Otanez v. Colvin

Filing 17

OPINION AND ORDER: For the foregoing reasons, Otanez's motion for judgment on the pleadings is GRANTED insofar as it requests remand for rehearing; and the Commissioner's motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 1/12/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MARIA OTANEZ,
:
:
:
Plaintiff,
:
:
v.
:
CAROLYN W. COLVIN, Acting Commissioner of :
:
Social Security,
:
:
Defendant.
:
--------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 12, 2016
______________

14 Civ. 8184 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Maria Otanez filed this action pursuant to Section 205(g) of the
Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of a decision
by the Acting Commissioner of Social Security (the “Commissioner”) denying
Otanez’s application for Social Security Disability Insurance benefits based on
a finding that Otanez did not meet the Act’s criteria for disability. The parties
have filed cross-motions for judgment on the pleadings. Because the
Commissioner’s decision did not properly apply the treating physician rule,
Plaintiff’s motion is granted insofar as it seeks remand, Defendant’s motion is
denied, and the ALJ’s opinion is reversed.

BACKGROUND 1
Otanez first filed a Title II application for Disability Insurance benefits on
January 24, 2011, alleging disability as of June 2, 2010. (SSA Rec. 44). The
Commissioner denied this initial claim on August 1, 2011. (Id. at 98). Otanez
subsequently requested and received a hearing before an Administrative Law
Judge (the “ALJ”), pursuant to 20 C.F.R. § 404.929, at which she appeared
with counsel and testified with the assistance of a Spanish-language translator
on January 29, 2013. (Id. at 74).
A.

Otanez’s History and Impairments
At the hearing, Otanez provided information about her education,

employment history, living circumstances, and daily activities. She explained
that she immigrated to the United States from the Dominican Republic in
1998, and that she had received an eighth-grade education. (SSA Rec. 82).
She reported that she lived with her two children, a 23-year-old son and a 19year-old daughter, and that while she had previously held various jobs, she
had not been working since June 2, 2010 — the date as of which she claimed
disability. (Id. at 76-77). Immediately prior to that date Otanez had worked as
a home attendant, caring for an elderly woman full-time. (Id. at 77). On
June 2, 2010, Otanez was riding in an ambulance to take her client to the
hospital when the ambulance was struck by another car. (Id. at 79). Otanez

1

The facts contained in this Opinion are drawn from the Social Security Administrative
Record (“SSA Rec.”) (Dkt. #7) filed by the Commissioner. For convenience, Plaintiff’s
supporting memorandum (Dkt. #10) is referred to as “Pl. Br.,” Defendant’s supporting
memorandum (Dkt. #13) as “Def. Br.”; and Defendant’s memorandum in opposition
(Dkt. #14) as “Def. Opp.”

2

sustained injuries in the crash, for which she received (and, at the time of the
hearing, continued to receive) both medical treatment and worker’s
compensation payments in the bi-weekly amount of $215.00. (Id. at 80).
Otanez testified that as a result of her injuries, she suffered chronic pain
in her head, neck, shoulders, and knees, and had seen multiple doctors to
treat both physical and psychological symptoms. (SSA Rec. 80-81). She
additionally testified that her ability to complete daily tasks was limited: She
could cook “a little bit,” but had to have her children shop for food and do the
laundry. (Id. at 82-83). She rode the bus independently when she was not
“feel[ing] really bad,” but could not take the train alone due to anxiety. (Id. at
83-84). As a consequence of her inability to work outside the home and her
chronic pain, Otanez became anxious and depressed, conditions for which she
received psychological treatment. (Id. at 81). Otanez additionally attended
physical therapy two to three times a week to address her ongoing physical
symptoms. (Id. at 83).
Otanez’s then 18-year-old daughter, Katherine Otanez (“Katherine”),
completed a third-party function report for her mother on July 20, 2011. (SSA
Rec. 218). Katherine’s report primarily corroborated her mother’s account of
her limitations, stating that Otanez suffered from dizziness, neck and back
pain, and depression. (Id.). Katherine described her mother’s daily activities
as consisting of attending physical therapy, watching television, and sometimes
making herself food. (Id. at 219). She stated that her mother needed help
dressing, bathing, and doing her hair, and that Otanez could only prepare
3

simple meals because she was unable to stand long enough to cook anything
more. (Id. at 220). Katherine noted that she helped with household chores,
and that her mother did not do any shopping or leave the house other than to
attend doctors’ appointments. (Id. at 220-21). In regards to her mother’s
mental health, Katherine reported that she felt her mother had changed,
stating that “[s]he cries most of the time and has no interest in the things she
used to like.” (Id. at 224).
B.

Otanez’s Physical Evaluations and Treatment
Otanez has seen numerous medical professionals during the period since

her accident. In setting forth the relevant factual background, the Court
focuses on the practitioners and medical evidence most germane to the
contentions of the parties.
1.

Radiology Reports

Otanez received a Magnetic Resonance Imaging test (an “MRI”) of her
lumbar spine at the Bronx Park Medical Pavilion; the test was then interpreted
in a report dated June 24, 2010. (SSA Rec. 319). The imaging showed mild
disc desiccation and loss of disc space height at multiple vertebrae, as well as
small posterior facet joint effusions at vertebrae L4-L5 and L5-S1 consistent
with arthritic changes. (Id.). A disc bulge with bilateral foraminal components
was visible, as well as thickening of the posterior longitudinal ligament, which
was mildly indenting the thecal sac. (Id. at 320). 2 Finally, “a left foraminal

2

The thecal sac, also called the dural tube, is a fluid-filled sac in which the spinal cord
floats. Tethered Cord, American Association of Neurological Surgeons,

4

disc protrusion ... appear[ed] to be compromising the left foramen.” (Id.). The
spinal imaging was otherwise unremarkable.
An X-ray of Otanez’s shoulders, elbows, knees, chest, and spine
conducted on June 29, 2010, at Greater New York Radiology, P.C., showed
normal bones, joints, and soft tissue. (SSA Rec. 323-28). X-rays taken a year
later, on June 30, 2011, showed normal images for the lumbosacral spine, and
mild disc thinning in the cervical spine. (Id. at 431-32).
2.

Dr. Okon Umana, M.D.

Otanez has seen Dr. Okon Umana, an internal medicine practitioner, for
physical therapy sessions and examinations a total of 15 times over the period
spanning from June 16, 2010, to October 26, 2012. (SSA Rec. 332, 348, 371,
374, 384, 400, 406, 547, 549, 555, 561, 567, 575, 580, 585). According to a
letter written by Dr. Umana dated July 9, 2010, Otanez was receiving
treatment for headaches, problems with her cervical spine, dizziness, and
bilateral shoulder problems. (Id. at 277). He reported that these conditions
arose out of Otanez’s June 2, 2010 car accident, and that they left her “totally
disabled.” (Id.). Consequently Otanez would be “unable to return to work for
the next six weeks.” (Id.). Despite the limited temporal scope of this prognosis,
an evaluation from Dr. Umana two years later, on August 26, 2012, stated

http://www.neuroandspine.com/conditions/ pediatric-neurosurgery/tethered-cord
(last visited Jan. 11, 2016).

5

that, in Dr. Umana’s opinion, Otanez was “totally disabled and [could] not
[presently] return to work.” (Id. at 544).
Dr. Umana completed multiple medical source statements over the course
of his treating relationship with Otanez. The first of these, completed on
October 4, 2011, reported that Otanez could continuously sit for 30 minutes at
a time, stand for 10 minutes, and walk — with the assistance of a cane — for
10 minutes. (SSA Rec. 491). Over the course of an eight-hour workday,
Otanez could sit for a total of one hour, stand for a total of 10 minutes, and
walk for a total of 30 minutes. (Id.). Under “clinical findings,” Dr. Umana
listed cervical and lumbosacral radiculopathy, and internal derangement of
both shoulders (id. at 490), additionally noting that Otanez could not “bend,
stoop, lift or carry heavy obj[ects]” as a result of her condition (id. at 495).
Dr. Umana’s examination report from approximately one year later, dated
July 12, 2012, reported “[r]estricted [cervical, lumbosacral,] and shoulder
[range of motion],” and that Otanez was “unable to bend, lift, or carry.” (SSA
Rec. 522). Dr. Umana described Otanez’s prognosis with treatment as
“guarded.” (Id. at 523). A medical source statement completed by Dr. Umana
two months later, on September 30, 2012, reduced the time for which Otanez
could continuously sit to 15 minutes, but increased the time for which she
could continuously stand and walk to 15 and 20 minutes, respectively. (Id. at
531). He reported that over the course of an eight-hour workday Otanez could
sit for 30 minutes, stand for 30 minutes, and walk for 40 minutes. (Id.). Other
limitations included an inability to lift any amount over five pounds, as well as
6

an inability to bend, squat, crawl, or climb. (Id. at 532). In a report dated
October 26, 2012, Dr. Umana continued to describe Otanez as “totally
disabled,” and stated that she continued to complain of severe pain in her
neck, back, right shoulder, right knee, and both legs. (Id. at 548).
3.

Dr. Jacquelin Emmanuel, M.D.

Otanez saw orthopedic surgeon Dr. Jacquelin Emmanuel on two separate
occasions. At her first visit, on August 23, 2010, Dr. Emmanuel conducted an
independent medical examination for Otanez’s worker’s compensation
application. (SSA Rec. 282-84). Dr. Emmanuel reported that Otanez suffered
from restricted range of motion and mild tenderness of the muscles along her
cervical spine, but no muscle spasm. (Id. at 283). Otanez had normal deep
tendon reflexes and full muscle strength, a normal gait, and no pain radiation,
numbness, or tingling. (Id.). Dr. Emmanuel diagnosed Otanez with a resolving
cervical and lumbar spinal sprain/strain, resulting in a “25% temporary ...
disability” that precluded Otanez from lifting objects weighing over 25 pounds
and from standing, walking, or sitting for long periods. (Id. at 284).
Dr. Emmanuel conducted her second independent examination of Otanez
for worker’s compensation on May 2, 2011, this time focusing her examination
on Otanez’s shoulders. (SSA Rec. 285-87). She reported finding no atrophy,
sensory loss, or tenderness, and related that Otanez had full range of motion.
(Id. at 286). Dr. Emmanuel opined that Otanez had “no causally related
disability” stemming from her previous accident, and could work “without
boundaries or restrictions.” (Id.).
7

4.

Dr. Stanley Leibowitz, M.D.

Dr. Stanley Leibowitz, an orthopedic surgeon, issued a report stating that
he had examined Otanez on July 12, 2010, at which time Otanez reported
constant pain. (SSA Rec. 375). Dr. Leibowitz tested and recorded Otanez’s
range of motion for various spinal movements, reporting cervical spine
movement restrictions of 17% for flexion and extension, 20% for rotation, and
11% for lateral bending, and lumbar spine movement restrictions of 6% for
flexion, 33% for extension, 20% for bending, and 25% for rotation. (Id.). A
straight leg raising test “[e]licited pain at 45% of normal.” (Id.). Dr. Leibowitz
concluded that his “[f]unctional level evaluation demonstrate[d] [Otanez’s]
inability to perform usual and customary daily activities.” (Id. at 378).
Dr. Leibowitz again examined Otanez on January 31, 2011, noting
shoulder tenderness, a spasm in the trapezius muscle, and a positive
impingement test in both shoulders. (SSA Rec. 352-53). At a follow-up
appointment on March 21, 2011, Dr. Leibowitz again recorded Otanez as
having a positive impingement test in both shoulders. (Id. at 350).
5.

Dr. Andrew M.G. Davy, M.D.

Dr. Leibowitz referred Otanez to anesthesiology and pain specialist
Dr. Andrew M.G. Davy, who examined Otanez on August 30, 2010. (SSA
Rec. 273). Otanez reported being in constant pain, with her pain rating (on a
scale of 1 to 10, with 10 being the most severe) an 8 out of 10 at its best, and a
10 out of 10 at its worst. (Id.). Dr. Davy tested Otanez’s flexion, reflexes, and
pain sensitivity, and reported findings of disc pathology, lumbar and cervical
8

radiculopathy, and multiple myofascial trigger points. (Id. at 275). Dr. Davy
summarized his examination by saying that Otanez’s state of “temporary total
disability” was “not responding favorably to conservative therapy,” but that
Otanez was “an excellent candidate for [] routine interventional treatment.” (Id.
at 276). Otanez thereafter returned to see Dr. Davy for a series of epidural
injections, and Dr. Davy additionally prescribed Otanez Motrin, Zanaflex, a
back brace, and continued physical therapy. (Id. at 278-79, 288-90, 316-18,
329, 337-38).
6.

Dr. William Lathan, M.D.

Dr. William Lathan, a family medicine practitioner, performed a
consultative examination of Otanez at the request of the Social Security
Administration (the “SSA”) on June 27, 2011. (SSA Rec. 430). Dr. Lathan
reported that Otanez showed no acute distress and walked with a normal gait,
though she could not walk on her heels and toes. (Id. at 428). He further
noted normal cervical flexion, extension, and rotation, but did not test Otanez’s
ability to extend, flex, or rotate at the lumbar spine. (Id. at 429). Dr. Lathan
recorded a negative straight leg test for both legs, stable and nontender joints,
and full strength in Otanez’s upper and lower extremities. (Id.). In his medical
source statement at the conclusion of the evaluation, Dr. Lathan stated only
that Otanez had “a moderate restriction for bending, lifting, pushing, pulling,
squatting, standing, and walking.” (Id. at 430).

9

7.

Dr. Eleanor Lipovsky, M.D.

Internist Dr. Eleanor Lipovsky conducted an examination of Otanez on
January 16, 2013 — after the initial denial of Otanez’s benefits application, but
prior to her hearing before the ALJ. (SSA Rec. 592). Dr. Lipovsky reported
tenderness and spasm of the muscles along the cervical spine, with range of
motion restrictions ranging from 50% to 66% of normal. (Id. at 594).
Dr. Lipovsky similarly noted tenderness, muscle spasm, and restricted motion
in Otanez’s right elbow and lumbar spine. (Id. at 594-95). Finally,
Dr. Lipovsky reported decreased range of motion and increased muscle spasm
in Otanez’s knees, as well as impaired motor strength in both legs. (Id. at 595).
In her treatment plan, Dr. Lipovsky recommended continued physical therapy
and use of Motrin to relieve pain, and opined that Otanez was “totally
disabled.” (Id. at 596 (underscoring in original)). In her discussion of her
findings, Dr. Lipovsky stated that she believed Otanez’s symptoms were directly
related to her prior accident, finding that
[t]here has been severe trauma to the neck, lower back,
right elbow and both knees. This causes the vertebrae
to be misaligned, ligament and muscle to be
overstretched, nerve to be irritated, and various soft
tissues to be inflamed. Injuries of this nature and the
body’s response to them can go on for months or years.
(Id. at 597). In conducting her examination, Dr. Lipovsky reviewed MRIs of
Otanez’s cervical and lumbar spine. (Id. at 596). MRIs of Otanez’s shoulders,
ordered by Dr. Lipovsky, revealed some thickness and tearing of the left

10

shoulder tendons, and supraspinatus and infraspinatus tendinosis in the right
shoulder. (Id. at 599, 601).
8.

Dr. Sun Jin Kim, M.D.

Otanez visited Dr. Sun Jin Kim, an orthopedist at Montefiore Department
of Orthopedics, on February 4, 2013, for complaints of bilateral knee pain.
(SSA Rec. 22). After performing various function tests, Dr. Kim diagnosed
Otanez with mild bilateral osteoarthritis of both knees and injected each knee
with a lidocaine and Depo-Medrol mixture to relieve her pain. (Id. at 23). 3
Dr. Kim saw Otanez for a follow-up visit on May 6, 2013, at which time
Dr. Kim reported that Otanez had “not been responding to the injections.”
(SSA Rec. 19). Dr. Kim stated that “some of [Otanez’s] discomfort may be
coming from her back and the fact that she has fibromyalgia,” and that he was
“not sure that there is any surgery to improve her knee condition.” (Id. at 20).
C.

Otanez’s Psychological Treatment and Evaluations
1.

Dr. Dmitri Bougakov, Ph.D.

Psychologist Dr. Dmitri Bougakov conducted a consultative evaluation of
Otanez for the SSA on July 8, 2011. (SSA Rec. 444). Otanez stated that she
was currently taking ibuprofen, meclizine, tizanidine, and lisinopril. (Id. at
445). She reported suffering from various depression and anxiety symptoms
since her accident in June 2010. (Id.). Dr. Bougakov noted that Otanez

3

Depo-Medrol is the brand name for an injectable corticosteroid, methylprednisolone,
used to reduce inflammation. Methylprednisolone, Mayo Clinic,
http://www.mayoclinic.org/drugs-supplements/methylprednisolone-injectionroute/description/drg-20075216 (last visited Jan. 11, 2016).

11

walked with a cane, but that her gait, posture, and motor behavior were
otherwise normal. (Id.). Her affect displayed a normal range, she spoke
appropriately, her mood was neutral, and she was orientated to her
surroundings. (Id.). Her attention and concentration were intact, though her
memory was mildly impaired. (Id. at 446). In describing her daily activities,
Otanez reported that she could dress, bathe, and groom herself; cook three
times a week, clean twice a week, and do laundry once a week; and that she
could not travel alone due to dizziness and headaches. (Id.). She reported
receiving extensive help in daily activities from her children, and spending her
time primarily by going to doctors’ appointments. (Id.).
Dr. Bougakov diagnosed Otanez with depressive disorder secondary to
her physical medical condition. (SSA Rec. 447). He described her prognosis as
“[f]rom guarded to fair,” and stated that while she could perform simple tasks
and follow simple instructions, she was “limited in [her] ability to learn new
tasks and perform complex tasks.” (Id. at 446). She could “make appropriate
decisions, relat[e] adequately with others, and deal with stress, but on a limited
basis.” (Id.).
2.

Jean Walker Weille, L.C.S.W.

Licensed Clinical Social Worker Jean Walker Weille saw Otanez at the
Urban Health Plan facility in the Bronx concerning the latter’s complaint of
post-traumatic stress disorder (“PTSD”) on July 22, 2011. (SSA Rec. 503).
Weille’s treatment report reflects an appropriate affect and cooperative attitude,

12

but dysphoric and tearful mood. (Id. at 504). Weille assessed Otanez as indeed
suffering from PTSD. (Id.).
3.

Dr. Jorge N. Kirschtein, M.D.

The following day, on July 23, 2011, Otanez returned to Urban Health
Plan and saw Dr. Jorge N. Kirschtein for a psychiatric evaluation. (SSA
Rec. 500). Dr. Kirschtein noted Otanez’s use of a cane, but otherwise
described Otanez’s appearance, activity, speech, and thought process as
“unremarkable.” (Id. at 501). She was alert and oriented. (Id.). Her affect was
constricted but stable, and her mood was anxious and depressed. (Id.).
Memory, attention, insight, and judgment were all intact. (Id.). Dr. Kirschtein
diagnosed Otanez with “Major depression and PTSD” and recommended that
she begin taking trazodone, Wellbutrin, and Celexa. (Id. at 501-02).
4.

Dr. J. Kessel, M.D. 4

Psychiatrist Dr. J. Kessel completed a consultative evaluation of Otanez’s
mental residual functional capacity (“MRFC”) for the SSA on August 1, 2011.
(SSA Rec. 482). Dr. Kessel found that Otanez suffered from a medically
determinable impairment — namely, depressive disorder — that did not satisfy
the diagnostic criteria for mental disability. (Id. at 469, 477). The doctor noted
mild limitations in Otanez’s ability to perform activities of daily living, maintain
social functioning, and maintain concentration, persistence, or pace. (Id. at

4

The record does not disclose Dr. Kessel’s first name.

13

476). Dr. Kessel additionally noted a moderate limitation in Otanez’s ability to
respond appropriately to changes in the work setting. (Id. at 481).
In the narrative portion of the report, Dr. Kessel stated that “the case
evidence suggests that [Otanez] is mentally capable of independent [activities of
daily living] and travel…. Because of her history and her current symptomatic
complaints, [she] has some limitations in adaptation, but these are less than
significant at the present time.” (SSA Rec. 482).
5.

Dr. Debra H. Goldman, Ph.D.

Dr. Debra H. Goldman, a psychologist, completed a medical source
statement for Otanez on September 21, 2011. (SSA Rec. 487-89). She
recorded Otanez as having no restriction upon her ability to understand,
remember, or carry out simple instructions, or to interact appropriately with
the public. (Id. at 487-88). She found Otanez moderately restricted in her
ability to make simple work-related decisions, interact appropriately with a
supervisor or co-workers, and respond appropriately to usual work situations;
markedly restricted in her ability to understand, remember, and carry out
complex instructions; and extremely restricted in her ability to make complex
work-related decisions. (Id.).
6.

Dr. Joseph Charles, M.D.

On October 20, 2012, psychiatrist Dr. Joseph Charles filled out a report
regarding Otanez’s mental impairments, in which he stated that he had been
treating Otanez since January 2012 and that her most recent visit was on the
date of the report. (SSA Rec. 535). Dr. Charles diagnosed Otanez with PTSD,
14

stating that while she generally had “good insight as to her symptoms,” she
had “been unable to manage these symptoms to date.” (Id. at 536).
Dr. Charles stated that Otanez was receiving weekly individualized therapy,
and was taking Celexa and trazodone. (Id. at 537). He checked boxes
indicating that Otanez had marked limitations in performing activities of daily
living, maintaining social functioning, and maintaining concentration,
persistence, or pace. (Id. at 538-39). He additionally indicated that Otanez
continually suffered from “[e]pisodes of deterioration or decompensation in
work or work-like settings which cause [her] to withdraw from that situation or
to experience exacerbation of signs and symptoms.” (Id. at 539). Finally,
Dr. Charles recorded Otanez as having marked limitations in understanding
and memory, as well as in sustained concentration, persistence, and ability to
adapt to certain work situations. (Id. at 540-42).
D.

The Vocational Expert’s Hearing Testimony
The Vocational Expert (the “VE”) provided testimony at the January 29,

2013 hearing before the ALJ. (SSA Rec. 84-89). The VE first summarized
Otanez’s past employment history, stating that she had previously worked as
(i) a home attendant, which is categorized as a medium-exertion, semi-skilled
position; (ii) a machine operator, which is a heavy-exertion, unskilled position;
and (iii) a cosmetics salesperson, which is a light-exertion, semi-skilled
position. (Id. at 85).
The ALJ next posed a hypothetical to the VE: He asked whether jobs
existed in the national economy, not involving hazards or heights, that could be
15

performed by an individual of Otanez’s age, education, and past experience and
who had the residual functional capacity to lift and carry up to 20 pounds
occasionally and ten pounds frequently; stand and walk with normal breaks for
a total of about six hours during an eight-hour workday; sit with normal
breaks for about six hours out an eight-hour workdays; occasionally climb
ramps and stairs, but never ladders, ropes, or scaffolds; occasionally balance,
stoop, kneel, crouch, and crawl; and frequently reach overhead. (SSA Rec. 86).
Such positions would also have to accommodate non-exertional limitations by
requiring no more than the performance of simple, routine, repetitive tasks that
can be explained, and which involve only occasional changes in routine or
contact with others. (Id.). The VE opined that a significant number of
employment opportunities existed for an individual with the specified
restrictions, including the light-exertion, unskilled positions of
housekeeper/cleaner, assembler, and office helper. (Id. at 86-87). The ALJ
then added a condition to the hypothetical, asking whether positions would
still exist for the previously-described individual if she would be off-task one
percent of the time, to which the VE answered “[n]o” — no jobs would exist for
such an individual. (Id. at 87).
Otanez’s counsel then questioned the VE, asking her to consider a
hypothetical individual of Otanez’s age and experience who was limited, inter
alia, to lifting and carrying no more than five pounds; sitting and standing for a
total of 30 minutes each, and walking a total of 40 minutes over the course of
an eight-hour workday; never bending, squatting, crawling, climbing, or
16

operating arm controls with her hands; and only occasionally reaching. (SSA
Rec. 88). After clarifying that the individual in question could only sit, stand,
and walk for a combined total of one hour and 40 minutes per day, the VE gave
the opinion that “there would be no full-time job position this individual would
be able to do.” (Id. at 88-89).
E.

The ALJ’s Opinion Denying Benefits
On February 8, 2013, the ALJ rendered his decision finding Otanez not

disabled within the meaning of the Act. (SSA Rec. 44-58). As a threshold
matter, the ALJ found that Otanez met the Act’s insured status requirement
through December 31, 2015. (Id. at 46). Moving then into the prescribed fivestep analysis utilized for Social Security claims, the ALJ found that Otanez
satisfied the first two prongs: (i) she had not engaged in substantial gainful
activity since the alleged onset date of her disability, and (ii) she had severe
impairments, including degenerative disc disease of the cervical and lumbar
spine; internal derangement of both shoulders; obesity; an affective disorder;
and an anxiety disorder. (Id.). 5

5

The SSA employs a five-step analysis for evaluating disability claims. See 20 C.F.R.
§ 404.1520(a)(1) (“This section explains the five-step sequential evaluation process we
use to decide whether you are disabled.”). The Second Circuit has described the fivestep analysis as follows:
First, the Commissioner considers whether the claimant is
currently engaged in substantial gainful activity. If [s]he is not, the
Commissioner next considers whether the claimant has a “severe
impairment” which 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 which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the Commissioner will consider [her] [per se]
disabled[.] Assuming the claimant does not have a listed

17

At step three of his analysis, the ALJ determined that Otanez was not per
se disabled, as she did not have any impairments which, either individually or
in the aggregate, met or medically equaled the severity of any impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (SSA Rec. 47). Consequently he
proceeded to step four: the determination of Otanez’s residual functional
capacity (“RFC”). After considering the record before him, the ALJ found that
Otanez could lift and carry up to 20 pounds occasionally and 10 pounds
frequently; stand and/or walk with normal breaks for a total of about six hours
during an eight-hour workday; occasionally climb ramps and stairs; never
climb ladders, ropes, or scaffolds; frequently reach overhead; and occasionally
balance, stoop, kneel, crouch, and crawl. (Id. at 48-49). She was limited to
work not involving machinery or heights, and could only perform simple,
routine, and repetitive tasks that can be explained and that involve only
occasional changes in routine and contact with others. (Id. at 49).
In determining Otanez’s RFC, the ALJ considered both the medical
evidence contained in the record, and also Otanez’s own testimony regarding
her capabilities and symptoms. (SSA Rec. 48-56). When weighing the various
and sometimes conflicting statements from healthcare professionals, the ALJ

impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, [s]he has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] past work, the Commissioner then determines
whether there is other work which the claimant could perform.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012)). “The claimant bears the burden of proving his or her
case at steps one through four,” while the Commissioner bears the burden at the final
step. Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004).

18

noted the presumption of controlling weight that typically attaches to the
opinion of a treating physician, but went on to explain that the objective
evidence in the record did not support the opinions of treating physicians Dr.
Umana, Dr. Lipovsky, and Dr. Charles. (Id. at 55). Consequently, their
respective opinions received only minimal weight, while the opinions of
Dr. Goldman and consultative examiners Dr. Bougakov and Dr. Lathan were
accorded greater authority. (Id. at 56).
In regards to Otanez’s own account of her limitations, the ALJ found that
her statements were not entirely credible. (SSA Rec. 52-54). He engaged in a
two-step analysis of Otanez’s alleged impairments, first considering whether
her medically determinable impairments could reasonably be expected to cause
her reported symptoms, and then turning to whether her account of her
resulting limitations was credible in light of the record. (Id. at 53). While the
ALJ determined that Otanez’s medically determinable impairments could
reasonably give rise to her symptoms, he found the severity of her reported
restrictions to be at odds with the objective evidence before him. (Id.). As a
result, he found that Otanez’s account of her limitations did not warrant a
different RFC finding from that suggested by the medical source opinions of
Drs. Bougakov, Goldman, and Lathan, and the additional diagnostic evidence
in the record. (Id. at 56).
At the fourth stage of his analysis, the ALJ found Otanez unable to
perform any of her past relevant work. (SSA Rec. 56). Hence he moved on to
the fifth and final step of his disability determination and considered whether,
19

in light of Otanez’s age, education, language skills, work experience, and RFC,
jobs existed in significant numbers in the national economy that Otanez could
perform. (Id. at 57). The ALJ noted that, because Otanez suffered from both
exertional and non-exertional limitations, the Medical-Vocational Guidelines,
20 C.F.R. Part 404, Subpart P, Appendix 2, did not mandate a specific result,
but rather provided a framework for determining whether or not Otanez
qualified as disabled. (Id.). The ALJ found, based upon the testimony provided
by the VE at the prior hearing, that Otanez could perform the requirements of
certain jobs existing in significant numbers in the national economy. A nonexhaustive list of such jobs included housekeeper/cleaner, assembler, and
office helper. (Id.). Because Otanez retained sufficient functionality to work in
one of these positions, the ALJ ultimately determined that she was not disabled
within the meaning of the SSA. (Id. at 58).
F.

Procedural History
Otanez requested a review by the Appeals Council of the ALJ’s decision

denying her benefits, which request was denied on August 21, 2014. (SSA
Rec. 1). Otanez then filed her Complaint, appealing the Commissioner’s denial
of her benefits application, on October 14, 2014. (Dkt. #1). The Commissioner
filed her answer on June 12, 2015 (Dkt. #6), and filed her instant motion for
judgment on the pleadings on July 15, 2015 (Dkt. #9). Otanez filed her crossmotion for judgment on the pleadings on August 10, 2015 (Dkt. #12), to which
the Commissioner filed her opposition on August 24, 2015 (Dkt. #14). No

20

further submissions have been filed, and the Court therefore considers the
Commissioner’s August 24 memorandum as concluding the briefing.
DISCUSSION
A.

Applicable Law
1.

Motions Under Federal Rule of Civil Procedure 12(c)

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings
are closed — but early enough not to delay trial — a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard applied to a
motion for judgment on the pleadings is the same as that used for a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Sheppard v. Beerman, 18 F.3d
147, 150 (2d Cir. 1994); accord L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d
419, 429 (2d Cir. 2011). When considering either type of motion, a court
should “draw all reasonable inferences in Plaintiffs’ favor, assume all wellpleaded factual allegations to be true, and determine whether they plausibly
give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98,
104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan v. N.Y.
Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). A plaintiff is entitled to relief if
she alleges “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator
Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“[W]hile Twombly does not
require heightened fact pleading of specifics, it does require enough facts to
nudge [Plaintiff’s] claims across the line from conceivable to plausible.”
(internal quotation marks omitted)).
21

2.

Review of Determinations by the Commissioner of Social
Security

In order to qualify for disability benefits under the Act, a claimant must
demonstrate her “inability to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or that 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); see
also Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The claimant must
also establish that the impairment is “of such severity that [the claimant] is not
only unable to do [her] previous work but cannot, considering [her] 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).
Further, the disability must be “demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” Id. § 423(d)(3).
In reviewing the final decision of the SSA, a district court may “enter,
upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A
court must uphold a final administrative determination to deny benefits unless
that decision is unsupported by substantial evidence or is based on an
incorrect legal standard. Selian, 708 F.3d at 417 (“In reviewing a final decision
of the SSA, this Court is limited to determining whether the SSA’s conclusions
were supported by substantial evidence in the record and were based on a

22

correct legal standard.” (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012)); see also 42 U.S.C. § 405(g) (“If there is substantial evidence to support
the determination, it must be upheld.”). Where administrative findings are
supported by substantial evidence, those findings are “conclusive.” Diaz v.
Shalala, 59 F.3d 307, 312 (2d Cir. 1995) (“The findings of the [Commissioner]
are conclusive unless they are not supported by substantial evidence.” (citing
42 U.S.C. § 405(g))).
“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.” Talavera, 697 F.3d at 151 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). The substantial evidence standard is “a very deferential
standard of review — even more so than the clearly erroneous standard.”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citation
omitted). To make the determination of whether the SSA’s findings were
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.” Talavera, 697 F.3d at 151 (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)).
Finally, the presiding ALJ has an affirmative obligation to develop the
administrative record. See Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09
(2d Cir. 2009); Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL
2745704, at *7 (S.D.N.Y. Sept. 21, 2007) (citing Perez v. Chater, 77 F.3d 41, 47
(2d Cir. 1996)). This means that the ALJ must seek additional evidence or
23

clarification when the “report from [claimant’s] medical source contains a
conflict or ambiguity that must be resolved, [or] the report does not contain all
the necessary information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.
§§ 404.1512(e)(1), 416.912(e)(1).
B.

Analysis
1.

The ALJ’s Erred in Part in Applying the Treating
Physician Rule

When assigning relative weight to various opinions from medical
professionals, both the SSA and the Second Circuit adhere to a treating
physician rule, under which “[t]he opinion of a treating physician is given
controlling weight if it is well supported by medical findings and not
inconsistent with other substantial evidence.” Rosa v. Callahan, 168 F.3d 72,
78-79 (2d Cir. 1999); see also 20 C.F.R. § 404.1527(c)(2). In circumstances
where a treating physician’s opinion is not given “controlling” weight, the
regulations require the ALJ to consider several factors in determining how
much weight the opinion should receive. See 20 C.F.R. § 404.1527(d)(2). They
include, inter alia, the “[l]ength of the treatment relationship and the frequency
of examination”; the “[n]ature and extent of the treatment relationship”; the
“relevant evidence ..., particularly medical signs and laboratory findings,”
supporting the opinion; the consistency of the opinion with the record as a
whole; and whether the physician is a specialist in the area covering the
particular medical issues. Id. § 404.1527(d)(2)(i)-(ii), (3)-(5); see also id.

24

§ 404.1527(d) (listing the same factors in determining how much weight should
be given to any medical opinion). In general, “the longer a treating source has
treated [the claimant] and the more times [the claimant] ha[s] been seen by a
treating source, the more weight [the Commissioner] will give to the source’s
medical opinion.” Id. § 404.1527(d)(2)(i). Finally, the SSA’s “regulations also
specify that the Commissioner ‘will always give good reasons in [her] notice of
determination or decision for the weight [she] give[s] [claimant’s] treating
source’s opinion.’” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(quoting 20 C.F.R. § 404.1527(d)(2) (alterations in the original)).
In the present case, Otanez argues that the ALJ committed legal error in
affording the opinions of several of Otanez’s treating physicians — namely, Drs.
Umana, Lipovsky, and Charles — only minimal weight. (Pl. Br. 16-22). She
particularly faults the ALJ’s purported substitution of his own judgment for
that of her treating physicians, and for his general failure to provide sufficient
reasons for his decision to credit her consultative examiners’ reports over those
of her treating physicians. (Id. at 19-22). She highlights the relative lack of
familiarity that her non-treating examiners had with her case in arguing that
the ALJ accorded excessive weight to their views. (Id. at 20-22).
Defendant, on the other hand, contends that the ALJ properly assessed
the various medical opinions in the record and provided adequate reasons for
his decision not to afford controlling — or even significant — weight to the
respective opinions of Drs. Umana, Lipovsky, and Charles. (Def. Br. 21-23;
Def. Opp. 1-8). Defendant particularly cites the ALJ’s findings that those
25

opinions were contradicted by substantial evidence in the record and lacked
objective clinical support. (Def. Br. 21-22; Def. Opp. 2-5, 8).
For the reasons discussed below, the Court finds that, while the ALJ
adequately applied the substance of the treating physician rule to the opinions
of Drs. Umana and Charles, he failed to justify adequately his assignment of
only “minimal weight” to the opinion of Dr. Lipovsky.
a.

The ALJ Adequately Weighed the Opinion of Dr. Umana

Considering first Dr. Umana’s treatment reports, the ALJ stated that Dr.
Umana’s assessment of Otanez’s restrictions was
not supported by substantial clinical examination
findings (which fail to reveal persistent neurological
deficits in the lower extremities of the sort which could
reasonably limit the claimant’s ability to stand, walk,
lift and carry) or by the substantial diagnostic imaging
results (such as the spinal and shoulder MRI results not
revealing acute abnormalities).
(SSA Rec. 55). This justification for discounting Dr. Umana’s opinion presents
two potential problems. First, the ALJ’s apparent decision not to accord weight
to Dr. Umana’s findings due to a specific lack of “persistent neurological
deficits” or “acute abnormalities” of the spine and shoulder would seem to
constitute a substitution of the ALJ’s own opinion for that of the physician. An
ALJ is free to discount a professional medical opinion due to a lack of support
or the presence of contradictory evidence; he may not, however, dictate what
specific clinical findings are required to justify a given medical opinion. See
Rosa, 168 F.3d at 79 (reversing an ALJ’s disability determination where the
ALJ failed to accord weight to a treating physician’s opinion because the
26

physician “did not report findings of muscle spasm to corroborate any loss of
motion,” thereby substituting his own judgment for that of the physician);
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (reversing where an ALJ
discounted a treating physician’s opinion due to the fact that there was no
evidence of “atrophy of any muscle groups … as one would expect … based on
the claimant’s allegation of constant and totally disabling pain,” where no
medical source suggested such atrophy should necessarily be present).
Furthermore, while the clinical and diagnostic evidence did not provide
the particular support sought by the ALJ, neither was it completely negative:
On the contrary, an initial MRI showed disc desiccation and loss of height
between discs — findings that presumably contributed to the ALJ’s
determination that Otanez suffered from degenerative disc disease — and later
imaging of her shoulder revealed thickening, tearing, and tendinosis. (See SSA
Rec. 46, 319-21, 598-99). Given the lack of medical source evidence
suggesting that particular objective evidence would be required to support
Dr. Umana’s findings, the ALJ erred insofar as he rejected Dr. Umana’s opinion
on the basis of specific absent factors that the ALJ thought should be present.
Were that the only ground upon which the ALJ rested his assessment of
Dr. Umana’s opinion, the Court would be inclined to find that the ALJ
improperly applied the treating physician rule in this instance. However, the
ALJ additionally noted that Dr. Umana’s opinion set forth a more restrictive
view of Otanez’s limitations than those of other assessing physicians. The
primary contradicting assessment relied on by the ALJ comes from Dr. Lathan,
27

a consultative examiner who saw Otanez for a single examination. Dr. Lathan
did not set out specific durations for which Otanez could perform various
activities during a normal workday, but rather stated only that Otanez had “a
moderate restriction for bending, lifting, pushing, pulling, squatting, standing
and walking.” (SSA Rec. 430). Dr. Lathan’s report also states that he did not
evaluate Otanez’s ability to squat, or her range of motion in her lumbar spine.
(Id. at 428-29). These omissions strike the Court as notable, given that the ALJ
rested his RFC determination largely on Dr. Lathan’s findings.
Dr. Lathan’s report is not the only evidence in the record, however,
suggesting that Dr. Umana’s assessment was too restrictive. The reports of
treating physician Dr. Emmanuel, which reports the ALJ acknowledged having
reviewed, ultimately found that, based on the clinical evidence, Otanez could
work “without boundaries or restrictions.” (SSA Rec. 286). This extremely
broad view of Otanez’s restrictions is admittedly itself somewhat at odds with
the bulk of the record (including Dr. Lathan’s assessment of “moderate
restrictions”). However, as a treating physician (and, unlike Dr. Umana, an
orthopedic specialist), Dr. Emmanuel provides an opinion that can both
corroborate Dr. Lathan’s more moderate view and serve as a counterpoint to
Dr. Umana’s more restrictive assessment of Otanez’s functionality. Ultimately,
the ALJ acted within the bounds of his discretion in finding that, together, the
evidence provided by Drs. Emmanuel and Lathan outweighed the assessment

28

of Dr. Umana, and that Dr. Umana’s report of Otanez’s limitations was
accordingly too severe. 6
b.

The ALJ Improperly Discounted the Opinion of
Dr. Lipovsky

Considering the opinion of Dr. Lipovsky, the ALJ had no duty to credit
her conclusion that Otanez was “totally disabled,” as the power to make such a
determination rests solely with the Commissioner. Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999) (“The final question of disability is … expressly reserved to
the Commissioner.” (citing 20 C.F.R. § 404.1527(e)(1))). This does not mean, of
course, that the ALJ may summarily dismiss the medical findings upon which
Dr. Lipovsky based this assessment. Here, the ALJ assigned only “minimal
weight” to Dr. Lipovsky’s opinion, characterizing her diagnoses of (i) “postconcussion syndrome” and “concussion with a loss of consciousness,” and
(ii) impaired lower extremity motor strength as reflecting “factual inaccuracies”
and inconsistent with the lumbar spine MRI. (SSA Rec. 55). The Court finds
that the ALJ failed to provide good reasons for all but dismissing Dr. Lipovsky’s
assessment.
In regards to the first point, that ALJ reasoned that Dr. Lipovsky’s report
did not warrant presumptive weight because Otanez has “no [] history” of

6

The Court notes that while it is not remanding on the basis of the ALJ’s application of
the treating physician rule to Dr. Umana’s reports, the ALJ’s determination that the
opinions of Drs. Lathan and Emmanuel outweighed that of Dr. Umana seems to have
rested in part on the fact that the ALJ found the opinion most supportive of
Dr. Umana — that of Dr. Lipovsky — to warrant only minimal weight. (SSA Rec. 55).
Given the Court’s finding, infra, that the ALJ erred in his application of the treating
physician rule to Dr. Lipovsky’s opinion, a reconsideration of the balance of the
evidence in the record may well be warranted upon remand.

29

concussion. (SSA Rec. 55). However, the initial report completed for Otanez’s
worker’s compensation application in June 2010 states that she suffered
“concussion [without] loss of consciousness.” (Id. at 298). Furthermore, the
report of Dr. Emmanuel states that Otanez did in fact report a “loss of
consciousness.” (Id. at 285). In other words, Otanez’s medical record is
inconsistent in its account of whether or not she suffered head trauma in her
accident, and in light of the conflicting accounts, the ALJ could not simply
label Dr. Lipovsky’s diagnosis as a “factual inaccuracy” based on the omission
of a concussion diagnosis in Otanez’s initial accident report. See Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 861 (2d Cir. 1990) (rejecting
argument that the Commissioner can “discard a treating doctor’s opinion on
the basis of prior omissions in the record”). Furthermore, given that the
diagnosis of “concussion with loss of consciousness” seems to have been
largely irrelevant to Dr. Lipovsky’s assessment of any restrictions Otanez
suffered, the presence of such a diagnosis does not provide “good reason” for
dismissing the doctor’s other clinically-based medical findings.
As to the fact that Dr. Lipovsky’s report of lower extremity weakness
contradicts other evidence in the record (compare SSA Rec. 593 (report of
Dr. Lipovsky, finding lower extremity weakness), with id. at 284 (report of
Dr. Emmanuel, finding normal strength in Otanez’s lower extremities); but see
id. at 394 (initial consultation report from the New York Rehabilitation Center,
finding some muscle weakness in the right lower extremity)), this may be
reason not to afford her account controlling weight as to that particular alleged
30

symptom. The Court cannot agree, however, that such an inconsistency serves
to invalidate Dr. Lipovsky’s opinion in all other, unrelated respects.
Dr. Lipovsky’s objective clinical examination revealed significant range of
motion limitations and muscle spasm, all of which the ALJ appears not to have
credited, despite the supporting MRI findings of “significant underlying
tendinosis” and “partial linear interstitial tear in the anterior fibers of the
infraspinatus tendon.” (Id. at 598). Absent any proffered “good reasons” for
his affording only minimal weight to Dr. Lipovsky’s assessment in regards to
these objective findings, the Court must find that the ALJ failed to apply the
treating physician rule correctly to the opinion of Dr. Lipovsky. The Court
consequently remands for reconsideration. See, e.g., Halloran, 362 F.3d at 33
(“We do not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physicians opinion and we will
continue remanding when we encounter opinions from ALJs that do not
comprehensively set forth reasons for the weight assigned to a treating
physician’s opinion.”). 7
c.

The ALJ Adequately Weighed the Opinion of Dr. Charles

Finally, turning to opinion of Dr. Charles, Otanez argues that the ALJ
erred in affording his opinion less weight than those of Drs. Bougakov and

7

The Court acknowledges that in some circumstances, a failure to adhere to the treating
physician rule may constitute harmless error. See, e.g., Zabala v. Astrue, 595 F.3d 402,
409 (2d Cir. 2010) (declining to remand even though the ALJ failed to satisfy the
treating physician rule where “application of the correct legal principle could lead [only
to the same] conclusion” (quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987))).
Where, as here, however, the ALJ’s discounting of a first treating physicians’ reports is
premised on the findings of other physicians, the failure to apply the presumption of
correctness to a second treating physician’s opinion absent good reasons will not be

31

Goldman. All else being equal, Dr. Charles’s opinion would indeed be entitled
to greater weight, given that of the three doctors he alone appears to have an
established treating relationship with Otanez. However, the ALJ identified
notable inconsistencies in Dr. Charles’s report: His global assessment of
function (“GAF”) score for Otanez was 53, which indicates a moderate level of
impairment, yet he then stated that she was “markedly” impaired in her daily
activities. (SSA Rec. 535, 538). 8 As the ALJ explained, Dr. Charles’s
assessment of Otanez’s psychological restrictions was not only at odds with the
reports from other medical professionals, but it also did not coincide with
Otanez’s own testimony regarding her current abilities. See Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (stating that it is the
Commissioner’s function to resolve evidentiary conflicts in the record). On

harmless: Had Dr. Lipovsky’s opinion been weighed more heavily, the Court cannot say
whether the ALJ would have found that the opinion of Dr. Umana — a treating
physician who saw Otanez 15 separate times — warranted only minimal weight. See
Bonneau v. Astrue, No. 13 Civ. 26 (CR), 2014 WL 31301, at *9 (D. Vt. Jan. 3, 2014)
(finding an ALJ’s failure to properly apply the treating physician rule not harmless
where such failure influenced the ALJ’s assessment of other evidence).
8

A GAF score of 51-60 indicates “moderate difficulty in social, occupational, or school
functioning.” AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 429-36 (4th ed., text. rev. 2000) (hereinafter, “DSM–IV”) 429-36, reprinted in
SOPHIA F. DZIEGIELEWSKI, DSM-IV-TR IN ACTION 92 (2d ed. 2010). However, the utility of
this metric is debatable, particularly after its exclusion from the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders. See Schneider v. Colvin, No. 13
Civ. 0790 (MPS), 2014 WL 4269083, at *4 & n.5 (D. Conn. Aug. 29, 2014) (“Even prior
to the release of the DSM-V in 2013, courts have held that an ALJ’s failure to consider
every GAF score is not a reversible error.... Since the issuance of the DSM-V, courts
have become even more reluctant to find any error in the failure to consider a plaintiff’s
GAF scores.”); see also Mainella v. Colvin, No. 13 Civ. 2453 (JG), 2014 WL 183957, at *5
(E.D.N.Y. Jan. 14, 2014) (“At a basic level, the Administration noted that ‘[t]he problem
with using the GAF to evaluate disability is that there is no way to standardize
measurement and evaluation.’ … Generally, the guidance instructs ALJs to treat GAF
scores as opinion evidence; the details of the clinician’s description, rather than a
numerical range, should be used.” (internal citations omitted)).

32

these facts, the ALJ appropriately found that Dr. Charles’s report should be
accorded relatively less weight than those of Drs. Bougakov and Goldman, each
of whom provided a more liberal picture of Otanez’s mental functionality. See,
e.g., Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (summary order)
(“Because [the treating physician’s] medical source statement conflicted with
his own treatment notes, the ALJ was not required to afford his opinion
controlling weight. The ALJ could therefore afford weight to the expert opinion
provided by [the consultative examiner].”).
2.

The ALJ Adequately Evaluated Otanez’s Credibility

When considering a claimant’s symptoms and their impact on the
claimant’s RFC, the ALJ follows a two-part process: First, the ALJ must
determine whether medically acceptable clinical and laboratory diagnostic
techniques establish an underlying physical or mental impairment that could
reasonably be expected to produce the claimant’s symptoms. 20 C.F.R.
§ 404.1529(a)-(b). Second, once an underlying physical or mental impairment
has been shown, the ALJ must evaluate the intensity, persistence, and limiting
effect of the claimant’s symptoms to determine the extent to which they restrict
the claimant’s functioning. Id. § 404.1529(c).
When a claimant alleges that her symptoms result in a greater functional
restriction than can be demonstrated by objective medical evidence, the ALJ
considers evidence such as the claimant’s daily activities; the type, dosage,
effectiveness, and side effects of medications; treatments or pain relief
measures; and other factors. See 20 C.F.R. §§ 404.1529(c), 416.929(c). “[T]he
33

ALJ has the discretion to evaluate the credibility of a claimant and to arrive at
an independent judgment, in light of medical findings and other evidence,
regarding the true extent of the pain alleged by the claimant.” McLaughlin v.
Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 705 (2d Cir. 1980) (internal
quotation marks and citation omitted). A reviewing court will uphold the ALJ’s
decision to discount a claimant’s subjective complaints, such as complaints of
pain, so long as the decision is supported by substantial evidence. See Aponte
v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
Moreover, “an ALJ’s credibility determination is generally entitled to deference
on appeal.” Selian, 708 F.3d at 420; see also Torres v. Colvin, No. 12 Civ. 6527
(ALC) (SN), 2014 WL 4467805, at *4 (S.D.N.Y. Sept. 8, 2014) (collecting cases).
In the present case, Otanez argues that the ALJ improperly discredited
her testimony, particularly by placing too much weight on her reported ability
to perform certain basic household tasks. (Pl. Br. 24). The Commissioner
counters Otanez’s argument by highlighting the specific reasons provided by
the ALJ in support of his credibility determination, including the lack of
specific, objective evidence; the disconnect between Otanez’s allegations of
increasing pain and the absence of comparable increases in severity in her
clinical findings; and inconsistencies in the record. (Def. Opp. 9-10). The
Court finds that, under the deferential substantial evidence standard, the ALJ
adequately assessed Otanez’s credibility.
The ALJ found that, while Otanez’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, an evaluation of
34

factors including (i) her reported daily activities, (ii) the alleged increase in her
symptoms, and (iii) the conservative nature of the treatment she had received
led him to conclude that Otanez’s testimony regarding the severity of her
symptoms could not be credited. (SSA Rec. 53). The ALJ noted that Otanez’s
daily activities, “while restricted to a degree and while assisted by her two adult
children, still reflect that she is able to perform some cooking and cleaning,
and is able to travel by bus independently.” (Id.). In sum, the ALJ’s findings
satisfy the “substantial evidence” threshold.
The Second Circuit has noted that an ALJ may not pick and choose
evidence from the record to support his opinion; “[n]either may he mischaracterize a claimant’s testimony or afford inordinate weight to a single
factor, because ‘[a] claimant need not be an invalid to be found disabled under
the Social Security Act.’” Meadors v. Astrue, 370 F. App’x 179, 185 n.2 (2d Cir.
2010) (summary order) (quoting Vasquez v. Barnhart, No 02 Civ. 6751 (ARR)
(RLM), 2004 WL 725322, at *11 (E.D.N.Y. Mar. 2, 2004)). Contrary to Otanez’s
assertion, however, the ALJ did not engage in such selective consideration in
his determination of Otanez’s credibility. Rather, the ALJ acknowledged that
Otanez’s testimony indicated some degree of restriction in daily life; it simply
did not support a finding of total disability. This assessment was bolstered by
the fact that objective clinical and diagnostic evidence failed to corroborate
Otanez’s report of increasingly severe symptoms.
Regarding the third factor relied upon by the ALJ, the nature and effects
of Otanez’s treatment, the Court notes a slight tension between the factors set
35

forth by the Commissioner of Social Security and the applicable case law:
While Social Security Rule 96-7p directs ALJs to consider, inter alia, “[t]he type,
dosage, effectiveness, and side effects of any medication the individual takes or
has taken,” and “[t]reatment, other than medication, the individual uses or has
used for relief of pain or other symptoms,” the Second Circuit has repeatedly
stated that a physician’s recommendation of only conservative treatment does
not provide substantial evidence that a claimant was not physically disabled
during the relevant period. See Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000); accord Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008); Foxman v.
Barnhart, 157 Fed. App’x 344, 347 (2005) (summary order). The ALJ appears
to have placed some weight on the fact that Otanez’s “treatment plan has been
essentially conservative … [and] there is no evidence that she has been
recommended for surgery for her spinal or shoulder impairments.” (SSA
Rec. 54). Such reasoning presupposes that surgery would be an appropriate
treatment option for someone with Otanez’s alleged restrictions; the ALJ may
not make such suppositions. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(“The ALJ is not permitted to substitute his own expertise or view of the
medical proof for the treating physician’s opinion or for any competent medical
opinion.”). In fact, at least one treating physician opined that Otanez was not
responding to conservative treatment, and another indicated that while Otanez
indeed seemed to be suffering from physical restrictions, surgery might not be
an option for her. (SSA Rec. 20, 276). Nevertheless, in light of the ALJ’s
explicit consideration of other relevant factors and the substantial evidence
36

that exists in support of his ultimate determination, his perhaps undue
emphasis on the conservative nature of Otanez’s treatment recommendations
does not invalidate his otherwise well-supported credibility determination.
CONCLUSION
For the foregoing reasons, Otanez’s motion for judgment on the pleadings
is GRANTED insofar as it requests remand for rehearing; and the
Commissioner’s motion for judgment on the pleadings is DENIED. The Clerk of
Court is directed to terminate all pending motions, adjourn all remaining dates,
and close this case.
SO ORDERED.
Dated:

January 12, 2016
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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