Torregrosa v. Commissioner of Social Secuity

Filing 22

MEMORANDUM AND ORDER: For the reasons stated herein, Torregrosa's motion for judgment on the pleadings (Doc.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.Ordered by Judge Roslynn R. Mauskopf on 3/17/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LUIS TORREGROSA,
Plaintiff,

MEMORANDUM AND ORDER
15-CV-2257 .(RRM)

-againstCAROLYN W . COLVIN, ACTING
COMM ISS IONER OF SOCIAL SECUIRTY,
Defendant.

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ROSL YNN R. MAUSKOPF, United States District Judge.
Plaintiff Luis Torregrosa brings this action against defendant Carolyn Co lvin, Acting
Comm iss ioner of the Social Security Administration (the "Commissioner"), pursuant to 42
U.S.C. §§ 423(d)(l ), (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
Securi ty Act. Torregrosa maintai ns 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 fo r judgment on the pleadings pursuant to Federal
Rule of Civil Procedure ("Rule") 12(c). (Def.'s 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.
BACKGROUND
I.

Procedural History

Torregrosa filed an application for DIB on June 20, 2012, (Admin. R. (Doc. No. 20) at
120) 1 all eging disability as of December 20, 201 1, due to diabetes, dislocated shoulder

1

For ease of reference, c itations to the Admin istrati ve Record uti lize the Electronic Case Filing System ("ECF")
pagination.

ligaments, an inflamed prostate, and pain in his joints, back, and knees, (Id. at 98- 105, 124).
The application was denied on September 2 1, 20 12. (Id. at 57-60.) On October 2, 20 12,
Torregrosa requested a hearing before an Administrative Law Judge ("ALJ'') to review his
app lication. (Id. at 61-62.) On October 3, 20 13, ALJ Alan B. Berkowitz held a hearing, at
which Torregrosa, his wife Lucilla Torregrosa, and vocational expert Christina Boardman
testified without counsel. (Id. at 10.) On December 6, 20 13, ALJ Berkowitz decided that
Torregrosa did not qualify for DIB because, while he could no longer perfo rm any past-relevant
work, (id. at 49), Torregrosa was ab le to perform light work as defined in
20 C.F.R. § 404.1567(b). (Id. at 47.) On January 15, 20 14, Torregrosa requested review of the
ALJ's decision by the Social Security Appeals Council. (Id. at 5-7.) On March 20, 20 15, the
Appeals Counsel denied Torregrosa's request fo r revi ew. (Id.) On Apri l 15, 20 15, Torregrosa
commenced this action. (Id. 5- 7; Comp!. (Doc. No. 1).)
II.

Administrative Record
a.

Non-Medical Evidence

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 chi ld ren. (Id. at 15- 16,
141.) On a typical day, he would prepare meals, go on two walks, and watch TV. (Id. at 13738.) 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 20 11 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

2

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 20 11 and
20 12, 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, 20 11 , he could not squat, lift 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 equ ipment as he 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 13436.) 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, 20 12 disability report fi led in connection with this appeal, Torregrosa
alleged that he has been di sabled since December 20, 20 11. (Id. at 124.) He ind icated that he
has diabetes, di slocated 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, swoll en knees, and back pains. (Id. at 2 1- 23.) These pains
occurred approx imately four times per week and occasionally kept him in bed all day. (Id. at
23.) He fu rther testified that he cou ld 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 due to his
considerable pain, Torregrosa had not worked since 20 12. (Id. at 34-35.)

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b.

Medical Evidence Prior to December 20, 2011
i.

Wyckoff Heights Medical Center

From March 2008 to December 2011, Torregrosa repeatedly visited the Emergency
Room of Wyckoff Heights Med ical 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, 20 10, 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 fo r a "sudden onset of [sic]
severe [sic] col icky pain in [hi s] left flank." (Id. at 343, 346, 351.) Torregrosa was diagnosed as
having small non-obsh·ucting kidney stones and was discharged on May 11, 20 11. (Id. at 342.)

ii.

Damadian MRI in Canars ie, P.C.

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
musculotendinous junction supraspinatus tendon with a 2x2 centimeter tendon gap without
tendon restriction. (Id. at 171 , 2 16, 264.) 2

c.

Medical Evidence after December 20, 2011
i.

Wyckoff Heights Medical Center (June 6, 201.2 - June 11, 2012)

Torregrosa was hospitalized at Wyckoff Heights Medical Center for three weeks,
complaining of dehydration with nausea and increased frequency of urination. (Id. at 2 10, 284.)
A radiology report ofTorregrosa 's chest did not show any evidence of pulmonary infi ltration 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

2

Torregrosa underwent surgery to repair this tear in December, 20 12. See Section 11 (b)(iv), infra.

4

I
,I

joint pain in his right shoulder rotator cuff. (Id. at 195.) Furthennore, in a consultant's opinion
dated June 8, 20 12, Dr. Stella Il yayeva 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 functiona l 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.)
ii.

Dr. Vinod Thukral, M.D., Treating Physician (September 12, 2012)

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 j oint pain. (Id. at 22 1.) By Torregrosa' s medical history, Dr. Thukral diagnosed

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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 see an ophthalmologist for decreased visual acuity in his left eye. (Id. at 219.)

iii.

C. Williams, Medical Consultant (September 21, 2012)

On September 21, 20 12, 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 hi s upper extrem ities. (Id.) He could only occasionally climb or
crawl due to hi s 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 w ith the September 2 1, 2012 assessment report. (Id. at

230.)
iv.

Beth Israel Medical Center (December 2012)

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.)

v.

Dr. Ko Latt, M.D., Internal Medicine (June 22, 2013)

On June 22, 2013, Dr. Ko Latt reviewed Torregrosa's abi lity to perform work-related
activities. (Id. at 256-61.) Dr. Latt concluded that Torregrosa could lift or carry up to ten

6

pounds "occasionally," but could never lift more than eleven pounds. 3 (Id. at 256.) Dr. Latt
found that Torregrosa could sit for eight hours, stand for six hours, and walk for two hours
during an eight-hour workday. (Id. at 257.) Dr. Latt found Torregrosa had a limited range of
movement in his right shoulder due to pain and tenderness. (Id.) Regarding Torregrosa's use of
hands and feet, Dr. Latt indicated that Torregrosa's right hand could reach, push and pull
occasionally, finger "frequently,"4 and feel "continuously. " 5 His left hand could reach, push and
pull frequentl y, and handle, finger, and feel continuously. (Id. at 258.) He could control both
feet continuously. (Id.) Torregrosa complained of pain in both shoulders. (Id.)
Torregrosa could climb stairs, ramps, ladders, or scaffo lds, and balance, stoop, kneel,
crouch, or crawl occasionally. (Id. at 259.) No impairment affected Torregrosa' s hearing or
vision. (Id.) Torregrosa could continuously tolerate humid ity, wetness, dust, odors, fumes,
moderate office noise, and pulmonary irritants. (Id. at 260.) He cou ld also occasionally tolerate
unprotected hei ghts, and extreme cold and heat. While To1Tegrosa could operate a motor
vehicle, he could never move mechanical parts or tolerate vibrations. (Id.)
Dr. Latt assessed that Torregrosa could shop, travel, or ambu late without assistance, walk
a block at a reasonable pace on an uneven surface, use standard public transportation, prepare
simple meal s, care for hi s personal hygiene, and handle fi les. (Id. at 26 1.) Dr. Latt noted that the
right rotator cuff surgery still caused Torregrosa pain and limited hi s range of movement. (Id.)
Dr. Latt expected these limitations would last for twelve months. (Id.)

3

For purposes of this matter, " occas ionally" here means very little to one-third of time. (Id. at 256.)

4

For purposes of this maner, " frequently" means from one-third to two-thirds of the time. (Id. at 257.)

5

For purposes of thi s matter, "continuously" means more than two-thirds of th e tim e. (Id.)

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vi.

Wyckoff Heights Medical Center (June 25, 2013)

On June 25, 20 13, 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 flex ion, abduction and internal rotation, and acromioclavicular joint tenderness on the
right shoulder. (Id. )

d.

Medical Evidence Submitted to the Appeals Council
1.

The Brooklyn Hospital Center (July 14, 2014)

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 dextroscoliosis6 and
grade I anterol isthesis of L4 on LS, a sclerotic focus within the L3 vertebral body with a
speck led appearance suggestive of a hemangioma, moderate degenerative end plate osteophytes
at multiple lumbar levels, and moderate intervertebral disc space narrowing at L5/S 1 with milder
intervertebral disc space narrowing at additional lumbar levels. (Id.) The scan also found a
partially calcified moderate di sc bul ge without significant central canal stenosis at L5/S 1, and a
mild disc bulge combined with facet or tlavum hypertrophy, which contributes to mild central
canal stenosis and moderate-severe right and left neural foraminal narrowing. (Id.) The final
report suggested obtaining an MRI for further evaluation. (Id.)

ii.

Wyckoff Heights Medical Center (September 21, 2014)

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 hi s lung, and mild multilevel degenerative

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Dextroscoliosis means scoliosis of the spine with a curvature of the spine to the right.

8

changes of the spine. (Id. at 374- 76.) Dr. Jasmina Jivanov, M.D., suggested further evaluation
with ultrasonography on Torregrosa' s gallbladder. (Id. at 375.) Dr. Ji vanov also noted
Torregrosa's acute pancreatitis, headache, morbid obesity, and uncontrolled diabetes. (Id. at
373.)
e.

Vocational Expert Evidence

Christi na 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. 292.353-0 10),7 which requires medium strength. (Id. at 29.) The ALJ fu rther
asked the VE a hypothetical as to whether an individual, with the same age, educational
background, and work history as Torregrosa, would be able to perform this past work using light
strength . (Id. at 30.) A lthough the VE answered that such an individual could not perform the
same past work as Torregrosa did, she provided examples of what j obs the individual cou ld
perfonn, such as a ticket taker (DOT Code No. 344.667-010) with an estimated 106,860 jobs in
the national economy for those with light strength, and a mail clerk (DOT Code No. 209.687026) with an estimated 102,410 jobs in the national economy. (Id. at 30-31.) However, after
considering the additional limitation of being able to only occasionally reach overhead, the VE
testified that such an individual could not work as a ticket taker. (Id.) That said, an individual
with this additional limitation could work as an order caller (DOT Code No. 209.667-014) with
an estimated 2,808,100 jobs in the national economy. (Id.)

7

The " DOT" numbers refer to the corresponding occupation code in the U.S . Department of Labor, Dictionmy of
Occupational Titles (4th ed ., rev'd 199 1), available at www.oalj .dol.gov/ libdot.htm.

9

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:(!) 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. 249.366-0 I 0) with~
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. 209.567-0 14) 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 454,0 10 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.)

ST AND ARD OF REVIEW
I.

Review of Denial of Social Security Benefits
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 Commi ssioner ' s
determination that a claimant is not di sabled only if the [ALJ's] factua l 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

10

' 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. 201 3)
(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 confli cting 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 ALJ's legal conclusions."
Hilsd01fv. Comm 'r of Soc. Sec., 724 F. Supp. 2d 330, 342 (E.D.N.Y. 2010). Rather, " [w]here an

enor of law has been made that might have affected the disposition of the case . .. [an A LJ ' s]
failure to apply the correct legal standards is grounds fo r reversal. " (Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (internal quotation marks omitted).)
II.

Eligibility Standard for Disability Insurance Benefits

To establi sh eligibility fo r DIB , an applicant must produce medical and other evidence of
hi s disabil ity. 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, wh ich are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques." 42 U.S .C. § 423(d)( l )(A). Thi s 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 . 2 12 (2002). Further, the applicant's medically determinable

impairment must have been of such severity that he is unable to do his previous work or,

11

considering hi s 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 analsyis:
[I] First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity.
[2] If he is not, the Commissioner next considers whether the claimant has a
"severe impairment" which significantly limits his physical or mental abil ity
to do basic work activ ities.
[3] If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which is
listed in Appendix I of the regulations. If the claimant has such an
impai rment, the Commissioner will consider him per se disabled.
[4] Assuming the claimant does not have a listed impairment, the fo urth
inqu iry is whether, despite the claimant's severe impai rment, he has the
residual functional capacity to perform his past work.
[5] Finally, if the claimant is unable to perform his past work, the
Commissioner then determines whether there is other work which the
claimant could perform.

Talavera v. As/rue, 697 F.Jd 145 , 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.Jd
I 177, I I 79-80 (2d Cir. I 998)); see also Poupore v. Astrue, 566 F.Jd 303, 306 (2d Cir. 2009); 20
C.F.R. § 404. 1520. The cla imant 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.Jd at 151.

DISCUSSION

I.

The ALJ Properly Followed the Five-Step Analysis
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. (Adm in. R. at 45.)

12

Second, the ALJ fo und that To1Tegrosa' s obesity, diabetes, shoulder dislocation, and
status-post torn rotator cuff surgery satisfi ed the "severe impairment cond ition" of step two. (Id.)
Third, the ALJ 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 res idual functional capacity (RFC), which is the most he can do despite his
impairments. Specifically, he fo und 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. § 404.1 529.
Fourth, the ALJ concluded that Torregrosa had past relevant medium-skilled work as a
truck dri ver (DOT. Code No. 292.353 -010). (Id. at 49.) However, the ALJ 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.)
II.

Substantial Evidence Supports the ALJ's RFC Determination 8
The responsibility for determining a petitioner's RFC rests so lely with the ALJ. See 20

C.F.R. §§ 404 .1 527(e)(2), 404.1 546. In determining the RFC, the ALJ must consider all medical
opinions together with other rel evant evidence. 20 C.F.R. § 404.1527. Through this process, it
is for the ALJ to resolve genuine conflicts in the evidence. Veino v. Barnhart, 3 12 F.3d 578, 588

8

In addition to the record developed before the ALJ at trial, Torregrosa submitted medical evidence directly to the
Appeals Council. Where a claimant submits additional evidence to the Appeals Council, in order for that evidence
to have any bearing on the Council' s decision, it must be "( l) new and not merely cumulative of what is already in
the record, and that it is (2) material, that is, both relevant to the claimant's condition during the ti me period for
which benefits were denied and probati ve." Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal citations
and quotation marks omitted). Here, nothing in the evidence suggests - nor does Torregrosa argue - any change to
the balance of the ALJ's RFC calculus. (See generally Pl. Mot.)

13

(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 .9
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. l 529(b); accord Gallagher v. Schweiker, 697 F.2d
82, 84 (2d Cir. 1983). In making Torregrosa's RFC determination, the ALJ 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 full 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.)

9

Torregrosa argues that the ALJ failed to fully develop the medical record in making his RFC determination. See
(Pl. 's Mem. at 11 - 14); laMay v. Comm 'r ofSoc. Sec., 562 F.3d 503, 508-509 (2d Cir. 2004) (" [The Social Security
ALJ, unlike a j udge in a trial, must on behalfof all claimants ... affirmatively develop the record .. .");Bulls v.
Barnhart, 388 F.3 d 377, 386 (2d Cir. 2004) ("[I]t is the ALJ 's duty to investigate and develop the facts and develop
the arguments both for and against the granting of benefits."). Torregrosa asserts that the ALJ breached this duty by
failing to contact the physicians who treated Torregrosa at the Wycoff Heights Medical Center to corroborate the
extent of his impairments. (Pl. Mot. at 12.) However, " [w]hile the ALJ must supplement the record through his
own initiatives when the record is incomplete or inadequate, this burden does not attach when the record is ample."
Valoy v. Barnhart, 02-CV-8955 (HB), 2004 WL 439424, at *7 (S.D.N.Y. Mar. 9, 2004); accord Perez v. Chafer, 77
F.3d 4 1, 48 (2d Cir. N.Y. 1996) (finding that the ALJ need not seek out additional medical information where there
is no indication in the record that the relevant medical evidence is inconclusive); Low1y v. Astrue, 474 Fed. Appx.
801 , 804 (2d Cir. N.Y. 2012) ("Although an ALJ has an affirmative duty to develop the administrative record even
when a claimant is represented by counsel 'where there are no obvious gaps in the administrative record, and where
the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information
in advance of rejecting a benefits claim."') (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999). Here, as
evidenced in part by the ALJ 's robust comparison of the medical evidence offered by Torregrosa's internist and the
consultative physician, it is clear that the "record contained sufficient evidence to make a disability determination,
and the ALJ was under no obligation to seek additional treatment records. Therefore, the ALJ properly satisfied his
duty to develop the record." Martinez-Paulino v. Astrne, I l-CV-5485 (RPP), 20 12 WL 3564140, at * 14 (S.O.N.Y.
Aug. 20, 20 12).

14

Dr. Thukral found that Torregrosa had no limi tations in sitting or standing, and only moderate
limitations for pulling, pushing, lifting, 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 properl y 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. 10 (Id. at 230.)
In addition, Torregrosa himself stated that he could lift more than ten pounds. (Id. at 24.) Thus,
the record support's the ALJ's decision to credit the testimony of Dr. Thukral over Dr. Latt with
respect to Torregrosa's ability to lift over ten pounds and perform more than sedentary work. 11

See Veino, 3 12 F.3d at 588; Schaal, 134 F.3d at 504.

III.

The ALJ Correctly Assessed Torregrosa's Credibility
A credibility finding by an ALJ is entitled to deference by a reviewing court "because

[the ALJ] heard plaintiff s testimony and observed [plaintiffs] demeanor." Gernavage v.

Shala/a, 882 F. Supp. 1413, 1419 n.6 (S.D .N.Y. 1995). The ALJ must analyze the credibility of
a claimant as to hi s symptoms through a two-step test. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010). The ALJ must first decide "whether the claimant suffers from a medically determinable

10
Sedentary work involves lifting up to ten pounds at a time, as well as occasional standing and walking.
20 C.F.R.§ 404. I 567(a).
11

Under the "treating physician rule" an ALJ should generally "give more weight to opinions from treating
sources . ... " 20 C. F.R. § 404. I 527(c)(2). Here, Torregrosa makes only passing mention of thi s rule to argue that
the ALJ did not fu lfill his duty to independently develop the record. (See Pl. 's Mot. at 13-14); see also FN 9, supra.
Torregrosa does not argue that the treating physician rule required the ALJ to weigh the evidence in any particular
way. (See generally Pl. 's Mot.) In any case, when a treating physician's opinion is unsupported, or when it is
inconsistent with other substantial evidence, the ALJ is not required to afford deference to that opinion and may use
his discretion in weighing the medical evidence as a whole. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004). In the instant case, the ALJ weighed "the evidence as a whole" and properly fou nd more support in the
record for Dr. Thukral 's medical opinion than Dr. Latt's. Id. ; (Adm in. R. at 220-2 1, 256.)
15

-

..
impairment that could reasonably be expected to produce the symptoms alleged." Id. (citing 20
C.F.R. § 404.1529(b)). Next, if the ALJ 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. l 529(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 10138 12, at *5 (N.D.N .Y. Mar. 6, 2015). These seven objective factors are:
(i) [the] claimant's daily activities; (ii) [the] location, duration[,] frequency,
and intensity of [the] claimant's pain or other symptoms; (ii i) precipitating
and aggravating factors; (iv) [the] type, dosage, effectiveness, and side effects
of any medication .. . taken to alleviate [the claimant' s] pain or other
symptoms; (v) treatment, other than medication, [the] claimant receives or has
received for relief of her pain or other symptoms; (vi) measures [the] claimant
uses or has used to relieve pain or other symptoms; and (vii) other factors
concerning [the] claimant's funct ional limitations and restrictions due to pain
or other symptoms.

Id. at *5 n.22 (citing 20 C.F.R. §§ 404.1529(c), 4 16.929(c)). "While it is ' not sufficient for the
ALJ to make a single, conclusory statement that' the c laimant is not cred ible or simply recite the
relevant factors, remand is not required where 'the evidence ofrecord permits [the Court] to
glean the rationale of the ALJ's [credibility] decision. " ' Cichocki v. Astrue, 53 4 F. App'x. 7 1, 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] credibi lity determination does not require
remand." Id.
Here, the ALJ fo llowed the two-step process in considering Torregrosa's symptoms.
(Admin . R . at 48-49.) First, the ALJ found that Torregrosa suffers from a medically cognizable

16

impairment. (Id.) However, at step two, the ALJ found that Torregrosa was not entirely credible
with respect to his symptoms. (Id.) T he ALJ compared Torregrosa's testimony regarding his
pai n, 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. l 529(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
220-2 1.)
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 11 8, 122 (2d Cir. 20 12) (" In
our review, we defer to the Commissioner' s resolution of conflicting evidence.").

IV.

Substantial Evidence Supports the ALJ's Finding That Torregrosa Was Capable of
Performing a Significant Number of Jobs in the National Economy
At step fi ve of the disability analysis, the ALJ 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 60 I, 604 (2d Cir. 1986). However, where, as here, a claimant has both exertional and
nonexertional impairments, the ALJ 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 ALJ may rely on a vocational

17

I

•

.

~

expe11 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. 344.677-01 4) with an estimated
l 06,860 jobs in the national economy, or a counter clerk (DOT Code No. 249.366-0 I 0) with an
estimated 432,650 jobs in the national economy. (Admin. R. at 32.) 12 Based on that testimony,
the ALJ concluded that Torregrosa was " capable of making a successful adjustment to other
work that exists in significant numbers in the national economy." (Id. at 51.) That Torregrosa
could perform availab le jobs provides sufficient evidence that "a reasonable mind might accept
as adequate to support" the ALJ's determination. Selian v. As/rue, 708 F.3d 409, 417 (2d Cir.
20 13) (internal quotation marks omitted). As such, the ALJ's conclusion that Torregrosa was not
entitled to DIB is supported by substantial evidence in the record.

CONCLUSION
For the reasons stated herein, Torregrosa's motion for judgment on the pleadings (Doc.
No. 17) is denied, and the Commissioner's motion for judgment on the pleadings (Doc. No. 15)
is granted.
The C lerk of Cou11 is respectfully directed to enter judgment accordingly and close the
case.

12

Pla intiff argues that the ALJ's hypoth etical questions to the VE failed to accurate ly capture Torregrosa's physical
limitat ions because they failed to include "any visual difficulties the Plaintiff had as noted by Dr. Thukral." (Pl.
Mot. at 15) (citing (Adm in . R. at 221 ).) However, Dr. Thukral merely diagnosed Torregrosa w ith "decreased visual
acuity in both eyes due to diabetic retinopathy, by history." (Adm in. R. at 221.) Jn fact, Dr. Thukral assessed
TorTegrosa's vision at "20/20 on a Snellen chart at 20 feet," uncorrected. (Id. at 2 19.) It is not clear how a
hypothetical claimant with 20/20 vision at 20 feet would be prevented from, for example, working as a counter
clerk. (Id. at 32.) As such, fai lure to mention Torregrosa's visual acuity in hypothetical questions to the VE did not
a lter the balance of substantia l evidence in s upport of the ALJ 's RFC assessment.

18

SO ORDERED.

Dated: Brooklyn, New York
7~ 1 7 2017

s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge

19