De La Cruz v. Commissioner of Social Security

Filing 32

OPINION AND ORDER 104470 re: 30 MOTION for Judgment on the Pleadings counsel's signature corrected. filed by Stephanie Yvonne De La Cruz, 16 MOTION for Judgment on the Pleadings. filed by Commissioner of Social Security. For the fo regoing reasons, the Commissioner's motion is GRANTED, the decision denying benefits is affirmed, and De La Cruz's motion is DENIED. The Clerk of Court is directed to close these motions [Docket numbers 16 and 30], and this case. (Signed by Judge Shira A. Scheindlin on 7/2/2014) (djc) Modified on 7/3/2014 (djc). Modified on 7/3/2014 (nt).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEPHANIE YVONNE DE LA CRUZ,
Plaintiff,

OPINION AND ORDER
12-cv-3660 (SAS)

- against CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION

Stephanie Yvonne De La Cruz brings this action, pursuant to the
Social Security Act (the "Act"), 1 seeking judicial review of a final decision by the
Commissioner of Social Security (the "Commissioner") denying her claim for
Supplemental Security Income ("SSI") disability benefits. Both parties have
moved for judgment on the pleadings. For the reasons set forth below, the
Commissioner's motion is granted, the decision denying benefits is affirmed, and
plaintiffs motion is denied.

See 42 U.S.C. § 405(g).
1

II.

BACKGROUND
A.

Procedural History
De La Cruz filed an application for SSI disability benefits on June 12,

2008, which was denied on August 22, 2008.2 The application alleged that she has
been disabled since February 7, 2008, due to depression, dizziness, chest pain,
back pain, and acid reflux.3 De La Cruz requested a hearing before an
Administrative Law Judge (“ALJ”), and ALJ Rosanne M. Dummer presided over a
video hearing on November 18, 2009.4 De La Cruz, who was represented by
counsel, and David A. Festa, a vocational expert, testified at the hearing. After the
hearing, the record was held open for De La Cruz to submit further documentation,
which was added to the record. She also underwent additional psychological
evaluation at the request of the New York State Office of Temporary and
Disability Assistance. The ALJ referred the medical evidence of record for further
review by a medical expert before issuing a decision on July 16, 2010, finding that
De La Cruz is not “under a disability” as defined in the Act.5 The ALJ’s decision
2

See Transcript of the Administrative Record (“Tr.”), filed as part of
the Commissioner’s Answer pursuant to 42 U.S.C. § 405(g), at 61-76.
3

See id. at 169, 193.

4

See id. at 36-60.

5

See id. at 20-35.
2

became the final decision of the Commissioner on April 24, 2012, when the
Appeals Council denied De La Cruz’s request for review of the ALJ’s decision.6
On March 2, 2013, plaintiff filed the instant action. The period at issue is from
June 12, 2008, the date De La Cruz filed her SSI application, through July 16,
2010, when the ALJ issued her decision.7
B.

The Administrative Record
The administrative record consists of non-medical evidence, medical

evidence, and hearing testimony.
1.

Non-Medical Evidence

De La Cruz is a childless twenty-six-year-old single woman who
speaks both English and Spanish.8 She was born on August 3, 1987, and was
twenty years old at the onset of her alleged disability.9 Prior to her alleged
disability, De La Cruz had attended one year of college and had worked in various

6

See id. at 1-3.

7

See 20 C.F.R. §§ 416.330, 416.335, 416.1481.

8

See Tr. at 40, 256.

9

See id. at 61.
3

customer and food services jobs,10 but her work never rose to the level of
substantial gainful activity (“SGA”).11 At the ALJ hearing, De La Cruz gave the
following testimony. She was last employed in the first quarter of 2008 in a donut
shop.12 She left this job due to depression and problems concentrating, focusing,
remembering, and interacting with others; she also reported back pain.13 De La
Cruz recalled being hospitalized as a child for mental problems and stated that she
saw doctors at Jacobi Hospital in 2007, who referred her to a psychiatrist and
therapist, after her condition worsened around the time of her mother’s death in a
fire.14 She saw Nurse Practitioner Tirza Santilli once a month, who prescribed and
managed her medications. She also saw a therapist weekly, though she had only

10

See id. at 40-41, 56-57, 170, 173. She stated that she worked parttime from December 2003 to February 2008 as a cashier at a fast food chain and a
salesperson in a bookstore. She reported elsewhere that she had also worked as a
cashier/stock person for Target, an office clerk, and a childcare professional for
New York City Administration for Children’s Services. See id. at 184-191.
11

See id. at 25. SGA is work that “involves doing significant physical
or mental activity.” 20 C.F.R. § 416.972. For wage-earners, SGA is defined by
gross earnings. See also Memorandum of Law in Support of Plaintiff’s Motion for
Judgment on the Pleadings (“Pl. Mem.”), at 3.
12

See Tr. at 161.

13

See id. at 41-42, 48, 169.

14

See id. at 44. Elsewhere it is noted that plaintiff was seen by Dr.
Anant Ahuja at Jacobi Medical Center on January 11, 2008. See id. at 215-217.
4

been seeing her current therapist for about “a month or two” because her previous
one resigned.15
She lives with her father, whom she described as a drug addict and
schizophrenic.16 She drank occasionally and had smoked marijuana – the last time
a month before the hearing.17 She did very little during the day, staying inside
most of the time, and experienced frequent crying spells.18 She cooked daily,
washed her own laundry, and saw her boyfriend once or twice per week. She was
able to use public transportation by herself, could walk ten blocks at a time, and
had no problem standing or using her hands. She felt she was not ready to return
to work and would have trouble getting a regular job.
2.

Medical Evidence: Physical Health
a.

Consulting Physicians
i.

Dr. Sharon Revan (August 14, 2008)

The Division of Disability Determination referred De La Cruz to Dr.
Sharon Revan, who performed a physical examination of plaintiff on August 14,
15

Id. at 45-46.

16

See id. at 50-51.

17

See id. at 45.

18

See id. at 52-54.
5

2008.19 Dr. Revan diagnosed back pain, as well as acid reflux, headaches, and
dizziness.20 The doctor opined that De La Cruz had mild limitations in climbing
stairs due to fatigue, and mild limitations in activities of daily living “depending
[on] her psychological state.”21 The doctor noted that plaintiff had no limitation
with respect to personal grooming, or in her speech, vision, or hearing. She also
found no limitation in plaintiff’s fine or gross motor activity using her upper
extremities, and no limitation in sitting, standing, or walking distances.22
Dr. Revan found that plaintiff had a normal gait and stance. She could
walk on heels and toes, squat fully, rise from a chair, and get on and off the
examination table without difficulty. She had full range of motion in her cervical
and lumbar spine as well as in her shoulders, elbows, forearms, wrists, hips, knees,
and ankles, with full strength throughout. De La Cruz also had intact hand and
finger dexterity, with full grip strength, and her joints were stable and non-tender.
Straight leg raising was negative bilaterally, and her lumbar x-rays were also

19

See id. at 244-248.

20

See id. at 244. She also diagnosed depression, anxiety, and insomnia
but stated that De La Cruz would be assessed by a psychologist for these problems.
21

Id. at 247.

22

See id.
6

negative.23 De La Cruz reported to Dr. Revan that she had “upper back pain for the
past two or three years, [which becomes] worse with crying or when she is
depressed and is better with a massage.”24 She also told Dr. Revan that she tired
after climbing three to four flights of stairs, but had no difficulty walking, sitting,
standing, or lying down. She stated that she was able to cook, clean, do laundry,
and shop.25
ii.

FEGS (September 2008)

De La Cruz also underwent a “biopsychosocial evaluation” at the
Federation Employment and Guidance Service (“FEGS”) in connection with an
application for public assistance.26 During the physical examination, she reported
suffering from back pain, for which she took ibuprofen.27 Plaintiff also reported
that she walked to the appointment, and that she could travel independently on
public transportation. She stated that she was able to perform activities of daily
living – including washing dishes and clothes, sweeping, mopping, vacuuming,

23

See id. at 245-247.

24

Id. at 244.

25

See id. at 245. De La Cruz also stated that she had used marijuana and
drank alcohol occasionally since the age of fifteen.
26

See id. at 255-267.

27

See Tr. at 266.
7

making a bed, cooking meals, shopping for groceries, bathing, and grooming
herself – but that she spends her day at home in bed watching television.28
The physical examination was unremarkable except for findings of an
“abnormal spine” and “mild mid-thoracic tenderness.”29 Despite these findings,
Dr. Oksana Luke assessed plaintiff’s level of mid-back pain during the
appointment as one, on a scale from zero to ten, and opined that De La Cruz could
stand for four to five hours in an eight-hour day; bend for one to three hours per
day; and lift, carry, and push less than ten pounds between ten and fifteen times per
hour.30
3.

Medical Evidence: Mental Health
a.

Treating Medical Professionals – Nurse Practitioner
Tirza Santilli (August 2008 - October 2009)

From August 2008 to October 2009, De La Cruz was treated by Nurse
Practitioner Tirza Santilli at the Clay Avenue Health Center in the Bronx, who
monitored plaintiff’s psychological condition and managed her medication.31

28

See id. at 261.

29

Id. at 265.

30

See id. at 265-266.

31

See id. at 273-295.
8

Santilli diagnosed De La Cruz with “Major Depressive Disorder, recurrent” at their
first meeting on August 18, 2008, though plaintiff rejected medication at that
time.32 Treatment notes indicate that De La Cruz was feeling “depressed [and]
irritable” and experiencing “crying spells, poor sleep, hopelessness, and occasional
passive [suicidal] [ideation],” though she reportedly also had adequate impulse
control and spontaneous, relevant, and goal-directed thoughts whose content was
unremarkable.33 At their next meeting on September 17, 2008, Santilli described
plaintiff’s presentation of symptoms as “[somewhat] contradictory.”34 On
examination, plaintiff’s mood was irritable and her affect constricted, and she
exhibited tense behavior, an uncooperative attitude, and poor reasoning. She had
clear, challenging speech with an “angry undertone,” and was also described as
“oddly related.”35 However, she was well-groomed, with unremarkable
psychomotor behavior and fair impulse control, judgment, and insight.36 She also
had logical, concrete thought processes with unremarkable content, no signs of
32

Tr. at 277. Santilli also recorded a history of bipolar disorder (not
otherwise specified) and a “rule-out” diagnosis of alcohol and cannabis abuse,
though this was omitted in subsequent treatment notes.
33

Id. at 273, 276.

34

Id. at 278.

35

Id. at 279.

36

See id. at 278.
9

psychosis or mania, and no suicidal or homicidal ideation. Her memory was intact,
and her intellect was described as average. The diagnosis was “Recur[rent]
Depr[ession] Psych - Severe” and “Personality Disorder [not otherwise specified],”
and she was prescribed Lexapro and Ambien.37
In October 2008, De La Cruz reported to Santilli of “minimal
improvement” in her symptoms, though she admitted that she had not taken her
medication.38 In November, she claimed to be in compliance with her medication
as prescribed and reported improved sleep and mood, though she continued to feel
depressed, lonely, and irritable, and was experiencing side effects of occasional
daytime sedation and nausea.39 In December, she again reported improved sleep
and mood, but without medication side effects, and stated that she had started
going to church, was getting along with her family, and continued to consider
going back to school. Santilli observed that her mood was “euthymic” and her
affect was no longer constricted. Santilli discontinued the Ambien prescription.40

37

Id. at 279. De La Cruz had previously been prescribed Seroquel by
her primary care physician but complained about its side effects.
38

Id. at 280.

39

See id. at 282.

40

Id. at 284.
10

At her next appointment on February 23, 2009, De La Cruz’s mood
was “depressed,” and she reported having low motivation.41 She stopped going to
church, had not reapplied for school, and was having problems with her father and
boyfriend. Her speech and affect were otherwise “appropriate,” and her attitude
cooperative.42 In May, plaintiff stated that she had stopped therapy two months
earlier, after her therapist resigned, and had run out of medication in April.43 She
felt depressed and overwhelmed and described occasional crying spells and sleep
problems, as well as a recent domestic violence incident with her boyfriend.
Santilli re-prescribed Ambien and scheduled an appointment with a new
therapist.44 In June, De La Cruz reported feeling depressed daily and having low
energy and motivation, despite being compliant with her medication and receiving
counseling, though her sleep was improved.45 Santilli increased her Lexapro
dosage and discontinued Ambien once again.46 De La Cruz did not see Santilli
again until October 2009, even though plaintiff had run out of medication three
41

Id. at 286.

42

Id.

43

See id. at 288.

44

See id. at 289.

45

See id. at 290.

46

See id.
11

months earlier, and presented with a “depressed mood, hypersomulence, low
energy, crying spells, and isolation.”47
On a mental health evaluation form dated October 23, 2009, Santilli
confirmed that her patient had “Major Depressive Disorder, recurrent” with signs
and symptoms of “depressed mood, low energy, isolation, and crying spells.”48
She indicated that plaintiff’s condition would “markedly interfere” with her ability
to “[r]espond appropriately to work pressures in a job with simple, repetitive tasks
[and to] supervisors and fellow workers” and “[p]erform consistently during the
work day without intrusion of mental illness symptoms,” but not with her ability to
“[u]nderstand, remember, and carry out simple work instructions.”49
b.

Consulting Physicians and Psychologists
i.

Dr. Herb Meadow (July 22, 2008)

Dr. Herb Meadow performed a psychiatric examination on July 22,
2008 at the request of the Social Security Administration (“SSA”), and diagnosed
De La Cruz with adjustment disorder with depressed mood.50 He noted that his
47

Id. at 292.

48

Id. at 294.

49

Id. at 294-295.

50

See id. at 218-221.
12

examination findings were consistent with psychiatric problems, but stated that “in
itself, this does not appear to be significant enough to interfere with the claimant’s
ability to function on a daily basis” and that plaintiff “would be able to perform all
tasks necessary for vocational functioning.”51
De La Cruz described symptoms of “depression with dysphoric mood,
crying spells, irritability, low energy, and difficulty concentrating,” as well as
occasional anxiety.52 She declared that she had “no intent to harm herself,” but
recalled having had suicidal thoughts in the past.53 On examination, De La Cruz’s
mood was depressed, but she was otherwise cooperative and fully-oriented, with an
adequate manner of relating and appropriate eye contact. She was well-groomed,
with appropriate, neat, and casual attire. Her gait, posture, and motor behavior
were normal. Her speech was fluent and clear, her expressive and receptive
language skills were adequate, and her thoughts were coherent and goal-directed.
There was no evidence of hallucinations, delusions, or paranoia, and her affect was
appropriate. De La Cruz’s attention, concentration, and memory were intact, and

51

Id. at 220. De La Cruz again reported that she is able to complete
daily living activities but that she spends the majority of her time watching
television, listening to the radio, and reading.
52

Id. at 218-219.

53

Id. at 218.
13

her cognitive functioning was described as average, although her general fund of
information was “somewhat limited.”54
ii.

FEGS (September 2008)

A team at FEGS, including Dr. Oksana Luke, conducted a
“biopsychosocial evaluation” and diagnosed “depressive d[isorde]r.”55 Her mood
appeared “sad” and her affect “constricted,” though she was also calm and
cooperative.56 She reported feeling depressed due to her mother’s death the
previous year and having problems sleeping, concentrating, and with her memory;
she also felt isolated, was unable to experience pleasure from activities she usually
found enjoyable, and had a low appetite.57 De La Cruz denied current homicidal
ideation and hallucinations, and treatment notes also indicate that she denied
suicidal ideation.58 Plaintiff stated that she could socialize, had friends, and

54

Id. at 219-220.

55

Id. at 265.

56

Id.

57

See id. at 260, 265.

58

See id. The issue of suicidal ideation is unclear, since treatment notes
also record De La Cruz’s statements that she “thinks about suicide all the time,”
including “jumping from the fire escape, cutting [herself], and jumping in front of
oncoming traffic,” though she “does not go through with it because she does not
want to go to hell.” She also described two previous suicide attempts, including
one when she was ten years old, and a more recent attempt in March of 2008 where
14

obtained emotional support from her sister-in-law, but also that it was “very
difficult” to “work, take care of things at home, or get along with other people” due
to her psychological state.59 Dr. Luke placed restrictions on De La Cruz’s ability to
be around noise, groups of people, and enclosed spaces.60
iii.

Dr. Howard Tedoff (March 22, 2010)

Psychologist Howard Tedoff examined De La Cruz on March 22,
2010 in response to the New York State Office of Temporary and Disability
Assistance’s request for an Intelligence Evaluation.61 Plaintiff had traveled to the
appointment alone, using public transportation.62 She wore glasses, but stated that
her hearing was adequate and her balance and coordination were fair. She also
stated that her eating habits were inconsistent and she slept poorly, but that her
personal grooming and hygiene were normal. She reported helping her father with

she tied a belt around her neck, though she took it off and did not go to the
hospital. Id. at 260.
59

See id. at 260-261.

60

See id. at 266.

61

See id. at 296-302.

62

See id. at 296.
15

household maintenance and seeing friends on occasion, but stated that she mostly
stays home watching television.63
Dr. Tedoff noted that De La Cruz was cooperative, with an adequate
manner of relating, social skills, and overall presentation.64 Her grooming was
adequate, her posture and gait were normal, her eye contact was appropriate, and
her speech was intelligible. Her conversation was interactive, relevant, and goaldirected.65 Wechsler Adult Intelligence Scale testing suggested a full scale IQ
score of 67.66 Dr. Tedoff diagnosed a learning disorder – particularly in math,
mildly deficient to borderline intellectual functioning, and insomnia.67
Dr. Tedoff wrote that plaintiff was “unable to maintain a regular
schedule,” that her decision-making skills “seem[ed] to be questionable,” and that
she “might have difficulty learning and performing complex tasks because of
cognitive deficits.” He also stated that her ability to “look for, obtain and sustain

63

See id.

64

See id. at 297.

65

See id.

66

See id. at 298.

67

See id. at 299. Testing indicated that De La Cruz reads in terms of
word recognition at a junior-high-school level and that her math skills are limited
to basic multiplication. See id. at 297.
16

herself in gainful employment [was] guarded . . . because of her current psychiatric
and cognitive issues, as well as an attitude that suggest[ed] she [could not]
concentrate or follow instructions effectively.” Dr. Tedoff nonetheless opined that
“[r]elative to vocational function[ing], the claimant can follow and understand
simple directions and instructions and perform simple tasks, [and h]er attention and
concentration skills are up to those tasks.” He further stated, “[s]he has the
capacity to relate adequately with others, [but] it remains to be seen if she can deal
effectively with stress in the workplace.”68
Dr. Tedoff also completed a form to assess De La Cruz’s mental
residual functional capacity (“RFC”).69 He reported that she had either no
limitations or minimal limitations in her ability to understand, remember, and carry
out simple instructions, or make judgments on simple work-related decisions.70 He
assessed mild restrictions in her ability to understand, remember, and carry out
complex instructions; make judgments on complex work-related decisions; and
interact appropriately with the public, supervisors, and co-workers.71 He also

68

Id.

69

See id. at 300-302.

70

See id. at 300.

71

See id. at 300-301.
17

assessed a moderate restriction in her ability to respond appropriately to usual
work situations and changes in a routine work setting.72 He based his assessments
on plaintiff’s reported depression, reaction to stress, poor concentration, recent
isolation, “intensive” psychiatric care, and history of a suicide attempt.73
c.

Reviewing Physicians
i.

Dr. T. Harding (August 20, 2008)

Dr. T. Harding, a state agency review psychologist, reviewed the
evidence of record on August 20, 2008, and assessed that plaintiff had mental
impairments that were “not severe.”74
ii.

Dr. Stuart Gitlow (May 30, 2010)

On May 30, 2010, psychiatrist Dr. Stuart Gitlow reviewed the medical
evidence of record and responded to interrogatories propounded by the ALJ.75 Dr.
Gitlow graduated from the Mount Sinai School of Medicine at New York
University and completed his residency in psychiatry at the University of
72

See id. at 301.

73

Id. The report states that she was hospitalized in 1995 and again in
2007 for a suicide attempt. See id. at 297.
74

Id. at 222. He only responded to this one question; the rest of the
form was blank. See id. at 222-235.
75

See id. at 313-324.
18

Pittsburgh. He is board certified in general psychiatry, addiction psychiatry, and
forensic psychiatry.76 In assessing De La Cruz’s condition, Dr. Gitlow considered
the results of Dr. Revan’s and Dr. Meadow’s examinations, noting that plaintiff’s
report of a suicide attempt in March 2008 did not appear in the other medical
histories provided.77
Dr. Gitlow opined that Santilli’s report, which indicated the presence
of a depressed mood, was “not consistent with anything more than a mild level of
symptom severity, one of which would not typically be impairing” and assessed
that the limitations Santilli described were not supported by the record, including
the relatively conservative treatment provided and relatively mild findings upon
examination.78 Dr. Gitlow reported that Dr. Meadow’s July 2008 evaluation
supported the presence of “[n]ormal [b]ereavement,” which was “again not
typically impairing.”79 He also concluded that Dr. Revan’s August 2008 report
indicated no more than a mild impairment in activities of daily living. Dr. Gitlow
opined that the results of Dr. Tedoff’s IQ testing did not establish the presence of a

76

See id. at 329.

77

See id. at 314.

78

Id. at 314-315.

79

Id.
19

psychiatric illness or condition – and could be consistent with depression or
marijuana use – because plaintiff had finished both high school and a year of
college.80 Because he noted that the record did not clearly establish a cause for any
impairment, Dr. Gitlow declined to complete a more detailed medical source
statement assessing plaintiff’s limitations as requested by the ALJ.81
C.

The ALJ’s Decision and Analysis
The ALJ applied the five-step sequential process to evaluate De La

Cruz’s claim. At step one of her analysis, the ALJ determined that De La Cruz had
not engaged in SGA since June 12, 2008.82 Next, at step two, the ALJ concluded
that claimant’s back pain was severe, while her acid reflux and heartburn were
not.83 However, the ALJ determined that claimant’s medically determinable
mental impairments, including dysthymia depression, adjustment disorder with
depressed mood, anxiety, and insomnia, as well as marijuana use, are not severe
because individually or in combination they “do not cause more than minimal

80

See id. Dr. Gitlow also noted that her file did not include any school

records.
81

See id. at 308, 316, 318.

82

See id. at 25.

83

See id. at 25-26.
20

limitation in the claimant’s ability to perform basic mental work activities.”84 At
the third step, the ALJ determined that “[t]aking all of the claimant’s impairments
alone and in combination, to include those deemed not severe, the impairments of
record do not meet or equal any Listing of Impairments.”85 At step four, the ALJ
found that De La Cruz had the RFC “to perform the full range of medium work” as
defined by statute.86 After summarizing plaintiff’s testimony at the hearing and the
medical evidence in the record, the ALJ found that “the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms” but that the “overall evidence does not indicate that the claimant’s
impairments are as severe as alleged or that she is unable to work.”87 The ALJ
found that De La Cruz’s mental impairments did not cause more than minimal
limitation in her ability to perform basic work activities. Santilli’s treatment notes
“appear to indicate mild severity,” and Dr. Meadow’s diagnosis of adjustment
disorder with depressed mood “supports the presence of normal bereavement,

84

Id. at 26.

85

Id.

86

See id. at 27. Medium work involves lifting no more than fifty
pounds at a time with frequent lifting or carrying of objects weighing up to twentyfive pounds. If someone can do medium work, she can also do light and sedentary
work. See 20 C.F.R. § 416.967(c).
87

Tr. at 30-31.
21

which is not typically impairing.”88 Further, Dr. Meadow found that plaintiff’s
symptoms “[did] not appear significant enough to interfere with the claimant’s
ability to function on a daily basis.”89 The ALJ relied heavily on the opinion of Dr.
Gitlow, “a medical expert recognized by the Commissioner of Social Security,
with a specialty in . . . psychiatry,” who concluded that De La Cruz did not have an
established medically determinable mental impairment.90 Finally, the ALJ
concluded that De La Cruz’s own statements “concerning the intensity, persistence
and limiting effects of [her] symptoms [were] not credible to the extent they [were]
inconsistent” with the objective medical evidence.91
At the final step of the analysis, the ALJ concluded that claimant’s
age, education, work experience, and RFC allow her to perform other work in the
national economy, which “exists in significant numbers.”92 Because claimant is a
“younger individual” with a high school education and is able to communicate in

88

Id. at 31.

89

Id.

90

Id. at 31-32.

91

Id. at 30. Furthermore, her credibility as a witness at the ALJ hearing
was “poor” and her demeanor was “consistent with the limitations established in
her [RFC].” Id.
92

Id. at 35. See id. at 33.
22

English, and given the RFC finding for the full range of medium work – which
“includes the functional capacity to perform sedentary, light, and medium work” –
the ALJ determined that De La Cruz “has not been under a disability . . . since June
12, 2008,” and denied her claim for benefits.93
III.

LEGAL STANDARD
A.

Standard of Review
1.

Substantial Evidence Standard

In reviewing an ALJ’s decision, a district court does not conduct a de
novo review of the ALJ’s decision.94 The ALJ must set forth the crucial factors
supporting her decision with sufficient specificity,95 but a district court must not
disturb the ALJ’s decision if “correct legal standards were applied” and
“substantial evidence supports the decision.”96 “Substantial evidence is ‘more than

93

Id. at 33, 35.

94

See Petrie v. Astrue, 412 Fed. App’x 401, 403 (2d Cir. 2011). See
also Brickhouse v. Astrue, 331 Fed. App’x 875, 876 (2d Cir. 2009); Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).
95

See McCallum v. Commissioner of Soc. Sec., 104 F.3d 353 (Table) (2d
Cir. 1996); Ramos v. Barnhart, No. 02 Civ. 3127, 2003 WL 21032012, at *6
(S.D.N.Y. May 6, 2003).
96

Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). Accord 42
U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”). Accord Halloran,
23

a scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”97
“‘To determine whether the findings are supported by substantial
evidence, the reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be
drawn.’”98 Even if there is substantial evidence for the claimant’s position, the
Commissioner’s decision must be affirmed when substantial evidence exists to
support it.99 Moreover, the Commissioner’s findings of fact, as well as the
inferences and conclusions drawn from those findings, are conclusive even in cases
where a reviewing court’s independent analysis of the evidence might differ from
the Commissioner’s analysis.100

362 F.3d at 31.
97

Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Accord Halloran, 362 F.3d at
31; Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
98

Tarsia v. Astrue, 418 Fed. App’x 16, 17 (2d Cir. 2011) (quoting Snell
v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999)).
99

See Davila-Marrero v. Apfel, 4 Fed. App’x 45, 46 (2d Cir. 2001)
(“‘Where there is substantial evidence to support either position, the determination
is one to be made by the factfinder.’”) (quoting Alston v. Sullivan, 904 F.2d 122,
126 (2d Cir. 1990)). See also Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y.
2001).
100

See Hartwell v. Barnhart, 153 Fed. App’x 42, 43 (2d Cir. 2005).
24

2.

Full and Fair Hearing

However, the reviewing court must be satisfied “that ‘the claimant has
had a full and fair hearing under the Secretary’s regulations and in accordance with
the beneficent purposes of the Act.’”101 In this regard, the ALJ must affirmatively
develop the record in light of the essentially non-adversarial nature of a benefits
proceeding.102 “This duty arises from the Commissioner’s regulatory
obligations,”103 which include developing plaintiff’s “complete medical history,”
and making “every reasonable effort” to help the plaintiff get the required medical
reports.104 This duty “exists even when . . . the claimant is represented by

101

Echevarria v. Secretary of Health and Human Services, 685 F.2d 751,
755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Education and Welfare,
463 F.2d 38, 43 (2d Cir. 1972)). Accord Jones v. Apfel, 66 F. Supp. 2d 518, 522
(S.D.N.Y. 1999) (citing Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (explaining
that the Act must be liberally construed because it is a remedial statute that is
intended to include, rather than exclude, potential recipients of benefits)).
102

See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citing Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
103

Pratts, 94 F.3d at 37.

104

20 C.F.R. § 404.1512(d).
25

counsel.”105 “Where there are gaps in the administrative record, remand to the
Commissioner for further development of the evidence is appropriate.”106
B.

Five-Step Process
1.

Physical Impairment

Pursuant to the Act, the SSA has established a five-step sequential
process to determine whether a claimant is disabled.107 At step one, the ALJ must
decide whether the claimant is engaging in SGA.108 Generally, if the claimant has
earnings from employment above a certain level, she is presumed to be able to
engage in SGA and is deemed not disabled.109 If the claimant is not engaging in
SGA, the analysis continues.

105

Pratts, 94 F.3d at 37 (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir.

1996)).
106

Jones, 66 F. Supp. 2d at 524 (citing Rosa v. Callahan, 168 F.3d 72, 82
(2d Cir. 1999)). Accord Richardson v. Astrue, No. 09 Civ. 1841, 2009 WL
4793994, at *8 (S.D.N.Y. Dec. 14, 2009) (“If the ALJ’s rationale could be
rendered more intelligible through further findings or a more complete explanation,
remand is appropriate.”) (citing Pratts, 94 F.3d at 39).
107

See 20 C.F.R. § 404.1520(a)(4).

108

See id. § 404.1520(a)(4)(i).

109

See id. § 404.1520(b).
26

At step two, the ALJ must determine whether the claimant has a
“severe” medically determinable impairment or combination of impairments.110
An impairment or combination of impairments is severe if it significantly limits the
claimant’s ability to perform basic work-related activities.111 An impairment is not
severe when the evidence establishes only a slight abnormality or a combination of
slight abnormalities that would have no more than a minimal effect on the
claimant’s ability to work.112 If the claimant has a severe impairment or
combination thereof, the analysis must proceed. If no severe impairment is found,
the claimant is deemed not disabled.
At step three, the ALJ determines whether the claimant’s impairment
meets or medically equals the criteria of a listed impairment.113 If the impairment
is contained in the Listings, the claimant is considered disabled and the ALJ does

110

Id. § 404.1520(a)(4)(ii). See also id. § 404.1520(c).

111

See id. §§ 404.1520(c); 404.1521(b) (defining basic work activities).

112

See id. § 404.1521(a).

113

See id. Part 404, subpart P, Appendix 1 (hereinafter the “Listings” or
“Listing of Impairments”). The Listings define impairments that would prevent an
adult, regardless of her age, education, or work experience, from performing any
gainful activity, not just SGA. See id. § 404.1525(a) (stating that the purpose of
the Listings is to describe impairments “severe enough to prevent an individual
from doing any gainful activity”).
27

not reach steps four or five.114 If the impairment does not meet the Listings, the
analysis continues.
At step four, the ALJ determines the claimant’s RFC,115 which is “the
most [claimant] can still do despite [her] limitations,” with respect to past relevant
work.116 In making this finding, the ALJ must consider all of the claimant’s
impairments, including any “related symptoms, such as pain, [which] may cause
physical and mental limitations that affect what [claimant] can do in a work
setting.”117 Then, the ALJ must determine whether the claimant has the RFC to
perform any relevant work that the claimant has done in the past.118 If the claimant
is unable to do any past relevant work, the analysis proceeds.119
At the last step of the evaluation, step five, the ALJ must determine
whether the claimant’s RFC, age, education and work experience allow her to

114

See id. § 404.1520(d), (a)(4).

115

See id. § 404.1520(e), 404.1545.

116

Id. § 404.1545(a)(1).

117

See id.

118

See id. § 404.1520(f).

119

See id.
28

perform any other work in the national economy.120 If so, the claimant is not
disabled. But if she is unable to do other work, the claimant is disabled.
In making this determination, the ALJ considers whether a claimant
has exertional or non-exertional impairments or a combination of both.
“Exertional” limitations affect a claimant’s ability “to meet the strength demands
of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling),” and
“non-exertional” limitations affect the claimant’s ability to meet job demands other
than those relating to strength.121 When a claimant only has exertional limitations,
the ALJ makes her disability determination by reference to the Commissioner’s
Medical-Vocational Guidelines (the “Grids”), a matrix of exertional capacity levels
and vocational characteristics.122 However, “[t]he Grids are inapplicable in cases
120

See id. § 404.1520(g)(1).

121

See id. § 404.1569a(b), (c)(1) (listing non-exertional impairments: “(i)
You have difficulty functioning because you are nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating; (iii) You have
difficulty understanding or remembering detailed instructions; (iv) You have
difficulty in seeing or hearing; (v) You have difficulty tolerating some physical
feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural functions of some
work such as reaching, handling, stooping, climbing, crawling, or crouching”).
122

See 20 C.F.R. Part 404, Subpart P, Appendix 2. “Each numbered rule
in the appendix resolves the issue of capability to do other work by addressing
specific combinations of the factors (i.e., RFC, age, education, and work
experience) that determine capability to do work other than that previously
performed.” SSR 83-10, 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983). In this
29

where the claimant exhibits a significant [or non-negligible] non-exertional
impairment (i.e., an impairment not related to strength).”123
Although the claimant generally continues to have the burden of
proving disability, a limited burden of production shifts to the Commissioner at
step five. To support a finding that the claimant is not disabled at this step, the
Commissioner must provide evidence demonstrating that other work exists in
significant numbers in the national economy that the claimant can perform, given
her RFC, age, education and work experience.124
2.

“Special Technique” Applied to Mental Impairments

opinion, I cite to several Social Security rulings; such rulings “are entitled to
deference except when they are plainly erroneous or inconsistent with the Social
Security Act.” Gordon v. Shalala, 55 F.3d 101, 105 (2d Cir. 1995) (quotation
marks omitted).
123

Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (“We have
explained that the ALJ cannot rely on the Grids if a non-exertional impairment has
any more than a ‘negligible’ impact on a claimant’s ability to perform the full
range of work, and instead must obtain the testimony of a vocational expert.” A
nonexertional impairment is non-negligible “when it so narrows a claimant’s
possible range of work as to deprive [her] of a meaningful employment
opportunity.”) (quotation marks and alterations omitted).
124

See 20 C.F.R. §§ 404.1520(g), 404.1560(c).
30

“[T]he Commissioner has promulgated additional regulations
governing evaluations of the severity of mental impairments.”125 The regulations
require the application of a “special technique” at steps two and three and at each
level of the administrative review process.126 The ALJ “must first evaluate
[claimant’s] pertinent symptoms, signs, and laboratory findings to determine
whether [claimant has] a medically determinable mental impairment[.]”127 If a
medically determinable mental impairment is found, the ALJ “must specify the
symptoms, signs, and laboratory findings that substantiate the presence of the
impairment[ or impairments] and document [her] findings in accordance with
paragraph (e) of this section.”128 The ALJ must then “rate the degree of functional
limitation resulting from the impairment(s) in accordance with paragraph (c),”129
which specifies four broad functional areas: (1) activities of daily living; (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of

125

Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citing 20 C.F.R. §

404.1520a).
126

Id.

127

20 C.F.R. § 404.1520a(b)(1).

128

Id.

129

Id. § 404.1520a(b)(2).
31

decompensation.130 The first three areas are rated on a five-point scale, none, mild,
moderate, marked, and extreme; and the fourth area is rated on a four-point scale,
none, one or two, three, and four or more.131 At step two, “if the degree of
limitation in each of the first three areas is rated ‘mild’ or better, and no episodes
of decompensation are identified, then the reviewing authority generally will
conclude that the claimant’s mental impairment is not ‘severe’ and will deny
benefits.”132 But if the claimant’s mental impairment is deemed severe, the ALJ
must determine at step three whether the impairment meets or equals the severity
of a mental disorder identified in the Listings.133 The ALJ’s written decision must
reflect application of the technique, including “a specific finding as to the degree of
limitation in each of the” four functional areas.134 Finally, an analysis under the

130

Id. § 404.1520a(c)(3). “Episodes of decompensation are
exacerbations or temporary increases in symptoms or signs accompanied by a loss
of adaptive functioning, as manifested by difficulties in performing activities of
daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace.” Kohler, 546 F.3d at 266 n.5 (quotation marks omitted).
131

See 20 C.F.R § 404.1520a(c)(4).

132

Kohler, 546 F.3d at 266 (quoting 20 C.F.R. § 404.1520a(d)(1)).

133

See 20 C.F.R. § 404.1520a(d)(2).

134

Id. § 404.1520a(e)(2). See id. § 416.920a(e)(4) (“The decision must
show the significant history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a conclusion about the
severity of the mental impairment(s).”).
32

four broad categories is not a substitute for an RFC determination, which requires a
more detailed assessment.135
C.

Medical Sources and the “Treating Physician” Rule
“The term ‘medical sources’ refers to both ‘acceptable medical

sources’ and other health care providers who are not ‘acceptable medical
sources.’”136 Medical sources include licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speechlanguage pathologists.137 Medical sources who are not acceptable medical sources
include nurse practitioners, physician assistants, as well as other sources.138
Only acceptable medical sources can be relied on to establish the
existence of a medically determinable impairment or be considered treating sources
whose opinions are entitled to controlling weight under the “treating physician”
rule.139 Under the “treating physician” rule, “the medical opinion of a claimant’s

135

See, e.g., Golden v. Colvin, No. 12 Civ. 665, 2013 WL 5278743, at *3
(N.D.N.Y. Sept. 18, 2013).
136

SSR 06-03p, 2006 WL 2329939, at *1 (S.S.A. Aug. 9, 2006) (“SSR
Medical Sources”) (citing 20 C.F.R. §§ 404, 1512, 416.912).
137

See id.

138

See id. at *2.

139

See id. at *2-3.
33

treating physician is given controlling weight if it is well supported by medical
findings and not inconsistent with other substantial record evidence.”140 When a
treating physician’s opinion is not given controlling weight, the regulations require
the ALJ to consider several factors in determining how much weight it should
receive. These factors include: (1) the frequency of examination and the length,
nature, and extent of the treatment relationship; (2) the evidence in support of the
opinion; (3) the opinion’s consistency with the record as a whole; and (4) whether
the opinion is from a specialist.141 After considering the above factors, the ALJ
must “‘comprehensively set forth [her] reasons for the weight assigned to a treating

140

Shaw v. Carter, 221 F.3d 126, 134 (2d Cir. 2000) (citing 20 C.F.R. §
416.927(d)(2)). Accord 20 C.F.R. § 404.1527(d)(2) (“If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported 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.”). “Because mental disabilities are
difficult to diagnose without subjective, in-person examination, the treating
physician rule is particularly important in the context of mental health.” Roman v.
Astrue, No. 10 Civ. 3085, 2012 WL 4566128, at *18 (E.D.N.Y. Sept. 28, 2012)
(citing Canales v. Commisioner of Soc. Sec., 698 F. Supp. 2d 335, 342 (E.D.N.Y.
2010)).
141

See 20 C.F.R. § 404.1527(d)(2).
34

physician’s opinion.’”142 Failure to provide “‘good reasons for not crediting the
opinion of a claimant’s treating physician’” is grounds for remand.143
While information from medical sources that are not acceptable
medical sources cannot establish the existence of an impairment and are not subject
to the treating physician rule, the information and opinions they provide are
relevant when assessing the severity of an impairment and a claimant’s RFC.144
Indeed,
[w]ith the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are
not “acceptable medical sources,” such as nurse practitioners,
physician assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians
and psychologists. Opinions from these medical sources, who are
not technically deemed “acceptable medical sources” under our
rules, are important and should be evaluated on key issues such as

142

Newbury v. Astrue, 321 Fed. App’x 16, 17 (2d Cir. 2009) (quoting
Halloran, 362 F.3d at 33). See also 20 C.F.R. § 404.1527(d)(2) (stating that the
agency “will always give good reasons in our notice of determination or decision
for the weight we give [the claimant’s] treating source’s opinion”).
143

Newbury, 321 Fed. App’x at 17 (quoting Snell, 177 F.3d at 133).
Accord Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“Commissioner’s failure
to provide ‘good reason’ for apparently affording no weight to the opinion of
plaintiff’s treating physician constituted legal error.”).
144

See SSR Medical Sources, 2006 WL 2329939, at *2-3.
35

impairment severity and functional effects, along with the other
relevant evidence in the file.145
In addition, it may be appropriate to give more weight to the opinion of such a
medical source where “she has seen the individual more often than the treating
source and has provided better supporting evidence and a better explanation” for
her opinion.146
D.

Claimant Credibility
An ALJ is permitted to consider an individual’s activity level in

making a determination of credibility. The ALJ will consider “all of the medical
and non-medical information in determining credibility.”147 Additionally, while
“‘[a] claimant with a good work record is entitled to substantial credibility when
claiming an inability to work because of a disability,’”148 the ALJ “‘is not required
to accept the claimant’s subjective complaints without question; [s]he may exercise

145

Id. at *3.

146

Id. at *4.

147

20 C.F.R. § 404.1529(c)(3)(i). See also Rosado v. Shalala, 868 F.
Supp. 471, 472-73 (E.D.N.Y. 1994) (holding that an ALJ may rely on a claimant’s
activities of daily living as substantial evidence in support of his determination).
148

Montaldo v. Astrue, No. 10 Civ. 6163, 2012 WL 893186, at *17
(S.D.N.Y. Mar. 15, 2012) (quoting Horan v. Astrue, 350 Fed. App’x 483, 485 (2d
Cir. 2009)).
36

discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.’”149 In weighing the credibility of the claimant’s
testimony, her work history is just one of many factors the ALJ may consider.150
IV.

DISCUSSION
A.

The ALJ Applied the Correct Legal Procedures and Her Findings
Are Supported by Substantial Evidence
1.

The ALJ Gave Appropriate Weight to Dr. Tedoff’s
Findings

Dr. Tedoff concluded that De La Cruz’s prognosis for obtaining and
maintaining employment is “guarded” because of her psychiatric and cognitive
issues.151 De La Cruz argues that it was error for the ALJ to place little weight on
Dr. Tedoff’s findings based on Dr. Gitlow’s suggestion that the IQ results were
inconclusive because they only showed “the patient’s condition in a narrow slice of
time” and were not “part of a longitudinal picture that could give the results added
meaning,” such as a “medical/psychiatric workup.”152 According to De La Cruz,

149

Id. (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)).

150

See id. (citing Schaal, 134 F.3d at 502).

151

Tr. at 299.

152

Pl. Mem. at 21 (quotation marks omitted).
37

Dr. Tedoff’s findings demonstrated that the “record needed to be augmented” to
develop this longitudinal picture.153
These arguments are unavailing. First, the ALJ did not err in placing
limited weight on Dr. Tedoff’s findings because they were inconsistent with the
medical evidence, De La Cruz’s past educational and employment history,154 the
substance of her testimony, and her demeanor while testifying. For example, as
Dr. Tedoff recognized, the intelligence scores were “not consistent with her alleged
year of college and reading levels in terms of work recognition.”155 Nor were they

153

Id.

154

For example, De La Cruz worked at a bookstore as a cashier and also
organized the books on the shelves and in the stockroom. See Tr. at 56 (stating that
she thought she was “good” at the job but that she was not retained because the
work was “seasonal”). She also completed high school and one year of college,
and did not report any difficulty while in school. See id. at 40, 173.
155

Id. at 298.
38

consistent with Dr. Meadow’s evaluation;156 Dr. Revan’s evaluation;157 Santilli’s
opinion and treatment notes;158 or the FEGS records.159
Second, the ALJ made a reasonable effort to develop the record, and
De La Cruz failed to submit evidence to support Dr. Tedoff’s findings. Prior to the
hearing, the ALJ advised De La Cruz of her right to obtain and present evidence.160
The “Disability Worksheet” shows that multiple attempts were made to obtain

156

See id. at 218-221. Dr. Meadow concluded both that De La Cruz’s
mental impairments were not severe and that she would be able to perform “all
tasks necessary for vocational functioning.” Id. at 220. This opinion is supported
by his examination notes, which indicated, among other things, that plaintiff had
adequate language skills and manner of reporting, “average” cognitive functioning,
and intact memory, attention, and concentration. Id. at 219. The opinion of
examining physicians may constitute substantial evidence. See Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (holding that opinion of examining
physician constituted substantial evidence that outweighed opinion of treating
nurse). See also Brown v. Commissioner of Soc. Sec., No. 13 Civ. 827, 2014 WL
783565, at *18 (S.D.N.Y. Feb. 28, 2014) (“The ALJ properly concluded that Dr.
Meadow’s opinion constituted evidence substantial and sufficient to contradict the
opinion of Dr. Adams.”) (quotation marks and alterations omitted).
157

See, e.g., Tr. at 247 (De La Cruz has only mild limitations with
respect to her activities of daily living).
158

For example, Santilli’s notes reflect that De La Cruz was a “straight A
student” in college with no history of special education, and she repeatedly found
that De La Cruz had an “average” intellect. Id. at 275, 280, 282, 284, 286, 288.
159

See, e.g., id. at 261 (“[De La Cruz] reports that she is able to complete
all her [activities of daily living]. [De La Cruz] reports that she enjoys writing.”).
160

See id. at 140-141.
39

medical records from De La Cruz’s treating sources.161 Furthermore, at the
conclusion of the hearing before the ALJ, the record was held open for De La Cruz
to submit additional medical records from the therapists and other medical sources
she identified at the hearing.162 However, on February 10, 2010, De La Cruz’s
attorney only mailed Santilli’s treatment notes to the ALJ, and did not mention
whether he made an effort to obtain records from other sources.163 Moreover, on
July 16, 2010, a month before she issued her decision, the ALJ held the record
open a second time, for the specific purpose of providing De La Cruz an
opportunity to respond to the Tedoff and Gitlow materials. The ALJ’s letter
explained that De La Cruz could request a supplemental hearing to present
additional evidence and ask the ALJ to issue subpoenas for the production of
witnesses and records.164 However, there is no indication that De La Cruz or her
counsel followed up on this invitation. Notwithstanding the ALJ’s duty to develop

161

See id. at 249-254.

162

At the hearing, the ALJ asked De La Cruz’s counsel to obtain records
from the therapists reflected in Nurse Santilli’s notes. See id. at 43, 46. De La
Cruz’s counsel said that he would submit additional reports in two weeks. See id.
at 60. The ALJ said that she would review the submission of additional materials
and “take under advisement what additional development, if any, is required.” Id.
163

See id. at 271.

164

See id. at 212-213.
40

the record, the Commissioner’s Regulations explicitly place the burden of
supplying all relevant medical evidence on the claimant.165 There is no excuse for
De La Cruz’s failure to submit records and opinions, including in response to Dr.
Tedoff’s findings or Dr. Gitlow’s opinion characterizing those findings.166 In
short, the ALJ adequately explained the basis for placing limited weight on Dr.
Tedoff’s findings and the ALJ’s conclusions are otherwise supported by substantial
evidence.
2.

The ALJ Considered Nurse Santilli’s Notes and Opinion
and Dr. Luke’s Findings

De La Cruz contends that the ALJ failed to consider relevant
evidence, arguing that the “record contains multiple evaluations [ ] showing
impairing mental conditions,” including Nurse Santilli’s clinical notes, diagnoses,

165

See 20 C.F.R. §§ 404.1512, 416.912(c).

166

See, e.g., Weingarten v. Apfel, No. 98 Civ. 2475, 1999 WL 144486, at
*4 (S.D.N.Y. Mar. 17, 1999) (finding that the ALJ “made every reasonable effort
to fully develop the record” where he “consented to plaintiff’s attorney’s request to
keep the record open one week after the hearing to enable the attorney to submit
any additional information”); Robinson v. Chater, No. 94 Civ. 0057, 1996 WL
5067, at *7 (S.D.N.Y. Jan. 5, 1996) (“[T]he ALJ twice informed [claimant’s]
representative that the record would be kept open in order for new medical records
to be submitted. When claimant’s representative indicated that he would attempt
to locate the document within three weeks after the hearing, and that he would
contact the ALJ if he were not able to do so, the ALJ was under no further
obligation.”).
41

and functional capacity statement, and Dr. Luke’s diagnosis of depressive
disorder.167 However, the ALJ considered each of these sources.
As a threshold matter, the ALJ properly disregarded Santilli’s opinion
when considering whether De La Cruz had a medically determinable mental
impairment because, as a nurse practitioner, Santilli is not an acceptable medical
source.168 At the same time, the ALJ considered Santilli’s records throughout her
decision, including at step two when determining the severity of De La Cruz’s
mental impairments,169 and at step four when assessing De La Cruz’s RFC.170 With
respect to severity, the ALJ, relying on Dr. Gitlow’s opinion, determined that
Santilli’s treatment notes indicated only mild severity.171 With regard to RFC, the
ALJ found that Santilli’s opinion, which placed significant limitations on De La
Cruz’s ability to perform work, was “completely inconsistent with the treatment
notes provided,” as well as the other evidence in the file.172

167

Pl. Mem. at 14-15.

168

See SSR Medical Sources, 2006 WL 2329939, at *2-3.

169

See Tr. at 26.

170

See id. at 30-31.

171

See id. at 31, 314.

172

Id. at 31.
42

The ALJ’s determinations are well supported by the record. Nurse
Santilli’s treatment notes reflect primarily unremarkable examination findings
throughout the relevant period. For example, at her first appointment in August
2008, plaintiff had spontaneous, relevant, and goal-directed thought with
unremarkable content.173 The following month, De La Cruz presented with
“unremarkable . . . psychomotor behavior[,]” “intact” memory, and “clear”
“sensorium,” as well as “logical, concrete” thought processes with “unremarkable .
. . content,” “no signs of mania . . . or psychosis,” and no suicidal or homicidal
ideation.174 In December 2008, De La Cruz’s “mood [was] euthymic,” she had
“intact” memory, “logical” thought processes, and “appropriate” appearance,
speech, and affect.175 In addition, Santilli found that De La Cruz’s condition would
not interfere markedly with her ability to understand, remember, and carry out
simple work instructions, which is consistent with the ALJ’s determination that De
La Cruz can perform basic work activities.176 Accordingly, Santilli’s treatment
notes tend to support, rather than undermine, the ALJ’s conclusions. Thus, the

173

See id. at 276.

174

Id. at 278.

175

Id. at 284-285.

176

See id. at 294.
43

ALJ properly considered Santilli’s opinion, but found it to have little value because
it was contradicted by her own contemporaneous treatment notes.177
De La Cruz also argues that the ALJ erred in finding that De La Cruz
was “‘seen infrequently, and was not referred to a psychiatrist for evaluation,
consultation, or treatment.’”178 De La Cruz contends that “[a]ppointments were
missed [ ] not because of a cavalier attitude . . . about treatment, but because of
dislocations in treatment caused by staff changes and, in part, by feelings of
helplessness and discouragement that are part of [her] diagnosed condition.”179
She also points out that Santilli’s treatment notes indicate that in addition to seeing
Santilli, De La Cruz was getting weekly therapy from other sources.180 However,
De La Cruz does not explain how these alleged oversights impact the ALJ’s
specific findings, and the ALJ’s decision demonstrates a close review of Santilli’s

177

See, e.g., SSR Medical Sources, 2006 WL 2329939, at *4 (indicating
that the weight given to the opinion of a medical source that is not an acceptable
source depends on whether the medical source “has seen the individual more often
than the treating source and has provided better supporting evidence and a better
explanation” for her opinion) (emphasis added).
178

Pl. Mem. at 22 (quoting Tr. at 31) (alterations omitted).

179

Id.

180

See id. at 23 (“Records show, then, that Ms. De La Cruz was
scheduled to be seen once a month by NP Santilli for medication management, but
also was seen weekly for psychotherapy at another treatment source.”).
44

treatment notes, making it unlikely that the ALJ simply failed to take note of the
fact that De La Cruz was receiving weekly therapy. In fact, during the hearing
before the ALJ, De La Cruz testified at length about her therapy sessions,181 at one
point describing them as “couples therapy” for her and her boyfriend.182 Moreover,
De La Cruz failed to provide medical records from these sources, and the ALJ’s
opinion is otherwise supported by ample evidence.
With respect to Dr. Luke, the ALJ not only considered her findings,
but relied on them when concluding that Santilli’s opinion was contradicted by Dr.
Luke’s “preliminary restrictions.”183 While the ALJ does not specifically refer to
Dr. Luke’s diagnosis of depressive disorder (or depression) at step two, she found
that De La Cruz’s medically determinable mental impairments included both
dysthymia depression and adjustment disorder with depressed mood.184 De La

181

See Tr. at 41-47.

182

Id. at 44.

183

Id. at 31.

184

See, e.g., Brault v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d
Cir. 2012) (“‘[A]n ALJ is not required to discuss every piece of evidence
submitted.’”) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)); id. (“An
ALJ does not have to state on the record every reason justifying a decision.”).
45

Cruz has failed to explain how these impairments are inconsistent with Dr. Luke’s
diagnosis.185
Thus, I find that the ALJ examined all the relevant sources. In doing
so, she determined that they did not support a finding of either a severe mental
impairment or an RFC inconsistent with the full range of medium work. Mere
disagreement with those findings is insufficient to overturn the ALJ’s decision.186
3.

The ALJ Gave Appropriate Weight to Dr. Gitlow’s Opinion

185

Dr. Luke found that De La Cruz had “depressive disorder,” not “major
depressive disorder.” The diagnosis of “depressive disorder NOS” is assigned to
“disorders with depressive features that do not meet the criteria for Major
Depressive Disorder, Dysthymic Disorder, Adjustment Disorder With Depressed
Mood, or Adjustment Disorder With Mixed Anxiety and Depressed Mood.” Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 381 (4th
ed. 2000). “Major depressive disorder” is characterized by one or more major
depressive episodes, which are “period[s] of at least 2 weeks during which there is
either depressed mood or the loss of interest or pleasure in nearly all activities.”
Id. at 369, 349. “Dysthymic disorder” is characterized by “chronically depressed
mood that occurs for most of the day more days than not for at least 2 years.” Id.
at 376. “During periods of depressed mood, at least two of the following
additional symptoms are present: poor appetite or overeating, insomnia or
hypersomnia, low energy or fatigue, low self-esteem, poor concentration or
difficulty making decisions, and feelings of hopelessness.” Id.
186

See Brault, 683 F.3d at 448 (“The substantial evidence standard
means once an ALJ finds facts, we can reject those facts ‘only if a reasonable
factfinder would have to conclude otherwise.’”) (quoting Warren v. Shalala, 29
F.3d 1287, 1290 (8th Cir. 1994)) (emphasis in Brault).
46

The opinions of consultants such as Dr. Gitlow are entitled to
considerable weight.187 De La Cruz argues that Dr. Gitlow gave insufficient weight
to Santilli’s opinion and that his opinion was based on the erroneous assumption
that “De La Cruz had never been diagnosed with a serious mental illness by an
M.D. or psychologist,” ignoring Dr. Luke’s diagnosis and findings.188 However, as
discussed earlier, there is no basis to disturb the ALJ’s determination that Santilli’s
opinion was neither supported by her treatment notes nor the record.189 Nor did Dr.
Gitlow overlook Dr. Luke’s report in his opinion. He indicated that while the
report stated that “the claimant tried to kill herself [recently]; this is not, however,
revealed in the [other] histories [provided].”190 Moreover, as noted, De La Cruz
has not explained how Dr. Luke’s diagnosis of depressive disorder is otherwise
inconsistent with the record evidence or the ALJ’s determinations that De La
Cruz’s mental impairments were not severe and that she could perform the full

187

See 20 C.F.R. § 416.927(e)(2)(I); Diaz v. Shalala, 59 F.3d 307, 313
n.6 (2d Cir. 1995) (stating that the opinion of non-examining sources may override
a treating physician’s opinion when supported by evidence in the record).
188

Pl. Mem. at 17-19.

189

See supra Part IV.A.2.

190

See Tr. at 314.
47

range of medium work.191 Accordingly, I find that the ALJ did not err in giving
Dr. Gitlow’s opinion substantial weight.
C.

The ALJ’s Determination that There Are Jobs that Exist in
Significant Numbers in the National Economy that Plaintiff Can
Perform Is Based on Substantial Evidence
De La Cruz argues that the ALJ should have found that she could not

sustain employment based on the vocational expert’s opinion with respect to a
hypothetical worker who was restricted to “‘simple work involving one or two step
tasks [and] involving brief but superficial contact with others.’”192 However, the
ALJ determined that De La Cruz did not have these restrictions based on the record

191

See supra Part IV.A.2. Dr. Luke’s opinion is not inconsistent with the
medical evidence in the record, and in any event only places minor limitations on
De La Cruz’s functional capabilities. One reasonable inference that can be drawn
from Dr. Gitlow’s opinion is that he did not find Dr. Luke’s diagnosis persuasive
because it was based in part on the unsubstantiated claim that De La Cruz had
recently tried to kill herself, a claim Dr. Gitlow dismissed as inconsistent with all
the other medical evidence and De La Cruz’s testimony. See id. at 265 (Dr. Luke’s
diagnosis of “depression” is based on “history of suicidal attempts” including “last
year after [her] mother’s death”). Another reasonable inference is that because Dr.
Gitlow concluded that Dr. Meadow’s July 2008 diagnosis was more consistent
with normal bereavement, he reached the same conclusion with respect to Dr.
Luke’s earlier March 2008 diagnosis. See id. (Dr. Luke indicates that De La Cruz
is “depressed due to her mother[’s] illness and death last year” and that she “has
depressive d[isorde]r since her mother passed away last year”).
192

Pl. Mem. at 24 (quoting Tr. at 58).
48

evidence discussed throughout this opinion, 193 and there is no basis to disturb this
finding. 194 Accordingly, the ALJ did not err in rejecting a comparison between De
La Cruz and this hypothetical worker.

V.

CONCLUSION
For the foregoing reasons, the Commissioner's motion is GRANTED,

the decision denying benefits is affirmed, and De La Cruz's motion is DENIED.
The Clerk of Court is directed to close these motions [Docket numbers 16 and 30],
and this case.
SO ORDERED:

Dated: New York, New York
July 2, 2014

193

For example, Dr. Meadow found that De La Cruz was able to perform
calculations and serial threes, and could repeat three out of three objects
immediately and after five minutes. See Tr. at 219. He also noted that De La Cruz
rode public transportation by herself to the appointment, which suggests that
claustrophobia does not impact De La Cruz's activities of daily living. See id. at
218. De La Cruz also took public transportation to the hearing and to her
appointment with Dr. Tedoff and reponed during her rTI03 cvzt1mnion t11m :;hL:;
was able to take public transportation. See id. at 26, 296, 261.
194

See Brault, 683 F .3d at 448.
49

- Appearances -

For Plaintiff:
William Gottlieb, Esq.
Axelrod and Gottlieb
101 Lafayette Street, Suite 304
New York, NY 10013
[phone]

For Defendant:
Susan D. Baird
Assistant United States Attorney
86 Chambers Street, 3rd fl.
New York, NY 10007
[phone]

50