Crespo v. Commissioner of Social Security
Filing
40
RULING ON CROSS MOTIONS TO REVERSE AND AFFIRM DECISION OF THE COMMISSIONER OF SOCIAL SECURITY. For the reasons set forth in the attached opinion, the motion to reverse the decision of the Commissioner (Doc. # 31 ) is DENIED, and the motion to affirm the decision of the Commissioner (Doc. # 35 ) is GRANTED. The Clerk of Court shall close this case. Signed by Judge Jeffrey A. Meyer on 9/25/2019. (Al-Jarani, Y.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NILDA CRESPO,
Plaintiff,
No. 3:18-cv-00435 (JAM)
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
RULING ON CROSS MOTIONS TO REVERSE AND AFFIRM DECISION OF THE
COMMISSIONER OF SOCIAL SECURITY
Plaintiff Nilda Crespo asserts that she is disabled and unable to work because of
fibromyalgia. She has brought this action pursuant to 42 U.S.C. § 405(g), seeking review of the
final decision of the Commissioner of Social Security, who denied her claim for social security
disability insurance benefits. Crespo has filed a motion to reverse the decision of the
Commissioner, Doc. #35, and the Commissioner has filed a motion to affirm his judgment, Doc.
#31. For the reasons discussed below, I will deny Crespo’s motion to reverse and grant the
Commissioner’s motion to affirm.
BACKGROUND
I refer to the transcripts provided by the Commissioner. See Doc. #21-1 through Doc.
#21-11. Crespo filed an application for disability insurance benefits under Title II on December
12, 2013, alleging a disability that began on July 20, 2012. Doc. #21-8 at 6. Because her earnings
record allowed for her to remain insured through September 30, 2013, she was required to show
that she became disabled on or before that date. Doc. #21-3 at 28. Crespo’s claim was initially
denied on July 9, 2014, Doc. #21-6 at 12, and denied again upon reconsideration on November
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25, 2014, id. at 28. She then timely filed a written request for a hearing by an administrative law
judge (ALJ) on December 9, 2014. Doc. #21-7 at 15.
Crespo appeared with a non-attorney representative and testified at a hearing in New
Haven before ALJ Eskunder Boyd on March 29, 2017. Doc. #21-3 at 43. Vocational expert Jean
Spaulding testified by phone. Ibid. On May 2, 2017, the ALJ issued a decision concluding that
Crespo was not disabled within the meaning of the Social Security Act. Id. at 28. The Appeals
Council denied Crespo’s request for review on October 27, 2017. Id. at 2. Crespo then filed this
federal court action on March 14, 2018. Doc. #1.
To qualify as disabled, a claimant must show that she is unable “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,” and “the impairment must be ‘of such severity that [the claimant] is not only
unable to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.’”
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C. §§
423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists in significant
numbers either in the region where [claimant] live[s] or in several other regions of the country,”
and “when there is a significant number of jobs (in one or more occupations) having
requirements which [claimant] [is] able to meet with his physical or mental abilities and
vocational qualifications.” 20 C.F.R. § 404.1566(a)-(b); see also Kennedy v. Astrue, 343 F.
App’x 719, 722 (2d Cir. 2009).
The agency engages in the following five-step sequential evaluation process to determine
whether a claimant is disabled:
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(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the
claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019); see also 20 C.F.R. §
404.1520(a)(4)(i)-(v).
In applying this framework, if an ALJ finds a claimant to be disabled or not disabled at a
particular step, he may make a decision without proceeding to the next step. See 20 C.F.R. §
404.1520(a)(4). The claimant bears the burden of proving the case at Steps One through Four;
the burden shifts at Step Five to the Commissioner to demonstrate that there is other work that
the claimant can perform. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
After proceeding through all five steps, the ALJ concluded that Crespo was not disabled
within the meaning of the Social Security Act. At Step One, the ALJ determined that Crespo had
not engaged in substantial gainful activity since July 20, 2012, the date of the alleged onset of
her disability. Doc. #21-3 at 30.
At Step Two, the ALJ concluded that Crespo suffered from the following severe
impairments through her date last insured: carpal tunnel syndrome, lumbar radiculopathy,
fibromyalgia, depressive disorder, and anxiety disorder. Ibid.
At Step Three, the ALJ determined that Crespo did not have an impairment or
combination of impairments that met or equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. Ibid.
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The ALJ then found that Crespo had a residual functional capacity (RFC) to perform light
work as defined in 20 C.F.R. § 404.1567(b), with the following limitations:
[S]he may never climb ladders, ropes, or scaffolds but can
occasionally climb stairs and ramps. She may occasionally balance,
stoop, and crouch, but never kneel or crawl. She cannot perform any
overhead reaching. She may frequently handle or finger. She can
perform simple routine repetitive tasks and sustain concentration,
persistence, and pace for two-hour segments. She has no problems
interacting with others. She can stand/walk up to 4 hours total, and
sit for up to 6 hours total. She requires a sit/stand option whereas
[sic] she can sit for about 30 minutes, alternate to a standing position
for about 2-3 minutes, and then resume sitting.
Id. at 32. At Step Four, the ALJ concluded that Crespo was unable to perform any past relevant
work through the date last insured. Id. at 35.
At Step Five, weighing Crespo’s age, education, work experience, and RFC, the ALJ
concluded that Crespo had the RFC to perform a significant number of jobs in the national
economy, such as cashier, price marker, and collator/operator. Id. at 36. In reaching this
conclusion, the ALJ relied on the testimony of the vocational expert. Ibid.
The ALJ ultimately held that Crespo was not disabled within the meaning of the Social
Security Act. Id. at 37.
DISCUSSION
The Court may “set aside the Commissioner’s determination that a claimant is not
disabled only if the factual findings are not supported by substantial evidence or if the decision is
based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); see also 42 U.S.C.
§ 405(g). Substantial evidence is “more than a mere scintilla” and “means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Lesterhuis v. Colvin,
805 F.3d 83, 87 (2d Cir. 2015) (per curiam). Absent a legal error, the Court must uphold the
Commissioner’s decision if it is supported by substantial evidence, even if the Court might have
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ruled differently had it considered the matter in the first instance. See Eastman v. Barnhart, 241
F. Supp. 2d 160, 168 (D. Conn. 2003).
Crespo makes four claims of error. First, Crespo claims that the ALJ did not adequately
develop the administrative record by failing to secure various function-by-function assessments
and medical source statements from Crespo’s treating sources. Doc. #35-1 at 17. Second, Crespo
claims that the ALJ’s analyses at Step Two and Three were insufficient. Id. at 24. Third, Crespo
claims that the ALJ inadequately evaluated her fibromyalgia, chronic pain, and combination of
impairments. Id. at 28. Finally, Crespo claims that the ALJ’s Step Five analysis is not supported
by substantial evidence. Id. at 33. I address each claim in turn.
The ALJ’s responsibility to develop the record
Crespo claims the ALJ did not adequately develop the record in several ways. First,
Crespo alleges that the ALJ failed to obtain any function-by-function assessments from treating
clinicians, including APRNs Jose Latorre and Carmen Calder, rheumatologist Dr. Mirela
Dumitrescu, MD, mental health care providers, and general practitioner Dr. Planell-Pabón, MD.
Doc. #35-1 at 17-19. She also alleges the ALJ failed to obtain function-by-function assessments
of her orthopedic, podiatric, and obesity conditions from treating clinicians. Id. at 17. Second,
Crespo claims that apart from untranslated and/or largely illegible medical records from Dr.
Planell-Pabón and Dr. J.R. Robles Irizarry, MD, her record does not contain any medical source
statements from her treating clinicians. Id. at 18. 1 Third, she alleges that medical records from
her first application for supplemental security income and disability insurance benefits in 2009
were not “‘imported’ into the current claim.” Id. at 17-18. Finally, Crespo claims that the ALJ
1
Crespo names Dr. Ubaldo Planell-Pabón in reference to the record in question, but it appears to have been signed
by Dr. Yaralin Planell-Pabón operating out of the same office. Doc. #21-10 at 140. The ALJ also names Ubaldo
instead of Yaralin in reference to the record. Doc. #21-3 at 35. Any error in naming the physician was immaterial.
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failed to gather records of LCSW Alex Pino’s treatment of Crespo. Id. at 19. 2 For the reasons
discussed below, I do not agree that the ALJ failed to develop the record.
It is well established that “[t]he ALJ, unlike a judge in a trial, must [himself]
affirmatively develop the record” in light of “the essentially non-adversarial nature of a benefits
proceeding.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). The ALJ has a duty “to
investigate and develop the facts and develop the arguments both for and against the granting of
benefits.” Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011). But the duty to
develop the record is not limitless. An ALJ has no duty to develop a history outside the relevant
period unless there are “obvious gaps or inconsistencies” in the record. See O’Connell v.
Colvin, 558 Fed. App’x 63, 64 (2d Cir. 2014) (citing Rosa, 168 F.3d at 79 n.5). For applications
for disability insurance benefits, as here, the relevant period is the alleged disability onset date to
the date last insured. See 20 C.F.R. §§ 404.1512(b)(1), 404.1512(b)(1)(ii).
That the ALJ did not obtain various function-by-function assessments and medical source
statements was not legal error. The question is not whether the ALJ obtained such assessments or
statements from any particular clinician or as to any particular condition, as Crespo contends.
Rather, a medical source statement is not necessarily required to fully develop the record where
“the record contains sufficient evidence from which an ALJ can assess the [claimant’s] residual
functional capacity.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir. 2013).
Likewise, “remand is not necessary merely because an explicit function-by-function analysis was
not performed.” Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
Accordingly, the Second Circuit found that an ALJ was not obligated to further develop
the record where it contained a partially relied-upon opinion from a consultative examiner and
2
Crespo requested records from Alex Pena. Doc. #21-6 at 5, 19-20. But APRN Latorre refers to Alex Pino in his
notes. Doc. #21-4 at 2, 5, 9. I take it that these are the same person.
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the treatment notes from the claimant’s doctors. See Pellam v. Astrue, 508 F. App’x 87, 90 (2d
Cir. 2013). So too the Second Circuit has declined to find error where an ALJ disregarded the
treating physician’s opinion—the only treating source opinion—and made an RFC determination
based in part on the treating source’s notes, which contained descriptions of the claimant’s
symptoms and contemporaneous medical assessments sufficient to assess claimant’s ability to
perform sustained gainful activity. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8-9 (2d
Cir. 2017).
Here, there was sufficient evidence in the record from which the ALJ could assess
Crespo’s RFC: 400 pages of medical records, including treating APRN and physician’s notes; a
consultative examiner’s report; non-consultative examinations from the state agency; and
Crespo’s testimony. To the extent that Crespo’s claims are contesting the RFC assessment itself,
that argument goes to the substantiality of the evidence rather than the sufficiency of the record.
See Morris v. Berryhill, 721 F. App’x 25, 28 (2d Cir. 2018) (applying the substantial evidence
test to ALJ’s decision after determining sufficiency of the record).
Crespo further contests the sufficiency of the record because the statements of treating
physicians Dr. Planell-Pabón and Dr. Robles Irizarry were untranslated, and Dr. Plannel-Pabón’s
were largely illegible. Generally, it is the ALJ’s responsibility to clarify or supplement the record
where important information is illegible. See Minnifield v. Berryhill, 2018 WL 4380979, at *7
(D. Conn. 2018) (collecting cases). This Court has found that sparse and illegible records from
“key sources” during the relevant period may provide grounds for remand. See Annunziato v.
Berryhill, 2019 WL 156934, at *3 (D. Conn. 2019) (citing Hilsdorf v. Comm’r of Soc. Sec., 724
F. Supp. 2d 330, 345 (E.D.N.Y. 2010) (finding “very significant gaps” in the record given the
“complete absence” of contemporaneous medical evidence from treating physicians)). But an
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ALJ is under no obligation to fetch records that do not exist or are not significant. See Morris,
721 F. App’x at 28 (record sufficient where “no indication that [missing records] contain
significant information” and “[i]t is not even clear that any records are actually missing.”).
Here, the relevant period for establishing disability is from July 20, 2012 (the alleged
disability onset date) through September 30, 2013 (the date last insured). Although treatment
records from outside that period may be relevant to the extent that they shed light on the
claimant’s condition during the period, such treatment records have less probative value because
it is uncertain whether a claimant’s condition before or after the relevant time period reflects the
claimant’s condition during the relevant time period.
Legible parts from both physicians’ statements make clear that they were made and
mostly concerned Crespo’s condition outside the relevant period. Crespo had not visited Dr.
Robles Irizarry from October 2010 to February 2014, roughly two years before and five months
after the relevant period, respectively. Doc. #21-10 at 154. Likewise, 22 of 25 responses in Dr.
Plannel-Pabón’s statement concerned Crespo’s condition in 2014, which was after the relevant
period. Id. at 138-40. The first and third responses are the only two that specifically reference the
relevant period, namely an initial examination on November 26, 2012, and subsequent findings
on December 11, 2012. Id. at 138. The record does not contain any medical records within those
two dates. Rather, only one of 33 pages of Dr. Plannel-Pabón’s records appears to be from the
relevant period: a January 2013 progress note that is mostly illegible with a roughly ten-word
assessment, two-word diagnosis, and similarly short prescription. Doc. #21-10 at 160. 3
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The document either is from January 2013 and out of sequential order, or in sequential order and, given preceding
and subsequent notes, from the period between October and December 2013. Doc. #21-10 at 159-61. Nonetheless, I
consider the prospect that it originated from the relevant period.
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It is not clear that records from Dr. Plannel-Pabón in November and December 2012
actually exist. The agency twice requested and received records from Dr. Plannel-Pabón, Doc.
#21-6 at 4, 17-18, and the record contains treatment notes from December 2010 to July 2014,
Doc. #21-10 at 157-89, the period in which any 2012 notes would be found. Crespo nowhere
alleges that there actually are missing records from Dr. Plannel-Pabón. By Crespo’s own
account, Dr. Planell-Pabón began treating her on October 24, 2013—roughly one month after the
end of the relevant period. Doc. #35-1 at 19 n.34. Though this recollection likely was error given
the November and December 2012 references discussed above, it serves to illustrate that Crespo
has never complained of missing records from Dr. Plannel-Pabón.
Even if there are records from 2012, Crespo has not said, and the record does not show,
why they or the January 2013 note would be significant. See Velazquez v. Berryhill, 2019 WL
1915627, at *6 (D. Conn. 2019) (claimant did not meet her burden of demonstrating significance
where record did not show unobtained APRN opinion would be more limiting than or credited
by ALJ). In fact, the record shows otherwise. In Dr. Plannel-Pabón’s roughly ten-word remark
on Crespo’s history in her 2014 statement, she appears to mention fibromyalgia, depression, and
chronic obstructive pulmonary disease (COPD). Doc. #21-10 at 138. The ALJ listed
fibromyalgia and depressive disorder as severe impairments, Doc. #21-3 at 30, and
acknowledged Crespo’s COPD symptoms, id. at 33. The January 2013 note appears to provide
only a single diagnosis: pulmonary disease, which COPD covers. Neither Crespo nor the record
indicate that the 2012 records are any different from the January 2013 one—nothing more than
“routine check-up and progress notes.” Cf. Morris, 721 Fed. App’x at 28. Without more from
either Crespo or the record, I cannot find the record insufficient on these grounds.
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Crespo also alleges that the ALJ erred in not “import[ing]” her medical records from her
first application for benefits. But that claim was denied on July 19, 2012, Doc. #21-3 at 188, so
any accompanying records precede the relevant period and are of diminished significance.
Finally, Crespo claims that the ALJ erred in not gathering records of LCSW Alex Pino’s
treatment of Crespo. Crespo informed the agency in January 2014 that her first visit to Pino was
in June 2012, before the relevant period, and her last visit was sometime in 2013, possibly during
the relevant period. Doc. #21-9 at 11. This is consistent with APRN Latorre’s notes in July and
September 2013 that Crespo “has been” seeing Pino for treatment. Doc. #21-4 at 2, 9. The
agency requested evidence from Pino at the initial and reconsideration levels. Doc. #21-6 at 5,
20. In a letter to Crespo, the agency said that it received Pino’s report on October 17, 2014. Doc.
#21-7 at 12. But there are no medical records or opinions from Pino in the administrative record.
Again, Crespo has not indicated in her motion—or anywhere in the record—whether
Pino actually has treatment notes from the relevant period. Cf. Duprey v. Berryhill, 2018 WL
1871451, at *10 (D. Conn. 2018). On the contrary, APRN Latorre noted in September 2013 that
Crespo “missed [her] last [appointment]” with Pino. Doc. #21-4 at 2. Even if there were
treatment notes from Pino, Crespo has not given any reason why they would have changed the
ALJ’s decision. LCSWs are not “acceptable medical sources” and so cannot be considered
“treating sources” whose opinions are entitled to controlling weight. 20 C.F.R. §§ 404.1502(a);
404.1527(a)(2), (c).
In short, I conclude that the ALJ satisfied his obligation to develop the record in this case.
Crespo has not shown the absence of meaningful records. To the extent that records are alleged
to be missing, most of these records concern treatment outside the relevant time period and for
which there is good reason to doubt their significance.
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The ALJ’s Step Two and Three analyses
Crespo claims that the ALJ erred at Step Two by failing to find that her alleged obesity,
lower extremity dysfunction/pain, and cervical disc protrusions/stenosis were severe
impairments. Doc. #35-1 at 24-25. Crespo also alleges that the ALJ erred at Step Three by not
considering her impairments under paragraphs B and D of listing 14.09 in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Id. at 27-28. I reject both claims.
An ALJ does not commit reversible error where substantial evidence supports a finding
that an impairment is non-severe. See Meadors v. Astrue, 370 F. App’x 179, 182 (2d Cir. 2010).
Here, substantial evidence supports the ALJ’s finding that Crespo’s three alleged impairments
were non-severe. An impairment is non-severe if “it does not significantly limit your physical . . .
ability to do basic work activities,” such as walking, standing, or sitting. 20 C.F.R. § 416.922.
Apparently in error, Crespo cites to the results of an endoscopy to support her argument—
something not obviously related to the alleged impairments. Doc. 35-1 at 24 (citing Doc. #21-4
at 104-06). Crespo’s only other reference to the record is to results from MRIs of her lumbar
spine taken in July and August 2013. Doc. #35-1 at 26 (citing Doc. #21-5 at 42, Doc. #21-10 at
189). Both showed severe stenosis at L4-5 but otherwise stable, mild, or unremarkable results.
Even then, the question is not whether a condition is medically classified as “severe,” but
whether it meets the regulatory definition.
The ALJ noted “the lack of findings regarding reduced upper body strength” and
evidence of “use of a walker or cane or other assistive device” during the relevant period. Doc.
#21-3 at 34. Indeed, Crespo admitted at the hearing that she only started using a walker in 2015,
and could lift 10 or 15 pounds in 2013. Doc. #21-3 at 52, 62.
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Likewise, Crespo’s obesity is little mentioned in the record, and when it is, it supports the
ALJ’s finding. APRN Latorre noted in February 2012 that Crespo appeared “[n]ormal – [o]bese,
well [d]eveloped, well nourished, in no acute distress.” Doc. #21-4 at 34. Another APRN, Luis
Rojas, noted in May 2012 that she appeared “[i]n no acute distress ([o]bese).” Doc. #21-4 at 41.
Crespo also testified at the hearing that she lost 40-50 pounds over the previous six months. Doc.
#21-3 at 51. This too substantially supports a finding of non-severity. Crespo’s allegation that the
ALJ did not consider how obesity contributes to mental impairments like her depression is
unfounded; he expressly listed anxiety and depressive disorders as severe impairments. Doc.
#21-3 at 30.
As to lower extremity pain, emergency department physician Dr. Jeffrey R. Herman,
MD, found in July 2012 that Crespo had “right lower extremity dull aching,” but “[t]he severity
of the symptoms is moderate.” Doc. #21-5 at 8. In visits to APRN Latorre from January to
September 2013, Crespo’s reported pain level varied unpredictably from a minimum of 0 to a
maximum of 7 out of 10. Doc. #21-4 at 4, 7, 11, 15, 19, 24, 28, 33. An ALJ may exercise
discretion in weighing the credibility of a claimant’s reports of pain in light of such evidence in
the record. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam). Again, the ALJ’s
finding of non-severity is supported by substantial evidence.
An ALJ also does not commit reversible error when he fails to explicitly discuss a listing,
so long as his “general conclusion” is supported by substantial evidence. See Solis v. Berryhill,
692 F. App’x 46, 48 (2d Cir. 2017). Here too, substantial evidence supports the ALJ’s express
determination that Crespo’s impairments did not meet the criteria under listing 14.09. Doc. #21-3
at 30. Paragraphs B and D require, in part, “at least two” of “severe fatigue, fever, malaise, or
involuntary weight loss.” The ALJ acknowledged Crespo’s fatigue, Doc. #21-3 at 34, but there is
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no evidence she suffered any of the other symptoms during the relevant period. Crespo was
regularly prescribed “fever” medication for pain but not for a fever, and APRN Latorre found no
fever in May and June 2013 even when he prescribed such medications. Doc. #21-4 at 13, 17.
Any mention of malaise in the record, all outside the relevant period, was negative. Doc. #21-4 at
131, 150; Doc. #21-5 at 12, 32; Doc. #21-10 at 13. Claimant alleges obesity, not involuntary
weight loss. Thus, substantial evidence supports a non-finding under paragraphs B and D.
Absent any other argument that the impairments not found to be severe would have met
or medically equaled the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1, I conclude that
the analyses at Steps Two and Three were supported by substantial evidence and that there
otherwise was no error here that requires remand, because the ALJ identified severe impairments
at Step Two, considered Crespo’s impairments “singly and in combination” in formulating the
RFC, Doc. #21-1 at 35, and otherwise proceeded to evaluate Crespo’s claim through the
sequential evaluation process. See Woodmancy v. Colvin, 577 Fed. App’x. 72, 74 n.1 (2d Cir.
2014); Stanton v. Astrue, 370 Fed. App’x. 231, 233 n.1 (2d Cir. 2010).
The ALJ’s evaluation of fibromyalgia, obesity, and chronic pain
Crespo further alleges that the ALJ inadequately evaluated, alone and in combination
with her other impairments, her fibromyalgia, Doc. #35-1 at 28-29; obesity, id. at 30-31; and
chronic pain, id. at 32-33. For substantially the same reasons discussed above, I reject this claim.
Again, substantial evidence in the record reflects that Crespo’s obesity was not a severe
impairment. Crespo does not allege, and it is not clear from the record, why her obesity would
preclude her from light work. Crespo’s arguments as to her fibromyalgia and chronic pain
primarily go to the subjectivity of pain, but an ALJ is not bound by a claimant’s own pain
assessments; he may use his discretion to assess its severity in light of all the evidence.
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The ALJ acknowledged Crespo’s pain, but found that her statements about its “intensity,
persistence and limiting effects” inconsistent with the medical and other evidence in the record.
Doc. #21-3 at 33-34. At her hearing, Crespo described having pain since 2000 or 2001, but for
many years afterward “worked two jobs sometimes at the same time,” would “go pick up [her]
kids,” and was “always working and running around with [her] kids.” Doc. #21-3 at 57-58. She
stated that her pain level “was always on an eight, nine, ten,” id. at 58, which clearly contradicts
the levels she reported to APRN Latorre during the relevant period. Despite this pain, Crespo
“wasn’t going to the doctor to figure out what was wrong with [her]” until it reached a certain
point. Id. at 58. Crespo’s testimony, combined with the varying pain levels reported to APRN
Latorre during the relevant period, constitutes substantial evidence for the ALJ’s determination
as to her pain. Cf. Reynolds v. Colvin, 570 F. App’x 45, 49 (2d Cir. 2014) (failure to seek
treatment despite alleged constant pain and physician’s notes showing pain level variation over
time were substantial evidence for not crediting claimant’s debilitating pain testimony).
The ALJ also acknowledged Crespo’s mental fatigue—the “fibro fog” alleged to be
symptomatic of her fibromyalgia, Doc. #21-3 at 77-80—but again found her statements about its
limiting effects inconsistent with the evidence in the record. Doc. #21-3 at 33-34. It was alleged
during the hearing that Crespo began suffering from fatigue after her mother died in 2001 and
that things are confusing to her some days and not others. Id. at 80. But as discussed above,
despite this fatigue, Crespo testified that she worked multiple jobs and cared for her children for
many years since then. Discussions of Crespo’s memory in the record generally fall outside the
relevant period, but APRN Calder noted in March 2011 that Crespo had “good” memory, Doc.
#21-10 at 20, and Dr. Herbert Reiher, MD, found in November 2011 “[n]o evidence of impaired
judgment or significant memory impairment,” Doc. #21-11 at 172. The evidence adduced at the
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hearing, and the observations of APRN Calder and Dr. Reiher, are substantial evidence for the
ALJ’s determination as to her fibromyalgia-related cognitive impairments. Cf. Watson v.
Berryhill, 732 F. App’x 48, 53 (2d Cir. 2018) (treatment notes showing inter alia good memory
and coherent thought processes were substantial evidence for only partially crediting claimant’s
debilitating fatigue testimony).
I conclude that the ALJ’s evaluations of Crespo’s alleged fibromyalgia, obesity, and
chronic pain were supported by substantial evidence.
The ALJ’s Step Five analysis
Finally, Crespo claims that the ALJ’s Step Five analysis was invalid because the ALJ
relied on the testimony of a vocational witness who did not “identify the sources of her job
incidence testimony.” Doc. #35-1 at 34. The vocational expert provided job-numbers testimony
while citing only the Dictionary of Occupation Titles, which merely defines types of jobs and
does not speak to how many are available. See Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443,
446 (2d Cir. 2012). The expert otherwise recited specific job numbers for three particular
positions without identifying the source of these numbers (e.g., “price marker . . . [n]ationally
about 140,000 jobs”). Doc. #21-3 at 90. The ALJ afforded Crespo’s representative an
opportunity to examine the vocational expert, and the representative did so but did not challenge
the vocational expert’s testimony about job numbers or ask the vocational expert for the source
of the job numbers. Doc. #21-3 at 92-94. Nor did the representative challenge the qualifications
of the expert, who submitted an experience- and skills-laden resume. Doc. #21-9 at 57-58.
In light of these circumstances, Crespo’s argument boils down to a claim that—even in
the absence of any challenge or inquiry of the vocational expert about what sources the expert
consulted—the substantial evidence standard is not satisfied as a matter of law if an ALJ relies
15
on job-numbers data from a vocational expert who does not state what source or sources she
relied on to arrive at these numbers. I do not agree.
To begin with, I do not understand this specific issue to have been resolved by the
Second Circuit. In McIntyre v. Colvin, 758 F.3d 146 (2d. Cir. 2014), the Second Circuit noted in
passing that “a vocational expert is not required to identify with specificity the figures or sources
supporting his conclusion, at least where he identified the sources generally.” Id. at 152
(emphasis added). This statement is at best equivocal support for the separate proposition that an
ALJ must elicit from a vocational expert an identification of the sources upon which expert has
relied even where claimant’s representative has not done so.
Indeed, the Second Circuit in McIntyre went on to say that “[i]n the circumstances
presented here, we conclude that the vocational expert was not required to articulate a more
specific basis for his opinion, and the ALJ reasonably credited this testimony, which was given
on the basis of the expert’s professional experience and clinical judgment, and which was not
undermined by any evidence in the record.” Ibid. Crespo here does not question the experience
and judgment of the vocational expert in this case, much less does she suggest any evidence that
would undermine the expert’s job-numbers data. 4
More generally still, the substantial evidence standard does not foreclose an ALJ from
relying on the expertise of a vocational expert and to do so without requiring the expert to lay a
further foundation about the sources that the expert has consulted in order to arrive at the
expert’s job-number information. “A [vocational expert]’s recognized expertise provides the
4
Also distinguishable is the Second Circuit’s more recent decision in as Lockwood v. Comm’r of Soc. Sec. Admin.,
914 F.3d 87 (2d Cir. 2019), in which the court of appeals concluded that the ALJ erred by relying on a vocational
expert’s testimony where the testimony seemed to conflict with the Dictionary of Occupational Titles. Here, Crespo
points to no such conflict of evidence but simply faults the ALJ for failing to elicit from the expert the source of the
expert’s job-number information.
16
necessary foundation for his or her testimony. Thus, no additional foundation is required.”
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
The Supreme Court has recently ruled in a manner that further undermines Crespo’s
argument. In Biestek v. Berryhill, 139 S. Ct. 1148 (2019), the Supreme Court confronted the
issue whether substantial evidence existed to support an ALJ’s decision that relied on the
testimony of a vocational expert about national job numbers in circumstances where the ALJ
refused the claimant’s request to require the expert to disclose the underlying data on which the
expert relied. At the outset, the Supreme Court noted that, in contrast to federal court
proceedings in which “an expert witness must produce all data she has considered in reaching
her conclusions,” there is “no similar requirement [that] applies in SSA hearings,” because
“Congress intended those proceedings to be informal and provided that the strict rules of
evidence, applicable in the courtroom, are not to apply.” Id. at 1154 (internal quotations
omitted).
The Supreme Court went on to conclude that the substantial evidence test did not
categorically foreclose an ALJ from relying on a vocational expert’s opinion about the number of
jobs available in the national economy even if the vocational expert declined upon request to
disclose the data underlying the expert’s testimony. Id. at 1155-57. The Supreme Court instead
recognized the need for a “case-by-case” approach in which the substantial evidence threshold
would not be met only “if the expert has no good reason to keep the data private and her
testimony lacks other markers of reliability.” Id. at 1157.
The Supreme Court’s ruling in Biestek weighs against adopting the type of categorical
rule that Crespo urges here. If the substantial evidence requirement does not categorically require
a vocational expert to disclose her job-numbers data, even when specifically requested, neither
17
does it require a vocational expert to disclose the general source of her jobs-number data in the
absence of any request. Adopting a case-by-case approach, I conclude that in the circumstances
of this case, the vocational expert’s failure to identify the sources of her job-numbers data does
not dispel the existence of substantial evidence for the ALJ’s conclusion that Crespo could
perform a substantial number of jobs that existed in the national economy. See Brault, 683 F.3d
at 449 (noting that “[a]s deferential as the ‘substantial evidence’ standard is, it is also extremely
flexible” and that “[i]t gives federal courts the freedom to take a case-specific, comprehensive
view of the administrative proceedings, weighing all the evidence to determine whether it was
‘substantial’”). 5
Crespo also takes issue with some of the ALJ’s hypotheticals posed to the vocational
expert. 6 An ALJ may rely on a vocational expert’s response to a hypothetical where the
assumptions contained therein are supported by substantial evidence and accurately reflect the
claimant’s limitations. See McIntyre, 758 F.3d at 151. Crespo contests that the ALJ did not
incorporate in his hypotheticals her moderate difficulties in concentration, persistence, and pace.
Doc. #35-1 at 38-39. This is mere semantics. The ALJ included in his hypotheticals that Crespo
could “sustain concentration, pace and persistence for two hour segments,” Doc. #21-3 at 89,
which is a moderate limitation, see Cote v. Berryhill, 2018 WL 4092068, at *26 (D. Conn. 2018).
Lastly, Crespo argues that the assumptions in one of the ALJ’s hypotheticals—that
Crespo can stand/walk for up to four hours a day, that only overhead reaching is restricted, and
5
There are cases in the District of Connecticut that have remanded for failure of a vocational expert to identify the
sources upon which the expert relied to furnish job-numbers data. See, e.g, Martinez v. Berryhill, 2019 WL
1199393, at *18-*19 (D. Conn. 2019); Hernandez v. Berryhill, 2018 WL 1532609, at *14-*15 (D. Conn. 2018).
Because these decisions pre-date the Supreme Court’s ruling in Biestek v. Berryhill, supra, I decline to rely on them.
6
Confusingly, Crespo briefly mentions in this part of her motion briefing that the ALJ “does not appear to have
given any weight to the opinion of any treating physician or clinician,” then proceeds to quote long passages from
caselaw without context. Doc. #35-1 at 36. At the hearing on both parties’ motions, the Court asked Crespo’s
counsel whether Crespo was raising a violation of the treating physician rule. Counsel replied Crespo was not.
Therefore, I do not address it.
18
that she can lift up to 20 pounds—were not supported by substantial evidence. Doc. #35-1 at 38.
In fact, the ALJ did not ask the expert to assume Crespo could lift up to 20 pounds, but rather
that she could do “light work.” Doc. #21-3 at 89. “Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds,” and a
claimant need only have the ability to do “substantially” all these activities. 20 C.F.R.
§ 404.1567(b) (emphases added). I have already noted Crespo’s testimony that she could lift 1015 pounds in 2013, which light work encompasses. See Johnson v. Colvin, 669 F. App’x 44, 46
(2d Cir. 2016); Bautista v. Berryhill, 2019 WL 1594359, at *14 (D. Conn. 2019).
I have also noted that Crespo did not start using a walker until 2015, as well as the
significant variations in her reported pain levels during the relevant period. Additionally, Dr.
Reiher reported that she did not start using a cane until 2014. Doc. #21-11 at 169. And in June
2011, Crespo underwent a walking test that included walking two laps and climbing two flights
of stairs; she reported only “[s]light” breathing difficulty afterwards, and her pulmonary
physicians found she completed it “with best effort.” Doc. #21-10 at 7-8. This is substantial
evidence for the ALJ’s finding as to her walking/standing ability during the relevant period.
Lastly, although it is unclear where in the evidence the ALJ adduced a limitation on overhead
reaching, it is also unclear that there was any limitation with reaching in general during the
relevant period. A finding that is more restrictive than the evidence supports favors the claimant,
see Malloy v. Astrue, 2010 WL 7865083, at *17 (D. Conn. 2010), and is not reversible error.
All in all, I conclude that the ALJ’s Step Five analysis was supported by substantial
evidence and that the ALJ otherwise did not make any reversible errors.
CONCLUSION
For the foregoing reasons, the motion to reverse the decision of the Commissioner
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(Doc. #31) is DENIED, and the motion to affirm the decision of the Commissioner (Doc. #35) is
GRANTED. The Clerk of Court shall close this case.
Dated at New Haven this 25th day of September 2019.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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