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Cruz v. Barnhart

May 8, 2006


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Milagros Cruz brings this action pursuantto 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claim for supplemental security income and disability insurance benefits. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), and Cruz has cross-moved for judgment on the pleadings. For the reasons stated below, the Commissioner's motion is granted and Cruz's motion is denied.


A. Cruz's Claim for Benefits and Procedural History

Cruz filed an application for Supplemental Security Income ("SSI") on April 19, 2002, which was denied on July 3, 2002, the date on which she filed for disability insurance benefits ("DIB"). R. 46, 47-50, 56-58.*fn1 Cruz had quit her job as an assistant teacher on April 17, 2002, for reasons she attributed to "back spasms, plantar spur on right foot, chronic sinusites [sic], lower back pain," asthma, and possible cervical cancer. See R. 73. On her application for benefits, she asserted that her conditions "have limited my ability to perform my duties as an assistant teacher and to ambulate and do other physical activities." R. 73.

Following the denial of her application for disability insurance benefits, Cruz requested a hearing before an Administrative Law Judge ("ALJ") on July 15, 2002. R. 51-52. On September 19, 2003, Cruz appeared without counsel at a hearing before ALJ Kenneth G. Levin. R. 24-45. Also testifying at the hearing were Dr. Harlan Mellk, a medical expert, and Mark Ramnath, a vocational expert. Id. In a decision issued October 7, 2003, the ALJ found that Cruz was not disabled within the meaning of the Social Security Act. See R. 8-18. On August 18, 2004, the Commissioner's decision became final when the Appeals Council denied Cruz's request for review of the ALJ's decision. See R. 4-6.

Cruz filed the instant action on November 16, 2004. See Complaint, dated Oct. 13, 2004 (Docket #2). On August 5, 2005, the Commissioner moved for judgment on the pleadings. See Defendant's Memorandum of Law in Support of Her Motion for Judgment on the Pleadings, filed Aug. 5, 2005 (Docket #13). Cruz cross-moved for judgment on the pleadings. See Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion for Judgment on the Pleadings and in Support of Plaintiff's Cross-Motion for Remand, dated Nov. 7, 2005 (Docket #17) ("Pl. Mem."). The Commissioner filed a reply memorandum on November 21, 2005. See Defendant's Reply Memorandum, dated Nov. 21, 2005 (Docket #18).

B. Evidence Presented Before the ALJ

1. Cruz's Testimony

Cruz was born on February 1, 1971. R. 56. She is 5'4" tall and weighs about 240 pounds. R. 28. She completed two years of college and earned an associate's degree in "early childhood." R. 29, 79. Her most recent work was as an assistant teacher at a YMCA preschool, a job she held for two years. R. 30. In this job, she "would help the teacher with whatever was necessary in the classroom," which included cleaning the tables, sweeping the floors, and helping to set up toys and playthings for the children. R. 30. Over the previous fifteen years, Cruz had worked as a part-time after-school counselor, an assistant teacher with Americorps, a summer counselor, an office aide, and a salesperson. R. 31-32, 74. As an after-school counselor, she helped children with their homework, played games with them, and prepared lesson plans. R. 31.

With regard to her physical complaints, Cruz testified that while she had seen several doctors for her back pain, "[t]hey didn't . . . take it seriously," and would "say that I'm heavy and that's probably why my back [hurt]." R. 34-35. At the time of the hearing, she was taking Tylenol for her back pain; she stated that she was allergic to "aspirin or anything like that." R. 35.

Cruz testified that her diabetes makes her thirsty, "real tired," and causes frequent urination. R. 35. She stated that her diabetic diet requires her to keep her sugar and fat intake low, and that she follows this diet "for the most part." R. 36.

Cruz testified that her most recent asthma attack was two months before the hearing, and the previous one was six months before that. R. 36. She stated that she sometimes went to the emergency room at Gouverneur Hospital, but that she "wouldn't go often because [she] didn't have any medical insurance." R. 37.

Cruz testified that she can walk for 20 to 30 minutes, stand for "about an hour, half hour," and sit for "about an hour." R. 37. Beyond that, she says, her back starts hurting and she has to move around. R. 37. She stated she can lift "maybe ten pounds," and that she helps take care of her sister's toddler and goes shopping with her mother. R. 38. She walks 20 minutes to and from church every Sunday, attending services that last 21/2 hours. R. 39. Other than walking, she gets no exercise. R. 40.

When asked by the ALJ why she was unable to work, Cruz replied as follows: A: Well, I have a lot of back pain. And I was recently told that it's because I have blood in my urine and I have problems with my kidneys now. That's lately, but I've always had the back pain. I didn't know what it was about, but now I know. I have diabetes II, and now -- when you have that, you need to be -- always the doctor needs to see you. You need to be in treatment, and you can't be -- if you're an assistant teacher, you can't be absent. They always want you to be there, and you have to have -- you know, you have to --R. 33. When the ALJ inquired "Don't you think that people who have diabetes work?" Cruz responded "I understand that. I know that they work, but it's not -- that's not the only thing I have. I have asthma as well." Id.

2. Dr. Mellk's Testimony

Dr. Mellk, a medical expert, testified at the hearing that Cruz has diabetes mellitus type II, asthma, sinusitis, plantar fasciitis (commonly known as a "heel spur"), and "complaints of back pain." R. 40-41. He was not aware that she had sought any treatment for the back pain in the two years preceding the hearing. R. 40. Dr. Mellk also noted that Cruz "may have a very slight dextro-scoliosis"*fn2 which might account for the back pain, but that "there really was no significant . . . findings of muscle spasms and the like." R. 40-41.

Upon questioning by the ALJ about problems with Cruz's kidneys, Dr. Mellk stated that Cruz has proteinurea*fn3 that "may well be 30 milligrams per DL." He added that "it certainly may be related to her diabetes," but that it was not causing her back pain. R. 41. He also noted that Cruz had had a urinary tract infection the previous February. R. 41. Her asthma, Dr. Mellk stated, was "intermittent," and there is "no evidence that she's had multiple episodes." R. 42.

Finally, Dr. Mellk opined that Cruz's residual functional capacity would permit her to continue doing the work she had been doing most recently, and that she "actually could do more than that . . . based upon her habitus and physical status." R. 42. Specifically, he stated that she was capable of "certainly light [work] and possibly even . . . medium."*fn4 R. 42. The only restriction he suggested was "significant air pollution," which might aggravate her asthma. R. 42.

3. Mr. Ramnath's Testimony

Mr. Ramnath, a vocational expert, testified that there were jobs in the economy that would permit Cruz to remain sedentary and would not expose her to environmental irritants. See R. 43-44. For example, he noted the following jobs: surveillance system monitor, of which there were approximately 5,000 local positions and 150,000 nationwide; document preparer, 4,000 local positions and 140,000 nationwide; and ticket checker, 5,000 local positions and 180,000 nationwide. R. 44.

C. Records Relating to Cruz's Medical Conditions

1. Dr. Lau

Cruz first saw Dr. On Hin Lau on November 30, 2001. R. 130. Two days earlier, she had undergone x-rays for her lower back pain. R. 113. The x-rays revealed a "shallow dextrocurvature" of her lumbosacral spine and "muscle spasm," but were otherwise "unremarkable." R. 113. X-rays of her right ankle showed a "large plantar spur" along with "mild symmetric bimalleolar soft tissue swelling and a mild joint effusion." R. 113.

Dr. Lau's notes indicate that Cruz was newly diagnosed with diabetes mellitus and that they had discussed weight loss. R. 130. Dr. Lau referred Cruz to a dietician and an orthopedist.

R. 130.

Cruz next saw Dr. Lau on February 9, 2002, during which she reported a clogged nose with a discharge and asthma that was "ok." R. 130. When she returned on February 16, her sinus condition had improved,*fn5 but her diabetes was "uncontrolled." R. 131. Dr. Lau referred her to a dietician and ophthalmologist. R. 131.

On February 23, Dr. Lau noted that Cruz "feels better," that she was not hypoglycemic, and that her sinus condition was better. R. 131.

Cruz's final visit to Dr. Lau was on April 13, 2002, at which time Dr. Lau diagnosed diabetes, asthma, allergic rhinitis, chronic sinusitis, and lower back pain. R. 132. Dr. Lau increased the dosage of Cruz's diabetes medication and prescribed two new medications -- Allegra and Rhinocort -- to treat her rhinitis. R. 132. He also referred her to an ear, nose, and throat specialist and an orthopedist. R. 132. On the same date, Dr. Lau wrote a handwritten note stating that Cruz's "back pain and asthma have markedly limited her ability to ambulate or other physical activities [sic]. At present she does not feel well for daily work." R. 114.

On April 19, 2002, Dr. Lau told Cruz over the phone that blood tests showed her diabetes was not well controlled. R. 132. He advised her to continue her medications and to see the specialists to whom he had referred her. R. 132.

On May 19, 2002, Dr. Lau completed a medical report for Cruz. R. 115-19. In it, he diagnosed her with asthma, diabetes, lower back pain, obesity, and sinusitis. He described her current symptoms as back pain and feet pain. R. 115. Dr. Lau completed a form reflecting that, in his opinion, Cruz could lift or carry a maximum of five pounds, stand or walk for up to two hours daily, and sit for less than six hours daily. R. 117-18. He added that she needed to be evaluated by an orthopedist, an allergist, a dietician, and an ear, nose, and throat specialist. R. 118.

2. Dr. Mroczek

On December 11, 2001, Cruz visited Dr. Kenneth Mroczek for an evaluation of her right foot and ankle. R. 120. X-rays of the foot revealed a calcaneal (heel) spur. R. 120. Dr. Mroczek prescribed physical therapy and heel cups, and gave Cruz a prescription for a night splint to use if her symptoms continued more than six weeks. R. 120. Dr. Mroczek told Cruz to return if her symptoms lasted for two to three months, but she did not return to him. R. 75.

3. Dr. Balinberg

On May 31, 2002, Dr. E. B. Balinberg performed a consultative examination of Cruz. R. 122-24. Dr. Balinberg noted that Cruz presented with complaints of back pain, diabetes, and asthma. R. 122. He found her blood pressure and pulse to be normal, as well as her station and gait, but noted "some difficulty to get off the table." R. 122-23. Cruz had full use of both hands and arms in dressing and undressing, and her finger/hand dexterity was intact. All her joints had a full range of motion except her lumbar spine, which had a flexion of 60-65 degrees, with a lateral flexion of 5-10 degrees. R. 123. He noted that "she is very sensitive to pressure over the plantar aspect of the left foot," but that the "rest of the musculoskeletal system [was] within normal limits." R. 123. Dr. Balinberg diagnosed Cruz with "spinal disorder," "diabetes mellitus," and "calcaneal spur," and recommended that she follow up with her treating source.

R. 123.

Finally, with regard to Cruz's functional capacity, Dr. Balinberg estimated that she had "some restriction in her ability to perform frequent bending, to lift, to carry, to push and to pull heavy loads, to stand up long periods of time, without interruption." R. 124. He noted a "[c]orrelation between history, symptoms and physical findings." He stated that she should ...

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