# DiStefano v. Saul

> District Court, E.D. New York · September 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10310406

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

JESSICA DISTEFANO,

Plaintiff, MEMORANDUM & ORDER
20-CV-4634(EK)
-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

------------------------------------x
ERIC KOMITEE, United States District Judge:
Plaintiff Jessica DiStefano challenges the Social
Security Administration’s denial of her claim for disability
insurance benefits. Before the Court are the parties’ cross-
motions for judgment on the pleadings. For the following
reasons, I grant the Commissioner’s motion and deny DiStefano’s
motion.
I. Background
A. Procedural Background
In October 2015, DiStefano applied for disability
benefits, alleging a disability onset date of June 15, 2014.
Administrative Tr. (“Tr.”) 10, ECF No. 10. The agency denied
her claim. Id. On May 22, 2018, an administrative law judge
(“ALJ”) held a hearing on DiStefano’s claim. Id. The ALJ
concluded that DiStefano was not disabled and therefore not
entitled to disability benefits. Id. at 10-19. The agency’s
Appeals Council denied DiStefano’s request for review of the
ALJ’s decision, rendering it final. Id. at 1. DiStefano timely
sought review of that decision in this Court. ECF No. 1.

B. The ALJ’s Disability Evaluation
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 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 Social Security Administration’s
regulations require ALJs to follow a five-step sequence in
evaluating disability claims. 20 C.F.R. § 404.1520(a)(4).
First, the ALJ determines whether the claimant is
engaged in substantial gainful activity. Id.
§ 404.1520(a)(4)(i), (b). If not, then at step two, the ALJ

evaluates whether the claimant has a “severe impairment” — that
is, an impairment or a combination of impairments that
“significantly limits” her “physical or mental ability to do
basic work activities.” Id. § 404.1520(a)(4)(ii), (c). If the
ALJ identifies a severe impairment, then at step three, he must
determine whether it meets or equals one of the impairments
listed in Appendix 1 of the regulations — the “Listed
Impairments.” Id. § 404.1520(a)(4)(iii), (d); see also id. pt.
404, subpt. P, app. 1. If it does, the ALJ will deem the
applicant disabled. Id. § 404.1520(a)(4)(iii).
Here, the ALJ determined that DiStefano had not

engaged in substantial gainful activity since the alleged onset
date. Tr. 13. He further determined that DiStefano suffered
from the following “severe impairments”: fibromyalgia, Sjogren’s
syndrome (an autoimmune disorder), “conversion disorder,”
“unspecified” depressive disorder, and obsessive-compulsive
disorder. Id. He also concluded, however, that none of these
impairments rose to the level of a Listed Impairment. Id.
When the ALJ finds that the claimant has severe
impairments that do not meet the requirements of the Listings,
he must determine a claimant’s residual functional capacity
(“RFC”), 20 C.F.R. § 404.1520(a)(4)(iv), which is the most a
claimant can do in a work setting notwithstanding her
limitations. Id. § 404.1545(a)(1). The ALJ concluded here that

DiStefano had the RFC to perform “light work” with limitations.
Tr. 14-15. He found that she could sit for eight hours in a
workday and stand or walk for six; lift and carry twenty pounds
occasionally and ten pounds frequently; and occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs. Id. He also concluded that DiStefano could perform
unskilled tasks in a “low stress job,” which he defined as
requiring only occasional decision making, occasional changes in
the work setting, and occasional interaction with coworkers and
the public. Id. at 15. The ALJ’s RFC determination also
included that she could never climb ladders or scaffolds. Id.

At step four, the ALJ considers whether, in light of
the RFC determination, the claimant can perform “past relevant
work.” 20 C.F.R. § 404.1520(a)(4)(iv), (f). Here, the ALJ
found that DiStefano could not perform her any of her past work
as a retail manager, customer service clerk, reservations agent,
or waitress. Tr. 18-19. At step five, the ALJ decides whether
the claimant can perform jobs existing in significant numbers in
the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g). The
ALJ determined that DiStefano could perform such jobs, including
as an “office helper,” photocopy machine operator, and collator.
Tr. 19. Given that determination, the ALJ concluded that
DiStefano was not disabled. Id. at 20.

II. Standard of Review
A district court has jurisdiction to review the final
judgment of the Commissioner denying an application for Social
Security disability benefits. 42 U.S.C. § 405(g). The review
is limited to two questions: whether substantial evidence
supports the Commissioner’s decision, and whether the
Commissioner applied the correct legal standards. Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
“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.” Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008).1 “[I]f supported by

substantial evidence,” the Commissioner’s factual findings
“shall be conclusive.” 42 U.S.C. § 405(g).
II. Discussion
DiStefano raises three arguments on appeal. Mem. of
Law in Supp. of Pl.’s Mot. for J. on the Pleadings (“Pl. Mem.”)
20-25, ECF No. 14. First, she argues that the ALJ violated the
“treating physician rule” by rejecting the opinion of her
treating physician — Dr. Mark Gudesblatt, a board-certified
neurologist — without first recontacting him to gather more
information. Id. at 20. Second, she argues that the ALJ
improperly neglected to consider, in step three of his analysis,

evidence that DiStefano “had been decompensating at work,” and
thus he erred in concluding that she did not meet the criteria
for a Listed Impairment — specifically, Listing 12.07. Id. at
23. Finally, she argues that the ALJ erred by improperly
disregarding the assessment of Dr. Paula Grossman — DiStefano’s
treating psychiatrist — that DiStefano was chronically fatigued

1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
because her obsessive thoughts kept her up all night. Id. at
24. DiStefano’s claims lack merit.
A. Compliance with the Treating Physician Rule

The “treating physician rule” applies because
DiStefano filed her claim before March 27, 2017. See Crowell v.
Comm’r of Soc. Sec. Admin., 705 F. App’x 34, 35 (2d Cir. 2017).
Under this rule, an ALJ must give a treating physician’s opinion
“controlling weight” if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the case
record.” Burgess, 537 F.3d at 128.
Nevertheless, the rule still permits an ALJ to
discount a treating physician’s opinion when it is conclusory or
“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). “Once the ALJ decided

not to afford controlling weight to the treating physicians’
opinions, she was required to explicitly review the factors
listed in 20 C.F.R. § 404.1527(c) to determine what (if any)
lesser weight to give those opinions.” Schillo v. Kijakazi,
31 F.4th 64, 78 (2d Cir. 2022). These factors include “the
length of the treatment relationship and the frequency of
examination; . . . the relevant evidence, particularly medical
signs and laboratory findings, supporting the opinion; the
consistency of the opinion with the record as a whole; and
whether the physician is a specialist in the area covering the
particular medical issues.” Burgess, 537 F.3d at 129. But even

if an ALJ fails to comply with the treating physician rule,
“where application of [that] rule could lead to only one
conclusion, i.e., that the claimant was not disabled,” this
conclusion “obviat[es] the need for remand.” Messina v. Comm'r
of Soc. Sec., 747 F. App’x 11, 17 (2d Cir. 2018).
Here, Dr. Gudesblatt opined that DiStefano was
“disabled” due to light-headedness and extreme fatigue related
to postural orthostatic tachycardia syndrome (“POTS”), Sjogren’s
disorder, and fibromyalgia. Tr. 967-69, 1267-69; see also id.
at 101-02 (referring to DiStefano’s “chronic disabling
condition”). According to Dr. Gudesblatt, DiStefano was limited
to two hours of sitting and one hour of standing and/or walking
in an eight-hour workday, id. at 967-68; she could occasionally
reach, handle, finger, and feel, but never push or pull, id. at

969; and daily activities caused her extreme fatigue. Id. The
ALJ gave this opinion “lesser weight” because the limitations
that Dr. Gudesblatt found were “inconsistent with the claimant’s
activities of daily living” cited by other doctors, as well as
the physical exam notes of Dr. Syed Asad, an agency consultative
examiner, and later notes from Dr. Gudesblatt himself. Id. at
18.
The ALJ did not err in discounting Dr. Gudesblatt’s
opinion. First, the ALJ properly rejected Dr. Gudesblatt’s
conclusion that DiStefano was “permanently disabled,” see id. at

972, given that disability is an ultimate legal issue “reserved
to the Commissioner.” Snell v. Apfel, 177 F.3d 128, 133-34
(2d Cir. 1999); see also 20 C.F.R. § 404.1527(d)(1) (a medical
source’s statement “that you are ‘disabled’ or ‘unable to work’
does not mean that we will determine that you are disabled”).
Second, the ALJ did not violate the treating physician
rule by declining to seek additional information from Dr.
Gudesblatt. DiStefano argues that because the ALJ pointed to
inconsistencies in the record but did not reach out to clear
them up, he left an impermissible gap in the record. The ALJ
left no such gap, however, because DiStefano’s medical record
contained sufficient information regarding her physical

limitations — such as her ability to sit, stand, walk, and use
her hands — to render a decision. Consistent with 20 C.F.R.
§ 404.1545(a)(3), the ALJ considered numerous factors in
evaluating DiStefano’s RFC, including medical evidence, non-
medical evidence, and her own statements about her daily
activities. Tr. 14-18. Further, pursuant to 20 C.F.R.
§ 404.1527, the ALJ considered and weighed the testimony of
medical experts Drs. Justin Willer and Jennifer Blitz; the
medical opinions of consultative examiners Drs. Asad, Kathleen
Acer, and Gerald Galst; and the medical opinions of DiStefano’s
treating physicians Drs. Grossman and Gudesblatt. Id. at 15-18.
And contrary to DiStefano’s argument, the regulations in effect

at the time of the ALJ’s decision no longer required the ALJ to
recontact a treating physician when the evidence from that
physician is “inadequate” for the ALJ to determine whether the
claimant is disabled. Compare 20 C.F.R. § 404.1512 (effective
June 13, 2011 to Mar. 25, 2012) (requiring this practice) with
20 C.F.R. § 404.1512 (effective Mar. 27, 2017 to present)
(requiring no such effort); see also Yucekus v. Comm’r of Soc.
Sec., 829 F. App’x 553, 555 (2d Cir. 2020) (“We apply the
version of the social security regulations and rulings in effect
at the time of the ALJ’s decision.”).
Given this record, the ALJ properly discounted Dr.
Gudesblatt’s opinion because it was not supported by substantial

evidence. An ALJ may discount a treating physician’s opinion
where, as here, it is “not consistent with other substantial
evidence in the record, such as the opinions of other medical
experts.” Halloran, 362 F.3d at 32. The ALJ gave “good weight”
to the opinions of Drs. Willer and Blitz, medical experts who
based their opinions on a review of the record, Tr. 16, and
whose opinions were not consistent with Dr. Gudesblatt’s. For
example, Dr. Willer testified that the record was not consistent
with a diagnosis of POTS, but rather with a diagnosis of
“conversion disorder,” which does not meet the criteria for a
Listed Impairment under Section 12.07. Id. at 35, 38. As the
ALJ noted, Dr. Willer’s opinion was consistent with the opinions

of Drs. Galst and Horacio Kaufman (who examined DiStefano in May
of 2015), both of whom rejected the POTS diagnosis. Id. at 15,
36, 483-84. Dr. Willer also testified that the record did not
contain evidence establishing disabling limitations. Id. at 15-
16, 33-38. And Dr. Blitz opined that she did not see “any
extreme limitations from a mental standpoint,” and that
DiStefano’s impairments imposed no more than mild to moderate
functional limitations. Id. at 59-65. In addition to treatment
notes, which she said did not support extreme limitations, Dr.
Blitz relied on DiStefano’s activities, including travelling
internationally and socializing. Id. These findings were not
consistent with Dr. Gudesblatt’s finding of permanent

disability.
The opinion of Dr. Galst, a cardiologist, was also
inconsistent with that of Dr. Gudesblatt. Regarding
fibromyalgia, Dr. Galst opined that DiStefano had no trigger
points; regarding Sjorgen’s syndrome, Dr. Galst said laboratory
testing showed no active autoimmune disorder; and, as noted
above, he rejected the POTS diagnosis. Id. at 1029-33.
Consistent with the ALJ’s determination, Dr. Galst concluded
that DiStefano could perform a reduced range of light work: she
could lift and carry up to twenty pounds occasionally and ten
pounds frequently, sit eight hours, stand two hours, and walk
two hours. Id. at 16, 1022-23. Yet because Dr. Galst was

retired and not available to testify about his conclusions, the
ALJ gave his opinion “no weight.” Id. at 17.
Finally, the opinions of two consultative physicians,
Drs. Asad and Acer, also contradicted Dr. Gudesblatt’s opinion.
“The report of a consultative physician may constitute . . .
substantial evidence” by which to compare the treating
physician’s opinion. Petrie v. Astrue, 412 F. App’x 401, 405
(2d Cir. 2011). Dr. Asad, an independent examiner at the
Division of Disability Determination to whom DiStefano was
referred for an examination in 2016, concluded that she had “no
physical limitations,” except that she should avoid uneven
surfaces due to the risk of dizziness. Tr. 17, 522. The ALJ

gave Dr. Asad’s opinion “some weight,” noting that the finding
of “no limitations” at all was not consistent with the record.
Id. at 17. The ALJ also gave “some weight” to the opinion of
Dr. Acer, who found that although DiStefano’s impairments
affected her memory, attention, and concentration, she could
understand and remember simple instructions, directions, and
perform routine tasks. Id. at 527. Dr. Acer concluded that
while the results of DiStefano’s evaluation appeared consistent
with psychiatric issues, they did not appear to severely hamper
her functioning. Id.
In sum, the ALJ sufficiently developed and considered

the medical record, and properly discounted Dr. Gudesblatt’s
opinion without creating a gap in the evidence.
B. Evidence of “Decompensation” at Work
DiStefano’s next argument — that she meets the
criteria for a Listed Impairment under 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.07 for conversion or somatoform
disorders because she was “decompensating at work” — also fails.
Pl. Mem. 23. Dr. Willer, a medical expert, testified that if
the record presented evidence that DiStefano had been
“decompensating at work,” he might agree that her conversion
disorder was a Listed Impairment under Section 12.07. Tr. 35,
37. DiStefano contends that the evidence demonstrates that she

did experience decompensation at her job as a travel agent –
that, for example, she had a successful year in 2013 but, as of
April 2014, she reported that she took four days off from work
in one month due to dizziness and imbalance, lost motivation to
see friends, and felt tired. Pl. Mem. 23; Tr. 914.
DiStefano’s “decompensation” argument is misplaced,
however, because she relies on an outdated version of the
regulations. Although a previous version of Section 12.07,
which existed prior to May 2016, took into consideration
“decompensation” in assessing the severity of a mental disorder,
the agency has since issued “Revised Medical Criteria for
Evaluating Mental Disorders” that eliminated this language from
the listing. See 81 Fed. Reg. 66138 (Sept. 26, 2016). Compare

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07 (effective Sept.
29, 2016 to Jan. 16, 2017) (including language regarding
“repeated episodes of decompensation, each of extended
duration”) with 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07
(effective May 22, 2018 to Sept. 23, 2019).
Under the current regulations, to meet a Listed
Impairment under paragraph B of Section 12.07, a claimant must
show an extreme limitation of one, or a marked limitation of
two, of the following areas of mental functioning:
“(1) Understand, remember, or apply information; (2) Interact
with others; (3) Concentrate, persist, or maintain pace;

(4) Adapt or manage oneself.” 20 C.F.R. pt. 404, subpt. P, app.
1, § 12.07. The ALJ properly considered these factors in
concluding that DiStefano’s impairments did not meet the
criteria. See Tr. 14 (finding no more than mild limitations in
DiStefano’s ability to understand, remember, or apply
information, and no more than moderate limitations in the other
three functional areas). “For a claimant to show that his
impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). DiStefano does
not challenge the ALJ’s findings in these functional areas, and

has not otherwise met her burden at step three of showing that
she meets or equals a Listed Impairment under the regulations.
C. Evidence of Chronic Fatigue
Finally, DiStefano contends that the ALJ ignored the
assessment of her psychiatrist, Dr. Grossman, who concluded that
she was chronically fatigued due to her obsessive-compulsive
disorder. Pl. Mem. 24. Dr. Grossman determined that she had
marked to extreme limitations in all areas of mental
functioning, that she was unable to work in any capacity, and
that her severe fatigue caused physical and mental incapacity.
Tr. 921. The ALJ considered Dr. Grossman’s assessment but gave
it “little weight.” Id. at 18. Several factors support the

ALJ’s decision to discount that opinion.
First, the ALJ properly disregarded Dr. Grossman’s
conclusion that DiStefano was unable to work in any capacity, as
that is an ultimate legal issue reserved for the Commissioner.
See Snell, 177 F.3d at 133-34; 20 C.F.R. § 404.1527(d)(1).
Second, as the ALJ noted, Dr. Grossman’s conclusion
was not consistent with her own treatment notes. Tr. 18.
Despite Dr. Grossman’s conclusion that DiStefano had moderate to
marked limitations in interacting appropriately with the public
and with coworkers in part due to her fatigue, id. at 922, Dr.
Grossman’s treatment records indicated that DiStefano maintained
a relationship with her boyfriend; socialized with friends,

including going out to dinner and concerts; and traveled to
multiple places for vacation. Id. at 700, 723, 725, 734, 739,
744, 760, 828. Dr. Grossman’s treatment notes were also
inconsistent with her assessment that DiStefano had marked
limitations in her ability to understand, remember, and carry
out simple instructions, id. at 921; her records indicate that
DiStefano spent her time reading, using the computer, playing
games and puzzles on her phone and iPad, all of which would
require DiStefano to understand, remember, and follow simple
instructions. Id. at 699, 707.
Third, Dr. Grossman’s conclusion was inconsistent with
other medical evidence in the record, discussed above. See
Halloran, 362 F.3d at 32 (ALJ may discount treating physician’s

opinion where it is “not consistent with other substantial
evidence in the record”). In particular, Dr. Grossman’s
assessment did not align with the expert testimony of Dr. Blitz,
who opined that DiStefano could perform simple, routine tasks;
interact occasionally with supervisors and co-workers; make
occasional work-related decisions; and adapt to change. Tr.
1050.
IV. Conclusion
For the reasons set forth above, the Court grants the
Commissioner’s motion for judgment on the pleadings and denies

DiStefano’s motion. The Clerk of Court is respectfully directed
to enter the judgment and close this case.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge

Dated: September 13, 2023
Brooklyn, New York

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