Scott Emanuel v. Colvin
OPINION AND ORDER re: 17 AMENDED MOTION for Judgment on the Pleadings . filed by Dawn Noreen Angela Scott Emanuel, 15 MOTION for Judgment on the Pleadings . filed by Dawn Noreen Angela Scott Emanuel, 23 MOTION for Judgment on the Pleadings . filed by Carolyn Colvin. For the foregoing reasons, Emanuel's motion for judgment on the pleadings is denied and the Commissioner's cross-motion is granted. The Clerk is directed to terminate Docket Number 15, deny the motion at Docket Number 17, grant the motion at Docket Number 23, and enter judgment for the Commissioner. (Signed by Magistrate Judge James L. Cott on 12/4/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAWN SCOTT EMANUEL,
NANCY A. BERRYHILL, 1 Acting
Commissioner, Social Security
OPINION AND ORDER
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Dawn Scott Emanuel brings this action seeking judicial review of a
final decision by Defendant Nancy A. Berryhill, the Acting Commissioner of the
Social Security Administration (the “Commissioner”), denying Emanuel’s claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
pursuant to the Social Security Act. Emanuel has moved, and the Commissioner
has cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below, Emanuel’s
motion is denied and the Commissioner’s cross-motion is granted.
Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Berryhill is hereby substituted for former Acting Commissioner Carolyn W. Colvin
as the defendant in this action.
Emanuel applied for DIB and SSI on March 26, 2012. Administrative Record
(“R”), dated January 17, 2017, Dkt. No. 14, at 14. The Social Security
Administration (“SSA”) denied Emanuel’s application on August 7, 2012. Id. at 180.
On December 19, 2012, Emanuel filed a request for reconsideration with the SSA.
Id. at 186. As part of her request, Emanuel filed an appeals form on January 23,
2013. Id. at 359. On April 11, 2013, the SSA found the August 2012 denial to be
proper. Id. at 187. On May 21, 2013, Emanuel requested a hearing before an
Administrative Law Judge. Id. at 197. Represented by counsel, Emanuel appeared
before Administrative Law Judge Michael A. Rodriguez (the “ALJ”) on April 8,
2014. Id. at 14. In a decision dated September 5, 2014, the ALJ found that
Emanuel was not disabled and denied her application for DIB and SSI. Id.
Emanuel requested review of the ALJ’s decision by the SSA Appeals Council on
November 7, 2014. Id. at 9. This request was denied on June 1, 2016, making the
ALJ’s decision final. Id. at 1.
Represented by different counsel, Emanuel timely filed this action on July 22,
2016, requesting judicial review of the Commissioner’s decision pursuant to 42
U.S.C. § 405(g). Complaint, Dkt. No. 1. On November 28, 2016, the parties
consented to the undersigned’s jurisdiction for all purposes under 28 U.S.C. § 636(c).
Dkt. No. 13. The Commissioner answered and filed the Administrative Record on
January 17, 2017. On March 14, 2017, Emanuel moved for judgment on the
pleadings, seeking reversal of the Commissioner’s decision and a remand for further
administrative proceedings. Amended Motion for Judgment on the Pleadings, Dkt.
No. 17; Memorandum of Law in Support of Motion (“Pl. Memo”), Dkt. No. 16, at 17. 2
After requesting and receiving two extensions, the Commissioner cross-moved for
judgment on the pleadings on July 26, 2017. Motion for Judgment on the
Pleadings, Dkt. No. 22; Second Memorandum of Law (“Def. Memo”), dated
September 13, 2017, Dkt. No. 25. 3 No reply papers have been filed.
The Administrative Record
Emanuel was 44 years old on the alleged disability onset date of March 14,
2012. R. at 124. When she applied for DIB and SSI, she lived in Lawrenceville,
Georgia. Id. at 277, 284. Later that year, she moved to New York, where she had
previously lived. Id. at 45. Emanuel has two children: a teenage daughter and an
adult son. Id. at 47–48. Emanuel’s husband had a stroke and a heart attack and
now lives apart from Emanuel. Id. at 43–44. One of Emanuel’s sisters died in
2009. Id. at 59, 82–83. Emanuel previously worked as a Certified Nurse Assistant
(“CNA”). Id. at 331. Before that, Emanuel had also worked as a phlebotomist. Id.
Emanuel initially filed a motion with incorrect filing and service dates. Dkt. No.
15. The Amended Motion includes correct dates.
As reflected on the docket, the Clerk of the Court terminated the Commissioner’s
July 26, 2017 motion because of a filing error and notified the Commissioner that
she should re-file her motion and memorandum of law separately. The
Commissioner re-filed her motion papers on September 13. Dkt. Nos. 23–25.
On October 23, 2011, while working for Duluth Medical Services in Georgia,
Emanuel injured her right shoulder. Id. at 52–53, 527–28. On March 26, 2012,
Emanuel applied for DIB and SSI. Id. at 277, 284. On June 13, 2012, as part of her
application, Emanuel filed a Pain Questionnaire and a Function Report. Id. at 339,
345. In her Pain Questionnaire, Emanuel reported “continuous, all day” pain in her
right shoulder and in the back of her neck. Id. at 340. In her Function Report,
Emanuel claimed that these pains prevented her from completing many daily
activities, such as personal care, meal preparation, and getting around. Id. at 347–
49. Also in her Function Report, Emanuel reported no difficulties managing money,
paying attention, or following instructions. Id. at 349–51.
On October 12, 2012, about three months after her initial application was
denied, Emanuel injured her head and left shoulder in an automobile accident. Id.
at 667, 704. As part of her request for reconsideration of the initial adverse
determination, Emanuel filed a form on January 23, 2013 in which she claimed that
she had “increased neck pain and right shoulder pain.” Id. at 359. Emanuel also
claimed “depression and sadness” as a new mental limitation. Id.
Medical Evidence in the Record
Emanuel’s Physical Conditions
2006 Shoulder Injury
On April 25, 2006, Emanuel was involved in a car accident that caused an
injury to her right shoulder and her neck. Id. at 442. Subsequently, on September
19, 2006, Emanuel filed for DIB and SSI. Id. at 103. Emanuel had two surgeries on
her right shoulder. Id. at 458, 466. After a hearing, an ALJ determined on January
29, 2009 that Emanuel was disabled from July 11, 2006 to July 25, 2008. Id. at
110. 4 Emanuel returned to work as a CNA in 2009. Id. at 331; see also id. at 293
(stating earnings from 2010–2012).
2011 Shoulder Injury
As discussed, Emanuel injured her right shoulder while at work on October
23, 2011. Id. at 527.
2012 Examination by Dr. Scott Barbour, MD
On March 5, 2012, Emanuel was examined by Dr. Scott Barbour, MD. Id. at
514–17. Emanuel complained of pain in her right shoulder following her October
2011 injury. Id. at 514. Dr. Barbour described Emanuel as awake, alert, and
oriented to time, person, and place. Id. at 515. As part of his examination, Dr.
Barbour reviewed a Magnetic Resonance Imaging test (“MRI”) of Emanuel’s cervical
spine and right shoulder and also took an x-ray of her shoulder. Id. at 516. He
diagnosed Emanuel with chronic cervical spondylosis and suggested physical
therapy and possibly steroid injections. Id. Although the shoulder MRI was of
“poor quality,” Dr. Barbour believed Emanuel’s right shoulder demonstrated signs
of rotator cuff tendinosis, acute strain, or partial thickness rotator cuff tear. Id.
The ALJ’s decision states that the hearing for Emanuel’s prior claim occurred on
January 5, 2008. Id. at 103. However, the Record suggests this hearing was on a
later date: the ALJ noted that the prior hearing was initially scheduled for October
25, 2008, and also that a medical improvement occurred “as of July 26, 2008, the
date the claimant’s disability ended.” Id. at 110. The Court will therefore presume
that the ALJ’s decision contains a typographical error and the prior hearing was
held on or about January 5, 2009.
The x-ray of Emanuel’s shoulder revealed no fractures, dislocations, or degenerative
changes. Id. Dr. Barbour concluded that Emanuel could return to “sedentary work
with no lifting whatsoever, no activities with her right upper extremity [and] no
bending, crawling, or stooping.” Id. at 517.
2013 examination by Dr. David Dynof, MD
On February 6, 2013, Emanuel was examined by Dr. David Dynof, MD due
to persistent pain. Id. at 715. Upon physical examination, Dr. Dynof found severe
tenderness to palpitation in the thoracic spine and tenderness to palpitation in both
shoulders. Id. at 716. Dr. Dynof’s examination also revealed impingement in both
shoulders and weakness of the supraspinatus muscles in Emanuel’s left shoulder.
Id. To relieve the pain, Dr. Dynof administered trigger point injections in the
cervical and thoracic spine. Id. at 720.
Emanuel returned for follow-up appointments in April and July of 2013. Id.
at 745, 768. At both, she reported some relief from pain and received additional
trigger point injections. Id. at 745–49, 768–71.
2013 Physical Therapy Treatment at Harvey
From February to August 2013, Emanuel had physical therapy appointments
at Harvey Family Chiropractic several times each month. Id. at 724–26, 732–44,
750–66, 772–73. Her initial evaluation showed muscle spasms, tenderness,
swelling/edema, and tightness in both shoulders. Id. at 724.
2013 examination by Dr. David Dickoff, MD
On July 26, 2013, Emanuel was examined by Dr. David Dickoff, MD. Id. at
667. Upon physical examination, Dr. Dickoff concluded that Emanuel suffered from
head trauma with concussion, post-concussive headaches, cervical sprain, possible
cervical radiculopathy, and lumbosacral radiculopathy. Id. at 668. On July 31,
2013, Dr. Dickoff conducted a nerve conduction velocity and an electromyogram
test, both of which demonstrated normal results. Id. at 664. On the basis of these
results, Dr. Dickoff ruled out peripheral neuropathy, myopathy, and lumbosacral
radiculopathy. Id. On November 22, 2013, Dr. Dickoff conducted an
electroencephalography, which also returned normal results. Id. at 662.
2013 examination by Dr. Shariar Sotudeh, MD
On August 29, 2013, Emanuel was examined by Dr. Shariar Sotudeh, MD.
Id. at 660. Based on x-ray results, Dr. Sotudeh believed that Emanuel had cervical
and lumbosacral spine syndrome with radiculopathy. Id. at 657. On October 10,
2013, Dr. Sotudeh reexamined Emanuel and reviewed her x-ray results. Id. at 653.
Dr. Sotudeh concluded that Emanuel had cervical spondylosis and degenerative
changes in her lumbosacral spine, with no significant pelvis abnormalities. Id.
Emanuel’s Mental Conditions
2012 Examination by Dr. Lavanya
On October 4, 2012, Emanuel was examined by Dr. Lavanya Subramanian,
MD. Id. at 612. Emanuel complained to Dr. Subramanian of anergia, anhedonia,
irritability, and frequent crying spells. Id. Dr. Subramanian described Emanuel as
“very hostile [and] guarded.” Id. Dr. Subramanian recorded that Emanuel said
“social services sent me here” and that the medical visit was a “waste of time.” Id.
Dr. Subramanian noted that Emanuel showed no signs of delusions or
hallucinations. Id. at 613. Dr. Subramanian described Emanuel’s thought process
as “logical,” her mood as “angry” and “depressed,” her behavior as “aggressive” and
“withdrawn,” and her intelligence as “average.” Id. at 614. Dr. Subramanian
diagnosed Emanuel with “Major Depressive Disorder, Single Episode, Moderate.”
Id. at 615.
2013 Treatment by Estefania Diaz, LMSW
On September 13, 2013, Emanuel saw Estefania Diaz, LMSW. 5 Id. at 678–
92. 6 Emanuel reported “crying spells, poor motivation, isolation, anxiety,” and
“difficulty breathing when in a crowded environment.” Id. at 678. Diaz noted that
Emanuel was “uncooperative,” “guarded,” “suspicious,” “defiant,” and that she
“interrupted frequently.” Id. at 683. Emanuel was alert and oriented. Id. at 684.
Her attention was “unremarkable” and her intellectual function was “average.” Id.
Emanuel’s thought process was “coherent” and her thought content was
Diaz’s overall impression was that Emanuel was “irritable and short fused at
times,” “guarded and had difficulty expressing her thoughts and [f]eelings,” and was
LMSW stands for Licensed Master Social Worker.
The record reflects that Emanuel saw Diaz simply at “Andrus.” Id. at 677–92.
According to Emanuel, Andrus is a mental health clinic. Pl. Memo at 11.
preoccupied with her sister’s death. Id. at 685. Diaz diagnosed Emanuel with
major depressive disorder and panic disorder. Id. at 688. Diaz attributed
Emanuel’s diagnoses to “economic problems,” “unresolved grief,” “traumatic injury,”
and “housing problems.” Id. at 689–90.
2014 Treatment at Westchester Jewish
Community Services by Dr. Daniela Balint,
MD and Marjorie Dingee, LCSWR
On March 19, 2014, Emanuel was seen at Westchester Jewish Community
Services (“WJCS”) by psychiatrist Dr. Daniela Balint. Id. at 787–91. Dr. Balint
observed that Emanuel demonstrated no signs of hallucinations or delusions, that
her thought form was focused, and that her orientation, memory, and concentration
were “intact.” Id. at 789. Dr. Balint found that Emanuel’s insight and judgment
were “limited.” Id. Dr. Balint’s impression was that Emanuel presented
“depressive symptoms and anxiety in context of multiple stressors (family, financial,
On April 16, 2014, Emanuel saw Marjorie Dingee, LCSWR 7 at WJCS. Id. at
779–86. Dingee noted that “[Emanuel] can be very aggressive and impulsive” and
that “she talks about some mental health experiences that sound somewhat
hallucinatory in nature.” Id. at 780. Dingee found that Emanuel’s intellect was
“normal.” Id. at 782. On a seven point scale, Dingee rated Emanuel’s housing
stability a one, the lowest rating (Dingee also recorded that Emanuel lived in a
LCSWR stands for Licensed Clinical Social Worker in Psychotherapy.
homeless shelter), her ability to manage time a four, her problem solving ability a
three, her productivity a one, and her behavior norms a two. Id. at 782–85.
2013 Consultative Examination by Dr.
Fredelyn Damari, PhD
On March 11, 2013, Emanuel was examined by consultative examiner Dr.
Fredelyn Damari, PhD. Id. at 33, 634. Dr. Damari noted that Emanuel complained
of “constant pain, insomnia, depression, and anxiety.” Id. Dr. Damari found
Emanuel’s demeanor to be “defensive,” although Emanuel’s manner of relating,
social skills, and overall presentation were “adequate.” Id. at 635. Dr. Damari
described Emanuel’s thought process as “coherent and goal directed with no
evidence of hallucinations, delusions, or paranoia.” Id. Dr. Damari recorded
Emanuel’s affect as “tense and irritated” and Emanuel’s mood as “dysthymic.” Id.
at 635–36. Dr. Damari found Emanuel’s attention and concentration to be “mildly
impaired” due to emotional distress resulting from a psychiatric disorder. Id. at
636. Dr. Damari rated Emanuel’s intellectual functioning as “below average.” Id.
Finally, Damari described Emanuel’s insight and judgment as “fair.” Id. Dr.
Damari’s concluding medical source statement was as follows:
Vocational functional capacities: The claimant is able to
follow and understand simple directions and instructions.
She is able to perform simple tasks independently. She is
able to maintain attention and concentration. The
claimant is significantly impaired in the ability to
maintain a regular schedule, learn new tasks, perform
complex tasks independently, make appropriate decisions,
relate adequately with others, and appropriately deal
with stress. The results of the present evaluation appear
to be consistent with psychiatric problems, and this may
significantly interfere with the claimant’s ability to
function on a daily basis.
Id. at 636–37.
Dr. Damari diagnosed Emanuel with mood disorder, panic disorder, and
personality disorder. Id. at 637.
2013 Consultative Examination by Dr. E.
On April 9, 2013, E. Kamin, PhD, a medical/psychiatric consultant, reviewed
the medical and non-medical evidence. Id. at 156–62. Dr. Kamin determined that
Emanuel was not significantly limited in her ability to remember locations and
work-like procedures, or in her ability to understand and remember very short and
simple instructions. Id. at 159. Dr. Kamin found “no evidence of thought disorder”
and also that Emanuel was alert and oriented, her memory was intact, and her
insight and judgment were fair. Id. at 160. However, Dr. Kamin also reported that
Emanuel was moderately limited in her ability to understand and remember
detailed instructions, to interact with the public, and to respond appropriately to
criticism from supervisors. Id. at 159. Dr. Kamin opined that Emanuel’s attention
and concentration were mildly impaired. Id. at 160. Dr. Kamin concluded that
Emanuel had mild restrictions on daily living, mild difficulties maintaining social
functioning, and mild difficulties maintaining concentration, persistence, or pace.
Id. at 157.
At the time of her hearing, Emanuel had been living in a homeless shelter for
“five or six months.” Id. at 42. Previously, Emanuel had lived with her mother, but
left after an altercation. Id. at 43. Emanuel, who is married, was not living with
her husband at the time of the hearing. Id. He lived with other family members
following a heart attack and a stroke. Id. at 43–44. Emanuel testified that her
husband would live with her at the shelter but for his medical conditions, and that
she visited him about two or three times a week. Id. at 83, 85.
Emanuel described injuring her neck and back while working as a nurse. Id.
at 53. Emanuel also described her injuries from two automobile accidents. The
first accident, in 2006, injured her shoulder. Id. at 69–70. The second accident, in
2012, reinjured her shoulder and injured her neck and back. Id. at 70–71.
Emanuel claimed that she continued to feel pain in her right shoulder and she could
not raise her arm higher than chest level. Id. at 76.
In addition to her physical injuries, Emanuel also described her mental
health problems. Id. at 59. Emanuel claimed that her mental health issues
stemmed from a sister’s death in 2009. Id. at 59, 89–90. Emanuel told the ALJ she
began seeing a psychiatrist in 2009 and that she had intermittently been under the
care of either a psychiatrist or mental health professional since that time. Id. at
59–62. Emanuel saw a psychiatrist first in 2009, although she was not prescribed
any medication and did not return. Id. at 64. Emanuel next saw a psychiatrist and
a therapist in 2010, when she moved to Georgia, and was prescribed medication.
Id. at 64–65. Emanuel testified that she did not always take her medication
because of its side effects. Id. at 63, 66. She explained to the ALJ that the
medications left her “in a fog,” although without the medicine she felt emotional and
would sometimes become angry. Id. at 67. Emanuel resumed seeing a psychiatrist
after the altercation with her mother that forced her to leave her mother’s house.
Id. at 62.
Regarding her daily activities, Emanuel testified that she visits a relative to
bathe and do her laundry. Id. at 82–83. Emanuel said that she could “not really”
drive: while she could technically drive a car, she could not look behind her because
of her neck pain. Id. at 78–79. Emanuel also told the ALJ that she gets up every
day with her daughter for school. Id. at 83. After her daughter leaves for the bus
stop, Emanuel returns to bed. Id. at 84. Although she is in constant physical pain,
when the ALJ asked her about her ability to do daily activities, Emanuel responded,
“it’s the emotional part that they have a problem with because I get—I don’t like
people.” Id. at 88. She claimed that she gets depressed and anxious. Id. Emanuel
also testified to dramatic weight-loss as a result of “everything.” Id. at 49–50.
Vocational Expert Linda Stein Testimony
The ALJ then heard from Linda Stein, a vocational expert. Id. at 92–98. The
ALJ asked Stein to assume a residual functional capacity (“RFC”) of:
sitting six hours out of an eight-hour workday, standing,
walking six out of eight. Lifting and carrying is limited to
20 pounds occasionally, 10 pounds more frequently. No
upper extremity push [or] pull. No ropes, ladders, or
scaffolds. [Ability to climb] frequent stairs and ramps but
no kneeling or crawling. Frequent overhead distance and
directional reaching, frequent bilateral manual dexterity,
fine and gross manipulation. . . . [S]hould not work
around workplace hazards such as unprotected heights
and [is] limited to low stress jobs . . . [defined as] jobs
requiring only occasional decision making or exercising
judgment in connection with job performance with no
public interaction, occasional work-related interaction
Id. at 94–95. Based on that RFC, Stein testified that Emanuel would not be able to
return to any of her previous work. Id. at 95. Stein originally testified that
Emanuel would be able to find other work, such as an addresser, charge account
clerk, or lens inserter. Id. Later in her testimony, Stein revised her findings. Stein
acknowledged that a limitation on public interaction could prohibit work in the
professions she identified; however, Stein testified that work would still be available
as a dowel inspector. Id. at 96–97.
The ALJ asked Stein to assume an RFC of standing and walking two out of
eight hours (instead of six hours) and lifting and carrying 10 pounds (instead of 20
pounds). Id. at 96. Stein testified that a claimant with that RFC would also be able
to work as a dowel inspector. Id. at 97.
The ALJ then asked Stein to assume an RFC that requires “additional time
off-task.” Id. at 97. The ALJ specified this off-task time to mean 20% of the
workday and missing two days of work per month. Id. Stein testified that there
would be no jobs for a claimant with this RFC. Id.
Standard of Review
Judicial Review of Commissioner’s Determination
An individual may obtain judicial review of a final decision of the
Commissioner in the “district court of the United States for the judicial district in
which the plaintiff resides.” 42 U.S.C. § 405(g). The district court must determine
whether the Commissioner’s final decision applied the correct legal standards and
whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377,
384 (2d Cir. 2004). “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.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations
In weighing whether substantial evidence exists to support the
Commissioner’s decision, “the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). On the basis of this review, the 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 . . . for a rehearing.” 42 U.S.C. § 405(g).
The substantial evidence standard is a “very deferential standard of review.”
Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The reviewing court
“must be careful not to substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review.”
DeJesus v. Astrue, 762 F. Supp. 2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations
omitted). In other words, “once an ALJ finds facts, [a court] can reject those facts
‘only if a reasonable factfinder would have to conclude otherwise.’” Brault, 683 F.3d
at 448 (emphasis omitted) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir.
Commissioner’s Determination of Disability
Under the Social Security Act, “disability” is defined as the “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); accord 42 U.S.C. § 1382c(a)(3)(A). Physical or
mental impairments must be “of such severity that [the claimant] is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In assessing a claimant’s impairments and determining whether they meet
the statutory definition of disability, the Commissioner “must make a thorough
inquiry into the claimant’s condition and must be mindful that ‘the Social Security
Act is a remedial statute, to be broadly construed and liberally applied.’” Mongeur,
722 F.2d at 1037 (quoting Gold v. Sec’y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)).
Specifically, the Commissioner’s decision must take into account factors such as:
“(1) the objective medical facts; (2) diagnoses or medical opinions based on such
facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant’s educational background, age, and work experience.”
Id. (citations omitted).
The Commissioner’s determination of disability follows a sequential, five-step
inquiry. Cichocki v. Astrue, 729 F.3d 172, 173 n.1 (2d Cir. 2013); 20 C.F.R.
§ 404.1520. First, the Commissioner must establish whether the claimant is
presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, at
the second step the Commissioner determines whether the claimant has a “severe”
impairment restricting his ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the
claimant has such an impairment, the Commissioner moves to the third step and
considers whether the medical severity of the impairment “meets or equals” a
listing in Appendix 1 of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii).
If so, the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d). If not, the
Commissioner continues to the fourth step and determines whether the claimant
has the RFC to perform his or her past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to perform past
relevant work, the Commissioner completes the fifth step and ascertains whether
the claimant possesses the ability to perform any other work. 20 C.F.R.
The claimant has the burden at the first four steps. Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the
Commissioner at the fifth and final step, where the Commissioner must establish
that the claimant has the ability to perform some work in the national economy.
See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims
v. Apfel, 530 U.S. 103, 110–11 (2000). Consequently, “the social security ALJ,
unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop
the record in light of the essentially non-adversarial nature of a benefits
proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation
marks omitted). As part of this duty, the ALJ must “investigate the facts and
develop the arguments both for and against granting benefits.” Sims, 530 U.S. at
111. Specifically, under the applicable regulations, the ALJ is required to develop a
claimant’s complete medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)
(citing 20 C.F.R. §§ 404.1512(d)–(f)). This responsibility “encompasses not only the
duty to obtain a claimant’s medical records and reports but also the duty to question
the claimant adequately about any subjective complaints and the impact of the
claimant’s impairments on the claimant’s functional capacity.” Pena v. Astrue, No.
07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations
Whether the ALJ has satisfied this duty to develop the record is a threshold
question. Before determining whether the Commissioner’s final decision is
supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be
satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary’s
regulations’ and also fully and completely developed the administrative record.”
Scott v. Astrue, No. 09-CV-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9,
2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d
Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL
22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully
develop the record is a bedrock principle of Social Security law.”) (citing Brown v.
Apfel, 174 F.3d 59 (2d Cir. 1999)). The ALJ must develop the record even where the
claimant has legal counsel. See, e.g., Perez, 77 F.3d at 47. Remand is appropriate
where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114–15 (“We vacate
not because the ALJ’s decision was not supported by substantial evidence but
because the ALJ should have developed a more comprehensive record before
making his decision.”).
Treating Physician’s Rule
“Regardless of its source, the ALJ must evaluate every medical opinion in
determining whether a claimant is disabled under the [Social Security] Act.” Pena
ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y.
Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d)) (internal quotation
marks omitted). A treating physician’s opinion is given controlling weight, provided
the opinion as to the nature and severity of an impairment “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.
§ 404.1527(c)(2). The regulations define a treating physician as the claimant’s “own
physician, psychologist, or other acceptable medical source who provides [the
claimant] . . . with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502.
Deference to such medical providers is appropriate because they “are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of [the]
medical impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical evidence alone or from reports of
individual examinations.” 20 C.F.R. § 404.1527(c)(2).
A treating physician’s opinion is not always controlling. For example, a legal
conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is not controlling,”
because such opinions are reserved for the Commissioner. Guzman v. Astrue, No.
09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (“A treating physician’s statement that the claimant is disabled cannot itself
be determinative.”). Additionally, where “the treating physician issued opinions
that [were] not consistent with other substantial evidence in the record, such as the
opinion of other medical experts, the treating physician’s opinion is not afforded
controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted)
(alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the
treating physician’s] opinion is with the record as a whole, the less weight it will be
Importantly, however, “[t]o the extent that [the] record is unclear, the
Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative
record’ before rejecting a treating physician’s diagnosis.” Selian, 708 F.3d at 420
(quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998) (discussing ALJ’s duty to seek additional information from treating physician
if clinical findings are inadequate). As a result, “the ‘treating physician rule’ is
inextricably linked to a broader duty to develop the record. Proper application of
the rule ensures that the claimant’s record is comprehensive, including all relevant
treating physician diagnoses and opinions, and requires the ALJ to explain clearly
how these opinions relate to the final determination.” Lacava v. Astrue, No. 11-CV7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this
Circuit, the [treating physician] rule is robust.”), adopted by, 2012 WL 6621722
(S.D.N.Y. Dec. 19, 2012).
To determine how much weight a treating physician’s opinion should carry,
the ALJ must consider several factors outlined by the Second Circuit:
(i) the frequency of examination and the length, nature
and extent of the treatment relationship; (ii) the evidence
in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other
factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion.
Halloran, 362 F.3d at 32 (citation omitted); see 20 C.F.R. § 404.1527(c)(2). If, based
on these considerations, the ALJ declines to give controlling weight to the treating
physician’s opinion, the ALJ must nonetheless “comprehensively set forth reasons
for the weight” ultimately assigned to the treating source. Halloran, 362 F.3d at 33;
accord Snell, 177 F.3d at 133 (responsibility of determining weight to be afforded
does not “exempt administrative decisionmakers from their obligation . . . to explain
why a treating physician’s opinions are not being credited”) (referring to Schaal,
134 F.3d at 505 and 20 C.F.R. § 404.1527(d)(2)). The regulations require that the
SSA “always give good reasons in [its] notice of determination or decision for the
weight” given to the treating physician. Clark v. Comm’r of Soc. Sec., 143 F.3d 115,
118 (2d Cir. 1998) (alteration in original) (citations omitted). Indeed, “[c]ourts have
not hesitate[d] to remand [cases] when the Commissioner has not provided good
reasons.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran, 362 F.3d
at 33) (second and third alteration in original) (internal quotation marks omitted).
On September 5, 2014, the ALJ issued an unfavorable decision on Emanuel’s
DIB and SSI claims. R. at 11. At step one, the ALJ found that Emanuel had not
engaged in substantial gainful activity since her onset date of March 14, 2012. Id.
at 16. At step two, the ALJ found three severe impairments: (1) degenerative joint
disease of the shoulders; (2) anxiety; and (3) depression. Id. The ALJ noted that,
although Emanuel claimed she was also disabled due to a neck injury, “diagnostic
test findings were within normal limits.” Id. The ALJ determined that Emanuel’s
neck impairments “do not cause more than a minimal limitation in the ability to
perform basic work activity and are, therefore, nonsevere.” Id. at 17.
At step three, the ALJ found that Emanuel’s shoulder and mental
impairments, either on their own or in combination, did not meet or medically equal
the severity of one of the listed impairments in Subpart P, Appendix 1. Id.
Emanuel does not dispute the ALJ’s findings up to this point. Pl. Memo at 6.
The ALJ next turned to Emanuel’s RFC, reviewing Emanuel’s testimony and
the other evidence in the record. The ALJ considered Emanuel’s statements about
her back and shoulder pain, and about her history of mental health issues. Id. at
19. The ALJ also noted that Emanuel moved from Georgia to New York in 2012
and was living in a homeless shelter. Id. The ALJ then described Emanuel’s daily
activities, including getting her daughter up for school, receiving help with
household chores and food preparation, and taking trips with her son to visit her
husband three times a week. Id. The ALJ also described Emanuel’s apprehension
of being around other people, as well as her prescribed medication and complaints of
side effects. Id. The ALJ found that Emanuel “has no problems paying attention,
following oral or written instructions, or completing tasks.” Id. (citing Emanuel’s
Pain Questionnaire and Function Report, id. at 339–55).
The ALJ then turned to the medical evidence regarding Emanuel’s physical
impairments, relying on examinations and treatment by Dr. Barbour, Dr. Dynof,
Dr. Dickoff, Dr. Sotudeh, and treatment at Harvey Family Chiropractic. Id. at 19–
The ALJ next reviewed the evidence regarding Emanuel’s mental
impairments. Id. at 23–26. The ALJ observed that although Emanuel complained
of depression, nervousness, and insomnia, her attitude and behavior were
cooperative and her affect was appropriate. Id. at 23. The ALJ noted Emanuel’s
assertions that she has no problems paying attention or completing tasks and that
she did not report cognitive difficulties. Id.
The ALJ also recounted Dr. Damari’s description of Emanuel’s daily
activities, including her ability to bathe, dress, and groom independently, her
difficulty managing money, and her apprehension of socializing with others. Id. at
24. The ALJ in particular considered that:
Dr. Damari diagnosed mood disorder, panic disorder with
and without agoraphobia, and personality disorder. The
doctor stated that [Emanuel] was able to follow and
understand simple directions, perform simple tasks
independently and maintain attention and concentration.
[Emanuel] was significantly impaired in the ability to
maintain a regular schedule, learn new tasks, perform
complex tasks independently, make appropriate decisions,
relate adequately with others and appropriately deal with
Id. The ALJ assigned “great weight” to Dr. Damari’s opinion “because it is based on
a complete psychiatric examination and consistent with the record as a whole.” Id.
The ALJ also cited Dr. Kamin’s opinion that Emanuel’s concentration is
mildly impaired and that Emanuel is able to follow simple instructions and perform
simple tasks. Id. The ALJ assigned “less weight” to Dr. Kamin’s assessment
because Dr. Kamin did not treat or examine Emanuel. Id. at 25.
Ultimately, the ALJ determined that Emanuel had the residual functional
perform sedentary work . . . except she can never use her
upper extremities for pushing and pulling; she can never
climb ropes, ladders or scaffolds, kneel, or crawl. She can
frequently climb stairs and ramps and frequently reach,
and perform bilateral manual dexterity functions
including fingering and handling. She should avoid
exposure to work place hazards such as moving machines
and unprotected heights. She can occasionally make
work-related decisions, occasionally exercise judgment in
job performance and occasionally be in contact with
supervisors and co-workers. She can never be in contact
with the general public.
Id. at 18.
At step four, based on the above RFC, the ALJ found that Emanuel could not
perform any of her previous work. Id. at 26. At step five, the ALJ determined that
there were other jobs that Emanuel could perform, such as addresser or lens
inserter. Id. at 26–27. 8 Accordingly, the ALJ concluded that Emanuel was not
Although Emanuel does not raise the issue, the ALJ erred in finding that Emanuel
would be able to work as an addresser or lens inserter. Id. at 27. The evidence does
not support this finding. In fact, as discussed supra in section I.B.3.b., while the
vocational expert originally suggested these jobs, she later revised her testimony to
reflect the limitation of no public interaction. Id. at 95–96. However, she testified
that other jobs, such as dowel inspector, would not require public interaction and
were available. Id. at 97.
disabled within the meaning of the Social Security Act and denied her claim. Id. at
Emanuel raises only one issue as the basis for her motion: the ALJ’s
“fail[ure] to account” for consultative examiner Dr. Damari’s opinion in determining
Emanuel’s mental limitations as a part of her RFC. Pl. Memo at 6. Specifically,
Emanuel argues that, even though the ALJ assigned Dr. Damari’s opinion “great
weight,” the ALJ did not take into account Dr. Damari’s opinion about Emanuel’s
mental impairments, and that the ALJ should have, at the very least, explained the
exclusion of some of the impairments found by Dr. Damari. Id. 9 The
Commissioner responds that the ALJ’s RFC determination is supported by
substantial evidence and that Emanuel is, in essence, incorrectly asking the Court
to find that an ALJ must give a consultative examiner’s opinion controlling weight.
Def. Memo at 20–21.
Because Emanuel is represented by counsel and only challenges the
Commissioner’s determination on the grounds that the ALJ’s mental limitations
findings (made in the course of determining Emanuel’s RFC) did not properly
account for Dr. Damari’s opinion, the Court will focus solely on the ALJ’s mental
limitation findings. See, e.g., Prince v. Colvin, No. 13-CV-7666 (TPG), 2015 WL
Emanuel does not dispute that Dr. Damari was a consultative examiner, rather
than a treating physician whose opinion would ordinarily be entitled to controlling
weight. Pl. Memo at 6 (referring to Dr. Damari as “the Agency’s examining
1408411, at *15 (S.D.N.Y. Mar. 27, 2015) (analyzing only ALJ’s RFC determination,
which claimant had challenged, and not ALJ’s adverse findings as to severity of
impairments, on grounds that claimant was counseled and did not challenge those
For the reasons that follow, the Court concludes that the ALJ’s mental
limitations findings are supported by substantial evidence and accordingly rejects
Emanuel’s argument that the ALJ is required to accept (or explain any deviations
from) the entirety of Dr. Damari’s opinion.
The ALJ’s findings regarding Emanuel’s mental
limitations are supported by substantial evidence
Emanuel argues that “Dr. Damari’s opinion establishes numerous limitations
that are greater and more detailed than found by the ALJ.” Pl. Memo at 16. In
particular, Emanuel alleges that the ALJ did not account for Dr. Damari’s opinion
that Emanuel was significantly impaired in her ability to: (a) maintain a regular
schedule; (b) learn new tasks; (c) perform complex tasks independently; (d) make
appropriate decisions; (e) relate adequately to others; and (f) deal with stress
appropriately. Id. at 9–10; see also R. at 636–37. Emanuel contends that these
limitations “would severely limit the jobs available to a person, if not preclude work
altogether.” Pl. Memo at 10. The Commissioner responds that the ALJ’s findings
regarding Emanuel’s mental limitations are supported by substantial evidence.
Def. Memo at 20. Furthermore, the Commissioner contends that, notwithstanding
that the ALJ’s findings are supported by substantial evidence, the ALJ accounted
for Dr. Damari’s opinion in his decision. Id. at 22.
This Court reviews whether the ALJ’s limitations findings are supported by
substantial evidence, meaning “relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Selian, 708 F.3d at 417 (quoting
Richardson, 402 U.S. at 401) (internal quotation marks and alterations omitted).
However, an ALJ need not have “mentioned every item of testimony presented to
him.” Mongeur, 722 F.2d at 1040. Even if the ALJ does not explicitly discuss every
piece of evidence, a court may affirm the ALJ’s decision if “the evidence of record
permits [the court] to glean the rationale of [the] ALJ’s decision.” Id.; see also, e.g.,
Cichocki, 729 F.3d at 178 n.3 (“in undertaking the . . . residual capacity
assessment,” “[a]n ALJ need not recite every piece of evidence that contributed to
the decision, so long as the record permits [the court] to glean the rationale of an
ALJ’s decision”) (quotation marks omitted).
In concluding that the ALJ’s decision was supported by substantial evidence,
the Court will consider in turn each of the ALJ’s mental limitation findings (or lack
thereof) that corresponds to the impairments identified by Dr. Damari. While
certain of these impairments are not explicitly included in the ALJ’s RFC
determination, many of the limitations found by the ALJ are in fact consistent with
the impairments found by Dr. Damari. More significantly, each finding the ALJ
made with regard to a limitation (including where he chose not to impose one) is
supported by medical evidence, Emanuel’s testimony, or both.
Maintaining a Regular Schedule
The ALJ’s RFC determination does not contain any limitation regarding
Emanuel’s ability to maintain a regular schedule. R. at 26. Dr. Damari found that
Emanuel was significantly impaired in her ability to maintain a regular schedule,
id. at 637, a finding that the ALJ noted in his decision. Id. at 24. 10 However,
substantial evidence in the record supports the ALJ’s finding that Emanuel was not
limited in her ability to maintain a regular schedule.
At the hearing, Emanuel testified to “always” waking up in the morning with
her daughter. Id. at 83. Emanuel also testified to visiting her husband, who lives
45 minutes away, two or three times weekly. Id. at 85. The ALJ refers to both
pieces of testimony in his opinion. Id. at 25–26. Furthermore, Emanuel claimed
that she left her last job because of an on-the-job injury, and did not allege any
problems maintaining a regular schedule. Id. at 52; 37–99. The ALJ is entitled to
credit a claimant’s testimony, even if it conflicts with a medical source. See, e.g.,
Salmini v. Comm’r of Soc. Sec., 371 Fed. App’x 109, 114 (2d Cir. 2010).
In addition to her testimony, the evidence in the record also supports a
finding that Emanuel is able to maintain a regular schedule. At her initial
assessment at WJCS, Dingee rated Emanuel’s ability to manage time (defined as
“[f]ollows regular schedule for bedtime, wake-up, meal times, rarely tardy or absent
for work, day programs, appointments, scheduled activities”) as four on a scale of
Dr. Damari’s four-page evaluation does not contain any evidence providing a
basis for her opinion that Emanuel is impaired in her ability to maintain a regular
schedule. Id. at 634–37.
seven. R. at 783. Moreover, Emanuel’s healthcare record illustrates her ability to
frequently attend follow-up medical appointments. For example, Emanuel attended
chiropractic appointments as often as eight times a month in 2013. Id. at 726, 732–
44, 750–66, 772–73. She also attended regularly scheduled appointments with her
therapist at WJCS in 2014. Id. at 777–98.
Learning New Tasks
The ALJ’s RFC determination does not contain any limitation regarding
Emanuel’s ability to learn new tasks. Id. at 26. The ALJ noted Dr. Damari’s
opinion that Emanuel was significantly impaired in her ability to learn new tasks.
Id. at 24; see also id. at 637. While the ALJ’s finding contradicts Dr. Damari’s
opinion, it is supported by substantial evidence, including evidence referred to by
the ALJ demonstrating Emanuel’s ability to think, concentrate, and learn.
Dr. Damari opined that Emanuel could follow and understand simple
direction and instructions, and maintain attention and concentration. Id. at 636–
37. Dr. Kamin concluded that there was no evidence of thought disorder and that,
while Emanuel’s attention and concentration were “mildly impaired,” her memory
was intact and her intelligence was average. Id. at 176. Dr. Kamin also found no
“sustained concentration and persistence limitations,” and that Emanuel was “not
significantly limited” in her ability to remember locations and work-like procedures.
Id. at 175. In his RFC determination, the ALJ specifically refers to Dr. Kamin’s
assessment that Emanuel had only “mild” difficulties in maintaining concentration.
Id. at 25.
The ALJ also discusses evidence from Emanuel’s treatment at Andrus and
WJCS. He cites Diaz’s intake assessment from Andrus, including Diaz’s
observation that Emanuel had fair memory skills and normal concentration and
attention. Id. at 24; see also id. at 684–85. Diaz also found that Emanuel had
average intellectual functioning and had a coherent thought process. Id. at 684.
The ALJ describes Dr. Balint’s opinion that Emanuel’s thought process was
“focused” and her memory, attention, and concentration “intact.” Id. at 25; see also
id. at 789. The ALJ also refers to Emanuel’s ability to read, write, and count
change, which she testified to at her hearing. Id. at 26; see also id. at 50 (Emanuel’s
testimony). Additionally, Dingee described Emanuel’s intellect as “normal.” Id. at
782. Dr. Subramanian reported that Emanuel had a “logical” thought process and
was of “average” intelligence. Id. at 614.
Performing Simple Tasks
The ALJ’s RFC determination limits Emanuel to simple tasks with one or
two-step instructions. Id. at 26. This limitation is consistent with Dr. Damari’s
opinion and supported by substantial evidence. Dr. Damari opined that Emanuel
was significantly impaired in her ability to perform complex tasks, but could
“perform simple tasks independently,” as well as follow and understand simple
directions and instructions. Id. at 636–37. Dr. Damari’s notes reflect that
Emanuel could dress, bathe, and groom herself. Id. at 636.
The ALJ’s finding is supported by additional evidence in the record. Dr.
Kamin opined that Emanuel was moderately limited in her ability to understand
and remember detailed instructions, but was not significantly limited in her ability
to understand and remember very short and simple instructions. Id. at 175. The
ALJ’s finding is also supported by Emanuel’s own testimony about performing
simple daily activities, such as dressing herself, driving, and caring for her
daughter. Id. at 78, 83.
Occasionally Making Work-related Decisions
The ALJ’s RFC determination limits Emanuel to only “occasionally mak[ing]
work-related decisions.” Id. at 26. This limitation is consistent with Dr. Damari’s
opinion and supported by substantial evidence. Dr. Damari opined that Emanuel
was significantly impaired in her ability to make appropriate decisions, but also
that Emanuel’s insight and judgment were “fair.” Id. at 636–37. Dr. Kamin
concluded that Emanuel’s judgment and insight were “fair.” Id. at 176. Dr. Balint
found that Emanuel had “limited,” as opposed to “poor,” insight and judgment, id. at
789, a finding that the ALJ referred to in his decision. Id. at 25.
Furthermore, in addition to the evidence demonstrating that Emanuel is not
impaired in her cognitive abilities, see supra II.C.1.b, there is also evidence that
Emanuel is not impaired in her perception. At her intake assessment at Andrus,
Diaz found that Emanuel had “normal” perceptions and no hallucinations or
delusions. Id. at 685. Diaz described Emanuel as oriented and alert. Id. at 684.
Dr. Balint similarly found that Emanuel had “intact” orientation and had no
hallucinations or delusions. Id. at 789.
Having No Contact with Public and Occasional
Contact with Supervisors and Co-workers
The ALJ concluded that Emanuel was so limited in her ability to relate to
others that she could “never be in contact with the general public” and could only
“occasionally be in contact with supervisors and co-workers.” Id. at 26. The ALJ’s
RFC determination is supported by substantial evidence and, furthermore, is
consistent with Dr. Damari’s opinion. Dr. Damari opined that Emanuel was
significantly impaired in her ability to relate adequately to others. Id. at 637.
Emanuel testified that she has problems with other people, such as at the grocery
store and at the shelter where she lived, and also that she does not like crowds. Id.
at 68–69. Dr. Kamin opined that Emanuel was moderately limited in her ability to
interact with the general public. Id. at 159.
Low Stress Jobs
Finally, Dr. Damari found that Emanuel was significantly limited in her
ability to deal appropriately with stress. Id. at 637. Although the ALJ does not
explicitly discuss a low-stress limitation in his decision, the record establishes that
this impairment is incorporated into the other limitations. At the hearing, the ALJ
specifically instructed the vocational expert to consider a hypothetical claimant
“limited to low stress jobs[,] which is defined for the purposes of this RFC as jobs
requiring only occasional decision making or exercising judgment in connection with
job performance with no public interaction, occasional work-related interaction with
coworkers.” Id. at 95. Each of these limitations is incorporated in the ALJ’s RFC,
id. at 18, and the ALJ’s instruction to the vocational expert is supported by
In addition to Dr. Damari’s opinion, id. at 637, Dr. Kamin found that
Emanuel was “moderately limited” in her ability to respond appropriately to
changes in work setting. Id. at 175–76. Diaz describes Emanuel as “irritable and
short fused at times.” Id. at 685. Dr. Subramanian describes Emanuel’s demeanor
as “hostile” and “preoccupied.” Id. at 613. Dingee rated Emanuel’s health practices,
which include mood management, as a three out of seven. Id. at 783. Progress
notes from Dingee discuss managing violent and aggressive behavior. Id. at 794–
98. Dr. Balint also noted Emanuel’s struggles with “anxiety.” Id. at 789.
An ALJ Need Not Accept or Explain the Exclusion of
Every Impairment Identified by a Consultative Examiner
Emanuel argues that the ALJ is required to either “Accept and Include or
Reject and Explain” medical opinions. Pl. Memo at 9. However, the law of this
Circuit is that an ALJ is not required to discuss, or even mention, every piece of
evidence in the record and its relative persuasiveness. See, e.g., Mongeur, 722 F.2d
at 1040. Where “other portions of the ALJ’s detailed decision, along with plaintiff’s
own testimony, demonstrate that substantial evidence supports [the] ALJ’s
determination,” remand is not appropriate. Salmini, 371 Fed. App’x at 112–13. As
the above analysis demonstrates, the ALJ refers to substantial evidence that
supports his determination not to include wholesale all of Dr. Damari’s opinions
about Emanuel’s impairments. The portion of the ALJ’s decision that is dedicated
to his RFC determination is comprised of more than seven single-spaced pages of
discussion of evidence in the record, and includes analyses of evidence from Dr.
Damari, Dr. Balint, and Dr. Kamin, as well as of the treatment notes from Andrus
and WJCS. Id. at 18–26. As in Salmini, the claimant’s testimony also provides
evidence that supports the ALJ’s finding. Salmini, 371 Fed. App’x at 112; R. at 78–
Emanuel cites to Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993) and Diaz v.
Shalala, 59 F.3d 307 (2d Cir. 1995) in support of her assertion that an ALJ must
“give good reasons for departing from the assessments of experts.” Pl. Memo at 9.
However, as the Commissioner correctly points out, these cases deal with instances
in which an ALJ declined to give controlling weight to a treating source. Def. Memo
at 23. Schisler examined the validity of 20 C.F.R. § 404.1527, which states: “[The
SSA] will always give good reasons in [their] notice of determination or decision for
the weight [they] give [a claimant’s] treating source’s medical opinion.” Schisler, 3
F.3d at Appendix A (emphasis added). In Diaz, the main issue was whether a
chiropractor’s opinion was entitled to “binding effect under the treating physician
rule.” Diaz, 59 F.3d at 312. Because Dr. Damari was a consultative examiner and
not a treating physician, these cases are inapposite.
In sum, the ALJ’s findings regarding Emanuel’s mental limitations are
supported by substantial evidence, and the ALJ’s references to the record permit
the Court to glean the rationale in support of his findings. Furthermore, Emanuel’s
argument that an ALJ must either accept a consultative examiner’s opinion or
explain any deviations therefrom is without merit.
For the foregoing reasons, Emanuel’s motion for judgment on the pleadings is
denied and the Commissioner’s cross-motion is granted.
The Clerk is directed to terminate Docket Number 15, deny the motion at
Docket Number 17, grant the motion at Docket Number 23, and enter judgment for
Dated: New York, New York
December 4, 2017
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