Guzman Torres v. Commissoner of Social Security

Filing 18

OPINION & ORDER re: 16 CROSS MOTION for Judgment on the Pleadings . filed by Commissoner of Social Security, 10 MOTION for Judgment on the Pleadings . filed by Carlos A. Guzman Torres. For these reasons, defendant 9;s motion for judgment on the pleadings is GRANTED and plaintiff's motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate the motions at ECF Nos. 10 and 16, to enter judgment for defendant, and to terminate this action. (As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 7/15/2016) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CARLOS A. GUZMAN TORRES,
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Plaintiff,
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 15, 2016

15-cv-1382 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Plaintiff Carlos Alberto Guzman Torres seeks review of the decision by
defendant Commissioner of Social Security that found that he was not disabled and
not entitled to Supplemental Security Income benefits under Title XVI of the Social
Security Act (the “Act”).
Plaintiff filed a claim for Supplemental Security Income in June 2012. (Tr.
18, 69, 159-67.)1 That initial application was denied in August 2012, (Tr. 69, 86-89),
and plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr.
90-92.) The hearing was held on June 21, 2013 before ALJ Michael A. Rodriguez.
(Tr. 33-60.) In a written decision dated September 27, 2013, ALJ Rodriguez found
that plaintiff was not disabled under the Act. (Tr. 12-32.) Plaintiff requested that
the Appeals Council review the ALJ’s decision; that request was denied on January
16, 2015. (Tr. 1-11.)

1

Citations to “Tr.” refer to pages of the administrative record.

On February 25, 2015, plaintiff filed this action seeking judicial review of the
ALJ’s September 27, 2013 decision. (ECF No. 1.) Now before the Court are the
parties’ cross-motions for judgment on the pleadings. (ECF Nos. 10, 16.) For the
reasons set forth below, defendant’s motion is GRANTED, and plaintiff’s motion is
DENIED.
I.

FACTUAL BACKGROUND2
Plaintiff is a forty-four year old man. (Tr. 61.) He has either an eighth- (Tr.

38), or ninth-grade education, (Tr. 179), completed in Puerto Rico. Plaintiff alleges
that he suffers from depression, hearing problems, problems with his right forearm,
a blood clotting disorder, and a history of heart attack. (Tr. 61, 178.) Plaintiff
reported working as a gardener in Puerto Rico, (Tr. 176, 179), but allegedly became
unable to work on May 1, 2012. (Tr. 178.)
A.

Medical Evidence Before the ALJ
1.

Treating Physician Evidence

The Administrative Record in this case contains several documents conveying
the actions, observations, and opinions of doctors who treated plaintiff for the
impairments that constitute his alleged disability. This treating physician evidence
covers a period of April 2012, which was shortly before plaintiff’s alleged disability
onset date, through June 2013, the date of plaintiff’s hearing before ALJ Rodriguez.
Because evidence from treating physicians is entitled to particular consideration,
the Court recounts this evidence at some length below.

The Court recites here only those facts relevant to its review. A further recitation of plaintiff’s
medical history is contained in the Administrative Record.
2

2

In April 2012, plaintiff visited Bronx Lebanon Hospital reporting headache,
left-sided chest pain, dizziness, and tongue numbness. (Tr. 242.) Although
ultrasound results indicated that plaintiff did not have Deep Vein Thrombosis
(DVT) in his left lower extremity, (Tr. 247), plaintiff’s diagnosis at discharge on
April 9, 2012 was chronic DVT. (Tr. 242.) Drs. Vijaya Perugu and Madanmohan
Patel, the doctors who treated plaintiff on this occasion, prescribed an
anticoagulant, but plaintiff refused to take this medication. (Id.) Plaintiff was
discharged with a prescription for a pain medication, an antidepressant, and an
anticoagulant. (Tr. 243.) At discharge, plaintiff was told to follow up with an
anticoagulant specialist. (Tr. 242-43.)
On May 21, 2012, plaintiff visited Dr. Cecilia Calderon of CCN General
Medicine. (Tr. 252-53.) She diagnosed deep vein thrombosis, smoker’s cough, and
hearing loss, and prescribed nicotine replacement therapy, multiple pain
medications, and an anticoagulant. (Tr. 252-53.) Dr. Calderon also referred
plaintiff for a chest X-ray. (Tr. 256-57.)
On June 11, 2012, plaintiff filed a claim for Supplemental Social Security
Income. (Tr. 18, 69, 159-67.)
On July 16, 2012, Snyde Simbert, an audiologist at Bronx Lebanon Hospital,
tested plaintiff’s hearing and referred him to HearRx. (Tr. 285.)
On October 8, 2012, Dr. Calderon completed a Medical Source Statement
setting forth her view of plaintiff’s limitations. (Tr. 452-59.) Dr. Calderon listed
diagnoses of deep vein thrombosis in the left leg and depressive disorder. (Tr. 453.)

3

She stated that plaintiff exhibited symptoms of constant pain in his left calf, which
required him to keep the leg elevated when sitting, and had side effects of upset
stomach and drowsiness from his medication. (Tr. 453-55.) Dr. Calderon further
indicated plaintiff could frequently carry up to 50 pounds, frequently flex his neck
downward, upward, right, and left and occasionally balance and stoop, and
constantly use his right and left hands without limitation for reaching, handling or
working with his fingers. (Tr. 457-58.) She reported that plaintiff did not medically
require a hand-held assistive device for walking or standing. (Id.) Finally, she
stated that, due to his impairments, plaintiff would be absent from work more than
three times a month. (Tr. 458-59.)
On October 9, 2012, plaintiff visited HearRx where audiologist Magdalena
Sarria evaluated plaintiff’s hearing test results from Bronx Lebanon Hospital. (Tr.
286.) Ms. Sarria found that the results showed mixed hearing loss that may be
associated with voiceless speech sounds and difficulty hearing in noisy and distance
environments. (Id.) She recommended plaintiff wear a hearing aid in his left ear
and ordered a hearing aid for plaintiff. (Tr. 286-88.)
On December 1, 2012, plaintiff was admitted to Bronx Lebanon Hospital
because of sharp, sudden chest pain on his left side; his chest pain was aggravated
by deep breathing, radiated to his neck, and was associated with shortness of
breath. (Tr. 323.) Plaintiff’s test results from a general physical examination were
normal except for posterior neck tenderness. (Tr. 348.) A cardiovascular
examination showed plaintiff had normal heart rate and sounds. (Tr. 349.) A chest

4

X-ray showed plaintiff’s lungs were normally inflated and clear, his heart was
normal size, and there was no sign of acute congestive heart failure or pleural
effusions. (Tr. 356.) Plaintiff’s computed tomography (CT) scan showed no evidence
of evidence of carotid artery dissection or stenosis, although the scans were
“suboptimal” because plaintiff moved during the scan. (Tr. 358-59.) Plaintiff’s test
results from an echocardiogram and an echocardiography stress test were normal.
(Tr. 344.) Because the attending physician, Dr. Yair Lev, could not find any records
at Bronx Lebanon Hospital indicating plaintiff had DVT, he recommended, with Dr.
Calderon’s consultation, that plaintiff discontinue using an anticoagulant and take
aspirin instead. (Tr. 343-44.) Dr. Lev also recommended plaintiff follow up with
Dr. Calderon. (Tr. 343.)
On December 15, 2012, plaintiff visited Lincoln Medical and Mental Health
Center, reporting feeling depressed and suicidal ideation. (Tr. 388-440.) Plaintiff
stated that “he no longer want[ed] to live,” and that he had pills at his home he
could use to kill himself. (Tr. 392, 414.) Plaintiff reported that he was depressed
because of his hearing impairment from a construction accident and because his
mother, who lives in Puerto Rico, had cancer. (Tr. 403.) On December 16, 2012,
during a progress evaluation, Dr. Christian Gonzalez noted that plaintiff presented
as irritable, marginally cooperative, with poor speech and constricted affect. (Tr.
399.) Dr. Gonzalez further noted that plaintiff reported that he was depressed
because he had a stroke after moving to New York City which left him with
weakness on his left side and, as a result, unable to work. (Id.)

5

Plaintiff was discharged on December 17, 2012, because he stated he was no
longer feeling suicidal or hopeless and wanted to be discharged. (Tr. 396.) Plaintiff
was discharged with instructions to take 150mg Wellbutrin, an antidepressant, his
usual dose. (Id.)
On May 1, 2013, plaintiff visited Martin Luther King Wellness Center and
was seen by Dr. Joe Baez because he was having active suicidal thoughts and
hearing voices. (Tr. 442.) A Spanish interpreter participated in their meeting. (Id.)
Plaintiff complained that he was unable to sleep despite taking Ambien and that
Wellbutrin was depressing his sexual function. (Tr. 443.) Dr. Baez observed that
plaintiff had no psychomotor disturbance and was alert and oriented. (Id.) Dr.
Baez also noted that plaintiff was cooperative and pleasant and had not had
significant recent weight loss or gain. (Tr. 442-44.) He doubled plaintiff’s dose of
Wellbutrin and substituted Trazodone, an antidepressant and sedative, for Ambien.
(Tr. 443.)
On the same day, May 1, 2013, Dr. Baez completed a Medical Source
Statement setting forth his views as to plaintiff’s limitations. (Tr. 466-472.) The
statement indicated that Dr. Baez was seeing plaintiff biweekly. (Tr. 467). The
statement also indicated that plaintiff had poor memory, appetite disturbance with
weight change, sleep disturbance, mood disturbance, emotional lability, delusions or
hallucinations, recurrent panic attacks, paranoia or inappropriate suspiciousness,
feelings of guilt or worthlessness, difficulty thinking or concentrating, decreased
energy, persistent irrational fears, generalized persistent anxiety, and hostility and

6

irritability. (Id.). Dr. Baez indicated that plaintiff had bipolar and episodic mood
disorders. (Tr. 468.) He opined that plaintiff’s impairments would cause him to be
absent from work more than three times a month. (Id.) Dr. Baez also opined that
plaintiff could sustain normal work performance for only up to one-third of an eighthour work day, and that he had “marked loss” in remembering locations and worklike procedures, understanding and remembering short and simple instructions,
understanding and remembering detailed instructions, carrying out detailed
instructions, maintaining attention and concentration for extended periods,
maintaining regular attendance and punctuality, sustaining an ordinary routine
without special supervision, dealing with the stress of semi-skilled and skilled work,
working in coordination with or proximity to others without being duly distracted,
making simple work-related decisions, completing a normal workday or workweek
without interruptions from psychologically based symptoms, and performing a
consistent pace without an unreasonable number and length of rest periods. (Tr.
468-69.) Dr. Baez further opined that plaintiff would have moderate to marked loss
in interacting appropriately with the public, asking simple questions or requesting
assistance, accepting instructions and responding appropriately to criticism from
supervisors, getting along with coworkers and peers without unduly distracting
them or exhibiting behavioral extremes, maintaining socially appropriate behavior,
adhering to basic standards of neatness and cleanliness, responding appropriately
to changes in routine work setting, being aware of normal hazards and taking
appropriate precautions, traveling in unfamiliar places, using public transportation,

7

and setting realistic goals or making plans independently of others. (Tr. 470.) Dr.
Baez noted that plaintiff’s condition as outlined in the Medical Source Statement
had existed and persisted since at least 1990. (Tr. 471.) He opined that plaintiff
would have marked limitations in maintaining social functioning, would often have
deficiencies of concentration, persistence, or pace which would result in plaintiff’s
failure to complete tasks in a timely manner, and would continually experience
episodes of deterioration or decompensation in work or work-like settings which
would result in plaintiff’s withdrawal from that situation or experiencing
exacerbation of his symptoms. (Tr. 470-71.)
Also on May 1, 2013, another physician, Dr. Maureen Kwan Kam, completed
a Medical Source Statement for plaintiff. (Tr. 277-83.) Dr. Kam listed diagnoses of
dyslipidemia, neck pain, arm fracture, hearing loss, abnormality of gait,
hypertension, and migraine. (Tr. 278.) Dr. Kam’s statement indicated that plaintiff
exhibited symptoms of numbness, sharp pain in arm, headaches, fatigue, trouble
breathing, and swelling in his feet. (Id.) Dr. Kam reported that nausea and
stomach upsets were side effects of plaintiff’s medication. (Tr. 279.) She opined
that plaintiff could stand or walk for less than one hour in an eight-hour work day;
never balance, stoop, or lift 21-50 pounds; only occasionally rotate his neck right,
rotate his neck left, flex his neck forward, reach with his left hand, and lift 11-20
pounds; and frequently lift 1-10 pounds, flex his neck upward, and reach with his
right hand. (Tr. 281-82.) Finally, Dr. Kam opined that plaintiff would likely be
absent from work as a result of his impairments more than three times per month

8

and that plaintiff’s condition had existed and persisted for at least one year. (Tr.
283.)
On May 15, 2013, plaintiff returned to Martin Luther King Wellness Center
for a follow-up visit with Dr. Baez. (Tr. 446.) Plaintiff reported improvement with
depression and anxiety but complained that he could not sleep, even with
trazodone, and that he had nightmares. (Id.) Dr. Baez observed plaintiff was
cooperative, alert, and oriented, and he recommended plaintiff decrease his dose of
trazodone. (Tr. 447.)
On June 12, 2013, plaintiff returned to Martin Luther King Wellness Center
for another follow-up visit with Dr. Baez. (Tr. 449.) Plaintiff reported feeling
episodes of depression and anxiety but that the episodes were relieved with
medication. (Id.) Dr. Baez reported that plaintiff was cooperative, alert, and
oriented, and continued plaintiff on his medications. (Tr. 450.)
2.

Consultative Examinations

In connection with his initial Supplemental Security Income application filed
in June 2012, plaintiff visited consulting physician Dr. Marilee Mescon and
consulting psychologist Dr. Arlene Broska.
On July 23, 2012, Dr. Mescon examined plaintiff. (Tr. 264-66.) Dr. Mescon
observed plaintiff was able to hear normal voice tones without difficulty, had a
normal gait, could walk on heels and toes without difficulty, used no assistive
devices, needed no help getting on and off the exam table, and was able to rise from
his chair without difficulty. (Tr. 264.) She also observed his hand and finger

9

dexterity were intact and his grip strength was five out of five. (Tr. 265.) She
concluded that there were no limitations in plaintiff’s ability to sit, stand, climb,
push, pull, or carry heavy objects. (Id.)
Dr. Broska also examined plaintiff on July 23, 2012. (Tr. 267-70.) An
English-Spanish translator participated in the evaluation. (Tr. 267.) Dr. Broska
observed that plaintiff was cooperative, well-groomed, and presented adequate
social skills, relating to others, and overall presentation. (Tr. 268.) She observed
that plaintiff was able to hear and communicate in a normal tone of voice, and that
he exhibited no evidence of hallucinations, delusions, or paranoia in the evaluation
setting. (Id.) Dr. Broska concluded that plaintiff could follow and understand
simple instructions, perform simple tasks independently, maintain attention and
concentration, maintain a regular schedule, perform complex tasks independently,
and make some appropriate decisions. (Tr. 269.)
B.

Non-medical Evidence Before the ALJ
1.

Recent Work History

Plaintiff previously worked as a gardener in Puerto Rico earning about $350
per week. (Tr. 179, 219) Plaintiff was no longer working at the time of his
application. (Tr. 178.)
2.

Plaintiff’s Hearing Testimony

Plaintiff was represented by counsel at his June 21, 2013 administrative
hearing; a Spanish interpreter was also present. (Tr. 35.)

10

Plaintiff testified that he came to the mainland United States from Puerto
Rico in March 2012 to help financially support his mother, who has cancer. (Tr. 38.)
In Puerto Rico, plaintiff worked full time, off the books, as a gardener and a
construction laborer. (Tr. 38-40.) When he arrived in New York, he got a job as a
maintenance worker in a 99 Cent Store. (Tr. 42.) Plaintiff testified that he stopped
working at the 99 Cent Store and has not had subsequent jobs because of his heart
condition. (Tr. 43.)
Plaintiff testified that he receives food stamps, public assistance, and
Medicaid coverage. (Tr. 44.) He testified that he is living with a friend and her
four-year-old son and that he is able to leave their residence for appointments. (Tr.
44, 46, 53.) Plaintiff further testified that he was not in a romantic relationship
with anyone and is divorced from his former wife, with whom he has two children.
(Tr. 44-45.)
Plaintiff testified at some length about his health conditions. (Tr. 46-56.) He
recounted hearing loss in his right ear and wore two hearing aids to the
administrative hearing. (Tr. 46.) He described trouble with both arms to wit: that
he was shot twice in his right arm, which now contains a plate with nine screws and
hurts “all the time,” even with pain medicine; and that he broke his left arm when
he fell from a horse at age eleven, an injury that still causes problems. (Tr. 47-49.)
Plaintiff testified about his heart condition, which he reported results in his entire
left side becoming totally numb, and about his blood clotting problem, for which he
previously took an anticoagulant. (Tr. 49-50.) Plaintiff testified that he

11

discontinued taking that medication because of the side effects, but that those side
effects persist. (Id.)
Plaintiff also testified that he has problems with his legs, feet, knees, and
hips. (Tr. 54.) He stated that his left leg gets swollen, and that a doctor told him he
needs to use a cane to walk, but that he does not use a cane because his arm
becomes numb. (Id.) According to plaintiff, he can only be on his feet, either
standing or walking, for about two blocks before he becomes short of breath. (Tr.
56.) He also recounted a cardiologist’s suggestion that he keep his legs elevated to
prevent swelling. (Id.)
Regarding his psychological condition, plaintiff testified that he used to see a
psychiatrist in Puerto Rico and that since coming to New York he has seen
psychiatrist Dr. Jose Vi for depression. (Tr. 50-52.) He stated that his symptoms of
depression are lessening, but that the medication he takes for this condition causes
him to be experience dizziness, nausea, and diminished appetite. (Tr. 52-53.)
3.

Vocational Expert Testimony

ALJ Rodriguez did not enlist the help of a vocational expert at the hearing.
(Tr. 35-60.)
C.

ALJ Decision

Plaintiff filed a claim for Supplemental Security Income on June 11, 2012
alleging a disability onset date of May 1, 2012. (Tr. 18, 69, 159-67.) On September
27, 2013, after conducting the five-step sequential evaluation process, ALJ
Rodriguez denied plaintiff’s application. (See Tr. 12-32.) The ALJ found that at

12

step one, plaintiff had not engaged in substantial gainful activity since the date he
applied for supplemental security benefits. (Tr. 20.) At step two, he found that
plaintiff had two medically determinable impairments that are severe under the
Act: depressive disorder and hearing loss. (Id.)
At step three, however, the ALJ found that no impairment or combination of
impairments met or medically equaled the severity of any impairment listed in
Appendix 1. (Tr. 21.) In particular, he found that although plaintiff had mild
restrictions to moderate difficulties—but not marked limitations—in activities of
daily living, maintaining social functioning, and maintaining concentration and
persistence of pace, these did not meet the relevant criteria. (Id.) He also found
that plaintiff had no extended periods of decompensation. (Id.)
At step four, the ALJ determined plaintiff’s residual functional capacity and
found that although he was unable to perform any past relevant work, he could
perform a full range of unskilled low stress jobs3 at all exertional levels. (Tr. 22,
34.) In addition, the ALJ found plaintiff should not be employed in a capacity
involving unprotected heights, exposure to loud noises, or interaction with the
public, and that any job should deal with things rather than people and involve only
occasional work-related interactions with co-workers and supervisors. (Id.) In
making his determinations, ALJ Rodriguez evaluated the record evidence, including
those from treating physicians, consultative examiners, and plaintiff’s hearing
testimony. (Tr. 23-26.)

Defined as requiring no more than occasional decision-making or exercise of judgment in job
performance.
3

13

At step five, the ALJ concluded that, based on the Medical-Vocational
Guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, plaintiff was able to
perform jobs existing in significant numbers in the national economy. (Tr. 27-28.)
Accordingly, the ALJ concluded that plaintiff was not disabled under the Act. (Tr.
36.)
II.

APPLICABLE LEGAL PRINCIPLES
A.

Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Id.
(quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
B.

The Disability Standard

The Commissioner will find a claimant disabled under the Act if he or she
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 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant's
impairment must be “of such severity that he is not only unable to do his previous

14

work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit 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 [“Appendix 1”]. If the claimant has a listed impairment, the
Commissioner will consider the claimant disabled without considering
vocational factors such as age, education, and work experience; the
Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity.
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.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).

15

C.

Review of the ALJ’s Judgment

The Commissioner and ALJ's decisions are subject to limited judicial review.
The Court may only consider whether the ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner's decision is final. See
Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998) (“We set aside the ALJ's decision only where
it is based upon legal error or is not supported by substantial evidence.” (citation
omitted)); 42 U.S.C. § 405(g).
Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). If the
Commissioner and ALJ’s findings as to any fact are supported by substantial
evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59
F.3d 307, 312 (2d Cir. 1995).
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having

16

rational probative force, we will not substitute our judgment for that of the
Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See 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.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).
Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff’s testimony and
observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must
contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.

17

D.

The Treating Physician Rule

“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant's treating physician,” although an ALJ need not afford
controlling weight to a treating physician's opinion that is “not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.
Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
not given “any special significance.” 20 C.F.R. § 416.927(d)(3); see also Soc. Sec.
Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the Social
Security Administration considers the data that physicians provide but draws its
own conclusions as to whether those data indicate disability. A treating physician’s

18

statement that the claimant is disabled cannot itself be determinative.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.
E.

The ALJ’s Duty to Develop the Record

Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses
and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ's affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); see also Calzada v. Asture, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able 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 is obligated to request such
missing information from the physician.” (citing Perez, 77 F.3d at 47)).
III

DISCUSSION
The ALJ correctly conducted the five-step analysis required by 20 C.F.R. §§

404.1520 and 416.920. The ALJ's determinations at steps one through three are not
challenged.

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A.

Treating Physicians’ Opinions

Plaintiff’s first argument is that, at step four, the ALJ “failed to properly
apply the treating physician rule when he considered the opinions of all three
treating physicians that submitted opinions in this case.” (Pl.’s Mem. at 3.) The
Court disagrees.
In giving limited weight to Drs. Baez’s, Calderon’s, and Kam’s assessments,
the ALJ properly considered the factors in 20 C.F.R. § 416.927, stated the weight he
gave to each of the opinions, and gave an explicit rationale for his determination in
that regard. See Halloran, 362 F.3d at 32.
1.

Dr. Joe Baez

ALJ Rodriguez found that Dr. Baez’s opinion was inconsistent with the
clinical and diagnostic medical evidence in the record—including his own objective
observations—and thus did not give it controlling weight. (Tr. 26.) 20 C.F.R. §
416.927(c)(2). This was proper. In Dr. Baez’s May 1, 2013 Medical Source
Statement he indicated that plaintiff had a very long list of symptoms4, had
“marked loss” in sixteen work-related mental abilities, and that these impairments
would cause plaintiff to be absent from work more than three times a month. (Tr.
468-471.) ALJ Rodriguez found that this report of severe limitations was
inconsistent with Dr. Baez’s treatment notes dated the very same day. As discussed

Poor memory, appetite disturbance with weight change, sleep disturbance, mood disturbance,
emotional lability, delusions or hallucinations, recurrent panic attacks, paranoia or inappropriate
suspiciousness, feelings of guilt or worthlessness, difficulty thinking or concentrating, decreased
energy, persistent irrational fears, generalized persistent anxiety, and hostility and irritability. (Tr.
467).
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above, Dr. Baez’s May 1, 2013 treatment notes indicated that plaintiff was alert,
oriented, showed no psychomotor disturbance, was not reporting auditory or visual
hallucinations, was not reporting delusions or paranoia, had no recent significant
weight loss or gain, displayed fair insight, judgment, and impulse control, had a
stable mood, and was cooperative and pleasant. (Tr. 442-44.) Subsequent
treatment notes from May 15, 2013 and June 12, 2013 also indicate plaintiff was
cooperative, alert, and oriented and are inconsistent with the May 1, 2013 Medical
Source Statement. (Tr. 447, 450.)
In addition to being inconsistent with his own treatment notes, Dr. Baez’s
Medical Source Statement is inconsistent with the opinion of Dr. Arlene Broska,5 a
consultative examiner. On July 23, 2012, Dr. Broska examined plaintiff and opined
that plaintiff could follow and understand simple directions and instructions,
perform simple and complex tasks independently, maintain attention and
concentration, and make some appropriate decisions. (Tr. 269.) In sum, she found
that “the results of the examination appear to be consistent with psychiatric
problems, but in itself, this does not appear significant enough to interfere with
[plaintiff’s] ability to function on a daily basis.” (Id.)
Thus, because Dr. Baez’s opinion was inconsistent with the record as a whole,
the ALJ properly did not give it controlling weight. 20 C.F.R. § 416.927(c)(4).

Plaintiff seeks to discredit Dr. Broska’s evaluation because their meeting was conducted with a
Spanish interpreter, Pl.’s Mem. at 6, n1, but the treatment notes of Dr. Baez, whom plaintiff seeks to
credit, indicate that he also used a Spanish interpreter. (Tr. 442.)
5

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2.

Dr. Cecilia Calderon

ALJ Rodriguez found the opinion of Dr. Calderon, another of plaintiff’s
treating physicians, was “generally consistent with the medical evidence of record
and the objective findings of the consultative examiner” and accordingly gave it
“some weight.” (Tr. 26.) In a Medical Source Statement completed on October 8,
2012, Dr. Calderon opined that plaintiff could frequently lift and carry up to 50
pounds, had no limitations in using his hands for reaching, handling, or working
with his fingers, and did not need an assistive devices to walk. (Tr. 457-58). These
statements were consistent with the medical record as a whole. For example, the
findings are consistent with the opinion of Dr. Mescon, plaintiff’s consultative
examiner, who opined that plaintiff had intact hand and finger dexterity, full grip
strength, full strength in his upper and lower extremities, and no limitations in his
ability to sit, stand, climb, push, pull, or carry heavy objects. (Tr. 265.)
The ALJ did not give controlling weight to the portions of Dr. Calderon’s
opinion that were inconsistent with the medical record. 20 C.F.R. § 416.927(c)(4).
This was proper. Most significantly, Dr. Calderon diagnosed plaintiff with DVT in
his left leg on October 8, 2012 (Tr. 453); that diagnosis is inconsistent with the
objective medical evidence, specifically ultrasound results from April 7, 2012 which
reported that plaintiff had “[n]o DVT in the left lower extremity.”6 (Tr. 247.) In
fact, Dr. Calderon seems to have placed plaintiff on Coumadin, an anticoagulant,

Plaintiff alleges that the ALJ improperly substituted his own medical opinion when he found that
plaintiff’s allegations of DVT were not supported by clinical or diagnostic findings. Pl.’s Mem. at 8,
n2. The objective medical record, however, affirmatively indicates plaintiff did not have DVT. (Tr.
247.)
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because a report from Bronx Lebanon Hospital indicated that plaintiff had DVT,
but Dr. Yair Lev of Bronx Lebanon Hospital could find no such record when plaintiff
checked into Bronx Lebanon Hospital in December 2012. When Dr. Lev alerted Dr.
Calderon there was no report from Bronx Lebanon Hospital indicating plaintiff had
DVT, Dr. Calderon stopped plaintiff’s anticoagulation medicine that day. (Tr. 343.)
3.

Dr. Michelle Kwan Kam

ALJ Rodriguez properly gave “little weight” to the opinion of Dr. Michel
Kwan Kam, plaintiff’s other treating physician, because it was “inconsistent with
the medical evidence of record including the recent treatment notes indicating the
claimant’s symptoms have improved with treatment and the objective findings of
the consultative examiners.” (Tr. 26.) Specifically, Dr. Kam indicated plaintiff had
extensive limitations, but Dr. Mescon’s evaluation flatly contradicted this opinion.7
Dr. Kam’s statement that plaintiff could only occasionally carry eleven to twenty
pounds and could never carry anything heavier (Tr. 282) was also inconsistent with
the opinion of another treating physician, Dr. Calderon, who opined that plaintiff
could frequently carry up to fifty pounds. (Tr. 457.)
ALJ Rodriguez considered the factors required under 20 C.F.R. § 416.927,
and set forth specific reasons in the record evidence for not assigning controlling
weight to Drs. Baez’s, Calderon’s, and Kam’s opinions. The Court’s review of the
Administrative Record demonstrates that the ALJ’s determination was based upon

Plaintiff seeks to discredit Dr. Mescon on the ground that her report was “inherently inconsistent.”
Pl.’s Mem. at 9, n3. Minor inaccuracies regarding left and right are not enough to discredit a
physician’s entire evaluation.
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substantial evidence. See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)
(“The opinion of a treating physician is not binding if it is contradicted by
substantial evidence.”). Thus, the ALJ appropriately assessed that plaintiff had the
residual functional capacity to perform a full range of work at all exertional levels
limited to unskilled, low-stress jobs involving no interaction with the public, no
unprotected heights or loud noises, and dealing with things rather than people and
requiring only occasional decision-making and work-related interaction with
coworkers. (Tr. 22.)
B.

Assistive Device

Plaintiff’s second argument in support of his position is that the ALJ failed to
consider “the overwhelming evidence that [he] needs a cane to ambulate.” (Pl.’s
Mem. at 9.) The Court, however, finds that the ALJ did not err regarding plaintiff’s
alleged use of a cane.
Plaintiff’s claim that he needs a cane is inconsistent with the record as a
whole. As evidence that he needs a cane to walk, plaintiff cites his Dr. Kam’s
Medical Source Statement and his hearing testimony. (Tr. 295, 54-55). However,
plaintiff’s claim that he needs a cane to walk is contradicted by Dr. Calderon’s
Medical Source Statement, which plaintiff seeks to credit as an opinion of a treating
physician and which indicates plaintiff does not need to use a cane to walk (Tr. 458),
and Dr. Mescon’s evaluation, which indicates that plaintiff did not use a cane, had a
normal gait and stance, could squat fully, could walk on his heels and toes without

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difficulty, and had limitation in his ability to sit, stand, climb, push, pull, or carry
heavy objects, (Tr. 264-65).
Furthermore, plaintiff admits he has not obtained and does not use a cane to
walk. (Tr. 54-55, Pl.’s Mem. at 9.) Plaintiff urges the Court to view this fact as an
indication of plaintiff’s extremely weak upper body; plaintiff claims his arms would
become numb if he used a cane. (Tr. 54-55, Pl’s. Mem. at 9.) However, there is no
objective medical evidence of weak upper body strength or arm-numbness. Results
from a musculoskeletal evaluation conducted in December 2012 were normal. (Tr.
334.) Additionally, Dr. Mescon’s evaluation indicates that plaintiff had full range of
motion in his shoulders, elbows, forearms, and wrists bilaterally, had full strength
in his upper extremities, and no evident muscle atrophy. (Tr. 265.) Thus, the Court
views the fact that plaintiff does not use a cane to walk as an indication that
plaintiff does not need to use a cane to walk and accordingly finds the ALJ did not
err regarding plaintiff’s alleged use of a cane.
C.

Medication Side Effects

Plaintiff’s third argument in support of his position is that the ALJ failed to
consider the alleged side effects of his medication. (Pl.’s Mem. at 10.) Plaintiff’s
side effects from medication are detailed throughout the administrative record,
although the nature of the side effects varies: plaintiff testified he has nose bleeds
(Tr. 50), urinates blood (Id.), and experiences dizziness, nausea, and loss of appetite
(Tr. 53); Dr. Baez indicated that plaintiff reported trouble with his sleep cycle (Tr.
443, 447), diminished sexual function (Tr. 442-43), nausea (Tr. 468), and upset

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stomach (Id.); Dr. Broska reported that plaintiff had difficulty sleeping and poor
appetite (Tr. 267); Dr. Calderon reported that plaintiff experience upset stomach
and drowsiness (Tr. 454); Dr. Kam reported that plaintiff experienced nausea and
stomach upsets (Tr. 279). The only physician who did not indicate plaintiff had side
effects was Dr. Mescon. (Tr. 263-66.)
The ALJ recognized plaintiff’s side effects: he noted that Dr. Broska, whose
opinion he gave “great weight,” reported that plaintiff had difficulty falling asleep
and poor appetite. (Tr. 24.) Ultimately, however, the ALJ determined plaintiff was
not credible as to his complaints because “[t]he objective medical findings reveal
some limitations, but not to the extent alleged by [plaintiff].” (Tr. 25.)
In assessing a claimant’s credibility, “after weighing objective medical
evidence, the claimant's demeanor, and other indicia of credibility,” and ALJ “may
decide to discredit the claimant's subjective estimation of the degree of
impairment.” Tejada, 167 F.3d at 776 (citation omitted). As with any finding of
fact, “[i]f the Secretary's findings are supported by substantial evidence . . . the
court must uphold the ALJ's decision to discount a claimant's subjective complaints
of pain.” Perez v. Barnhart, 234 F.Supp.2d 336, 341 (S.D.N.Y. 2002) (quoting
Aponte, 728 F.2d at 591). An ALJ's credibility determination is thus entitled to
deference unless it is not set forth “with sufficient specificity to enable [a reviewing
court] to decide whether [it] is supported by substantial evidence.” Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

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Here, the ALJ properly referenced specific reasons for assigning limited
weight to plaintiff’s testimony regarding side effects. (Tr. 23, 25-26.) See Social
Security Ruling (SSR) 96-7P, Dept. of Health and Human Services (July 1996). The
Court therefore accepts ALJ Rodriguez’s credibility determination and finds no
error on this point.
D.

Combination of Mental and Physical Impairments

Plaintiff’s fourth argument in support of his position is that the ALJ failed to
consider that his mental and physical impairments in combination when
determining his residual functional capacity. (Pl.’s Br. at 11.) The ALJ, however,
twice expressly stated that he had considered plaintiff’s impairments in
combination: he found plaintiff’s impairments to be “severe, in combination if not
singly,” (Tr. 20), and he “considered all of [plaintiff’s] impairments individually and
in combination.” (Tr. 21). In light of the ALJ’s explicit acknowledgement of the
need to consider impairments in combination, the Court rejects this argument.
Plaintiff further argues that the ALJ failed to consider the fact that plaintiff
is illiterate in English when he considered plaintiff’s residual functional capacity.
(Pl.’s Mem. at 11.) According to the guidance in 20 C.F.R. § Pt. 404, Subpt. P, App.
2., however, “literacy or ability to communicate in English has the least
significance” in the context of “unskilled work,” which primarily involves “working
with things (rather than with data or people).” 20 C.F.R. § Pt. 404, Subpt. P, App.
2. In this case, the ALJ found plaintiff had the residual functional capacity to
perform unskilled work limited to jobs dealing with things rather than people. (Tr.

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22.) Thus, plaintiff’s illiteracy does not have high significance and the ALJ did not
err in not explicitly considering it in his written decision.
E.

Vocational Expert Testimony

Finally, plaintiff argues that, because the ALJ found that he had
nonexertional limitations, he was required to obtain vocational expert testimony.
(Pl.’s Mem. at 13.) The Court disagrees.
While “sole reliance on the [Medical-Vocational Guidelines, or “Grids,”] may
be inappropriate where the claimant's exertional impairments are compounded by
nonexertional impairment . . . ‘the mere existence of a nonexertional impairment
does not automatically require the production of a vocational expert nor preclude
reliance on the guidelines.’” Roma v. Astrue, 468 F. App'x 16, 21 (2d Cir. 2012)
(citing Bapp v. Bowen, 802 F.2d 601 (2d Cir. 1986)). It is only when a “claimant’s
work capacity is significantly diminished beyond that caused by his exertional
impairment the application of the grids is inappropriate.” Id. at 605-06.
“Significantly diminished” indicates an “additional loss of work capacity . . . that so
narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Id. at 606.
In this case, the ALJ found that while plaintiff’s ability to “perform work at
all exertional levels ha[d] been compromised by nonexertional limitations,” the
“limitations ha[d] little or no effect on the occupational base of unskilled work at all
exertional levels.” (Tr. 27.) For plaintiff to do unskilled work, he must have “the
abilities (on a sustained basis) to understand, carry out, and remember simple

28

instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.” SSR 85-15, Dept. of
Health and Human Services (Jan. 1985). None of the nonexertional limits
identified by the ALJ—no unprotected heights or exposure to loud noises; no more
than occasional decision making or exercise of judgment in job performance; no
interactions with the public; occasional work-related interaction with co-workers
and supervisors; jobs dealing with things rather than people—narrows plaintiff’s
possible range of unskilled work so as to deprive him of meaningful employment
opportunities. (Tr. 22.) Thus, plaintiff’s nonexertional limitations did not result in
an additional loss of work capacity, and the ALJ properly relied on the Grids.
IV.

CONCLUSION
For these reasons, defendant’s motion for judgment on the pleadings is

GRANTED and plaintiff’s motion for judgment on the pleadings is DENIED. The
Clerk of Court is directed to terminate the motions at ECF Nos. 10 and 16, to enter
judgment for defendant, and to terminate this action.

SO ORDERED.
Dated:

New York, New York
July 15, 2016

_________________________________
KATHERINE B. FORREST
United States District Judge

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