Abarzua v. Colvin

Filing 21

OPINION AND ORDER: re: 13 MOTION for Judgment on the Pleadings Plaintiff. filed by Yassna Nathalie Abarzua, 19 CROSS MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin. In sum, having considered the ent ire record, the Court finds that the decision of the ALJ was supported by substantial evidence, and that he did not err in the weight he gave to plaintiff's treating physicians. As such, the plaintiff's motion is DENIED and the defenda nt's motion is GRANTED. IV. CONCLUSION For the reasons discussed above, plaintiff's motion for judgment on the pleadings is DENIED and defendant's cross-motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to terminate the motions at ECF Nos. 13 and 19 and to terminate this action. (Signed by Judge Katherine B. Forrest on 1/11/2018) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------X
:
YASSNA NATHALIE ABARZUA,
:
:
:
Plaintiff,
:
-v:
:
NANCY A. BERRYHILL, Acting Commissioner of :
:
Social Security,
:
:
Defendant.
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 11, 2018

16-cv-7594 (KBF)
OPINION & ORDER

Plaintiff Yassna Nathalie Abarzua seeks review of the decision by defendant
Commissioner of Social Security (“the Commissioner”), finding that she was not
disabled and not entitled to Social Security Disability (“SSD”) benefits under Title II
of the Social Security Act (the “Act”). Plaintiff filed for disability benefits based on a
myriad of injuries: thirteen physical impairments, including back, knee, heart
impairments, vertigo, hearing loss, hepatitis C, diabetes, hypertension and morbid
obesity; and four mental impairments, including depression, bipolar disorder,
anxiety disorder, and post-traumatic stress disorder (“PTSD”).
Now before the Court are the parties’ cross-motions for judgment on the
pleadings. For the reasons set forth below, defendant’s motion is GRANTED and
plaintiff’s motion is DENIED.

I.

PROCEDURAL AND FACTUAL BACKGROUND
A. Procedural Background
Plaintiff applied for SSD benefits on July 10, 2010. (Tr. 360–63, 388–95.)1

The Social Security Administration (“SSA”) denied her claims. Plaintiff then
requested a hearing before an administrative law judge (“ALJ”) which was held on
June 17, 2011. (Tr. 42–59.) On November 4, 2011, the ALJ issued a decision
finding that plaintiff was not disabled. (Tr. 145–61.) On April 25, 2013, the
Appeals Council vacated the ALJ’s decision and remanded the case for another
hearing. (Tr. 162–67.) The plaintiff and her attorney appeared three additional
times in a continued series of hearings on October 16, 2013 (Tr. 68–75), April 24,
2014 (Tr. 60–67), and June 19, 2014 (Tr. 76–143). On April 7, 2015, the ALJ issued
a second decision, again finding that plaintiff was not disabled. (Tr. 12–40.)
The ALJ’s 2015 decision became the final decision of the Commissioner when
the Appeals Council denied plaintiff’s request for review on August 8, 2016. (Tr. 1–
7.)
B. Factual Background
The Court recites only those facts relevant to its review. A more thorough
summary of plaintiff’s medical history can be found in the parties’ briefing and in
the extensive administrative record. The period at issue for this appeal is from July
10, 2010, the date on which plaintiff applied for SSA benefits, through April 7, 2015,
the date of the ALJ’s final decision.
“Tr.” refers to the pages of the administrative record filed by the Commissioner as part of her
answer.
1

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1. Plaintiff’s Personal History
Plaintiff was born in 1971. (Tr. 144.) She completed ninth grade but did not
graduate from high school or obtain a General Equivalency Degree. (Tr. 390.)
Plaintiff was employed briefly from January through August of 2008, as a childcare
provider for her neighbor. (Tr. 55.) Otherwise, she has not been employed.
Plaintiff was in prison from 2000–2001 for burglary. (Tr. 47.) She used
heroin, crack cocaine, and cocaine from 1991 until March 2007, and during the
relevant period was in a methadone program. (Tr. 47, 104, 568.)
Plaintiff is able to speak a little bit of English, but her preferred language is
Spanish. (Tr. 80–81.) Through an interpreter, she testified that she is not able to
read or write in English. (Id.)
At her hearings, plaintiff testified that she lived with her nineteen-year-old
daughter. (Tr. 46–47.) She reported that she attended a methadone program on a
daily basis; travel to the program involved changing subway lines twice and
walking about four blocks. (Tr. 56–57.) In sum, her travel each way was about
thirty minutes. (Tr. 56.) She reported that she would often stop at church on the
way home. (Tr. 57.) She further testified to traveling to Puerto Rico for seven days
in 2010 in order to attend to family matters. (Id.)
In her June 2011 hearings, she testified that it was difficult for her to lift
more than five pounds and to stand or walk for long without rest. (Tr. 52–53.) She
reported pain in her back, numbness in her legs, which made standing difficult, and

3

arthritis, which caused her to drop things. (Tr. 46.) In her June 2014 hearing, she
reported pain in her neck, low back, and right knee. (Tr. 82.)
2. Plaintiff’s Medical History
a. Plaintiff’s Physical Health
At the time of her application for benefits, plaintiff alleged that she had
dislocated discs and hepatitis C. (Tr. 389.) She was subsequently diagnosed with
several other medical conditions: bilateral carpal tunnel syndrome, right knee
anterior cruciate ligament (“ACL”) partial tear, right knee grade II lateral collateral
ligament (“LCL”) sprain, severe arterial narrowing, vertigo, hearing loss, diabetes,
uncontrolled hypertension, and morbid obesity. (ECF No. 17.)
Over the relevant period the plaintiff was examined by several doctors. The
Court will review each in turn.
First, on August 10, 2010, plaintiff was examined by consultative physical
Dr. William Lathan. (Tr. 571–74.) Dr. Lathan observed that plaintiff had a normal
gait, could walk on her heels and toes without difficulty, could perform a full squat,
and had a normal stance. (Tr. 572.) He noted that she was not in acute distress,
and that, though she carried a cane, she was able to walk without one, and did not
need help changing or getting on or off of the examination table. (Id.)
Dr. Lathan’s examination showed a full range of motion in plaintiff’s
shoulders, elbows, forearms, wrists, hips, knees, and ankles. (Tr. 573.) She had full
flexion, extension, lateral flexion, and rotary movement of both her cervical and
lumbar spine. (Id.) She had no scoliosis or other abnormalities in her thoracic

4

spine. (Id.) Her joints were stable and non-tender; straight leg raising (“SLR”) was
negative. 2 (Id.) Her neurologic examination showed that she had full strength in
both her upper and lower extremities and that her deep tendon reflexes were
physiologic and equal in her upper and lower extremities. (Id.) She had full grip
strength and intact hand and finger dexterity. (Id.)
As a result of his examination, Dr. Lathan found that plaintiff had a
moderate restriction for prolonged standing, prolonged walking, lifting, pushing,
pulling, and strenuous exertion. (Id.)
On September 14, 2011, plaintiff had a magnetic resonance imaging (an
“MRI”) of her spine at Madison Avenue Radiology Center. (Tr. 1170–71, 1305–08,
1650–53.) The MRI of her cervical spine showed a mild disc bulge at C5-6, a
straightening of the cervical spine, possibly due to muscle spasms, and no
significant spinal stenosis or myelopathy. 3 (Tr. 1170.) The MRI of her lumbar spine
showed multilevel bulges at L3-4, L4-5, and L5-S1, straightening of the lumbar
spine, possibly due to muscle spasms, and no significant spinal stenosis or severe
neural foraminal narrowing. 4 (Tr. 1171.) The physicians’ assistant who ordered the
MRI, Angela Rosenberg, PhD, noted that she responded well to medication and did
not suggest surgery, and checked the box on the functional assessment form that
indicated that plaintiff would be unable to work for at least 12 months. (Tr. 1262.)

The SLR is a test done to determine whether a patient with low back pain has an underlying
herniated disk.
3 Spinal stenosis refers to the narrowing of the spaces within the spine, which can put pressure on
the nerves; myelopathy refers to any neurologic deficit in the spinal cord.
4 Neural foraminal narrowing refers to the narrowing of the nerve passageways in the spine, often
leading to compression or pinched nerves.
2

5

On November 10, 2011, plaintiff was examined by physical medicine and
rehabilitation specialist, Dr. Robert Hecht. (Tr. 1172–73.) Dr. Hecht noted
tenderness and a restricted range of motion in both the cervical and lumbar spine,
and positive SLR, but no spasms and normal lordosis. 5 (Tr. 1172.) Hecht also
observed a full range of motion and full strength in her shoulders, elbows, and
wrists, intact sensation, and full reflexes in her triceps, biceps, and wrists. (Id.) He
further observed that she had full range of motion and strength in both hips, knees,
and ankles, intact sensation, and full reflexes. (Tr. 1173.) He diagnosed plaintiff
with cervical and lumbosacral sprain-strain and disc bulges and recommended
physical therapy. (Id.)
Plaintiff sought care at the White Pines Medical Group in Rochester, New
York, at a time when she relocated there temporarily. (Tr. 1393–1425.) She sought
treatment between February and May 2013, at which time she left the practice
when Dr. Daniel Koretz told plaintiff he would no longer prescribe controlled
substances, due to the fact that she had not reported her methadone treatment
after signing a controlled substance agreement. (Tr. 1415.)
Plaintiff sought occasional care from Dr. David Khasidy starting in December
2012. 6 (Tr. 1501.) On January 6, 2014, he filled out a “multiple impairment
questionnaire.” (Tr. 1501–07.) He diagnosed plaintiff with cervical and lumbar

Lordosis refers to the normal inward curvature of the spine.
Though Dr. Khasidy indicated on the questionnaire that he treated plaintiff monthly starting in
December 2012, it appears that his regular treatment of plaintiff lasted from September 2013 until
he filled out the questionnaire in January 2014. On plaintiff’s September 23, 2013 appointment with
Dr. Khasidy, he noted that he had not seen her for nearly a year, as she had relocated to Rochester,
New York.
5
6

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spine radiculopathy with disc herniations, borderline carpal tunnel syndrome,
hypertension, and an enlarged thyroid. (Tr. 1501.) He further noted that plaintiff
had a decreased range of motion, decreased sensation in the lower and upper
extremities, decreased ambulation, pain, and loss of sensation, as well as anxiety
and depression. (Tr. 1501–02.) When asked to indicate plaintiff’s abilities, he noted
that she could never lift or carry anything, even objects under ten pounds, that she
could not sit continuously, that she needed to get up from sitting every ten minutes
for fifteen minutes, and that she could not walk continuously. (Tr. 1503.) He found
that she had significant limitations in doing repetitive reaching, handling,
fingering, and lifting, and marked limitations in grasping, turning, twisting, using
her fingers and hands for fine manipulations, and using her arms for reaching and
overhead reaching. (Tr. 1504.) He opined that she was unable to keep her neck in a
constant position, that she was incapable of even “low stress” work, and that she
would need breaks every fifteen minutes. (Tr. 1505–06.) When asked what “other
limitations” plaintiff had, Dr. Khasidy chose all available limitations: psychological,
the need to avoid wetness, noise, fumes, gases, humidity, temperature extremes,
dust, and heights, limited vision, and no pushing, pulling, kneeling, bending, or
stooping. (Tr. 1507.)
On June 4, 2014, plaintiff was examined by Dr. Tamer Elbaz, who performed
an arthrocentesis (aspiration of fluid) and steroid injection in her right knee. (Tr.
1658–64.) He recommended that plaintiff avoid “repetitive forceful, strenuous,
twisting, jerky activities” which might aggravate her “lumbar disc displacement”

7

and also to avoid “activities like pulling, bending, lifting, or carrying anything
heavy.” (Tr. 1662.)
Finally, in September 2014, plaintiff was examined by consultative physician
Dr. Joseph Ha. (Tr. 1741–1745.) Dr. Ha noted that plaintiff’s gait was antalgic,
that she was unable to walk on heels and toes, and that she walked with a cane.
(Tr. 1743.) He found her hand and finger dexterity clumsy, but noted that she had
full strength in both hands. (Id.) He noted limitations in her upper extremities as
well as in her cervical spine, mild tenderness in her lumbar spine, but no spasm,
positive SLR, and limitations in her lower extremities. (Tr. 1743–44.) He opined
that she had “marked limitations” in heavy lifting, squatting, kneeling, crouching,
stair climbing, walking long distances, standing long periods, sitting long periods,
and using her hands for fine/gross manual activities. (Tr. 1744.) He noted that she
reported difficulty with daily activities such as cooking, cleaning, laundry, and
shopping. (Tr. 1742.)
He opined that she could frequently lift and carry items up to ten pounds,
and could occasionally reach overhead, handle, finger, feel and push and pull objects
with both hands. (Tr. 1746–48.) He recommended that she never climb ladders or
scaffolds, balance, stoop, kneel, crouch, crawl, or be exposed to heights, moving
mechanical parts, humidity, wetness, dust, odors, fumes, extreme cold or heat and
vibrations. (Tr. 1749–50.) He stated that she could sit for a total of 120 minutes
per workday, stand for 60 minutes per workday, and walk for 60 minutes per
workday. (Tr. 1747.) Finally, he opined that she could shop, travel alone, use

8

public transportation, prepare meals, sort, handle, and use paper and files but could
not walk far without a cane. (Tr. 1751.)
b. Plaintiff’s Mental Health
Plaintiff was examined by several mental health professionals during the
relevant period. The Court will discuss each in turn.
First, on August 10, 2010, plaintiff was examined by consultative psychiatrist
Dr. Dmitri Bougakov. (Tr. 567–71.) Dr. Bougakov diagnosed plaintiff with
depressive and anxiety disorders, current opioid dependence, and cocaine
dependence in remission. (Tr. 569–70.) Plaintiff reported that she performed
household chores by herself on a daily basis, that she was capable of traveling alone
but preferred to go with someone else because she was “uncomfortable by herself
around people,” that she spent little time with friends, but had a good relationship
with her family, despite “often get[ting] into fights because of her moods.” (Tr. 569.)
She reported that on a typical day, she watched television and took care of her
household. (Id.) Dr. Bougakov noted that she appeared her stated age, was
sufficiently groomed, significantly overweight, and that she made appropriate eye
contact. (Tr. 568.) He further reported that her speech was fluent, her language
was adequate, her thought processes were “coherent and goal directed,” that she
was well-oriented, and that her attention and concentration were “intact for
counting, simple calculations, and serial 3s.” (Id.) He found her affect to be anxious
and her mood to be depressed. (Id.) Dr. Bougakov noted that her recent and remote
memory skills were mildly impaired, due to depression, her intellectual functioning

9

was average, her general fund of information was somewhat limited, and that her
insight and judgment were “fair.” (Tr. 569.)
Dr. Bougakov opined that plaintiff could follow and understand simple
directions, perform simple tasks, maintain attention and concentration, and
maintain a regular schedule. (Id.) He found her limited in her ability to learn new
tasks and perform complex tasks. (Id.) He further opined that she was able to
make appropriate decisions, relate adequately with others, and deal with limited
stress. (Id.)
On September 27, 2010, state agency psychologist Dr. L. Blackwell reviewed
plaintiff’s medical health records. (Tr. 575–81, 588–91.) Based on his review, he
found that plaintiff could follow simple directions and make simple work-related
decisions; furthermore, her ability to complete a normal week would be “only
moderately limited by her depression and anxiety.” (Tr. 590.) In sum, he found
that she had “the ability for simple work in which she will not work closely with
others.” (Id.)
Psychiatrist Dr. Sharon Batista treated plaintiff on a monthly basis from
May through December 2012, and again from September 2013 through April 2014.
(Tr. 1509–38.) Throughout the relevant period, she filled out various
questionnaires. First, at two points in 2011, she filled out two forms indicating that
plaintiff was unable to work for at least twelve months, finding her anxious and
depressed. (Tr. 1169, 1174–75.) Then, in March 2012, she completed a form in
which she found no limitations in plaintiff’s abilities to understand and remember

10

one or two instructions, to carry out simple instructions, and to be aware of normal
hazards and take appropriate precautions. (Tr. 1255–58.) She found only one mild
limitation—plaintiff’s ability to interact appropriately with the general public—and
also found her capable of tolerating low levels of stress. (Id.) She was unable to
assess any further limitations. (Id.)
In September 2013, Dr. Batista filled out a “Treating Physician’s Wellness
Report” in which she diagnosed depression and PTSD. (Tr. 1437.) She reported
that plaintiff had not received psychiatric care in nine months and that she had
been “taking high doses of benzos [benzodiazepines] which she has been buying on
street.” (Id.) She determined that plaintiff was unable to work for at least twelve
months. (Tr. 1438.)
On December 23, 2013, Dr. Batista filled out another questionnaire. (Tr.
1491–99.) She diagnosed plaintiff with PTSD, and moderate to severe major
depression. (Tr. 1491.) She found that plaintiff had “difficulty coping with
stressors” and remained at “chronic low function.” (Id.) She noted the following
positive clinical findings: mood disturbance, emotional lability, substance
dependence, panic attacks, persistent irrational fears, anxiety, psychomotor
agitation/retardation, paranoia or inappropriate suspiciousness, and difficulty
thinking and concentrating. (Tr. 1492.)
Dr. Batista found no limitations in plaintiff’s understanding and memory or
in her abilities to carry out even detailed instructions, to ask simple questions and
request assistance, to maintain socially appropriate behavior, to be aware of normal

11

hazards, and to travel to unfamiliar places and use public transportation. (Tr.
1494–97.) She found a mild limitation in setting realistic goals.
She found the following moderate limitations: 7 1) maintaining attention and
concentration for extended periods; 2) maintaining regular attendance and being
punctual; 3) sustaining an ordinary routine without supervision; 4) working in
coordination with others without distraction; 5) making simple work-related
decisions; 6) accepting instructions and responding appropriately to criticism; 7)
getting along with co-workers; and 8) responding appropriately to changes in the
work setting. (Tr. 1495–97.)
Finally, she assessed the following marked limitations: 8 1) the ability to
complete a normal workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; and 2) the ability to interact appropriately with the general
public. (Tr. 1496.)
She further noted that plaintiff was likely to miss work more than three
times a month, but that she could tolerate low levels of stress in her work
environment. (Tr. 1498–99.)
3. Expert Opinions
Three experts testified at the June 2014 hearing. The Court will review each
in turn.

On this questionnaire, a moderate limitation is a limitation that significantly affects but does not
totally preclude the individual’s ability to perform the activity. (Tr. 1494.)
8 A marked limitation effectively precludes the individual from performing the activity in a
meaningful manner. (Id.)
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a. Dr. Malcolm Brahms
Dr. Malcolm Brahms, a medical expert, reviewed all of the records, save three
exhibits (50F, 51F, and 52F—Dr. Elbaz’s report), which the ALJ read to him over
the phone during the hearing. (Tr. 78–90.) Based on his review of the entirety of
patient’s records, he stated that plaintiff’s significant medical issues were a right
knee meniscus tear and bilateral carpal tunnel syndrome. (Tr. 91.) He did not find
the MRIs of plaintiff’s cervical spine to be remarkable, based on the lack of nerve
root compression. (Id.) He noted that plaintiff had not received treatment for
carpal tunnel syndrome. (Tr. 92.) Dr. Brahms concluded that plaintiff could
perform light activity and would be able to perform medium activity if the carpal
tunnel syndrome and knee problem were corrected. (Id.)
b. Dr. Chukulmeka Efobi
Dr. Chukulmeka Efobi, a medical expert, reviewed the medical evidence and
assessed plaintiff’s condition on August 8, 2011. He reviewed additional evidence
and testified at the June 19, 2014 hearing. In his 2011 assessment, Dr. Efobi
assessed a depressive disorder, an anxiety disorder, a psychotic disorder based on
plaintiff’s grief reaction, opioid dependence, and cocaine abuse. (Tr. 1148.) He
testified to explain these findings in the 2014 hearing.
Dr. Efobi concluded, based on his review of the record, that plaintiff was able
to work, and noted that while his conclusion differed from Dr. Batista’s, that many
of her findings supported his conclusion—such as the fact that she was capable of
low stress work, no limitations on many tasks, and was able to perform the chores

13

and activities of daily living. (Tr. 111–21.) He opined that she would be capable of
unskilled work that does not require being with a large number of strangers. (Tr.
118–19, 1152.)
c. Vocational Expert Yaakov Taitz
The ALJ asked vocational expert (“VE”) Yaakov Taitz to consider a
hypothetical individual of plaintiff’s age, education, and work experience, with an
inability to read English and a residual functional capacity for sedentary work
limited to routine, repetitive tasks, with only occasional decision-making, no
changes in the work setting, and occasional contact with co-workers and the public.
(Tr. 127–29.) Taitz named four such jobs: addresser, document preparer, sack or
bag repairer, and surveillance system monitor. (Tr. 129–30.)
When asked what jobs might exist for a hypothetical individual who was off
task ten percent or more of the time or had two or more unexplained absences a
month, the VE stated that no such jobs would exist. (Tr. 132.)
II.

APPLICABLE LEGAL PRINCIPLES
A. Judgment on the Pleadings
“After the pleadings are closed—but early enough not to delay trial—a party

may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual

14

matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
B. The Disability Standard
The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s
impairment must be “of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has
described the process as follows:
First, the Commissioner considers whether the claimant is
currently engaged in substantial gainful activity. Where the
claimant is not, the Commissioner next considers whether the
claimant has a “severe impairment” that significantly limits her
physical or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an
impairment that is listed in [Appendix 1]. If the claimant has a
listed impairment, the Commissioner will consider the claimant
disabled without considering vocational factors such as age,
education, and work experience; the Commissioner presumes that
a claimant who is afflicted with a listed impairment is unable to
perform substantial gainful activity. Assuming the claimant does
15

not have a listed impairment, the fourth inquiry is whether,
despite the claimant’s severe impairment, she has the residual
functional capacity to perform her past work. Finally, if the
claimant is unable to perform her past work, the burden then
shifts to the Commissioner to determine whether there is other
work which the claimant could perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
C. Review of the ALJ’s Judgment
The Commissioner and ALJ’s decisions are subject to limited judicial review.
The Court may only consider whether the ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. See
Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998) (“We set aside the ALJ’s decision only where
it is based upon legal error or is not supported by substantial evidence.” (citation
omitted)); 42 U.S.C. § 405(g).
Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). If the
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Commissioner and ALJ’s findings as to any fact are supported by substantial
evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59
F.3d 307, 312 (2d Cir. 1995).
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having
rational probative force, we will not substitute our judgment for that of the
Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to
support either position, the determination is one to be made by the factfinder.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).
Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff’s testimony and

17

observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must
contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.
D. The Treating Physician Rule
“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician,” although an ALJ need not afford
controlling weight to a treating physician’s opinion that is “not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.
Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
18

not given “any special significance.” 20 C.F.R. § 416.927(d)(3); see also Soc. Sec.
Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the Social
Security Administration considers the data that physicians provide but draws its
own conclusions as to whether those data indicate disability. A treating physician’s
statement that the claimant is disabled cannot itself be determinative.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.
E. The ALJ’s Duty to Develop the Record
Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses
and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); see also Calzada v. Astrue, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able to fully credit a treating physician’s opinion
because the medical records from the physician are incomplete or do not contain
detailed support for the opinions expressed, the ALJ is obligated to request such

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missing information from the physician.” (citing Perez v. Chater, 77 F.3d 41, 47 (2d
Cir. 1996)).
III.

DISCUSSION

Plaintiff makes two arguments: first, that the ALJ violated the treating
physician rule by failing to grant controlling weight to her treating physicians, and
second, that the ALJ failed to sustain his burden at the fifth step of his evaluation
process. In contrast, the defendant argues that the ALJ’s decision is supported by
substantial evidence, and that he did not violate the treating physician rule.
A. The ALJ’s Decision
The ALJ evaluated plaintiff’s claim pursuant to the five-step sequential
process and concluded that plaintiff was not disabled within the meaning of the Act
between July 10, 2010 and April 7, 2015.
At step one, the ALJ found that plaintiff had not engaged in substantial
gainful activity since the application date. (Tr. 20.) At step two, he determined that
plaintiff had severe impairments consisting of degenerative disc disease of the
lumbar and cervical spines, partial right knee ACL tear, obesity, anxiety disorder,
depressive disorder, PTSD, psychotic disorder, and opioid dependence (on
methadone). (Id.) The ALJ determined at step three that none of plaintiff’s
impairments, nor any combination of these impairments, was of a severity to meet
or medically equal one of the listed impairments in Appendix 1 of the regulations. 9
(Tr. 21–24.)

9

The ALJ considered and rejected Listings 1.00, 12.00, and SSR 02-1p. (Tr. 21–22.)

20

Before proceeding to step four, the ALJ determined that plaintiff had the
residual functional capacity (“RFC”) to perform less than the full range of
“sedentary work” as defined in the regulations. 10 (Tr. 24.) He specified that he
found plaintiff could occasionally lift or carry ten pounds, and frequently lift or
carry less than ten pounds, and that she could sit for up to six hours and stand/walk
for up to two hours with normal breaks. (Id.) He further concluded that she should
be “limited to routine repetitive low stress tasks involving only occasional decision
making and no changes in work setting” and “limited to occasional contact with
coworkers.” (Id.)
In making this finding, the ALJ considered plaintiff’s symptoms, objective
medical evidence, and other evidence, including opinion evidence. (Id.) He reached
his RFC by considering the medical evidence, plaintiff’s ability to engage in a
variety of daily activities, the level of care she has sought and received, and the
credible aspects of the medical evidence. (Tr. 29–30.)
The ALJ further explained the weight he accorded various medical opinions.
He noted that he was giving “substantial weight” to the opinions of Drs. Lathan and
Brahms, “significant weight” to the opinions of Drs. Bougakov, Efobi, and Blackwell,
and “little weight” to Drs. Rosenberg, Hecht, Khasidy, and Ha and also to Dr.
Batista’s March 2012 and December 2013 statements. (Tr. 27–29.)

20 CFR 404.1567(a) defines sedentary work as follows: “Sedentary work involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.”
10

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Based on plaintiff’s RFC, the ALJ concluded at step four that plaintiff had
been unable to perform her past and relevant work. (Tr. 30.)
At the fifth and final step, based on his review of the entire record, including
the testimony of the VE, the ALJ determined that there were “jobs that exist in
significant numbers in the national economy” that plaintiff could perform, such as
addresser, document preparer, stock preparer, and surveillance system monitor.
(Tr. 30–31.) He thus found that she was not disabled under the Act and denied her
claim. (Tr. 31.)
B. The Treating Physician Rule
Plaintiff argues that the ALJ erred when he failed to give controlling weight
to Drs. Batista, Khasidy, Hecht, Elbaz, and Physicians’ Assistant Rosenberg; more
specifically she maintains that giving “substantial weight” to the opinion of Drs.
Bougakov and Lathan, who examined plaintiff only once, and substantial or
significant weight to the opinions of doctors who had never examined plaintiff, was
in error. She states that the opinions of the treating physicians should be binding
upon the ALJ.
However, a treating source’s opinion as to the ultimate conclusion of whether
a claimant is disabled “cannot itself be determinative.” Snell, 177 F.3d at 133.
Indeed, “[t]he opinion of a treating physician is not binding if it is contradicted by
substantial evidence.” Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983). In
his consideration of the record, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.

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Here, the ALJ comprehensively set forth the reasons he did not rely on the
treating physician’s opinions.
The ALJ accorded little weight to Dr. Batista’s August 2011, October 2011,
and September 2013 opinions that plaintiff could not work as they were conclusory
and failed to provide a function-by-function assessment of plaintiff’s abilities. (Tr.
28.) He accorded little weight to her December 2013 opinion that plaintiff had a
marked limitation in completing a normal workday or workweek and was likely to
be absent for more than three times a month for several reasons: first, he found that
it was contradicted by several other opinions, including Dr. Bougakov’s; and second,
because it was inconsistent with her own treatment notes, which indicated an
ability to work in a low stress environment, carry out simple tasks, and attend to
the tasks of daily living. (Tr. 28–29.)
Similarly, the ALJ accorded little weight to Dr. Khasidy’s 2014 opinion, as it
was contradicted by plaintiff’s own report of her daily activities as well as the “lack
of significant abnormalities reflected in examinations and diagnostic imaging.” (Tr.
27.)
The ALJ reported that he did not accord controlling weight to Dr. Hecht’s or
Dr. Rosenberg’s opinions, as they did not provide a function-by-function assessment
of plaintiff’s retained abilities. 11 (Id.)

While the ALJ failed to note the weight that he gave to Dr. Elbaz, who examined plaintiff once in
June, 2014, the Court notes that the ALJ’s RFC is not in conflict with Dr. Elbaz’s restrictions, which
advised plaintiff to avoid pulling, bending, lifting, carrying anything heavy, and repetitive forceful,
strenuous, twisting, jerky activities. (Tr. 1662.)
11

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In contrast, the ALJ stated that he gave more weight to the opinions of Drs.
Lathan, Brahms, Bougakov, Efobi, and Blackwell because they were more
consistent with the evidence presented—such as the conservative level of care
provided, and plaintiff’s ability to engage in daily tasks. (Tr. 27–28.)
The ALJ clearly stated which opinions he credited and why; furthermore, he
pointed to places in which the treating physicians’ opinions were not consistent with
other evidence in the record. The Court therefore finds that the ALJ did not violate
the treating physician rule.
C. Vocational Testimony/Step Five
Plaintiff’s second argument is that the ALJ erred in showing that the
plaintiff could perform jobs in the national economy. She claims that the ALJ
ignored testimony favorable to the plaintiff, such as the VE’s statement that a
hypothetical individual who was off task more than ten percent of the day would be
unsuited for any jobs in the national economy.
However, at step five, the ALJ had already determined without error an RFC
for plaintiff that did not incorporate such a limitation, as he gave little weight to Dr.
Batista’s 2013 opinion that such limitations were appropriate. He appropriately
provided a hypothetical incorporating the limitations he had determined before step
four, and the VE answered clearly, giving four examples of sedentary jobs that fit
the limitations the ALJ had determined applied.
In sum, having considered the entire record, the Court finds that the decision
of the ALJ was supported by substantial evidence, and that he did not err in the

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weight he gave to plaintiff’s treating physicians. As such, the plaintiff’s motion is
DENIED and the defendant’s motion is GRANTED.
IV.

CONCLUSION
For the reasons discussed above, plaintiff’s motion for judgment on the

pleadings is DENIED and defendant’s cross-motion for judgment on the pleadings is
GRANTED.
The Clerk of Court is directed to terminate the motions at ECF Nos. 13 and
19 and to terminate this action.
SO ORDERED.
Dated:

New York, New York
January 11, 2018
_________________________________
KATHERINE B. FORREST
United States District Judge

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