ROSLYNN R. MAUSKOPF, District Judge.
Plaintiff Luis Torregrosa brings this action against defendant Carolyn Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner"), pursuant to 42 U.S.C. §§ 423(d)(1), (3), (5), seeking review of the Commissioner's determination that Torregrosa is not entitled to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Torregrosa maintains that the Commissioner's determination is not supported by substantial evidence and is contrary to law. (Pl.'s Mem. (Doc. No. 18) at 16-17.) Both Torregrosa and the Commissioner have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). (Ders Mem. (Doc. No. 16); Pl.'s Mem.) For the reasons set forth below, Torregrosa's motion is denied and the Commissioner's motion is granted.
Torregrosa filed an application for DIB on June 20, 2012, (Admin. R. (Doc. No. 20) at 120)
Torregrosa was born on August 4, 1965. (Admin. R. at 50.) He completed high school in Puerto Rico and can understand, speak, and read English. (Id at 16, 36, 125.) At the time of the ALJ hearing, Torregrosa lived in an apartment with his wife and three children. (Id. at 15-16, 141.) On a typical day, he would prepare meals, go on two walks, and watch TV. (Id. at 137-38.) He also indicated that he could count change, manage a savings account, and go grocery shopping once a week, but could not handle paying his bills. (Id.)
Torregrosa worked as a real estate broker from 2005 to 2011 and a truck driver from 1992 to 2007, earning approximately $29,000 per year. (Id. at 15, 27, 28, 49, 125.) As a truck driver, Torregrosa would drive to New Jersey and Connecticut, load the truck, fix and lift machines, and deliver plant equipment and syrup for a pizzeria and a beverage company. (Id. at 29.) The heaviest thing he had picked up for work was a boiler. (Id. at 20.) During 2011 and 2012, he was self-employed and earning approximately $9.000 annually by picking up cans and scratch metal. (Id. at 19-20.)
Torregrosa reported that since December 20, 2011, he could not squat, hit any heavy objects, stand or sit for a long time, or do house and yard work. (Id. at 135-36, 138.) He could not drive a truck or load and unload equipment as lie used to do. (Id. at 140.) He could walk for only about thirty minutes and required a five-minute break every fifteen minutes. (Id. at 134-36.) He struggles to climb stairs, kneel, reach, and use his hands. (Id. at 135.) Torregrosa represented that he requires assistance taking a shower and injecting insulin. (Id. at 139.) His sleep has been affected by constant pain in his shoulders and the need to urinate every hour. (Id. at 140.)
In the July 6, 2012 disability report filed in connection with this appeal, Torregrosa alleged that he has been disabled since December 20, 2011. (Id. at 124.) He indicated that he has diabetes, dislocated shoulder ligaments, an inflamed prostate, and pain in his joints, back, and knees. (Id.) On October 3, 2013, Torregrosa testified before the ALJ that he has memory loss, damage in both shoulders, swollen knees, and back pains. (Id. at 21-23.) These pains occurred approximately four times per week and occasionally kept him in bed all day. (Id. at 23.) He further testified that he could stand for ten or fifteen minutes, walk two blocks non-stop, sit about forty-five minutes, lift up his arms and shoulders for two or three seconds, and lift at most twelve to fifteen pounds. (Id. at 24.) Torregrosa's wife testified that clue to his considerable pain, Torregrosa had not worked since 2012. (Id. at 34-35.)
From March 2008 to December 2011, Torregrosa repeatedly visited the Emergency Room of Wyckoff Heights Medical Center. (Id. at 360-68.) On March 8, 2008, Torregrosa complained of pain on the right side of his face. (Id. at 360.) He was diagnosed with a toothache. (Id.) On July 27, 2010, Torregrosa was diagnosed with a shoulder sprain and strain contusion at pain scale ten, the worst possible pain. (Id. at 365-68). There was no swelling. (Id. at 364.) On May 9, 2011, Torregrosa went to the Emergency Room for a "sudden onset of [sic] severe [sic] colicky pain in [his] left flank." (Id. at 343, 346, 351.) Torregrosa was diagnosed as having small non-obstructing kidney stones and was discharged on May 11, 2011. (Id. at 342.)
On April 12, 2011, a magnetic resonance imaging ("MRI") scan revealed a tear in Torregrosa's right shoulder. Specifically, the MRI showed a full thickness tear of the museulotendinous junction supraspinatus tendon with a 2x2 centimeter tendon gap without tendon restriction. (Id. at 171, 216, 264)
Torregrosa was hospitalized at Wyckoff Heights Medical Center for three weeks, complaining, of dehydration with nausea and increased frequency of urination. (Id. at 210, 284.) A radiology report of Torregrosa's chest did not show any evidence of pulmonary infiltration or consolidation. (Id. at 179, 325.) A June 7, 2012 report showed that Torregrosa had normal sensations, normal range of motion, no tenderness, and no swelling. (Id. at 197.) He also had joint pain in his right shoulder rotator cuff. (Id. at 195.) Furthermore, in a consultant's opinion dated June 8, 2012, Dr. Stella llyayeva indicated that Torregrosa had recently used cocaine and occasionally drank alcohol. (Id. at 188.) He was diagnosed with new onset type II diabetes. (Id. at 190, 320.)
A June 11, 2011 discharge summary indicated that the primary diagnosis was new onset diabetes with the secondary diagnosis of morbid obesity. (Id. at 269.) Torregrosa had no pain and had ambulatory functional status. (Id. at 270.) He had a good response to hospital treatment and denied urinary frequency and dry mouth on the day of discharge. (Id. at 273.) He was advised to follow up with a nutritionist, a primary medical doctor, and an endocrinologist in three-to-five days. (Id.)
In an internal medicine examination report, Dr. Vinod Thukral indicated that Torregrosa complained of shoulder pain, knee pain, diabetes, decreased visual acuity, and proteinuria. (Id. at 218.) The report indicated that Torregrosa could cook, clean, do laundry, and shop as needed. (Id. at 219.) Dr. Thukral indicated that Torregrosa denied any drug, alcohol or substance abuse. (Id.) Torregrosa generally appeared to be able to walk on heels and toes without difficulty, squat fully, stand normally, and change clothes without help. (Id.) He demonstrated full range of movement with his elbows, forearms, wrists, left shoulder, hips, knees, and ankles. (Id.) The examination on his right shoulder showed moderate tenderness on movement. (Id.) His forward elevation and abduction were both limited to ninety degrees. (Id.) With the exception of his right shoulder, he had stable joints. (Id.) The examination showed that Torregrosa could sit or stand, but had a moderate limitation in pulling, pushing, lifting, or carrying due to joint pain. (Id. at 221.) By Torregrosa's medical history, Dr. Thukral diagnosed diabetes, decreased visual acuity, proteinuria, bilateral knee pain, and bilateral shoulder pain. (Id. Dr. Thukral advised Torregrosa to see his primary care physician for elevated blood pressure immediately upon leaving the medical center. (Id. at 219, 222.) Torregrosa was also advised to sec an ophthalmologist for decreased visual acuity in his left eye. (Id. at 219.)
On September 21, 2012, Torregrosa went through a physical residual functional capacity assessment. (Id. at 223-228.) The assessment report revealed that he could occasionally carry or lift up to ten pounds. (Id. at 224.) Medical Consultant Williams found that Torregrosa could walk, stand, or sit with normal breaks for six hours in an eight-hour workday. (Id.) His push or pull capacity was limited in his upper extremities. (Id.) He could only occasionally climb or crawl due to his right shoulder impairment, and was limited in all directions. (Id. at 225.) The primary diagnosis was right shoulder joint effusion with a tendon gap, and the secondary diagnosis was type II diabetes. (Id. at 223.) In a case analysis report dated November 15, 2012, Dr. R. Mitgang reviewed and agreed with the September 21, 2012 assessment report. (Id. at 230.)
Dr. Catherine Compito performed rotator cuff surgery on Torregrosa's right shoulder. (Id at 369-70.) Dr. Compito prescribed anti-inflammatory and pain management drugs, and instructed Torregrosa to keep his arm in a sling for six weeks. (Id.)
On June 22, 2013, Dr. Ko Latt reviewed Torregrosa's ability to perform work-related activities. (Id. at 256-61.) Dr. Latt concluded that Torregrosa could lift or carry up to ten pounds "occasionally," but could never lift more than eleven pounds.
Torregrosa could climb stairs, ramps, ladders, or scaffolds, and balance, stoop, kneel, crouch, or crawl occasionally. (Id. at 259.) No impairment affected Torregrosa's hearing or vision. (Id.) Torregrosa could continuously tolerate humidity, wetness, dust, odors, fumes, moderate office noise, and pulmonary irritants. (Id. at 260.) He could also occasionally tolerate unprotected heights, and extreme cold and heat. While Torregrosa could operate a motor vehicle, he could never move mechanical parts or tolerate vibrations. (Id)
Dr. Latt assessed that Torregrosa could shop, travel, or ambulate without assistance, walk a block at a reasonable pace on an uneven surface, use standard public transportation, prepare simple meals, care for his personal hygiene, and handle files. (Id. at 261.) Dr. Latt noted that the right rotator cuff surgery still caused Torregrosa pain and limited his range of movement. (Id.) Dr. Latt expected these limitations would last for twelve months. (Id.)
On June 25, 2013, Torregrosa was hospitalized after a garage door fell on his postsurgical right shoulder. (Id. at 267.) Physical examination showed no swelling, but pain with forward flexion, abduction and internal rotation, and acromioclavicular joint tenderness on the right shoulder. (Id.)
A radiology report indicated that on July 14, 2014, Torregrosa had underwent a computed tomography scan on his lumbar spine. (Id. at 372.) The scan revealed mild dextroscoliosis
In September 2014, Torregrosa was hospitalized for acute pancreatitis and uncontrolled diabetes. (Id. at 373.) An abdominal ultrasound and a computerized tomography scan of Torregrosa's abdomen and pelvis revealed mild diffuse fatty infiltration of the liver, minimal basilar posterior pleural thickening or atelectasis in his lung, and mild multilevel degenerative changes of the spine. (Id. at 374-76.) Dr. lasmina Jivanov, M.D., suggested further evaluation with ultrasonography on Torregrosa's gallbladder. (Id. at 375.) Dr. Jivanov also noted Torregrosa's acute pancreatitis, headache, morbid obesity, and uncontrolled diabetes. (Id. at 373.)
Christina Boardman testified as a vocational expert ("VE") at Torregrosa's hearing. (Id. at 9, 26, 28.) The VE first asked the ALJ to clarify the substance of Torregrosa's work as a real estate broker and a truck driver. (Id. at 26-28.) After the ALJ's reexamination of Torregrosa, the VE classified Torregrosa's job as a truck driver under the title of route truck delivery driver (DOT Code No. 292.353-010),
The ALJ further inquired about job options for an individual with occasional reaching instead of just occasional overhead reaching. (Id. at 31.) The VE provided three examples of work such a person could perform: (1) an usher (DOT Code No. 344.677-014) with an estimated 106,860 jobs in the national economy; (2) a counter clerk (DOT Code No. 249.366-010) with an estimated 432,650 jobs in the national economy; and (3) an inspector of surgical instruments (DOT Code No. 712.684-050) with an estimated 454,010 jobs in the national economy. (Id. at 31.)
Then, under a third hypothetical, the ALJ asked about job options for a sedentary individual with occasional overhead reaching. (Id. at 32.) The VE provided another three examples: (1) an order clerk (DOT Code No. 209.567-014) with an estimated 208,800 jobs nationwide; (2) an addresser (DOT Code No. 209. 587-010) with an estimated 96,560 jobs nationwide; and (3) a table worker in a factory setting (DOT Code No. 739.687-082) with an estimated 454,010 jobs nationwide. (Id.) Finally, under a fourth hypothetical, the VE testified that there were no jobs in the national economy that a sedentary individual without any ability to reach could perform. (Id.)
When reviewing the final determination of the Commissioner, the Court does not make an independent determination about whether a claimant is disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Rather, the Court "may set aside the Commissioner's determination that a claimant is not disabled only if the [ALJ's] factual findings are not supported by `substantial evidence' or if' the decision is based on legal error." Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). "`[S]ubstantial 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)).
"In determining whether the agency's findings were supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." (Id.) (internal quotation marks omitted). "If there is substantial evidence in the record to support the Commissioner's factual findings, they are conclusive and must be upheld." Stemmerman v. Colvin, No. 13-CV-241 (SLT), 2014 WL 4161964, at *6 (E.D.N.Y. Aug. 19, 2014) (citing 42 U.S.C. § 405(g)). "This deferential standard of review does not apply, however, to the ALP s legal conclusions." Hilsdorf v. Comm'r of Soc. Sec., 724 F.Supp.2d 330, 342 (E.D.N.Y. 2010). Rather, "[w]here an error of law has been made that might have affected the disposition of the case . . . [an ALJ's] failure to apply the correct legal standards is grounds for reversal." (Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (internal quotation marks omitted).)
To establish eligibility for DIB, an applicant must produce medical and other evidence of his disability. See 42 U.S.C. § 423(d)(5)(A). To be found disabled, the claimant must have been unable to work due to a physical or mental impairment resulting from "anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(1)(A). This impairment must have lasted or be expected to last for a continuous period of not less that twelve months. Id.; see also Barnhart v. Walton, 535 U.S. 212 (2002). Further, the applicant's medically determinable impairment must have been of such severity that he is unable to do his previous work or, considering his age, education, and work experience, he could not have engaged in any other kind of substantial gainful work that exists in the national economy. See 42 U.S.C. § 423(d)(2)(A). In determining whether a claimant is disabled, the Commissioner engages in the following five-step analysis:
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)); see also Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); 20 C.F.R. § 404.1520. The claimant has the burden of proof for the first four steps of the analysis, but the burden shifts to the Commissioner for the fifth step. See Talavera, 697 F.3d at 151.
First, the ALJ determined that Torregrosa had not engaged in substantial gainful activity since his December 20, 2011 onset date, and, thus, satisfied step one. (Admin. R. at 45.)
Second, the ALJ found that Torregrosa's obesity, diabetes, shoulder dislocation, and status-post torn rotator cuff surgery satisfied the "severe impairment condition" of step two. (Id.)
Third, the All found that Torregrosa's severe impairments did not meet the criteria of an impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 47.) The ALJ determined Torregrosa's residual functional capacity (RFC), which is the most he can do despite his impairments. Specifically, he found that Torregrosa had the RFC to perform light work, and he could frequently climb, balance, stoop, kneel, crouch, crawl, and occasionally reach in all directions. (Id); see 20 C.F.R. § 404.1529.
Fourth, the All concluded that Torregrosa had past relevant medium-skilled work as a truck driver (DOT. Code No. 292.353-010). (Id. at 49.) However, the All found that Torregrosa can no longer perform that past work. (Id.)
Fifth, the ALJ considered Torregrosa's age, education, RFC, and the vocational expert's testimony, and found that there were jobs that existed in significant numbers in the national economy that he could perform despite his impairments. (Id. at 50.) Accordingly, the ALJ found that the Commissioner had carried her statutory burden. (Id. at 51.)
The responsibility for determining a petitioner's RFC rests solely with the ALJ. See 20 C.F.R. §§ 404.1527(e)(2), 404.1546. In determining the RFC, the Al must consider all medical opinions together with other relevant evidence. 20 C.F.R. § 404.1527. Through this process, it is for the ALJ to resolve genuine conflicts in the evidence. Vein() v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); accord Schaal, 134 F.3d at 504 ("It is for the SSA, and not this court, to weigh the conflicting evidence in the record."); 20 C.F.R. § 404.1527(c)(4). Here, the record contains substantial evidence through treatment notes, medical opinions, and vocational testimony to support the ALJ's RFC determination.
In order to establish disability, the petitioner must show a medically demonstrable underlying physical or mental impairment, which could reasonably be expected to produce the alleged disabling symptoms. 20 C.F.R. § 404.1529(b); accord Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). In making Torregrosa's RFC determination, the All gave greater weight to the opinion of Dr. Thukral, a consultative physician, than the opinion of Dr. Latt, an internist. With the exception of limited range of motion in his surgically-repaired right shoulder, Dr. Thukral found that Torregrosa had lull muscle strength and range of motion, as well as normal reflexes and sensations throughout his arms and legs. (Admin. R. at 220-21.) Torregrosa's lumbar, thoracic, and cervical spine each demonstrated full range of motion. (Id. at 220.) His hand and finger dexterity were intact and demonstrated full bilateral grip strength. (Id. at 221.) Dr. Thukral found that Torregrosa had no limitations in sitting or standing, and only moderate limitations for pulling, pushing, lilting, carrying, and other related activities. (Id. at 221.) In contrast, Dr. Latt opined that Torregrosa was limited to less than a full range of sedentary work, and could lift no more than ten pounds. (Id. at 49; 256.)
In light of the ample support in the record, the ALJ properly found that the balance of evidence contradicted Dr. Latt's opinion. (Id.) For example, Dr. Mitgang, a state agency medical consultant, assessed that Torregrosa was not limited to sedentary work.
A credibility finding by an AU is entitled to deference by a reviewing court "because [the All] heard plaintiff's testimony and observed [plaintiffs] demeanor." Gernavage v. Shalula, 882 F.Supp. 1413, 1419 n.6 (S.D.N.Y. 1995). The ALJ must analyze the credibility of a claimant as to his symptoms through a two-step test. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The All must first decide "whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged." Id. (citing 20 C.F.R. § 404.1529(b)). Next, if the AU determines that the claimant does have such an impairment, he must consider "the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record." Id. (quoting 20 C.F.R. § 404.1529(a) (alterations omitted)). When evaluating the "intensity, persistence and limiting effects of symptoms, the Commissioner's regulations require consideration of seven specific, objective factors . . . that naturally support or impugn subjective testimony of disabling pain and other symptoms." Dillingham v. Colvin, No. 14-CV-105 (ESH), 2015 WL 1013812, at *5 (N.D.N.Y. Mar. 6, 2015). These seven objective factors are:
Id. at *5 n.22 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). "While it is `not sufficient for the ALJ to make a single, conclusory statement that' the claimant is not credible or simply recite the relevant factors, remand is not required where `the evidence of record permits [the Court] to glean the rationale of the All's [credibility] decision.' Cichocki v. Astute, 534 F. App'x. 71, 76 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). In such a case, "the ALJ's failure to discuss those factors not relevant to [her] credibility determination does not require remand." Id.
Here, the ALJ followed the two-step process in considering Torregrosa's symptoms. (Admin. R. at 48-49.) First, the ALI found that Torregrosa suffers from a medically cognizable impairment. (Id) However, at step two, the All found that Torregrosa was not entirely credible with respect to his symptoms. (Id.) The ALI compared Torregrosa's testimony regarding his pain, strength, and range of motion to the medical evidence and found that Torregrosa's testimony was not entirely credible. (Id. at 47-49.) In doing so, the ALJ considered Torregrosa's ability to perform daily activities. (Id.); 20 C.F.R. § 404.1529(c); Poupore, 566 F.3d at 307. Torregrosa testified that he showered, bathed, dressed himself, cooked, cleaned, did laundry, went for walks, used public transportation, shopped for groceries, performed childcare, and socialized. (Admin. R. at 136-41, 219.) The ALJ found that this testimony corroborated Dr. Thukral's range of motion assessment. Specifically, the ALJ noted that Dr. Thukral found Torregrosa exhibited a full range of motion throughout his back, neck, arms, and legs. (Id. at 220-21.)
The ALJ found that the objective medical evidence outweighed Torregrosa's subjective pain and range of motion complaints. (Id. at 49); see Veino, 312 F.3d at 588. As such, the extensive medical record provides substantial evidence in support of the ALJ's credibility and RFC determinations. See Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) ("In our review, we defer to the Commissioner's resolution of conflicting evidence.").
At step five of the disability analysis, the AU must consult the applicable Medical Vocational Guidelines found at 20 C.F.R. Part 404, Subpart P, Appendix 2. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). However, where, as here, a claimant has both exertional and nonexertional impairments, the All is entitled to rely on the opinion of a vocational expert. See Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983). An ALT may rely on a vocational expert to determine whether there is work that exists in significant numbers in the national economy that a claimant could perform, given his vocational factors and RFC. Id.
After a battery of hypothetical questions, VE Christina Boardman testified that Torregrosa could at least work as an usher (DOT Code No. 344.677-014) with an estimated 106,860 jobs in the national economy, or a counter clerk (DOT Code No. 249.366-010) with an estimated 432,650 jobs in the national economy. (Admin. R. at 32.)
For the reasons stated herein, Torregrosa's motion for judgment on the pleadings (Doe. No. 17) is denied, and the Commissioner's motion for judgment on the pleadings (Doc. No. 15) is granted.
The Clerk of Court is respectfully directed to enter judgment accordingly and close the case.
SO ORDERED.
