mental health services facility,
plaintiff was examined by nurse practitioner
Anastasia Blanchard, the admitting physician
was licensed clinical social worker Krista
Ann Hoefling, and Isabel Tolentino, M.D.
(“Dr. Tolentino”) signed Ms. Blanchard and
Ms. Hoefling’s report. (Id.)

Plaintiff followed up with Dr. Hecht on
November 10, 2014. (Id. at 392.) Dr. Hecht
noted the same tenderness and restricted
range of motion in both the lumbar spine and
left ankle as at previous visits. (Id.) Dr.
Hecht administered the same injection to
plaintiff’s left ankle, and prescribed a trial of
Mobic 15mg to be taken once a day. (Id.)
Plaintiff had a psychiatric evaluation on
November 12, 2014, performed by Ms.
Blanchard at Catholic Charities. (Id. at 276.)
In this evaluation, plaintiff reported that she
had experienced increased depression for the
past year, poor appetite, no motivation,
isolation, passive suicidal ideation, and low
self-esteem. (Id.) Plaintiff also reported past
sexual, physical, and verbal abuse, past
manic moods, and that she heard and had had
conversations with a voice, but no one was
there. (Id.) Plaintiff also reported that she
had felt depressed for most of her life, and
that she attempted suicide at the age of 12.
(Id.) Plaintiff also alleged past sexual abuse
from family members, including her

Plaintiff followed up with Dr. Hecht on
October 13, 2014. (Id. at 379.) Dr. Hecht
noted the same tenderness and restricted
range of motion in both the lumbar spine and
left ankle as at previous visits. (Id.) Dr.
Hecht advised plaintiff to start physical
therapy and use a straight cane to walk. (Id.)
Plaintiff was not interested in another
injection at this time. (Id.)
Plaintiff was examined by Ms. Hoefling
at the Catholic Charities Mental Health
Services clinic on October 20, 2014. (Id. at
472.) Plaintiff reported an increase in

8

equipment, which she received from her
orthopedic doctor. (Id.) Plaintiff reported
that she used the equipment “as often as
possible.” (Id.) Plaintiff reported that she
was “not really” better now than she when
she started the treatment. (Id.) Plaintiff rated
her pain as an eight out of ten. (Id.) Plaintiff
reported that she could walk one-half city
block without too much pain, and that she had
difficulty with stairs. (Id.) Plaintiff reported
that she could sit for ten to fifteen minutes
without much pain. (Id.) Plaintiff stated that
the pain worsened with reaching overhead,
bending, and walking. (Id.) Dr. Kelman
noted a mild limp and mild antalgic gait to the
left leg. (Id.) In the range of motion testing
for her lumbar spine, plaintiff had a flexion
of 50 degrees, normal being 60 degrees, an
extension of 20 degrees, normal being 25
degrees, a right lateral bending of 20 degrees,
normal being 25 degrees, and a left lateral
bending of 20 degrees, normal being 25
degrees. (Id.) In the left foot/ankle range of
motion testing, plaintiff had a dorsiflexion of
10 degrees, normal being 20 degrees, plantar
flexion of 35 degrees, normal being 40
degrees, an inversion of 20 degrees, normal
being 25 degrees, and an eversion of 15
degrees, normal being 20 degrees. (Id.) Dr.
Kelman diagnosed plaintiff with back pain
and left ankle/foot sprain/strain. (Id.) Dr.
Kelman reported that plaintiff was capable of
returning to work with the following causally
related restriction:
no prolonged
walking/standing, excessive stair climbing,
vertical ladders, squatting, repetitive
bending, or lifting over 40 lbs. (Id.)

biological father, her mother’s friend, her
uncle, and two of her friends. (Id. at 277.)
Plaintiff also reported a bed-wetting problem,
from age five until age 30. (Id.) Plaintiff
reported a prolonged problem with
comprehension. (Id.) Plaintiff scored 100%
on a mood disorder questionnaire. (Id. at
278, 280.) Plaintiff reported passive suicidal
ideation, no current plan or intent, and that
she often thinks about her children. (Id. at
278.) When asked what her goals were,
plaintiff stated that she wanted to manage her
depression better. (Id. at 282.)
Plaintiff was examined by Jalil Anwar,
M.D. (“Dr. Anwar”) on December 12, 2014,
for her sleeping problems. (Id. at 293.)
Plaintiff underwent a polysomnography
examination with a home sleep test. (Id.)
After the test, Dr. Anwar diagnosed plaintiff
with “severe obstruction sleep apnea with
hypoxemia.” (Id.) Due to this diagnosis,
plaintiff was prescribed and instructed to use
a continuous positive airway pressure
(“CPAP”) machine when sleeping. (Id.)
Dr. Hecht examined plaintiff again on
December 22, 2014. (Id. at 399.) Plaintiff
reported that the injection administered to her
left ankle at her last visit helped “a little bit.”
(Id.) Dr. Hecht noted the same tenderness
and restricted range of motion in both the
lumbar spine and left ankle as at previous
visits. (Id.) Dr. Hecht administered the same
injection into plaintiff’s left lower lumbar
paravertebral trigger point. (Id.)
Plaintiff was examined by Gary Kelman,
M.D. (“Dr. Kelman”) on January 23, 2015.
(Id. at 448.) Plaintiff reported to Dr. Kelman
that she was receiving treatment with
physical therapy three times per week, and
chiropractic care once a month.
(Id.)
Plaintiff also reported to Dr. Kelman that she
was provided with medical supplies, which
included a back brace, an ankle brace, and a
cane. (Id.) Plaintiff reported that she was
specifically fitted for the durable medical

Dr. Hecht examined plaintiff again on
February 16, 2015. (Id. at 405.) Plaintiff
reported that the injection she had received at
her last visit in her lower left back had helped.
(Id.) Dr. Hecht noted the same tenderness
and restricted range of motion in both the
lumbar spine and left ankle as at previous
visits. (Id.)

9

hallucinations or delusions; emotional
lability; manic syndrome; and sleep
disturbance. (Id. at 528.)

Dr. Hecht examined plaintiff again at a
follow-up visit on March 30, 2015. (Id. at
409.) Dr. Hecht noted the same tenderness
and restricted range of motion in both the
lumbar spine and left ankle as at previous
visits. (Id.) Dr. Hecht administered the same
injection to the left ankle that plaintiff
received at previous visits. (Id.) Dr. Hecht
advised plaintiff regarding treatment through
physical therapy and proper care for her
injuries. (Id.) Dr. Hecht also prescribed
Flexeril 10mg three times a day as needed,
and advised plaintiff not to work or drive
when taking this medication if it made her
drowsy. (Id.) Dr. Hecht also prescribed
Ibuprofen 800mg three times a day as
needed. (Id.)

When asked about plaintiff’s ability to do
work-related activities on a day-to-day basis
in a regular work setting, Dr. Tolentino
checked the boxes corresponding with
plaintiff’s “mental abilities and aptitudes
needed to do unskilled work” as follows: (1)
unlimited or very good ability to: remember
work-like procedures, work in coordination
with or proximity to others without being
unduly distracted, get along with co-workers
or peers without unduly distracting them or
exhibiting behavioral extremes, and be aware
of normal hazards and take appropriate
precautions; (2) unable to meet competitive
standards: understand and remember very
short and simple instructions, carry out very
short and simple instructions, maintain
attention for two-hour segments, maintain
regular attendance and be punctual within
customary, usually strict tolerances, sustain
an ordinary routine without special
supervision, make simple work-related
decisions, complete a normal workday and
workweek without interruptions from
psychologically based symptoms, perform at
a consistent pace without an unreasonable
number and length of rest periods, ask simple
questions or request assistance, accept
instructions and respond appropriately to
criticism
from
supervisors,
respond
appropriately to changes in a routine work
setting, and deal with normal work stress.
(Id. at 528-29.)

Dr. Tolentino filled out a mental
impairment questionnaire regarding plaintiff
on July 9, 2015. (Id. at 527.) Dr. Tolentino
reported that she was seeing plaintiff for
individual therapy twice a month. (Id.) Dr.
Tolentino reported that plaintiff had been
attending the clinic since October 20, 2014.
(Id.) Plaintiff had reportedly canceled nine
appointments to date. (Id.) When asked to
describe the clinical findings that
demonstrate the severity of plaintiff’s mental
impairment and symptoms, Dr. Tolentino
noted “mood depressed, affect full, speech
clear, thought process logical, perception
within normal limits, admits to auditory
hallucinations, insight + judgment WNL
[within normal limits].” (Id.) When asked to
identify plaintiff’s signs and symptoms, Dr.
Tolentino checked boxes for the following:
anhedonia or pervasive loss of interest in
almost all activities; appetite disturbance
with weight change; decreased energy;
thoughts of suicide; mood disturbance;
difficulty thinking or concentrating;
persistent disturbances of mood or affect;
emotional withdrawal or isolation; bipolar
syndrome with a history of episodic periods
manifested by the full symptomatic picture of
both manic and depressive syndromes;

When asked about plaintiff’s “mental
abilities and aptitudes needed to do
semiskilled and skilled work,” Dr. Tolentino
noted that plaintiff was unable to meet
competitive standards for all of the
following:
understand and remember
detailed instructions, carry out detailed
instructions, set realistic goals or make plans
independently of others, and deal with stress

10

of semiskilled and skilled work. (Id. at 529.)
When asked about plaintiff’s “mental
abilities and aptitude needed to do particular
types of jobs,” Dr. Tolentino noted that
plaintiff has unlimited or very good abilities
to: interact appropriately with the general
public, maintain socially appropriate
behavior, and adhere to basic standards of
neatness and cleanliness. (Id.) Dr. Tolentino
also noted that plaintiff did not have a low IQ
or reduced intellectual functioning. (Id. at
529-30.) Dr. Tolentino was also asked to
indicate to what degree the next categories of
functional limitations identified existed as a
result of plaintiff’s mental impairments, and
noted that plaintiff had: a marked limitation3
for restriction of activities of daily living,
difficulties in maintaining social functioning,
and
deficiencies
of
concentration,
persistence, or pace. (Id.) Dr. Tolentino
noted that she anticipated that plaintiff would
miss more than four days per month on
average from work due to her impairments or
treatment. (Id. at 531.) When asked to
describe any additional reasons that plaintiff
would have difficulty working at a regular
job on a sustained basis, Dr. Tolentino noted
that plaintiff had auditory hallucinations that
interfered with her functioning. (Id.)

ankle to swell, that it “just d[id].” (Id. at 43.)
Plaintiff described the pain in her left ankle
as a “dull pain most of the time,” and said that
sometimes she had a “tingling sensation.”
(Id. at 44.) Plaintiff rated her pain to be an
eight or nine out of ten. (Id.) Plaintiff
testified that the pain improved only when
she received injections, and would then stay
better for approximately a week. (Id.)
Plaintiff testified that her back pain
symptoms included a “dull numbing feeling.”
(Id.) Plaintiff initially testified that “no
activity cause[d] it to get worse,” but then
corrected herself and stated that “bending,
stretching, [and] actually sitting” caused her
back pain to worsen. (Id. at 45.)
Plaintiff testified that she also had high
blood pressure, glaucoma, and asthma. (Id.)
Plaintiff testified that she took medication for
her high blood pressure, and that the
medication “somewhat” improved it. (Id.)
Plaintiff testified that she took drops twice a
day for her glaucoma. (Id.) Plaintiff further
testified that her symptoms from glaucoma
included spots in her vision, and that she
experienced blackouts during which her
“vision [would] get[] dark.” (Id. at 45-46.)
Plaintiff testified that she had had asthma
since she was 15 or 16 years old. (Id. at 46.)
With regard to her asthma, plaintiff testified
that, on a bad day, she would lose her breath
and “lose consciousness of where [she was]”
and that she would “lose a slight form of
consciousness.” (Id.) Plaintiff testified that
these losses of consciousness did not happen
often, but that she did experience shortness of
breath often. (Id.) Plaintiff testified that
when she experienced shortness of breath,
she would sit down, takes deep breaths, and
uses her inhaler, and that her inhaler
“help[ed].” (Id. at 47.)

C. Relevant Testimonial Evidence
During an administrative hearing on June
16, 2015, plaintiff testified that, on October
16, 2012, she fell and injured her foot, ankle,
and lower back. (Id. at 43.) Plaintiff testified
that these conditions had not improved
significantly since their onset. (Id.)
Plaintiff testified that with regard to her
left foot and ankle, her symptoms included
numbness, stiffness, and constant pain, and
frequent swelling in her ankle. (Id. at 43-44.)
Plaintiff testified that nothing caused her left

3

A “marked limitation” means more than moderate
but less than extreme.

11

Plaintiff testified that she was being
treated for psychiatric conditions at Catholic
Charities.4 (Id. at 47-48.) Plaintiff testified
that her psychiatrist, Dr. Tolentino,
diagnosed her with depression and bipolar
disorder. (Id. at 48.) Plaintiff testified that
she heard voices, and had been hearing them
“for years now.” (Id.) Plaintiff testified that
the voices got worse after her fall, and even
worse after her ex-husband passed away. (Id.
at 49.) Plaintiff testified that the medication
she had been prescribed for these psychiatric
conditions had helped, but that it had not
stopped the voices. (Id.) Plaintiff testified
that, with regard to her depression, she still
got tearful “a lot.” (Id.) Plaintiff testified that
symptoms of her depression included not
“want[ing] to do anything . . . just want[ing]
to lay in [her] bed, stay in the house and shut
down.” (Id.) Plaintiff testified that she could
stay in the house and in bed for a month, and
that she had done so in the past, with the most
recent time ending “four or five days ago.”
(Id. at 50.) Plaintiff estimated that on
average, she had 20 to 25 “bad days” a month
due to her depression. (Id. at 50-51.)

Plaintiff testified that she had trouble bending
over. (Id.) She stated that she could do it,
“but it hurt[].” (Id. at 52-53.) Plaintiff also
testified that she had problems lifting and
carrying objects, and that she could not lift
more than ten pounds. (Id. at 53.) Plaintiff
testified that she had problems lifting things
over her head, and could only do so with
objects that weighed less than ten pounds.
(Id.)
Plaintiff testified that her past job in
telephone sales required her to sit all day (Id.
at 53-54.) Plaintiff further testified that, since
her injury in 2012, she could not go back to
the job in telephone sales because she “c[ould
not] sit for a long period of time” and the job
required her to sit for longer than 20 minutes.
(Id. at 54-55.) When asked if she could do a
job that would allow her to stand and sit as
desired, plaintiff testified that she could not
because she was “always constantly in pain.”
(Id. at 55.) Plaintiff testified that the only job
she would be able to do would be one that
was “at [her] own pace out of an office.” (Id.)
Plaintiff testified that her medications
included Latuda, setrasaline, lodapine, and
Lumigan. (Id.)

Plaintiff testified that, during 2013, while
she was participating in a work-study
program, she missed two or three days due to
her physical or psychiatric issues. (Id. at 51.)
Plaintiff testified that, on some days when
she was present, she was not “mentally
there.” (Id. at 51-52.)

Plaintiff testified that, between October
2013 and May 2014, she was working parttime, about ten hours a week, as part of a
work-study program with Suffolk County
Community College. (Id. at 56-57.) She
testified that her job duties included
answering phone calls, copying documents,
and filing paperwork. (Id. at 57.)

Plaintiff testified that she could only sit
for up to 20 minutes at a time before
“experiencing severe pain and needing to
change positions.” (Id. at 52.) Plaintiff
further testified that she could stand for only
“a minute or two at the most” before
experiencing severe pain. (Id.) Plaintiff
testified that she could only walk ten steps
before having to stop due to pain. (Id.)

Esperanza DeStefano, an impartial
vocational expert, also testified at the
administrative hearing. (Id. at 12, 56.) The
ALJ asked Ms. DeStefano to consider a
hypothetical individual of the same age,
education, and work experience as plaintiff,

4

The ALJ asked if plaintiff was being treated at
“Catholic Charities,” or “the Bayside Medical Health
Center or something,” referencing the Catholic

Charities Mental Health Services clinic in Bay Shore,
New York. (AR at 47-48.)

12

environmental, and mental limitations
previously stated. (Id. at 63.) Ms. DeStefano
testified that the hypothetical individual with
the above-mentioned limitations would be
able to perform the job of a table worker, of
which there were 2,721 positions nationally.
(Id.) Ms. DeStefano also identified the job of
a document preparer as one that the
hypothetical individual would be able to
perform, of which there were 45,835
positions nationally.
(Id.)
Last, Ms.
DeStefano identified the job of an addresser
as one that the hypothetical individual could
perform, of which there were 7,338 positions
nationally. (Id. at 64.) Ms. DeStefano
testified that most employers have an
absentee policy that would permit an
individual to be absent from work a
maximum of two days a month. (Id.)

with a light exertional limitation, meaning the
individual could lift up to twenty pounds
occasionally, lift or carry up to ten pounds
frequently, stand or walk for approximately
six hours per eight-hour workday and sit for
approximately six hours per eight hour work
day with normal breaks, no climbing of
ladders, ropes, or scaffolds, occasional
climbing of ramps or stairs, occasional
balancing, stooping, kneeling, crouching, and
crawling. (Id. at 61-62.) The ALJ limited the
work environment to avoid concentrated
exposure to irritants such as fumes, odors,
dusts, gases, and poorly ventilated areas. (Id.
at 62.) The ALJ also limited the work to
unskilled tasks in a low-stress job, which the
ALJ defined as having only occasional
decision-making
required
and
only
occasional changes in the work setting. (Id.)
Ms. DeStefano testified that, given such
limitations, plaintiff’s past work experience
would be eliminated as a possibility. (Id.)
Ms. DeStefano testified that an individual
with the above-mentioned limitations would
be able to do the job of a mail clerk, and that
there were 2,181 positions for that job
nationally. (Id. at 62.) Ms. DeStefano also
identified the job of an office helper as one
that the hypothetical individual would be able
to perform. (Id.) Ms. DeStefano testified that
there were 3,588 office helper positions
nationally. (Id.) Finally, Ms. DeStefano
identified the job of electrical equipment
assembler as one that the hypothetical
individual would be able to perform, of
which there were 5,208 positions nationally.
(Id. at 62-63.)

Plaintiff’s position is that the medical
evidence as a whole would indicate in this
case that plaintiff “would not be able to
remain on task due to her psychiatric and
chronic pain condition as well as the asthma,
within the tolerance set forth by the expert.”
(Id. at 71.) Plaintiff’s position is also that her
absences would exceed the absences within
the tolerance set forth by Ms. DeStefano.
(Id.)
II.

A. Administrative History
Plaintiff filed an application for a period
of disability and disability insurance benefits
under Title II of the Social Security Act on
June 24, 2013, alleging disability beginning
October 16, 2012. (Id. at 12.) Plaintiff’s
application was denied initially on November
25, 2013. (Id.) Plaintiff then filed a written
request for hearing on January 14, 2014. (Id.)
Plaintiff appeared and testified at a hearing
held on June 16, 2015, in Jericho, New York.
(Id.) As discussed supra, Ms. DeStefano, an
impartial vocational expert, also appeared
and testified at this hearing. (Id.) After this

The ALJ then gave Ms. DeStefano
another set of limitations similar to the first
set, but changed it to a “sedentary exertional
limitation,” meaning the individual could lift
up to ten pounds occasionally, stand or walk
for approximately six hours per eight-hour
workday, and sit for approximately six hours
per eight-hour workday with normal breaks,
while maintaining the other postural,

PROCEDURAL BACKGROUND

13

hearing, ALJ Patrick Kilgannon considered
plaintiff’s case de novo and issued a decision
on July 31, 2015, finding that plaintiff was
not disabled under the Social Security Act.
(Id. at 12-25.) Plaintiff requested a review of
the ALJ’s decision by the Appeals Council on
September 4, 2015. (Id. at 7-8.) On
November 9, 2016, the Appeals Council
denied plaintiff’s request for a review. (Id. at
1-3.) The Appeals Council informed plaintiff
that the ALJ’s decision was therefore “the
final decision of the Commissioner of Social
Security in [her] case.” (Id. at 1.)

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) (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.”).

B. Instant Case
Plaintiff commenced this lawsuit on
December 28, 2016. (ECF No. 1.) On March
30, 2017, plaintiff moved for judgment on the
pleadings. (ECF No. 7.) The Commissioner
submitted a cross-motion for judgment on the
pleadings on June 1, 2017. (ECF No. 10.) On
June 22, 2017, plaintiff responded to the
Commissioner’s cross-motion for judgment
on the pleadings. (ECF No. 13.) The Court
has fully considered the parties’ submissions.

IV. DISCUSSION
A. The Disability Determination
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 Social Security Act 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).

III. STANDARD OF REVIEW
A district court may set aside a
determination by the Commissioner “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 (1971) (citation
omitted); Selian v. Astrue, 708 F.3d 409, 417
(2d Cir. 2013). Furthermore, “it is up to the

The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. 5 See 20
C.F.R. §§ 404.1520, 416.920. The Second

5

The ALJ performs this five-step procedure in the first
instance; the Appeals Council then reviews the ALJ’s
decision and determines if it stands as the

Commissioner’s final decision. See, e.g., Greek v.
Colvin, 802 F.3d at 374.

14

Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)
(per curiam)).

Circuit has summarized this procedure as
follows:

B. The ALJ’s Ruling

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 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 claimant possesses the
residual function 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.

In the instant case, the ALJ first noted that
plaintiff met the insured status requirements
of the Social Security Act through December
31, 2016. (AR at 14.)
Next, at the first step in the five-step
sequential process described supra, the ALJ
determined that plaintiff had not engaged in
substantial gainful activity since October 16,
2012, the date of the alleged onset of her
disability. (Id.) The ALJ noted that plaintiff
worked after the alleged disability onset date,
but that this work activity did not rise to the
level of substantial gainful activity. (Id.)
At the second step in the five-step
process, the ALJ determined that plaintiff had
the following severe impairments: left ankle
posttraumatic synovitis, lumbar disc
protrusion, morbid obesity, asthma, bipolar
affective disorder, and depression. (Id.) The
ALJ determined that plaintiff did not meet
her burden of proving that her hypertension,
glaucoma, and sleep apnea were severe
impairments. (Id.)
In reaching the above conclusions, the
ALJ noted that the record confirmed that
plaintiff had a history of these conditions, but
concluded that the record did not demonstrate
that the conditions imposed more than
minimal functional limitations. (Id.) The
ALJ pointed to treatment records from Dr.
Schaefer, which indicated that plaintiff’s
blood pressure was “well controlled” and that
plaintiff denied headache, dizziness, chest
pain, palpitations, shortness of breath, and
urinary complaints. (Id. at 14-15.) The ALJ
also reasoned that the treatment notes from
all the providers indicated a history of
glaucoma, but did not “document any
complaints of symptoms arising therefrom.”
(Id. at 15.) The ALJ further noted that Dr.
Ehab, plaintiff’s primary care physician, had

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) diagnosis or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; (4) the claimant’s
educational background, age, and work
experience.”
Id. (quoting Mongeur v.

15

physician intervention occurring within the
time period specified by the listing.” (Id.)

specifically noted that plaintiff denied
ophthalmologic
complaints,
including
blurred vision, diminished visual acuity
flashes of light, pain, and floaters. (Id.)

The ALJ concluded that the severity of
plaintiff’s mental impairments, considered
singly and in combination, did not meet or
medically equate to the criteria of listing
12.04. (Id.) In making this finding, the ALJ
considered whether the “paragraph B”
criteria were satisfied. (Id.) To satisfy the
“paragraph B” criteria, the mental
impairments had to result in at least two of
the following:
marked restriction of
activities of daily living; marked difficulties
in maintaining social functioning; marked
difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of
decompensation, each of extended duration.
(Id.) Repeated episodes of decompensation,
each of extended duration, means three
episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2
weeks. (Id.) In evaluating these areas of
functioning, the ALJ considered the objective
findings in the treatment notes and the
consultative examiner’s report as well as
plaintiff’s reports in the record concerning
her daily activities and social functioning.
(Id.) The ALJ found that in activities of daily
living, plaintiff had mild restriction, and in
social functioning, plaintiff had mild
difficulties. (Id.) The ALJ found that, with
regard to concentration, persistence or pace,
plaintiff had moderate difficulties, but had
experienced no episodes of decompensation
of extended duration. (Id. at 15, 16.) The
ALJ found that because plaintiff’s mental
impairments did not cause at least two
“marked” limitations or one “marked”
limitation and “repeated” episodes of
decompensation, each of extended duration,
the “paragraph B” criteria were not satisfied.
(Id. at 16.)

The ALJ also noted that the record
showed that plaintiff has been diagnosed with
obstructive sleep apnea. (Id.) He noted her
treatment with a CPAP device at home. (Id.)
He pointed to treatment notes from Drs.
Shaefer and Ehab that indicated that plaintiff
specifically denied fatigue and that she
appeared alert and oriented. (Id.) Based on
the evidence mentioned above, the ALJ
reached his determination that plaintiff had
not met her burden of proving that
hypertension, glaucoma, and sleep apnea
were severe impairments. (Id.)
At the third step of the five-step
sequential process, the ALJ concluded that
plaintiff did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of the
listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526). (Id.) The ALJ
reasoned that plaintiff’s impairment of the
ankle did not meet listings 1.02 or 1.06,
because the objective evidence did not show
an inability to ambulate effectively as defined
in section 1.00B2b. (Id.) The ALJ went on
to conclude that plaintiff’s “spinal
impairment does not meet listing 1.04,
because while the evidence established
compromise of a nerve root, it does not show
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied
by sensory or reflex loss and positive
straight-leg raising test, [n]or does it show
spinal arachnoiditis or spinal stenosis
resulting in pseudo claudication.” (Id.)
The ALJ noted that plaintiff’s asthma
“[did] not meet listing 3.03 because it has not
resulted in chronic asthmatic bronchitis or the
prescribed number of attacks requiring

The ALJ also considered whether the
“paragraph C” criteria were satisfied, and
concluded that, in this case, the evidence fails
16

expected to produce plaintiff’s pain or other
symptoms has been shown, the ALJ must
evaluate the intensity, persistence, and
limiting effects of plaintiff’s symptoms to
determine the extent to which they limit
plaintiff’s functioning. (Id. at 17.) Whenever
statements about the intensity, persistence, or
functionally limiting effects of pain or other
symptoms are not substantiated by objective
medical evidence, the ALJ must make a
finding on the credibility of the statements
based on the ALJ’s consideration of the entire
case record. (Id.)

to establish the presence of the “paragraph C”
criteria. (Id.) The ALJ reasoned that the
medical evidence did not show a medically
documented history of chronic affective
disorder of at least two years’ duration that
had caused more than a minimal limitation of
ability to do basic work activities, with
symptoms or signs that were at the time
attenuated by medication or psychosocial
support. (Id.)
Before moving on to step four of the
sequential evaluation process, the ALJ first
determined plaintiff’s residual functional
capacity. After careful consideration of the
entire record, he found that:

In this case, after the ALJ carefully
considered all of the evidence, he found, at
the first step, that plaintiff’s medically
determinable impairments “could reasonably
be expected to produce the alleged
symptoms.” (Id.) However, he found that
she failed at the second step because her
statements about the intensity, persistence, or
functionally limiting effects were “not
entirely credible.” (Id.)

[Plaintiff] has the residual functional
capacity to perform sedentary work as
defined in 20 CFR 404.1567(a)
except that she can perform: no
climbing of ladders, ropes, or
scaffolds; occasional climbing of
ramps or stairs; occasional balancing,
stooping, kneeling, crouching, or
crawling. In terms of environmental
limitations, the [plaintiff] must avoid
exposure to hazards such as moving
machinery and unprotected heights as
well as concentrated exposure to
irritants such as fumes, odors, dust,
gas, and poorly ventilated areas.
[Plaintiff] is further limited to
unskilled tasks in low stress job,
(which I have defined as having only
occasional decision-making and only
occasional changes in work setting).

The ALJ concluded that plaintiff was
limited to sedentary work with the above
postural limitations based on medical
evidence of a left ankle sprain and
posttraumatic synovitis, resulting in some
residual swelling and limitation of motion of
the ankle. (Id.) In reaching this conclusion,
the ALJ pointed to the medical records from
the Southside Hospital Emergency Room on
the date of the accident, treatment notes from
Dr. Rao, progress notes from Dr.
Dicpinigaitis, and medical records from Dr.
Hecht. (Id. (citing Exs. 1F, 2F, 5F, 14F).)
The ALJ also concluded that this impairment
reasonably limited plaintiff to standing or
walking no more than two hours total over an
eight-hour workday and performing no more
than occasional postural maneuvers and no
climbing of ladders, ropes, or scaffolds. (Id.
at 17-18.) The ALJ concluded that the
medical evidence showed that plaintiff had a
left-sided foraminal disc protrusion at L4-5

(Id.)
In considering plaintiff’s symptoms, the
ALJ followed a two-step process, in which an
ALJ must first determine whether there is an
underlying medically determinable physical
or mental impairment. (Id.) Second, after
finding that an underlying physical or mental
impairment(s) that could be reasonably

17

contacting the exiting left L4 nerve root on
MRI, which had resulted in findings of
tenderness and restricted range of motion in
the lumbar spine. (Id.) The ALJ used the
treatment notes from Dr. Brandenstein,
progress notes from Dr. Dicpinigaitis,
examination records from Dr. Wasty, and the
records from Dr. Hecht in arriving at this
conclusion. (Id. (citing Exs. 4F, 5F, 7F,
14F).) The ALJ noted that these conditions
reasonably limited plaintiff to lifting and
carrying up to ten pounds occasionally
throughout the workday. (Id.) The ALJ also
noted that the medical evidence established
that plaintiff has been diagnosed with asthma,
and that she has a decreased diffusing
capacity of the lungs (“DLCO”) on
pulmonary function testing.6 (Id.) The ALJ
concluded that plaintiff therefore needed to
avoid
concentrated
exposure
to
environmental irritants. (Id.) Finally, the
ALJ concluded that plaintiff was limited to
unskilled tasks in a low stress job based on
her mental impairments and evidence of
depression and bipolar affective disorder,
with objective findings of a depressed mood,
tearfulness, and “mixed” recent memory
skills.7 (Id.)

medical evidence did not corroborate
plaintiff’s testimony regarding “extreme
difficulty sitting, standing, and walking and
very limited lifting and carrying.” (Id.) The
ALJ pointed to medical records indicating
that plaintiff was released from Southside
Hospital in stable condition the same day that
the accident occurred. (Id. (citing Ex. 1F).)
He also pointed to Dr. Dicpinigaitis’s notes
from two months after the accident, reflecting
that plaintiff was able to walk with a “mild
antalgic gait at a normal walking speed.” (Id.
(citing Ex. 5F).) Dr. Dicpinigaitis recorded
that plaintiff’s ankle was stable to stress upon
examination, and that an X-ray showed no
obvious fractures, dislocations, or gross
arthropathy. (Id.) The ALJ also pointed to
treatment notes from Dr. Dicpinigaitis from a
follow-up visit with plaintiff in October
2013, at which the doctor noted an antalgic
gait, but found that the left ankle was stable
and unchanged and that plaintiff had five out
of five motor strength in her lower
extremities. (Id.) The ALJ also used Dr.
Brandenstein’s records in making this
conclusion. (Id. (citing Ex. 4F).) Dr.
Brandenstein noted, in 2013, that plaintiff’s
spinal range of motion was “actually
relatively well maintained with forward
flexion to approximately 45-50 degrees.”
(Id.) Furthermore, the ALJ added that, at her
examination by Dr. Wasty in late 2013,
plaintiff demonstrated a normal gait and
stance with no assistive devices, and had full
range of motion and no swelling in the left
ankle. (Id. at 19 (citing Ex. 7F).)

The ALJ noted in his ruling that plaintiff
had been diagnosed with morbid obesity.
(Id.) He further noted that, pursuant to Social
Security Ruling 02-1p, he considered any
functional limitations resulting from obesity
in the residual functional capacity
assessment. (Id.) He wrote that he had taken
plaintiff’s obesity into account in limiting her
capacity for lifting, carrying, standing, and
walking. (Id.)

The ALJ found that the treatment notes
did not support plaintiff’s allegations that she
had shortness of breath “all the time.” (Id.)
The ALJ pointed to Dr. Shaefer’s notes,
which showed that plaintiff consistently

The ALJ did not find a basis to limit
plaintiff further. (Id.) He reasoned that the

6

7

The ALJ pointed to the medical records of Dr. Anwar
in reaching this conclusion. (AR at 18 (citing Ex.
10F).)

The ALJ pointed to the treatment notes of Dr.
Brandenstein and the treatment records from the
Catholic Charities Mental Health Services in reaching
this conclusion. (Id. (citing Exs. 4F, 9F, 19F).)

18

judgment were intact. (Id.) The ALJ also
pointed to Dr. Schaefer’s administration of a
PHQ depression screening questionnaire,
which
reportedly
showed
“minimal
depression.” (Id.) The ALJ further noted
that, according to Dr. Herman’s report from
October 23, 2013, plaintiff did not report
hallucinations. (Id. (citing Ex. 6F).) Dr.
Herman also found that plaintiff was
cooperative and had adequate social skills.
(Id.) Dr. Herman found that plaintiff’s
thought processes were coherent and goaldirected, with no evidence of hallucinations,
delusions, or paranoia in the setting. (Id.)

denied shortness of breath, wheezing, and
cough. (Id. (citing Ex. 15F).) The ALJ noted
that Dr. Schaefer repeatedly found that
plaintiff’s lungs were clear on examination.
(Id.) Dr. Hanna also consistently noted that
plaintiff denied shortness of breath, both at
rest and on exertion. (Id. (citing Ex. 18F).)
The ALJ wrote that, although the pulmonary
function testing Dr. Anwar performed
showed decreased DLCO, it also showed
normal flow and volume. (Id.) For the
reasons mentioned above, the ALJ concluded
that the medical evidence did not corroborate
plaintiff’s testimony that she had shortness of
breath “all the time” and that she had asthma
attacks that resulted in loss of consciousness.
(Id.)

The ALJ noted that Dr. Ehab recorded at
an August 2014 visit that plaintiff had
negative thoughts when she ran out of
psychiatric
medication,
but
upon
examination, Dr. Ehab found that plaintiff
was in a “good mood” and alert and oriented.
(Id. at 20 (citing Ex. 18F).) The ALJ also
pointed to the fact that there was no report or
mention of hallucinations, and that Dr. Ehab
noted that plaintiff was in a “good mood”
during her next examination in February
2015. (Id.)

The ALJ also concluded that the medical
evidence did not support plaintiff’s testimony
regarding her psychiatric impairments,
including her allegations of auditory
hallucinations and her inability to leave her
home.
(Id.)
The ALJ discussed Dr.
Schaefer’s notes in reaching this conclusion.
(Id.) He first noted that there was no
evidence of psychiatric symptoms until July
2013, which was after the alleged onset date.
(Id. (citing Ex. 4F).) Plaintiff reported to Dr.
Schaefer frequent crying, lack of motivation,
poor concentration, anhedonia, and difficulty
concentrating. (Id. (citing 15F).) The ALJ
pointed to the fact that Dr. Schaefer made no
mention of hallucinations in her notes. (Id.)
The ALJ also noted that Dr. Schaefer found
that plaintiff was alert and fully oriented, and
that her insight and judgment were intact.
(Id.) Dr. Schaefer prescribed plaintiff Zoloft,
and the ALJ noted that, at a follow-up visit
with Dr. Schaefer, plaintiff reported that she
was feeling better on Zoloft. (Id.) Plaintiff
reported that she was “more active and more
positive,” that she was eating and sleeping
well, and that her concentration was “better.”
(Id.) Dr. Schaefer observed that plaintiff had
a normal mood and effect, that she was alert
and fully oriented, and that her insight and

The ALJ wrote in his findings that
because a plaintiff’s symptoms can
sometimes suggest a greater level of severity
of impairment than can be shown by the
objective medical evidence alone, 20 CFR
404.1529(c) describes the kinds of evidence,
including the factors that he must consider in
addition to the objective medical evidence,
when assessing the credibility of plaintiff’s
statements. (Id.) The factors are the
following:
1. [Plaintiff’s] daily activities;
2. The location, duration, frequency,
and intensity of [plaintiff’s] pain or
other symptoms;

19

(Id.) The ALJ also noted that plaintiff
testified that for a period after her injury in
2014, in addition to taking classes at Suffolk
County Community College, she was
working up to ten hours a week under a workstudy program. (Id.)

3.
Factors that precipitate and
aggravate the symptoms;
4. The type, dosage, effectiveness,
and side effects of any medication
that [plaintiff] takes or has taken to
alleviate pain or other symptoms;

The ALJ concluded that the treatment for
plaintiff’s physical and mental impairments
had been relatively conservative. (Id. at 21.)
The ALJ pointed to the fact that plaintiff’s
ankle and back pain were treated with
localized injections and a course of physical
therapy, and that treatment for plaintiff’s
mental impairments primarily consisted of
medication prescribed by a primary care
physician. (Id.) The ALJ reasoned that
plaintiff’s allegation of a disabling mental
impairment was undermined by the fact that
she did not report this impairment at the time
the application was filed. (Id. (citing Ex.
2E).) Plaintiff stated in the disability report
that she had not had any treatment for a
mental impairment, and she did not seek
medical treatment for psychiatric symptoms
until after she applied for disability insurance
benefits. (Id.)

5. Treatment, other than medication,
[plaintiff] receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment
[plaintiff] uses or has used to relieve
pain or other symptoms (e.g., lying
flat on his back, standing for 15 to 20
minutes every hour, or sleeping on a
board); and
7. Any other factors concerning the
[plaintiff’s] functional limitations and
restrictions due to pain or other
symptoms (SSR 96-7p).
(Id.)
The ALJ reasoned that plaintiff had
described daily activities that, at times, were
not limited to the extent one would expect
given the complaints of disabling symptoms
and limitations. (Id.) For example, the ALJ
pointed to a function report completed on
August 6, 2013, almost ten months after the
alleged onset date of the disability, in which
plaintiff stated that she had no problems with
personal care and that she could do laundry
and clean in places that did not require
bending or climbing. (Id. (citing Ex. 4E).)
Plaintiff also reported that she went out two
to three times a week, and that she could
travel alone via walking or public
transportation. (Id.) She also reported that
she could go food shopping and pay bills.
(Id.) Plaintiff reported that she had no
problems getting along with family, friends,
neighbors, and authority figures, and that she
could follow spoken and written instructions.

The ALJ noted that Dr. Dicpinigaitis
reported to Worker’s Compensation that
plaintiff could not return to work because she
had a “100% temporary impairment.” (Id.
(citing Ex. 13F).) However, the ALJ did not
give this conclusion weight in determining
the residual functional capacity, as it was not
an evaluation of plaintiff’s functioning over
12 or more months. (Id.) Dr. Hecht also
found on January 27, 2014 that plaintiff
remained “totally disabled from her job.” (Id.
(citing Exs. 11F, 14F).) Dr. Hecht reported
to the Workers Compensation Board on
February 5, 2014, March 10, 2014, April 22,
2014, July 3, 2014, September 2, 2014,
October 28, 2014, December 4, 2014,
February 27, 2015, and April 17, 2015 that
plaintiff
had
a
“100%
temporary
impairment,” and that she could not “return
20

Dr. Kelman examined plaintiff for the
Worker’s Compensation carrier on January
23, 2015. (Id.) Dr. Kelman found that
plaintiff was capable of returning to work
with the following restrictions:
“no
prolonged walking/standing, excessive stair
climbing, vertical ladders, squatting,
repetitive bending, or lifting greater than 40
lbs.” (Id. (citing Ex. 17F).) The ALJ gave
this opinion “good” overall weight, but found
that plaintiff’s spinal impairment and obesity
reasonably restricted her ability to lift and
carry further than Dr. Kelman found. (Id.)
The ALJ noted that the other limitations were
consistent with Dr. Kelman’s findings and
the other findings of record. (Id.)

to work” because of pain and decreased range
of motion. (Id.) The ALJ gave this little
weight in determining the residual functional
capacity because these opinions referred to
plaintiff’s ability to perform her former job,
which is not indicative of disability under the
Social Security Act. (Id.)
Dr. Hecht also noted on December 14,
2014, October 13, 2014, and December 22,
2014, that plaintiff remained “disabled.”
(Id.) The ALJ gave no weight to these
assessments, as there is no definition of
“disabled” as used by Dr. Hecht. (Id.)
The ALJ also noted that Dr. Moriarty
examined plaintiff for the Worker’s
Compensation carrier on January 8, 2013 and
found that “[c]urrently plaintiff could work in
a modified duty capacity with restrictions in
prolonged standing, prolonged walking, and
climbing. The [plaintiff] would have weight
handling restrictions of 15 pounds.” (Id.
(citing Ex. 3F).)
The ALJ gave this
assessment “good” weight, as it was
consistent with Dr. Moriarty’s previous
findings of a slight limp, no assistive device,
and five out of five plantar flexion strength.
(Id. at 21-22.) The ALJ noted that Dr.
Moriarty did not examine plaintiff’s spine,
so—taking this fact and plaintiff’s testimony
about the difficulty she experienced in lifting
more than ten pounds into account—the ALJ
adjusted the lifting and carrying restrictions
downward. (Id. at 22.) Dr. Moriarty
examined plaintiff again on September 2,
2014, and concluded that plaintiff had a 20%
scheduled loss of use of the left foot, due to
“chronic ankle sprain with persistent pain and
some motor loss.” (Id. (citing Ex. 16F).) The
ALJ gave this opinion no weight, as it did not
pertain to disability under the Social Security
Act, and the definition of “20% scheduled
loss of use” was not set forth in the report.
(Id.)

Dr. Wasty found that plaintiff had
“moderate to marked limitation to squatting
and kneeling. She has moderate limitation to
long periods of sitting, standing, walking,
bending forward, and heavy lifting. She
should avoid heavy exertion due to asthma.
She should avoid environments with smoke,
dust, and all known respiratory irritants due
to asthma.” (Id. (citing Ex. 7F).) The ALJ
gave this opinion “partial” weight. (Id.) The
ALJ noted that the limitations for squatting
and kneeling were related to plaintiff’s
complaint of ten out of ten bilateral knee
pain. (Id.) However, the ALJ concluded that
the medical evidence of record did not
establish
a
medically
determinable
impairment that could reasonably be
expected to produce knee pain. (Id.) The
ALJ also concluded that the limitation for
sitting was inconsistent with plaintiff’s
conservative course of treatment for her back
and her reports of her daily activities that, at
the time of the examination, included taking
four college courses. (Id.) The ALJ further
concluded that the remainder of Dr. Wasty’s
opinion was supported by the examination’s
findings and the ALJ gave it “good” weight.
(Id.)

21

although Dr. Tolentino was listed as the nurse
practitioner’s supervisor, there was no
evidence that Dr. Tolentino had personally
examined plaintiff. (Id.) Dr. Tolentino also
wrote that plaintiff had cancelled nine
appointments with Catholic Charities. (Id.)
The ALJ, therefore, concluded that the
evidence did not establish that Dr. Tolentino
was entitled to deference as a “treating
physician” under 20 CFR 404.1502. (Id.)
The ALJ further noted that plaintiff’s account
of her symptoms in the Catholic Charities
examinations was vastly different from what
plaintiff reported to Drs. Schaefer, Hanna,
and Herman. (Id.) In the Catholic Charities
appointments, plaintiff reported a history of
manic episodes and auditory hallucinations.
(Id.) The ALJ pointed out that these
symptoms were “noticeably absent” from the
reports of Drs. Schaefer, Hanna, and Herman.
(Id.) Dr. Schafer’s and Dr. Hanna’s notes
document “minimal” depression with an
excellent response to Zoloft. (Id.) The ALJ
gave Dr. Tolentino’s opinion “little” weight,
as it conflicted with evidence from multiple
other sources. (Id.)

Dr. Herman found that there did not
appear to be evidence of significant
limitation with respect to plaintiff’s ability to
follow and understand simple directions and
instructions, perform simple tasks, maintain
attention and concentration, maintain a
regular schedule, learn new tasks, make
appropriate simple work-related decisions, or
relate adequately to others. (Id. (citing Ex.
6F).) Dr. Herman also found that there did
not appear to be evidence of moderate
limitation with respect to plaintiff’s ability to
perform complex tasks and appropriately
deal with stress. (Id.) The ALJ gave this
opinion “great” weight, as it was consistent
with plaintiff’s presentation in Dr. Herman’s
examination (adequate social skills, neutral
mood, coherent thought processes, intact
remote memory). (Id.) The ALJ also noted
that it was consistent with plaintiff’s
documented positive response to Zoloft and
the conservative course of psychiatric
treatment. (Id.)
The ALJ also gave “little” weight to the
opinion of the state agency consulting
psychiatrist, who found that plaintiff had a
mental impairment that was not severe. (Id.
(citing Ex. 2A).) The ALJ came to this
conclusion because the opinion was
inconsistent with that of Dr. Herman, who
was an examining source. (Id.)

At the fourth step of the five-step process,
the ALJ concluded that plaintiff was unable
to perform any of her past work. (Id.)
Plaintiff had been employed in the past as a
certified nursing assistant, a directory
assistance operator, and an order filler for
sufficient periods of time to be considered
substantial gainful activity and to learn to
perform the requirements of the positions
adequately. (Id.) The vocational expert
identified the certified nursing assistant work
in the Dictionary of Occupational Titles
under code 355.674-014, and testified that it
was generally considered medium, SVP 4
work. (Id.) The vocational expert identified
the directory assistance operator job in the
Dictionary of Occupational Titles under code
235.662-018 and testified that it was
generally considered sedentary, SVP 3 work.
(Id.) The vocational expert identified the

The ALJ next considered the medical
opinion statement from Dr. Tolentino. (Id. at
23 (citing Ex. 21F).) In a report dated July 9,
2015, Dr. Tolentino found that plaintiff was
“unable to meet competitive standards” in
most of the areas of functioning required by
competitive employment. (Id.) The ALJ
noted that updated records (submitted June
2015) from Dr. Tolentino’s agency, Catholic
Charities,
documented
only
two
appointments with plaintiff. Plaintiff was
examined by a social worker on October 27,
2014, and a nurse practitioner on November
12, 2014. (Id.) The ALJ further noted that,

22

order filler job in the Dictionary of
Occupational Titles under code 249.362-026
and testified that was generally considered
sedentary, SVP 4 work. (Id.) The vocational
expert then testified that the residual function
capacity would preclude plaintiff from
performing these jobs, and therefore the ALJ
concluded that plaintiff was unable to
perform any of her past relevant work. (Id.)

capacity to perform the full range of
sedentary work, Medical-Vocational Rule
201.28 would direct a finding of “not
disabled.” (Id.) The ALJ further noted that
plaintiff’s ability to perform all or
substantially all of the requirements of work
had been impeded by additional limitations.
(Id.) To determine the extent to which these
limitations eroded the unskilled sedentary
occupational base, the ALJ asked the
vocational expert whether jobs existed in the
national economy for an individual with
plaintiff’s age, education, work experience,
and residual functional capacity. (Id.) The
vocational expert testified that, given all of
these factors, the individual would be able to
perform the requirements of representative
occupations such as: “1. Table worker (DOT
code 739.687-182), a sedentary SVP 2
occupation with 2,721 jobs in the national
economy; 2. Document preparer (DOT code
249.587-018), a sedentary, SVP 2 occupation
with 45,835 jobs in the national economy;
and 3. Addresser (DOT code 209.587-010), a
sedentary, SVP 2 occupation with 7,338 jobs
in the national economy.” (Id.) Pursuant to
SSR 00-4p, the ALJ determined that the
vocational expert’s testimony was consistent
with the information contained in the
Dictionary of Occupational Titles. (Id.)
Based on the testimony of the vocational
expert, the ALJ concluded that, considering
plaintiff’s age, education, work experience,
and residual functional capacity, plaintiff was
capable of making a successful adjustment to
other work that existed in significant
numbers in the national economy (Id. at 2425.) The ALJ then concluded that a finding
of “not disabled” was therefore appropriate
under the framework of Medical-Vocational
Rule 201.28. (Id. at 25.)

Finally, at the fifth step of the five-step
process, the ALJ concluded that, after
considering plaintiff’s age, education, work
experience, and residual functional capacity,
there were jobs that existed in significant
numbers in the national economy that
plaintiff could perform. (Id. at 24.) In
determining whether a successful adjustment
to other work could be made, the ALJ
considered plaintiff’s residual functional
capacity, age, education, and work
experience in conjunction with the MedicalVocational Guidelines, 20 CFR Part 404,
Subpart P, Appendix 2. (Id.) The ALJ noted
that, if plaintiff could perform all or
substantially all of the exertional demands at
a given level or exertion, the medicalvocational rules directed a conclusion of
either “disabled” or “not disabled” depending
upon plaintiff’s specific vocational profile.
(Id.)
If plaintiff could not perform
substantially all of the exertional demands of
work at a given level or exertion and/or has
nonexertional limitations, the medicalvocational rules were to be used as a
framework for decision-making, unless there
was a rule that directed a conclusion of
“disabled” without considering the additional
exertion and/or nonexertional limitations. 8
(Id.) If plaintiff had solely nonexertional
limitations, section 204.00 in the MedicalVocational Guidelines provided a framework
for decision-making.9 (Id.) The ALJ noted
that “if plaintiff had the residual functional

The ALJ next concluded that plaintiff
“had not been under a disability,” as defined

8

9

See SSRs 83-12 and 83-14.

23

See SSR 85-15.

examinations, such as consultative
examinations
or
brief
hospitalizations. If we find that a
treating source’s opinion on the
issue(s) of the nature and severity of
your impairments(s) is wellsupported by medically acceptable
clinical and laboratory diagnostic
techniques and is not inconsistent
with the other substantial evidence in
your case record, we will give it
controlling weight.

in the Social Security Act, from October 16,
2012 through the date of his decision. (Id.)
Finally, the ALJ made the overall
conclusion that, based on the application for
a period of disability and disability insurance
benefits filed on June 24, 2013, plaintiff was
not disabled under sections 216(i) and 223(d)
of the Social Security Act. (Id.)
C. Analysis
Plaintiff challenges the ALJ’s conclusion
that she has the residual function capacity to
perform sedentary work with the ability to
remain “on task.” Specifically, plaintiff
asserts that the ALJ: (1) did not afford
adequate weight to the opinion of her
psychiatrist, Dr. Tolentino; and (2)
improperly evaluated plaintiff’s credibility.

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
Although treating physicians may share their
opinions concerning a patient’s inability to
work and the severity of the disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).

1. Opinion of the Treating Physician
The Commissioner must give special
evidentiary weight to the opinion of the
treating physician. See Clark, 143 F.3d at
118. The “treating physician rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Carter, 221 F.3d 126, 134 (2d Cir. 2000); see
also, e.g., Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999); Clark, 143 F.3d at 118. The
rule, as set forth in the regulations, provides:

If the opinion of the treating physician as
to the nature and severity of the impairment
is not given controlling weight, the ALJ must
apply various factors to decide how much
weight to give the opinion. See Shaw, 221
F.3d at 134; Clark, 143 F.3d at 118. These
factors include:
(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
specialist; and (v) other relevant factors. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see
Clark, 143 F.3d at 118. When the ALJ
chooses not to give the treating physician’s
opinion controlling weight, he must “give
good reasons in his notice of determination or
decision for the weight [he] gives [the
claimant’s] treating source’s opinion.”
Clark, 143 F.3d at 118 (quoting C.F.R.

Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be the
medical professionals most able to
provide a detailed, longitudinal
picture
of
your
medical
impairment(s) and may bring a
unique perspective to the medical
evidence that cannot be obtained from
the objective medical findings alone
or from reports of individual

24

was “unable to meet competitive standards”
in most areas of functioning required by
competitive employment (id.), and that
plaintiff would have difficulty working at a
regular job on a sustained basis because she
“ha[d]
auditory
hallucinations
that
interfere[d] in her functioning” (id.; id. at
531).

§§ 404.1527(d)(2), 416.927(d)(2)); see also
Perez v. Astrue, No. 07-cv-958 (DLI), 2009
WL 2496585, at *8 (E.D.N.Y. Aug. 14,
2009) (“Even if [the treating physician’s]
opinions do not merit controlling weight, the
ALJ must explain what weight she gave those
opinions and must articulate good reasons for
not crediting the opinions of a claimant’s
treating physician.”); Santiago v. Barnhart,
441 F. Supp. 2d 620, 627 (S.D.N.Y. 2006)
(“Even if the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating source
is inherently more familiar with a claimant’s
medical condition than are other sources.”).
A failure by the ALJ to provide “good
reasons” for not crediting the opinion of a
treating physician is a ground for remand.
See Snell, 177 F.3d at 133.

Distinguishing “treating physicians”
from other physicians, the Second Circuit has
made clear that “ALJs should not rely heavily
on the findings of consultative physicians
after a single examination.” Selian, 708 F.3d
at 419. In Selian, the ALJ rejected the
treating physician’s diagnosis based in part
on the opinion of another physician who
“performed
only
one
consultative
examination.” Id. The Court held that, in
doing so, the ALJ “fail[ed] to provide ‘good
reasons’ for not crediting [the treating
physician’s] diagnosis,” and that failure “by
itself warrant[ed] remand.” Id.; see also Cruz
v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)
(“[A] consulting physician’s opinions or
report should be given limited weight . . .
because ‘consultative exams are often brief,
are generally performed without benefit or
review of claimant’s medical history and, at
best, only give a glimpse of the claimant on a
single day.’” (citation omitted)).

The Court concludes that the ALJ in this
case gave appropriate weight to the opinions
of plaintiff’s treating physicians, explaining
that he gave “good weight” to some, and
articulating good reasons for giving little
weight to, or not crediting, others.
The ALJ provided sufficient reasons for
not crediting the opinion of plaintiff’s
psychiatrist at Catholic Charities, Dr.
Tolentino—primarily, that she was not
entitled to deference as a “treating
physician.” (AR at 23.) The ALJ pointed out
that Catholic Charities records documented
only two appointments with plaintiff, one
with social worker Hoefling on October 27,
2014, and the other with nurse Blanchard on
November 12, 2014. (Id. at 23.) The ALJ
noted that, although Dr. Tolentino was listed
as the nurse practitioner’s supervisor, there
was no evidence that Dr. Tolentino
personally examined plaintiff. (Id.) The ALJ
also noted that Dr. Tolentino documented
that plaintiff had cancelled nine appointments
with Catholic Charities. (Id.) He therefore
gave little weight to her findings that plaintiff

In this case, Dr. Tolentino appears to have
had even less contact with plaintiff than the
consultative physician did in Selian. The
record here does not provide evidence that
Dr. Tolentino ever personally examined
plaintiff. For the above reasons, the Court
finds that the ALJ correctly concluded that
the evidence does not establish that Dr.
Tolentino is entitled to deference as a
“treating physician.”
The ALJ also reasoned that plaintiff’s
account of her symptoms in the Catholic
Charities examinations was “vastly different”
from what she reported to Drs. Schaefer,
Hanna, and Herman (AR at 23)—doctors
25

Id. Plaintiff does not point to specific
symptoms that the ALJ failed to consider, but
rather makes the conclusory allegation that
the ALJ failed to determine her ability to
“stay on task” and therefore wrongly
determined that she was not disabled. In the
hearing before the ALJ, plaintiff’s attorney
argued that plaintiff “would not be able to
remain on task due to her psychiatric and
chronic pain condition as well as the asthma,
within the tolerance set forth by the expert.”
(Id. at 71.) Plaintiff states that “the Judge was
required to complete a function by function
analysis . . . taking into account all of the
claimant’s physical and mental impairments
in combination.” (Plaintiff’s Mem., ECF No.
7-1, at 16 (citing Hernandez v. Astrue, 814 F.
Supp. 2d 168 (E.D.N.Y. Apr. 29, 2011)).)
That is exactly what the ALJ did. As
discussed supra, the ALJ undertook a
detailed analysis of plaintiff’s “physical and
mental impairments in combination,”
including her foot, ankle, and back injuries,
morbid obesity, spinal range of motion,
shortness of breath, depression, difficulty
concentrating, and alleged hallucinations,
among other symptoms. (AR at 16-23.) The
ALJ discussed plaintiff’s many treating
physicians’ opinions. (Id.)

with whom plaintiff had considerably more
contact. The ALJ found that plaintiff’s
account of her history of manic episodes and
auditory hallucinations, as relayed in the
Catholic Charities examinations, was
“noticeably absent” from the reports of Drs.
Schaefer, Hanna, and Herman. (Id.) Dr.
Schaefer’s and Dr. Hanna’s reports discussed
only “minimal depression,” with no mention
of any manic episodes or auditory
hallucinations of any sort. (Id.) Both
doctors’ reports also mentioned a positive
response to Zoloft. (Id.) Taking these reports
into consideration, the ALJ found that Dr.
Tolentino’s opinion deserved little weight
because it was not consistent with other
substantial evidence in the record. (Id.)
2. Function-by-Function Analysis
Plaintiff argues that the ALJ also erred by
failing to conduct a “function-by-function”
analysis of plaintiff’s residual functional
capacity. However, the Second Circuit has
explicitly “decline[d] to adopt a per se rule”
requiring such a procedure. Cichocki v.
Astrue, 729 F.3d 172, 177 (2d Cir. 2013). In
Cichocki, the Court wrote that:
The relevant inquiry is whether the
ALJ applied the correct legal
standards and whether the ALJ’s
determination is supported by
substantial evidence.
Where an
ALJ’s analysis at Step Four regarding
a claimant’s functional limitations
and restrictions affords an adequate
basis for meaningful judicial review,
applies the proper legal standards,
and is supported by substantial
evidence such that additional analysis
would be unnecessary or superfluous,
we agree with our sister Circuits that
remand is not necessary merely
because an explicit function-byfunction analysis was not performed.

Therefore, although the Second Circuit
does not require the function-by-function
analysis that plaintiff requests that this Court
apply, the Court finds that the ALJ’s analysis
was sufficiently thorough to satisfy this
standard and is supported by substantial
evidence.
3. Credibility of Plaintiff’s Testimony
Plaintiff next argues that the ALJ
improperly determined that her testimony
was “not entirely credible” (id. at 17), and
that the medical evidence did not corroborate
her testimony (id. at 19).
The Court
recognizes, however, that “[i]t is the function
of the [Commissioner], not the reviewing
courts, to resolve evidentiary conflicts and to
26

appraise the credibility of witnesses,
including the claimant.” Aponte v. Sec’y
Dep’t of Health & Human Servs., 728 F.2d
588, 591 (2d Cir. 1984) (citations and
alteration omitted). Here, the ALJ found 10
that plaintiff’s “medically determinable
impairments could be reasonably be expected
to produce the alleged symptoms,” but that
“her statements concerning the intensity,
persistence and limiting effects” were “not
entirely credible.” (AR at 17.)

showed no obvious fractures, dislocations, or
gross arthropathy. (Id.) He also documented
an antalgic gait during a follow-up visit in
October 2013, but found that the left ankle
exam was stable and unchanged, and that
plaintiff had a five out of five motor strength
in her lower extremities. (Id.) The ALJ also
pointed to Dr. Brandenstein’s records, which
indicated that he found plaintiff’s spinal
range of motion to be “actually relatively
well maintained with forward flexion to
approximately 45-50 degrees.” (Id.) Dr.
Brandenstein found that plaintiff had five out
of five lower extremity motor strength and no
focal motor deficits. (Id.) The ALJ next
discussed an examination by Dr. Wasty on
November 18, 2013, at which plaintiff
demonstrated a normal gait and stance with
no assistive devices. (Id. at 19.) Dr. Wasty
noted that plaintiff had full range of motion
and no swelling in the left ankle. (Id.) Upon
review of the record, the Court finds that
substantial evidence supports the ALJ’s
conclusion that the objective medical
evidence undermined plaintiff’s testimony
regarding extreme difficulty sitting, standing,
walking, and very limited lifting and
carrying.

Plaintiff testified that she fell and injured
her ankle and back on October 16, 2012, and
that her symptoms had not improved since
the date of her accident. (Id.) She testified
that she was in constant pain, and rated her
pain to be an eight or nine out of ten. (Id.)
Plaintiff further testified that she could sit for
up to 20 minutes at a time, stand for only a
minute or two at a time, and walk for only ten
steps before she had to stop. (Id.) Plaintiff
testified that she could lift and carry less than
ten pounds. (Id.) Plaintiff testified that she
would be unable to perform any type of job,
even one with a sit or stand option, because
she was “always, constantly in pain.” (Id.)
The ALJ concluded that the objective
medical evidence did not corroborate
plaintiff’s testimony regarding “extreme
difficulty sitting, standing, and walking and
very limited lifting and carrying.” (Id. at 18.)
The ALJ pointed to the medical records of
several of plaintiff’s doctors in making this
determination. First, he pointed to an
examination by Dr. Dicpinigaitis in
December 2012, just two months after the
date of the accident, at which Dr.
Dicpinigaitis observed that plaintiff was able
to walk with a “mild antalgic gait at a normal
walking speed.” (Id.) Dr. Dicpinigaitis
documented that plaintiff’s ankle was stable
to stress on examination, and that an X-ray

The ALJ also concluded that the
objective medical evidence did not support
plaintiff’s allegations that she had shortness
of breath “all the time.” (Id.) The ALJ
pointed to Dr. Schaefer’s notes, which
reflected that plaintiff consistently denied
“shortness of breath, wheezing, and cough.”
(Id.) Dr. Hanna also consistently noted that
plaintiff denied shortness of breath, both at
rest and during exertion. (Id.) Upon review
of the record, the Court finds that the
substantial evidence supports the ALJ’s
conclusion that the medical evidence
undermines plaintiff’s testimony that her

10

The Appeals Council denied review and informed
plaintiff that the ALJ’s decision was the

Commissioner’s final decision in her case. See supra
note 5.

27

directed, with no evidence of hallucinations,
delusions, or paranoia in the setting. (Id.)
August 2014 treatment notes from Dr. Ehab,
plaintiff’s most recent primary care provider,
show that plaintiff had run out of psychiatric
medication and was having negative
thoughts. (Id. at 19-20.) Dr. Ehab noted
however, that plaintiff was in a “good mood”
and was alert and oriented. (Id. at 20.) There
was no reference to or mention of
hallucinations or manic episodes. (Id.) Dr.
Ehab also noted in February 2015, during the
next documented appointment with plaintiff,
that she was in a “good mood.” (Id.)

asthma attacks result in loss of consciousness
and shortness of breath “all the time.”
Finally, the ALJ concluded that the
medical evidence did not support plaintiff’s
testimony
regarding
her
psychiatric
impairments, including her allegations of
auditory hallucinations and an inability to
leave her home. (Id.) The ALJ first noted
that plaintiff had a positive response to
psychiatric medication. (Id.) He next noted
that there was no evidence of psychiatric
symptoms until July 2013, which was after
the alleged onset date. (Id.) At that point,
plaintiff was “upset and tearful” at an
appointment, and was referred to Dr.
Schaefer. (Id.) At her appointment with Dr.
Schaefer, she reported frequent crying, lack
of
motivation,
poor
concentration,
anhedonia, and difficulty concentrating. (Id.)
Dr. Schaefer’s report includes no mention of
hallucinations. (Id.) Dr. Schaefer found that
plaintiff was alert and fully oriented, that she
had a normal affect, and that her insight and
judgment were intact. (Id.) Dr. Schaefer
prescribed plaintiff Zoloft. (Id.) At a followup visit with Dr. Schaefer, plaintiff reported
that she was “more active and more positive,”
that she was eating and sleeping well, and
that her concentration was “better.” (Id.) Dr.
Schaefer observed that plaintiff had a normal
mood and affect, that she was alert and fully
oriented, and that her insight and judgment
were intact.
(Id.)
Dr. Schaefer also
administered
a
depression-screening
questionnaire, which reportedly showed
“minimal depression.” (Id.) Dr. Herman also
administered a psychiatric examination on
plaintiff, and, according to Dr. Herman’s
records, plaintiff did not report hallucinations
or manic episodes. (Id.) Dr. Herman found
that plaintiff was cooperative and had
adequate social skills. (Id.) Dr. Herman
observed that plaintiff had no abnormalities
in posture, motor behavior, or eye contact.
(Id.) Dr. Herman found that plaintiff’s
thought processes were coherent and goal

The ALJ properly considered the kinds of
evidence and factors described in 20 CFR
404.1529(c) when assessing the credibility of
plaintiff’s statements. Based on this analysis,
the ALJ concluded that plaintiff had
“described daily activities that, at times,
[we]re not limited to the extent one would
expect given the complaints of disabling
symptoms and limitations.” (Id.) The ALJ
pointed in part to a function report completed
on August 6, 2013, almost 10 months after
the alleged onset date of the disability. (Id.)
In this report, plaintiff stated that she had no
problems with personal care, and that she
could do laundry and clean in places that did
not require bending or climbing. (Id.)
Plaintiff reported that she went out two to
three times a week, that she could travel alone
via walking or public transportation, that she
could go food shopping and pay bills, and
that she spent time with others about two
times a month. (Id.) Plaintiff also stated that
she had no problems getting along with
family, friends, neighbors, and authority
figures, and that she could follow spoken and
written instructions. (Id.) Plaintiff also
testified that, in addition to taking classes at
Suffolk County Community College until
May 2014, she was working up to ten hours
per week under a work-study program. (Id.)
At the time plaintiff filed her application for
social security disability, she did not report
28