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Mendez v. Colvin

United States District Court, S.D. New York

December 9, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Marjorie Mendez brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claims for Disability Insurance Benefits and Supplemental Security Income ("SSI") under the Social Security Act. Both Mendez and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The parties consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, both motions are granted in part and denied in part. The case is remanded for further proceedings.


A. Mendez's Claim for Benefits and Procedural History

Mendez applied for disability and SSI benefits on June 10, 2010. See Administrative Record, filed Mar. 19, 2014 (Docket # 20) ("R."), at 71-122. In the portion of the application asking how Mendez's "illnesses, injuries or conditions limit [her] ability to work, " Mendez wrote "diabetes, back pain, depression, migraines." R. 114. Mendez is insured for benefits through December 31, 2015. R. 80. Mendez was born on May 27, 1976, R. 71, and most recently worked as a "child care provider, " R. 98.

On December 11, 2010, the Commissioner denied Mendez's application for disability and SSI benefits. R. 31-33. Mendez requested a hearing before an Administrative Law Judge ("ALJ"). R. 34-35. The ALJ held a video hearing on November 9, 2011. R. 319-381. On February 29, 2012, the ALJ issued a decision finding that Mendez was not disabled. R. 15-23A. Mendez appealed the ALJ's decision to the Appeals Council. R. 7-11. On March 29, 2013, the Appeals Council denied Mendez's request for review. R. 3-5.

On May 28, 2013, Mendez filed this lawsuit under 42 U.S.C. §§ 405(g) and 1383(c)(3). See Complaint, filed May 28, 2013 (Docket # 2). Both Mendez and the Commissioner have moved for judgment on the pleadings.[1]

B. The Administrative Record

Mendez and the Commissioner have each provided a summary of the relevant evidence contained in the administrative record. See Pl. Mem. at 2-10; Comm'r Mem. at 1-10. The Court adopts the parties' summaries, which do not conflict in any material way, as accurate and complete for purposes of the issues raised in this suit. We discuss the portions of the record pertinent to the adjudication of this case in section III below.

C. The Hearing Before the ALJ

A hearing before ALJ Gerardo Perez was held on November 9, 2011. R. 321-81. The ALJ was in San Juan, Puerto Rico, and conducted the hearing by video teleconference. R. 321. Two witnesses who testified before the ALJ were also in San Juan: Dr. Jose Rolon Rivera, a medical expert, and Luis Serrano-Vega, a vocational expert. Id.[2] Mendez and her attorney were in the Bronx. Id . We provide a summary of each witness's testimony.

Mendez has had migraine headaches since she was a child and they have worsened over time due to her diabetes. R. 328. Her headaches are "[v]ery painful, " and she "can't stand the sunlight or noise" when she has them. R. 329. She previously took Zantrex for migraines, but that did not work, so Mendez started another medication which "helps [her] more." R. 329-30. The new medication "calms it down... smooths it and takes it away." R. 330. Mendez has migraines approximately two times a week. Id . Mendez also experiences back pain that "doesn't let [her] do a lot of things because it hurts so bad." R. 330-31. The left side of her body "gets numb... like a tingling feeling on [her] feet." R. 331. She takes a muscle relaxant called Flexeril for her back problems. Id . The ALJ asked about her bulging and herniated discs and asked if anybody had discussed surgery with her. Mendez responded, "[n]o... I was doing therapy... for it." R. 331-32. Mendez has not been prescribed any assistive devices for walking. R. 332. Mendez's diabetes is "controlled, but when it acts up, it can go very high" and she has to "take more doses of the medicine." R. 333. She agreed that the diabetes is "generally controlled, but it occasionally spikes." Id . Mendez added that this is "another reason... [she doesn't] watch the kids [she] used to watch." Id . She has had one emergency room visit since 2010 for such an episode. Id.

Mendez can cook, do laundry, dress herself, and wash dishes. R. 335. She can sweep, dust, and iron, but not mop, because mopping puts pressure on her back. R. 336. She cannot bend down to scrub the toilet or bathtub for the same reason. Id . Mendez goes grocery shopping but does not carry groceries and instead has someone deliver them to her. R. 337. On a "bad day, " Mendez can "hardly bend" and stays in bed because she "can't even get up... to prepare... a meal." R. 336. "[B]ad days" occur approximately three days a week, even when she takes medication. R. 337. Mendez travels by bus, car services, or asks her children's father to drive her around where she needs to go. R. 337-38. She does not drive because she does not have a license and is "too afraid." R. 338.

Mendez told the ALJ that she has also been seeing a psychiatrist, and the ALJ responded that he did not have any of her mental health records. R. 338-39. Mendez's attorney stated that Mendez receives psychiatric treatment at Gouverneur Hospital, and the attorney stated she would follow up to see what treatment records they had, as none were provided in response to the release form sent there. R. 339. The ALJ had records from Gouverneur only related to diabetes, back problems, and headaches. R. 340.

Mendez next testified that when her glucose is high, her hand trembles, her vision gets blurry, and it is hard for her to focus. R. 341-42. It takes one or two hours before things are "back to normal, " meaning the trembling stops and vision returns to normal. R. 342. Mendez experiences such episodes "like, every other day." Id . When she experiences high blood sugar, Mendez checks her blood sugar, takes her medication, has something to eat, and then lies on her bed to relax and "let the medicine and the food work for [her]." R. 344. When her blood sugar is low, she gets "the trembles, " gets cold and nauseous, and "throw[s] up." Id . Such episodes occur about once a week and last about three hours. R. 343. When she experiences low blood sugar, Mendez also checks her blood sugar before "drink[ing] a little something to try to bring it up" and relaxes in her room to bring the blood sugar back to normal levels. R. 344.

With respect to her headaches, Mendez testified that they feel like "someone is drilling in [her] head" on the left side. R. 345. On a scale of 1 to 10, with 10 being the highest level of pain, her headaches are a "10." Id . Even with medication, the headaches last anywhere from a couple of hours to two days. Id . When Mendez gets headaches, she goes in her room and turns off the lights and television or soaks in a hot tub. Id . The headaches worsened with the onset of her diabetes, and her uncle helped her with her babysitting job when she had a painful episode, though it is not clear from Mendez's testimony how many times he helped her. R. 346-47. She would ask her uncle to watch the baby because the noise from crying exacerbated her pain, and she would go lie down in another room. R. 347. At times, Mendez had called the parents to tell them to come pick up their children due to a headache, and she would sometimes ask them not to bring the children back the next day so she could "simmer [her]self." R. 347-48. Mendez does not normally go to the hospital for headaches because she is on medication and takes it "as directed." R. 348-49.

The ALJ expressed some concern that he was being asked to accept Mendez's testimony as to the frequency and severity of her headaches "without medical documentation proving it, " and he also stated that the medical records documenting complaints of migraines are "based on the history [Mendez] provides." R. 349. In response to the ALJ's question, Mendez stated that her new migraine medication has helped improve her condition. R. 355. Although it is not entirely clear from the record, her testimony indicated that the medication, along with some black coffee, eases the pain though perhaps not the frequency of the headaches. R. 358-59. Mendez had never been seen by a neurologist. R. 357. As for her back pain, Mendez experiences it two or three times per week, and it is worse on cold and rainy days. R. 346.

The ALJ asked Dr. Rivera questions pertaining only to Mendez's physical condition, as Dr. Rivera is not a psychiatrist. R. 359. Dr. Rivera testified that the following impairments are "established in the record": lower back pain, herniated discs, diabetes mellitus, and headaches. R. 360-61. Dr. Rivera noted that in a consultative examination of Mendez with an internist in July 2010, the internist assessed no physical limitations. R. 361-62. The record showed high blood pressure, but this was controlled with medication. R. 363. The record did not show complications from diabetes. Id . Although it is not clear from the transcript, Dr. Rivera appeared to add that a laboratory report suggested that Mendez's diabetes was "not controlled, " even though other medical records seemed to indicate that it was controlled. R. 364. Dr. Rivera stated his opinion that Mendez does not have "an impairment or combination of impairments considered together that meet or equal any listings." R. 365.

Mendez's attorney also questioned Dr. Rivera. R. 365. When asked if the consultative examination was consistent with the rest of the record, Dr. Rivera responded in the affirmative. R. 366. Dr. Rivera then stated that the consultative examiner's opinion would not be consistent with a finding that Mendez had "decreased range of motion in the lumbar spine." Id . Mendez's attorney pointed out, however, that elsewhere in the record there are "repeated findings of decreased range of motion and decreased strength." R. 368-69. Dr. Rivera stated that if an individual is complaining of headaches, the way to "report that to their doctor" is to "[t]ell him." R. 369. Mendez's attorney asked Dr. Rivera if the high glucose or hemoglobin readings in the record "could result in the feelings that Ms. Mendez describes that she gets when she has high... blood sugar, " to which Dr. Rivera responded in the negative. R. 370. He added that those symptoms are "not compatible with high blood sugar." Id . What would be consistent with high blood sugar, according to Dr. Rivera, would be blurry vision, fatigue, weakness, and frequent urinary tract infections. R. 370-71. Mendez ...

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