Daniels v. Commissioner of Social Security

Filing 30

OPINION AND ORDER re: 20 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the foregoing reasons, the Commissioner's motion for judgment on the pleadings is GRANTED, and the case is dismissed with prejudice. SO ORDERED. (See Order.) (Signed by Magistrate Judge Sarah Netburn on 3/5/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DEMETRIOUS DANIELS a/k/a
DEMTRIOUS DANIELS,
Plaintiff,
-against-

3/5/2015

14-CV-02354 (SN)
OPINION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:
Pro se plaintiff Demetrious Rochelle Daniels brings this action pursuant to Section
205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking judicial review of the
final determination of the Commissioner of Social Security (the “Commissioner”) denying her
application for Supplemental Security Income (“SSI”). The Commissioner moved for judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Because substantial evidence supports the administrative law judge’s decision and she
did not commit legal error requiring remand, the Commissioner’s motion for judgment on the
pleadings is GRANTED, and the case is dismissed with prejudice.
PROCEDURAL BACKGROUND
Daniels filed an application for SSI on September 22, 2010. She alleged a disability onset
as of February 1, 2009 due to Hepatitis C, Human Immunodeficiency Virus (HIV), and leg pain.
On February 15, 2011, the Social Security Administration (“SSA”) denied her claim, finding that
Daniels was not disabled as of her SSI application date. Daniels requested a hearing before an
administrative law judge (“ALJ”). (AR 103-05.) On September 23, 2012, Daniels appeared pro

se at a hearing before ALJ Sheena Barr. (AR 66-99.) Medical expert Dr. Gerald M. Greenberg
testified in person and vocational expert Raymond E. Sestar testified telephonically. On
November 25, 2012, the ALJ issued a decision finding that Daniels was not disabled within the
meaning of the Act. Daniels appealed the decision, and the Appeals Council denied her request
for review on June 17, 2013, making the SSA decision final. On March 4, 2014, the Appeals
Council granted Daniels an extension of time to file a civil action.
Daniels filed a claim in this District on March 26, 2014. The Commissioner filed an
answer on August 1, 2014, and moved for judgment on the pleadings on September 26, 2014.
Daniels did not oppose the motion. On February 10, 2015, because the Administrative Record
(the “record”) lacks any reports or opinions of a treating physician, the Court issued an Order
instructing the Commissioner to identify what evidence in the record establishes the ALJ’s
efforts to develop the record in light of Daniels’ pro se status. On February 20, 2015, the
Commissioner filed a responsive letter, and the Court considers the matter fully briefed.
FACTUAL BACKGROUND
The following facts are taken from the record.
I.

Relevant Medical History
Daniels was born on March 3, 1964.
A.

Longitudinal Treatment with Woodhull Medical and Mental Health Center

Between March, 2009 and January 4, 2011, Daniels received her primary healthcare from
Woodhull Medical and Mental Health Center. During that time, Daniels frequently missed her
monthly appointments but had at least fourteen appointments with various Woodhull
practitioners.

2

1.

Evidence Before Daniels’s September 22, 2010 SSI Application Date

On March 18, 2009, Daniels met with Dr. Usha Mathur-Wagh. Dr. Mathur-Wagh
reported that Daniels had a history of alcohol and drug abuse and had been in a car accident.
Daniels had tested positive for HIV on February 11, 2009, and her blood work revealed a T-cell
CD4 count of 281 and a viral load of 13,871. 1 Dr. Mathur-Wagh started Daniels on the
antiretroviral drug (“ARV”) Atripla. Daniels complained of night sweats, a cough and scratchy
throat, fatigue, a depressed mood, and having sleep disturbance. Upon physical examination, Dr.
Mathur-Wagh found that Daniels appeared her stated age, was alert with normal affect, was
oriented to three spheres, had no evidence of a thought disorder, retained full motor strength, and
had a full range of motion. Daniels reported that she had been in an inpatient detoxification
program for 21 days and now would be in an outpatient program for six months. (AR 195-96.)
On April 15, 2009, Daniels met with Dr. Mathur-Wagh, who noted that Daniels was
tolerating her new medication Atripla well. Daniels reported feeling stronger but complained of
having leg cramps on and off for the last month. (AR 197-98.) On July 7, 2009, Daniels met with
Dr. Mathur-Wagh, who again noted that Daniels continued to tolerate Atripla well. Daniels
described feeling stronger, having a good appetite, and that her weight was stable. She
complained of pain in both knees that Motrin was not relieving. She also complained of fatigue
and a depressed mood. (AR 199-200.)

1

The terms “CD4 cell” and “T-cell” both refer to the same type of cell, a CD4 T lymphocyte cell. See
HIV-AIDS Basics, U.S. Dep’t of Health & Human Services, available at https://www.aids.gov/hiv-aidsbasics/just-diagnosed-with-hiv-aids/understand-your-test-results/cd4-count/ (last visited on January 26,
2015). See also 20 C.F.R. Part 404, Subpart P, Appendix 1, § 14.00(F)(2). A normal CD4 count ranges
from 500-1,00 cells/mm in adults. Id. A CD4 count of fewer than 200 cells/mm is a likely indicator that
HIV has progressed to stage 3 infection, or AIDS. Id. The lab report indicates that Daniels’s total T-Cell
count was 1142.9, but that her CD4 count was 350.3. (AR 217.)
3

On September 14, 2009, Daniels met with Dr. Mathur-Wagh and complained of a sore
throat. Otherwise, the report showed no change. (AR 201-02.) At Daniels’s visit on October 14,
2009, Dr. Mathur-Wagh reported that Daniels remained anemic, and Daniels complained of a
depressed mood. (AR 203-04.) On January 5, 2010, Dr. Mathur-Wagh noted that Daniels was
suffering from Hepatitis C and anemia, and that her Hepatitis C viral RNA was high. Daniels
complained of a poor appetite and had lost weight. She denied alcohol, drug, or methadone use
but reported that she smoked six to seven cigarettes daily. (AR 206-06.)
Daniels’s next appointment was on May 12, 2010. She was seen by Valerie Santangelo, a
nurse practitioner (“NP”). Santangelo reported that Daniels was tolerating Atripla well, that she
remained anemic, and her Hepatitis C viral RNA was high. Daniels was not taking her iron
(“Fe”) supplements but reported being 100% compliant with her antiviral medication. Santangelo
prescribed a trial of Promar for her anemia in lieu of the iron supplements. Daniels also
complained of chronic knee and lower back pain, which Motrin and Naprosyn were not helping,
so Santangelo gave her a trial of Celebrex. Santangelo reviewed a smoking cessation plan and
counseled Daniels on treatment options for Hepatitis C. Daniels indicated she was not ready to
start Hepatitis C treatment because she wanted to work on her mental health issues first.
(AR 207-09.) Dr. Cesar Del Rosario conducted lab work the same day. (AR 215-17.)
On July 13, 2010, Daniels was again seen by NP Santangelo. (AR 210-14.) Santangelo
noted that Daniels was tolerating Atripla well and liking Promar for anemia. Santangelo noted
that Daniels’s substance abuse anxiety disorder was in remission following Suboxone treatment.
Daniels was still very anemic and had a high Hepatitis C viral RNA count. Daniels complained
of general malaise, but had no complaints of dyspnea, fatigue, depressed mood, or nervousness.
She was smoking three to four cigarettes daily.

4

A Woodhull printout, dated August 3, 2010, lists Daniels’s prescriptions: Ambien for
sleep, Atripla to combat infection, Celebrex for pain, Clonidine for anxiety, Motrin for back
pain, multivitamins for health, Nicoderm patch to quit smoking, Suboxone for pain and to treat
her previous substance dependence, and Zoloft for depression. (AR 268-69.)
2.

Evidence After Daniels’s September 22, 2010 SSI Application Date

On September 29, 2010, Daniels had an appointment at Woodhull; the reports do not
state which practitioner she saw. The notes indicate that Daniels continued to tolerate Atripla,
was still anemic, had a high Hepatitis C viral RNA load, and had lumbago. She was smoking
three to four cigarettes daily. Daniels was oriented, appeared her stated age, displayed no
evidence of a thought disorder, had a full range of motion, a normal gait, and 5/5 strength.
Daniels complained of chronic knee and lower back pain and was given a prescription for
Ultram. Daniels had previously been referred to a Hematology practice but missed her
appointment and was given another. The provider discussed with Daniels general HIV education,
goals of treatment adherence, substance abuse/harm reduction counseling, smoking cessation,
and the importance of diet and nutrition. (AR 189-91.) Dr. Cesar Del Rosario conducted lab
work the same day and the tests indicated that Daniels’s CD4 count was 350.3, outside the
normal reference range. (AR 218-20.)
On October 26, 2010, NP Santangelo completed a form labeled Medical Report on Adult
with Allegation of Human Immunodeficiency Virus (HIV) infection. The report confirmed that
Daniels has HIV. Santangelo indicated that Daniels had marked limitations of activities of daily
living and chronic fatigue due to severe anemia. (AR 186-87.)
On November 9, 2010, Daniels met with NP Santangelo and Stephanie Exavier, a
registered nurse (“RN”), as a walk-in after missing several scheduled appointments. Daniels

5

complained of a sore throat and cough. Santangelo indicated that Daniels was negative for
headaches, depress mood, nervousness, and sleep disturbances. Daniels appeared her stated age,
was oriented to three spheres, had a normal affect, and displayed no evidence of a thought
disorder. Daniels had missed her hematology appointment again and was referred for another.
She was counseled on her treatment options for Hepatitis C, but Daniels indicated she wanted to
get her anemia, depression, and her substance abuse stable before addressing her Hepatitis. (AR
192-95.) A Woodhull chart, updated by NP Santangelo, indicates that Daniels’s medications
included Ativan for anxiety, Atripla for infection, Celebrex for pain, Clonidine for anxiety,
Nicoderm for smoking cessation, Suboxone, and multivitamins for health. Daniels requested a
Xanax prescription, but Santangelo indicated that Dr. Chaudhry would not prescribe Xanax
along with Suboxone. Santangelo prescribed Zithromax and Mucinex for Daniels’s cough and
cold. (AR 272-77.)
On January 4, 2011, Daniels saw NP Santangelo and nurse assistant Marilyn Lopez.
Daniels indicated that she had no complaints and was feeling a lot better. Her appetite was good
and she was sleeping well. She responded negatively to feelings of depression or hopelessness,
having less interest or pleasure in doing things, or feeling down. She had missed her hematology
appointment again. (AR 279-91.) Lab work conducted the same day indicated that her CD4
count was 296.0, outside the normal reference range. (AR 287.)
Two reports, either dated January 19, 2011 or February 18, 2011, and either March 29,
2011 or April 28, 2011, by Dr. Faisal Chaudhry, list Daniels’s prescriptions. (AR 292-93.) On
May 26, 2011, Daniels saw NP Santangelo and RN Exavier. Daniels denied feeling hopeless or
depressed. She reported having a good appetite, sleeping well, and smoking two to three
cigarettes daily. (AR 301-05.) NP Santangelo listed Daniels medications as: Ambien, Ativan,

6

Atripla, Buprenorphine/Naloxone, Clonidine, Ferrous Sulfate, Fluvocamine Maleate, Lac-Hydrin
lotion, Lotrisone cream, Soloraze gel, Zyrtec, and B-50 vitamin and multivitamin tablets.
(AR 305.) A lab report from May 26, 2011 indicates that Daniels’s CD4 count was 264.6,
outside the normal reference range. (AR 294-99.)
On June 28, 2011, Daniels saw RN Exavier and NP Santangelo. Daniels denied having a
depressed mood or feelings of hopelessness. She reported that her appetite was good and she was
sleeping well. She still had not gone to her hematology appointment. She was smoking four
cigarettes daily. Her medications were listed as: Ativan, Atripla, Celebrex, Clonodine, Nicoderm,
Suboxone, and multivitamins. (AR 309-18.) She had lab work done the same day. (AR 319.) A
report dated August 25, 2011, documented by Dr. Chaudhry, lists Daniels’s prescriptions.
(AR 321-22.)
B.

Consultative Exams
1.

Dr. Herb Meadow, Industrial Medicine Associates, PC

Daniels saw Dr. Herb Meadow, of Industrial Medicine Associates, PC, for a psychiatric
evaluation on January 24, 2011. Daniels arrived at the appointment by public transportation. She
reported that she lived alone and had four adult children ages 23-42. She completed the eighth
grade in regular education classes and obtained her GED. She last worked as a nursing aide
approximately 23 years ago. After taking maternity leave, she did not get her job back. She was
able to take care of her personal hygiene and does some household chores. She socialized with
her immediate family and spent time listening to music and watching television.
She indicated that she had been receiving psychiatric treatment monthly for the past two
years for depression and anxiety from Dr. Chaudhry at Woodhull Medical Center. She reported

7

that she takes Suboxone as she stopped using cocaine and heroin two years ago. She also takes
Ambien, Ativan, Atripla, Buprenorphine, Clonodine, GoLYTELY, Lotrisone, and Promar.
She denied being depressed at the present time but reported a history of recurrent
depression and having had suicidal thoughts in the past. She complained of having chronic leg
and back pain and having trouble falling asleep. She reported having a normal appetite and stable
weight. She had been the victim of domestic violence, which causes her flashbacks and
nightmares. She described having panic attacks, which include palpitations and difficulty
breathing and are usually brought on by crowded spaces. Dr. Meadow indicated that Daniels did
not have agoraphobia. Daniels had manic symptoms, specific for psychomotor agitation, and a
history of intrusive thoughts, but not a history of thought disorders.
Dr. Meadow found that Daniels was cooperative, her manner of relating was adequate,
and her eye contact was normal. She appeared her stated age and was neat, casual, and wellgroomed. Her speech was fluent and clear, her affect was appropriate, and her thought processes
were goal-directed with no evidence of hallucinations, delusions, or paranoia. Her attention and
memory were intact and she had average cognitive functioning, although her general fund of
information was somewhat limited. Her insight and judgment were fair. He described her mood
as depressed and anxious.
Dr. Meadow diagnosed Daniels with dysthymic disorder (rule out bipolar disorder), panic
disorder without agoraphobia, posttraumatic stress disorder, and heroin and cocaine
abuse/dependence in remission. 2 He opined that Daniels would be able to perform all tasks

2

Dysthymic disorder is characterized by having “a chronically depressed mood that occurs for most of
the day more days than not for at least two years.” Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 345(4th ed. 1994) (“DSM-IV”). During the period 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,
8

necessary for vocational functioning. Although her symptoms were consistent with psychiatric
problems, they did not appear to be significant enough to interfere with her ability to function on
a daily basis. He recommended that she continue with psychiatric treatment and determined that
her prognosis was fair.
2.

Dr. William Lathan, Industrial Medicine Associates, PC

Daniels saw Dr. William Lathan, of Industrial Medicine Associates, PC, for an internal
medicine evaluation on January 24, 2011. Daniels reported that she was diagnosed with HIV in
February 2009, and Hepatitis C in 2000, but she was not receiving treatment for Hepatitis C. She
had used cocaine and intravenous heroin until 2008 and now took Suboxone. She still smoked
cigarettes. She reported a history of depression and anxiety starting in 1995. She reported taking
Ativan, Atripla, Clonodine, and Promar. She also reported that she was last employed in the
1990s. She was able to perform daily living and personal care activities.
Dr. Lathan found that Daniels’s dress and affect were appropriate and that she was
cooperative. Her gait and stance were normal, she could fully squat, she needed no help getting
on and off the exam table, and she was able to rise from the chair without difficulty. She had full
ranges of motions and finger dexterity. Her strength was 5/5, and she had no musculoskeletal or
neurological dysfunction. Dr. Lathan opined that her prognosis was stable and that she had
moderate restrictions for strenuous exertion.

and feelings of hopelessness.” Id. During the two year period, “any symptom-free intervals last no longer
than two months.” Id. at 346.
Panic disorder is characterized by “the presence of recurrent, unexpected Panic Attacks followed
by at least one month of persistent concern about having another Panic Attack, worry about the possible
implications or consequences of the Panic Attacks, or a significant behavioral change related to the
attacks. Id. at 397. Agoraphobia’s essential feature is “anxiety about being in places or situations from
which escape might be difficult (or embarrassing) or in which help may not be available in the event of
having a Panic Attack or panic-life symptoms. The anxiety typically leads to a pervasive avoidance of a
variety of situations that may include being alone outside the home . . . .” Id. at 396.
9

3.

Dr. Edward Kamin

Daniels saw consultative psychologist Dr. Edward Kamin on February 1, 2011. In
addition to his report, he also completed a Mental Residual Functional Capacity Assessment.
(AR 248-51.) Dr. Kamin reviewed the record and opined that Daniels was not disabled. He found
that she had no psychiatric hospitalizations and had been treated on an outpatient basis for
depression for two years. He noted her history of cocaine and heroin use but that she stopped
using two years ago and was taking Suboxone.
He noted her panic disorder and posttraumatic stress disorder, both related to her anxiety.
She had panic attacks brought on by crowded spaces. She had a depressed and anxious mood and
a history of intrusive thoughts. Her cognitive function was average with a somewhat limited fund
of information. He noted that she was able to bathe herself, do household chores, socialize with
her family, and use public transportation.
He diagnosed her with affective disorder (12.04), anxiety-related disorder (12.06), and
substance addiction disorder (12.09). See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. He
opined that she also had a medically determinable impairment that did not precisely satisfy the
diagnostic criteria. He found that she did not meet the paragraph B criteria: she had a mild
restriction in activities of daily living, mild difficulties in maintaining social functioning, mild
difficulties in maintaining concentration, persistence or pace, and no episodes of deterioration.
She also did not satisfy the paragraph C criteria. 3 He found that Daniels was, with a few
exceptions, not significantly limited in the areas of understanding and memory, sustained
concentration and persistence, social interaction, and adaptation. (AR 249-50.) He found that she
was moderately limited in her ability to understand and remember detailed instructions, ability to

3

See 20 C.F.R. Pt. 404, subpt. P, app’x 1 § 12.04. The paragraph B and paragraph C criteria are explored
in greater detail in part II of the Discussion.
10

carry out detailed instructions, and ability to accept instructions and respond appropriately to
criticism from supervisors. (Id.) Lastly, he found that Daniels seemed capable of performing all
tasks necessary for vocational functioning.
II.

Administrative Hearing
Daniels appeared pro se before ALJ Barr on September 23, 2011. The ALJ explained the

benefits of having counsel and made sure Daniels knew she had a right to be represented by
counsel, although the Commissioner was not obligated to provide her one. Daniels confirmed
that she was aware of her right and wished to proceed pro se. (AR 69.) Daniels also confirmed
that the ALJ had all the evidence that Daniels wanted her to consider. (AR 71-72.) Vocational
expert Raymond Sestar and medical expert Dr. Greenberg also testified at the hearing.
A.

Daniels’s Testimony

Daniels testified that she lives at 498 East 138th Street, Bronx, New York in a third floor
apartment. She is 47 years old, single, with grown children who live elsewhere. She completed
the seventh grade but is able to read and write.
She last worked in 2006, and before that in 2002. In 2002, she was a full-time nursing
aide and a housecleaner at a hospital. In 2006, she did “piece work,” in which she physically put
coupons in plastic bags, which then got delivered to peoples’ doors. (AR 74-75.). She has not
tried to find work since then. She stated that she had only worked for that limited amount of time
because: “I stayed in a lot of pain and everything like my back and my knee,” “I get dizzy a lot,”
“I’ll be having blackouts sometimes,” and “my hands tightened up on me.” (AR 74, 76.) Her
blackouts are caused by severe anemia. (AR 77.) She reported that her alleged onset date, the
date she became unable to work, is February 1, 2009.

11

She testified that she has had anemia her entire life and takes iron pills and multivitamins
for it. She feels that her prescriptions help but she is often “tired all the time” because of her
anemia. (AR 79-80.) She also has HIV. When asked to identify her “treating doctor, the doctor
[she] see[s] on a regular basis,” Daniels indicated that she sees Valerie Santangelo once a month
for regular treatment. 4 (AR 77.) She reported taking Ambien, Atripla, Celebrex, and Quinidines
medications. (AR 78.) Because her anxiety medicine was not working, her prescription was
changed to Klonopin two days before the hearing. Daniels felt that the Klonopin was working
but that she was still anxious. She “can’t stay still” and has to “move around” a lot. (AR 79.) Her
hands were still “jittery, shaking” but not as badly as before taking Klonopin. (AR 80.) She did
not employ any other treatment besides medication. She reported that her anxiety and depression
“hasn’t worsened,” and the medications have made it “a little better.” (AR 79-80.)
Daniels also testified that she has pain in her shoulders and her knees a lot, which is not
due to arthritis. (AR 80.) She has pain every day and gets “charley horses” mostly every night
that wake her up. (AR 81.) She takes Klonopin and Ambien to help her sleep but she does not
sleep that much. (AR 81.) Her sleep problems are due to the charley horses, anxiety, and
depression. She has low energy, sometimes has memory loss, has difficulty concentrating and
focusing, and sometimes experiences a loss of interest in activities. (AR 81-82.) She does not
have suicidal thoughts or hallucinations. (AR 82.) She has panic attacks that last a half hour on a
weekly basis. To calm herself, she sits and rocks. She watches television but has trouble sitting
through a whole movie due to problems focusing. (AR 82-83.) She also has trouble getting along
with and being around other people because being around others makes her anxious. (AR 83.)

4

Daniels stated that Santangelo was a doctor. (AR 77.) Santangelo is actually a nurse practitioner.
(AR 207-09.)
12

Daniels testified that she can walk two blocks before she has to rest. (AR 84.) She can
stand for “an hour to a half hour” and she likes to stand on a ramp near her apartment to get fresh
air. (AR 84.) When she climbs the stairs to her third-floor apartment, she climbs a couple of
steps, then takes a rest for about five to ten minutes before continuing. (AR 87.) The hearing was
the longest time she had sat in one place without walking around. Usually she needs to walk
around because she is “anxious all the time.” (AR 85.) She reported that she cannot lift a lot of
weight because of a car accident fifteen years ago. (AR 85.) She was not sure how much weight
she could lift, but when she lifts a gallon of milk, she has to use her left, non-dominant hand.
(AR 85-86.) In the grocery store, she walks and then sits a minute before continuing. She can lift
one arm fully but can only lift the other “not too high.” (AR 86.) She has no limitations in her
hands or fingers. (AR 86.) She can bend over, but not all the way, and sometimes has pain in her
right leg. (AR 87.)
Daniels testified that she is able to dress herself, shower, and put on socks and shoes. She
cooks for herself, sweeps, mops, and does the laundry. (AR 89.) She does not have a driver’s
license and took public transportation to the hearing with a friend. (AR 87-88.) She regularly
prays at home and reads the bible. She does not regularly visit friends or relatives and does not
go to the movies or restaurants. On a typical day, she gets up, sits on the couch and drinks coffee,
takes her medications, does some dishes, and stares out the window in her bedroom. (AR 89.)
B.

Medical Expert Testimony

Dr. Gerald Greenberg testified as a medical expert and reviewed the medical evidence in
the file. He testified that the record indicates that Daniels is 47 years old, has HIV and Hepatitis
C, both of which are under control, and has anemia. She used heroin until 2008. She complains
of pain, dizziness, intermittent sore throat and cough, and fatigue. He found that there is a

13

psychiatric impression of a depressed mood and sleep problems but psychiatry is not his field of
specialty. (AR 91-93.)
C.

Vocational Expert Testimony

Raymond Sestar testified as a vocational expert. Sestar identified Daniels’s past work as a
home health aide as 354.377-010, medium exertion, Specific Vocational Preparation (“SVP”) 3;
cleaner as 323.687-010, medium exertion, SVP 2; and inserter as 309.587-010, sedentary,
SVP 2. 5 (AR 96.)
Sestar testified that a hypothetical person of Daniels’s age, education and work
experience would be able to return to Daniels’s past work as an inserter. If the same person were
able to do the full range of sedentary work but with only occasional interaction with the public
and coworkers and only occasional supervision, the person would still be able to perform the
work of an inserter. If the same person was able to do the full range of sedentary work with no
interaction with the public, no tandem tasks with coworkers, and only occasional supervision, the
person would still be able perform the work of an inserter. Further, that hypothetical individual
could also perform other sedentary jobs such as assembler (734.687-018, sedentary, SVP 2,
unskilled, of which there are 2,600 jobs regionally and 229,000 jobs nationally), a clerical
worker (209.587-010, sedentary, SVP 2, unskilled, of which there are 6,500 jobs regionally and
100,000 jobs nationally), or an account person (205.367-014, sedentary, SVP 2, unskilled, of
which there are 9,000 jobs regionally and 200,000 jobs nationally). These three jobs would be
able to be performed by that individual whether the individual was limited to occasional

5

The Dictionary of Occupational Titles (the “DOT”) defines “Specific Vocational Preparation” as the
“amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific job-worker situation.” Dictionary of
Occupational Titles Appendix C, available at http://www.occupationalinfo.org/appendxc_1.html (last
visited February 2, 2015).
14

interaction or no interaction with the public and limited to very little contact with coworkers and
supervisors.
III.

The ALJ’s Determination
In her November 25, 2011 decision, the ALJ found that Daniels has not been under a

disability within the meaning of the Act since September 22, 2010. At step one, the ALJ
determined that Daniels has not engaged in substantial gainful activity since September 22, 2010,
pursuant to 20 C.F.R. 416.971. (AR 17.) At step two, the ALJ determined that Daniels had the
following severe impairments, pursuant to 20 C.F.R. 416.920(c): HIV, dysthymic disorder,
history of substance abuse, and anemia.
At step three, the ALJ determined that Daniels’s combination of impairments does not
meet or medically equal the severity of the listed impairments (the “Listings”) in 20 C.F.R. Part
404, Subpart P, Appendix 1. The ALJ first considered Daniels’s HIV but concluded that Daniels
does not have any major opportunistic infections or functional limitations pursuant to HIV
Listing 14.08. 6 She next considered Daniels’s chronic anemia but found that Daniels has not
required one or more blood transfusions on an average of at least once every two months or had
any other major complications pursuant to anemia Listing 7.02. 7

6

Listings 14.00 covers immune system disorders, including HIV. 20 C.F.R. Pt. 404, subpt. P, app’x 1
§ 14.00. HIV is “characterized by increased susceptibility to opportunistic infections, cancers, or other
conditions.” Id. at § 14.00(A)(4). “Most women with severe immunosuppression secondary to HIV
infection exhibit the typical opportunistic infections and other conditions, such as PCP, Candida
esophagitis, wasting syndrome, cryptococcosis, and toxoplasmosis.” Id. at §§ 14.00(A)(4)(a), 14.08
(listing various bacterial, fungal, protozoan or helminthic, and viral infections common in HIV, along
with characterizations).
7
Listings 7.00 covers hematological disorders, including chronic anemia. 20 C.F.R. Pt. 404, subpt. P,
app’x 1 § 7.00. “Chronicity is indicated by persistence of the condition for at least three months.” Id. at
§ 7.00(B). Chronic anemia requires “hematocrit persisting at 30 percent or less due to any cause” with (A)
“one or more blood transfusions on an average of at least once every two months” or (B) “evaluation of
the resulting impairment under criteria for the affected body system.” Id. at § 7.02.
15

Next, the ALJ determined that Daniels’s impairments do not meet or medically equal
Listing 12.04 (affective disorder) or Listing 12.09 (substance abuse disorder). 8 In reviewing the
“paragraph B” criteria, the ALJ first determined that Daniels has mild restrictions in the activities
of daily living. This was based on the reports of consultative examiner Dr. Meadow, who
indicated that Daniels takes care of her personal hygiene and does some household chores at
home; and consultative examiner Dr. Lathan, who indicated she can perform all activities of
personal care and daily living. (AR 18.) Second, she determined that Daniels has moderate
difficulties in social functioning. The ALJ based this on Daniels’s own testimony that she
socializes with her immediate family, avoids crowds, and does not visit friends or relatives.
(AR 18.) Third, the ALJ determined that Daniels has mild difficulties in concentration,
persistence or pace. The ALJ based this on Daniels’s own testimony that she watches TV and
listens to music. (AR 18.) Fourth, the ALJ determined that Daniels had no episodes of
decompensation of extended duration. (AR 18.) As a result, Daniels does not satisfy the
“paragraph B” criteria. The ALJ also determined that Daniels does not satisfy the “paragraph C”
criteria. (AR 18.)
Before continuing to step four, the ALJ determined that Daniels has the RFC to perform
sedentary work as defined in 20 C.F.R. § 416.967(a), except that she is limited to only occasional
interaction with the public and co-workers and only occasional supervision. (AR 18.) The ALJ
first considered Daniels’s testimony. Daniels dresses herself, takes care of her personal needs,
cooks, shops, does housework, and takes public transportation. She avoids crowds, does not

8

Listings 12.00 covers nine mental disorders. 20 C.F.R. Pt. 404, subpt. P, app’x 1 § 12.00. Affective
disorders are “characterized by a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome. Mood refers to prolonged emotion that colors the whole psychic life; it generally
involves either depression or elation.” Id. at § 12.04. Substance addiction disorders are characterized by
“behavioral changes or physical changes associated with the regular use of substances that affect the
central nervous system.” Id. at § 12.09.
16

attend religious services because she does not want to be around people, and does not visit
friends or relatives. The ALJ concluded that although Daniels’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms, Daniels’s testimony
concerning the intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity assessment.”
(AR 19.) The ALJ then listed other reasons why Daniels’s alleged limitations are not supported
by the evidence of record.
The ALJ gave “great weight” to the testimony of Dr. Greenberg, a medical expert who
reviewed the entire medical record and testified at Daniels’s hearing. The ALJ noted that Dr.
Greenberg testified that despite Daniels’s physical impairments, she has no significant problems
and could perform a full range of sedentary work.
The ALJ gave “some weight” to the report of internal medicine consultative examiner,
Dr. Lathan, who found that Daniels had moderate restriction for strenuous exertion but a full
range of motion in the spine, joints, and hips with no sensory deficit or motor loss. The ALJ
found Dr. Lathan’s report vague, but determined that it and Dr. Greenberg’s testimony were
consistent with sedentary work that does not require strenuous exertion.
The ALJ gave “great weight” to the report of psychiatric consultative examiner, Dr.
Meadow, who opined that Daniels would be able to perform all tasks necessary for vocational
functioning because her mental status examination was normal. (AR 19-20.) The ALJ noted that
Dr. Meadow examined Daniels at length. Along with this finding, the ALJ took into account
Daniels’s subjective complaints of difficulty dealing with people.
Lastly, although nurse practitioners are not acceptable medical sources, the ALJ
considered the reports of NP Santangelo, who had the longest treating relationship with Daniels.

17

The ALJ afforded Santangelo’s opinion “little weight” because she found it to be inconsistent
with other evidence. Santangelo found that Daniels had marked limitation of activities of daily
living as a result of chronic fatigue due to severe anemia. The ALJ found that Daniels’s own
testimony, along with what she reported to Drs. Meadow and Lathan, however, indicate that she
is able to engage in activities of daily living.
At step four, the ALJ determined that based on Daniels’s RFC and the testimony of the
vocational expert, she is capable of performing past relevant work as an inserter. The inserter job
requires a sedentary level of exertion and has an SVP of 2, which means that it is unskilled and
can be learned in 30 days or less. Because there were other jobs in the economy that Daniels is
also able to perform, the ALJ continued to step five.
At step five, the ALJ considered whether Daniels could make a successful adjustment to
other work based on her RFC, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines and the vocational expert’s testimony. The ALJ determined that
Daniels fits into the 45-49 age group, has limited education, is able to communicate in English,
and her past relevant work is unskilled. Daniels’s ability to perform the full range of sedentary
work is impeded by additional limitations. The vocational expert testified that given those
limitations, Daniels would still be able to perform the requirements of representative occupations
such as assembler, clerical worker, and account clerk. As a result, the ALJ concluded that
Daniels is not under a disability, as defined in the Act, and is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy. (AR 21-22.)

18

DISCUSSION
I.

Standard of Review
A party may move for judgment on the pleadings “[a]fter the pleadings are closed – but

early enough not to delay trial.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion should be granted “if,
from the pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int’l Sec.
Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47
F.3d 14, 16 (2d Cir. 1995) (per curiam). In reviewing a decision of the Commissioner, a court
may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner . . . with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g).
A determination of the ALJ may be set aside only if it is based upon legal error or is not
supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). “Substantial
evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31
(2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the
Commissioner as to any fact are supported by substantial evidence, those findings are
conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). See also Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the factfinder.”). This means that if there is sufficient
evidence to support the final decision, the Court must grant judgment in favor of the
Commissioner, even if there also is substantial evidence for the plaintiff’s position. See Brault v.
Soc. Sec’y Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (finding that “[t]he substantial
evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable

19

factfinder would have to conclude otherwise” (internal citation and quotation marks omitted;
emphasis in original)).
“Before determining whether the Commissioner’s conclusions are supported by
substantial evidence, however, ‘we must first be satisfied that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Act.” Moran v.
Astrue, 569 F.3d 108, 110 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.
1990)). The Act “must be liberally applied, for it is a remedial statute intended to include not
exclude.” Cruz, 912 F.2d at 11. This is particularly true in the case of pro se claimants, who “are
entitled to a liberal construction of their pleadings,” and, therefore, their complaints “should be
read to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83
(2d Cir. 2001) (citation and quotations omitted). See also Alvarez v. Barnhart, 03 Civ. 8471
(RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005) (articulating pro se standard in
reviewing denial of disability benefits).
Though generally entitled to deference, an ALJ’s disability determination must be
reversed or remanded if it is not supported by “substantial evidence” or contains legal error. See
Rosa, 168 F.3d at 77. Thus, “in order to accommodate ‘limited and meaningful’ review by a
district court, the ALJ must clearly state the legal rules he applies and the weight he accords the
evidence considered.” Rivera v. Astrue, 10 Civ. 4324 (RJD), 2012 WL 3614323, at *8 (E.D.N.Y.
August 21, 2012) (citing Reyzina v. Apfel, 98 Civ. 1288 (JG), 1999 WL 65995, at *13 (E.D.N.Y.
February 10, 1999)). Without doing so, the ALJ deprives the Court of the ability to determine
accurately whether his opinion is supported by substantial evidence and free of legal error.
Where the ALJ fails to provide an adequate roadmap for his reasoning, remand is appropriate.
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“[W]e do believe that the crucial factors in

20

any determination must be set forth with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.”).
II.

Definition of Disability
A claimant is disabled under the Act if she demonstrates an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A
determinable physical or mental impairment is defined as one that “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A claimant will be
determined to be disabled only if the impairment(s) are “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 . . . .”
42 U.S.C. § 423(d)(2)(A).
Under the authority of the Act, the SSA has established a five-step sequential evaluation
process when making disability determinations. See 20 C.F.R. § 404.1520. The steps are
followed in order: if it is determined that the claimant is not disabled at a step of the evaluation
process, the evaluation will not progress to the next step. The Court of Appeals has described the
process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not,
the Commissioner next considers whether the claimant has a “severe
impairment” that significantly limits her physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment that is listed in 20 C.F.R.
Pt. 404, subpt. P, app. 1 . . . . Assuming the claimant does not have
21

a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, she has the residual functional
capacity to perform her past work. Finally, if the claimant is unable
to perform her past work, the burden then shifts to the Commissioner
to determine whether there is other work which the claimant could
perform.
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). A claimant bears the
burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is
only after the claimant proves that she cannot return to prior work that the burden shifts to the
Commissioner to show, at step five, that other work exists in the national and local economies
that the claimant can perform, given her RFC, age, education, and past relevant work experience.
20 C.F.R. § 404.1560(c)(2); Melville, 198 F.3d at 51.
If an impairment is found to be “severe” at step two, the ALJ looks to 20 C.F.R. Part 404,
Subpart P, App’x 1 to determine if it qualifies as a listed impairment at step three. 20 C.F.R.
§ 404.1520a(d)(2). The regulations provide additional guidance for evaluating mental
impairments. 20 C.F.R. § 404.1520a(c)(1). Calling it a “complex and highly individualized
process,” the section focuses the ALJ’s inquiry on determining how the impairment “interferes
with [the claimant’s] ability to function independently, appropriately, effectively, and on a
sustained basis.” 20 C.F.R. § 404.1520a(c)(2). For mental disorders, a claimant must show in
part that she has at least two of the so-called “paragraph B criteria” or the “paragraph C criteria.”
The paragraph B criteria require at least two of the following: (1) marked restriction of activities
of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties
in maintaining concentration, persistence, or pace; and (4) repeated episodes of decompensation.
20 C.F.R. Part 404, subpt. P, app’x 1 § 12.04(B). The first three are rated on a “five-point scale”:
none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The last area –
episodes of decompensation – is rated on a “four-point scale”: none, one or two, three, and four
22

or more. Id. The paragraph C criteria require: (1) repeated episodes of decompensation, each for
extended duration; (2) a residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or (3) a current history of one or more years’
inability to function outside a highly supportive living arrangement, with an indication of
continued need for such an arrangement. 20 C.F.R. Part 404, subpt. P, app’x 1 § 12.04(B).
III.

Analysis
Pro se plaintiff Daniels appeals the Commissioner’s decision on the basis that she is

entitled to the SSI benefits because of her HIV, chronic anemia, and leg pain. The Commissioner
has moved for judgment on the pleadings, arguing that substantial evidence supports the ALJ’s
decision, the ALJ satisfied her duty to develop the record, Daniels made a knowing waiver of her
rights to representation at her Administrative Hearing, and the ALJ properly evaluated Daniels’s
credibility.
A.

The ALJ’s Duty to Develop the Record

The Court must address whether the ALJ adequately developed the record as a threshold
issue. This is because the Court cannot rule on whether the ALJ’s decision regarding Daniels’s
functional capacity was supported by substantial evidence if the determination was based on an
incomplete record. The Court finds that the ALJ satisfied her burden.
When the ALJ assesses a claimant’s alleged disability, she, “unlike a judge in a trial,
must on behalf of all claimants . . . affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceedings.” Moran, 569 F.3d at 112 (quotations omitted);
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (confirming that the ALJ has an affirmative duty
to develop the record, which “arises from the Commissioner’s regulatory obligations to develop

23

a complete medical record before making a disability determination”). See also 42 U.S.C.
§ 423(d)(5)(b), 20 C.F.R. § 404.1512(d). The Court, in turn, must make a “searching
investigation of the record” to ensure that the claimant received “a full hearing under the
[Commissioner’s] regulations and in accordance with the beneficent purposes of the Act.”
Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quotations omitted). When the ALJ has
failed to develop the record adequately, the Court must remand to the Commissioner for further
development. See, e.g., Pratts, 94 F.3d at 39.
Under this duty, the ALJ must “make every reasonable effort to obtain from the
individual’s treating physician (or other treating health care provider) all medical evidence
including diagnostic tests, necessary in order to properly make such determination, prior to
evaluating medical evidence obtained from any source on a consultative basis.” 42 U.S.C.
§ 423(d)(5)(B). See Devora v. Barnhart, 205 F. Supp. 2d 164, 174 (S.D.N.Y. 2002); Peed v.
Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991). A “reasonable effort” means that the ALJ
“will make an initial request for evidence” from the claimant’s medical source and make one
follow up request between 10-20 calendar days after the initial one. 20 C.F.R. § 416.912(d)(1).
The ALJ also may ask a claimant “to attend one or more consultative examinations at [the
Commissioner’s] expense”:
Generally, we will not request a consultative examination until we
have made every reasonable effort to obtain evidence from your own
medical sources. However, in some instances, such as when a source
is known to be unable to provide certain tests or procedures or is
known to be nonproductive or uncooperative, we may order a
consultative examination while awaiting receipt of medical source
evidence. We will not evaluate this evidence until we have made
every reasonable effort to obtain evidence from your medical
sources.
20 C.F.R. § 416.912(e).

24

Where a claimant is unrepresented, “compliance with the minimum requirements of the
regulations is not always sufficient to satisfy the ALJ’s heightened duty to develop the record.”
Williams v. Barnhart, 05 Civ. 7503 (JCF), 2007 WL 924207, at *7 (S.D.N.Y. March 27, 2007)
(collecting cases); Cruz, 912 F.2d at 11 (When a claimant is pro se, “the ALJ is under a
heightened duty ‘to scrupulously and conscientiously probe into, inquire of, and explore for all
the relevant facts.’” (internal quotations omitted) (quoting Echevarria v. Sec’y of Health and
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982))). Thus, with pro se claimants, “reasonable
efforts” to develop the record include “more than merely requesting reports from the treating
physicians. It includes issuing and enforcing subpoenas requiring the production of evidence, as
authorized by 42 U.S.C. § 405(d), and advising the plaintiff of the importance of the evidence.”
Jones v. Apfel, 66 F. Supp. 2d 518, 524 (S.D.N.Y. 1999) (citation omitted) (remanding to
develop the record where the record lacked any report from the claimant’s treating physician).
See also Rosa, 168 F.3d at 79. Further, the ALJ must “enter these attempts at evidentiary
development into the record.” Jones, 66 F. Supp. 2d at 524.
Here, the medical evidence after Daniels’s September 22, 2010 application date includes
reports by consultative physicians Dr. Edward Kamin, Dr. William Lathan, Dr. Herb Meadow,
and reports by NP Valerie Santangelo. A fourth non-examining consultative physician, Dr.
Gerald Greenberg, also testified at Daniels’s administrative hearing. Drs. Kamin, Lathan, and
Meadow each met with Daniels once. Dr. Greenberg reviewed the medical record and heard
from Daniels herself only through her testimony at the Administrative Hearing.
NP Santangelo saw Daniels six times in the eight months after Daniels’s application date
(and two times before that). Of these providers, she had by far the longest relationship with
Daniels. Nurse practitioners, however, are not “acceptable medical sources” under the

25

regulations. See Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995) (citing 20 C.F.R. §404.1527);
20 C.F.R. § 404.1513(a) (listing five categories of “acceptable medical sources”). Nurse
practitioners are included in the regulations’ Section 404.1513(d), which characterizes “other
sources” to whom the ALJ can look to show the severity of a claimant’s impairment(s) or ability
to work. 20 C.F.R. § 404.1513(d). Although the opinions of a nurse practitioner with a
longitudinal treatment history with a claimant are due some weight, they are not due the
controlling weight that a treating physician’s opinions garner. See Mongeur, 722 F.2d at
1039 n.2 (stating the opinion of a treating nurse practitioner “is entitled to some extra
consideration”); Mendez v. Colvin, 13 Civ. 3618 (GWG), 2014 WL 6979043, at *10 (S.D.N.Y.
Dec. 9, 2014) (citing Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008) (“Genier I”)).
Although the record does not contain her opinions, numerous places in the record indicate
that Daniels had a treating physician: Dr. Chaudhry. In the Disability Report – Appeal – Form
SSA – 3441, Daniels reported that she saw Dr. Chaudhry for depression and anxiety, and that Dr.
Chaudhry prescribed her medications at Woodhull Medical and Mental Health Center from 2009
to March 2011. (AR 178-79.) In a November 10, 2010 visit, NP Santangelo noted that although
Daniels requested a Xanax prescription, Dr. Chaudhry would not prescribe it. (AR 192.) In
Daniels’s consultative exam with psychiatrist Dr. Meadow, she reported that she had been in
monthly psychiatric treatment for depression with Dr. Chaudhry for two years. (AR 227.) Two
undated reports, signed and stamped by Dr. Chaudhry, in the record list Daniels’s prescribed
medications. (AR 268-69.) Three “Chart Updates,” dated between January 19, 2011 and August
25, 2011, indicate that they were “documented by Faisal Chaudhry, MD” and again list Daniels’s
prescriptions. (AR 292-93, 321-22.) At no point in the record, however, are there any

26

contemporaneous treatment reports or opinions of Dr. Chaudhry. When asked at the hearing
about her primary care providers, Daniels also mentioned only Santangelo. (AR 77.)
Despite this shortcoming in the record, the Court finds that the ALJ met her “heightened
duty” to make “every reasonable effort” to obtain reports from Dr. Chaudhry, documented those
attempts, and then sought consultative examinations when efforts to contact Dr. Chaudhry
proved unproductive. Cruz, 912 F.2d at 11; 42 U.S.C. § 423(d)(5)(B). First, the ALJ made
requisite initial and follow-up attempts to obtain the reports from Dr. Chaudhry on November 29,
2010 and December 7, 2010, in compliance with 20 C.F.R. § 416.912(d)(1). (AR 253.) Although
an Administration’s Disability Worksheet states, under “disposition,” that there is “no code
applicable to situation, see R/C” for Dr. Chaudhry (AR 252), the Commissioner explains that the
entry was in error: because the initial and follow-up attempts were made and Dr. Chaudhry failed
to respond, Dr. Chaudhry should have been coded as “source did not respond to the
Commissioner’s requests.” (ECF No. 28 at 1.) Cf. Smith v. Astrue, 1:05 Civ. 1433 (NAM), 2008
WL 4517810, at *8-9 (N.D.N.Y. Sept. 30, 2008) (remanding where the record was bereft of any
attempt to obtain the treating physician’s opinion by way of letters or subpoenas).
Given the unproductive efforts to obtain Dr. Chaudhry’s reports, the ALJ next sought
consultative examinations, in compliance with 20 C.F.R. § 416.912(e). The record suggests that
the Commissioner sent Daniels letters and called Daniels to inform her of two scheduled
consultative exam appointments (AR 175), although the phone number that Daniels provided the
Commissioner was out of service on several occasions. (AR 173-76.) After Daniels failed to
show up at two scheduled appointments, the Commissioner again attempted to contact Daniels
and her third party contact on December 30, 2010, but was unsuccessful. (AR 173-74.) Daniels
then called the Commissioner on January 6, 2011, and the Commissioner advised Daniels that

27

she “tried to contact [Daniels] by phone and by mail and contact [Daniels’s] daughter who is the
third party by phone and by mail.” (AR 175.) Daniels explained that she had been out of town
and requested a third appointment, to which the Commissioner consented but advised “if she
does not go[,] her claim would be decided with information we have on file and this will not be
in her best interest.” (Id.) The Commissioner also warned Daniels that she needed to inform them
of any changes of address or if she was leaving town for an extended period of time. (Id.)
Daniels’s consultative examinations with Drs. Lathan and Meadow on January 24, 2011, and Dr.
Kamin on February 1, 2011, presumably were a result of these ongoing efforts. The ALJ then
had a fourth doctor, Dr. Greenberg, examine all of her medical records, listen to Daniels’s
hearing testimony and then testify at that hearing, as well.
The Court finds that the ALJ made every reasonable effort to develop the record, in
compliance with 20 C.F.R. §§ 416.912(d)(1), 416.912(e). Although Dr. Chaudhry, as Daniels’s
treating psychiatrist, was better positioned to evaluate Daniels’s disability than a consultative
physician, the standard for the duty to develop the record is reasonableness: there is but so much
that the ALJ can do beyond what she did here.
Lastly, the ALJ also satisfied her duty to inform Daniels of her right to counsel, a
subcomponent of the ALJ’s duty to develop the record. The Commissioner sent Daniels notices
advising her of that right (AR 27, 32-33, 40-41, 44-45), and at one hearing, Daniels appeared
with a representative. (AR 106.) At the final hearing, the ALJ also advised Daniels of that right.
(AR 69.) Thus, there was no legal error where Daniels proceeded at the hearing without counsel.
See Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir. 1990).

28

B.

Treating Physician Rule

The “treating physician rule” instructs the ALJ to give controlling weight to the opinions
of a claimant’s treating physician, as long as the opinion is well-supported by medical findings
and is not inconsistent with the other evidence in the record. 20 C.F.R. § 404.1527(c)(2). The
rule is inextricably linked to the ALJ’s duty to develop the record. See Williams, 2007 WL
924207, at *7; Geracitano v. Callahan, 979 F. Supp. 952, 956 (W.D.N.Y. 1997) (“A
corollary . . . to the treating physician rule [is] that the decision maker [has] a duty to seek
clarification from a treating physician in the event the physician’s report [is] somehow
incomplete.”).
Affording a treating physician’s opinion controlling weight reflects the reasoned
judgment that treating physicians are “most able to provide a detailed, longitudinal picture of
[the claimant’s] 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 examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 404.1527(c)(2). See also Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (“The opinion
of a treating physician is accorded extra weight because the continuity of treatment he provides
and the doctor/patient relationship he develops place him in a unique position to make a
complete and accurate diagnosis of his patient.” (quoting Mongeur v. Heckler, 722 F.2d 1033,
1039 n.2 (2d Cir. 1983) (per curiam))). By contrast, the regulations instruct the ALJ to give only
limited weight to consulting physicians’ opinions because of their typically superficial exposure
to the plaintiff. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 20 C.F.R. Pt. 404, subpt. P, app’x 1
§ 12.00(E). See also Gonzalez v. Apfel, 113 F. Supp. 2d 580, 588-89 (S.D.N.Y. 2000) (the
opinion of a physician who saw plaintiff only once deserves limited weight). Only when the

29

treating physician’s opinion is inconsistent with other substantial evidence in the record may a
consultative physician’s report constitute substantial evidence. Guzman v. Astrue, 09 Civ. 3928
(PKC), 2011 WL 666194, at *9 (S.D.N.Y. February 4, 2011).
Where mental health treatment is at issue, the treating physician rule takes on added
importance. See 20 C.F.R. Pt. 404, subpt. P, app’x 1 § 12.00(E); Camilo v. Comm’r of Soc.
Sec’y, 11 Civ. 1345 (DAB)(MHD), 2013 WL 5692435, at *22 (S.D.N.Y. Oct. 2, 2013);
Rodriguez v. Astrue, 07 Civ. 534 (WHP)(MHD), 2009 WL 637154, at *26 (S.D.N.Y. March 9,
2009). See also Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 514
(2d Cir. 2002) (“[C]ourts should exercise an extra measure of caution when adjudicating the
claims of a litigation whose mental capacity is in question.”); SSR 85–15, 1985 WL 56857 (Jan.
1, 1985) (explaining that persons with mental illnesses “adopt a highly restricted and/or
inflexible lifestyle within which they appear to function well” and thus, “determining whether
these individuals will be able to adapt to the demands or ‘stress’ of the workplace is often
extremely difficult”). This is because a mental health patient may have good days and bad days;
she may respond to different stressors that are not always active. Thus, the longitudinal
relationship between a mental health patient and her treating physician provides the physician
with a rich and nuanced understanding of the patient’s health that cannot be readily achieved by
a single consultative examination. See Santiago v. Barnhart, 441 F. Supp. 2d 620, 629 (“The
Treating Physician Rule recognizes that a physician who has a long history with a patient is
better positioned to evaluate the patient’s disability than a doctor who observes the patient once
for the purposes of a disability hearing. The rule is even more relevant in the context of mental
disabilities, which by their nature are best diagnosed over time.” (citations omitted)). See also
Canales v. Comm’r of Soc. Sec’y, 698 F. Supp. 2d 335, 342 (E.D.N.Y. 2010) (“Because mental

30

disabilities are difficult to diagnose without subjective, in-person examination, the treating
physician rule is particularly important in the context of mental health.” (citing Richardson v.
Astrue, 09 Civ. 1841 (SAS), 2009 WL 4793994, at *7 (S.D.N.Y. December 14, 2009))).
When there is no treating physician’s opinion, the Commissioner must still consider
whether the consultative opinions are supported by and consistent with the other evidence in the
record: “The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings,” and the “better an explanation a source
provides for an opinion, the more weight we will give that opinion. [Further], the more consistent
an opinion is with the record as a whole, the more weight we will give to that opinion.”
20 C.F.R. § 416.927(c). The Commissioner may also consider the opinions of non-examining
sources, such as State agency physicians. 20 C.F.R. § 416.927(e); SSR 96-6P, 1996 WL 374180
(July 2, 1996).
Ultimately, the final decision on the issue of disability is one reserved for the
Commissioner. 20 C.F.R. § 404.1527(d)(2); see Snell, 177 F.3d at 133 (“[T]he Social Security
Administration considers the data that physicians provide but draws its own conclusions as to
whether those data indicate disability. A treating physician’s statement that the claimant is
disabled cannot itself be determinative.”).
Here, the ALJ relied on Daniels’ three consultative examinations, as well as the opinion
of a non-examining State agency physician, and notes from Daniels’s treatment with NP
Santangelo. First, the ALJ gave “great weight” to the opinion of non-examining physician Dr.
Greenberg who reviewed the entirety of Daniels’s records and testified at trial. Although Dr.
Greenberg found that Daniels has HIV, Hepatitis C, and anemia, he testified that her illnesses
appear to be “under good control” and no other “significant problems” appear in her medical

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files. Second, the ALJ gave “some weight” to Dr. Lathan’s physical examination opinion. She
noted that Dr. Lathan found that Daniels had moderate restriction for strenuous exertion but gave
him a lesser weight because, in contrast to that conclusion, his results show Daniels has a full
range of motion in her spine, joints, and hips. She also compared his findings to Dr. Greenberg to
judge the consistency of the two. Third, the ALJ gave “great weight” to Dr. Meadow’s
psychiatric examination as Dr. Meadow found that Daniels’s mental status examination was
normal and she could perform all tasks necessary for vocational functioning. The ALJ
supplemented Dr. Meadow’s opinion by taking into account Daniels’s own subjective account of
having difficulty dealing with others. Lastly, the ALJ considered NP Santangelo’s opinion but
ultimately gave it “little weight.” The ALJ found that NP Santangelo’s finding that Daniels had
marked limitation in activities of daily living was not supported by Drs. Meadow or Lathan’s
opinions, which documented Daniels’s ability to do household chores and take care of her
personal hygiene.
Thus, the ALJ adhered to the underlying principles of the treating physician rule. She
compared the medical evidence in the record to assess whether the opinions were consistent with
one another and consistent with Daniels’s own account. In weighing all the evidence, she gave
the most weight to opinions that were supported by and consistent with that other evidence.
Although the ALJ did not specifically reference Dr. Kamin’s consultative exam, that
omission does not require remand. Dr. Kamin’s consultative exam is consistent with the
substantial evidence and the ALJ’s determination. Dr. Kamin noted that Daniels had been treated
on an outpatient basis, with no psychiatric hospitalizations, and that she was capable of
performing all tasks necessary for vocational functioning despite some mild impairments. Thus,
Dr. Kamin’s assessment acknowledged that “the mere presence of a disease or impairment, or

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establishing that a person has been diagnosed or treated for a disease or impairment is not, itself,
sufficient to deem a condition severe.” Tryon v. Astrue, 5:10 Civ. 537 (MAD), 2012 WL
398952, at *3 (N.D.N.Y. Feb. 7, 2012) (internal quotations and citations omitted).
C.

Credibility Determination

It is the ALJ’s role to evaluate a claimant’s credibility and to decide whether to discredit
a claimant’s subjective estimate of the degree of her impairment. Tejada v. Apfel, 167 F.3d 770,
775-76 (2d Cir. 1999). See also 20 C.F.R. § 416.929(b) (dictating that an individual’s subjective
complaints alone do not constitute conclusive evidence of a disability). In making a credibility
determination, if a claimant alleges symptoms of greater severity than established by the
objective medical findings, the ALJ should “consider all available evidence,” including the
claimant’s daily activities, the location, nature, extent, and duration of her symptoms,
precipitating and aggravating factors, the type, dosage, effectiveness and side effects of
medications taken, and other treatment undertaken to relieve symptoms. Cichocki v. Astrue, 534
F. App’x 71, 71 (2d Cir. 2013) (citing 20 C.F.R. § 415.929(c)(2)); 20 C.F.R.
§§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3). See also Cruz v. Colvin, 12 Civ. 7346 (PAC)(AJP),
2013 WL 3333040, at *15-16 (S.D.N.Y. July 2, 2013) (holding that the ALJ must determine the
claimant’s credibility in light of the objective record evidence).
SSA regulations provide that the ALJ must assess a claimant’s credibility before
evaluating her RFC, not the other way around. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010) (“Genier II”) (citing 20 C.F.R. §§ 404.1529(a)-(b), 404.1512(b)(3); Social Security Ruling
(“SSR”) 96-7p, 1996 WL 374186 (July 2, 1996)); Cruz, 2013 WL 3333040, at *16 (collecting
cases). Dismissing a claimant’s testimony based on its incompatibility with an RFC “gets things
backwards” because it “implies that ability to work is determined first and is then used to

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determine the claimant’s credibility.” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)).
See also Molina v. Colvin, 13 Civ. 4989 (AJP), 2014 WL 3445335, at *14 (S.D.N.Y. July 15,
2014) (“Neither the Social Security regulations nor this Circuit’s case law support the idea that
an ALJ may discredit a claimant’s subjective complaints on the basis of the ALJ’s own finding
of the claimant’s RFC.” (collecting cases)); Otero v. Colvin, 12 Civ. 4757 (JG), 2013 WL
1148769, at *7 (E.D.N.Y. Mar. 19, 2013) (“[I]t makes little sense to decide on a claimant’s RFC
prior to assessing her credibility. It merely compounds the error to then use that RFC to conclude
that a claimant’s subjective complaints are unworthy of belief.”).
Here, the ALJ wrote that she found that Daniels’s statements were “not credible to the
extent that they [were] inconsistent with the above residual functional capacity assessment.”
(AR 19.) Use of this boilerplate language is error. Credibility is to be measured against objective
medical evidence, not against the ALJ’s assessment of a claimant’s capacity. Remand, however,
is not necessary because the Court has independently compared Daniels’s statements about the
intensity, persistence, or limiting effects of her impairment to the objective medical and other
evidence in the record and finds that the ALJ’s credibility finding is supported by substantial
evidence. Further, despite this error, other portions of the ALJ’s decision indicate that the ALJ
did consider Daniels’s credibility vis-à-vis other medical evidence in the record and did credit
some of Daniels’s testimony.
For instance, the ALJ credited Daniels’ own testimony to determine that she had
moderate difficulties in social functioning. The ALJ also took some of Daniels’s other
complaints into account in defining Daniels’s RFC: the ALJ limited Daniels’s interaction with
co-workers, the public, and supervisors, and she limited Daniels to sedentary work. See Genier
II, 606 F.3d at 49 (“[T]he ALJ is required to take the claimant’s reports of pain and other

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limitations into account, but is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant’s
testimony in light of the other evidence in the record.” (internal citations omitted)); 20 C.F.R.
§ 416.929(b) (dictating that an individual’s subjective complaints alone do not constitute
conclusive evidence of a disability).
Although the error does not require remand, in the future, the ALJ should assess the
claimant’s credibility against the objective medical evidence and then render an RFC assessment.
D.

The Remaining Portions of the ALJ’s Determination

In reviewing the rest of the ALJ’s determinations at steps one through five, the Court
finds that the ALJ’s opinion is supported by substantial evidence and free of legal error, as well.
After determining that Daniels was not engaged in substantial gainful activity, the ALJ
considered both Daniels’s physical impairments (HIV and anemia) and her mental impairments
to see if any of them met the Listings, which she explained they did not. The ALJ based
Daniels’s RFC on “all available evidence,” including Daniels’s subjective complaints and all
medical evidence in the record, and considered Daniels’s daily activities, the location, nature and
extent of her symptoms, precipitating and aggravating factors, the effectiveness and side effects
of medications taken, and other treatments undertaken to relieve symptoms. Cichocki, 534 F.
App’x at 71 (citing 20 C.F.R. § 415.929(c)(2)). See also Cruz v. Colvin, 12 Civ. 7346
(PAC)(AJP), 2013 WL 3333040, at *15-16 (S.D.N.Y. July 2, 2013) (holding that the ALJ must
determine the claimant’s credibility in light of the objective record evidence). Substantial
evidence supports the ALJ’s conclusions that Daniels has only mild restrictions in daily living
and concentration, persistence, or pace and moderate difficulties in social functioning.

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Finally, the ALJ posed hypotheticals to a vocational expert that were based on Daniels’s
RFC and therefore took into account Daniels’s limitations. The ALJ ultimately concluded,
partially in reliance on the vocational expert’s testimony, that there are jobs in the national and
regional economy that Daniels is capable of performing. Because a claimant “can only be found
disabled if [she is] unable to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment,” the ALJ concluded that Daniels is not disabled
under the Act. 20 C.F.R. § 416.927(a)(1). Substantial evidence supports her conclusion.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
GRANTED, and the case is dismissed with prejudice.
SO ORDERED.

DATED: New York, New York
March 5, 2015

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