United States District Court, S.D. New York
ELENA A. NUNEZ, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant,
SEIBEL, United States District Judge;
REPORT AND RECOMMENDATION
E. Davison, U.S.M. J.
Elena A. Nunez ("Plaintiff or "Claimant, ")
brings this action pursuant to 42 U.S.C. § 405(g)
challenging the Commissioner of Social Security's (the
"Commissioner" or "Defendant") denial of
Plaintiff s application for disability insurance benefits.
Dkt. 18 at 1. The matter is before me pursuant to an Order of
Reference entered September 24, 2015, Dkt. 12. Presently
before this Court are the parties' cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, Diets. 18 (Plaintiffs
motion), 19 (Plaintiffs memorandum of law in support
("PI. Br.")), 21 (Defendant's cross-motion),
and 22 (Defendant's memorandum of law in opposition
("Def. Opp.")). For the reasons set forth below, I
respectfully recommend that Defendant's motion be
GRANTED, and that Plaintiffs motion be
following facts are taken from the Administrative Record
("R.") of the Social Security Administration, Dkt.
16, filed by Defendant in conjunction with her Answer to the
Complaint. Dkt. 15.
October 22, 2012, Plaintiff filed an application for Title
XVI Supplemental Security Income ("SSI") alleging
she was disabled beginning in June 29, 2010. R, 16. Plaintiffs
application was denied. R. 120. She requested a hearing
before an Administrative Law Judge ("ALJ"), which
was held on February 25, 2014 before ALJ Jerome Hornblass. R.
16, 30-39. On April 25, 2014, the ALJ issued a decision
finding that Plaintiff was not disabled. R. 16-26. Plaintiff
filed an appeal of the decision to the Appeals Council. R.
1-9. The ALJ's decision became final when the Appeals
Council denied her request for review on May 14, 2015. R. 5,
10-15. Plaintiff timely filed this action on June 25, 2015.
was born on September 24, 1967 in Santo Domingo, Dominican
Republic. R. 25, 33. She is a naturalized U.S. citizen and
has been in the United States at all times since September
22, 2012. R. 120. She was 45 years old when she filed for SSI
on October 22, 2012. R. 16. She graduated from high school
outside of the United States and worked in a factory from
1991-1992 and as a food preparer at a restaurant in 1999. R.
149-50, 201. Plaintiff alleges that she stopped working
because she could not find childcare for her children. R.
149. At the time of filing, her son was twenty-one years old
and her daughter was eleven years old. R. 32-33, 201. She
cooks, shops twice a week, cleans twice a month, and does
laundry once a month. R. 203, 206. Her daughter helps with
the household chores. Id. She testified that her
sister always accompanies her when she travels because she
suffers from dizziness. R. 38-39. Depending on how Plaintiff
is feeling, she socializes with others, watches TV or goes to
appointments. R. 203, 206.
administrative record contains various medical treatment
records. The following is a distillation of their relevant
Diabetes and Peripheral Neuropathy
was diagnosed with diabetes in 2009. R. 226. She does not
take her insulin regularly nor does she monitor her glucose,
diet or exercise regularly. R. 193, 229, 274, 282. As a
result, she suffers from intermittent problems with her feet
and fingers. R. 233-34, 237. Her glucose is often high, with
hemoglobin A1C ranging from 9.2% to 11%. R. 239, 240,
250. According to the American Diabetes Association
("ADA"), hemoglobin Al C over 6.5% is consistent
with a diagnosis of diabetes. R. 239-40.
Before the Relevant Period
2011, Plaintiff had x-rays to determine the cause of foot
pain. R. 187. The x-ray showed "[n]o acute bony or
articular abnormality, " nor any facture, or soft tissue
swelling. R. 187. There was some indication that her left
foot had a small heel osteophyte and a small ossicle in the
fifth toe. R. 187.
January 2012, Dr. William Jacobs of the AIM Metabolism
Podiatry Clinic reported Plaintiff suffered from heel pain,
which improved with physical therapy, plantar fissured skin,
but showed no signs of pedal infection, R. 226-27. On January
20, 2012, Dr. Jacobs noted Plaintiffs history of GERD,
affective disorder,  incontinence, hypertension, hypercholesterolemia,  diabetes,
peripheral neuropathy. R. 226-27. At that time, Plaintiff
reported feeling "well, " but her blood sugars were
high. R. 229. On February 29, 2012, Dr. Nicholas Fiebach,
M.D., of Columbia Presbyterian Medical Center
("CPMC") noted that her "[f]oot symptoms
improved with increased gabapentin, " but her diabetes
was "[n]ot well controlled." R. 231. On May 29,
2012, Dr. Fiebach noted that she was "[g]enerally doing
well, " but "acknowledge[d] sometimes (? often)
forgetting to take evening insulin." R. 233-34. She had
a fingertip infection that was improving and a non-tender
nodule that was "healed overlying small
ulcer w/o erythema or fluctuance." Id. In
June 2012, she had "pain and swelling" on her
finger with "[r]edness and swelling around nail bed,
" and was diagnosed with paronychia and treated with
topical medication. R. 235-37.
September 25, 2012, Plaintiff complained of an eight out
often pain in her right foot and calf. R. 247-48. By then,
the "[i]nfected fingertip [was] resolved" and she
was "[g]enerally doing well, except that burning
discomfort [in] both soles [was] worse, now also has aching
discomfort dorsal arch and anterior ankle on right." R.
249. Dr. Fiebach's physical examination of Plaintiff
showed "[b]oth feet warm, no deformity, non-tender, FROM
[full range of motion], and [and] pedal pulses full and
symmetric, " but the "distal sensation to standard
monofilament [was] decreased." R. 250-51. Dr, Fiebach
assessed her foot symptoms as "likely distal sensory
neuropathy (and perhaps biomechanical strain on right)"
and increased her gabapentin. Id. At that time, Dr.
Fiebach found that Plaintiffs diabetes was still "[n]ot
well controlled ... perhaps related to omission of second
daily dose of insulin intermittently." Id.
During the Relevant Period
November 1, 2012, Dr. Fiebach reported that Plaintiff had
"several serious health problems, including major
depression and diabetes with complications include peripheral
neuropathy and requiring twice daily insulin injections"
and opined that she was "partially disabled." R.
189, 200. By November 2012, Plaintiffs "[d]istal sensory
neuropathy" had "[i]mproved on increased
gabapentin, " and she reported no pain. R. 254-56. In
December 2012, she complained of "constant fatigue and
polyphagia" and reported that "she takes her
insulin" but "is not doing much exercise since she
is tired all the time." R. 263. Her insulin was
increased, and she was encouraged to exercise and walk thirty
minutes per day. R. 265. In January 2013, Plaintiffs medical
records noted she did "not follow a DM diet (toast,
coffee for bfast, chicken/meat with rice for dinner)"
and "[s]nacks frequently at bedtime due to anxiety and
often times has FS in 400s in the middle of the night."
R. 268. Plaintiff checked her blood sugar in the morning
regularly, but "does not check at any other times with
any regularity." Id.
February 2013, Plaintiff reported no pain and that she was
"[g]enerally well." R. 270. Dr. Fiebach noted that
Plaintiff "[c]ontinues improved [sic] on increased
gabapentin." R. 270-74. She had "[c]ontinued poor
control" over diabetes "in context of progressive
weight gain, " and "[a]dherence to rx and diet [is]
uncertain, as is her capacity to adhere." R. 274. The
clinic found that "[a]dherence and self-management of
chronic diseases" was the "[c]ommon thread in
managing her diabetes, hypertension, hyperlipidemia." R.
274. Additionally, "her psychosocial and family
situations are stressful and challenge her capacity to manage
her own health issues, " Id.
During the Relevant Period
January 31, 2012, Plaintiff presented for readmission to the
diabetes clinic. It was noted that changing Plaintiffs diet
and eating healthier "will make the biggest impact in
her DM care." R. 268. On February 7, 2012, Plaintiffs
Body Mass. Index ("BMI") was 36.6. R. 270. Dr.
Fiebach noted that Plaintiff had unintentional weight change
and an abnormal BMI. R. 275. On September 25, 2012,
Plaintiffs BMI was 35.6. R. 248.
December 19, 2012, Plaintiffs BMI increased to 36.7. R. 262.
At a follow-up for her uncontrolled diabetes, Plaintiff
reported constant fatigue and polyphagia and that she
"understood the importance of loosing [sic] wt." R.
262-66. On February 22, 2013, Plaintiff was referred to
"nutrition for better diet control." R. 277-78. On
March 7, 2013, Plaintiffs BMI rose again to 38.3. R. 283.
Plaintiffs case manager noted that Plaintiff had pervasively
poor control over her diabetes and progressive weight gain
from her diabetes, R. 279-82. On May 9, 2013, Plaintiffs BMI
was 38.1. R. 283. Medical staff provided extensive counseling
to Plaintiff about the harms of eating a second dinner and
the consequences on Plaintiffs diabetes and anxiety/affective
disorder. R. 283-288. On June 4, 2013, Dr. Fiebach noted that
Plaintiffs diabetes was poorly controlled and that Plaintiff
continued to eat a second dinner. R. 291.
3. Depression and Anxiety
Before the Relevant Period
Plaintiff reported suffering from depression and anxiety her
entire life. She said she received treatment for about a year
and a half in the mid-2000s, R. 299, 325, and began treatment
at the Metropolitan Center for Mental Health on July 19,
2011. R. 325. At an intake assessment, she "appeared a
bit teary at times, " and "very anxious and
somewhat guarded." R. 325. She "indicated that at
times she wished she were dead out of loneliness" but
"[n]o suicidal ideation was present." Id.
She reported feelings of emptiness, sadness, irritability,
low libido, anxiety, depression, and eating "out of
anxiety and at times is unable to sleep." Id.
On August 15, 2011, Plaintiff expressed to Dr. Nina Urban of
CPMC that she suffered from lifelong depression and anxiety
that had worsened in the past few years. R. 299. Dr. Urban
diagnosed Plaintiff with Major Depressive Disorder. R.
299-301. Her symptoms were insomnia, "some decrease in
concentration and memory, " tearfulness, significant
anxiety with overeating, intermittent passive suicidal
ideations without intent or plan, a prominent feeling of
emptiness and loneliness, and feeling very sad, anxious, and
stressed. R, 299, 324, 383, However, Plaintiff was
well-groomed, well related, and mostly euthymic,
with fluent speech, stable affect, intact cognition, fair
insight and judgment, coherent thought process, with no
psychomotor retardation or agitation. R. 300-01. Dr. Urban
diagnosed her with major depressive disorder with a Global
Assessment of Functioning ("GAF") score of
September 2011, Plaintiff reported "feeling mildly
better on antidepressants" and that her mood was
"better but not good, " but she was "more
anxious, tense, w[ith] frequent crying spells. R. 323. Dr.
Urban observed that Plaintiff "appeal-[ed] calmer in
general (i.e. less unstable/dysphoric), " her affect was
"initially bright, but quickly becomes severely
tearful." Id. In October 2011, her mood had
improved with a higher dose of antidepressants. R. 322. She
had good eye contact and linear thought process, but
restricted affect, poor sleep, thoughts of not wanting to
live, and fatigue. R. 322. In November 2011, she had
improvement in her symptoms and was "sleeping better,
" but still had "occasional days of melancholy and
anxiety." R. 321. She was well-groomed and had
spontaneous speech, coherent thought process, euthymic mood,
and an affect that was full, stable, and pleasant, but mildly
anxious. Id. In January 20, 2012, Dr. Jacobs
reported Plaintiffs personal history of affective disorder
since October 20, 2009. R. 226.
January 23, 2012, Dr. Urban reported that Plaintiff was
"feeling more depressed" for three days because of
"more stress at home." R. 319. She said trazadone
did not "help at all for sleep, " but she took
Ativan once or twice a week with "good effect."
Id. Plaintiff reported no other complaints.
Id. In February 2012, Dr. Fiebach noted her
affective disorder was "[s]table, compensated with
ongoing psychiatric treatment." R. 231. In March 2012,
Dr. Urban reported that Plaintiff was "generally doing
better" but "still has intermittent anxiety but
approximately only on a few days per week and trouble
concentrating." R. 317. In June 2012, Plaintiff had been
"doing well" and her "symptoms of depression
are better." R. 315. On August 20, 2012, she reported
"feeling overwhelmed w/fmancial stress which she feels
is contributing to anxiety low mood." R. 313. She was
fairly groomed, cooperative, and well-related and had an
affect in the fair range, coherent thought process, and no
psychomotor retardation. R, 313. In October 2012, Plaintiff
said she was "doing ok." R. 312.
During the Relevant Period
November 9, 2012, a social worker noted Plaintiff
"appeared a bit disorganized and became tearful
easily." R. 191. Around the same time, Dr, Fiebach noted
that Plaintiffs "recent disorganization is
worrisome." R. 256. On November 26, 2012, Plaintiff told
Dr. Urban she was "overall feeling better" with
"no acute complaints other than feeling more anxious
over her recent application for disability as she is
ambivalent about it." R. 311. She found "Ativan
helpful, but not long lasting enough." Id. Dr.
Urban observed that she had "mildly pressured speech and
anxious affect when discussing SSD application, but overall
euthymic" with "stable affect" and
"spontaneous speech." Id.
missed her appointment with Dr. Urban in January 2013, and in
February 2013, she met with Dr. Evan Leibu who noted
Plaintiffs worsening mood, energy, and
anhedoniaand "continual difficulties [with]
her disability application and subsequent financial
difficulties." R. 309-10. She was concerned about weight
gain with medication changes and reported increased appetite.
Id. She was well dressed, her thought process was
goal directed, and her judgment was fair. R. 309. Dr. Leibu
prescribed Plaintiff Wellbutrin to address her symptoms. R.
309. On March 25, 2013, Plaintiffs Wellbutrin prescription
was increased because her depressive state was exacerbated
and her previous dosage had not adequately addressed her
symptoms. R. 308. Upon examination, Plaintiff reported an
improvement in her mood, "feeling better, " and had
no acute complaints. R. 307. Dr. Urban found that Plaintiff
exhibited an anxious effect and rambling speech, a depressive
mood, low self-esteem, low level of functioning, and anxiety.
R. 308. At this time, Dr. Urban assessed Plaintiffs GAF score
to be at 54. R. 329. On May 15, 2013, Dr. Urban noted under
Plaintiffs "Discharge Criteria" that she
"needed to increase her level of functioning." R.
334. In June 2013, Dr. Fiebach observed that Plaintiff had
"[n]ormal affect" and "seems to be coping
better with family stressors." R. 291. On July 17, 2013,
Dr. Urban reported that Plaintiff was feeling overall better
since her medications were increased, but still occasionally
felt sad, was mildly tearful at times, and was not sleeping
well. R. 305. Dr. Urban increased Plaintiffs Ambien
prescription. R. 305.
Medical Source Statements and Consultative
Treating Psychiatrist, Dr. Nina Urban
Nina Urban completed two medical source statements, first in
February 2013, and then in February 2014. R. 220, 389. In
both of Dr. Urban's Medical Source Statements, Dr. Urban
reported that Plaintiff was diagnosed with Major Depressive
Disorder, suffered from generalized persistent anxiety and
that Plaintiff would have marked or extreme limitations in
understanding and remembering detailed instructions,
maintaining attention and concentration for extended periods,
and working in coordination with others without being unduly
distracted. R. 214-218 (2013 Medical Source Statement),
385-389 (2014 Medical Source Statement). In her February 20,
2013 medical source statement, Dr. Urban identified her
treating diagnoses as major depressive disorder and
generalized anxiety disorder and assessed Plaintiffs GAF at
54. R. 214-20. Dr. Urban noted that she prescribed Celexa,
Wellbutrin, Ambien, and Klonopin to treat Plaintiff, who
reported no side effects. R. 221. Dr. Urban reported that
Plaintiff suffered from: poor memory, appetite disturbance
with weight change, sleep disturbance, emotional lability,
anhedonia, psychomotor agitation or retardation, feelings of
guilt/worthlessness, difficulty thinking or concentrating,
social withdrawal or isolation, decreased energy, intrusive
recollections of traumatic experience, persistent irrational
fears generalized persistent anxiety, and pathological
dependence or passivity. R. 220. When asked to describe the
clinical findings that demonstrated the severity of Plaintiff
s mental impairment and symptoms, Dr. Urban referred only to
the "intake psychiatric evaluation." R. 221.
Urban opined that Plaintiff has either extreme or marked loss
in seventeen work-related areas. R. 222-24. In particular,
Dr. Urban opined that Plaintiff would have marked limitations
in activities of daily living, marked difficulties in
maintaining social functioning, constant deficiencies of
concentration, persistence or pace resulting in failure to
complete tasks in a timely manner (in work settings or
elsewhere), and continual episodes of deterioration or
decompensation in work or work-like settings, which cause the
individual to withdraw from that situation or to experience
exacerbation of signs and symptoms, which may include
deterioration of adaptive behaviors. R. 222-23. She opined
that Plaintiff had (1) extreme loss in her ability to
remember locations and procedures, understand, remember, and
carry out detailed instructions, maintain attention and
concentration, deal with the stress of semi-skilled and
skilled work, perform at a consistent pace, make simple
decisions, respond to changes in a routine work setting, and
complete a normal workday or week, (2) marked loss in her
ability to sustain ordinary routine, accept instructions and
criticism, maintain regular attendance and be punctual, work
in coordination with or proximity to others, and be aware of
hazards, and (3) moderate loss in her ability to understand,
remember, and carry out very short, simple instructions, get
along with others, interact with the public, maintain
socially appropriate behavior, adhere to basic standards of
neatness, travel in unfamiliar places, and use public
transportation. Id. Dr. Urban opined these
restrictions had been present since 2003, eight years before
she began treating Plaintiff. R. 224.
February 19, 2014, Dr. Urban completed a second,
substantially similar medical source statement that again
opined that Plaintiff had moderate to extreme limitations in
all work-related activities with a GAF score of 54. R.
385-89. Dr. Urban reported that Plaintiff suffered from: poor
memory, appetite disturbance with weight change, sleep
disturbance, and emotional lability. For clinical findings
that reflected the severity of Plaintiff s impairments, Dr.
Urban referred to her mental status examinations and the
intake examination. R. 386.
Consultative Psychologist, Dr. Michael Kushner
December 20, 2012, Dr. Michael Kushner, Ph.D., conducted a
psychiatric consultative examination of Plaintiff, who
reported symptoms of bone pain, difficulty falling asleep,
short-term memory problems, increased appetite, depressive
mood, crying spells, a great deal of sadness, and feelings of
emptiness and uselessness, but denied any suicidal ideation.
R. 201-204. Upon examination, Plaintiffs mood was dysthymic,
and her affect was depressed. Dr. Kushner found that
Plaintiffs recent and remote memory skills were mildly
impaired. Plaintiff was only able to recall two out of three
items after five minutes, and could not repeat any digits
backwards. Id. Dr. Kushner opined that her
intellectual functioning was below average, and her general
fund of information was somewhat limited. R. 203. Her motor
behavior was normal, her eye contact was appropriate, her
attention and concentration were intact, and her judgment was
good, although her mood was dysthymic, her affect was
depressed, and her memory skills were mildly impaired. R.
Kushner diagnosed Plaintiff with depressive disorder and
opined that she could learn new tasks, follow and understand
simple directions and instructions, perform simple tasks
independently, maintain attention and concentration, maintain
a regular schedule, and make appropriate decisions. R.
203-04. He opined that her "[p]rognosis is fair"
and she "may be able to perform complex tasks under
supervision, " but her "ability to relate
adequately with others and appropriately deal with stress may
be impaired by psychiatric problems and her psychiatric
problems "may significantly interfere with the
claimant's ability to function on a daily basis." R.
204. It was recommended that Plaintiff continue her
psychological and psychiatric treatment as currently
provided, R. 201-204. Plaintiffs medications at the time of
this examination included Citalporam, Zolpidem, Lorazepam,
Ramipril, Hydrochlorothiazide, Novolog, FlexPen, Metformin,
Gabapentin, and Crestor. R. 201-204.
3. Consultative Internal Medicine Examiner, Dr.
December 20, 2012, Dr. Shannon Gearhart examined Plaintiff
and found that Plaintiff was 58 inches tall and weighed 180
pounds and suffered from diabetes, and neuropathy with
numbness in her left. R. 205-08. Plaintiff reported bilateral
shoulder, bilateral knee, and bilateral foot pain, for which
she received physical therapy with minimal relief.
Id. Her pain was exacerbated by moving her arms and
was most pronounced with prolonged sitting or walking more
than five block at a time. Id. She denied weakness
in her limbs but gets fatigued easily. Id.
Gearhart opined that Plaintiff has moderate restrictions for:
heavy lifting, carrying, squatting, kneeling, climbing, and
going up and down stairs. R. 205-208. During her physical
exam, Plaintiff had a normal gait, and could walk on her
heels and toes without difficulty. R. 206. She had full range
of motion in her ankles, knees, and shoulders, with mild
limitations in her lumbar and hip movement and stable joints
with no redness, heat, swelling, or effusion, but had
tenderness in her shoulders. R. 207-08. She had no sensory
deficits in her extremities and intact hand and finger
dexterity. R. 207-08.
Gearhart diagnosed Plaintiff with diabetes, neuropathy,
hypertension, foot, knee, and shoulder pain, depression, and
anxiety with "moderate restrictions for heavy lifting,
carrying, squatting, kneeling, climbing, and going up and
down stairs, " "mild to moderate restrictions for
prolonged walking and standing, " and "mild
restrictions for prolonged sitting." Plaintiffs
medications at the time of Dr. Gearharfs exam included
Citalopram, Zolpidem, Lorazepam, Ramipril,
Hydrochlorothiazide, Novolog Flex Pen, Metformin, Gabapentin
and Cretor. R. 205-06.
Plaintiffs Hearing Testimony
February 25, 2014, Plaintiff testified with the aid of a
Spanish interpreter before ALJ Homblass in New York, New
York. R. 30-39. She was 46 years old at the time of the
hearing. R. 34, Plaintiff testified that she was bom in Santa
Domingo, Dominican Republic. R. 33-34. Plaintiff testified
that she was living with her children who she supports with
food stamps and child support. R. 32-34. Plaintiff testified
that her daughter helps her get dressed because she cannot do
it herself. R. 33-34, Similarly, Plaintiff testified that her
sister accompanies her whenever she travels. R. 37. Plaintiff
testified that she takes her insulin twice a day to control
her diabetes. R. 35-36. Plaintiff testified that on bad days
she feels tired, her body aches, and she feels dizzy. R.
34-36. Plaintiff testified that she could not work due to
these symptoms. R. 35-36. On the topic of her physical
impairments, Plaintiff testified about her inability to stand
for more than ten to fifteen minutes at a time, cramps,
itchiness, body aches, dizziness, nausea, pain in her hands
and feet, stomach pain, and being "always tired."
R. 35-36. On the topic of her mental impairments, Plaintiff
testified that her depression made her lose focus, feel sad,
isolate herself, and cry often. R. 36-37. In response to the
ALJ's questions about medications, Plaintiff reported
that she was experiencing nausea, dizziness, stomach pain,
and tiredness as side effects of her medication. Id.