Cruz v. Colvin
DECISION AND ORDER GRANTING Defendant's 11 Motion for Judgment on the Pleadings; DENYING Plaintiff's 9 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 3/30/2017. (MEAL)- CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EDELMIRO CRUZ, JR.,
DECISION AND ORDER
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Edelmiro Cruz, Jr. challenges an Administrative Law Judge’s
(“ALJ”) determination that he is not disabled within the meaning of the Social Security
Act (“the Act”). Plaintiff alleges that he has been disabled since January 31, 2012, due
to the following severe impairments: thoracolumbar disc disease, migraine headaches,
ear pain, anxiety, depression, asthma, vertigo, temporomandibular joint disorder
(“TMJ”), sleep apnea, and hypertension.
Plaintiff argues that his impairments have
rendered him unable to work. He therefore asserts that he is entitled to payment of
disability insurance benefits.
Plaintiff filed an application for disability insurance benefits on March 21,
The Commissioner denied the application, after which Plaintiff timely filed a
request for a hearing. Pursuant to Plaintiff’s request, ALJ David S. Lewandowski held
an administrative hearing on June 10, 2013.
Plaintiff appeared with counsel and
testified, as well as an impartial vocational expert. The ALJ considered the case de
novo, and on August 26, 2013, issued a decision denying Plaintiff’s application for
benefits. On December 24, 2014, the Appeals Council denied Plaintiff’s request for
review, thereby rendering the ALJ’s August 26, 2013 decision the Commissioner’s final
Plaintiff filed the current civil action on February 27, 2015, challenging the
Commissioner’s final decision.
On September 22, 2015, Plaintiff filed a Motion for
Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. (Docket No. 9.) Defendant filed a Motion for Judgment on the Pleadings on
November 23, 2015. (Docket No. 11.) After full briefing, this Court deemed the motions
submitted and reserved decision. For the following reasons, Defendant’s motion is
granted and Plaintiff’s is denied.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla,” and it has been defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.
2d 842 (1971).
Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld.
See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner’s finding must be sustained “even where substantial evidence may
support the plaintiff’s position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992).
In other words, this Court must afford the Commissioner’s
determination considerable deference, and will not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled as defined under the Act. See
20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287,
2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing
whether a claimant is disabled.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him 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, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in
original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. §
While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant’s job qualifications by considering his physical ability, age, education, and work
Second, the Commissioner must determine whether jobs exist in the
national economy that a person having the claimant's qualifications could perform. See
42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458,
460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
In this case, the ALJ determined that Plaintiff last met the insured status
requirements of the Act on December 31, 2016. He then made the following findings
with regard to the five-step process, set forth above: (1) Plaintiff has not engaged in
substantial gainful activity (“SGA”) since his alleged onset of disability date on January
31, 2012 (R. at 27);1 (2) Plaintiff has the following severe impairments:
thoracic, and lumbar disc disease status post-assault and cervicogenic headaches (id.);
(3) Plaintiff does not have an impairment or combination of impairments that meets or
Citations to the underlying administrative record are designated as “R.”
medically equals the severity of one of the listed impairments in 20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526 (R. at 29); (4) Plaintiff retains the residual
functional capacity (“RFC”) to perform sedentary exertional work as defined in 20 C.F.R.
§ 404.1567(a) with certain additional exertional2 and non-exertional3 limitations, and that
this RFC precluded Plaintiff from performing any past relevant work (R. 29-31); and (5)
considering the Plaintiff’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform (R. 33).
Ultimately, the ALJ concluded that Plaintiff was not disabled, as defined by the Act, at
any time through the date of his decision. (R. at 34.)
Plaintiff challenges three elements of the ALJ’s decision.
argues that the ALJ erred by not considering Plaintiff’s TMJ, vertigo, ear pain, and
hearing loss as severe impairments at Step Two of the five-step analysis. A “severe
impairment” is “any impairment or combination of impairments which significantly limits
[a claimant’s] physical or mental ability to do basic work activities,” including
understanding and carrying out simple instructions and responding appropriately to
others in usual work situations.
20 C.F.R. § 404.1520(c); § 404.1521.
An ALJ is
required to identify all impairments supported by substantial evidence at Step Two, in
order to avoid “prejudic[ing] the claimant at later steps in the sequential evaluation
process.” Lowe v. Colvin, No. 6:15-CV-06077(MAT), 2016 WL 624922, at *3 (W.D.N.Y.
Feb. 17, 2016) (internal quotation omitted). “Any error in failing to identify a severe
Plaintiff’s exertional RFC further states that Plaintiff can only stand and walk up to three hours in an
eight-hour workday and can sit at least six hours during an eight-hour workday all in twenty-minute
intervals; Plaintiff is limited to occasional postural activities, and occasional pushing and pulling; Plaintiff is
limited to rare stair climbing and crawling (representing 5% of an eight-hour workday); and Plaintiff is
limited to no lifting from floor to waist level and may reach frequently, though should perform no overhead
reaching. (R. 29.)
Plaintiff’s non-exertional RFC further states that Plaintiff is limited to a low-stress work environment,
which is defined as semi-skilled tasks or less. (R. 29.)
impairment, however, is harmless if that impairment is specifically considered during the
Morales v. Colvin, No. 13-CV-550S, 2014 WL 4829351, at *4
(W.D.N.Y. Sept. 29, 2014) (citing Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir.
2013) (finding an alleged Step Two error harmless because the ALJ considered the
impairments found non-severe during subsequent steps)); see also Diakogiannis v.
Astrue, 975 F. Supp. 2d 299, 311-12 (W.D.N.Y. 2013) (“[a]s a general matter, an error
in an ALJ’s severity assessment with regard to a given impairment is harmless when it
is clear that the ALJ considered the claimant’s impairments and their effect on his or her
ability to work during the balance of the sequential evaluation process”) internal
quotations and punctuation omitted)).
Although the ALJ did not identify TMJ as a severe impairment at Step Two, he
did find Plaintiff’s headaches to be a severe impairment and considered them
throughout the remainder of the assessment. (R. at 27.) Other than headaches, the
only other documented symptom of Plaintiff’s TMJ is an audible clicking sound noted by
Dr. Dave, a consulting examiner. (R. at 316.) Because Plaintiff does not argue that
clicking noise limited his ability to perform work activities, and because the limitations
arising from Plaintiff’s TMJ-induced headaches were properly incorporated into the
RFC, there was no error in not specifically naming TMJ as a severe impairment at Step
Two. Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010) (remand is not necessary when
there is no reasonable likelihood that an ALJ’s examination of the same evidence would
change the RFC determination); see generally Paz v. Comm’r of Soc. Sec., No. 14-cv6885, 2016 WL 1306534, at *13 (E.D.N.Y. Mar. 31, 2016) (remand not warranted
despite ALJ's failure to recognize a particular limitation as a severe impairment because
the ALJ did identify severe impairments at Step Two, so that Plaintiff’s claim proceeded
through the sequential evaluation and ALJ considered the combination of impairments
and all symptoms in making the RFC determination).
As to the other alleged impairments—vertigo, ear pain, and hearing loss—the
ALJ properly found that “no treating or examining source noted clinical signs of any
limitations related to these impairments.” (R. at 27.) Dr. Paolini, a treating physician,
found no symptoms consistent with vertigo and opined that Plaintiff experienced a
benign positional vertigo that did not limit Plaintiff from returning to work. (R. at 403.)
Moreover, Plaintiff told Dr. Paolini that he was able to cope with his mild vertiginous
symptoms and that the symptoms continued to improve over time.
(R. at 405.)
Similarly, the medical opinion evidence in the record does not support Plaintiff’s
contention that hearing loss and ear pain are severe impairments.
opinions, from Drs. Dave, Paolini, and Ryan (Plaintiff’s treating psychologist), found that
Plaintiff’s hearing loss did not impact normal conversation. (R. at 408-09 (Plaintiff’s
hearing “grossly” normal for conversation); R. at 310-11 (Plaintiff did not experience any
difficulties arising out of hearing loss; (R. at 317) (Plaintiff did not require a higher
volume of speech to communicate).)
Finally, the record indicates that the medical
evidence cited by Plaintiff regarding his ear pain predated the alleged onset date of his
disability (R. at 259-77),4 and none of the later evidence notes ear pain as an issue. In
short, to the extent that Plaintiff experienced any impairment associated with vertigo,
ear pain, and hearing loss, such impairments did not “significantly limit[ ] his physical or
mental ability to do basic work activities.” Berry, 675 F.2d at 467. Accordingly, the
See Medical Examination & Follow-Up Reports, dated June 2, 2011 through January 23, 2012, from
Ears, Nose & Throat Care of Western New York. Plaintiff’s alleged onset of disability is January 31, 2012.
ALJ’s determination that TMJ, vertigo, ear pain, and hearing loss are not severe
impairments is not a basis for remand.
Second, Plaintiff argues that the RFC determination failed to properly
address Plaintiff’s headaches, side effects from pain medications, and ability to sit
throughout an eight-hour workday. Plaintiff contends that his testimony and the medical
evidence suggest greater limitations than are currently included within the ALJ’s RFC
The RFC determination is at the sole discretion of the ALJ after
weighing all relevant objective and subjective evidence in the record, including the
claimant’s medical records, acceptable medical source opinions, “other source”
opinions, and the claimant’s testimony regarding the alleged limitations. 20 C.F.R. §
404.1545 (noting that a claimant’s RFC must be consistent with the entire medical
With respect to the evidence of headaches, Plaintiff points to Dr. Dave’s opinion
that Plaintiff’s headaches sometimes persist over several hours and cause moderate
limitations (R. at 317-18), as well as the indications in the record of Plaintiff’s frequent
complaints of headaches to his treating physicians (see R. at 259-83, 289-90, 395-98).
Plaintiff alleges that this documented history of headaches demonstrates an inability to
conduct daily activities and undermines the ALJ’s RFC determination. The ALJ, in
reaching his RFC determination, stated that he did not attribute significant weight to Dr.
Dave’s opinion of the severity of the headaches because no objective medical findings
supported Plaintiff’s reports that his headaches profoundly limited his ability to work (R.
at 316-17), and thus the opinion relied solely upon Plaintiff’s subjective complaints. The
ALJ also found that Plaintiff’s subjective statements regarding the alleged debilitating
nature of his headaches were not credible, because the objective medical evidence
failed to corroborate them.
Moreover, Plaintiff’s descriptions of the severity of his
headaches were also inconsistent with Plaintiff’s testimony, wherein Plaintiff
acknowledged that medication alleviated their severity and frequency.
(R. at 52
(“[headache medication] helps to reduce the pain and then I can take another
medication that helps the headache to go away”).) There is no error in giving less
weight to statements that are inconsistent with medical evidence, or with the remainder
of the record. See Wells v. Colvin, 87 F. Supp. 3d 421, 431 (W.D.N.Y. 2015) (citing 20
C.F.R. § 404.1529(a)) (ALJ properly found that Plaintiff's statements concerning the
intensity, persistence, and limiting effects of abdominal conditions and chronic fatigue
syndrome were not credible, as they were inconsistent with the medical evidence); Lay
v. Colvin, No. 14-CV-981S, 2016 WL 3355436, at *7 (W.D.N.Y. June 16, 2016) (holding
that ALJ was within his discretion to use objective medical record in determining the
credibility of Plaintiff’s statements regarding disabling limitations).
With respect to side effects, Plaintiff argues that the ALJ did not give proper
weight to his elevated anxiety, mood swings, dizziness, and nausea, which are caused
by his pain medication. SSR 96-7p requires the ALJ, when determining the credibility of
a claimant’s subjective statements that medication hampers daily living activities, to
consider the following: the type, dosage, and side effects of a claimant’s medication in
conjunction with objective medical opinion evidence.
statements to various treating and examining physicians regarding his daily living habits
undermine his argument. For example, Plaintiff told his physicians that the prescribed
Opana aids in his ability to attend church meetings, work as a delivery driver, enjoy time
with his family, go camping, help with childcare, and take family vacations, and that he
was able to play video games, read, and watch television. (R. at 311, 411, 382, 574.)
These statements indicate that Plaintiff’s daily living activities were not hindered, but
were instead supported by the prescriptions. Accordingly, the ALJ did not err in his
RFC determination. See Hogan v. Astrue, 491 F.Supp.2d 347, 353 (W.D.N.Y. 2007)
(quoting 20 C.F.R. § 404.1529(c)(3)) (“Because symptoms, such as pain, are subjective
and difficult to quantify, any symptom-related functional limitations and restrictions . . . ,
which can reasonably be accepted as consistent with the objective medical evidence
and other evidence, will be taken into account. . . .”).
Finally, Plaintiff contends that the ALJ erred in the RFC determination that
Plaintiff can sit for six hours a day in twenty minute intervals. Nurse Practitioner (“NP”)
Melendez opined that Plaintiff could sit up to six hours a day in twenty minute intervals. 5
(R. at 374.) Dr. Williams, a treating physician, opined in January 2013 that Plaintiff can
sit or stand up to two hours per day.6 (R. at 513.) In a later opinion from May 2013, Dr.
Williams placed no limitation on Plaintiff’s ability to sit. (R. 410.) The ALJ stated that he
gave significant weight to NP Melendez because his opinion was supported by records
from an occupational therapist and consistent with the objective medical evidence in the
record. Although the ALJ did not specifically state why he gave less weight to the
postural limitation in Dr. William’s earlier opinion, it is possible to infer that the ALJ found
NP Melendez’s opinion more persuasive because it was most consistent with the record
Plaintiff argues that NP Melendez’s medical opinion did not specify the number of hours per day that
Plaintiff would be able to sit and only indicated in twenty-minute intervals. However, based upon a review
of the record, this Court finds that NP Melendez indicated that Plaintiff could sit “Up to 6 hours” by
drawing a line next to it.
The report also states that Plaintiff is limited to lifting no more than 10 to 15 pounds, with limited
bending, stooping, crawling, climbing, and squatting, and overhead reaching. (R. at 29, 410.) These
limitations were weighed by the ALJ and are consistent with his RFC determination. (Id.)
as a whole. Sloan v. Colvin, 24 F. Supp. 3d 315, 325 (W.D.N.Y. 2014) (“Where . . . the
evidence of record permits us to glean the rationale of an ALJ’s decision, we do not
require that he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or insufficient. . . .”
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). Further, “[t]he ALJ
has the authority to weigh the[ ] opinions, resolve any conflicts, and determine how
much weight to accord any particular opinion.” Hendricks v. Comm’r of Soc. Sec., 452
F. Supp. 2d 194, 200 (W.D.N.Y. 2006).
Having considered the parties’ arguments and reviewed the record evidence, this
Court finds that the RFC determination is supported by substantial evidence in the
record. Accordingly, remand is not required to reconsider the RFC.
Finally, Plaintiff argues that the vocational expert’s (“VE”) testimony
regarding potential jobs for Plaintiff was inconsistent with the referenced Dictionary of
Occupational Titles (“DOT”), which categorizes and defines the recommended jobs. In
his decision, the ALJ found that Plaintiff could work the following jobs: ticket seller,
telephone solicitor, and information clerk. (R. at 33.) The DOT classifies the ticket
seller position as requiring light exertion, which Plaintiff contends is inconsistent with a
RFC of less than the full range of sedentary work. At the hearing, the VE testified that
computerization and scanner technology now render this job as sedentary, accounting
for the inconsistency found within the DOT ticket seller description.
explanation, Plaintiff contends that the ALJ erred in failing to ask additional questions
addressing the inconsistency.
It is true that “when there is an apparent unresolved conflict between VE
evidence and the DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE evidence to support a determination or decision about
whether the claimant is disabled.” SSR 00-4p. Furthermore, the ALJ must resolve the
conflict by determining if the explanation given by the VE is reasonable and provide a
basis for relying on the VE testimony rather than on the DOT information. Id. But, an
ALJ is within her province to rely upon VE testimony that appears in relative conflict with
a DOT description because a VE may be able to provide more specific, current
information about jobs or occupations than the DOT.
Id. Here, the VE thoroughly
explained the differences in his testimony (R. at 68-70), and Plaintiff’s counsel did not
address this alleged inconsistency during the administrative hearing (R. at 70-71). The
ALJ therefore properly relied upon the VE’s testimony, which reasonably explained the
difference and resolved any conflict. SSR 00-4p.
Plaintiff also argues that the ALJ committed reversible error by failing to consider
that all the suggested jobs require occasional reaching and frequent hearing. Although
the RFC limits Plaintiff’s overhead reaching, Plaintiff is still capable of frequent nonoverhead reaching, and a review of the DOT demonstrates that the suggested jobs at
Step 5 do not require overhead reaching.7 And, with respect to hearing loss, Dr. Dave
and Dr. Paolini, treating physicians, opined that Plaintiff’s hearing was grossly normal
The ticket seller job requires the following job responsibilities: accepting payment, making change,
operating a ticket-dispensing machine, accepting orders by phone or mail, keeping a balance sheet, and
answering questions. DOT 211.467-030. A telephone sales job requires the following duties: solicit
orders by phone, explain the type of service or merchandise offered, quote prices, record information
about solicited offers, enter order details into a computer, report on sales activities, and contact delivery
driver. DOT 299.357-014. An informational clerk job requires employees to perform the following:
answer questions and provide information regarding the establishment, location of departments, offices,
and employees, inform customer of location of items and services; receive and answer requests for
information from company officials and employees; and, keep records of questions asked and answer
inquiries. DOT 237.367-022.
for conversation (R. at 317, 406), and Plaintiff has failed to establish that the
recommended jobs require more than the hearing capabilities of normal conversation.
Accordingly, there is no error.
After carefully examining the administrative record, this Court finds that
substantial evidence supports the ALJ’s decision in this case, including the objective
medical evidence, medical opinions, and personal testimony contained therein. This
Court is satisfied that the ALJ thoroughly examined the record and afforded appropriate
weight to all of the medical evidence in rendering his decision that Plaintiff is not
disabled within the meaning of the Act. Finding no reversible error, this Court will grant
Defendant’s Motion for Judgment on the Pleadings and deny Plaintiff’s motion seeking
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 11) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 9)
FURTHER, that the Clerk of Court shall close this case.
Dated: March 30, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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