Martinez v. Commissioner of Social Security
Filing
30
OPINION AND ORDER re: 26 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. The ALJ's finding that Martinez is not disabled was based on substantial evidence and free of legal error. Accordingly, the Commissioner's motion for judgment on the pleadings is GRANTED, and the case is dismissed with prejudice. (As further set forth in this Order.) (Signed by Magistrate Judge Sarah Netburn on 5/3/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DIOCENES R. MARTINEZ,
Plaintiff,
-against-
5/3/2016
14-CV-09115 (SN)
OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:
Plaintiff Diocenes R. Martinez, proceeding pro se, brings this action pursuant to Sections
205(g) and 1631(c)(3) of the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g), 1383(c)(3),
seeking judicial review of the final determination of the Commissioner of Social Security (the
“Commissioner”) denying his application for Supplemental Security Income (“SSI”). The
Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure. Martinez did not oppose the motion.
Because I conclude that substantial evidence supports the Commissioner’s final
determination, and because the administrative law judge (“ALJ”) did not commit legal error, the
Commissioner’s motion is GRANTED, and the case is dismissed with prejudice.
PROCEDURAL BACKGROUND
Martinez received SSI as a minor; after his eighteenth birthday, his eligibility for benefits
was reassessed under the criteria for adult applicants. On March 17, 2011, the Commissioner
deemed that he was not disabled. On March 29, 2011, Martinez requested reconsideration of his
disability determination, and on April 10, 2012, a hearing was held before a disability hearing
officer. On May 2, 2012, the hearing officer affirmed the Commissioner’s finding. On May 15,
2012, Martinez requested a hearing before an ALJ. On September 25, 2012, ALJ Lucian A.
Vecchio held a hearing and on November 8, 2012, he issued a decision denying Martinez’s
claims for SSI. The ALJ’s decision included a typographical error, listing the date of Martinez’s
initial denial of benefits as March 17, 2012, instead of March 17, 2011.
Martinez appealed the ALJ’s decision, and the Appeals Council granted a request for
review on August 6, 2014. On that date, the Appeals Council notified Martinez of its intention to
uphold the ALJ’s decision and gave him the opportunity to submit additional information to
support his claims. Martinez submitted letters from himself and from his physician. On
September 25, 2014, the Appeals Council adopted the ALJ’s findings that Martinez was not
disabled, but corrected the ALJ’s error, finding that Martinez was not disabled as of March 17,
2011.
On December 1, 2014, Martinez, proceeding pro se, filed his complaint challenging the
denial of his application for SSI. Martinez alleges that he is eligible for benefits because,
although his “prosthetic pulmonary value is currently functioning well,” he will “require regular
monitoring for bioprosthetic valve dysfunction [and] will likely require several more valve
replacement surgeries throughout his life.” (Compl. ¶ 4.) Along with his motion, Martinez filed
new materials to support his claim, including a letter from his physician and a visit summary
from Weill Cornell Medical College. On November 6, 2015, the Commissioner filed a motion
for judgment on the pleadings, arguing that the ALJ’s decision is supported by substantial
evidence and free of legal error. Martinez did not oppose the motion.
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FACTUAL BACKGROUND
I.
Nonmedical Evidence and Martinez’s Testimony
Martinez was born in December 1992. At the age of one, he was diagnosed with tetralogy
of fallot, and on February 16, 1994, he underwent surgery for a complete repair of his cardiac
defect. From July to August 2007, Martinez worked as a summer camp counselor, a job which
required him to walk and stand “most of the time” and occasionally lift up to ten pounds. (AR
180). In the summer of 2008, he worked as a paid intern at the same summer camp. His
responsibilities included filing papers and answering phone calls. From July 2008 to September
2010, he worked as an intern for Assemblyman Adam Clayton Powell. Martinez graduated from
high school in 2011 and currently attends Marymount Manhattan College full-time. He lives with
his mother and stepfather and is currently unemployed.
In an Adult Disability Report dated November 29, 2010, Martinez stated that he was
unable to perform strenuous activities and experienced anxiety, stress and comprehension
problems. He wrote that his condition caused fluid to build-up in his lungs, and he would likely
need another surgery in three or four years. Martinez reported that he took Motrin to treat his
frequent headaches. He stated that cardiologist Dr. Gary Steinberg had surgically treated him for
tetralogy of fallot and pulmonary valve replacement, and had recently performed an EKG and
treadmill test. Martinez also reported receiving counseling for “emotional” problems. (AR 150.)
In a Functioning Report that Martinez submitted to the New York State Office of
Temporary and Disability Assistance on January 4, 2011, he described his typical daily activities
as follows: “wake up, get ready for school, go to school, do after school activities like dance, go
to the gym, come home, eat, watch TV, shower, then go do [homework] and go to sleep.” (AR
171.) Martinez wrote that he had no problems with personal care and reported that his mother
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cooked all of his meals and performed all of the household chores. He wrote that he was able to
use public transportation and drive a car. Martinez listed his leisure activities as using the
computer, reading, watching television, dancing and drawing. He reported that dancing caused
him to grow tired quickly. When prompted to explain how his illness or condition affected his
abilities to perform various activities, Martinez wrote that his “chest may hurt a little” when
lifting heavy objects, he became “a little tired” from walking, and he sometimes lost his breath
from climbing stairs. (AR 176.) Martinez wrote the he was able to walk ten to fifteen blocks
before needing to stop and rest for approximately three minutes.
In a Disability Report dated April 4, 2011, that Martinez filed in support of his appeal
before the disability hearing officer, Martinez wrote that he was “limited to play[ing] certain
sports and doing extreme work outs.” (AR 195.) He stated that his illness did not affect his
ability to care for his personal needs. Martinez reported that he grew tired easily and lost his
breath when climbing stairs. At the end of his report, Martinez wrote: “I want you guys to take in
consideration that I am a young man that has a physical disability. I can’t play any sports with
physical contact because I get tired easily and I feel like I’m suffocating. The doctors say that in
the near future, I’ll have another surgery done, aside from the two I have already.” (AR 201.)
At the April 10, 2012 hearing before the disability hearing officer, Martinez testified that
he had been enrolled in special education classes for reading and writing until seventh or eighth
grade, when he was transferred to regular classes. He said that he was “hyperactive” in high
school, but was never prescribed any medications. (AR 85.) Martinez stated that before his 2009
surgery, he felt tired. He said that after the surgery, he felt “a little better,” but experienced sharp
pains from laughing too much. Id. Martinez said that he might need another surgery to replace
his artificial valve in five to twenty years from now.
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Martinez’s mother also testified at the April 10, 2012 hearing. She stated that from
second to sixth grades, Martinez was in special education classes because he experienced
difficulties with reading comprehension. She said that he occasionally experienced episodes of
depression, but “dances and listens to music to fight it.” (AR 86.) She said he did not perform
chores because he was “always tired.” Id. She stated that Martinez worked as a childcare
provider for a summer program in 2007, but that he had never held a full-time job because he
attended school full-time. She said that he might be able to work at McDonalds, but had too
much school work and wanted to spend time with his friends. She said that he often went to the
park or movies with his friends, and was able to use public transportation on his own.
On July 11, 2012, Martinez submitted a letter to the SSA in which he stated that anxiety
about his health was causing him to lose sleep. He wrote that he suffered from “frequent chronic
headaches,” which led him to Cornell’s pediatric emergency room on June 22, 2012. (AR 430.)
He stated that he had a neurology appointment scheduled for August 21, 2012. Martinez also
recounted an emergency room visit on December 16, 2010, when he sought treatment for chest,
muscle and general pain. He wrote that his entire life was affected by his disability, and stated
that his heart condition caused him emotional distress. Martinez wrote that he needed to continue
to collect disability benefits during college in order to “be able to focus on my education and on
recovering physically and mentally . . . .” (AR 431.)
At the hearing before the ALJ on September 25, 2012, Martinez testified that he would be
capable of performing sedentary work, but that he would “most likely not” be able to perform a
job that required lifting heavy objects. (AR 48.) Martinez testified that when he finished college,
he planned to work as a film director. He said he was currently in his sophomore year and had
“decent” grades. (AR 49.) When asked why he thought that he was disabled, Martinez said that
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about once a week he grew short of breath and experienced occasional heart palpitations. He
stated that since his two prior heart surgeries, he “never had a normal lifestyle.” Id. Martinez said
that he experienced chest pain twice a week, on average. He said that a recent stress test revealed
a heart abnormality, and he had an upcoming appointment with a cardiologist to further evaluate
the issue. Martinez testified that he sometimes had difficulty sleeping because he was worried
about his heart condition. He said that his sleep loss issues had been especially acute around the
time of his 2009 surgery.
Martinez’s sister, Alexa Encarnacion, also testified at the hearing. She stated that
Martinez was under a lot of pressure to perform well in school, and that it would be very difficult
for him to balance school and work with his health condition. She testified that although
Martinez “feels well sometimes,” his family felt that “at least for a certain amount of time, at
least until he graduates from college, to have the support from the Administration . . . would
really be something that will help him and the family . . . .” (AR 51.)
II.
Disability Opinions of Treating Physicians
A.
Dr. Leonard Gary Steinberg, M.D.
While under the treatment of Dr. Leonard Gary Steinberg, a pediatric cardiologist at Weil
Cornell Medical College, Martinez underwent pulmonary valve replacement surgery on July 14,
2009. According to the surgeon’s notes, Martinez “tolerated the procedure well” and “sustained
no appreciable intraoperative complications.” (AR 273.) A radiology report dated July 17, 2009,
indicated the presence of a “stable small left apical pneumothorax.” (AR 345.) Otherwise, no
post-operative complications were reported.
At a follow-up appointment on April 5, 2010, Dr. Steinberg characterized Martinez’s
post-operative recovery as “quite uneventful” and noted that he “continues to do extremely well
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clinically.” (AR 380–81.) During the examination, Dr. Steinberg noted a “widely split, ‘clicky’
S2” in Martinez’s second chest cavity, but observed normal sounds in all other areas of his chest.
(AR 381.) He also observed a “3/6 harsh, rough systolic ejection murmur over the left mid- and
upper sternal border.” Id. Dr. Steinberg noted that Martinez stated that he was doing “real good,”
claimed to be able to exercise harder, and denied “any palpitations, chest pain, dizziness,
syncope, or other signs or symptoms referable to the heart.” (AR 380.) Dr. Steinberg wrote that
there was “no need for physical restrictions” and recommended that Martinez return in six
months for a follow-up evaluation. (AR 381.)
On December 16 and 21, 2010, Martinez visited the emergency room at New YorkPresbyterian Hospital, complaining of “strong chest pain.” (AR 238.) A radiology report
revealed an enlargement of Martinez’s cardiac silhouette, but found no focal consolidation or
pleural effusion.
In his visit notes from January 3, 2011, Dr. Steinberg wrote that in late December,
Martinez began complaining of a “stabbing, poking” sensation over the mid-left sternal border,
which later moved to his left lower chest and abdomen. (AR 365.) The pain responded to
increased doses of ibuprofen. Dr. Steinberg ordered an electrocardiogram, which revealed a left
axis deviation, but no voltage criteria for atrial enlargement, ectopy, or ST or T wave
abnormalities. Dr. Steinberg concluded that Martinez’s chest pain was likely not cardiac in
origin. He wrote that since Martinez was “quite active in Spanish dance,” he had arranged for
him to undergo a treadmill exercise stress test. (AR 366.) In the meantime, he found that there
was “no need for physical restrictions.” Id.
On January 4, 2011, Martinez completed an exercise stress test. Dr. Steinberg observed a
“normal heart rate and blood pressure response to exercise.” (AR 371.) He wrote that there were
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“no significant EKG changes” and “no symptoms of chest pain during the test.” Id. Dr. Steinberg
noted that Martinez’s “endurance time was in the 10th percentile for his age, suggesting
suboptimal conditioning.” Id.
Dr. Steinberg examined Martinez again on January 26, 2012. He noted that his last
echocardiogram performed on August 17, 2011, had revealed a bioprosthetic valve in the
pulmonary position with mild residual stenosis and mild to moderate insufficiency. Dr. Steinberg
reported that Martinez remained “very active in Spanish dance,” and denied any palpitations,
dizziness, syncope, or recent recurrence of chest pain. (AR 404.) He noted that he had reassured
Martinez and his father that there was no need for physical restrictions.
On June 22, 2012, Martinez visited the emergency room complaining of “persistent
vomiting, worsening migraine headaches, changes in vision and dizziness.” (AR 443.) He was
scheduled for a follow-up appointment with a specialist on August 21, 2012, and sent home with
home care instructions on dealing with migraine headaches.
On July 19, 2012, Dr. Steinberg noted that Martinez complained of experiencing chest
pain over the past month. He wrote that Martinez described the pain as “poking,” not associated
with exertion, occurring one or two times a week, lasting a few seconds, and subsiding when he
breathed deeply and exhaled. (AR 420.) Dr. Steinberg added that “[d]espite this complaint, he
continues to do well – though has stopped being very active in Spanish dance.” Id. He scheduled
Martinez for a “routine surveillance Holter monitor” and a treadmill exercise stress test. (AR
421.)
On July 23, 2012, Dr. Steinberg completed a medical source statement on Martinez’s
ability to perform work-related activities. He wrote that Martinez was capable of continuously
lifting or carrying between 51 and 100 pounds, and was able to sit or stand without interruption
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for up to eight hours a day. He noted no restrictions on Martinez’s use of his hands, feet, hearing
or vision, as well as no environmental limitations.
B.
Dr. Marino Torres, M.D.
In a letter dated March 23, 2012, Dr. Torres wrote that Martinez was born with congenital
heart diseases (tetralogy of fallot), had open heart surgery as an infant and underwent a valve
replacement surgery in 2010.1 He noted that he “still needs to be followed very close and has
some limited activity due to his heart condition.” (AR 409.)
III.
Disability Opinions of Non-Treating Physicians
A.
Dr. Michelle Perez, M.D.
Dr. Michelle Perez examined Martinez on February 4, 2011. A physical examination
revealed a regular heart rhythm with a V/VI systolic murmur. She diagnosed Martinez with
tetralogy fallot repair, pulmonary valve replacement, and chest wall pain, by history. Dr. Perez
assigned him a prognosis of “fair” and concluded that he had no restrictions, but “should avoid
activities of moderate or greater levels of exertion.” (AR 375.)
B.
R. Gauthier, M.D.
On March 17, 2011, state agency medical consultant Dr. R. Gauthier reviewed Martinez’s
medical records and completed a Physical Residual Functional Capacity Assessment. Dr.
Gauthier concluded that Martinez was capable of occasionally lifting or carrying up to 20
pounds, standing or walking for between six to eight hours a workday, sitting for the same length
of time, and lacked any postural, manipulative, or visual limitations. He noted that Martinez
suffered from “occasional [shortness of breath] with exertion which subsides with rest.” (AR
388.) He wrote that Dr. Steinberg had advised Martinez that he would likely need another valve
Dr. Torres was mistaken about the date of Martinez’s valve replacement surgery, which actually occurred on July
14, 2009. (See AR 378.)
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replacement procedure in about five years. Dr. Gauthier found that “[c]laimant’s allegation of a
heart problem is somewhat supported by the medical evidence in file but not to the extent
alleged” (AR 391), and concluded that Martinez was capable of performing “light work.” (AR
392.)
In a follow-up report, Dr. Gauthier reviewed the results from Martinez’s exercise stress
test, on which he had been able to exercise to over 13 METS.2 Dr. Gauthier concluded that these
results revealed an “excellent aerobic capacity” that was “far above what it takes to perform
work as on the proposed RFC.” (AR 393.)
State agency medical consultant Dr. Agatino Di Bella, M.D., reviewed Martinez’s case
file in August, 2011, and affirmed Dr. Gauthier’s findings.
C.
Dr. Benjamin Kropsky, M.D.
Dr. Benjamin Kropsky examined Martinez on September 5, 2012. He noted that Martinez
had undergone surgeries for tetralogy of fallot at age one-and-a-half and for pulmanory valve
replacement in 2009. Dr. Kropsky wrote that Martinez reported experiencing left-sided chest
pain and that a stress test performed in August 2012 revealed “some abnormalities.” (AR 423.)
He noted that Martinez was scheduled for another stress test and further cardiac evaluation on
September 11, 2012.
Martinez told Dr. Kropsky that he was never able to play sports and became short of
breath when running. He said he was able to walk slowly up to 10 to 15 blocks and could climb
two to three flights of stairs. Martinez also reported that he became tired easily and experienced
To assess a patient’s cardiovascular fitness and exercise capacity, doctors often measure the patient’s maximal
oxygen consumption through a unit of measurement referred to as a MET, or metabolic equivalent. A MET
represents a patient’s sitting/resting oxygen intake. Moderately active young men typically have a maximum oxygen
consumption level around 12 METs. See Gerald F. Fletcher, MD, et al., AHA Scientific Statement: Exercise
Standards for Testing and Training, American Heart Association (2001),
circ.ahajournals.org/content/104/14/1694.full.
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headaches one to two times per week. Dr. Kropsky observed regular heart rhythm with a PMI in
the left 5th intercostal space and a grade 3 to 4/6 systolic murmur over the precordium, radiating
out to the anterior axillary line. (AR 424–25.) He diagnosed Martinez with congenital heart
disease with tetralogy of fallot and a history of open heart surgery, chest pain of “uncertain
etiology,” and headaches. (AR 425.) He gave him a “fair” prognosis for each diagnosis. Dr.
Kropsky concluded that Martinez required further evaluation for his chest pain, and was limited
from activities that required moderate to severe exertion. He also found that Martinez might have
further limitations, depending on the findings of the upcoming cardiac evaluation.
D.
Dr. Sree Dev T.N. Chandrasekhar, M.D.
Dr. Chandrasekhar is a board-certified family physician and pediatrician, as well as a
certified internist. At the hearing before the ALJ, Dr. Chandrasekhar stated that he had reviewed
Martinez’s medical record and listened to Martinez’s and Ms. Encarnacion’s testimony. He
testified that Martinez had fallot tetralogy at birth, which was repaired when Martinez was
approximately 18 months old. Martinez later had surgery to replace his pulmonary valve, and
additional reports indicated that his recovery was favorable. Dr. Chandrasekhar testified that
Martinez currently had a small ventricular septal defect that would require follow-up, but that his
records reflect that his condition was “extremely favorable.” (AR. 54.)
Dr. Chandrasekhar testified that none of Martinez’s impairments met the requirements of
the disabilities listed in the SSA regulations. When asked about the domains of functionality for
children, Dr. Chandrasekhar testified that before turning 18, Martinez had a “less than marked
limitation” to his health and wellbeing, due to a residual ventricular septal defect. (AR. 55.) In all
other functional areas, Dr. Chandrasekhar testified that Martinez had no limitations. In response
to the ALJ’s question about Martinez’s ability to perform at a sedentary level, Dr. Chandrasekhar
stated that he saw no reason why Martinez could not perform a sedentary job.
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IV.
Additional Documents Submitted to this Court
Martinez attached two documents to his complaint that do not appear elsewhere in the
administrative record: a letter dated November 11, 2014, from Harsimran S. Singh, M.D., a
doctor at the Cornell Center for Adult Congenital Heart Disease, and a summary of an October
31, 2014 visit with Dr. Singh. In his letter, Dr. Singh wrote that Martinez had a history of
tetralogy of fallot repair, branch PA dilation in 1999, and pulmonary valve replacement in 2009.
He stated that he had been treating Martinez since September 2012 and listed his current
symptoms as “residual biventricular dysfunction . . . a long standing history of chest pains that
have been difficult to treat,” and heart palpitations. (Compl. 5.) Dr. Singh reported that
Martinez’s pulmonary valve was “currently functioning well but will require regular monitoring
for bioprosthetic valve dysfunction.” Id. He noted that Martinez likely would require “several
more” valve replacement surgeries in the future. Id. Dr. Singh wrote that Martinez had “a long
history of complications which prevents him from living a normal life of a person his age,” and
noted that Martinez was unable to participate in competitive sports. Id. He concluded that
Martinez “has made excellent strides,” but “will continue to need close follow up given his
chronic medical condition.” Id.
In the October 31, 2014 patient visit summary, Dr. Singh noted that in August 2012,
Martinez had presented with a migraine without aura, “without mention of either intractable
migraine or status migrainosus.” (Compl. 9.) He recommended that Martinez return in six
months for a follow-up appointment.
Martinez attached several additional documents to his complaint, all of which were
already included in his administrative record. (Compare Compl. 7 with AR 224; Compl. 10 with
AR 437; Compl. 11–12 with AR 257–58.)
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DISCUSSION
I.
Standard of Review
A party may move for judgment on the pleadings “[a]fter the pleadings are closed—but
early enough not to delay trial.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion should be granted “if,
from the pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int’l Sec.
Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. & Its Local 537, 47 F.3d 14, 16
(2d Cir. 1995) (per curiam). In reviewing a decision of the Commissioner, a court may “enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g).
A determination of the ALJ may be set aside only if it is based upon legal error or is not
supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). “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.’” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the
Commissioner as to any fact are supported by substantial evidence, those findings are
conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). See also 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.”). This means that if there is sufficient
evidence to support the final decision, the Court must grant judgment in favor of the
Commissioner, even if there also is substantial evidence for the plaintiff’s position. See Brault v.
Comm’r of Soc. Sec’y, 683 F.3d 443, 448 (2d Cir. 2012) (finding that “[t]he substantial evidence
13
standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder
would have to conclude otherwise” (citation and quotation marks omitted; emphasis in original)).
“Before determining whether the Commissioner’s conclusions are supported by substantial
evidence, however, ‘we must first be satisfied that the claimant has had a full hearing under the
. . . regulations and in accordance with the beneficent purposes of the Act.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (“Cruz
I”)). “The Act must be liberally applied, for it is a remedial statute intended to include not
exclude.” Cruz I, 912 F.2d at 11.
Though generally entitled to deference, an ALJ’s disability determination must be
reversed or remanded if it is not supported by “substantial evidence” or contains legal error. See
Rosa, 168 F.3d at 77. Thus, “in order to accommodate ‘limited and meaningful’ review by a
district court, the ALJ must clearly state the legal rules he applies and the weight he accords the
evidence considered.” Rivera v. Astrue, 10 Civ. 4324 (RJD), 2012 WL 3614323, at *8 (E.D.N.Y.
Aug. 21, 2012) (“Rivera I”) (citation omitted). Without doing so, the ALJ deprives the court of
the ability to determine accurately whether his opinion is supported by substantial evidence and
free of legal error. Where the ALJ fails to provide an adequate roadmap for his reasoning,
remand is appropriate. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“[W]e do believe
that the crucial factors in any determination must be set forth with sufficient specificity to enable
us to decide whether the determination is supported by substantial evidence.”).
When, as here, the Court is presented with an unopposed motion, it may not find for the
moving party without reviewing the record and determining whether there is a sufficient basis for
granting the motion. See Wellington v. Astrue, 12 Civ. 03523 (KBF), 2013 WL 1944472, at *2
(S.D.N.Y. May 9, 2013) (recognizing, in an action appealing the denial of disability benefits, the
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court’s obligation to review the record before granting an unopposed motion for judgment on the
pleadings); Martell v. Astrue, 09 Civ. 01701 (NRB), 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct.
20, 2010) (same); cf. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 246 (2d Cir.
2004) (“[C]ourts, in considering a motion for summary judgment, must review the motion, even
if unopposed, and determine from what it has before it whether the moving party is entitled to
summary judgment as a matter of law.” (citation and internal quotation marks omitted)).
Pro se litigants “are entitled to a liberal construction of their pleadings,” and, therefore,
their complaints “should be read to raise the strongest arguments that they suggest.” Green v.
United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and internal quotation marks omitted); see
also Alvarez v. Barnhart, 03 Civ. 8471 (RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005)
(articulating liberal pro se standard in reviewing denial of disability benefits).
II.
Definition of Disability
A claimant is disabled under the Act if he demonstrates an inability “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A
determinable physical or mental impairment is defined as one that “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D). A claimant will be
determined to be disabled only if the impairments are “of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work experience, engage
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in any other kind of substantial gainful work which exists in the national economy . . . .” 42
U.S.C. § 1382c(a)(3)(B).3
Under the authority of the Act, the Social Security Administration (“SSA”) has
established a five-step sequential evaluation process when making disability determinations. See
20 C.F.R. § 416.920. The steps are followed in order: if it is determined that the claimant is not
disabled at a step of the evaluation process, the evaluation will not progress to the next step. The
Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not,
the Commissioner next considers whether the claimant has a “severe
impairment” that significantly limits her physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment that is listed in 20 C.F.R.
Pt. 404, subpt. P, app. 1 . . . . Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, she has the residual functional
capacity to perform her past work. Finally, if the claimant is unable
to perform her past work, the burden then shifts to the Commissioner
to determine whether there is other work which the claimant could
perform.
Jasinski v. Barnhart, 341 F.3d 182, 183–84 (2d Cir. 2003) (citation omitted). A claimant bears
the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It
is only after the claimant proves that he cannot return to his previous work that the burden shifts
to the Commissioner to show, at step five, that other work exists in the national and local
economies that the claimant can perform, given her residual functional capacity (“RFC”), age,
The statutory definition of “disability” in an SSI case under 42 U.S.C. § 1382c is “virtually identical” to
the standard applied to disability insurance benefits cases under 42 U.S.C. § 423. Hankerson v. Harris,
636 F.2d 893, 895 n.2 (2d Cir. 1980). Because the same standard of review applies, courts cite to cases
under 42 U.S.C. § 1382c and 42 U.S.C. § 423 “interchangeably.” Id.
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education, and past relevant work experience. 20 C.F.R. § 416.960(c)(2); Melville, 198 F.3d at
51.
III.
The ALJ’s Determination
In his November 8, 2012 decision, the ALJ found that Martinez’s disability ended on
March 17, 2012, and denied his SSI application. Although the ALJ determined that Martinez had
several severe impairments, including a history of tetralogy of fallot and heart valve replacement,
he found that these impairments did not singly or in combination meet or equal in severity any
impairments listed in 20 C.F.R. Pt. 404, subpt. P, app. 1. The ALJ concluded that Martinez had
the RFC to perform a full range of sedentary work, and that there were jobs that exist “in
significant numbers in the national economy” that he could perform. (AR. 22.)
In reaching his RFC conclusion, the ALJ gave “significant weight” to the findings and
opinions of Dr. Steinberg, consultative examiners and Dr. Chandrasekhar. (AR. 21.) He also
considered Martinez’s own testimony that he was able to perform sedentary work activities.
IV.
The Appeals Council’s Decision
On August 6, 2014, the Appeals Council granted Martinez’s request for a review of the
ALJ’s decision and notified Martinez that it planned to adopt the ALJ’s findings, but to correct
the error as to the relevant date on which his disability had ceased.
In support of his appeal, Martinez submitted two letters: one from himself and one from
his internist, Dr. Clarinelda Campusano, M.D. In his letter, dated September 1, 2014, Martinez
wrote that although his heart had improved and he was feeling “physically fit,” he worried about
the prospect of undergoing another surgery in the future, and added “even if I physically feel
okay, mentally I have gone through some break-downs.” (AR 224.). He wrote that he was barely
able to sleep at night, and spent his days trying to distract himself by hanging out with his
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friends. Dr. Campusano’s letter, dated September 2, 2014, was short and simply stated that she
had begun treating Martinez in January 2014, and that he had a history of tetralogy of fallot with
surgical repair at age 2 and pulmonary valve replacement in 2009.
On September 25, 2014, the Appeals Council issued an opinion adopting the ALJ’s
opinion in full, except to clarify that Martinez’s disability ended on March 17, 2011, rather than
March 17, 2012.
V.
Analysis
On appeal, Martinez argues that the ALJ’s decision was erroneous, not supported by
substantial evidence in the record, and/or contrary to law. In her motion for judgment on the
pleadings, the Commissioner argues that the ALJ applied the correct legal standards and his
decision is supported by substantial evidence.
A.
Substantial Evidence Standard
1.
Severe Impairments
At step two of his analysis, the ALJ and Appeals Council limited Martinez’s severe
impairments to include a history of tetralogy of fallot and heart valve replacement; excluded
from this list are Martinez’s occasional migraines, nighttime anxiety and potential learning
disability. Under the applicable regulations, an “impairment or combination of impairments is
not severe if it does not significantly limit your physical or mental ability to do basic work
activities.” 20 C.F.R. § 416.921(a). Additionally, to qualify as an impairment, the plaintiff’s
symptoms must have lasted or be expected to last for a period of at least 12 months. See 20
C.F.R. § 416.909.
There is substantial evidence to support the ALJ and Appeals Council’s finding that
Martinez’s severe impairments are limited to a history of tetralogy of fallot and heart valve
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replacement. In regard to his migraines, the record indicates that around November 2010
Martinez began taking Motrin for treatment of frequent headaches. He visited the emergency
room on June 22, 2012, complaining of persistent vomiting, worsening migraine headaches,
changes in vision and dizziness. The on-call doctor scheduled Martinez for a follow-up
appointment with a neurologist on August 21, 2012, and sent him home with information on
home care for migraines. In a letter to the SSA dated July 11, 2012, Martinez reported that he
suffered from “frequent headaches,” but did not indicate that these headaches significantly
limited his physical or mental ability to perform basic activities. Although consultative examiner
Dr. Kropsky included “headaches” in his list of diagnoses, he reported that Martinez’s prognosis
was “fair” and concluded that the headaches were not associated with any functional or cognitive
limitations. Furthermore, when the ALJ asked Martinez to explain why he believed he was
disabled, Martinez made no mention of his headaches.
Similarly, Martinez’s complaints related to his anxiety and difficulty sleeping only appear
sporadically throughout his medical records. There is no history of treatment for anxiety or sleep
disorder, and Martinez reported that his sleep loss issues had been most severe around the time
of his 2009 surgery—two years before the date on which the Commissioner determined Martinez
was no longer disabled. Although Martinez reported that he “barely get[s] any sleep” due to
anxiety about his illness, he was still able to attend school full-time, spend time with friends, and
occasionally attend dance classes. (AR 224.) Martinez’s busy academic and social life belie any
contention that his anxiety and lack of sleep have interfered with his ability to perform basic
work activities.
Finally, in regard to Martinez’s potential learning disability, the records show that he was
enrolled in special education classes for reading and writing until the seventh or eighth grade, at
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which point he was placed in regular classes. There is no record that he was ever tested for or
diagnosed with a learning disability. During high school, Martinez worked as an intern for a
local politician and as an office worker for a summer camp. He graduated from high school in
2011 and reported receiving “a decent amount of good grades” in college. (AR 49.)
Because there is no evidence indicating that Martinez’s headaches, anxiety and trouble
sleeping, or potential learning disability interfere with his ability to do basic work activities,
there is substantial evidence to support the ALJ and Appeal Council’s finding that Martinez’s
severe impairments are limited to history of tetralogy of fallot and pulmonary valve replacement.
2.
Impairment Listings
At step three, the ALJ determined that none of Martinez’s severe impairments, taken
individually or in combination with each other, meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. To satisfy the requirements
for the listed impairments of the cardiovascular system, a plaintiff must present evidence of a
disorder that “affects the proper functioning of the heart or the circulatory system.” 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 4.00(A)(1)(a). For impairments associated with congenital heart disease
that result in “chronic heart failure with evidence of ventricular dysfunction,” the AJL looks to
Part 4.02, which lists the symptoms necessary for a finding of disability due to chronic heart
failure. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.00(H)(2). To qualify for a Listing impairment of
chronic heart failure, the applicant must present evidence of medically documented systolic or
diastolic failure, resulting in (i) “persistent symptoms of heart failure which very seriously limit
the ability to independently initiate, sustain, or complete activities of daily living;” or (ii) three or
more separate episodes of acute congestive heart failure within a 12-month period; or (iii)
20
inability to perform an exercise tolerance test at a workload equivalent to 5 METs or less. 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 4.02.
There is no evidence in the record indicating that Martinez’s symptoms fulfill any of the
above-listed criteria for a finding of a per se disability. Martinez reported that his daily activities
included playing on his computer, going to school, hanging out with his friends, and occasionally
going to the gym or dance classes. Although he was unable to play certain spots or do “extreme
workouts,” he had a fairly active lifestyle and was able to initiate, sustain and complete activities
of daily living. (AR 195.) Furthermore, Martinez was able to perform an exercise tolerance test
at a workload of 13 METs – a result that Dr. Gauthier characterized as “excellent” and “far
above what it takes to perform work as on the proposed RFC.” (AR 393.) At the hearing before
the ALJ, Dr. Chandrasekhar testified that none of Martinez’s impairments met the requirements
of a Listing impairment. This conclusion is support by the findings of Martinez’s treating
physician, Dr. Steinberg, who opined that he had no restrictions on his ability to perform workrelated activities, and generally concluded that there was no need for Martinez to observe any
physical restrictions. Similarly, consulting physicians Drs. Perez and Kropsky both concluded
that Martinez was limited only from activities that required moderate to severe exertion. There is
substantial evidence to support the ALJ and Appeal Council’s findings that Martinez does not
have an impairment or combination of impairments that meets or medically equals any Listing
disability.
3.
Residual Functional Capacity
Before proceeding to step four, the ALJ determined Martinez’s RFC. The ALJ
acknowledged that the medical evidence demonstrated that Martinez had a history of congenital
heart defects, for which he underwent surgery for tetralogy of fallot at age one, and for a
21
pulmonary valve replacement in 2010.4 He noted that Dr. Torres reported that Martinez would
need close follow-up and has some limitations in his activities due to his heart condition.
The ALJ gave “significant weight” to the appointment notes and opinions of Martinez’s
treating physician, Dr. Steinberg. On an echocardiogram taken in August 2011, Dr. Steinberg
observed a bioprosthetic valve with mild stenosis and mild to moderate insufficiency. At a
follow-up appointment in January 2012, Dr. Steinberg reported that Martinez was doing well and
denied any palpitations, dizziness, syncope, chest pain or other cardiac symptoms. In a report
dated July 23, 2012, Dr. Steinberg assessed Martinez’s ability to perform work functions, and
found that he had no significant limitations.
The ALJ also afforded “significant weight” to the opinions of consultative examiners,
including Drs. Kropsky and Perez. At his appointment with Dr. Kropsky, Martinez stated that he
was able to walk up to 15 blocks and climb up to 3 flights of stairs, but added that he grew tired
easily. Martinez also said that he was never able to participate in sports, and became short of
breath when running. Dr. Kropsky’s physical exam revealed a grade 3-4/6 systolic murmur with
prominent second sound. Dr. Kropsky diagnosed Martinez with congenital heart disease, and
concluded that he was limited from performing activities that required moderate to severe
exertion because of easy fatigability. The ALJ noted that Dr. Krospky’s findings were
corroborated by Dr. Perez, who opined that Martinez should avoid activities of moderate or
greater exertion.
The ALJ also gave significant weight to Dr. Chandrasekhar’s testimony that Martinez’s
condition did not meet or medically equal any Listing impairment, and that there was no
evidence that Martinez should be restricted from performing the full range of sedentary work.
The ALJ misstated the date of Martinez’s pulmonary valve replacement surgery, which actually took place on July
14, 2009.
4
22
Finally, the considered Martinez’s own testimony, “especially his acknowledgment that
he is able to perform sedentary work activities.” (AR 21.) The ALJ concluded that since March
17, 2012, the Martinez has had the RFC to perform the full range of sedentary work, as defined
in 20 C.F.R. 416.967(a).
After a thorough review of the record, the Court finds that the ALJ’s assessment of
Martinez’s RFC is supported by substantial evidence and reflects no legal error. Although
Martinez presented evidence of recurring, occasional chest pain and shortness of breath resulting
from strenuous exercise, all of the medical and opinion evidence indicates that he retains the
capacity to perform sedentary work. His doctors unanimously determined that he was capable of
performing sedentary work and was only limited with respect to activities that required moderate
to extreme exertion. Plaintiff’s own statements, including his testimony before the ALJ, further
support the ALJ’s determination. In a disability report to the Commissioner, Martinez reported
that he had worked as a camp counsel in summer 2007 and performed office work from summer
2008 through fall 2010. Martinez stated that he was able to perform daily activities, such as use
public transportation, go shopping, and hang out with his friends. He also reported regularly
visiting the gym and attending Spanish dance practice. At the April 2012 hearing before the
disability officer, Martinez stated that he might be able to handle a job at a fast food restaurant.
His mother also corroborated this, saying “he might be able to get a job at McDonald’s but has
too much school work.” (AR 85.) At the hearing before the ALJ, Martinez testified that he could
“probably handle” a job that only involved sitting down and performing office work. (AR 48).
There is no evidence in the record that supports a conclusion that Martinez is incapable of
performing sedentary work. Accordingly, the ALJ’s findings rest on substantial evidence and are
affirmed.
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4.
Disability Determination
At step five, the ALJ determined that based on Martinez’s age, education, lack of past
relevant work, and ability to perform the full range of sedentary work, “there are jobs that exist
in significant numbers in the national economy that claimant can perform.” (AR 22.) He then
concluded that under Medical-Vocational Rule 201.27, Martinez was not disabled as of March
17, 2012. The Appeals Council’s decision amended the ALJ’s ruling to correct the date on which
Martinez was no longer disabled to March 17, 2011.
“In the ordinary case, the Commissioner meets his burden at the fifth step by resorting to
the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2.”
Rosa, 168 F. 3d at 78 (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986) (internal
quotation marks omitted). The Grid takes into account the claimant’s residual functional
capacity, age, education and prior work experience, and yields a decision of “disabled” or “not
disabled.” See Mezzacappa v. Astrue, 749 F. Supp. 2d 192, 206 (S.D.N.Y. 2010) (citing 20 CFR
§ 404.1569 & Subpt. P, App. 2, 200.00(a)). “Generally the result listed in the Grid is dispositive
on the issue of disability,” except in instances where “the medical-vocational guidelines fail to
accurately describe a claimant’s particular limitations.” Zorilla v. Chater, 915 F. Supp. 662, 667
(S.D.N.Y. 1996).
Under Medical-Vocational rule 201.27, a high school graduate between the ages of 18
and 44 with no prior work experience and who is capable of performing the full range of
sedentary work is classified as “not disabled.” Because Martinez’s limitations are exertional and
the guidelines accurately described his limitations, there was no need for the ALJ to deviate from
the Grid’s guidelines. Accordingly, the ALJ correctly concluded that Martinez is not disabled.
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B.
New Evidence
Martinez attached various documents to his complaint, including two that post-date the
Appeals Council’s decision. Under 42 U.S.C. § 405(g), the Court may remand a case “upon a
showing that there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g)
(emphasis added); see also 20 C.F.R. §§ 404.970, 416.1570(b); Perez v. Chater, 77 F.3d 41, 44–
46 (2d Cir. 1996); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988); Canales v. Comm’r of
Soc. Sec’y, 698 F. Supp. 2d 335, 341 (E.D.N.Y. 2010). Evidence is new if it did not exist before
the ALJ decision and it is not merely cumulative of evidence already in the record. Tirado, 842
F.2d at 597. Evidence is material where it “relates to the period on or before the date of the
[ALJ] hearing decision,” 20 C.F.R. § 404.970(b), is probative, and there is “a reasonable
possibility” that it would have influenced the ALJ’s decision. Tirado, 842 F.2d at 597; see also
20 C.F.R. § 416.1570(b). Documents generated after the ALJ rendered a decision are not
categorically barred so long as the documents are relevant to the time period, before the ALJ’s
decision, for which benefits were denied. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004).
See 20 C.F.R. § 416.330 (a disability claim remains in effect through the decision of the ALJ).
This is because new evidence may “disclose the severity and continuity of impairments existing”
before the ALJ’s decision and “may identify additional impairments which could reasonably be
presumed to have been present and to have imposed limitations” previously. Lisa v. Sec’y of
Dep’t of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991) (quotation marks and
citations omitted).
The two documents that Martinez submitted with his complaint are not material because
they are cumulative and support the ALJ’s determination. In his November 11, 2014 letter, Dr.
25
Singh wrote that Martinez has “residual biventricular dysfunction . . .which we are treating
medically and gradually uptitrating medications.” (Compl. 5.) He also noted that Martinez had a
“long standing history of chest pains that have been difficult to treat” and a “history of
palpitations that are under treatment.” Id. Dr. Singh wrote that Martinez would “likely require
several more valve replacement surgeries throughout his life” and concluded that he was limited
from certain exercises and from participating in competitive sports. He concluded that
“[Martinez] has made excellent strides – though he will continue to need close follow up given
his chronic medical condition.” Id. The information in Dr. Singh’s letter is fully consistent with
the medical evidence and reports from Dr. Steinberg and the SSA’s consultative physicians.
Likewise, Dr. Singh’s October 13, 2014 visit summary does not contain any new or material
information. Because these documents fully support the ALJ’s finding that Martinez is not
disabled, remand for consideration of this new evidence is unwarranted.
C.
Repayment of SSI Benefits
Along with his complaint, Martinez submitted a statement arguing that, due to financial
hardship, he should not be required to repay the SSI benefits that he elected to collect during the
pendency of his administrative appeal. The Commissioner argues that Martinez’s argument is
premature, because the Commissioner’s request for repayment is not a final decision reviewable
by this Court.
If the Commissioner finds that more than the correct amount of SSI benefits have been
paid to or on behalf of an SSI recipient, she is authorized to recover the amount of overpayment.
42 U.S.C. § 1383(b)(1). If a claimant elects to continue receiving SSI benefits during the
pendency of an administrative appeal, and the Commissioner affirms that they are no longer
eligible for benefits, the additional benefits paid pursuant to that election are considered
26
overpayments. 42 U.S.C. § 1383(a)(7)(B). The Commissioner may waive recovery of an
overpayment if she finds: “(1) the recipient was without fault; and (2) recovery would defeat the
purposes of the Act’s SSI provisions, be against equity and good conscience, or impede efficient
or effective administration of the SSI program because of the small amount involved.” Peralta ex
rel. Peralta v. Barnhart, 204 F. Supp. 2d 534, 537 (E.D.N.Y. 2002) (citing 42 U.S.C. §
1383(b)(1)(B); 20 CFR § 416.550).
An individual may seek waiver of repayment on the grounds of financial hardship. See 20
CFR § 416.553. If the waiver request is denied, the Commissioner must notify the claimant in
writing and provide him with the dates of a file review and personal conference. See 20 CFR §
416.557. At the personal conference, the claimant has the opportunity to present testimony and
evidence in support of his waiver request. Id. If he is denied waiver after the personal
conference, then he may request reconsideration. If he is denied waiver again on reconsideration,
then the claimant may request a hearing before an ALJ. See 42 U.S.C. § 1383(c)(1)(A). Only the
final determination of the Commissioner after a hearing is subject to judicial review. See 42
U.S.C. § 405(g).
Before seeking judicial review from this Court, Martinez must request a waiver of
repayment of his SSI benefits and, if necessary, follow the prescribed review procedures as
described above. Because the Commissioner’s request for repayment is not a final decision
reviewable by this Court, the Court will not address Martinez’s waiver claim at this time.
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CONCLUSION
The ALJ’s finding that Martinez is not disabled was based on substantial evidence and
free of legal error. Accordingly, the Commissioner’s motion for judgment on the pleadings is
GRANTED, and the case is dismissed with prejudice.
SO ORDERED.
DATED:
New York, New York
May 3, 2016
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