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Cruz v. Astrue

United States District Court, S.D. New York

April 24, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Valeria M. Nunez Cruz, Plaintiff: Montel A. Cherry, Manhattan Legal Services, New York, NY.

For Commissioner of Social Security, Defendant: Susan Colleen Branagan, LEAD ATTORNEY, U.S. Attorney Office SDNY, New York, NY.


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GABRIEL W. GORENSTEIN, United States Magistrate Judge.

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


A. Cruz's Claims for Benefits and Administrative Proceedings

On March 1, 2007, Cruz filed an application for disability benefits, alleging an onset of disability as of that date. See Administrative Record, filed July 6, 2012 (Docket # 12) (" R." ) 67-73. On April 12, 2007, this application was denied. R. 40-45. Cruz timely requested a hearing before an Administrative Law Judge (" ALJ" ). R. 46-47. On November 7, 2007, Cruz appeared pro se at a hearing before ALJ Robin J. Arzt, and testified through an interpreter. R. 21-39. On December 13, 2007, ALJ Arzt issued a decision finding that Cruz was not disabled from March 1, 2007 through the date of her decision. R. 10-20. The Appeals Council denied Cruz's request for review on May 23, 2008. R. 1-6. Cruz filed a civil action on August 15, 2008, see Complaint, Nunez Cruz v. Astrue, 08 Civ. 7243 (AJP) (S.D.N.Y. Aug. 15, 2008) (Docket # 2), and on February 27, 2009, the parties agreed to remand the case for further administrative proceedings, R. 267-69.

Cruz filed an additional application which was granted in October 2008, and then vacated by the Appeals Council on the basis that there were inconsistencies in the two applications. R. 271-74, 279-81. On August 4, 2009, the Appeals Council issued an order consolidating the two applications and remanding the case to the ALJ. R. 276-81. This remand order stated that the ALJ should:

o Obtain additional evidence concerning the claimant's musculoskeletal impairments, including physical therapy records, in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 416.912-913). The additional evidence may include, if warranted and available, updated records from Dr. Rubin; a consultative neurological examination; and medical source statements about what the claimant can still do despite the impairments.

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o Give consideration to the January 9, 2008 treating source opinion from Dr. Rubin pursuant to the provisions of 20 CFR 416.927 and Social Security Rulings 96-2p and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating source to provide additional evidence and/or further clarification of the opinion and medical source statements about what the claimant can still do despite the impairments (20 CFR 416.912).
o Resolve the inconsistencies pertaining to the claimant's ability to speak English. Dr. Rubin should also be asked for her observations about this issue because of the report from the subsequent file that was previously referenced.
o Obtain evidence from a medical expert to clarify the nature and severity of the claimant's impairments (20 CFR 416.927(f) and Social Security Ruling 96-6p).
o Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 416.945 and Social Security Ruling 96-8p).
o If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-12). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

R. 280-81.

In accordance with this remand order, a new hearing was held before ALJ Mark Solomon on March 1, 2011, at which Cruz testified pro se through an interpreter. R. 205-24. On April 22, 2011, ALJ Solomon issued a decision finding Cruz not disabled since March 1, 2007. R. 170-84. The Appeals Council denied review of this decision on December 16, 2011. R. 160-64. Cruz thereafter filed the instant complaint challenging the Commissioner's denial of benefits. Complaint, filed Feb. 6, 2012 (Docket # 2).

On November 14, 2012, the Commissioner moved for judgment on the pleadings.[1] Cruz, now represented by counsel, see Notice of Appearance, filed Oct. 2, 2012 (Docket # 17), cross-moved for judgment on the pleadings.[2]

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B. The Administrative Record

1. Background

Cruz was born in the Dominican Republic in 1958. R. 27, 74, 209. She completed the fourth grade in the Dominican Republic. R. 27-28. She moved to the United States in 1974 when she was 16 years old, R. 27, and has lived in New York City ever since, R. 28. She worked as a home attendant and a floor person in a factory, R. 93, and as a babysitter for a company called Vista Care, R. 30. She has not worked since the early 1990's. R. 29-30. She lives with her son and spends her days caring for him. R. 28, 80. She is also an avid churchgoer. R. 83.

2. Medical Records

In 2005, Cruz began receiving treatment from Gouverneur Diagnostic and Treatment Center (" GDTC" ). R. 154-59. On November 21, 2005, doctors at GDTC reported the results of her computerized tomography (" CT" ) scans. R. 154-59. A CT scan of her cervical spine showed minimal degenerative disc disease. R. 155. A CT scan of her thoracic spine showed minimal scoliosis and calcification of the ligamentum flavum[3] without definite spinal cord compression. R. 156-57. A CT scan of her lumbar spine showed no appreciable scoliosis, " no evidence of disc herniation or spinal stenosis," and mild central spinal canal stenosis. R. 159.

In January and March 2006, Dr. Jennifer Adams treated Cruz for cellulitis of the leg and bilateral edema[4] causing leg swelling. R. 120-21. Dr. Adams prescribed Keflex medication, but noted on March 2, 2006, that Cruz had failed to take the medication consistently. R. 120. On March 13, 2006, Dr. Shirley Tung diagnosed Cruz with chronic venous insufficiency[5] and recurrent cellulitis of the left leg. R. 118. Dr. Tung also noted that a January 2006 test was negative for deep vein thrombosis, and that Cruz's gait was normal. Id. Cruz requested new support hose. Id.

In May 2006, Cruz saw Dr. Adams again and requested a letter for Social Security and " welfare." R. 116. Cruz complained of radiating back pain. Id. Straight leg raise testing was negative, and Cruz had good motor and sensory tone, and no pain with palpation. Id. Her existing back pain remained stable. Id. Additionally, she complained of fatigue, shortness of breath, and chest pain, but her lungs were clear, and blood pressure and heart rate were normal. Id. Dr. Adams wrote of Cruz's complaints, " IMPOSSIBLE history that changes." Id. Dr. Adams prescribed aspirin and planned a stress test due to changes in Cruz's EKG from a prior exam. Id. In June 2006, Dr. Adams reported that Cruz's blood pressure remained normal, and the stress test showed diminished functional capacity with no arrhythmias. R. 115, 123.

An MRI of Cruz's ankle in March 2006 showed soft tissue swelling but no evidence of fracture, dislocation, or bony destruction. R. 135. In October 2006, Cruz saw Dr. Melaine Rose Jay and complained of back pain, leg swelling, and shortness of breath. R. 113-14. Dr. Jay noted mild

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tenderness at the C4-T12 levels along the spine, R. 113, and indicated Cruz was willing to try physical therapy, R. 114. In November 2006, Dr. Jay noted that Cruz was obese and discussed weight loss with her. R. 112. Dr. Jay also noted that Flonase was helping Cruz's allergic rhinitis and that Cruz reported doing physical therapy weekly. Id.

On April 4, 2007, Dr. Dyana Aldea, a consultative physician, examined Cruz. R. 142-44. Cruz complained of radiating back pain with swelling, numbness, and tingling, which was reportedly aggravated by prolonged standing, ambulation, bending, squatting, lifting, and climbing, and was relieved with rest and medications. R. 142. Dr. Aldea noted that Cruz's gait was normal. R. 143. She was able to walk on her heels and toes without difficulty and do a full squat. Id. She used a cane that was not medically necessary, and she needed no assistance changing, getting on and off the exam table, or rising from her chair. Id. Her musculoskeletal exam was normal except for mild tenderness to palpation in the lumbar spine. Id. A lumbosacral spine X-ray showed straightening of the lordic curve. Id. Dr. Aldea found that Cruz had " no limitation for physical activity." R. 144. On April 12, 2007, a disability analyst for the state agency, S. Mastrogiacomo, issued a review of Cruz's records. R. 40, 44, 146-51. He noted that no treating source opinion was available concerning Cruz's physical residual functional capacity (" RFC" ) and that, based on the medical evidence and the claimant's report of functioning, she was not disabled. R. 150-51.

Cruz attended physical therapy sessions at GDTC in December 2007. R. 345-48, 356. The physical therapist noted that Cruz had " moderate tenderness and severe spasm" of her lumbar paraspinals. R. 345. Cruz informed the therapist that her pain lessened after physical therapy treatment. Id. On January 9, 2008, Dr. Gloria Rubin of GDTC reported the results from a CT scan of Cruz's spine, which revealed spinal stenosis. R. 152. Dr. Rubin also noted ...

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