KATHERINE B. FORREST, District Judge.
Plaintiff Carlos Alberto Guzman Torres seeks review of the decision by defendant Commissioner of Social Security that found that he was not disabled and not entitled to Supplemental Security Income benefits under Title XVI of the Social Security Act (the "Act").
Plaintiff filed a claim for Supplemental Security Income in June 2012. (Tr. 18, 69, 159-67.)
On February 25, 2015, plaintiff filed this action seeking judicial review of the ALJ's September 27, 2013 decision. (ECF No. 1.) Now before the Court are the parties' cross-motions for judgment on the pleadings. (ECF Nos. 10, 16.) For the reasons set forth below, defendant's motion is GRANTED, and plaintiff's motion is DENIED.
Plaintiff is a forty-four year old man. (Tr. 61.) He has either an eighth- (Tr. 38), or ninth-grade education, (Tr. 179), completed in Puerto Rico. Plaintiff alleges that he suffers from depression, hearing problems, problems with his right forearm, a blood clotting disorder, and a history of heart attack. (Tr. 61, 178.) Plaintiff reported working as a gardener in Puerto Rico, (Tr. 176, 179), but allegedly became unable to work on May 1, 2012. (Tr. 178.)
The Administrative Record in this case contains several documents conveying the actions, observations, and opinions of doctors who treated plaintiff for the impairments that constitute his alleged disability. This treating physician evidence covers a period of April 2012, which was shortly before plaintiff's alleged disability onset date, through June 2013, the date of plaintiff's hearing before ALJ Rodriguez. Because evidence from treating physicians is entitled to particular consideration, the Court recounts this evidence at some length below.
In April 2012, plaintiff visited Bronx Lebanon Hospital reporting headache, left-sided chest pain, dizziness, and tongue numbness. (Tr. 242.) Although ultrasound results indicated that plaintiff did not have Deep Vein Thrombosis (DVT) in his left lower extremity, (Tr. 247), plaintiff's diagnosis at discharge on April 9, 2012 was chronic DVT. (Tr. 242.) Drs. Vijaya Perugu and Madanmohan Patel, the doctors who treated plaintiff on this occasion, prescribed an anticoagulant, but plaintiff refused to take this medication. (
On May 21, 2012, plaintiff visited Dr. Cecilia Calderon of CCN General Medicine. (Tr. 252-53.) She diagnosed deep vein thrombosis, smoker's cough, and hearing loss, and prescribed nicotine replacement therapy, multiple pain medications, and an anticoagulant. (Tr. 252-53.) Dr. Calderon also referred plaintiff for a chest X-ray. (Tr. 256-57.)
On June 11, 2012, plaintiff filed a claim for Supplemental Social Security Income. (Tr. 18, 69, 159-67.)
On July 16, 2012, Snyde Simbert, an audiologist at Bronx Lebanon Hospital, tested plaintiff's hearing and referred him to HearRx. (Tr. 285.)
On October 8, 2012, Dr. Calderon completed a Medical Source Statement setting forth her view of plaintiff's limitations. (Tr. 452-59.) Dr. Calderon listed diagnoses of deep vein thrombosis in the left leg and depressive disorder. (Tr. 453.) She stated that plaintiff exhibited symptoms of constant pain in his left calf, which required him to keep the leg elevated when sitting, and had side effects of upset stomach and drowsiness from his medication. (Tr. 453-55.) Dr. Calderon further indicated plaintiff could frequently carry up to 50 pounds, frequently flex his neck downward, upward, right, and left and occasionally balance and stoop, and constantly use his right and left hands without limitation for reaching, handling or working with his fingers. (Tr. 457-58.) She reported that plaintiff did not medically require a hand-held assistive device for walking or standing. (
On October 9, 2012, plaintiff visited HearRx where audiologist Magdalena Sarria evaluated plaintiff's hearing test results from Bronx Lebanon Hospital. (Tr. 286.) Ms. Sarria found that the results showed mixed hearing loss that may be associated with voiceless speech sounds and difficulty hearing in noisy and distance environments. (
On December 1, 2012, plaintiff was admitted to Bronx Lebanon Hospital because of sharp, sudden chest pain on his left side; his chest pain was aggravated by deep breathing, radiated to his neck, and was associated with shortness of breath. (Tr. 323.) Plaintiff's test results from a general physical examination were normal except for posterior neck tenderness. (Tr. 348.) A cardiovascular examination showed plaintiff had normal heart rate and sounds. (Tr. 349.) A chest X-ray showed plaintiff's lungs were normally inflated and clear, his heart was normal size, and there was no sign of acute congestive heart failure or pleural effusions. (Tr. 356.) Plaintiff's computed tomography (CT) scan showed no evidence of evidence of carotid artery dissection or stenosis, although the scans were "suboptimal" because plaintiff moved during the scan. (Tr. 358-59.) Plaintiff's test results from an echocardiogram and an echocardiography stress test were normal. (Tr. 344.) Because the attending physician, Dr. Yair Lev, could not find any records at Bronx Lebanon Hospital indicating plaintiff had DVT, he recommended, with Dr. Calderon's consultation, that plaintiff discontinue using an anticoagulant and take aspirin instead. (Tr. 343-44.) Dr. Lev also recommended plaintiff follow up with Dr. Calderon. (Tr. 343.)
On December 15, 2012, plaintiff visited Lincoln Medical and Mental Health Center, reporting feeling depressed and suicidal ideation. (Tr. 388-440.) Plaintiff stated that "he no longer want[ed] to live," and that he had pills at his home he could use to kill himself. (Tr. 392, 414.) Plaintiff reported that he was depressed because of his hearing impairment from a construction accident and because his mother, who lives in Puerto Rico, had cancer. (Tr. 403.) On December 16, 2012, during a progress evaluation, Dr. Christian Gonzalez noted that plaintiff presented as irritable, marginally cooperative, with poor speech and constricted affect. (Tr. 399.) Dr. Gonzalez further noted that plaintiff reported that he was depressed because he had a stroke after moving to New York City which left him with weakness on his left side and, as a result, unable to work. (
Plaintiff was discharged on December 17, 2012, because he stated he was no longer feeling suicidal or hopeless and wanted to be discharged. (Tr. 396.) Plaintiff was discharged with instructions to take 150mg Wellbutrin, an antidepressant, his usual dose. (
On May 1, 2013, plaintiff visited Martin Luther King Wellness Center and was seen by Dr. Joe Baez because he was having active suicidal thoughts and hearing voices. (Tr. 442.) A Spanish interpreter participated in their meeting. (
On the same day, May 1, 2013, Dr. Baez completed a Medical Source Statement setting forth his views as to plaintiff's limitations. (Tr. 466-472.) The statement indicated that Dr. Baez was seeing plaintiff biweekly. (Tr. 467). The statement also indicated that plaintiff had poor memory, appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, delusions or hallucinations, recurrent panic attacks, paranoia or inappropriate suspiciousness, feelings of guilt or worthlessness, difficulty thinking or concentrating, decreased energy, persistent irrational fears, generalized persistent anxiety, and hostility and irritability. (
Also on May 1, 2013, another physician, Dr. Maureen Kwan Kam, completed a Medical Source Statement for plaintiff. (Tr. 277-83.) Dr. Kam listed diagnoses of dyslipidemia, neck pain, arm fracture, hearing loss, abnormality of gait, hypertension, and migraine. (Tr. 278.) Dr. Kam's statement indicated that plaintiff exhibited symptoms of numbness, sharp pain in arm, headaches, fatigue, trouble breathing, and swelling in his feet. (
On May 15, 2013, plaintiff returned to Martin Luther King Wellness Center for a follow-up visit with Dr. Baez. (Tr. 446.) Plaintiff reported improvement with depression and anxiety but complained that he could not sleep, even with trazodone, and that he had nightmares. (
On June 12, 2013, plaintiff returned to Martin Luther King Wellness Center for another follow-up visit with Dr. Baez. (Tr. 449.) Plaintiff reported feeling episodes of depression and anxiety but that the episodes were relieved with medication. (
In connection with his initial Supplemental Security Income application filed in June 2012, plaintiff visited consulting physician Dr. Marilee Mescon and consulting psychologist Dr. Arlene Broska.
On July 23, 2012, Dr. Mescon examined plaintiff. (Tr. 264-66.) Dr. Mescon observed plaintiff was able to hear normal voice tones without difficulty, had a normal gait, could walk on heels and toes without difficulty, used no assistive devices, needed no help getting on and off the exam table, and was able to rise from his chair without difficulty. (Tr. 264.) She also observed his hand and finger dexterity were intact and his grip strength was five out of five. (Tr. 265.) She concluded that there were no limitations in plaintiff's ability to sit, stand, climb, push, pull, or carry heavy objects. (
Dr. Broska also examined plaintiff on July 23, 2012. (Tr. 267-70.) An English-Spanish translator participated in the evaluation. (Tr. 267.) Dr. Broska observed that plaintiff was cooperative, well-groomed, and presented adequate social skills, relating to others, and overall presentation. (Tr. 268.) She observed that plaintiff was able to hear and communicate in a normal tone of voice, and that he exhibited no evidence of hallucinations, delusions, or paranoia in the evaluation setting. (
Plaintiff previously worked as a gardener in Puerto Rico earning about $350 per week. (Tr. 179, 219) Plaintiff was no longer working at the time of his application. (Tr. 178.)
Plaintiff was represented by counsel at his June 21, 2013 administrative hearing; a Spanish interpreter was also present. (Tr. 35.)
Plaintiff testified that he came to the mainland United States from Puerto Rico in March 2012 to help financially support his mother, who has cancer. (Tr. 38.) In Puerto Rico, plaintiff worked full time, off the books, as a gardener and a construction laborer. (Tr. 38-40.) When he arrived in New York, he got a job as a maintenance worker in a 99 Cent Store. (Tr. 42.) Plaintiff testified that he stopped working at the 99 Cent Store and has not had subsequent jobs because of his heart condition. (Tr. 43.)
Plaintiff testified that he receives food stamps, public assistance, and Medicaid coverage. (Tr. 44.) He testified that he is living with a friend and her four-year-old son and that he is able to leave their residence for appointments. (Tr. 44, 46, 53.) Plaintiff further testified that he was not in a romantic relationship with anyone and is divorced from his former wife, with whom he has two children. (Tr. 44-45.)
Plaintiff testified at some length about his health conditions. (Tr. 46-56.) He recounted hearing loss in his right ear and wore two hearing aids to the administrative hearing. (Tr. 46.) He described trouble with both arms to wit: that he was shot twice in his right arm, which now contains a plate with nine screws and hurts "all the time," even with pain medicine; and that he broke his left arm when he fell from a horse at age eleven, an injury that still causes problems. (Tr. 47-49.) Plaintiff testified about his heart condition, which he reported results in his entire left side becoming totally numb, and about his blood clotting problem, for which he previously took an anticoagulant. (Tr. 49-50.) Plaintiff testified that he discontinued taking that medication because of the side effects, but that those side effects persist. (
Plaintiff also testified that he has problems with his legs, feet, knees, and hips. (Tr. 54.) He stated that his left leg gets swollen, and that a doctor told him he needs to use a cane to walk, but that he does not use a cane because his arm becomes numb. (
Regarding his psychological condition, plaintiff testified that he used to see a psychiatrist in Puerto Rico and that since coming to New York he has seen psychiatrist Dr. Jose Vi for depression. (Tr. 50-52.) He stated that his symptoms of depression are lessening, but that the medication he takes for this condition causes him to be experience dizziness, nausea, and diminished appetite. (Tr. 52-53.)
ALJ Rodriguez did not enlist the help of a vocational expert at the hearing. (Tr. 35-60.)
Plaintiff filed a claim for Supplemental Security Income on June 11, 2012 alleging a disability onset date of May 1, 2012. (Tr. 18, 69, 159-67.) On September 27, 2013, after conducting the five-step sequential evaluation process, ALJ Rodriguez denied plaintiff's application. (
At step three, however, the ALJ found that no impairment or combination of impairments met or medically equaled the severity of any impairment listed in Appendix 1. (Tr. 21.) In particular, he found that although plaintiff had mild restrictions to moderate difficulties—but not marked limitations—in activities of daily living, maintaining social functioning, and maintaining concentration and persistence of pace, these did not meet the relevant criteria. (
At step four, the ALJ determined plaintiff's residual functional capacity and found that although he was unable to perform any past relevant work, he could perform a full range of unskilled low stress jobs
At step five, the ALJ concluded that, based on the Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, plaintiff was able to perform jobs existing in significant numbers in the national economy. (Tr. 27-28.) Accordingly, the ALJ concluded that plaintiff was not disabled under the Act. (Tr. 36.)
"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."
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."
The Commissioner uses a five-step process when making disability determinations.
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.
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."
While the Court must consider the record as a whole in making this determination, it is not for this Court to decide
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."
"[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."
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 not given "any special significance." 20 C.F.R. § 416.927(d)(3);
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."
The ALJ correctly conducted the five-step analysis required by 20 C.F.R. §§ 404.1520 and 416.920. The ALJ's determinations at steps one through three are not challenged.
Plaintiff's first argument is that, at step four, the ALJ "failed to properly apply the treating physician rule when he considered the opinions of all three treating physicians that submitted opinions in this case." (Pl.'s Mem. at 3.) The Court disagrees.
In giving limited weight to Drs. Baez's, Calderon's, and Kam's assessments, the ALJ properly considered the factors in 20 C.F.R. § 416.927, stated the weight he gave to each of the opinions, and gave an explicit rationale for his determination in that regard.
ALJ Rodriguez found that Dr. Baez's opinion was inconsistent with the clinical and diagnostic medical evidence in the record—including his own objective observations—and thus did not give it controlling weight. (Tr. 26.) 20 C.F.R. § 416.927(c)(2). This was proper. In Dr. Baez's May 1, 2013 Medical Source Statement he indicated that plaintiff had a very long list of symptoms
In addition to being inconsistent with his own treatment notes, Dr. Baez's Medical Source Statement is inconsistent with the opinion of Dr. Arlene Broska,
Thus, because Dr. Baez's opinion was inconsistent with the record as a whole, the ALJ properly did not give it controlling weight. 20 C.F.R. § 416.927(c)(4).
ALJ Rodriguez found the opinion of Dr. Calderon, another of plaintiff's treating physicians, was "generally consistent with the medical evidence of record and the objective findings of the consultative examiner" and accordingly gave it "some weight." (Tr. 26.) In a Medical Source Statement completed on October 8, 2012, Dr. Calderon opined that plaintiff could frequently lift and carry up to 50 pounds, had no limitations in using his hands for reaching, handling, or working with his fingers, and did not need an assistive devices to walk. (Tr. 457-58). These statements were consistent with the medical record as a whole. For example, the findings are consistent with the opinion of Dr. Mescon, plaintiff's consultative examiner, who opined that plaintiff had intact hand and finger dexterity, full grip strength, full strength in his upper and lower extremities, and no limitations in his ability to sit, stand, climb, push, pull, or carry heavy objects. (Tr. 265.)
The ALJ did not give controlling weight to the portions of Dr. Calderon's opinion that were inconsistent with the medical record. 20 C.F.R. § 416.927(c)(4). This was proper. Most significantly, Dr. Calderon diagnosed plaintiff with DVT in his left leg on October 8, 2012 (Tr. 453); that diagnosis is inconsistent with the objective medical evidence, specifically ultrasound results from April 7, 2012 which reported that plaintiff had "[n]o DVT in the left lower extremity."
ALJ Rodriguez properly gave "little weight" to the opinion of Dr. Michel Kwan Kam, plaintiff's other treating physician, because it was "inconsistent with the medical evidence of record including the recent treatment notes indicating the claimant's symptoms have improved with treatment and the objective findings of the consultative examiners." (Tr. 26.) Specifically, Dr. Kam indicated plaintiff had extensive limitations, but Dr. Mescon's evaluation flatly contradicted this opinion.
ALJ Rodriguez considered the factors required under 20 C.F.R. § 416.927, and set forth specific reasons in the record evidence for not assigning controlling weight to Drs. Baez's, Calderon's, and Kam's opinions. The Court's review of the Administrative Record demonstrates that the ALJ's determination was based upon substantial evidence.
Plaintiff's second argument in support of his position is that the ALJ failed to consider "the overwhelming evidence that [he] needs a cane to ambulate." (Pl.'s Mem. at 9.) The Court, however, finds that the ALJ did not err regarding plaintiff's alleged use of a cane.
Plaintiff's claim that he needs a cane is inconsistent with the record as a whole. As evidence that he needs a cane to walk, plaintiff cites his Dr. Kam's Medical Source Statement and his hearing testimony. (Tr. 295, 54-55). However, plaintiff's claim that he needs a cane to walk is contradicted by Dr. Calderon's Medical Source Statement, which plaintiff seeks to credit as an opinion of a treating physician and which indicates plaintiff does not need to use a cane to walk (Tr. 458), and Dr. Mescon's evaluation, which indicates that plaintiff did not use a cane, had a normal gait and stance, could squat fully, could walk on his heels and toes without difficulty, and had limitation in his ability to sit, stand, climb, push, pull, or carry heavy objects, (Tr. 264-65).
Furthermore, plaintiff admits he has not obtained and does not use a cane to walk. (Tr. 54-55, Pl.'s Mem. at 9.) Plaintiff urges the Court to view this fact as an indication of plaintiff's extremely weak upper body; plaintiff claims his arms would become numb if he used a cane. (Tr. 54-55, Pl's. Mem. at 9.) However, there is no objective medical evidence of weak upper body strength or arm-numbness. Results from a musculoskeletal evaluation conducted in December 2012 were normal. (Tr. 334.) Additionally, Dr. Mescon's evaluation indicates that plaintiff had full range of motion in his shoulders, elbows, forearms, and wrists bilaterally, had full strength in his upper extremities, and no evident muscle atrophy. (Tr. 265.) Thus, the Court views the fact that plaintiff does not use a cane to walk as an indication that plaintiff does not need to use a cane to walk and accordingly finds the ALJ did not err regarding plaintiff's alleged use of a cane.
Plaintiff's third argument in support of his position is that the ALJ failed to consider the alleged side effects of his medication. (Pl.'s Mem. at 10.) Plaintiff's side effects from medication are detailed throughout the administrative record, although the nature of the side effects varies: plaintiff testified he has nose bleeds (Tr. 50), urinates blood (
The ALJ recognized plaintiff's side effects: he noted that Dr. Broska, whose opinion he gave "great weight," reported that plaintiff had difficulty falling asleep and poor appetite. (Tr. 24.) Ultimately, however, the ALJ determined plaintiff was not credible as to his complaints because "[t]he objective medical findings reveal some limitations, but not to the extent alleged by [plaintiff]." (Tr. 25.)
In assessing a claimant's credibility, "after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility," and ALJ "may decide to discredit the claimant's subjective estimation of the degree of impairment."
Here, the ALJ properly referenced specific reasons for assigning limited weight to plaintiff's testimony regarding side effects. (Tr. 23, 25-26.)
Plaintiff's fourth argument in support of his position is that the ALJ failed to consider that his mental and physical impairments in combination when determining his residual functional capacity. (Pl.'s Br. at 11.) The ALJ, however, twice expressly stated that he had considered plaintiff's impairments in combination: he found plaintiff's impairments to be "severe, in combination if not singly," (Tr. 20), and he "considered all of [plaintiff's] impairments individually and in combination." (Tr. 21). In light of the ALJ's explicit acknowledgement of the need to consider impairments in combination, the Court rejects this argument.
Plaintiff further argues that the ALJ failed to consider the fact that plaintiff is illiterate in English when he considered plaintiff's residual functional capacity. (Pl.'s Mem. at 11.) According to the guidance in 20 C.F.R. § Pt. 404, Subpt. P, App. 2., however, "literacy or ability to communicate in English has the least significance" in the context of "unskilled work," which primarily involves "working with things (rather than with data or people)." 20 C.F.R. § Pt. 404, Subpt. P, App. 2. In this case, the ALJ found plaintiff had the residual functional capacity to perform unskilled work limited to jobs dealing with things rather than people. (Tr. 22.) Thus, plaintiff's illiteracy does not have high significance and the ALJ did not err in not explicitly considering it in his written decision.
Finally, plaintiff argues that, because the ALJ found that he had nonexertional limitations, he was required to obtain vocational expert testimony. (Pl.'s Mem. at 13.) The Court disagrees.
While "sole reliance on the [Medical-Vocational Guidelines, or "Grids,"] may be inappropriate where the claimant's exertional impairments are compounded by nonexertional impairment . . . `the mere existence of a nonexertional impairment does not automatically require the production of a vocational expert nor preclude reliance on the guidelines.'"
In this case, the ALJ found that while plaintiff's ability to "perform work at all exertional levels ha[d] been compromised by nonexertional limitations," the "limitations ha[d] little or no effect on the occupational base of unskilled work at all exertional levels." (Tr. 27.) For plaintiff to do unskilled work, he must have "the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting." SSR 85-15, Dept. of Health and Human Services (Jan. 1985). None of the nonexertional limits identified by the ALJ—no unprotected heights or exposure to loud noises; no more than occasional decision making or exercise of judgment in job performance; no interactions with the public; occasional work-related interaction with co-workers and supervisors; jobs dealing with things rather than people—narrows plaintiff's possible range of unskilled work so as to deprive him of meaningful employment opportunities. (Tr. 22.) Thus, plaintiff's nonexertional limitations did not result in an additional loss of work capacity, and the ALJ properly relied on the Grids.
For these reasons, defendant's motion for judgment on the pleadings is GRANTED and plaintiff's motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate the motions at ECF Nos. 10 and 16, to enter judgment for defendant, and to terminate this action.
SO ORDERED.
