Guerrero v. Commissioner of Social Security

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION for 13 Motion for Judgment on the Pleadings filed by Commissioner of Social Security, 16 Report and Recommendation. The Court adopts the Report in all material respects and finds that the ALJ's d ecision denying Plaintiffs claims for disability insurance applied the correct legal standards and was supported by substantial evidence. Accordingly, Defendant's motion for judgment on the pleadings is GRANTED. The Clerk of Court is respectfully directed to terminate the motions pending at docket number 13, enter judgment in favor of Defendant, and close this case. (Signed by Judge Richard J. Sullivan on 9/13/2017) (ras) Modified on 9/14/2017 (ras).

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DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLY FILED
DOC#:

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~ATE FILED. '1/1}!)_L7-::- I

SELIA GUERRERO,
Plaintiff,

No. 16-cv-3290 (RJS) (AJP)
ORDER ADOPTING REPORT AND
RECOMMENDATION

-v-

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

RICHARD J. SULLIVAN, District Judge:
Plaintiff Selia Guerrero brings this action under § 205(g) of the Social Security Act, 42
U .S.C. § 405(g), seeking judicial review of the final decision of the Social Security Commissioner
(the "Commissioner") denying her application for Disability Insurance Benefits and Supplemental
Security Income. (Doc. No. 2.) Now before the Court is the Report and Recommendation of the
Honorable Andrew J. Peck, Magistrate Judge, recommending that the Court grant Defendant's
motion for judgment on the pleadings. (Doc. No. 16 (the "Report").) For the reasons set forth
below, the Court adopts the Report in its entirety.
I. BACKGROUND

The facts of this case are described in detail in the Report. (See Report at 1- 18.) In brief,
Plaintiff stopped working as a babysitter on December 1, 2011 and filed an application for disability
benefits on February 14, 2013, alleging a disability onset date of January 19, 2012 and claiming
various physical injuries and mental impairments. (Id. at 1-2, 5- 17.) After the Social Security
Administration (the "SSA") denied her application on June 28, 2013, Plaintiff requested a hearing
before an administrative law judge ("ALJ"). (Id. at 2.) On November 4, 2014, ALJ Wallace
Tannenbaum conducted a hearing at which Plaintiff was represented by counsel, and on December

29, 2014, he issued a deci sion finding that Plaintiff was not disabled within the meaning of the
Social Security Act. (Id.) The SSA's Appeals Council denied Plaintiff's request for review on
March 8, 2016. (Id.)
Plaintiff, now proceeding pro se, filed a civil action in thi s Court on May 3, 2016. (Doc.
No. 2.) On May 17, 2016, the Court both refen-ed the case to Judge Peck and issued a service and
scheduling order that instructed the Commissioner to (1) file and serve on Plaintiff the Electronic
Certified Administrative Record (e-CAR) within 90 days, and (2) move for judgment on the
pleadings within 60 days of the date on which the e-CAR was filed. (Doc. Nos. 6, 7.) The
scheduling order then gave Plaintiff another 60 days to file a response to the Commissioner's
motion. (Doc. No. 6.) The Commissioner filed thee-CAR on ECF on August 16, 2017 (Doc. No.
I 0) and filed and served a motion for judgment on the pleadings on October 17, 2016 (Doc. Nos.
13, 14).
On December 6, 2016 - ten days before Plaintiff's response was due - the Commissioner
sent a letter to Judge Peck explaining that "through an administrative oversight, a hard copy of the
[e-CAR] ... was not served on [Plaintiff] at the time it was filed [on ECF]." (Doc. No. 15.) The
letter added that the Commissioner had just served Plaintiff with a copy of the e-CAR by two-day
delivery and would consent to any extension of time she needed to file her response. (Id.) Neither
Judge Peck nor Plaintiff acted on the letter, and Plaintiff never filed a response to the motion. Judge
Peck then issued his Report on December 19, 2016, recommending that the Court grant the
Commissioner's motion. (Doc. No. 16.)
On December 28, 20 16, Plaintiff requested an extension of time in which to file objections
to the Report, explaining that she was attempting to find a lawyer. (Doc. No. 17.) The Court granted
her request. (Doc. No. 18.) Then, on January 26, 2017, Plaintiff, now represented by counsel, sent

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a letter to Judge Peck requesting that he withdraw the Report in order to ·'afford [Plaintiff] an
opportunity to litigate the legal issues in this matter on the merits." (Doc. No. 20.) Specifically, the
letter argued that, because the Commi ssioner failed to timely serve the e-CAR on Plaintiff, and
because " [t]he briefing schedule ... was entirely predicated on the presumption that the e-CAR
[would be] filed and served," it was not clear that Plaintiff, who had no access to ECF, was obliged
to file her response to the Commissioner's motion by December 16, 2016. (Id. (emphasis added).)
Furthermore, the Jetter emphasized, Plaintiff had access to thee-CAR for only eight days before her
response was due, and could not have been expected to prepare and file a response pro se in such a
short amount of time. (Id.) The letter did not directly address why Plaintiff failed to request an
extension after the Commissioner discovered and disclosed the oversight on December 6, or why
Plaintiff could not have discerned her response's due date from the date of the Commissioner's
motion, with which she was served on October 17 (Doc. No. 14). It did, however, suggest that her
limited English skills and pro se status restricted her ability to ascertain what she was required to
do. (Id.) Judge Peck nonetheless denied the request to withdraw the Report, reasoning that (1)
Plaintiff had submitted no affidavit or other factual support for her claim that she was unaware of
the response deadline, (2) Plaintiff never contacted the Court between the date that she received a
copy of the Commissioner's motion and the date that her response was due, and (3) because he had
"exhaustively reviewed the record and case law," he saw "no need or basis to withdraw the [Report]"
absent any evidence that he had "missed something." (Doc. No. 21 .)
Plaintiff filed objections to the Report on February 17, 2017 (Doc. No. 24 (the " Objections"
or "Obj.")), and the Commissioner filed a response to the Objections on March 16, 2017 (Doc. No.
29). In addition to arguing that the Court should review the Report de novo because she was not
given an adequate opportunity to respond to the Commissioner's motion, Plaintiff challenges Judge

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Peck's findings with respect to (l) the ALJ ' s detennination that there is work in the national
economy that Plaintiff can perform, (2) the Appeals Council 's refusal to consider post-hearing
evidence, (3) the ALJ's development of the record , (4) the ALJ ' s assessment of Plaintiff's
credibility, (5) the ALJ 's treatment of opinion evidence, and (6) the ALJ's consideration of
Plaintiffs noncompliance with certain prescribed treatment regimes. The Commissioner's response
addresses all of these objections except Plaintiff's contention about the proper standard of review.
II. L EGAL S TANDARDS
A. Social Security Benefits Claims

Under the Social Security Act, a claimant is deemed "disabled" - and thus entitled to
disability benefits - if she demonstrates an "inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than 12 months." 42 U.S.C. § 432(a)(l); 20 C.F.R. §§
404.1505(a), 416.905(a); see also Hankerson v. Harris, 636 F.2d 893, 895 n.2 (2d Cir. 1980)
(definition of disability " virtually identical" in disability insurance and SSI cases). In evaluating
disability claims, an ALJ must apply a five-step sequential analysis, 20 C.F.R. § 404.1520(a)(4),
which the Second Circuit has summarized as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a "severe impairment" which significantly limits his physical or
mental ability to do basic work activities. Ifthe 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 impainnent, the [Commissioner] will consider him 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,
he has the residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perfonn.
4

DeChirico v. Callahan, 134 F.3d 11 77, 11 79- 80 (2d C ir. 1998) (citations omitted). The claimant
bears the burden at the first four steps, and the Commissioner bears the burden at the final step. See

Brault v. Soc. Sec. Admin. , Comm 'r, 683 F.3d 443 , 445 (2d Cir. 2012). The ALJ must weigh all
medical evidence and other ·'relevant evidence" he receives, 20 C.F.R. §§ 404.l 520b(b),
4 I 6.927(b), but need not resolve all inconsistences, as long as he makes findings supported by
substantial evidence. See Laine v. Soc. Sec. Admin., Comm 'r, No. 07-cv-1 251 (RO), 2013 WL
2896968, at *4 (S .D.N.Y. June 13, 2013) ("The ALJ is not required by the regulations to reconcile
conflicting medical testimony, but is required to fully assess the record and provide findings that are
supported by substantial evidence in the record.").
B. Judicial Review
A district court may not disturb an ALJ's decision if it is based on correct legal principles
and supported by substantial evidence. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);

Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence is "more than a mere
scintilla" of evidence; " [i]t means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
quotation marks omitted). The substantial evidence standard "applies not only to basic evidentiary
fact-finding but extends to inferences and conclusions drawn from such facts. " Gracia, 1998 WL
599714, at *4 (citing Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)). Thus, the
Commissioner' s "findings of fact, and the inferences and conclusions drawn from those findings,
are conclusive where a reviewing court' s independent analysis of the evidence may differ from the
Commissioner' s analysis." Id. (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)).
Furthermore, the existence of contrary evidence does not suffice to find in favor of Plaintiff if
substantial evidence otherwise supports the ALJ's findings. See Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010). The Court may reject a finding only if "a reasonable factfinder would have to

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conclude otherwise:· Brault, 683 F.3d at 448 (2d Cir. 2012) (internal quotation marks omitted)

(emphasis in original).
C. Review of the Report and Recommendation
The district court "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(I); see also Fed. R. Civ. P.
72(b)(3). If a pa11y "properly objects" to - that is, raises objections that are "clearly aimed at
particular findings in" - the magistrate judge's report, the district court reviews those findings de
novo. See Rodriguez, 2014 WL 5038410, at *3 (citations omitted); see also McDonaugh v. Astrue,

672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009). Conversely, if the objections are improper - because
they are "conclusory," "general," or "simply rehash or reiterate the original briefs to the magistrate
judge," Rodriguez, 2014 WL 5038410, at *3 - the district court will review the magistrate 's findings
only for clear error, Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)
(citation omitted).
III. DISCUSS ION

Plaintiffs objections, all of which constitute arguments raised for the first time in this case,
fall into two categories: (1) those that merely protest the ALJ's findings (see Obj. points I, III, IV,
VII), and (2) those that at least arguably properly object to Judge Peck 's Report itself (see id. points
II, V, VI). Ordinarily, the Court would treat the objections in the first category as improper and
would review the Report's corresponding findings only for clear error. In addition, although "[t]he
question [w ]hether a party may raise a new legal argument ... for the first time in objections to [a
magistrate judge's report and recommendation] has not yet been decided in this Circuit," Belen v.
Colvin, No. 14-cv-6898 (PGG) (JCF), 2016 WL 1048058, at *3 (S.D.N.Y. Mar. 11 , 2016) (citing

cases), district courts generally refuse to consider such arguments in order to avoid "undermin[ing]
the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is
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issued to advance additional arguments,'" Abu-Nassar v. Elders Futures, In c., No . 88-cv-7906
(PKL), 1994 WL 445638, at *5 n.2 (S.D.N.Y. Aug. 17, 1994). Plaintiff nonetheless urges the Court
to conduct a de novo review of all of the Report's findings to which she objects because the
Commissioner' s late service of thee-CAR, together with Judge Peck ' s prompt work, meant that the
Repo11 " issued before [she] had the opportunity to present her case." (Obj . at 33.) Aside from a
passing reference to the Fifth Amendment right to due process of law and a strained analogy to
equitable tolling, Plaintiff does not support her position with any legal authority. (See Obj . at 3133.) Oddly, the Commissioner's response to the Obj ections altogether fai ls to address Plaintiff's
request for de novo review; indeed, it seems to assume that de novo review is the appropriate
standard. (See Doc. No. 29.)
Having considered the parties' submissions and the procedural history of this case, the Court
will conduct a de novo review of the objected-to findings. With respect to improper objections,
district courts always "retain[] the power to engage in sua sponte review of any portion of the
magistrate's report and recommendation, regardless of the absence of objections," and "[s]uch sua

sponte review may be under a de novo standard, or any lesser standard of review." Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 514 (S.D.N.Y. 1997) (quoting 7 Pt. 2 Moore' s Federal Practice,
~

72.04[10.- 1], at 72-95), ajf'd, 136 F.3d 313 (2d Cir. 1998); see also Mathews v. Weber, 423 U. S.

26 1, 27 1 (1976) ("The authority and the responsibility to make an informed, final determination
... remains with the [di strict] judge."). As for arguments raised for the first time in objections to a
magistrate' s report, courts in this circuit have considered such arguments in certain circumstances,
for example when they concern questions of law whose resolution is not open to serious question
and fairness and efficiency counsel in favor ofreview. See, e.g., Levy v. Young Adult Inst., Inc., 103
F. Supp. 3d 426, 434 (S.D.N.Y. 2015) (applying the Second Circuit's standard for consideration of

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new legal arguments raised for the first time in a motion for reconsideration). Here, the usual
rationale for reviewing improperly objected-to findings only for clear error does not apply, since
Plaintiff never submitted a response to the Report and the Commissioner appears to have been
largely responsible for her confusion about when her response was due. Furthermore, Plaintiffs
objections do not present novel questions of law, and reviewing the findings to which she objects

de novo is simply a matter of reviewing Judge Peck's recommendations for correctness rather than
reasonableness. Accordingly, the Court finds that fairness and efficiency counsel in favor of treating
all of Plaintiffs objections as proper and reviewing the corresponding findings in the Report de

novo. The Court will address the objections in the order in which Plaintiff presents them.
A. The ALJ 's Analysis at Step Five

Plaintiff first objects to Judge Peck 's conclusion that the ALJ properly determined, at step
fi ve of the sequential analysis for disability determinations, that "there are jobs that exist in
significant numbers in the national economy that [Plaintiff] can perfonn." (Doc. No. 10 ("e-CAR")
at 61; see also Obj. at 33- 35; Report at 39-44.) She argues that "[t]he ALJ's reliance on a
mechanical application of the Medical-Vocational Rules," which are also known as the "Grids,"
" constitutes legal error because [Plaintiff had] significant non-exertional impairments." 1 (Obj. at

34.) More particularly, she contends that the ALJ erred by "looking at the various non-exertional

1

The "Grids" "take[] into account the claimant's residual functional capacity in conjunction with the claimant's age,
education[,] and work experience," Zorilla v. Chater, 9 15 F. Supp. 662, 667 (S.D.N.Y. 1996), in order to determine
"whether the claimant can engage in any substantial gainful work existing in the national economy," Rosa v. Callahan,
168 F.3d 72, 78 (2d Cir. 1999). "ln the ordinary case, the [ALJ] meets his burden at the fifth step by resorting to the
[Grids]." Id. (internal quotation omitted). "Exclusive reliance on the [G]rids is inappropriate," however, "where [they]
fail to describe the full extent of a claimant's physical limitations," and particularly where a claimant's "exertional
impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the
claimant can perfonn." Id. (emphasis added and internal quotation omitted). In such circumstances, an ALJ must
"introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant
can obtain and perform ." Id. (internal quotation omitted).

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facts and [Plaintiff's] language abilities separately, rather than together."'2

(Id.)

While the

relationship between these two statements is not quite clear, the Court construes Plaintiff's argument
to be that if the ALJ had properly considered her various non-exertional limitations cumulati vely
rather than individuall y, he would have been compelled to find that she had significant nonexertional impaim1ents, which in turn would have required him to consult with a vocational expert
rather than rely solely on the "Grids." See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) ("If
a claimant has nonexertional limitations that 'significantly limit the range of work permitted by his
exertional limitations,' the ALJ is required to consult with a vocational expe1i.") (quoting Bapp v.
Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).
This objection is easily disposed of. As Judge Peck's Report explains, the ALJ considered
each of Plaintiff's non-exertional limitations in tum - her mental impainnents and her inability to
communicate effectively in English - before detennining that those limitations, even taken together,
would not significantly diminish her ability to perform unskilled, sedentary work, which typically
involves little interaction with data or people and requires the perfonnance of only "basic mental
tasks. " (Report at 42-44; e-CAR at 62.) Judge Peck thus correctly concluded that the ALJ's
decision to rely on the Grids rather than consult a vocational expert at the hearing was appropriate
and supported by substantial evidence. (Report at 44-45.) See, e.g., Zabala, 595 F.3d at 411
(upholding ALJ's finding of no significant non-exertional limitation where plaintiff's mental
condition did not limit her ability to perform unskilled work). 3

2

The ALJ found that Plaintiffs non-exertional limitations included major depressive disorder and mild to moderate
difficulties with attention, concentration, and memory. (See Record at 53, 56-57, 59-{)0, 62.)
3 Plaintiff also states, without any elaboration, that the Report is "erroneous in finding that [the ALJ's] analysis at step
5 .. . is supported by substantial evidence" and that Judge Peck " failed to consider the appropriate legal standards."
(Obj. at 35.) To the extent that Plaintiff means to object to the ALJ's credibility findings or development of the record
in connection with his findings at step five, those objections are addressed below. Otherwise, the Court finds that the
ALJ's analysis at step five is supported by substantial evidence for the reasons discussed in Judge Peck's Report. (See

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B. New Evidence
Plaintiff next contends that Judge Peck erred by failing to remand Plaintiffs case to the ALJ
to consider certain post-hearing evidence submitted to but rejected by the Appeals Council. (Obj.
at 35-40.) She identifies three pieces of evidence in particular: (l) an MRI report generated nearly
a year after the ALJ's decision, (2) a statement from a psychiatrist whom Plaintiff began seeing after
the decision, and (3) a notation from Dr. Blatt, one of Plaintiffs treating physicians, that predates
the hearing but that Plaintiff received after the ALJ's decision. (See id. at 37-39; e-CAR at 20, 1016, 716.) These records, Plaintiff argues, "relate to the relevant time period and provide unique
insight" into Plaintiffs alleged disability. (Obj. at 37.) Plaintiff contends that the MRI report, for
example, could show that Plaintiffs spinal condition was progressive, which in tum could support
her claim that her back pain was more serious at the time of the hearing than the ALJ found it was,
while the psychiatrist's statement could confinn that Plaintiff suffered from hallucinations during
the relevant time period. (Id. at 37-39.)
Judge Peck, however, correctly declined to remand this case, since the post-hearing evidence
in the record does not qualify as "new and material evidence" that "relate(s) to the period on or
before the date of the (ALJ's] hearing decision," as required by the relevant regulations. See 20
C.F.R. §§ 404.970; 416.1470; 404.976(b); 416.1476(b).

Such evidence must not be "merely

cumulative of what is already in the record," and must be "both relevant to the claimant's condition
during the time period for which benefits were denied and probative." Lisa v. Sec'y of Dep 't of

Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). The Appeals Council examined the posthearing evidence in this case and found that it either did not relate to the time period for which
Plaintiff sought disability benefits or duplicated evidence already submitted to the ALJ. ( e-CAR at

Report at 39-45.) As for Plaintiff s statement that Judge Peck failed to consider the appropriate legal standards, the
Court finds no basis for that assertion.

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2.) The Court agrees. The MRI record and psychiatri st's statement both post-date the ALJ ' s
decision, and while later medical evidence can provide information about a patient' s condition at an
earlier date, Plaintiff has not sufficiently shown that it does so here. Her contentions about the light
shed by the new MRI on her back's condition more than a year earlier are speculative, and her
characterization of the psychiatrist' s statement as "relat[ing] to [Plaintiffs] psychiatric condition
since 2011 " is simply wrong - the record expressly states that it describes Plaintiff's symptoms as
of January 3, 2015, a few days after the ALJ issued his decision. 4 (Obj. at 37- 38; e-CAR at 14.)
And although Dr. Blatt's notation pre-dates the hearing, it largely duplicates evidence that the ALJ
considered at the hearing, as the Appeals Council explained (e-CAR at 2), and it certainly duplicates
the evidence that Plaintiff argues is material - namely, that she was taking Seroquel to "help her
stop hearing things." (Obj. at 39; compare e-CAR at 716 (noting Seroquel), with e-CAR at 658
(noting Seroquel).) Altogether, Plaintiff has failed to establish a " reasonable possibility" that the
post-hearing evidence " would have influenced the (ALJ] to decide [her] application differently."

Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). Consequently, the Court finds that Judge Peck
did not err by failing to remand this case for further consideration of that evidence. 5

4

Plaintiff' s confusion on this score may be attributable to the way in which the psychiatrist filled out the relevant
questionnaire. The fifth page of the questionnaire asks the psychiatrist whether, " [i]n [his] best medical opinion, [his]
patient's symptoms and related limitations as detailed in this questionnaire apply as far back as _ __?," with the date
to be filJed in by the patient. The fonn then dir ects the psychiatrist to check either "yes" or "no." The next question
asks, " lfnot, as of what date do your patient's symptoms and related limitations as detailed in this questionnaire apply?
_ __," with the date to be filled in by the psychiatrist. In Guerrero's questionnaire, the date "9/ 1/2011 " was
typewritten into the first blank - in other words, the psychiatrist was asked whether he thought the limitations he
observed on April 18, 20 15, the date he completed the questionnaire, applied as far back as September I, 2011 . Although
the psychiatrist failed to check either "yes" or " no," he did write " I/3/2015" in the next blank. Plaintiff perhaps takes
the psychiatrist' s failure to check "yes" or "no" to mean that the psychiatrist did think Plaintiff's limitations applied as
far back as September I , 2011 . But the clear implication of his answer to the following question, which begins with the
qualifying phrase " [i]f not," is that he instead thought her limitations applied only as far back as January 3, 2015. (See
Record at 14.) Indeed, no other inference is plausible.
5

Finally, Plaintiff vaguely "note[s]" that "some of the evidence that was weighed by the Appeals Council was not
included in the administrative record," and that Judge Peck "appears" to have "either overlooked or erroneously
dismissed the absence of 27 pages of evidence, including 15 pages from [Plaintiff' s] treating sources," which "merits

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C. Development of the Record
Plaintiff also maintains that Judge Peck erred in finding that the ALJ adequately developed
the administrative record. (Obj. at 40-43.) Specifically, she identifies a hodgepodge of "gaps in
the record," including that (I) the hearing before the ALJ lasted only twenty-three minutes and
included "aggressive" questioning, (2) the second page of an MRI report was missing from the
record , (3) the ALJ did not hear any witness testimony, (4) the ALJ relied on the opinion of a doctor
who cleared Plaintiff to perform only limited rather than full-time, competiti ve work, and (5) the
ALJ failed to subpoena records from one of Plaintiffs primary care physicians. (Id. at 40-43.)
Having reviewed the record and the hearing transcript, the Court finds Plaintiffs
characterizations to be inaccurate. While ALJs have a "general duty to develop the administrative
record," they are "required affinnatively to seek out additional evidence only where [the record has]
'obvious gaps. "' Eusepi v. Colvin, 595 F. App' x 7, 9 (2d Cir. 2014) (summary order) (quoting Rosa

v. Callahan, 168 F.3d 72, 79 & n. 5 (2d Cir. 1999)). The record here was more than "adequate for
[the ALJ] to make a determination as to disability." Perez v. Chater, 77 F.3d 4 1, 48 (2d Cir. 1996).
In reaching his decision, the ALJ studied a voluminous record that included extensive medical
history and opinions from a number of treating and consultative physicians. His questioning at the
hearing was wholly appropriate, and the length of the hearing - at which Plaintiff was represented
by counsel - does not, standing alone, reveal anything about the full development of the record. The
rest of Plaintiffs objections are either insubstantial or simply unfounded. For example, there is no
evidence to suggest that the single missing MRI page contained information that supported a finding

remand." (Obj. at 36.) But Plaintiff - who submitted the documents in question and presumably knows what they
included - makes no attempt to explain why or how those documents constitute "new and material evidence" that
"relate[s] to the period on or before the date of the [ALJ 's] hearing decision." 20 C.F.R. §§ 404.970; 4 16. 1470;
404.976(b); 41 6. 1476(b). Accordingly, the Court declines to remand this case on the basis of an alleged gap in the
record before the Appeals Council.

12

of disability, and in any event, the missing page is more than compensated for by another complete
MRI report prepared a few weeks later. (See e-CAR at 668.) Similarly, the intimation that the ALJ
did not understand the opinion of the doctor who cleared Plaintiff to perform limited work is entirely
speculative, and the ALJ in fact had records from the treating physician Plaintiff identifies (see eCAR at 268- 73). In sum, Plaintiff simply has not identified any "gaps in the record" that warrant
remand to the ALJ for further development. See Perez, 77 F.3d at 48 (rejecting failure-to-develop
objection where " [t]he ALJ had before him a complete medical history, and the evidence received
from the treating physicians was adequate for him to make a determination as to disability"); Puente

v. Comm 'r of Soc. Sec., No. 14-cv-4427 (GWG), 2015 WL 5474106, at *10 (S.D.N.Y. Sept. 18,
2015) ("[I]t is well established that where there are no obvious gaps in the administrative record,
and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to
seek additional infonnation in advance of rejecting a benefits claim." (citing Rosa, 168 F.3d at 79
n.5)).
D. Credibility Assessment
Plaintiff next objects to Judge Peck' s approval of the ALJ 's assessment of Plaintiffs
credibility - specifically, his conclusion that Plaintiff was not entirely credible in her description of
the severity of her symptoms. (Obj. at 43-49; see also Report at 26-32; e-CAR at 52-60.) In
scattershot fashion, Plaintiff maintains that the ALJ, in assessing her credibility, improperly (i)
emphasized her lack of "vegetative" depression and " uncontrolled" anxiety, (ii) discounted certain
medical opinion evidence about more serious memory and cognitive limitations, (iii) underscored a
mental health consultant' s opinion that she was exaggerating her difficulties with memory and
concentration, and (iv) questioned her about her work and education history, use of a cane, and

13

ability to speak English. (Obj. at 43-49.) 6 Plaintiffs argument here is unfocused, but she appears
to contend that the ALJ's consideration of these factors constituted error because they were " issues
of credibility unrelated to [Plaintiffs] medical condition." (Id. at 46 (citing Social Security Ruling
16-3p).)
The Court disagrees. Judge Peck's Report correctly concludes that the ALJ "met his burden
in finding [Plaintiffs] claims [about the severity of her impairments] not entirely credible because
the objective medical evidence and [Plaintiffs] own testimony fai led to support her claims of
disability." (Report at 31 - 32.) While ALJs are "required to take [a] claimant's reports of pain and
other limitations into account," they are "not required to accept the claimant' s subjective complaints
without question" and "may exercise discretion in weighing the credibility of the claimant's
testimony in light of the other evidence in the record." Genier v. Astrue, 606 F .3d 46, 49 (2d Cir.
2010) (citing 20 C.F.R. § 416.929; Mclaughlin v. Sec'y ofHealth, Educ. & Welfare, 612 F.2d 701,
704-05 (2d Cir. 1980)). Reviewing courts, meanwhile, " must show special deference to an ALJ's
credibility determinations because the ALJ had the opportunity to observe plaintiffs demeanor
while testifying." Marquez v. Colvin, No. 12-cv-6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y.
Oct. 9, 2013) (citing Yellow Freight Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994)).
Here, in assessing the credibility of Plaintiffs testimony at the hearing, the ALJ properly
followed the two-step process specified in the applicable regulations: he first found that Plaintiffs

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In conjunction with her objection to the ALJ 's credibility assessment, Plaintiff also asserts that the ALJ committed
legal error b y holding her to an improperly high evidentiary standard. (Obj. at 43.) Specifically, she seems to argue
that the ALJ erroneously found her not disabled merely because there was no evidence of " vegetative depression" or
·'uncontrolled anxiety" in the medical record. (Id. at 43-44.) Although Plaintiff is correct that a claimant need not
demonstrate "vegetative depression" or " uncontrolled anxiety" in order to be found disabled, she inaccurately
characterizes the ALJ's findings to which she objects. The ALJ mentioned "vegetative depression" and "uncontrolled
anxiety" in the course of comparing the objective medical evidence of Plaintiffs impainnents with her statements about
their persistence, intensity, and limiting effects. (See Record at 57 .) He did not suggest that evidence of vegetative
depression or uncontrolled anxiety was a necessary predicate to a finding of disabi lity. To the extent that Plaintiff means
to argue that the ALJ's credibility findings were not supported by substantial evidence with respect to Plaintiff's
testimony about the limiting effects of her impairments, that objection is addressed in the remainder of this section.

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''medically determi nable impairments could reasonably be expected to produce [her] alleged
symptoms," but then detennined that " [Plaintiff s] statements concerning the intensity,
persistence[,] and limiting effects of these symptoms [were] not entirely credible and [did] not
establish that she [was] unable to perfonn work on a sustained basis." (e-CAR at 57; see also eCAR at 52- 57; Report at 29- 31); Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1529). He
supported that determination with "examples of inconsistencies between [Plaintiff s] testimony and
the medical record, the magnitude of treatment [she] received for her physical and mental
impairments, and [her] testimony regarding her activities of daily living." (Report at 29; see e-CAR
at 52- 59); see also Genier, 606 F.3d at 49 ("The ALJ must consider ' [s]tatements [the claimant] or
others make about [his] impainnent(s), [his] restrictions, [his] daily activities, [his] efforts to work,
or any other relevant statements [he] make[s] to medical sources during the course of examination
or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in
[its] administrative proceedings."') (citing 20 C.F.R. §§ 404.1512(b)(3), 404.1529(a)). Contrary to
Plaintiffs contentions, the various pieces of evidence that the ALJ considered in making his
determination were all related to her physical and mental impairments. His credibi lity assessment
was thus free oflegal error and supported by substantial evidence, as Judge Peck correctly found.
E. Opinion Evidence and the Treating Physician Rule
Plaintiff also objects to Judge Peck's approval of the ALJ's application of the treating
physician rule, which requires ALJ s to give a treating physician's opinion "controlling weight" if it
is "well-supported" and "not inconsistent with the other substantial evidence in [Plaintiffs] case
record." 20 C.F.R. §§ 404. 1527(c)(2), 416.927(c)(2); Halloran, 362 F.3d at 32 (noting controlling
weight does not apply where "treating physician issued opinions that [were] not consistent with
other substantial evidence in the record"). In determining whether a treating physician's opinion is
consistent with other substantial evidence in the record, " genuine conflicts in the medical evidence
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are for the ALJ to resolve." Gun/er v. Comm 'r of Soc. Sec.. 36 1 F. App ·x 197, 199 (2d Cir. 20 I 0)
(citing Burgess v. Aslrue, 537 F. 3d 11 7, I 28 (2d Cir. 2008)). If a treating physician's opinion is not
entitled to controlling weight, the ALJ must consider several factors in detennining how much
weight to accord the opinion, including "(I) the frequen[cy], length , nature, and extent of treatment;
(2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with
the remaining medical evidence; and (4) whether the physician is a specialist." Selian v. Astrue,
708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129); see also 20 C.F.R. §
404.1527(c)(2) ("When we do not give the treating source's opinion controlling weight, we apply
the factors [listed above] in determining the weight to give the opinion."). "After considering [these]
factors, the ALJ must comprehensively set forth his reasons for the weight assigned to a treating
physician's opinion." Burgess, 537 F.3d at 129; see also 20 C.F.R. § 404. l 527(c)(2) ("We will
always give good reasons in our notice of determination or decision for the weight we give your
treating source's opinion.").
Plaintiff argues that the ALJ in this case should have given more weight to the opinions of
Dr. Jimenez, a treating psychiatrist, and Nurse Practitioner Richey, who completed a Lumbar Spine
Impairment Questionnaire for Plaintiff in September of 2014. (Obj. at 49-51.) She also objects
more generally - and quite vaguely - to the ALJ 's assessment of various other (unidentified)
physicians' opinions. (Id. at 49.) The Court once again disagrees with Plaintiffs conclusory
arguments and finds that the ALJ here properly applied the treating physician rule. In weighing the
opinions of the physicians who regularly treated Plaintiff during the relevant time period, the ALJ
carefully considered all of the evidence in the record, resolved genuine conflicts, weighed less
heavily those opinions that were inconsistent with other substantial evidence, and thoroughly
explained his reasoning. (See e-CAR 52- 60.)

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With respect to Nurse Practitioner Richey in

particular, as Judge Peck·s Report explains, the AU co1Tectly assigned her questionnaire responses
little weight, since she is not a treating source whose opinion is entitled to controlling weight under
the regulations and her responses were contradicted by other evidence throughout the record.
(Report at 34-36; e-CAR at 59.) As for Dr. Jimenez, the Court has some difficulty discerning the
precise nature of Plaintiff's objection, but she seems to argue that the ALJ inaccurately characterized
Dr. Jimenez's opinion by exaggerating the extent to which his notes show that Plaintiff's mental
impainnents improved over the course of two years. (Obj. at 49- 50.) Plaintiff does not frame her
objection in tenns of the treating physician rule, however; in effect, she asks the Court to subvert
the statutory scheme and weigh the medical evidence for itself. In any case, as Judge Peck detailed,
the ALJ combed through Dr. Jimenez's treatment records and properly considered the applicable
factors in determining how heavily to weigh his opinion. (Report at 36; see also e-CAR at 59-60.)
In sum, Judge Peck' s findings with respect to the ALJ 's application of the treating physician rule
were wholly justified.
F. Compliance with Treatment
Finally, Plaintiff makes a near-indecipherable objection to the ALJ 's observations about her
compliance with certain prescribed treatment regimes. (Obj. at 51 - 52.) The gist of her argument
seems to be that the ALJ, in determining that Plaintiff was not disabled, improperly considered
evidence that she failed to use a CP AP machine, discontinued mental health treatment, and declined
to take certain medications. (Id.) But as Judge Peck found, the ALJ appropriately incorporated
those facts into his assessment of Plaintiffs overall credibility when he evaluated her subjective
characterization of the severity of her symptoms. (Report at 31 ; see also e-CAR at 58.) Indeed , as
touched upon earlier, the ALJ considered a host of facts in addition to Plaintiffs noncompliance
with prescribed treatment - including Plaintiffs descriptions of her daily activities, her inconsistent
statements in the record, and her relatively conservative course of treatment - before concluding
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that she was not an entirely credible witness.

(e-CAR at 58; Repo1i at 31.)

His credibility

assessment was thus entirely proper, and Judge Peck was correct to endorse it.

JV. CONCLUSION

For the foregoing reasons, the Court adopts the Report in all material respects and finds that
the ALJ's decision denying Plaintiffs claims for disability insurance applied the co1Tect legal
standards and was supported by substantial evidence.

Accordingly, Defendant's motion for

judgment on the pleadings is GRANTED. The Clerk of Court is respectfully directed to terminate
the motions pending at docket number 13, enter judgment in favor of Defendant, and close this case.
SO ORDERED.
Dated:

September 13, 2017
New York, New York

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