Nunez Cruz v. Commissioner of Social Security
Filing
29
OPINION AND ORDER: re: 20 MOTION for Judgment on the Pleadings. filed by Commissioner of Social Security, 25 CROSS MOTION Denial of commissioner's motion for judgment on pleadings, reversal of Commissioner's decision, and remand the act ion for new hearing. filed by Valeria M. Nunez Cruz. The Commissioner's motion for judgment on the pleadings (Docket # 20) is granted. Cruz's motion for judgment on the pleadings (Docket # 25) is denied. The Clerk is requested to enter judgment and to close this case. (Signed by Magistrate Judge Gabriel W. Gorenstein on 4/24/2013) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
VALERIA M. NUNEZ CRUZ,
:
Plaintiff,
:
:
-v.MICHAEL J. ASTRUE, Commissioner of
Social Security,
12 Civ. 953 (GWG)
OPINION AND ORDER
:
:
Defendant.
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Valeria Nunez Cruz brings this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying her claim for disability insurance benefits under the Social Security Act. The
Commissioner moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), and Cruz
has cross-moved for judgment on the pleadings. The parties consented to having this matter
decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
stated below, the Commissioner’s motion is granted, and Cruz’s motion is denied.
I.
BACKGROUND
A.
Cruz’s Claims for Benefits and Administrative Proceedings
On March 1, 2007, Cruz filed an application for disability benefits, alleging an onset of
disability as of that date. See Administrative Record, filed July 6, 2012 (Docket # 12) (“R.”)
67–73. On April 12, 2007, this application was denied. R. 40–45. Cruz timely requested a
hearing before an Administrative Law Judge (“ALJ”). R. 46–47. On November 7, 2007, Cruz
appeared pro se at a hearing before ALJ Robin J. Arzt, and testified through an interpreter. R.
21–39. On December 13, 2007, ALJ Arzt issued a decision finding that Cruz was not disabled
1
from March 1, 2007 through the date of her decision. R. 10–20. The Appeals Council denied
Cruz’s request for review on May 23, 2008. R. 1–6. Cruz filed a civil action on August 15,
2008, see Complaint, Nunez Cruz v. Astrue, 08 Civ. 7243 (AJP) (S.D.N.Y. Aug. 15, 2008)
(Docket # 2), and on February 27, 2009, the parties agreed to remand the case for further
administrative proceedings, R. 267–69.
Cruz filed an additional application which was granted in October 2008, and then vacated
by the Appeals Council on the basis that there were inconsistencies in the two applications. R.
271–74, 279–81. On August 4, 2009, the Appeals Council issued an order consolidating the two
applications and remanding the case to the ALJ. R. 276–81. This remand order stated that the
ALJ should:
• Obtain additional evidence concerning the claimant’s musculoskeletal impairments,
including physical therapy records, in order to complete the administrative record in
accordance with the regulatory standards regarding consultative examinations and
existing medical evidence (20 CFR 416.912–913). The additional evidence may include,
if warranted and available, updated records from Dr. Rubin; a consultative neurological
examination; and medical source statements about what the claimant can still do despite
the impairments.
• Give consideration to the January 9, 2008 treating source opinion from Dr. Rubin
pursuant to the provisions of 20 CFR 416.927 and Social Security Rulings 96-2p and 965p, and explain the weight given to such opinion evidence. As appropriate, the
Administrative Law Judge may request the treating source to provide additional evidence
and/or further clarification of the opinion and medical source statements about what the
claimant can still do despite the impairments (20 CFR 416.912).
• Resolve the inconsistencies pertaining to the claimant’s ability to speak English. Dr.
Rubin should also be asked for her observations about this issue because of the report
from the subsequent file that was previously referenced.
• Obtain evidence from a medical expert to clarify the nature and severity of the
claimant’s impairments (20 CFR 416.927(f) and Social Security Ruling 96-6p).
• Give further consideration to the claimant’s maximum residual functional capacity and
provide appropriate rationale with specific references to evidence of record in support of
the assessed limitations (20 CFR 416.945 and Social Security Ruling 96-8p).
2
• If warranted by the expanded record, obtain evidence from a vocational expert to clarify
the effect of the assessed limitations on the claimant’s occupational base (Social Security
Rulings 83-12, 83-14, and 96-9p). The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The Administrative Law Judge
will ask the vocational expert to identify examples of appropriate jobs and to state the
incidence of such jobs in the national economy (20 CFR 416.966). Further, before
relying on the vocational expert evidence the Administrative Law Judge will identify and
resolve any conflicts between the occupational evidence provided by the vocational
expert and information in the Dictionary of Occupational Titles (DOT) and its companion
publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
R. 280–81.
In accordance with this remand order, a new hearing was held before ALJ Mark Solomon
on March 1, 2011, at which Cruz testified pro se through an interpreter. R. 205–24. On April
22, 2011, ALJ Solomon issued a decision finding Cruz not disabled since March 1, 2007. R.
170–84. The Appeals Council denied review of this decision on December 16, 2011. R.
160–64. Cruz thereafter filed the instant complaint challenging the Commissioner’s denial of
benefits. Complaint, filed Feb. 6, 2012 (Docket # 2).
On November 14, 2012, the Commissioner moved for judgment on the pleadings.1 Cruz,
now represented by counsel, see Notice of Appearance, filed Oct. 2, 2012 (Docket # 17), crossmoved for judgment on the pleadings.2
1
See Notice of Motion, filed Nov. 14, 2012 (Docket # 20); Memorandum of Law in
Support of the Commissioner’s Motion for Judgment on the Pleadings, filed Nov. 14, 2012
(Docket # 21) (“Gov. Mem.”); Defendant’s Memorandum in Opposition to Plaintiff’s Motion for
Judgment on the Pleadings and in Further Support of the Commissioner’s Motion for Judgment
on the Pleadings, filed Jan. 9, 2013 (Docket # 28).
2
See Notice of Cross-Motion, filed Dec. 29, 2012 (Docket # 25); Memorandum of Law
in Support of Plaintiff’s Cross-Motion for Judgment on the Pleadings and in Opposition to
Defendant’s Motion for Judgment on the Pleadings (Docket # 27) (“Pl. Mem.”).
3
B.
The Administrative Record
1.
Background
Cruz was born in the Dominican Republic in 1958. R. 27, 74, 209. She completed the
fourth grade in the Dominican Republic. R. 27–28. She moved to the United States in 1974
when she was 16 years old, R. 27, and has lived in New York City ever since, R. 28. She
worked as a home attendant and a floor person in a factory, R. 93, and as a babysitter for a
company called Vista Care, R. 30. She has not worked since the early 1990's. R. 29-30. She
lives with her son and spends her days caring for him. R. 28, 80. She is also an avid churchgoer.
R. 83.
2.
Medical Records
In 2005, Cruz began receiving treatment from Gouverneur Diagnostic and Treatment
Center (“GDTC”). R. 154–59. On November 21, 2005, doctors at GDTC reported the results of
her computerized tomography (“CT”) scans. R. 154–59. A CT scan of her cervical spine
showed minimal degenerative disc disease. R. 155. A CT scan of her thoracic spine showed
minimal scoliosis and calcification of the ligamentum flavum3 without definite spinal cord
compression. R. 156–57. A CT scan of her lumbar spine showed no appreciable scoliosis, “no
evidence of disc herniation or spinal stenosis,” and mild central spinal canal stenosis. R. 159.
In January and March 2006, Dr. Jennifer Adams treated Cruz for cellulitis of the leg and
bilateral edema4 causing leg swelling. R. 120–21. Dr. Adams prescribed Keflex medication, but
3
The ligamentum flavum is a “yellow elastic fibrous tissue, which bind[s] together the
laminae of adjoining vertebrae, forming the dorsal wall of the vertebral canal between the
vertebra or laminae.” Stedman’s Medical Dictionary 1007 (27th ed. 2000) (“Stedman’s”).
4
Edema is “an accumulation of an excessive amount of watery fluid in cells or
intercellular tissues.” Stedman’s at 566–67.
4
noted on March 2, 2006, that Cruz had failed to take the medication consistently. R. 120. On
March 13, 2006, Dr. Shirley Tung diagnosed Cruz with chronic venous insufficiency5 and
recurrent cellulitis of the left leg. R. 118. Dr. Tung also noted that a January 2006 test was
negative for deep vein thrombosis, and that Cruz’s gait was normal. Id. Cruz requested new
support hose. Id.
In May 2006, Cruz saw Dr. Adams again and requested a letter for Social Security and
“welfare.” R. 116. Cruz complained of radiating back pain. Id. Straight leg raise testing was
negative, and Cruz had good motor and sensory tone, and no pain with palpation. Id. Her
existing back pain remained stable. Id. Additionally, she complained of fatigue, shortness of
breath, and chest pain, but her lungs were clear, and blood pressure and heart rate were normal.
Id. Dr. Adams wrote of Cruz’s complaints, “IMPOSSIBLE history that changes.” Id. Dr.
Adams prescribed aspirin and planned a stress test due to changes in Cruz’s EKG from a prior
exam. Id. In June 2006, Dr. Adams reported that Cruz’s blood pressure remained normal, and
the stress test showed diminished functional capacity with no arrhythmias. R. 115, 123.
An MRI of Cruz’s ankle in March 2006 showed soft tissue swelling but no evidence of
fracture, dislocation, or bony destruction. R. 135. In October 2006, Cruz saw Dr. Melaine Rose
Jay and complained of back pain, leg swelling, and shortness of breath. R. 113–14. Dr. Jay
noted mild tenderness at the C4–T12 levels along the spine, R. 113, and indicated Cruz was
willing to try physical therapy, R. 114. In November 2006, Dr. Jay noted that Cruz was obese
and discussed weight loss with her. R. 112. Dr. Jay also noted that Flonase was helping Cruz’s
allergic rhinitis and that Cruz reported doing physical therapy weekly. Id.
5
Venous insufficiency is defined as “inadequate drainage of venous blood from a part,
resulting in edema or dermatosis.” Stedman’s at 908.
5
On April 4, 2007, Dr. Dyana Aldea, a consultative physician, examined Cruz. R.
142–44. Cruz complained of radiating back pain with swelling, numbness, and tingling, which
was reportedly aggravated by prolonged standing, ambulation, bending, squatting, lifting, and
climbing, and was relieved with rest and medications. R. 142. Dr. Aldea noted that Cruz’s gait
was normal. R. 143. She was able to walk on her heels and toes without difficulty and do a full
squat. Id. She used a cane that was not medically necessary, and she needed no assistance
changing, getting on and off the exam table, or rising from her chair. Id. Her musculoskeletal
exam was normal except for mild tenderness to palpation in the lumbar spine. Id. A
lumbosacral spine X-ray showed straightening of the lordic curve. Id. Dr. Aldea found that
Cruz had “no limitation for physical activity.” R. 144. On April 12, 2007, a disability analyst
for the state agency, S. Mastrogiacomo, issued a review of Cruz’s records. R. 40, 44, 146–51.
He noted that no treating source opinion was available concerning Cruz’s physical residual
functional capacity (“RFC”) and that, based on the medical evidence and the claimant’s report of
functioning, she was not disabled. R. 150–51.
Cruz attended physical therapy sessions at GDTC in December 2007. R. 345–48, 356.
The physical therapist noted that Cruz had “moderate tenderness and severe spasm” of her
lumbar paraspinals. R. 345. Cruz informed the therapist that her pain lessened after physical
therapy treatment. Id. On January 9, 2008, Dr. Gloria Rubin of GDTC reported the results from
a CT scan of Cruz’s spine, which revealed spinal stenosis. R. 152. Dr. Rubin also noted that
Cruz experienced “low back pain aggravated by prolonged sitting and ambulation.” Id.6
6
The Appeals Council’s remand order references this opinion of Dr. Rubin. R. 279–80.
6
In February 2008, Cruz sought treatment at Bellevue Hospital’s pain management clinic.
R. 349–50. Dr. Lisa Doan and Dr. Grzegorz Kozikowski indicated that Cruz used English but
stated she preferred Spanish. R. 349. Cruz reported back pain radiating along her spine,
aggravated by bending, as well as weakness in her legs and muscle spasms in her thighs. Id.
She identified her pain “at its worst” as a 6 out of 10 in severity. Id. She informed the doctors
that physical therapy relieved her pain, and that medications upset her gastrointestinal system.
Id. Drs. Doan and Kozikowski found that Cruz had a normal affect and full strength, and that
she was obese and had scoliosis. R. 349–50. They diagnosed her with musculoskeletal disorder
of the neck and noted a decreased ability to work. R. 350. Dr. Kosikowski examined Cruz again
on March 12, 2008. R. 382. Cruz reported back pain with an intensity of four and nausea and
vomiting caused by medications. Id. Dr. Kosikowski found all systems normal except pain
during the musculoskeletal exam, and again noted a musculoskeletal disorder of the neck. Id.
In December 2008, Dr. Lucia Voiculescu of Bellevue examined Cruz. R. 355. Dr.
Voiculescu noted Cruz’s preference for speaking Spanish, but indicated that she used English
during the exam. Id. Cruz reported chronic low back pain with occasional bilateral radicular
symptoms, cervical pain, and daily muscle spasms in the cervical and lumbar regions. Id. Dr.
Voiculescu found full motor strength, normal cervical ranges of motion, and mildly limited
lumbar ranges of motion. Id. Dr. Voiculescu prescribed medication and noted Cruz’s obesity.
Id.
In February 2010, Cruz returned to Bellevue where she was examined by Nurse
Practitioner (“NP”) Kathleen Broglio. R. 353–54.7 Cruz’s chief complaint was back and neck
7
Cruz asserts that this gap in treatment is due to her loss of Medicaid coverage. Pl.
Mem. at 6 n.13; see also R. 26.
7
pain. R. 353. NP Broglio indicated Cruz’s preference for Spanish, but noted that she used
English throughout the exam. Id. She also noted that an MRI from January 2009 showed a
minimal diffuse bulge at L4-L5, mild bilateral hypertrophy, and a small epidural mass, “most
likely [an] extruded disc at S1.” Id. Cruz stated that physical therapy did not benefit her and
that her medications hurt her stomach. Id. NP Broglio found that Cruz had full range of motion
in the neck and lumbar spine without pain, straight leg raising was negative, and her strength and
gait were normal. Id. NP Broglio noted taut paraspinals from Cruz’s cervical to low back area.
Id. She prescribed medication, encouraged Cruz to exercise and lose weight, and suggested that
she follow up with a nutritionist. R. 354.
In July 2010, Cruz saw NP Broglio again, complaining of back pain and shoulder pain.
R. 377–78. At this appointment, Cruz used Spanish, and told NP Broglio that she was not taking
her medications regularly because of gastrointestinal pain. R. 377. NP Broglio noted that
Cruz’s gait was normal, her strength was full throughout, and paraspinals were less taut than at a
prior exam. Id. Cruz had lost 12 pounds. Id. NP Broglio noted sciatica and musculoskeletal
disorder of the neck, prescribed a gel, and advised Cruz to continue taking her other medications.
R. 378.
In October 2010, Dr. David Finkelstein, a consultative neurologist, examined Cruz and
completed a form assessment of her physical abilities. R. 359–68. He noted that her gait was
antalgic but her station was normal, she could walk on toes and heels without difficulty, she did
not use a cane, and she could get in and out of her chair and on and off the exam table without
help. R. 360. Cruz had normal range of motion in the cervical, thoracic, and lumbar spine,
although lumbar flexion was limited to 60 degrees. Id. She had no muscle spasms or
tenderness, straight leg raising was negative, and she had no trigger points. Id. She had no
8
muscle atrophy and normal reflexes and muscle tone throughout. R. 361. Dr. Finkelstein noted
that Cruz’s low back pain “may limit ability to sustain activities” and that “there are some mild
pain-related limitations in ambulation.” Id.
On the form, Dr. Finkelstein indicated Cruz could lift and carry up to 20 pounds
continuously, 21 to 50 pounds frequently, and 51 to 100 pounds occasionally. R. 362. He stated
that she could sit, stand, and walk each for three hours at one time without interruption. R. 363.
She could sit, stand, and walk for a total of eight hours in a workday. Id. She could use her
hands and feet continuously, R. 364, and could climb stairs, ramps, ladders, and scaffolds for
over two to three hours continuously, and could balance, stoop, kneel, crouch, and crawl for the
same amount of time, R. 365. She had no environmental limitations. R. 366. She was able to
shop, travel without assistance, ambulate without an assistive device, walk at a reasonable pace
on an uneven surface, use public transportation, climb steps with a handrail, prepare a simple
meal and feed herself, care for her personal hygiene, and sort, handle, or use paper files. R. 367.
3.
The November 7, 2007 Hearing and ALJ Arzt’s Denial of Benefits
On November 7, 2007, Cruz testified pro se through an interpreter before ALJ Arzt. R.
21–39. Cruz described her treatment for cellulitis in 2006. R. 26–27. She told ALJ Arzt that
she understood “a little. . . a lot” of English. R. 28. She testified that she can write “very, very
little” English and can read “a little” in English. Id. She can read and understand most articles
in the Daily News and New York Post. R. 29. She can carry on simple conversations in
English, can write lists of “some things” in English, and can write “very little” of a short note in
English. Id. Cruz told ALJ Arzt that she has not worked in recent years because of her
“condition.” R. 30. She described her back pain as “burning” down her neck, “all the way
9
down.” Id. She testified that she had never been told the cause of her spinal pain. R. 31. She
does not use a cane because she is scared of “getting so used to it, that I won’t be able to walk
right.” R. 32. She said physical therapy had improved her pain, but that she stopped doing it,
and that she did not always take her medicines because they hurt her stomach. R. 32–33. She
has not had cellulitis since early 2006, but her legs get swollen. R. 33–34. She has been
prescribed support hose but can only wear it in winter because it makes her hot. R. 34. She
cannot walk more than half a block before she must stop and rest because of her back pain. R.
35. She cannot stand for long periods of time, and she cannot sit for longer than half an hour. R.
35–36. She cannot carry a gallon of milk. R. 37. She does very little cooking, and can perform
some house cleaning, although it sometimes aggravates her back pain. R. 37–38.
4.
The March 1, 2011 Hearing
Cruz testified pro se through an interpreter at a hearing on remand before ALJ Solomon
on March 1, 2011. R. 205–24. She stated that she understood some English, and spoke to some
doctors in Spanish and some in English. R. 210. She testified that she is able to write in English
a “very little” bit. Id. She informed ALJ Solomon that she is getting treatment for her back,
stomach, and legs, and has been prescribed special hose for her legs to prevent swelling. R. 211.
Her only treatment is medication. Id. She testified that she has gotten worse since November
2007, because “it’s affected all my left side and my left arm also.” Id. She does not use a cane,
and said she is able to travel by herself but loses her balance sometimes and prefers to travel
with her son. R. 212. She spends her days at home, praying, “sing[ing] to the lord,” and reading
the Bible; she also feels depressed. Id.
ALJ Solomon then took testimony from a medical advisor, Dr. Thomas H. Weiss. R.
213–20. Dr. Weiss had listened to Cruz’s testimony and reviewed her medical records. R. 214.
10
He testified that Cruz had degenerative disc disease in her neck, hypertrophy in the thoracic
spine, and mild spinal stenosis. R. 215. He discussed an X-ray from 2007, which showed
swelling in her left ankle. R. 216. He also found that she had minimal scoliosis. Id. He found
that her impairments did not meet or medically equal any of the listed impairments. R. 217. He
testified that Cruz had no limitations on her ability to lift or carry, id., she could stand and walk
for at least six hours, R. 219, and she could sit at least six hours, id. She had no other exertional
or non-exertional impairments. Id.
Finally, a vocational expert, Melissa Fass Karlin, testified. R. 221. ALJ Solomon asked
the following question:
[A]ssume I find that the claimant has the ability to do work at the light level, which is the
ability to sit, stand, and walk for at least six hours, to carry 20 pounds occasionally, or 10
pounds frequently, and limited to occasional climbing ramps and stairs, bouncing,
stooping, kneeling, crouching, and crawling. Assuming a hypothetical claimant the age,
education, and work experience, and for this purpose we’re going to find that the
claimant does speak some English because, obviously, the grids are the grids if she does
speak Spanish.
R. 221–22.
The vocational expert responded that such an individual “could do the full range, then, of
light work,” and the full range of sedentary work. R. 222. ALJ Solomon then asked whether,
crediting Cruz’s testimony regarding her limitations, a hypothetical individual with such
limitations would be able to perform any work, and the vocational expert responded in the
negative. Id.
5.
The ALJ’s April 22, 2011 Decision
On April 22, 2011, ALJ Solomon issued a decision in which he found Cruz not entitled to
disability insurance benefits. R. 173–180. His findings of fact and conclusions of law are as
follows:
11
1. The claimant has not engaged in substantial gainful activity since March 1, 2007 . . . .
2. The claimant has the following severe impairments: degenerative disc disease in the
neck, ligamentous hypertrophy in the thoracic spine, mild spinal stenosis, scoliosis, and
left ankle pain . . . .
3. The claimant does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 . . . .
4. After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR 416.967(b)
except that she can only occasionally perform kneeling, crouching, stooping, crawling, or
climbing of ramps and stairs.
5. The claimant has no past relevant work . . . .
6. The claimant was born on June 5, 1958, and was 48 years old, which is defined as a
younger individual age 18–49, on the date the application was filed. The claimant
subsequently changed age category to closely approaching advanced age . . . .
7. The claimant has a limited education and is able to communicate in English . . . .
8. Transferability of job skills is not an issue because the claimant does not have past
relevant work . . . .
9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform.
10. The claimant has not been under a disability, as defined in the Social Security Act,
since March 1, 2007, the date the application was filed . . . .
R. 175–80.
ALJ Solomon noted the inconsistencies in previous applications, which he had been
instructed to address on remand, and discussed his efforts to contact Dr. Rubin, one of Cruz’s
treating physicians. R. 173. He also acknowledged giving “special consideration” to the listings
for musculoskeletal disorders in determining the third finding. R. 176. With respect to his
fourth finding, the ALJ’s conclusions were based in part on a determination that Cruz’s “alleged
12
severe restrictions with standing and walking . . . are inconsistent with the generally minimal
objective findings. The evidence and treatment notes show mild back symptoms with
conservative treatment.” R. 178. While the ALJ found that the “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” Cruz’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity assessment.” R. 178.
Finally, with regard to the tenth finding, the ALJ stated that he based this finding on the
testimony of the vocational expert that a hypothetical individual with Cruz’s limitations and
background could perform the full range of light and sedentary work. R. 179.
II.
GOVERNING LAW
A.
Scope of Judicial Review under 42 U.S.C. § 405(g)
A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(citation and internal quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117, 127 (2d
Cir. 2008); see generally 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
Substantial evidence is “‘more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
accord Burgess, 537 F.3d at 127–28; Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006);
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
13
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation
and internal quotation marks omitted). Thus, “[i]f the reviewing court finds substantial evidence
to support the Commissioner’s final decision, that decision must be upheld, even if substantial
evidence supporting the claimant’s position also exists.” Johnson v. Astrue, 563 F. Supp. 2d
444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where
there is substantial evidence to support either position, the determination is one to be made by
the factfinder.”)). The Second Circuit has characterized the substantial evidence standard as “a
very deferential standard of review — even more so than the ‘clearly erroneous’ standard.”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citation omitted). The
“substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts
only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448
(emphasis in original) (citation and internal quotation marks omitted). “The role of the
reviewing court is therefore quite limited and substantial deference is to be afforded the
Commissioner’s decision.” Johnson, 563 F. Supp. 2d at 454 (citations and internal quotation
marks omitted).
B.
Standard Governing Evaluations of Disability Claims by the Agency
The Social Security Act defines the term “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). A
person will be found to be disabled only if it is determined that her “impairments are of such
14
severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy . . . .” Id. § 423(d)(2)(A).
To evaluate a Social Security claim, the Commissioner is required to examine: “(1) the
objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s
educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam) (citations omitted).
Regulations issued pursuant to the Social Security Act set forth a five-step process that
the Commissioner must use in evaluating a disability claim. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); see also Burgess, 537 F.3d at 120 (describing the five-step process). First, the
Commissioner must determine whether the claimant is currently engaged in any “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, if the claimant is
not engaged in substantial gainful activity, the Commissioner must decide if the claimant has a
“severe medically determinable physical or mental impairment,” id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii), which is an impairment or combination of impairments that “significantly
limits [the claimant’s] physical or mental ability to do basic work activities . . . .” Id. §§
404.1520(c), 416.920(c). Third, if the claimant’s impairment is severe and is listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, or is equivalent to one of the listed impairments, the claimant
must be found disabled regardless of his age, education, or work experience. Id.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Fourth, if the claimant’s impairment is not listed and
is not equal to one of the listed impairments, the Commissioner must review the claimant’s
residual functional capacity to determine if the claimant is able to do work he or she has done in
15
the past, i.e., “past relevant work.” Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant
is able to do such work, he or she is not disabled. Id. Finally, if the claimant is unable to
perform past relevant work, the Commissioner must decide if the claimant’s residual functional
capacity permits the claimant to do other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If
the claimant cannot perform other work, he or she will be deemed disabled. Id. The claimant
bears the burden of proof on all steps except the final one — that is, proving that there is other
work the claimant can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per
curiam).
C.
Duty to Develop the Record
The ALJ has an affirmative duty to develop the record in a disability benefits case.
Shaw, 221 F.3d at 131. Where the ALJ fails to develop the record, remand is appropriate. Rosa
v. Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999). The ALJ has a “duty to investigate the facts and
develop the arguments both for and against granting benefits . . . .” Sims v. Apfel, 530 U.S. 103,
111 (2000). The ALJ’s duty to develop the administrative record encompasses not only the duty
to obtain a claimant’s medical records and reports, but also the duty to question the claimant
adequately about any subjective complaints and the impact of the claimant’s impairments on the
claimant’s functional capacity. See, e.g., Cruz v. Sullivan, 912 F.2d 8, 11–12 (2d Cir. 1990);
Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755–56 (2d Cir. 1982). The
governing statute provides that the ALJ “shall make every reasonable effort to obtain from the
individual’s treating physician (or other treating health care provider) all medical evidence,
including diagnostic tests, necessary in order to properly make” the disability determination. 42
U.S.C. § 423(d)(5)(B); accord 20 C.F.R. §§ 404.1512(d), 416.912(d). The ALJ’s duty to
develop the record remains the same regardless of whether the claimant is represented by
16
counsel. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citing Pratts v. Chater, 94 F.3d 34,
37 (2d Cir. 1996)).
III.
DISCUSSION
Cruz argues in her motion for judgment on the pleadings that the ALJ’s decision was
erroneous for the following reasons: (1) the ALJ failed to comply with the remand order issued
by the Appeals Council and/or failed to develop the record, see Pl. Mem. at 11–15; (2) the ALJ
erroneously assessed Cruz’s residual functional capacity, see id. at 15–26; and (3) the ALJ’s
decision was not supported by substantial evidence, see id. at 26–29. We discuss each
separately.
A.
Whether the ALJ Complied with the Remand Order and/or His Duty to Develop
the Record
Cruz argues that the ALJ failed to comply with his affirmative duty to develop the record
and that he failed to resolve certain inconsistencies. Id. at 11–15. Specifically, Cruz argues that
the ALJ erred in failing to obtain additional information about Dr. Rubin’s assessment that
Cruz’s low back pain was aggravated by prolonged sitting and walking. Id. at 12; R. 152.
The Appeals Council’s order required the ALJ to “obtain additional evidence concerning
the claimant’s musculoskeletal impairments.” R. 280. The ALJ in fact did this by examining
records of treatment since the prior hearing and obtaining testimony from a medical expert. R.
177–78. The remand order stated that the additional evidence “may” include, inter alia, updated
records from Dr. Rubin, “if warranted and available.” R. 280. ALJ Solomon attempted to
contact Dr. Rubin, sending her two separate letters, but never received a response with the
requested clarifications. R. 173, 178.
17
The Court cannot find that the remand order was violated or that the ALJ otherwise failed
to discharge his duty to develop the record. When it is not possible “to fully credit a treating
physician’s opinion because the medical records from the physician are incomplete or do not
contain detailed support for the opinions expressed,” the ALJ has a duty to request missing or
incomplete information, as well as to recontact the treating physician to clarify his or her
opinions. Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 428 (S.D.N.Y. 2010) (citing Perez
v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)); accord Rosa, 168 F.3d at 79. Under the governing
regulations, however, the ALJ need only make “every reasonable effort” to get medical reports
from treating physicians. 20 C.F.R. § 404.1512(d). The regulations specifically define this
effort as “an initial request for evidence from [plaintiff’s] medical source[s], and “one follow-up
request.” 20 C.F.R. §§ 404.1512(d)(1), 416.912(d)(1). Here, the ALJ fulfilled his duty when he
contacted Dr. Rubin twice. R. 173. Dr. Rubin responded to the first request by simply returning
copies of Cruz’s physical therapy evaluations and noting that the ALJ had failed to include a
medical source questionnaire in his letter. R. 305, 344. She did not respond to the request for
clarification of her reports and her observations of Cruz’s language abilities. R. 344. As for the
second request, Dr. Rubin never responded to it at all. R. 178, 305. The ALJ’s efforts not only
followed the regulations but were inherently reasonable. As a result, they complied with the
remand order and his duty to develop the record.
Cruz attaches to her brief a short handwritten note from Dr. Rubin dated September 13,
2012, many months after this lawsuit was filed, ostensibly clarifying her opinion as requested.
See Note, dated Sept. 13, 2012 (annexed as Ex. C. to Pl. Mem.). Cruz provides no explanation
as to how she obtained this note a year and a half after ALJ Solomon requested information from
Dr. Rubin, or why Dr. Rubin failed to respond to the ALJ’s letter. Nor does she supply any legal
18
authority as to why the note could be considered by this Court now. The ALJ’s decision to
proceed without Dr. Rubin’s clarification after making reasonable efforts to obtain the
information was not erroneous, and Cruz’s ability to obtain a response from Dr. Rubin a year and
a half later does not affect the propriety of the ALJ’s actions.
Cruz also argues that the ALJ erred by not advising Cruz to contact Dr. Rubin herself.
Pl. Mem. at 12–15. But no such obligation exists under the regulations. In the case relied on by
Cruz, Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990), the Court found that the ALJ had not made a
sufficiently reasonable effort to obtain additional information, and noted that “[h]ad [the
plaintiff] been apprised of the ALJ’s skepticism, he, unlike the ALJ, may have been persistent
about obtaining his medical records and a detailed statement from [his doctor].” Id. at 12. But
to the extent any such obligation exists, it has been applied only where the ALJ does not
adequately attempt to seek out the relevant records. See, e.g., Jimenez v. Massanari, 2001 WL
935521, at *11–12 (S.D.N.Y. Aug. 16, 2001); Rosa v. Apfel, 1998 WL 437172, at *4 (S.D.N.Y.
July 31, 1998). Here, the ALJ himself properly sought the additional information and he was not
required to ask Cruz to repeat the steps he had already undertaken.
Cruz includes the failure to “give consideration to the treating physician” in a list of
alleged errors the ALJ made in his decision, Pl. Mem. at 11, though she does not directly argue
that ALJ Solomon violated the “treating physician rule.” Assuming arguendo that Cruz seeks to
make this argument, it is rejected. Under the treating physician rule, an ALJ must accord “a
measure of deference to the medical opinions of a [social security claimant’s] treating
physician.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). The ALJ must give
“controlling weight” to a treating physician’s medical opinion as to the nature and severity of a
claimant’s impairments if the opinion “is well-supported by medically acceptable clinical and
19
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); accord Morales v. Astrue, 2012 WL
414236, at *7 (S.D.N.Y. Feb. 9, 2012) (citation omitted). Inversely, the opinions of a treating
physician “need not be given controlling weight where they are contradicted by other substantial
evidence in the record,” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citations omitted),
including “the opinions of other medical experts,” Halloran, 362 F.3d at 32, because “[g]enuine
conflicts in the medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588
(citing Richardson, 402 U.S. at 399); accord Burgess, 537 F.3d at 128.
If the opinion of a treating physician is rejected, the ALJ must “provide good reasons for
the weight [given] to the treating source’s opinion.” Halloran, 362 F.3d at 32–33 (internal
quotation marks omitted) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). When
assessing how much weight to give the treating source’s opinion, the ALJ should consider
factors set forth in the Commissioner’s regulations, which include: (i) the length of the treatment
relationship and the frequency of the examination; (ii) the nature and extent of the treatment
relationship; (iii) the supportability of the opinion with relevant evidence, particularly medical
signs and laboratory findings; (iv) the consistency of the opinion with the record as a whole; (v)
whether the opinion is from a specialist; and (vi) other relevant evidence. See 20 C.F.R.
§ 404.1527(c)(2)–(6); see also Ellington v. Astrue, 641 F. Supp. 2d 322, 330–31 (S.D.N.Y.
2009) (the ALJ “should weigh the treating physician’s opinion along with other evidence
according to the factors” listed in 20 C.F.R. § 404.1527(c)(2)–(6)).
In rendering a decision, ALJ Solomon considered Dr. Rubin’s statement that Cruz’s back
pain was aggravated by prolonged sitting and standing, but found that the opinions of the
consultative examiners were entitled to greater probative weight. R. 178. Specifically, the ALJ
20
found that Dr. Rubin’s opinion was inconsistent with medical documentation. Id. The record
reflects that Dr. Rubin’s opinion was contradicted by reports from Drs. Aldea, Doan,
Kozikowski, Voiculescu, and Finkelstein, and NP Broglio, who actually treated Cruz.8 R.
142–44, 349–50, 355, 359–61, 362–67, 377–78, 382. The medical records indicated mild
symptoms and “minimal objective findings” and neither the consultative examining sources nor
the medical expert found that Cruz was limited to less than light work. R. 178. Moreover, Cruz
received conservative treatment throughout. Id. Therefore, the ALJ was not required to give Dr.
Rubin’s unclarified views “controlling weight” inasmuch as her opinion was inconsistent with
other substantial evidence in the administrative record. See Mongeur, 722 F.2d at 1039 (“[T]he
opinion of a treating physician is not binding if it is contradicted by substantial evidence, and the
report of a consultative physician may constitute such evidence.”) (citations omitted).
Furthermore, the ALJ gave “good reasons” for disregarding Dr. Rubin’s opinion, including the
inconsistency of her opinion with the entirety of the record and her failure to respond to requests
for clarification. R. 178. The ALJ’s decision therefore did not violate the treating physician
rule.
Finally, Cruz argues that ALJ Solomon incorrectly assessed her ability to speak English
by relying solely on his firsthand experience of communicating with her at the hearing and by
noting that “during the hearing, . . . Cruz began to respond to some questions asked without
having the questions interpreted.” Pl. Mem. at 13–15. This argument fails. ALJ Solomon found
that Cruz was “able to communicate in English,” citing 20 C.F.R. 416.964. R. 179. That
8
NP Broglio’s reports may be considered pursuant to 20 C.F.R. §§ 416.913(a), (d) as an
“other source” to “show the severity of [Cruz’s] impairment(s) and how it affects [her] ability to
work.”
21
regulation, which requires that a claimant’s ability to communicate in English be considered as a
factor relating to her ability to work, refers only to a claimant’s ability to “speak and understand
English,” 20 C.F.R. 416.964(b)(5), an ability that the ALJ observed firsthand as well as one that
was supported in the record. The record contained substantial evidence of Cruz’s English
abilities, including Cruz’s own testimony about her ability to speak English and the reports of
numerous doctors in the record that Cruz had spoken to them in English. R. 28, 29, 210, 349,
353, 355. Furthermore, ALJ Solomon considered Dr. Rubin’s reports about Cruz’s ability to
speak English. R. 177 (noting that the records produced by Dr. Rubin indicated that Cruz “used
English with the staff at Gouverneur”).
B.
Whether the ALJ’s RFC Determination Was Proper
Cruz argues that the ALJ erred in several aspects when determining her residual
functional capacity. First, Cruz argues that ALJ Solomon failed to consider both Dr. Rubin’s
opinion that prolonged sitting and walking aggravated Cruz’s low back pain as well as the
impact of her leg edema and chronic venous insufficiency. Pl. Mem. at 15–16. However, for the
reasons stated in the previous section, the ALJ did consider the records of Dr. Rubin. R. 177–78.
Additionally, the ALJ considered Cruz’s edema and chronic venous insufficiency, noting
“hyperpigmentation consistent with venous stasis changes and pitting edema” in 2006, R. 176,
“no edema” in 2008, and “2+ edema” in 2009, R. 177. His finding of certain limitations, see R.
176 (“[S]he can only occasionally perform kneeling, crouching, stooping, crawling, or climbing
of ramps and stairs”), shows that the ALJ thoroughly considered these conditions in his decision.
Cruz also argues that ALJ Solomon erred in failing to discuss Cruz’s physical abilities on
a function-by-function basis. Pl. Mem. at 17–18. As an initial matter, we note that the Second
Circuit has never held that an ALJ must conduct “a function-by-function analysis, and the Third
22
and Sixth Circuits have specifically ruled that such an analysis is not required.” Daniels v.
Astrue, 2012 WL 1415322, at *12 (S.D.N.Y. Apr. 18, 2012) (citing Dillingham v. Astrue, 2010
WL 3909630, at *11 (N.D.N.Y. Aug. 24, 2010), adopted, 2010 WL 3893906 (N.D.N.Y. Sept.
30, 2010); Diaz v. Astrue, 2010 WL 3257779, at *9 (S.D.N.Y. Aug. 17, 2010)). Numerous
courts in this district have reached a similar conclusion and we agree that there is no per se
requirement that an ALJ perform a “function-by-function” analysis of her abilities. See id. at
*12–13; Juliano v. Astrue, 2012 WL 1232961, at *8 (S.D.N.Y. Apr. 12, 2012) (“[T]he ALJ’s
written opinion need not discuss each function, especially those functions for which no
limitation is alleged.”); Novak v. Astrue, 2008 WL 2882638, at *3 (S.D.N.Y. July 25, 2008);
Casino-Ortiz v. Astrue, 2007 WL 2745704, at *13 (S.D.N.Y. Sept. 21, 2007), adopted, 2008 WL
461375 (S.D.N.Y. Feb. 20, 2008). Instead, it is enough for the ALJ to “explain how the evidence
supports his or her conclusions about the claimant’s limitations and [to] discuss the claimant’s
ability to perform sustained work activities.” Casino-Ortiz, 2007 WL 2745704, at *13 (internal
citations and quotation marks omitted).
Here, ALJ Solomon thoroughly discussed Cruz’s functional work-related abilities and
explained his reasons for arriving at his assessment of those abilities. R. 178. He discussed the
findings of Drs. Weiss and Finkelstein as to each of Cruz’s physical abilities and explained his
reasons for crediting these findings. Id. Cruz’s argument that the ALJ failed to “provide[] a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts, and non medical evidence,” Pl. Mem. at 18, ignores the entirety of the ALJ’s
decision, in which he reviews her abilities and the medical records to determine her RFC, see R.
176–78.
23
Cruz argues that ALJ Solomon erred by not taking into account her “non exertional
limitations of pain and obesity before determining her RFC.” Pl. Mem. at 18. In determining
whether a claimant is disabled, Social Security regulations require an ALJ to “consider all [of a
claimant’s] symptoms, including pain, and the extent to which [the] symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R.
§ 404.1529(a). The claimant’s reported symptoms are not to be accepted as conclusive of the
existence of a disability, however, but rather must be analyzed in the context of all the relevant
evidence. Id. As the regulations state:
Because symptoms, such as pain, are subjective and difficult to quantify, any
symptom-related functional limitations and restrictions which you, your treating or
nontreating source, or other persons report, which can reasonably be accepted as
consistent with the objective medical evidence and other evidence, will be taken into
account . . . in reaching a conclusion as to whether you are disabled. We will consider all
of the evidence presented, including information about your prior work record, your
statements about your symptoms, evidence submitted by your treating or nontreating
source, and observations by our employees and other persons. . . . We will consider
whether there are any inconsistencies in the evidence and the extent to which there are
any conflicts between your statements and the rest of the evidence, including your
history, the signs and laboratory findings, and statements by your treating or nontreating
source or other persons about how your symptoms affect you.
Id. § 404.1529(c)(3), (c)(4). In his opinion, ALJ Solomon stated that while Cruz’s “medically
determinable impairments could reasonably be expected to cause the alleged symptoms,” Cruz’s
claims of severe pain “are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” R. 178. In particular, the objective findings from Cruz’s
numerous medical exams were “generally minimal,” and she received “conservative treatment.”
Id. The ALJ also noted that Cruz can “only occasionally perform kneeling, crouching, stooping,
crawling, or climbing of ramps and stairs.” R. 176.
24
Cruz is correct in arguing that, where a claimant’s subjective testimony is rejected for
lack of credibility, the ALJ must do so explicitly and specifically. Williams v. Bowen, 859 F.2d
255, 260–61 (2d Cir. 1988) (where an ALJ rejects witness testimony as not credible, it must set
forth the basis for this finding “with sufficient specificity to permit intelligible plenary review of
the record”) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 643 (2d Cir.
1983)); accord Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). But that is exactly what
occurred here. In finding Cruz’s subjective complaints of pain not credible, the ALJ provided a
basis for this finding by discussing Cruz’s complaints in the context of the complete medical
record.
As for the ALJ’s accounting for the effect of Cruz’s obesity on her functional abilities,
Pl. Mem. at 21–22, the ALJ discussed the various doctors’ assessment of Cruz’s weight, see R.
177. But “obesity is not in and of itself a disability,” and “an ALJ’s failure to explicitly address
a claimant’s obesity does not warrant remand.” Guadalupe v. Barnhart, 2005 WL 2033380, at
*6 (S.D.N.Y. Aug. 24, 2005) (citing Evaluation of Obesity, SSR 00–3p, 2000 WL 33952015
(May 15, 2000)). “An ALJ’s final determination can constitute an appropriate consideration of
the effects of obesity if it properly weighs evaluations by doctors that have accounted for the
claimant’s obesity.” Paulino v. Astrue, 2010 WL 3001752, at *18 (S.D.N.Y. July 30, 2010).
Here, the ALJ discussed Cruz’s weight in the context of the medical examinations and
considered the findings of the medical examiners as a whole. R. 177. In these circumstances,
the ALJ was not required to “single out” the claimant’s obesity in his decision. Cruz v.
Barnhart, 2006 WL 1228581, at *9 (S.D.N.Y. May 8, 2006).
Cruz argues that the ALJ erred in eliciting testimony from the vocational expert in two
ways: (1) she argues that the questions posed to the vocational expert were insufficiently
25
representative of Cruz’s limitations, and (2) she argues that the questions were insufficiently
hypothetical and were specifically about Cruz herself. Pl. Mem. at 23–25. Putting aside the
potential inconsistency in these arguments, they fail on the merits. ALJ Solomon asked about an
individual with “the ability to sit, stand, and walk for at least six hours, . . . limited to occasional
climbing ramps and stairs, bouncing, stooping, kneeling, crouching, and crawling.” R. 221–22.
These limitations were supported by the record. The ALJ was not required to credit Cruz’s
assertion that she must be “allowed to sit and stand at will,” Pl. Mem. at 23, as there was
evidence in the record to support the conclusion that she could sit or stand for hours at a time, R.
144, 363.
Cruz’s argument that the ALJ incorrectly asked “specifically . . . about Ms. Nunez Cruz”
is equally meritless. The ALJ’s questions were framed as a hypothetical: he referred to a
“hypothetical claimant the age, education, and work experience [of the claimant].” R. 222. Cruz
does not provide any further elaboration or explanation of this claim. The cases relied on by
Cruz address situations where hypothetical questions failed to include subsequently-obtained
medical records, see Jehn v. Barnhart, 408 F. Supp. 2d 127, 135–37 (E.D.N.Y. 2006), or where a
vocational expert’s testimony conflicted with the Dictionary of Occupational Titles, see Sanchez
v. Barnhart, 329 F. Supp. 2d 445, 453–54 (S.D.N.Y. 2004). These cases are not analogous to the
instant case and Cruz has provided no explanation of their relevance.
Cruz also argues that the ALJ failed to take into consideration the impact of Cruz’s
limitations on her ability to take public transportation. Pl. Mem. at 24–26. It is unclear,
however, why this issue is relevant to the ALJ’s determination of disability. In any event, the
ALJ in fact considered whether Cruz could use public transportation, and found that she was able
to do so. R. 178. Dr. Finkelstein noted Cruz’s ability to use public transportation despite her
26
physical limitations in his consultative examination. R. 367. The Court notes further that Cruz's
argument incorrectly assumes that the use of public transportation necessarily means that Cruz
would be required to use stairs in a subway. PI. Mem. at 24, 25. In fact, there exist
transportation options for individuals who are unable to use the subway systems or stairs.
C.
Whether the ALI's Decision is Supported by Substantial Evidence
Cruz argues that the ALl's decision is not supported by substantial evidence, urging the
Court to "rule in favor of the claimant" because the record "compel[s] any fair-minded person to
conclude that [the claimant] cannot work." Id. at 26 (internal quotation marks and citations
omitted). But this portion of her brief, see id. at 26-29, contains no new arguments. Instead, it
reiterates arguments previously made in the brief, including arguments that the ALJ improperly
discredited Cruz's subjective complaints of pain and improperly assessed her ability to speak
English, and asserting that these errors resulted in a misapplication of the Medical Vocational
Guidelines.
at 26-29. These arguments have been rejected for the reasons already stated
above. In light of the fact that there was substantial evidence supporting the ALl's finding as to
Cruz's RFC, there was no misapplication of the Medical Vocational Guidelines.
V.
CONCLUSION
The Commissioner's motion for judgment on the pleadings (Docket # 20) is granted.
Cruz's motion for judgment on the pleadings (Docket # 25) is denied. The Clerk is requested to
enter judgment and to close this case.
Dated: April 24, 2013
New York, New York
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