Santiago v. Commissioner of Social Security

Filing 24

OPINION & ORDER re: 22 MOTION. filed by Carmen D. Santiago, 18 MOTION for Judgment on the Pleadings . filed by Commissioner of Social Security. For these reasons, defendant's motion for judgment on the pleadings is GRANTED and plaintiff's motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate the motions at ECF Nos. 18 and 20, to enter judgment for defendant, and to terminate this action. (As further set forth in this order) (Signed by Judge Katherine B. Forrest on 5/16/2016) Copies Mailed By Chambers. (lmb) (Main Document 24 replaced on 5/16/2016) (lmb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CARMEN D. SANTIAGIO,
:
:
:
Plaintiff,
:
-v:
:
CAROLYN COLVIN, Acting Commissioner of
:
:
Social Security,
:
Defendant.
:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: May 16, 2016

15-cv-0949 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Plaintiff Carmen D. Santiago, pro se, seeks review of the decision by
defendant Commissioner of Social Security (the “Commissioner”) finding that she
was not disabled and not entitled to Supplemental Security Income benefits under
Title XVI of the Social Security Act (the “Act”).
Plaintiff filed a claim for disability benefits on July 20, 2011 and for
supplemental security income on July 28, 2011, alleging that her disability began
on July 25, 2008. (Tr. 27.)1 The Commissioner denied plaintiff’s application on
October 6, 2011, (Tr. 86-92), and plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 100-101.) The hearing was held on March
29, 2013 before ALJ Jack Russak. (Tr. 27.) Plaintiff was represented by counsel at
that time. On April 15, 2013, ALJ Russak found that plaintiff was not disabled
under the Act. (Tr. 27-36.)

1

Citations to “Tr.” refer to pages of the administrative record.

Plaintiff requested that the Appeals Council review the ALJ’s decision. The
Appeals Council denied the request on November 25, 2014, making the ALJ’s
decision the final determination of the Commissioner. (Tr. 1-9.)
On February 9, 2015, plaintiff filed this action pro se, seeking judicial review
of the ALJ’s April 15, 2013 decision. (ECF No. 2.) She filed an Amended Complaint
on April 8, 2015, attaching four additional medical documents not previously
provided to the ALJ or Appeals Council. (ECF No. 8 (“Am. Compl.”).) Before the
Court is defendant’s motion for judgment on the pleadings, (ECF No. 19), and a
submission by plaintiff, which the Court construes as a cross-motion for judgment
on the pleadings, (ECF No. 22.) For the reasons set forth below, defendant’s motion
is GRANTED, and plaintiff’s motion is DENIED.
I.

FACTUAL BACKGROUND2
Plaintiff is a forty-three year old woman. (Tr. 169). She completed high

school in Puerto Rico. (Tr. 214.) She is the single mother of three young children,
ages six, five, and three at the time of her application. (Tr. 222.) Her oldest child
has autism.

(Tr. 222.)

Plaintiff has depression, anxiety, mood disorder, and

sleeping problems. (Tr. 213.)

The Court recites here only those facts relevant to its review. A further recitation of
plaintiff’s medical history is contained in the Administrative Record.
2

2

A.

Medical Evidence Before the ALJ
1.

Treating Physician Evidence

In May and June 2008, plaintiff visited Dr. Fitzroy Elliott at Harlem
Hospital, reporting stress and depression. (Tr. 308, 314-16.) Dr. Elliott referred her
to a psychiatrist. (Tr. 314.)
On July 25, 2008, plaintiff began receiving mental health treatment at Callen
Lorde Community Health Center. (Tr. 290-95.) She was treated by psychiatrist Dr.
Susan Lee, who diagnosed her with major depressive disorder and generalized
anxiety disorder. (Tr. 292.) Dr. Lee noted that plaintiff appeared anxious and
depressed but had a stable mood, goal-directed form of thought, normal speech,
orientation, memory, intelligence, and judgment, and ability to sustain
concentration. (Tr. 292.) Dr. Lee prescribed Lexapro for depression and anxiety
and Trazodone for insomnia. (Tr. 292.) She also referred plaintiff for possible
therapy. (Tr. 292.)
At a follow-up visit on September 24, 2008, plaintiff reported feeling better on
her medication, and no side effects. (Tr. 290.) She reported that she still felt “a
little depressed and anxious sometimes” and poor concentration and memory. (Tr.
290.) Dr. Lee performed a mental status evaluation and found that plaintiff’s mood
was less depressed and anxious, and that she was calm and cooperative, with full
range of affect and good insight, and judgment. (Tr. 290). Dr. Lee continued to
prescribe Lexapro and Trazodone and told plaintiff to follow-up in one month. (Tr.
290.)

3

On November 3, 2008, plaintiff visited Dr. Elliott at Harlem Hospital. Dr.
Elliott noted her symptoms were of low to moderate severity. (Tr. 306.) Plaintiff
was to follow up in three months. (Tr. 307.)
On April 27, 2011, plaintiff visited the Martin Luther King Center for
psychiatric follow-up evaluation (her prior evaluation there was in May 2010). (Tr.
325.) Dr. Christopher Leggett performed a mental status evaluation and
determined that plaintiff had adequate insight, judgment, concentration, and
orientation. He noted that plaintiff was taking Lexapro intermittently, with good
effect. (Tr. 325.) Dr. Leggett continued plaintiff’s Lexapro prescription. (Tr. 325.)
On July 20, 2011, plaintiff visited Dr. Leggett again for evaluation. She
reported restless sleep and significant residual stress from caring for her autistic
child. (Tr. 324.) A mental status evaluation indicated plaintiff had adequate
insight, judgment, concentration, and orientation, but she appeared anxious and
depressed. (Tr. 324.) Plaintiff was prescribed Lexapro, Trazodone, perphenazine
and trilafon. (Tr. 324.)
On June 8, 2012, Dr. Braham B. Harneja of Bronx-Lebanon Hospital Center
completed an assessment form for plaintiff, indicating that plaintiff had been
receiving treatment there since September 14, 2011. (Tr. 358-59.) Plaintiff visited
the psychiatrist once a month and a therapist once every two weeks. (Tr. 358.) Dr.
Harneja listed a diagnosis of mood disorder, not otherwise specified. (Tr. 359.)
Plaintiff exhibited depressed mood, low energy, anxiety, irritability, and sleep
disturbances. (Tr. 358.) Dr. Harneja also stated plaintiff’s Global Assessment

4

Functioning score was 60, and that her symptoms can be expected to last twelve
months. (Tr. 359.)
Dr. Harneja also opined that plaintiff had a fair ability to follow work rules,
relate to co-workers, deal with the public, use judgment and maintain attention and
concentration, maintain personal appearance, behave in an emotionally stable
manner, relate predictably in social situations, and demonstrate reliability. He
opined, however, that she had no ability to interact with supervisors, deal with
work stresses, function independently, and perform complex or simple job
instructions. (Tr. 360-61.) He further opined, however, that plaintiff could manage
her own benefits. (Tr. 362.)
2.

Evidence from Therapist / Social Worker

Plaintiff also received treatment from Kristin Litvak, a licensed master social
worker (“LMSW”) once every two weeks since September 14, 2011. Litvak noted
that plaintiff experienced symptoms of anhedonia, crying spells, low energy, feelings
of worthlessness, and anxiety. Plaintiff’s medications included Lexapro, Trazodone,
and Abilify. (Tr. 356.)
Previously, plaintiff received psychotherapy from Benjamin Rosenberg at the
Union Settlement Johnson Counseling Center once a week. (Tr. 321.)
3.

Consultative Examinations

On September 8, 2011, consulting psychologist Dr. Howard Tedoff examined
plaintiff. He diagnosed her with depressive disorder not otherwise specified,
adjustment disorder with anxiety and depressed not ruled out, and bipolar disorder
not ruled out. (Tr. 336.) Dr. Tedoff observed that plaintiff was cooperative,
5

adequately groomed, and presented adequate social skills, relating to others, and
posture and gate. (Tr. 335.) There was no significant evidence of hallucinations,
delusions, or disordered thinking. (Tr. 335.) Her judgment, insight, and memory
were intact. (Tr. 335.) Plaintiff exhibited mild impairment in attention and
concentration, appeared stressed, tearful, depressed, and fearful about the future.
She had a below average cognitive functioning. (Tr. 335-36.)
Dr. Tedoff opined that plaintiff could follow and understand simple
directions, perform simple tasks, learn new tasks, and manage her own benefits.
However, he opined that she would have difficulty relating with others, managing
home-related stress, and maintaining a regular schedule. (Tr. 336-37.)
On October 4, 2011, State agency psychiatrist Dr. R. Altmansberger reviewed
plaintiff’s record and found that none of plaintiff’s impairments, alone or in
combination, met or equaled the criteria for an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 338-51.) He opined that plaintiff could follow and
understand simple directions, make simple work-related decisions, maintain
concentration and attention for an eight hour workday with normal breaks,
complete a normal work week, and get along with supervisors with only moderate
limitations. (Tr. 354.)
B.

Non-Medical Evidence Before the ALJ
1.

Recent Work History

Plaintiff had worked for approximately two months from April to June 2011
as a substitute bilingual Head Start teacher at East Harlem Council for Human
Services, earning $13.70 per hour, 10 hours per week. (Tr. 44, 198.) Plaintiff also
6

worked as a babysitter in her home caring for a one-year old child in 2012, including
feeding and changing diapers. (Tr. 49-50, 65.)3
2.

Plaintiff’s Hearing Testimony

Plaintiff was represented by counsel at her 2013 administrative hearing; a
Spanish interpreter was also present.4 (Tr. 45-46.)
Plaintiff testified that she lived with her three children. (Tr. 51.) Her oldest
child had autism. (Tr. 51.) She traveled from her home in the Bronx via train or
taxi to see her mother in Manhattan and her boyfriend a few blocks away in the
Bronx. (Tr. 51-52.) Her brother visited her at home once a month and accompanied
her food-shopping, which she claims she did only once a month.5 (Tr. 55.)
Plaintiff denied cooking at home, except for occasional breakfast for her
children. (Tr. 58-59.) Plaintiff testified that her children usually ate breakfast and
lunch at school, and her eldest son’s home attendant cooked dinner for the entire
family. (Tr. 58-59.)6
Plaintiff walked her two younger children to and from school daily, but the
school was near her home. (Tr. 59.) During the day, she either sleeps, takes walks,
or cleans. (Tr. 61-62.)

While she lived in Puerto Rico, plaintiff was a teacher’s assistant from 1999-2006, and also
held jobs as a receptionist and salesperson from 1994 to 1998. (Tr. 214.)
4
The ALJ asked plaintiff if she was certain that she would like to have an interpreter
present, given that she spoke some English and had worked as a bilingual teacher. Plaintiff
responded that she did want an interpreter. (Tr. 44.)
5
According to plaintiff’s application for benefits, she shopped two to three times per week.
(Tr. 225.)
6
According to plaintiff’s application for benefits, she cooked easy meals, including dinners of
rice, meat, salad, and spaghetti. (Tr. 223.)
3

7

Plaintiff reported that she suffered from anxiety, depression, and mood
disorder, and took Abilify, citalopram, and Trazadone. (Tr. 57.) She said the
medication made her sleepy. (Tr. 57.) She saw a psychiatrist once a month and a
therapist every other week. (Tr. 56.)
3.

Vocational Expert Testimony

The ALJ enlisted the assistance of vocational expert (“VE”) Robert Neal at
the hearing. The ALJ asked the VE to consider the following hypothetical:
Assuming a person of claimant’s age, education, and work experience,
[who] would be restricted—and the restrictions are only based on nonexertional limitations. Work is limited to simple, routine tasks, work
in a low-stress environment with no decision making. Low stress job
with no changes in work setting, work off-task five percent of the day
in addition to regularly scheduled breaks. Work with no judgment
require[d] on the job. And no interaction with the public, occasional
interaction with coworkers.
(Tr. 68.) The VE stated that such an individual could perform work as a ticketer
(1,000 jobs regionally and over 100,000 jobs nationally), labeler (2,000 jobs
regionally and 170,000 jobs nationally), or microfilm monitor (5,000 jobs regionally
and 150,000 jobs nationally) (referring to U.S. Department of Labor’s Dictionary of
Occupational Titles (4th ed. rev. 1991) Codes 652.685-018, SVP2, 920.687-126, SVP
2, and 208.685-022, SVP 2, respectively)).)
C.

ALJ Decision

Plaintiff applied for benefits in July 2008, alleging that her disability began
on July 25, 2008. (Tr. 27.)7 On April 15, 2013, ALJ Russak denied plaintiff’s

However, plaintiff previously had disability insurance until September 20, 2011; to be found
eligible for benefits for her instant application, plaintiff must demonstrate her disability commenced
on or before September 20, 2011. 42 U.S.C. §§ 432(a)(1)(A) and (c)(1); 20 C.F.R. § 404.131.
7

8

application, after conducting the five-step sequential evaluation process. (See Tr.
27-36.) The ALJ found that at step one, plaintiff had not engaged in substantial
gainful activity since the date of her alleged disability onset. (Tr. 29.) At step two,
he found that plaintiff had the following medically determinable impairments that
are severe under the Act: adjustment disorder, depressive disorder, and anxiety
disorder. (Tr. 29.)
At step three, however, the ALJ found that no impairment or combination of
impairments that met or medically equaled the severity of any impairment listed in
Appendix 1. (Tr. 30.) In particular, he found that although plaintiff had moderate
difficulties—but not marked limitations—in activities of daily living, maintaining
social functioning, and maintaining concentration, persistence of pace. He also
found that plaintiff had no episodes of extended duration decompensation. (Tr. 30).
At step four, the ALJ determined plaintiff’s RFC and found that plaintiff
could perform a full range of work at all exertional levels, limited to simple routine
tasks with low stress, defined as having no decision-making and no changes the
work setting. (Tr. 30.) Plaintiff would be allowed to work off-task five percent of
the day in addition to regularly scheduled breaks; she would have no interaction
with the public, occasional interaction with co-workers, and close supervision three
times daily. (Tr. 32.) In making this determination, the ALJ evaluated the record
evidence, including those from treating physicians, consultative examiners, and
plaintiff’s hearing testimony. (Tr. 32-34.) The ALJ also found that plaintiff is
unable to perform any past relevant work. (Tr. 34.)

9

At step five, the ALJ concluded that based on the Medical-Vocational
Guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2 and the testimony of
the vocational expert, plaintiff was able to perform jobs existing in significant
numbers in the national economy. (Tr. 35-36.) Accordingly, the ALJ concluded that
plaintiff was not disabled under the Act. (Tr. 36.)
D.

Additional Evidence Not Before ALJ

Plaintiff submitted four documents that do not appear to be in the
Administrative Record:
-

Psychological Evaluation Report dated March 11, 2014, issued by BronxLebanon Hospital Center (unknown physician). It is incomplete and cut off
mid-sentence. (Am. Compl. at 13-16.)

-

Annual Health Screening Review Form at Lenox Hill Hospital (physician
name illegible) dated October 10, 2014, which indicates a diagnosis of
depression and bipolar disorder and hypoglycemia. (ECF No. 22, at 7.)

-

MRI results from Dr. Michael Paley, Third Avenue Open MRI, dated January
28, 2015. (Am. Compl. at 18-19.) The MRI results indicate that plaintiff had
bulging discs in her lumbar spine. (Id.)

-

A prescription for physical therapy from Gabriel L. Dassa, D.O., dated March
5, 2015. (Am. Compl. at 17.)

II.

APPLICABLE LEGAL PRINCIPLES
A.

Judgment on the Pleadings

“After 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 same
10

standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
B.

The Disability Standard

The Commissioner will find a claimant disabled under the Act if he or 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). The claimant’s
impairment must be “of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit 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

11

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 [“Appendix 1”]. If the claimant has a listed impairment, the
Commissioner will consider the claimant disabled without considering
vocational factors such as age, education, and work experience; the
Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, she has
the residual functional capacity [“RFC”] 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.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
C.

Review of the ALJ’s Judgment

The Commissioner and ALJ’s decisions are subject to limited judicial review.
The Court may only consider whether the ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. See
Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998) (“We set aside the ALJ’s decision only where
it is based upon legal error or is not supported by substantial evidence.” (citation
omitted)); 42 U.S.C. § 405(g).

12

Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). If the
Commissioner and ALJ’s findings as to any fact are supported by substantial
evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59
F.3d 307, 312 (2d Cir. 1995). When the Appeals Council denies review after
considering new evidence, the court reviews the entire administrative record—
which includes the new evidence—and determines whether there is substantial
evidence to support the decision. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having
rational probative force, we will not substitute our judgment for that of the
Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See 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.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).

13

Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff's testimony and
observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must
contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.
D.

The Treating Physician Rule

“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician,” although an ALJ need not afford
controlling weight to a treating physician’s opinion that is “not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment

14

relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.
Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
not given “any special significance.” 20 C.F.R. § 404.1527(d)(3); see also Soc. Sec.
Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the 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.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.
E.

The ALJ’s Duty to Develop the Record

Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses

15

and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); Calzada v. Asture, 753 F. Supp. 2d 250, 277 (S.D.N.Y. 2010)
(“If the ALJ is not able to fully credit a treating physician’s opinion because the
medical records from the physician are incomplete or do not contain detailed
support for the opinions expressed, the ALJ is obligated to request such missing
information from the physician.” (citing Perez, 77 F.3d at 47)).
F.

Review of New Evidence

If a plaintiff submits new evidence for which there is “good cause for the
failure to incorporate such evidence into the record in a prior proceeding,” 42 U.S.C.
§ 405(g), the district court may direct the ALJ to consider such evidence on remand.
Such evidence must meet the following criteria: (1) it is “new and not merely
cumulative of what is already in the record,” (2) it is “relevant to the claimant’s
condition during the time period for which benefits were denied and probative,” and
(3) there was “good cause for her failure to present the evidence earlier.” Tirado v.
Bowen, 842 F.2d 595, 597 (2d Cir. 1988). As to the second element, materiality
requires “a reasonable possibility that the new evidence would have influenced the
Secretary to decide claimant’s application differently.” Id. The relevant period for
the evaluation is “between the date of the alleged onset of disability and the date of
the ALJ's decision.” Collins v. Comm’r of Soc. Sec., 960 F. Supp. 2d 487, 501

16

(S.D.N.Y. 2013). As to the third element, evidence that did not exist at the time of
the ALJ’s hearing constitutes good cause. Pollard v. Halter, 377 F.3d 183, 193 (2d
Cir. 2004).
III.

DISCUSSION
A.

Plaintiff’s Submission of New Evidence

Plaintiff submitted four documents with her Complaint and cross-motion, all
of which post-date the ALJ’s decision.
The two documents submitted by plaintiff regarding “bulging discs” and one
relating to hypoglycemia, (Am. Compl. at 17-19; ECF No. 22 at 7), are not relevant
to the condition for the time period for which benefits were denied. Tirado, 842 F.2d
at 597. Plaintiff “did not establish that any of these conditions was a severe
impairment during the relevant period.” Guerra v. Colvin, 618 F. App’x 23, 24 (2d
Cir. 2015). Instead, these issues were diagnosed after the ALJ issued his decision,
and do not relate to the bases for disability in plaintiff’s application for benefits
(namely, psychiatric disorders of depression, anxiety, and adjustment disorder).
As to the document containing portions of a March 11, 2014 psychological
evaluation, plaintiff has not demonstrated that she had good cause for failure to
submit it to the Appeals Council, whose decision was not rendered until November
25, 2014. (Tr. 1-9.) Indeed, plaintiff submitted other documents post-dating the
ALJ’s decision to the Appeals Council, but neglected to include this report. (See Tr.
10-19.) Because plaintiff has not demonstrated good cause for failure to submit this
document into the record earlier, this Court will not direct the ALJ to reconsider.

17

See Tirado, 842 F.2d at 597; Johnston v. Colvin, No. 13 Civ. 2710 VEC FM, 2015
WL 657774, at *10 (S.D.N.Y. Feb. 13, 2015), report and recommendation adopted,
2015 WL 1266895 (S.D.N.Y. Mar. 18, 2015) (“[Plaintiff] consequently cannot show
good cause for failing to incorporate any new evidence into her prior submissions to
the ALJ, since any such information would have been available at that time.”).
In addition, plaintiff has not demonstrated that there is a reasonable
possibility that this evidence would have affected the decision as to her disability
status; therefore, it also should not be considered by the Commissioner. The report
comprises of background information that is cumulative of other record materials
reviewed by the ALJ. It also contains cognitive functioning test results for which
the examiner stated, “Ms. Santiago’s low scores should be interpreted with caution.
It would be advisable to re-test Ms. Santiago with a validated Spanish version of
the test, once her anxiety is better managed.” (Am. Compl. at 16.) Given the
report’s internal evaluation of unreliability, it is not reasonably likely that the
Commissioner would have arrived at a different decision as to plaintiff’s disability
status.
B.

ALJ’s Decision

Plaintiff does not specifically challenge any aspect of the ALJ’s decision.
Nevertheless, this Court has conducted a review and finds that the ALJ correctly
conducted the five-step analysis required by 20 C.F.R. §§ 404.1520 and 416.920, and
that his findings were supported by substantial evidence.
At steps one and two of the sequential analysis, the ALJ found in plaintiff’s
favor—that plaintiff did not have substantial gainful activity and that she did have
18

severe impairments that limited her ability to do basic work activities—namely, her
depression, anxiety, and adjustment disorder.
At step three of the sequential analysis, the ALJ found that the treating
physician evidence does not show that plaintiff’s impairments met or medically
equaled the severity of one of the listed impairments in Appendix 1 of the
Regulations. In particular, the ALJ found no evidence that plaintiff did not meet
any of the listing’s requirements: suffering marked restrictions in activities of daily
living, maintaining social functioning, or maintaining concentration, persistence,
and pace, or episodes of decompensation, each of extended duration. (Tr. 30.) He
found that any restrictions were moderate in nature, not marked. In reaching this
conclusion, the ALJ relied on plaintiff’s psychiatric treatment records that indicated
that while plaintiff had reported somewhat impaired concentration, she was
independently managing her household and had no debilitating social functioning
issues. She had never been hospitalized and has never had a nervous breakdown,
manic episode, or suicide attempt. (Tr. 30.) The Court finds that the ALJ’s
conclusions was supported by reasoned analysis and substantial evidence from the
treating physicians’ records.
At step four, the ALJ determined that plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels, but with several
non-exertional limitations: 1) simple routine tasks, 2) no decision-making or
changes in work setting, 3) permission to work off task 5% of the day in addition to
scheduled breaks, 4) no judgment required at the job, 5) no interaction with the

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public, 6) occasional interaction with coworkers, and 7) close supervision up to three
times per day. (Tr. 30.) In reaching this conclusion, the ALJ considered evidence
from plaintiff’s treating physicians Drs. Lee, Elliott, and Leggett; her therapists
Rosenberg and Litvak, and state consultative examiner Dr. Altmansberger.
The ALJ also gave little weight to the assessment of plaintiff’s latest
psychiatrist, Dr. Harneja, and that of the consultative examiner, Dr. Tedoff. The
treating physician’s opinion as to plaintiff’s ability to work is not of “any special
significance.” See 20 C.F.R. § 404.1527(d)(3). Furthermore, the ALJ found that
both Dr. Harneja and Dr. Tedoff’s conclusions that plaintiff could not perform work
were belied by substantial evidence, namely, same-day mental status examinations
and other positive prognoses. (Tr. 34.) See Mongeur v. Heckler, 722 F.2d 1033,
1039 (2d Cir. 1983) (“The opinion of a treating physician is not binding if it is
contradicted by substantial evidence.”). In addition, Dr. Tedoff is a one-time
consultative non-treating physician and his conclusions were also contrary to that of
a second consultative examiner, Dr. Altmansberger. See Selian v. Astrue, 708 F.3d
409, 419 (2d Cir. 2013). Thus, the ALJ’s lower weighting of Drs. Harneja and
Tedoff’s opinions regarding plaintiff’s ability to work was evaluate.
Finally, the ALJ evaluated plaintiff’s own testimony, which he found not fully
credible. (Tr. 33.) The ALJ, “after weighing objective medical evidence, the
claimant’s demeanor, and other indicia of credibility . . . may decide to discredit the
claimant’s subjective estimation of the degree of impairment.” Tejada, 167 F.3d at
776 (citation omitted). As with any finding of fact, “[i]f the Secretary’s findings are

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supported by substantial evidence ... the court must uphold the ALJ's decision to
discount a claimant’s subjective complaints of pain.” Perez v. Barnhart, 234
F.Supp.2d 336, 341 (S.D.N.Y. 2002) (quoting Aponte, 728 F.2d at 591). An ALJ’s
credibility determination is thus entitled to deference, unless it is not set forth “with
sufficient specificity to enable [a reviewing court] to decide whether [it] is supported
by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Here, the ALJ’s determination of plaintiff's credibility is set forth with
“sufficient specificity.” Id. He pointed to the fact that plaintiff claimed that her
English proficiency is limited, even though she responded to some questions in full
English, had never required Spanish interpretation for any prior treatment or
applications, and had previously served in a number of jobs including as a bilingual
teacher. (Tr. 33.) The ALJ also questioned how severe plaintiff’s psychiatric
condition was given that she took care of her own three children in addition to
babysitting an infant. (Tr. 33.) Finally, plaintiff’s application materials
contradicted her testimony on several points, including the fact that she cooked
dinner for her children and that she grocery shopped on her own two to three times
a week. (Tr. 33.) The ALJ’s RFC analysis considered the objective medical evidence
along with other indicia of the plaintiff’s reliability, and thus the Court must defer
to his determination to discount plaintiff's “subjective complaints.” Perez, 234
F. Supp. 2d at 341 (quoting Aponte, 728 F.2d at 591). Accordingly, the ALJ’s
credibility determination must be upheld.

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At step five, the ALJ, after considering the testimony of vocational expert,
properly concluded that based on the Medical-Vocational Guidelines, there were
jobs in the national economy for an individual with plaintiff’s age, education, work
experience, and RFC. (Tr. 34-35.) The ALJ’s RFC determinations are supported by
substantial evidence and therefore a proper basis for the VE’s determination. See
Calabrese v. Astrue, 358 F. App’x 274, 276 (2d Cir. 2009). Thus, the testimony of
the vocational expert was proper and the ALJ did not err in relying on it to reach
his conclusion at step five.
IV.

CONCLUSION
For these reasons, defendant’s motion for judgment on the pleadings is

GRANTED and plaintiff’s motion for judgment on the pleadings is DENIED. The
Clerk of Court is directed to terminate the motions at ECF Nos. 18 and 22, to enter
judgment for defendant, and to terminate this action.

SO ORDERED.
Dated:

New York, New York
May 16, 2016

______________________________________
KATHERINE B. FORREST
United States District Judge
CC:

Carmen D. Santiago
450 E. 144th Street, Apt. 1D
Bronx, NY 10454

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