Martinez v. Commissioner of Social Security

Filing 24

MEMORANDUM AND ORDER: For the reasons set forth above, the Commissioners motion for judgment on the pleadings 19 is granted, and Martinezs cross-motion for judgment on the pleadings 14 is denied. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case. Ordered by Judge Roslynn R. Mauskopf on 3/27/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
ROSEMARY MARTINEZ,
MEMORANDUM AND ORDER
15-CV-3649 (RRM)

Plaintiff,
- against COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Rosemary Martinez brings this action against defendant, the Acting
Commissioner of the Social Security Administration (the “Commissioner”). Martinez seeks
review of the determination of an administrative law judge (“ALJ”) that she is not entitled to
Supplemental Security Income (“SSI”) benefits, pursuant to 42 U.S.C. § 405(g). (Compl. (Doc.
No. 1) at 2–3.) Martinez requests that this Court remand the proceedings on the grounds of legal
error, failure to develop the record, and insubstantial evidence. (Pl.’s Mem. Cross–Mot. (Doc.
No. 15) at 1.) Martinez and the Commissioner have cross-moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). (Pl.’s Cross-Mot. J. (Doc. No. 14); Def.’s
Mot. J. (Doc. No. 19).) For the reasons set forth below, the Commissioner’s motion is granted,
and Martinez’s motion is denied.
BACKGROUND
I.

Procedural History
On February 9, 2012, Martinez filed applications for both Social Security Disability

(“SSD”) and SSI benefits, alleging disability as of January 1, 2010, due to bipolar disorder,
depression, post-traumatic stress disorder (“PTSD”), obesity, essential hypertension, lumbosacral
spondylosis, and abnormal liver function. (Admin. R. (Doc. No. 22) at 213–14, 239, 262.)

Martinez’s applications for SSD and SSI benefits were denied.1 The Notice of Disapproved
Claim for SSI benefits states that “the reports did not show any condition of a nature that would
prevent [Martinez] from working. We realize that at present [Martinez is] unable to perform
certain kinds of work. But based on [her] age of 49 years, [her] education of 12 years, and [her]
experience, [she] can perform light work (for example, [she] could lift a maximum of 20 lbs.,
with frequent lifting or carrying of objects weighing up to 10 lbs., or walk or stand for much of
the working day).” (Id. at 124.) In response to this decision, Martinez requested a hearing
before an ALJ. (Id. at 120–28.)
On July 16, 2012, Martinez appeared before ALJ Kieran McCormack, and the hearing
was adjourned to provide Martinez the opportunity to obtain counsel. (Id. at 82–93.) She
appeared with her attorney at a continued hearing on February 20, 2014. (Id. at 20–81.) In a
decision dated March 25, 2014, the ALJ found Martinez not disabled. (Id. at 96–115.) He found
that although Martinez suffered from several impairments – history of asthma, hypertension,
status-post cholecystectomy, radiculopathy, bipolar disorder, and anxiety disorder – and although
Martinez was unable to perform her previous work due to her impairments, “the claimant is
capable of making a successful adjustment to other work that exists in significant numbers in the
national economy.” (Id. at 101, 109–110.) The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied Martinez’s request for review on April 24,
2015. (Id. at 1–6.)
On June 22, 2015, Martinez filed the instant action alleging that the ALJ’s decision “was
erroneous, not supported by substantial evidence on the record and/or contrary to the law.”

Martinez’s application for SSD benefits was denied because she had not worked long enough to be insured. (Id. at
116–19.) The Court has received no indication that Martinez appealed that determination, and the instant action
does not relate to the claim for SSD benefits.
1

2

(Compl. at 3.) The Commissioner maintains that the ALJ’s determination was based upon
proper evaluation of the evidence. (Def.’s Mem. Mot. (Doc. No. 20) at 21–34.) Both Martinez
and the Commissioner have filed motions for judgement on the pleadings. (Pl.’s Cross-Mot. J.;
Def.’s Mot. J.)
II.

Administrative Record
a. Non-Medical Evidence
Martinez was born in 1963, and she has a general equivalency diploma. (Admin. R. at

58–59, 263.) She was self-employed from 2006 to 2009 as a babysitter. (Id. at 32–33, 253.)
Martinez reported that during that time, she also worked for an elderly man, caring for him and
cleaning his house. (Id. at 33.) She reported that in 2009, while doing the latter job, she fell and
hurt her back and legs, and did not work thereafter. (Id. at 33–34, 59.)
In a disability report dated March 12, 2012, Martinez stated that she lived with family in
an apartment. (Id. at 241.) Every day, she took a shower (while seated), watched television, and
read. (Id. at 241, 254.) She sometimes forgot to take her many medications. (Id. at 243.)
Martinez reported that she “fixed” her bed, was “limited” in washing the dishes, and received
help doing laundry, cleaning the bathroom, sweeping, cooking, and food shopping. (Id. at 244.)
She went out only for doctor appointments, and she never went out alone because she was
worried that she might fall. (Id. at 244–46.) She said she had, in the past, fallen on the way to
the bus stop and while walking down stairs. (Id. at 245.) Martinez reported that she could pay
bills and handle a bank account, and manage her financial affairs. (Id.) She reported that she
rarely left home and had no social life due to issues with her legs and back. (Id. at 246.) She
said she had no problems paying attention, following spoken and written instructions, and
remembering things. (Id. at 248–49.) She got along with people in positions of authority, except

3

her landlord. (Id. at 248.)
In her March 12, 2012 disability report, Martinez further stated that she could not stand
for long periods and often lost her balance. (Id. at 243, 246.) Her back and legs, which “just
give up,” kept her from doing things. (Id. at 244.) She said she could not lift objects or bend
over. (Id. at 246.) She could only walk for one-half block, and needed someone with her to do
so. (Id. at 246–47.) Climbing stairs was difficult, and she would not do it unless she had one
person in front of her and another behind her. (Id. at 247.) Martinez reported that while she did
not have any issues with her hands, she could not kneel, squat, or reach. (Id.) She said her sight
was getting worse. (Id.) She wore glasses and used a cane. (Id. at 248.) She reported that she
used an inhaler for asthma and had never been hospitalized for it. (Id. at 249–50.)
Martinez said that she had anxiety because she was molested by her father when she was
six and had been in an abusive relationship as an adult. (Id at 250.) Martinez said she
experienced flashbacks of the abuse, accompanied by rapid heartbeat, anger, confusion, and fear.
(Id.) When she had an anxiety attack, she took her medications (Clonazepam,2 Risperdal,3 and
Lexapro4) and stayed in her room. (Id. at 251.) She said that she needed someone with her at all
times. (Id.)
Alan Zebek, Martinez’s case manager at WeCARE – the New York City Human
Resources Administration’s Wellness, Comprehensive Assessment, Rehabilitation and

2

Clonazepam, commonly sold under the brand name Klonopin, is a benzodiazepine used to treat panic disorders,
including agoraphobia, in adults. DRUGS.COM, https://www.drugs.com/clonazepam.html (last visited Dec. 12,
2016.)
3

Risperdal, the brand name for the prescription drug risperidone, is an antipsychotic medicine used to treat
symptoms of bipolar disorder. DRUGS.COM, https://www.drugs.com/risperdal.html (last visited Dec. 12, 2016.)
4

Lexapro, a brand name of the generic prescription drug escitalopram, is an antidepressant belonging to a group of
drugs called selective serotonin reuptake inhibitors (“SSRIs”), and is used to treat anxiety and major depression.
DRUGS.COM, https://www.drugs.com/lexapro.html (last visited Dec. 12, 2016.)

4

Employment program – was assisting her in applying for SSI benefits. Zebek completed a thirdparty function report dated February 9, 2012. (Id. at 229–38, 278–87.) He stated that Martinez
needed help showering and putting on her shoes. (Id. at 229, 230.) Zebek reported that Martinez
said she had difficulty going up and down stairs. (Id. at 229.) Most of her day was spent in the
house watching television and reading fiction and newspapers. (Id. at 229, 233.) Family
members and friends did all the chores. (Id. at 229, 231.) She talked to her friends and family
on the phone or had them over to her apartment. (Id. at 229, 233.) Martinez went to
psychotherapy once a week, unless her pain was too severe. (Id. at 229.) She told Zebek that
she woke up every two hours due to pain, racing thoughts, and hallucinations. (Id. at 229, 230.)
When she was depressed, she did not comb her hair. (Id. at 230.)
Zebek reported that Martinez was able to go out alone by foot, by car, or on public
transportation, though she preferred to avoid public transportation during rush hour due to
anxiety. (Id. at 232.) He also reported that she preferred to travel with an escort. (Id. at 233–
34.) Although she could count change, she had difficulty managing finances; Martinez said she
had difficulty with simple math. (Id.) She reportedly had difficulty performing the following
activities due to pain, shortness of breath, and mood swings: lifting, bending, standing, walking,
sitting, kneeling, climbing stairs, seeing, remembering things, completing tasks, concentrating,
following instructions, and getting along with others. (Id. at 234.) Zebek reported that Martinez
had no problems following written instructions and that she could pay attention for twenty
minutes. (Id.) She could walk one-half block before stopping for ten minutes to rest. (Id.)
Zebek reported that Martinez said she had some trouble with authority figures and distrusted
people in power. (Id. at 235.) She reported that she could not handle stress well. (Id.) She
cried, had panic and anxiety attacks, and hurt herself. (Id.) Martinez cried during her intake

5

meeting with Zebek. (Id.) She used a walker and cane for mobility and support, and wore
glasses. (Id.) Zebek reviewed and summarized medical evidence collected by WeCARE before
and after Martinez’s alleged onset date (January 1, 2010), and he stated that Martinez met SSI
listings 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety-related
disorders). (Id. at 236–37.)
Martinez testified at the hearing held on February 20, 2014 that she had back problems,
hypertension, and asthma, and had recently had her gallbladder removed. (Id. at 35.) Martinez
said she had to urinate frequently since the surgery. (Id. at 60–63.) She had stopped babysitting
in 2009 due to pain in her lower back that radiated down her legs. (Id. at 36, 56.) She stated that
she could not pick up things or stand “too long.” (Id. at 36.) She claimed that her legs “give
out,” and she was constantly falling. (Id. at 36, 50, 56.) Her doctor had prescribed Tramadol5
and Lyrica.6 (Id. at 36–37.) Martinez said she used a cane every day. (Id. at 56.) She had
hypertension, but did not like the medication prescribed for it. (Id. at 37.) She described her
asthma as generally stable, although she stated that she would have problems in an environment
with a lot of pollen or dust. (Id. at 37–38.) She used an inhaler. (Id. at 38.) She smoked half a
pack of cigarettes a day. (Id. at 38–39.)
Martinez stated that she had suffered from bipolar disorder and anxiety for the past
twenty years. (Id. at 39–40.) She said that she had to stop working because her psychological
symptoms and the pain in her legs worsened. (Id. at 40.) Martinez testified that her symptoms
included becoming angry, throwing things, screaming, and “blank[ing] out.” (Id. at 40–41, 57.)

5

Tramadol is a narcotic-like pain medication used to treat severe pain. DRUGS.COM,
https://www.drugs.com/tramadol.html (last visited Dec. 12, 2016.)
6

Lyrica, also sold under the generic name pregabalin, is an anti-seizure medication that also can be used to treat
nerve pain. DRUGS.COM, https://www.drugs.com/lyrica.html (last visited Dec. 12, 2016.)

6

She said that Zoloft7 helped, and that her dosage had been increased to better treat her mental
health problems. (Id. at 41.) When questioned by the ALJ as to why she was currently being
treated at a methadone clinic, she claimed that in 1983, she became addicted by ingesting
methadone that her ex-husband kept in their home. (Id. at 41–46.) Martinez said that she
stopped taking it when she got pregnant in 1989 and had been in a drug treatment program ever
since. (Id. at 44–46.) She attended the program Monday through Friday and was “in and out” in
ten minutes. (Id. at 45.) Martinez denied using heroin. (Id. at 41.) She stated that she smoked
marijuana one month prior to the hearing. (Id. at 47.)
Martinez testified that she showered daily (using a seat), and took a cab to her methadone
clinic and public transportation home. (Id. at 49–50, 51, 53.) She said she could use public
transportation if someone accompanied her. (Id. at 53.) She reported that she normally spent the
rest of the day in bed watching television. (Id. at 50–51.) She stated that she had fallen while
cleaning, and her children did not want her to do chores. (Id. at 50.) Martinez said that her
brother and sons did all the shopping, laundry, and household chores. (Id. at 50–52.) She then
stated that she did some cooking and washing dishes while sitting down. (Id. at 52.) Martinez
reported that she had a cell phone and a computer, and maintained email and Facebook accounts.
(Id. at 53.)
b. Medical Evidence Prior to Plaintiff’s SSI Benefits Application
i. Interfaith Medical Center – October 2000–August 2010
Before making her SSI benefits application, Martinez was treated for opiate/heroin
dependency at Interfaith Medical Center (“Interfaith”), where she received methadone

7

Zoloft is an SSRI. It is used to treat depression, obsessive-compulsive disorder, panic disorder, anxiety disorders,
PTSD, and premenstrual dysphoric disorder (“PMDD”). DRUGS.COM, https://www.drugs.com/zoloft.html (last
visited Dec. 12, 2016.)

7

maintenance, counseling, and primary health care services. (See, e.g., id. at 339, 341, 385, 395,
396, 398.) Martinez reported that she began using heroin at the age of eighteen. (Id. at 333.)
She stated that “she was tired of using heroin.” (Id. at 331.) She denied experiencing any sexual
or physical abuse as a child or adult. (Id. at 335.) She said that she got along well with her
family and others. (Id. at 334, 336.) In 2004, no behavior or emotional problems were noted.
(Id. at 339.)
Interfaith records from 2010 indicate that Martinez was being treated elsewhere for
anxiety and depression. (Id. at 343, 345.) In January of 2010, she reportedly was noncompliant
and shouted when told to increase her visits to six times per week from five. (Id. at 355.)
Because Martinez was missing appointments for methadone maintenance dosages, pick-up by
taxi was authorized. (Id. at 349–50.)
On March 9, 2010, Martinez underwent a pelvic sonogram and an electrocardiogram
(“EKG”) after complaining of pelvic pain. (Id. at 542.) Those exams revealed a cystic structure
and possible small fibroid. (Id.) X-rays of Martinez’s lumbosacral spine on March 15, 2010
were normal. (Id. at 540.) X-rays of her foot revealed bilateral calcaneal spurs and hallux valgus
deformity. (Id. at 541.) Her methadone dosing schedule was reduced to five visits per week in
August 2010 as a result of compliance. (Id. at 350.) Martinez reported in her counseling
sessions that she had no emotional problems but was not engaged in “any meaningful endeavor”
and had no work history. (See id. at 351, 353–55.)
ii. WeCARE – August 2008–February 2012
In August 2008, Martinez was evaluated at WeCARE. (Id. at 294–303, 428–55.) She
traveled independently by bus to the appointment. (Id. at 443.) At the intake, she stated, inter
alia, that she had not worked since 1983, and she denied any past or current drug use or

8

treatment. (Id. at 296, 445, 446.) Martinez reported a history of parental abuse and domestic
violence. (Id. at 447.) She said that she was experiencing symptoms of depression due to the
death of her mother in April 2008. (Id. at 444.) She reported that she heard voices, saw visions
of her father, and was paranoid. (Id. at 296.) Martinez stated that she washed dishes and clothes,
swept and vacuumed the floor, made beds, shopped for groceries, cooked meals, watched
television, read, socialized, and crocheted. (Id. at 447–48.) She said she could not work due to
hand and leg problems. (Id. at 448.) Nancy Flores, M.D., a psychiatrist, assessed Martinez as
psychotic and thought disordered and diagnosed mood disorder not otherwise specified (“NOS”),
as well as PTSD. (See id. at 294–300.) Dr. Flores wrote that Martinez demonstrated poor
attention, registration, and concentration when doing tasks, and was unable to function in a work
setting. (Id. at 299.) She opined that Martinez was permanently disabled. (Id.) After both
mental and physical examinations, Martinez was diagnosed with lower back pain, hypertension,
chronic obstructive pulmonary disease, PTSD, schizoaffective disorder, and depression. (Id. at
454.) Ilya Smuglin, M.D., opined that Martinez was “temporarily unemployable” due to
psychosis and thought disorder, per Dr. Flores’s assessment. (Id. at 454.)
Martinez was reevaluated at WeCARE in August 2010. (See id. at 305–13, 428–41.) At
her mental health intake, she said that she did not remember her last paid employment. (Id. at
431.) At her physical medical intake, she stated that she had worked as a child care provider for
six years and stopped in 2009. (Id. at 307.) She said she had no history of using illegal
substances and was not in drug treatment. (Id. at 307, 433, 437.) Martinez said that she had
undergone outpatient psychiatric treatment for 23 years, but not since 2004. (Id. at 308, 309.)
She stated that she was not experiencing any symptoms of depression. (Id. at 308–09, 430.)
Martinez reported that she washed dishes and clothes, swept and mopped the floor, made beds,

9

shopped for groceries, cooked meals, watched television, read, and socialized. (Id. at 434.) She
said that she also spent her days assisting elderly couples. (Id.) She reported that she could
travel by bus or train, without assistance. (Id. at 309.) Martinez reported having back pain,
bilateral leg pain/numbness (mostly on the right side), hypertension, asthma, and depression. (Id.
at 310.) She used a cane. (Id.) She said that her inability to work was based on bilateral leg
pain that affected her ability to stand and walk. (Id.)
As part of the WeCARE reevaluation, Eddy Cadet, M.D., diagnosed: possible
lumbosacral radiculopathy with mild functional impairment, rule/out peripheral artery disease
with mild functional impairment, peripheral venous insufficiency with mild functional
impairment, asthma that was mild/intermittent and stable, and a history of controlled depression.
(Id. at 440; see id. at 428–41.) He opined that Martinez should limit, or possibly eliminate,
lifting, pushing, pulling, carrying, stooping, bending, and reaching due to backache, but he stated
that she was otherwise able to do light work. (Id. at 440–41.)
Martinez returned to WeCARE on February 7, 2012. (Id. at 413–27.) She traveled
independently to the appointment by bus. (Id. at 414.) She was using a cane. (Id.) Martinez
reported that she had previously endured physical abuse by her late husband, who had died
during an altercation with her. (Id. at 415.) She said she was not jailed because “it was out of
self-defense.” (Id.) She reported that she had been treated over at least the previous two years
for bipolar disorder, depression, claustrophobia, and anxiety. (Id. at 414, 420.) She saw a
therapist weekly and a psychiatrist monthly and said that talking to the therapist helped her “a
lot.” (Id. at 415.) Her anxiety was improved with medication. (Id. at 421.) She denied having
any drug history. (Id. at 418, 422.) Martinez said she had last worked as a babysitter in 2011
and that since then, her medical conditions prevented her from working. (Id. at 416.) She also

10

reported having back pain that radiated to her legs and caused her to fall, high blood pressure,
and asthma. (Id. at 420, 421.) On examination, Sundararaja Chandrasekaran, M.D., classified
Martinez as obese, with a Body Mass Index (“BMI”) of 39.8 (Id. at 424.) Plaintiff had nonspecific leg tenderness, with restriction of knee flexion, as well as non-specific sensory loss, with
no anatomic correlation, in both legs. (Id.) Straight leg raising was positive at 50 degrees. (Id.)
Dr. Chandrasekaran diagnosed: PTSD by history, unstable; obesity, stable; essential
hypertension, unspecified, stable; asthma, unspecified, stable; lumbosacral spondylosis without
myelopathy, unstable; other abnormal glucose, stable; bipolar disorder/depression; and abnormal
liver function. (Id. at 426.) She referred Martinez to a psychiatrist for further evaluation and
opined that Martinez was unable to work. (Id. at 425, 427.)
Thomas Kranjac, M.D., a WeCARE psychiatrist, examined Martinez on the same day.
(Id. at 463–72.) Martinez told him that she traveled to the examination with a friend because she
was afraid of fainting. (Id. at 464.) Martinez complained of: mood swings, depressed mood,
poor concentration, panic, rapid heartbeat, fear of going outside, insomnia, anxiety/fearfulness,
fatigue, crying, suicidal thoughts, forgetfulness, flashbacks, irritability, yelling at people, racing
thoughts, and hearing voices. (Id. at 464–65.) On mental status examination, Martinez was neat
and calm. (Id. at 466.) Her affect was constricted, and her mood was depressed. (Id.) She
reported experiencing auditory hallucinations, obsessions, and suicidal ideations. (Id.) Her
speech was normal, and her thought was logical. (Id.) Dr. Kranjac said Martinez had difficulty
with mobility and used a cane. (Id.) He diagnosed: bipolar disorder, NOS; panic disorder with

BMI is a person’s weight in kilograms divided by the square of his or her height in meters. CENTERS FOR DISEASE
CONTROL AND PREVENTION https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/ (last visited
Dec. 7, 2016.) In general, BMI is an inexpensive and easy-to-determine measure of weight category – namely,
underweight, normal or healthy weight, overweight, and obese. Id. A BMI of 30.0 or above is an indicator that a
patient is obese. Id.
8

11

agoraphobia; and PTSD. (Id. at 468.) He assessed a Global Assessment of Functioning (“GAF”)
score of 50.9 (Id.) Dr. Kranjac assessed that Martinez had moderate functional impairments in:
ability to follow work rules; relating to co-workers; accepting supervision; adapting to change;
dealing with the public; and maintaining attention. (Id. at 467.) He opined that Martinez would
have severe impairments in adapting to stressful situations and stated that Martinez needed a
lower stress environment and non-rush hour travel accommodations. (Id.) Dr. Kranjac also
stated that Martinez was unable to work for at least twelve months due to incompletely treated
mental disorders. (See id. at 426–27, 469–70.)
iii. Cumberland Diagnostic and Treatment Center – August 2008
Martinez had a routine physical exam at Cumberland Diagnostic and Treatment Center in
August 2008, which produced unremarkable results. (See id. at 315–22.)
iv. Kingsbrook Jewish Medical Center – May–June 2011
On May 11, 2011, Martinez went to the Kingsbrook Jewish Medical Center emergency
department complaining of left knee swelling and pain after falling on the sidewalk five days
earlier. (Id. at 627–37.) She noted a history of previous falls. (Id. at 630.) She denied
experiencing depression or visual or auditory hallucinations. (Id. at 628–29.) Her mental status
examination was normal. (Id. at 629, 630.) Her left knee X-rays were unremarkable. (Id. at
633.) Martinez returned on June 20, 2011 complaining of dizziness, shortness of breath, and
bilateral leg edema. (Id. at 614–626.) Her mental status examination again was normal. (Id. at
617.) She did not present with back tenderness, and there was mild edema in her legs. (Id.) Her
lungs were clear. (Id.) Martinez was diagnosed with benign paroxysmal vertigo and edema. (Id.

9

GAF is a rating of overall psychological functioning on a scale of 0 to 100. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders-Text Revision 34 (4th ed., rev. 2000) (“DSM-IV”). A GAF
of 41 to 50 reflects “[s]erious symptoms” or “any serious impairment in social, occupational, or school functioning.”
Id.

12

at 619.)
v. Preferred Health Partners – February–October 2011
On February 24, 2011, Martinez was examined at Preferred Health Partners (“PHP”),
complaining of anxiety. (Id. at 400–01). She was diagnosed with: anxiety, unspecified; and
chronic and essential hypertension, unspecified and stable. (Id. at 401.)
Plaintiff returned to PHP on October 5, 2011, complaining of hypertension and pain in
her lower back radiating to both legs. (Id. at 402–04.) Rose Yves-Lyne Daniel, M.D.,
diagnosed: unspecified essential hypertension; low back pain radiating to both legs, chronic; and
anxiety state, unspecified. (Id. at 404.)
vi. Community Counseling & Mediation – August 2011
Martinez visited Community Counseling & Mediation (“CCM”) on August 22, 2011, for
an initial psychiatric evaluation. (Id. at 493–505, 560–66.) Eli Shalenberg, M.D., a psychiatrist,
noted Martinez’s psychiatric history, including past domestic abuse. (Id. at 495, 497.) Martinez
admitted to current marijuana use (“to help me relax”) and denied having any other drug history.
(Id. at 496.) On examination, she was tearful and distraught at times, but her range of affect was
broad and reactive. (Id. at 498.) She was neat, had appropriate affect, and good impulse control.
(Id.) Her mood was sad, and her mannerisms were normal. (Id.) Martinez’s memory, recent
and remote, was normal. (Id.) She was alert, and she had normal concentration, thought content,
and eye contact. (Id.) Intellectual functioning was normal; her insight was fair, and her
judgment was good. (Id.) She denied experiencing hallucinations. (Id.) Dr. Shalenberg
assessed that Martinez’s major depressive disorder, PTSD, panic disorder, and agoraphobia were
fairly well-controlled on Lexapro and Klonopin until she ran out those medications four days
prior. (Id. at 497, 499.) The doctor restarted Martinez on both medications, and he referred her

13

for psychotherapy. (Id. at 499.)
c. Medical Evidence After Alleged Onset Date
i. Wycoff Heights Medical Center – February 2012
Martinez was treated in the Wyckoff Heights Medical Center emergency department on
February 20, 2012, for head, neck, lower back, and knee pain after tripping and falling down
steps at home. (See id. at 639–43, 650–53.) Left knee X-rays showed degenerative changes but
no evidence of acute distress or fracture. (Id. at 644.) Lumbosacral spine X-rays were
unremarkable. (Id. at 645.) A brain CT-scan was normal; a CT scan of the cervical spine
showed mild degenerative changes but no acute injury. (Id. at 646–49.) Martinez’s discharge
diagnosis was accidental fall. (Id. at 642.) Martinez was given a cane for support, a wrap for her
knee, and pain medication, and she was discharged in improved condition. (See id. at 475–77,
639–43.)
ii. Dr. Vinod Thukral, Consultative Examiner – March 2012
On March 30, 2012, Vinod Thukral, M.D., performed a consultative internal medicine
examination. (Id. at 483–87.) Martinez reported histories of hypertension without complications
since 2005 and asthma relieved by an inhaler since 1994. (Id. at 483.) She said she experienced
“on and off” lower back pain over the previous four years, with an exacerbation two months
earlier when she slipped and fell. (Id.) Martinez said she had decreased vision due to glaucoma
in both eyes. (Id.) She also reported a twenty-year history of anxiety, bipolar disorder,
claustrophobia, and depression. (Id.) She reported that she took the following medications:

14

Clonazepam, Risperidone, Divalproex,10 Citalopram,11 Clonidine,12 Lasix,13 and Lyrica. (Id. at
484.) Martinez said that she smoked a half-pack of cigarettes per day and denied any alcohol or
drug abuse. (Id.) She lived with her two sons, ages seventeen and twenty-one, and said that due
to her back pain, her sons or brother did the cooking, cleaning, laundry, and shopping. (Id.) She
showered and dressed daily, watched television, read, and went to doctors’ appointments. (Id.)
Physical examination showed that Martinez was five feet and two inches tall and weighed
220 pounds. (Id. at 484). Her blood pressure was 124/70.14 (Id.) In addition, her corrected
vision was 20/50 using both eyes.15 (Id. at 485.) Martinez brought a cane to the examination,
stating that her doctor gave it to her two months earlier due to back pain. (Id.) Her gait was
normal with and without the cane. (Id.) She was unable to walk on her heels and toes or squat,
due to back pain. (Id.) Her stance was normal. (Id.) Martinez needed no help changing for the

10

Divalproex sodium is used to treat seizure disorders, manic episodes related to bipolar disorder (manic
depression), and to prevent migraine headaches. DRUGS.COM, https://www.drugs.com/mtm/divalproex-sodium.html
(last visited Nov. 18, 2016).
11

Citalopram is an SSRI commonly used to treat depression. DRUGS.COM, https://www.drugs.com/citalopram.html
(last visited Nov. 18, 2016).
12

Clonidine is used to treat hypertension and attention deficit hyperactivity disorder (“ADHD”). DRUGS.COM,
https://www.drugs.com/clonidine.html (last visited Nov. 18, 2016).
13

Lasix (furosemide) is a loop diuretic (water pill) that prevents the body from absorbing too much salt.
DRUGS.COM, https://www.drugs.com/lasix.html (last visited Nov. 18, 2016). This allows the salt to instead be
passed in urine. Id. Lasix is used to treat fluid retention (edema) in people with congestive heart failure, liver
disease, or a kidney disorder such as nephrotic syndrome. Id. Lasix is also used to treat high blood pressure
(hypertension). Id.
14

The American Heart Association defines normal blood pressure as a systolic reading below 120 and a diastolic
reading below 80. AMERICAN HEART ASSOCIATION,
http://www.heart.org/HEARTORG/Conditions/HighBloodPressure/AboutHighBloodPressure/Understanding-BloodPressure-Readings_UCM_301764_Article.jsp#.V9MZiPkrLcs (last visited Dec. 12, 2016). A systolic reading of
120–129 or a diastolic reading of 80–89 indicates prehypertension. Id. A systolic reading above 130 or a diastolic
reading above 90 indicates hypertension; a systolic reading above 180 or a diastolic reading above 110 indicates that
the patient in is hypertensive crisis. Id.
15

Anyone with noncorrectable reduced vision is visually impaired. When the vision in the better eye with the best
possible glasses correction is 20/30 to 20/60, the patient is considered to have mild vision loss, or near-normal
vision. AMERICAN OPTOMETRIC ASSOCIATION, http://www.aoa.org/patients-and-public/caring-for-your-vision/lowvision?sso=y (last visited Dec. 7, 2016).

15

examination or getting on and off the table. (Id.) Using the cane, she was able to rise from a
chair. (Id.) Her chest and lungs were clear to auscultation, and percussion was normal. (Id.)
She exhibited full range of motion in the cervical spine, hips, knees, and ankles. (Id. at 486.)
Ranges of motion in the lumbar spine were: flexion to 40 degrees, extension to 20 degrees, and
bilateral lateral rotation and flexion to 20 degrees. (Id.) Straight leg raising was negative
bilaterally. (Id.) All joints were stable and non-tender, with no evident abnormalities. (Id.)
There were no sensory, motor, or reflex deficits. (Id.) Hand and finger dexterity was intact, and
grip strength was full (5/5) bilaterally. (Id.) On mental status examination, Martinez was
dressed appropriately and maintained good eye contact. (Id.) She was oriented to time and
place. (Id.) There was no evidence of impaired judgment or significant memory impairment.
(Id.) Affect was normal. (Id.) X-rays of the lumbosacral spine were unremarkable. (Id. at 482,
486.) Dr. Thukral diagnosed by history: hypertension, asthma, lower backache, decreased visual
acuity in both eyes due to glaucoma, anxiety, bipolar disorder, claustrophobia, and depression
(on treatment). (Id. at 486–87.) He opined that Martinez had no limitation in sitting, but had
moderate limitations in standing for a long time, bending, pulling, pushing, lifting, carrying, and
performing other related activities, due to lower backache. (Id. at 487.) He opined that Martinez
needed to avoid smoke, dust, and other respiratory irritants due to her history of asthma. (Id.)
iii. Dr. Robert Lancer, Consultative Examiner – March 2012
On March 30, 2012, Robert Lancer, Psy.D., conducted a consultative psychiatric
evaluation. (Id. at 478–81.) At the time, Martinez reported seeing a psychiatrist once per month
for fifteen minutes and a psychologist once per week for one hour. (Id. at 478.) She reported
being hospitalized in 1982 due to a drug overdose and bipolar disorder. (Id.) She stated that she
previously worked for three years as a babysitter, and stopped in 2009 due to problems with her

16

legs. (Id.) Martinez traveled to the examination by bus. (Id.) She reported that she dressed,
bathed, and groomed herself independently, and that she shopped, managed money, and took
public transportation. (Id.) She said that she could not cook, clean, or do laundry due to pain in
her legs. (Id.) She socialized with her brother and sister and spent her days watching television
and listening to the radio. (Id.) Martinez stated that she had difficulty sleeping and experienced
dysphoric moods, hopelessness, social withdrawal, worthlessness, excessive apprehension,
fatigue, and restlessness. (Id. at 478.) She denied having panic attacks, mania, thought disorder,
or cognitive symptomatology. (Id.) She denied any history of drug or alcohol abuse. (Id.)
On mental status examination by Dr. Lancer, Martinez demonstrated adequate manner of
relating, social skills, and overall presentation. (Id. at 479.) She was dressed appropriately and
well groomed. (Id.) She wore glasses and used a cane. (Id.) Her posture, motor behavior, and
eye contact were appropriate. (Id.) Her expressive and receptive language was adequate, and
her thought processes were coherent and goal-oriented. (Id.) Martinez’s affect was of full
range, and her speech and thought content were appropriate. (Id.) Her mood was neutral, and
she was oriented to person, time, and place. (Id.) Martinez’s attention and concentration were
mildly impaired, due to limited intellectual functioning; she was unable to do simple calculations
or count by threes. (Id. at 479–80.) Her recent and remote memory skills were intact, and her
insight and judgment were fair. (Id. at 480.) Dr. Lancer diagnosed anxiety disorder, NOS and
depressive disorder, NOS. (Id.) He opined that Martinez could follow and understand simple
directions and instructions and could perform simple tasks independently. (Id.) She had some
difficulty maintaining attention and concentration. (Id.) Due to issues related to her legs,
Martinez had some difficulty getting around and maintaining a regular schedule. (Id.) She
could learn new tasks, perform complex tasks independently, make appropriate decisions, and

17

relate adequately with others. (Id.) Martinez had difficulty dealing with stress appropriately due
to anxiety disorder. (Id.) Dr. Lancer opined that “the results of the examination appear to be
consistent with psychiatric problems, and this may significantly interfere with the claimant’s
ability to function on a daily basis.” (Id.)
iv. Return to Community Counseling & Mediation – April 2012–August
2013
Martinez returned to Dr. Shalenberg of CCM on April 16, 2012 and reported that she was
feeling “a little better” and was no longer depressed. (Id. at 492.) Findings on her mental status
examination were generally normal. (Id.) Dr. Shalenberg noted that Martinez’s affect was
improved, and he described her as more stable. (Id.) He assessed her bipolar disorder as “fairly
well controlled,” and her intermittent depression as improved. (Id.) Klonopin and Risperdal
were continued. (Id.)
On April 25, 2012, Dr. Shalenberg completed a questionnaire about Martinez. (Id. at
488–91.) Martinez weighed 185 pounds. (Id. at 488.) Her hypertension was stable. (Id.) She
was diagnosed with bipolar disorder and benign vertigo. (Id.) Martinez had a history of
depression with psychotic features, anxiety, and visual/auditory hallucinations. (Id. at 488–89.)
Dr. Shalenberg noted that her bipolar disorder was fairly well controlled, although she was
mildly depressed. (Id. at 489.) The doctor noted that Ms. Martinez’s brother helped her cook
and clean because of leg pain and difficulty standing. (Id. at 490.) Martinez spent most of her
time indoors, was unemployed, and socialized with family when they visited. (Id.) Under the
prompt, “based on the medical findings provided in my report, my medical opinion regarding
this individual’s ability to do work related mental activities is as follows,” Dr. Shalenberg wrote,
“n/a.” (Id.)
When Martinez next saw Dr. Shalenberg on May 14, 2012, she reported that she had
18

“been okay.” (Id. at 967.) She reported that she had stopped taking her medications for her
anxiety and mood disorders for one day and noticed increased symptoms, but her mood quickly
stabilized upon resuming her medications. (Id.) Dr. Shalenberg’s mental status examination
findings were normal. (Id.) He described Martinez as “smiley” and “pleasant.” (Id.)
On June 11, 2012, Martinez told Le-Ben Wan, M.D., Dr. Shalenberg’s colleague at
CCM, that her mood had improved. (Id. at 966.) Dr. Wan’s mental status examination findings
were normal. (Id.)
On July 9, 2012, Dr. Wan noted that Martinez was depressed due to “multiple social
stressors.” (Id. at 965.) His examination revealed a dysphoric mood but was otherwise
unremarkable. (Id.) He prescribed Zoloft. (Id.) Dr. Wan examined Martinez again the next
month and reported on August 20, 2012 that the examination findings were normal, although
Martinez reported feeling irritable and stated that she had not been taking Risperdal due to
insurance problems. (Id. at 964.)
Dr. Wan noted mild mood swings on November 14, after Martinez reported she had run
out of Klonopin. (Id. at 961.) Dr. Wan’s mental status examination findings were otherwise
unremarkable from September 2012 through April 2013. (Id. at 957–63.) Periodically, Martinez
ran out of one of her psychotropic medications and re-stabilized upon resuming it. (See, e.g., id.
at 958, 961.)
On May 18, 2013, Martinez saw Mari Kurahashi, M.D., another psychiatrist at CCM.
(Id. at 559, 956.) Martinez denied experiencing anxiety but reported recently engaging in some
superficial cutting on her forearms. (Id.) She said that her attention span was short. (Id.)
Martinez stated that medications had been helpful for her mood, and denied any side effects.
(Id.) Her weight was down to 145 pounds, from 240 pounds, and Dr. Kurahashi made a note to

19

monitor Martinez’s weight loss. (Id.) Martinez also reported that she was cleaning excessively.
(Id.) On examination, Martinez’s speech was fast, and her mood was anxious. (Id.) The
doctor’s findings were otherwise unremarkable. (Id.) Dr. Kurahashi prescribed Ambien,
increased the dosage of Zoloft, and continued Klonopin and Risperdal. (Id.)
Martinez continued to see Dr. Kurahashi monthly, and from June through August 2013,
her mental status examination findings remained mostly unchanged. (Id. at 953–55.) Martinez
reported having a happy mood and normal energy level, though she complained of diminished
appetite. (Id.) In July and August, she reported having a normal sleep cycle. (Id. at 953–54.)
Martinez generally experienced improvement in her symptoms associated with therapy and
medication (Klonopin, Risperdal, Ambien,16 and Zoloft), with no side effects. (Id. at 953–55.)
Martinez was advised that discontinuing medication could lead to seizures. (Id. at 953.) She
thus was encouraged to continue taking medication. (Id.) At all mental status examinations,
Martinez was calm, cooperative, and well groomed. (Id. at 953–54.) She related well and
exhibited good eye contact. (Id.) She was alert and fully oriented. (Id.) Her cognition and
memory were grossly intact. (Id.) She was attentive and had no abnormal movements. (Id.)
Her speech was fast, and her mood was anxious, but her thought content was normal. (Id.) Her
insight, judgment, and impulse control were fair. (Id.) At the July session, Martinez reported
that she was doing less compulsive cleaning. (Id.) At the August session, she reported that her
medications and psychotherapy were helping her to manage and cope with her anger. (Id.)
v. Interfaith Medical Center – April 2012–September 2013
Martinez continued attending the methadone maintenance program at Interfaith in 2012,
receiving medication and therapy, and undergoing routine physical examinations. (See id. at

16

Ambien (zolpidem) is a sedative used to treat insomnia. DRUGS.COM, https://www.drugs.com/ambien.html (last
visited Dec. 12, 2016).

20

534–46.) In April and May of 2012, she was cordial and fully oriented, and she denied having
any suicidal or homicidal ideations. (Id. at 534–35.)
On September 14, 2012, Martinez saw Sajjad Mohammad, M.D., at Interfaith for an
annual physical examination. (Id. at 544–46.) Dr. Mohammad noted no abnormalities. (Id. at
545.) Plaintiff reported that she was not in pain. (Id.) Dr. Mohammad diagnosed continuous
opioid dependence, hypertension, obesity, asthma, and anxiety. (Id. at 544.)
Plaintiff continued to receive methadone administration and counseling at Interfaith from
September 3, 2013 through January 21, 2014. (Id. at 871–951.) At a September 12, 2013
physical examination, Plaintiff weighed 166 pounds, and her blood pressure was 140/80. (Id. at
941–44.) Nisarul Haque, M.D., diagnosed continuous opioid dependence, hypertension, asthma
in remission, obesity, and adjustment disorder. (Id. at 941, 943.)
vi. Dr. J. Kessel, Consultative Examiner – June 2012
On June 26, 2012, J. Kessel, M.D., a State Agency psychiatric consultant, reviewed the
record and in a Psychiatric Review Technique, (id. at 506–19), found that Martinez had mild
limitations in: activities of daily living, maintaining social functioning, and maintaining
concentration, persistence or pace. (Id. at 516.) Dr. Kessel noted that Martinez had experienced
one or two repeated episodes of deterioration, each of extended duration. (Id.) In a mental
residual functional capacity (“RFC”) assessment, Dr. Kessel opined that Martinez could:
understand, remember, and carry out simple instructions; concentrate adequately; relate
appropriately to coworkers and supervisors; and adapt adequately to changes in the work
environment. (Id. at 520–23.)
vii. Woodhull Medical Center – June–September 2013
Martinez was treated at the Woodhull Medical Center (“Woodhull”) emergency

21

department on June 3, 2013. (Id. at 654–76.) She complained of experiencing an isolated
seizure episode. (Id. at 674.) Discharge diagnosis was abdominal pain. (Id. at 555, 674.)
Martinez went to Woodhull on September 23, 2013, complaining of abdominal pain. (Id.
at 677–99.) She was admitted and underwent a cholecystectomy (removal of the gallbladder) on
September 25, after which surgical follow-ups revealed no complications other than a urinary
tract infection. (Id. at 700–870.) On September 24, 2013, Martinez was screened for depression.
(Id. at 713.) She reported that she had a history of depression but stated that she had never been
in psychiatric care. (Id.) On the same day, she reported in another examination that she had
been hospitalized for psychiatric treatment. (Id. at 726.) By Saturday, September 28, three days
after her surgery, Martinez was eating well and walking “frequently.” (Id. at 841.) She was
discharged on Sunday, September 29, 2013, and given Tylenol and Nexium.17 (Id. at 858.)
Martinez complained at her October 22 follow-up examination of abdominal pain and urinary
issues, including incontinence, but she did not pursue further testing, as recommended, and
instead left the Woodhull clinic against medical advice. (Id. at 867–68.)
viii. WeCARE – November 2013
Martinez returned to WeCARE on November 14 and 15, 2013. (Id. at 581–612.) She
traveled independently to the facility by subway. (Id. at 583.) She had no special travel needs.
(Id.) Martinez reported that she had last worked in 2008 as a home attendant. (Id. at 591.) She
stated that she was no longer working due to the following medical issues: hypertension, asthma,
a gallbladder surgery performed that September, depression, and bipolar disorder. (Id. at 584–
85.) Martinez reported undergoing mental health treatment at CCM but denied having suicidal
or homicidal thoughts, hearing voices, or seeing things. (Id. at 587.) Martinez said she had no

17

Nexium (esomeprazole) is a proton pump inhibitor that decreases the amount of acid produced in the stomach.
DRUGS.COM, https://www.drugs.com/nexium.html (last visited on Dec. 12, 2016).

22

history of substance abuse or treatment. (Id.) She reported smoking one-half pack of cigarettes
per day. (Id. at 588.) She stated that she had difficulty standing and walking “for a long period
of time” but said that she had no problems related to eyesight, climbing stairs, personal care,
preparing meals, or executing housekeeping tasks. (Id.) She socialized with family and friends.
(Id. at 590.) On examination, Mehjabeen Ahmed, M.D., a family practitioner, (id. at 612), noted
paravertebral tenderness in Martinez’s lower back, positive straight leg raising, and painful
movements of the spine. (Id. at 605.) Martinez had difficulty ambulating, walked with a cane,
and had difficulty getting on and off the examination table. (Id.) Neurological and motor
strength examinations were normal. (Id. at 606.) Dr. Ahmed diagnosed: asthma, stable; other
and unspecified disorder of the back, unstable; essential hypertension, stable; depressive
disorder, NOS; and viral hepatitis, stable. (Id. at 610–11.) He opined that Martinez was unable
to work for at least twelve months and that she needed para-transit services and a travel
companion. (Id. at 611–12.) The doctor said that Martinez suffered from insomnia, poor
concentration, crying spells, and a lack of motivation despite medications and psychotherapy.
(Id. at 612.)
d. Vocational Expert Testimony
Vocational expert Karen Ann Simone testified at Martinez’s hearing on February 20,
2014. (Id. at 63–75.) She stated that Martinez’s past work as a babysitter was semiskilled and
medium in exertion. (Id. at 63.) The ALJ asked the vocational expert several hypothetical
questions involving an individual of the same age, education, and work experience as Martinez.
(Id. at 64–73.) The first involved an individual who had an RFC for sedentary work, who could
push, pull, climb, balance, stoop, kneel, bend, crouch, and crawl only occasionally. (Id. at 64.)
The individual could not work in roles involving concentrated exposure to airborne irritants such

23

as fumes, odors, dusts, gases, and smoke. (Id.) She was limited to “low stress jobs,” defined as
jobs requiring no more than simple work-related decisions with few, if any, workplace changes.
(Id.) The VOCATIONAL EXPERT stated that such an individual could not perform Martinez’s
past work but could perform the following sedentary, unskilled jobs as defined in the Dictionary
of Occupational Titles (“DOT”), published by the Department of Labor: order clerk, DOT code
209.567-014; charge account clerk, DOT code 205.367-014; and call out operator, DOT code
237.367-014.18 (Id. at 65.)
The second hypothetical was nearly identical to the first, adding only that the individual
was unable to consistently maintain a regular schedule, and had to be off-task by at least ten
percent during the workday. (Id. at 65.) The vocational expert testified that there were no jobs
available for that individual. (Id. at 66.)
The third hypothetical involved an RFC for light work with the additional limitations
outlined in the first hypothetical. (Id. at 66.) The vocational expert stated that such an
individual could not perform Martinez’s past work but could perform the following light,
unskilled jobs: “cashier II,” DOT code 211.462-010, with 184,111 jobs existing in the national
economy; “mail clerk,” DOT code 209.687-026, with 7,315 jobs existing in the national
economy; and “information clerk,” DOT code 237.367-018, with 69,557 jobs existing in the
national economy. (Id. at 67–68.) In response to questioning by Martinez’s attorney, the
vocational expert testified that the need to use a cane would not impact the ability to work as a
mail clerk or information clerk, and would reduce the number of cashier II jobs by 50 percent.
(Id. at 69–70.) The vocational expert elaborated that these jobs, considered light because of the
lifting requirement and not the standing requirement, could still be done by an individual who

18

The DOT (4th ed., rev’d 1991) is available online at www.oalj.dol.gov/libdot.htm.

24

needed to sit for the majority of the workday and, therefore, would not be impacted by the use of
a cane. (Id. at 72–73.) The vocational expert testified that her testimony was consistent with the
DOT. (Id. at 68.)
LEGAL STANDARDS
I.

Standard of Review
The Court does not make an independent judgment about whether a claimant is disabled

when reviewing the final determination of the Commissioner. See Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Rather, the Court “may set aside the Commissioner’s determination that a
claimant is not disabled only if the [ALJ’s] factual findings are not supported by ‘substantial
evidence’ or if the decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000) (quoting 42 U.S.C. § 405(g)). “‘[S]ubstantial evidence’ is ‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
“In determining whether the agency’s findings were supported by substantial evidence,
the reviewing court is required to examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be drawn.” Id. (internal quotation marks
omitted). “If there is substantial evidence in the record to support the Commissioner’s factual
findings, they are conclusive and must be upheld.” Stemmerman v. Colvin, No. 13-CV-241
(SLT), 2014 WL 4161964, at *6 (E.D.N.Y. Aug. 19, 2014) (citing 42 U.S.C. § 405(g)). “This
deferential standard of review does not apply, however, to the ALJ’s legal conclusions.”
Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 342 (E.D.N.Y. 2010). Rather, “[w]here an
error of law has been made that might have affected the disposition of the case, [an ALJ’s]

25

failure to apply the correct legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (internal quotation marks omitted).
II.

Eligibility Standard for SSI Benefits
To qualify for SSI benefits, an individual must show that she is unable “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)(2)(A). This
requires a five-step analysis for determining whether a claimant is disabled:
[1] 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 ability
to do basic work activities.
[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 1 of the regulations. If the claimant has such an
impairment, the Commissioner will consider him per se disabled.
[4] Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, 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. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.3d
1177, 1179–80 (2d Cir. 1998)); see also 20 C.F.R. §§ 404.1520, 416.920. The claimant has the
burden of proof for the first four steps of the analysis, but the burden shifts to the Commissioner
for the fifth step. See Talavera, 697 F.3d at 151.

26

DISCUSSION
I.

The ALJ’s Opinion
The ALJ followed the sequential evaluation process set forth above. (See Admin. R. at

101–09.) At Step One, the ALJ found that Martinez had not engaged in substantial gainful
activity since February 9, 2012, when Martinez filed her application for SSI benefits. (Id. at
101.) At Step Two, the ALJ found the following severe impairments: history of asthma,
hypertension, status-post cholecystectomy, lumbar radiculopathy, a bipolar disorder, and an
anxiety disorder. (Id.) At Step Three, the ALJ found that Martinez did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments. (Id. at 102.) Next, the ALJ determined that Martinez retained the RFC to:
[P]erform light work as defined in 20 CFR 416.967(b) except that [Martinez] can
push[,] pull, climb, balance, stoop, kneel, bend, crouch, and crawl on an
occasional basis. She cannot work at jobs containing concentrated exposure to
airborne irritants such as fumes, odors, dusts, gases, and smoke. She can work at
low stress jobs, defined as jobs containing no more than simple, work related
decisions with few, if any, workplace changes.
(Id. at 104.) At Step Four, the ALJ found that Martinez was unable to perform her past
relevant work. (Id. at 108.) Finally, at Step Five, the ALJ relied on the testimony of the
vocational expert to find that there are jobs that exist in the national economy that
Martinez can perform given her age, education level, and RFC. (Id. at 109.)
Accordingly, the ALJ found Martinez not disabled. (Id. at 110.)
In support of her cross-motion for judgment on the pleadings, Martinez argues that the
ALJ erred in making her RFC determination and identifying jobs that she could hold in the
national economy. Specifically, Martinez contends that: the ALJ violated the “treating physician
rule” and failed to develop the record; and the ALJ’s conclusion that Martinez could perform
certain jobs identified by the vocational expert is not supported by substantial evidence.
27

II.

The Treating Physician Rule and the ALJ’s Duty to Develop the Record
Martinez argues that the ALJ violated the treating physician rule and failed to develop the

record. (Pl.’s Mem. Cross–Mot. (Doc. No. 15) at 9–13.) First, Martinez asserts that the ALJ
improperly discounted the notes of Dr. Daniel, one of Martinez’s treating physicians. (Id. at 11.)
Second, Martinez argues that the ALJ should have obtained additional treatment notes from Dr.
Daniel. (Id. at 10.) Third, Martinez maintains that the ALJ should have sought functional
assessments from Drs. Daniel and Kurahashi. (Id. at 10–11.) Finally, Martinez claims that the
ALJ failed to give due consideration to the reports of all the psychiatrists who treated her at
CCM. (Id. at 12.) For the reasons set forth below, these arguments are unavailing.
“[T]he ALJ generally has an affirmative obligation to develop the administrative record.”
Perez v.Chater, 77 F.3d 41, 47 (2d Cir. 1996). This duty “arises from the Commissioner’s
regulatory obligations to develop a complete medical record before making a disability
determination,” and although this duty is heightened when a claimant proceeds pro se, it “exists
even when, as here, the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996). While it is true that the affirmative duty to expand the record does not extend ad
infinitum, reasonable efforts must be made to seek out further information where evidentiary
gaps exist, or where the evidence is inconsistent or contradictory. Cadet v. Colvin, 121 F. Supp.
3d 317, 320 (W.D.N.Y. 2015).
The “treating physician rule,” which requires deference to the opinion of a claimant’s
treating doctor, “goes hand in hand with the ALJ’s duty to develop the record.” Price o/b/o A.N.
v. Astrue, 42 F. Supp. 3d 423, 432 (E.D.N.Y. 2014). A claimant’s “treating physician” is defined
as her “treating source” – i.e., a “physician, psychologist or other acceptable medical source who
provides [the claimant], or has provided [the claimant], with medical treatment or evaluation and

28

who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R.
§ 404.1502. The opinion of a treating physician “is given controlling weight so long as it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record.” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (internal citation and quotation marks omitted).
Citing the treating physician rule, Martinez argues that the ALJ in this case failed to give
sufficient deference to the opinion of Dr. Daniel, her primary care doctor. (Pl.’s Mem. Cross–
Mot. at 11.) Martinez’s sole basis for that argument is the following text from the ALJ’s
opinion: “Little weight is given to the opinions of Dr. Flores (Exhibit 2F) and Dr. Rose (Exhibit
7F), both doctors from Arbor WeCare. These doctors have never treated the claimant before and
therefore did not possess the longitudinal understanding of the claimant’s history or symptoms.”
(Admin. R. at 108; see Pl.’s Mem. Cross–Mot. at 11.) In that passage, the ALJ states that he is
discounting the opinions of “Dr. Rose,” as set forth in “Exhibit 7F.” (Admin. R. at 108.)
However, no part of the administrative record – let alone Exhibit 7F – contains any notes from a
“Dr. Rose.” (See generally id.) Moreover, Exhibit 7F does not contain any notes from Dr.
Daniel, whose first name is Rose. (See generally, id. at 413–62.) Therefore, the ALJ must have
been discounting either: the opinions of Dr. Daniel, whose notes do not appear in Exhibit 7F; or
the opinions of another doctor, whose notes do appear in that exhibit. The ALJ’s description of
the contents of Exhibit 7F indicates that it was the latter.
Specifically, two pages prior to the passage on which Martinez relies, the ALJ
summarizes the relevant notes from Exhibit 7F. (See id. at 106.) In those notes, the ALJ writes,
a psychiatrist from WeCARE indicated that Martinez:
[H]as a history of a bipolar disorder . . . . gets anxiety episodes, which improved
with medications . . . . has an incompletely treated chronic mood disorder, a
29

probable mood disorder, a panic disorder with agoraphobia, claustrophobia,
chronic PTSD with flashbacks, childhood and domestic violence/abuse
survival . . . [does not have a] personality disorder . . . . is too symptomatic with
chronic symptoms, along with her other medical problems . . . . [and] had
functional limitations that would last twelve months.
The ALJ lifts that summary almost verbatim from Exhibit 7F. (See id. at 421, 427.) The fact
that the ALJ (i) says that he is discounting the opinions set forth in Exhibit 7F and (ii) accurately
summarizes the notes therein demonstrates that he did not discount the opinions of Dr. Daniel.
The ALJ’s identification of “Dr. Rose” thus appears to be nothing more than a typographical
error and does not, as Martinez argues, warrant remand.19
Moreover, the ALJ’s decision to discount the opinions that he paraphrases from Exhibit
7F does not constitute legal error. As noted above, the opinions in that exhibit belong to a
psychiatrist at WeCARE. They appear in reports dated February 7–8, 2012. (See id. at 421,
427.) The only WeCARE psychiatrist who saw Martinez during that time was Dr. Kranjac, (see
id. at 413–62), and there is no indication in the administrative record that Dr. Kranjac examined
or treated Martinez on any other occasion. (See generally id.) One must have “an ongoing
relationship with [the claimant]” to be considered a treating physician. 20 C.F.R. § 404.1502.
Therefore, Dr. Kranjac does not qualify as a treating physician. Accordingly, the treating
physician rule does not require the ALJ to provide any deference to Dr. Kranjac’s opinion.
Notably, Martinez does not argue otherwise.

19

Remand is not proper where an ALJ has made a typographical error that did not ultimately affect the benefits
analysis or determination. See, e.g., Johnson v. Colvin, No. 13-CV-3745 (KAM), 2015 WL 6738900, at *15
(E.D.N.Y. Nov. 4, 2015), aff’d sub nom. Johnson v. Comm’r of Soc. Sec., No. 15-CV-4041, 2016 WL 6106936 (2d
Cir. Oct. 18, 2016) (affirming a denial of benefits where “the ALJ mistakenly referred to Dr. Hahn as Dr. Slowe”
and “the ALJ did in fact repeatedly make this mistake,” but the “probable typo had no substantive impact on the
ALJ’s analysis”); Burden v. Astrue, No. 07-CV-0642 (JCH), 2008 WL 5083138, at *10 (D. Conn. Aug. 26, 2008),
report and recommendation adopted, 588 F. Supp. 2d 269 (D. Conn. 2008) (finding it “irrelevant” that “the ALJ
misidentified a statement by Dr. Perlin as ‘Dr. Perlman’s conclusory statement’” where the misidentification did not
bear on the ALJ’s determination).

30

Next, Martinez claims that because Dr. Daniel was a treating physician, the ALJ had an
obligation to obtain all of the records compiled by Dr. Daniel.20 (Pl.’s Mem. Cross–Mot. at 11.)
However, the law in this Circuit contains no such requirement. See Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999) (an ALJ must contact a treating physician for more information than is in
the administrative record “[i]f an ALJ perceived inconsistencies in a treating physician’s
reports”). In this case, the ALJ did not identify – and Martinez does not describe – any
inconsistencies in Dr. Daniel’s reports. (See generally Admin. R. at 99–110.)
Moreover, “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.” Rosa, 168 F.3d at 79 n.5. Such
gaps existed in Rosa because the administrative record did not contain any notes whatsoever
from: a hospital visit that occurred on the day that the claimant became disabled; an entire course
of physical therapy treatment that took place over “a significant period of time”; and treatment
by an orthopedic surgeon and a neurologist. Id. at 80. In contrast, the record in this case
contained: the clinical examination findings and opinions of two consultative examiners, Drs.
Thukral and Lancer; the opinion of a psychological consultant, Dr. Kessel; reports from
WeCARE; and treatment records from Interfaith, CCM, PHP, Kingsbrook, Wykoff, and

The administrative record might not contain all of Dr. Daniel’s treatment notes. Upon appealing the ALJ’s
decision, Martinez reported that Dr. Daniel was her primary care physician, that she visited Dr. Daniel in July of
2012, and that she was scheduled for another appointment with Dr. Daniel in August of the same year. (Admin. R.
at 273.) Notes from those appointments – if they exist – are not in the administrative record. (See generally id.)
However, the administrative record does contain Dr. Daniel’s treatment notes from two separate occasions – one
from February 24, 2011, when Martinez saw physician’s assistant David Blaze, a colleague of Dr. Daniel, and
another from October 5, 2011, when Martinez saw Dr. Daniel. (Id. at 400–04.) Moreover, Dr. Daniel was not
Martinez’s only provider of primary care services. Rather, on September 14, 2012, Dr. Mohammad of Interfaith
performed a comprehensive general physical examination. (Id. at 544–46.) And Dr. Haque of Interfaith performed
another complete annual physical examination on September 12, 2013. (Id. at 941–13.) Both examinations were
reflected in the administrative record and were generally unremarkable. (See id. at 544–46, 941–43.) Accordingly,
the administrative record contained multiple documents – in addition to those from Dr. Daniel – chronicling
Martinez’s receipt of primary care services during the relevant period.
20

31

Woodhull. (See generally Admin. R.) Altogether, the ALJ had almost 680 pages of medical
records before him. (Id.) Thus, there were no gaps in the administrative record.21
For the same reason, the ALJ was not obligated to seek functional assessments from Drs.
Daniel and Kurahashi. As the Commissioner notes, the Social Security Commission’s
regulations were modified approximately two years before the ALJ issued his decision in this
case. See How We Collect and Consider Evidence of Disability, 77 Fed. Reg. 10,651-01 (Feb.
23, 2012). The modification provides more discretion to ALJs in deciding whether to re-contact
treating physicians for additional information. Id. Likewise, 20 C.F.R. § 416.920b provides that
an ALJ may – but is not obligated to – re-contact a treating physician when the existing record
evidence is inconsistent or insufficient to make a disability determination. Accordingly, the lack
of a functional assessment from a treating physician does not mandate remand – especially
where, as here, the claimant’s complete medical record is available to the ALJ. See Swiantek v.
Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015) (summary order) (rejecting the
argument that remand was necessary to obtain a treating source opinion, where the ALJ based his
findings on the report of a consultative psychologist, and also had the claimant’s complete
medical history and treatment notes); Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d
Cir. 2013) (summary order) (“[W]e hold that it would be inappropriate to remand solely on the
ground that the ALJ failed to request medical opinions in assessing residual functional
capacity”); see also Pellam v. Astrue, 508 F. App’x 87, 90 n.2 (2d Cir. 2013) (summary order)
(citing 20 C.F.R. § 416.913(b)(6) and finding that the ALJ had no further obligation to

21

Martinez makes the throwaway argument that the administrative record is deficient because it allegedly is missing
four pages of notes from Dr. Shalenberg. (See Pl.’s Mem. Cross–Mot. At 12–13.) However, Martinez does not
support that argument by citing to the administrative record or describing in any way what content is missing. (See
id.) Moreover, at the hearing before the ALJ, Martinez’s attorney confirmed that the record was complete, except
for one missing document from a doctor other than Dr. Shalenberg. (See Admin. R. at 25.)

32

supplement the record by acquiring a medical source statement from one of Plaintiff’s treating
physicians, particularly considering that the ALJ had all of the doctor’s treatment notes). Given
the extensive nature of the medical records in this case, described above, the ALJ was not
obligated to seek functional assessments from Drs. Daniel and Kurahashi.
Finally, Martinez’s argument that the ALJ “completely ignore[d]” the treatment notes
from the psychiatrists at CCM is unavailing. As the Second Circuit has noted, “where ‘the
evidence of record permits us to glean the rationale of an ALJ’s decision, we do not require that
he have mentioned every item of testimony presented to him or have explained why he
considered particular evidence unpersuasive or insufficient to lead him to a conclusion of
disability.’” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); see also Brault v. Comm’r of Soc. Sec., 683 F.3d
443, 448 (2d Cir. 2012) (“An ALJ does not have to state on the record every reason justifying a
decision,” and “[a]n ALJ’s failure to cite specific evidence does not indicate that such evidence
was not considered.”) (internal quotation marks and citations omitted)). In this case, Martinez
neither contends that the ALJ’s rationale is not evident nor explains how the notes of the CCM
psychiatrists contradict the ALJ’s conclusions.22 Therefore, the fact that the ALJ did not
expressly address the CCM psychiatrists’ notes does not constitute error.
III.

Substantial Evidence
Martinez argues that the ALJ’s decision is not based on substantial evidence for two

reasons. First, she characterizes Dr. Thukral’s opinion of her physical limitations as “remarkably
vague” and argues that the ALJ erred in relying on it. (See Pl.’s Mem. Cross–Mot. at 13–14.)

22

The Court notes that none of those psychiatrists opined that Martinez could not work. (See generally Admin. R. at
488–505, 952–967.)

33

Second, she contends that the vocational expert’s testimony conflicted with the DOT, and that
the ALJ erred in failing to address that conflict. (Id. at 14–17.)
a. The ALJ’s RFC Determination and Dr. Thukral’s Opinion
The ALJ concluded that Martinez possessed the RFC necessary to complete certain jobs
that fit the definition of “light work” set forth in 20 C.F.R. § 416.967(b). (Admin. R. at 109–10.)
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 it “requires a good deal of walking or standing . . . or . . .
sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §
416.967(b). Importantly, the ALJ concluded that Martinez could hold only some – not all – jobs
fitting that description. (Admin. R. at 109–10.) As examples of the kinds of jobs involving
“light work” that Martinez could hold, the ALJ listed “cashier,” “mail clerk in a business,” and
“information clerk.” (Id.)
The ALJ’s conclusion that Martinez could hold those jobs and others like them was based
on the following RFC determination:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b)[,] except that the claimant can push[,] pull, climb,
balance, stoop, kneel, bend, crouch, and crawl on an occasional basis. She cannot
work at jobs containing concentrated exposure to airborne irritants such as fumes,
odors, dusts, gases, and smoke. She can work at low stress jobs, defined as jobs
containing no more than simple, work related decisions with few, if any,
workplace changes.
(Id. at 104.) The ALJ based that determination in part on Dr. Thukral’s opinion. (See id. at 108.)
One portion of that opinion describes “moderate limitations for standing (for a long time),
bending, pulling, pushing, lifting, carrying, or any other such related activities due to lower
backache.” (Id. at 487.)

34

Martinez contends that Dr. Thukral’s use of the term “moderate” is “remarkably vague,”
and that the ALJ’s determination therefore is not supported by substantial evidence. (See Pl.’s
Mem. Cross–Mot. at 13.) The Second Circuit has expressly held that an RFC for light work can
be supported by medical opinions that use descriptive terminology, including terms like “mild”
and “moderate.”23 See Lewis v. Colvin, 548 F. App’x 675, 677 (2d Cir. 2013) (summary order)
(“[T]he ALJ’s determination that [claimant] could perform ‘light work’ is supported by [the
doctor’s] assessment of ‘mild limitations for prolonged sitting, standing, and walking.’”); see
also Nelson v. Colvin, 12-cv-1810 (JS), 2014 WL 1342964, at *12 (E.D.N.Y. Mar. 31, 2014)
(“[T]he ALJ’s determination that [claimant] could perform ‘light work’ is supported by [the
doctor’s] assessment of ‘mild to moderate limitation for sitting, standing, walking, bending, and
lifting weight . . . .”) Thus, in this case, the ALJ properly relied on Dr. Thukral’s description of
Martinez’s “moderate” limitations.
b. The ALJ’s RFC Determination and the Vocational Expert’s Testimony
Martinez’s final argument is that the ALJ failed to identify and resolve conflicts between
the testimony of the vocational expert and the DOT. (See Pl.’s Mem. Cross–Mot. at 14–17.)

23

Martinez relies on two Second Circuit cases that are inapposite. In the first of those cases, the Circuit held that a
doctor’s statement that the claimant “should be able to lift . . . objects of a mild degree of weight on an intermittent
basis” was too vague to constitute substantial evidence due to the words “mild” and “intermittent.” Selian v. Astrue,
708 F.3d 409, 421 (2d Cir. 2013). The Circuit came to that conclusion in part because the claimant “testified that he
could not carry even a gallon of milk.” Id. Martinez, however, offers no evidence to contradict Dr. Thukral’s
description of “moderate” limitations. In the second case that Martinez relies on, the Circuit remanded due to the
ALJ’s reliance on a report that employed the terms “‘moderate’ and ‘mild,’ without additional information.” Curry
v. Apfel, 209 F.3d 117 (2d Cir. 2000) (emphasis added). In this case, Dr. Thukral’s report goes far beyond the
doctor’s description of “moderate” limitations; it provides, inter alia, the following additional information:
Martinez had a normal gait, both with and without the use of her cane; her ranges of motion were full in the cervical
spine, hips, knees, and ankles; and her ranges of motion in the lumbar spine were reduced, but straight leg raising
was negative bilaterally. (Admin. R. at 485–86.) That information sheds considerable light on the meaning of
“moderate limitations for standing (for a long time), bending, pulling, pushing, lifting, carrying,” and related
activities. Moreover, the Court notes that Dr. Thukral’s report was by no means the sole basis for the ALJ’s
opinion. Rather, the ALJ wrote – and Martinez does not dispute – that the RFC determination was based on Dr.
Thukral’s opinion as well as the opinions of two other consultative examiners and “the totality of the rest of the
evidence.” (Id. at 108.)

35

The DOT sets forth a General Education Development Scale (“GED Scale”), which describes the
level of education, both formal and informal, required for satisfactory performance in different
jobs. See Components of the Definition Trailer, DOT Appendix C, available at
http://www.occupationalinfo.org/appendxc_1.html#III (last visited Mar. 22, 2017). The GED
Scale breaks down the level of education into three categories: reasoning development,
mathematical development, and language development. See id. The reasoning development
category is at issue in this case. (See Pl.’s Mem. Cross–Mot. at 14–17.) It contains six levels of
development. DOT Appendix C. Three of those levels are relevant here. (See Pl.’s Mem.
Cross–Mot. at 14–17.) They are:
04 LEVEL REASONING DEVELOPMENT[:] Apply principles of rational
systems to solve practical problems and deal with a variety of concrete variables
in situations where only limited standardization exists. Interpret a variety of
instructions furnished in written, oral, diagrammatic, or schedule form.
(Examples of rational systems include: bookkeeping, internal combustion engines,
electric wiring systems, house building, farm management, and navigation.) . . .
03 LEVEL REASONING DEVELOPMENT[:] Apply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic
form. Deal with problems involving several concrete variables in or from
standardized situations. . . .
02 LEVEL REASONING DEVELOPMENT[:] Apply commonsense
understanding to carry out detailed but uninvolved written or oral instructions.
Deal with problems involving a few concrete variables in or from standardized
situations.
See DOT Appendix C.
The vocational expert testified that the following are examples of jobs Martinez could
perform in the national economy, as defined in the DOT: cashier II, mail clerk in a business, and
information clerk. (Admin. R. at 67–68.) The cashier and mail clerk positions require a
reasoning level of three, and the information clerk position requires a reasoning level of four.
See DOT Job Classifications at 1991 WL 671840 (DOT 211.462-010); 1991 WL 671813 (DOT
36

209.687-026); 1991 WL 672187 (DOT 237.367-018). According to Martinez, the ALJ’s
description of Martinez’s RFC indicates that she cannot perform jobs with a reasoning level
greater than two. (See Pl.’s Mem. Cross–Mot. at 16.) Thus, Martinez contends, the vocational
expert testified that she can hold jobs which require a higher level of reasoning than her RFC
allows.
Martinez focuses on the portion of the ALJ’s RFC determination that states she can hold
“jobs containing no more than simple, work related decisions with few, if any, workplace
changes.” (See id.) That language, according to Martinez, forecloses her from holding jobs that
require more than level-two reasoning. (See id.) However, a reasoning level of three is not
inconsistent with “simple” work. See Jones-Reid v. Astrue, 934 F. Supp. 2d 381, 408–09 (D.
Conn. 2012), aff’d 523 F. App’x 32 (2d Cir. 2013) (summary order) (“GED level 3 reasoning is
not inconsistent with the ability to perform only simple tasks.”). Therefore, there is no
inconsistency between the ALJ’s RFC determination and the vocational expert’s testimony that
Martinez could function as a cashier or mail clerk. This ends the Court’s inquiry, as “the
Commissioner need only show that there is work in the national economy that the claimant can
do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The ALJ identified approximately
191,426 cashier and mail clerk jobs that Martinez could perform in the national economy.
(Admin. R. at 109.) Therefore, the ALJ’s determination that Martinez could hold the jobs of
cashier and mail clerk was sufficient to deny benefits. Accordingly, the Court need not and does
not reach Martinez’s last argument: that the ALJ’s conclusion that Martinez could function as an
information clerk was not based on substantial evidence.

37

CONCLUSION
For the reasons set forth above, the Commissioner’s motion for judgment on the
pleadings is granted, and Martinez’s cross-motion for judgment on the pleadings is denied. The
Clerk of Court is respectfully directed to enter judgment accordingly and close this case.

SO ORDERED.

Dated: Brooklyn, New York
March 27, 2017

s/Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

38