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Martinez v. Commissioner of Social Security

United States District Court, E.D. New York

March 27, 2017



          ROSLYNN R. MAUSKOPF United States District Judge

         Plaintiff Rosemary Martinez brings this action against defendant, the Acting Commissioner of the Social Security Administration (the “Commissioner”). Martinez seeks review of the determination of an administrative law judge (“ALJ”) that she is not entitled to Supplemental Security Income (“SSI”) benefits, pursuant to 42 U.S.C. § 405(g). (Compl. (Doc. No. 1) at 2-3.) Martinez requests that this Court remand the proceedings on the grounds of legal error, failure to develop the record, and insubstantial evidence. (Pl.'s Mem. Cross-Mot. (Doc. No. 15) at 1.) Martinez and the Commissioner have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Pl.'s Cross-Mot. J. (Doc. No. 14); Def.'s Mot. J. (Doc. No. 19).) For the reasons set forth below, the Commissioner's motion is granted, and Martinez's motion is denied.


         I. Procedural History

         On February 9, 2012, Martinez filed applications for both Social Security Disability (“SSD”) and SSI benefits, alleging disability as of January 1, 2010, due to bipolar disorder, depression, post-traumatic stress disorder (“PTSD”), obesity, essential hypertension, lumbosacral spondylosis, and abnormal liver function. (Admin. R. (Doc. No. 22) at 213-14, 239, 262.) Martinez's applications for SSD and SSI benefits were denied.[1] The Notice of Disapproved Claim for SSI benefits states that “the reports did not show any condition of a nature that would prevent [Martinez] from working. We realize that at present [Martinez is] unable to perform certain kinds of work. But based on [her] age of 49 years, [her] education of 12 years, and [her] experience, [she] can perform light work (for example, [she] could lift a maximum of 20 lbs., with frequent lifting or carrying of objects weighing up to 10 lbs., or walk or stand for much of the working day).” (Id. at 124.) In response to this decision, Martinez requested a hearing before an ALJ. (Id. at 120-28.)

         On July 16, 2012, Martinez appeared before ALJ Kieran McCormack, and the hearing was adjourned to provide Martinez the opportunity to obtain counsel. (Id. at 82-93.) She appeared with her attorney at a continued hearing on February 20, 2014. (Id. at 20-81.) In a decision dated March 25, 2014, the ALJ found Martinez not disabled. (Id. at 96-115.) He found that although Martinez suffered from several impairments - history of asthma, hypertension, status-post cholecystectomy, radiculopathy, bipolar disorder, and anxiety disorder - and although Martinez was unable to perform her previous work due to her impairments, “the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Id. at 101, 109-110.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Martinez's request for review on April 24, 2015. (Id. at 1-6.)

         On June 22, 2015, Martinez filed the instant action alleging that the ALJ's decision “was erroneous, not supported by substantial evidence on the record and/or contrary to the law.” (Compl. at 3.) The Commissioner maintains that the ALJ's determination was based upon proper evaluation of the evidence. (Def.'s Mem. Mot. (Doc. No. 20) at 21-34.) Both Martinez and the Commissioner have filed motions for judgement on the pleadings. (Pl.'s Cross-Mot. J.; Def.'s Mot. J.)

         II. Administrative Record

         a. Non-Medical Evidence

         Martinez was born in 1963, and she has a general equivalency diploma. (Admin. R. at 58-59, 263.) She was self-employed from 2006 to 2009 as a babysitter. (Id. at 32-33, 253.) Martinez reported that during that time, she also worked for an elderly man, caring for him and cleaning his house. (Id. at 33.) She reported that in 2009, while doing the latter job, she fell and hurt her back and legs, and did not work thereafter. (Id. at 33-34, 59.)

         In a disability report dated March 12, 2012, Martinez stated that she lived with family in an apartment. (Id. at 241.) Every day, she took a shower (while seated), watched television, and read. (Id. at 241, 254.) She sometimes forgot to take her many medications. (Id. at 243.) Martinez reported that she “fixed” her bed, was “limited” in washing the dishes, and received help doing laundry, cleaning the bathroom, sweeping, cooking, and food shopping. (Id. at 244.) She went out only for doctor appointments, and she never went out alone because she was worried that she might fall. (Id. at 244-46.) She said she had, in the past, fallen on the way to the bus stop and while walking down stairs. (Id. at 245.) Martinez reported that she could pay bills and handle a bank account, and manage her financial affairs. (Id.) She reported that she rarely left home and had no social life due to issues with her legs and back. (Id. at 246.) She said she had no problems paying attention, following spoken and written instructions, and remembering things. (Id. at 248-49.) She got along with people in positions of authority, except her landlord. (Id. at 248.)

         In her March 12, 2012 disability report, Martinez further stated that she could not stand for long periods and often lost her balance. (Id. at 243, 246.) Her back and legs, which “just give up, ” kept her from doing things. (Id. at 244.) She said she could not lift objects or bend over. (Id. at 246.) She could only walk for one-half block, and needed someone with her to do so. (Id. at 246-47.) Climbing stairs was difficult, and she would not do it unless she had one person in front of her and another behind her. (Id. at 247.) Martinez reported that while she did not have any issues with her hands, she could not kneel, squat, or reach. (Id.) She said her sight was getting worse. (Id.) She wore glasses and used a cane. (Id. at 248.) She reported that she used an inhaler for asthma and had never been hospitalized for it. (Id. at 249-50.)

         Martinez said that she had anxiety because she was molested by her father when she was six and had been in an abusive relationship as an adult. (Id. at 250.) Martinez said she experienced flashbacks of the abuse, accompanied by rapid heartbeat, anger, confusion, and fear. (Id.) When she had an anxiety attack, she took her medications (Clonazepam, [2] Risperdal, [3] and Lexapro[4]) and stayed in her room. (Id. at 251.) She said that she needed someone with her at all times. (Id.)

         Alan Zebek, Martinez's case manager at WeCARE - the New York City Human Resources Administration's Wellness, Comprehensive Assessment, Rehabilitation and Employment program - was assisting her in applying for SSI benefits. Zebek completed a third-party function report dated February 9, 2012. (Id. at 229-38, 278-87.) He stated that Martinez needed help showering and putting on her shoes. (Id. at 229, 230.) Zebek reported that Martinez said she had difficulty going up and down stairs. (Id. at 229.) Most of her day was spent in the house watching television and reading fiction and newspapers. (Id. at 229, 233.) Family members and friends did all the chores. (Id. at 229, 231.) She talked to her friends and family on the phone or had them over to her apartment. (Id. at 229, 233.) Martinez went to psychotherapy once a week, unless her pain was too severe. (Id. at 229.) She told Zebek that she woke up every two hours due to pain, racing thoughts, and hallucinations. (Id. at 229, 230.) When she was depressed, she did not comb her hair. (Id. at 230.)

         Zebek reported that Martinez was able to go out alone by foot, by car, or on public transportation, though she preferred to avoid public transportation during rush hour due to anxiety. (Id. at 232.) He also reported that she preferred to travel with an escort. (Id. at 233- 34.) Although she could count change, she had difficulty managing finances; Martinez said she had difficulty with simple math. (Id.) She reportedly had difficulty performing the following activities due to pain, shortness of breath, and mood swings: lifting, bending, standing, walking, sitting, kneeling, climbing stairs, seeing, remembering things, completing tasks, concentrating, following instructions, and getting along with others. (Id. at 234.) Zebek reported that Martinez had no problems following written instructions and that she could pay attention for twenty minutes. (Id.) She could walk one-half block before stopping for ten minutes to rest. (Id.) Zebek reported that Martinez said she had some trouble with authority figures and distrusted people in power. (Id. at 235.) She reported that she could not handle stress well. (Id.) She cried, had panic and anxiety attacks, and hurt herself. (Id.) Martinez cried during her intake meeting with Zebek. (Id.) She used a walker and cane for mobility and support, and wore glasses. (Id.) Zebek reviewed and summarized medical evidence collected by WeCARE before and after Martinez's alleged onset date (January 1, 2010), and he stated that Martinez met SSI listings 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety-related disorders). (Id. at 236-37.)

         Martinez testified at the hearing held on February 20, 2014 that she had back problems, hypertension, and asthma, and had recently had her gallbladder removed. (Id. at 35.) Martinez said she had to urinate frequently since the surgery. (Id. at 60-63.) She had stopped babysitting in 2009 due to pain in her lower back that radiated down her legs. (Id. at 36, 56.) She stated that she could not pick up things or stand “too long.” (Id. at 36.) She claimed that her legs “give out, ” and she was constantly falling. (Id. at 36, 50, 56.) Her doctor had prescribed Tramadol[5]and Lyrica.[6] (Id. at 36-37.) Martinez said she used a cane every day. (Id. at 56.) She had hypertension, but did not like the medication prescribed for it. (Id. at 37.) She described her asthma as generally stable, although she stated that she would have problems in an environment with a lot of pollen or dust. (Id. at 37-38.) She used an inhaler. (Id. at 38.) She smoked half a pack of cigarettes a day. (Id. at 38-39.)

         Martinez stated that she had suffered from bipolar disorder and anxiety for the past twenty years. (Id. at 39-40.) She said that she had to stop working because her psychological symptoms and the pain in her legs worsened. (Id. at 40.) Martinez testified that her symptoms included becoming angry, throwing things, screaming, and “blank[ing] out.” (Id. at 40-41, 57.) She said that Zoloft[7] helped, and that her dosage had been increased to better treat her mental health problems. (Id. at 41.) When questioned by the ALJ as to why she was currently being treated at a methadone clinic, she claimed that in 1983, she became addicted by ingesting methadone that her ex-husband kept in their home. (Id. at 41-46.) Martinez said that she stopped taking it when she got pregnant in 1989 and had been in a drug treatment program ever since. (Id. at 44-46.) She attended the program Monday through Friday and was “in and out” in ten minutes. (Id. at 45.) Martinez denied using heroin. (Id. at 41.) She stated that she smoked marijuana one month prior to the hearing. (Id. at 47.)

         Martinez testified that she showered daily (using a seat), and took a cab to her methadone clinic and public transportation home. (Id. at 49-50, 51, 53.) She said she could use public transportation if someone accompanied her. (Id. at 53.) She reported that she normally spent the rest of the day in bed watching television. (Id. at 50-51.) She stated that she had fallen while cleaning, and her children did not want her to do chores. (Id. at 50.) Martinez said that her brother and sons did all the shopping, laundry, and household chores. (Id. at 50-52.) She then stated that she did some cooking and washing dishes while sitting down. (Id. at 52.) Martinez reported that she had a cell phone and a computer, and maintained email and Facebook accounts. (Id. at 53.)

         b. Medical Evidence Prior to Plaintiff's SSI Benefits Application

         i. Interfaith Medical Center - October 2000-August 2010

         Before making her SSI benefits application, Martinez was treated for opiate/heroin dependency at Interfaith Medical Center (“Interfaith”), where she received methadone maintenance, counseling, and primary health care services. (See, e.g., id. at 339, 341, 385, 395, 396, 398.) Martinez reported that she began using heroin at the age of eighteen. (Id. at 333.) She stated that “she was tired of using heroin.” (Id. at 331.) She denied experiencing any sexual or physical abuse as a child or adult. (Id. at 335.) She said that she got along well with her family and others. (Id. at 334, 336.) In 2004, no behavior or emotional problems were noted. (Id. at 339.)

         Interfaith records from 2010 indicate that Martinez was being treated elsewhere for anxiety and depression. (Id. at 343, 345.) In January of 2010, she reportedly was noncompliant and shouted when told to increase her visits to six times per week from five. (Id. at 355.) Because Martinez was missing appointments for methadone maintenance dosages, pick-up by taxi was authorized. (Id. at 349-50.)

         On March 9, 2010, Martinez underwent a pelvic sonogram and an electrocardiogram (“EKG”) after complaining of pelvic pain. (Id. at 542.) Those exams revealed a cystic structure and possible small fibroid. (Id.) X-rays of Martinez's lumbosacral spine on March 15, 2010 were normal. (Id. at 540.) X-rays of her foot revealed bilateral calcaneal spurs and hallux valgus deformity. (Id. at 541.) Her methadone dosing schedule was reduced to five visits per week in August 2010 as a result of compliance. (Id. at 350.) Martinez reported in her counseling sessions that she had no emotional problems but was not engaged in “any meaningful endeavor” and had no work history. (See Id. at 351, 353-55.)

         ii. WeCARE - August 2008-February 2012

         In August 2008, Martinez was evaluated at WeCARE. (Id. at 294-303, 428-55.) She traveled independently by bus to the appointment. (Id. at 443.) At the intake, she stated, inter alia, that she had not worked since 1983, and she denied any past or current drug use or treatment. (Id. at 296, 445, 446.) Martinez reported a history of parental abuse and domestic violence. (Id. at 447.) She said that she was experiencing symptoms of depression due to the death of her mother in April 2008. (Id. at 444.) She reported that she heard voices, saw visions of her father, and was paranoid. (Id. at 296.) Martinez stated that she washed dishes and clothes, swept and vacuumed the floor, made beds, shopped for groceries, cooked meals, watched television, read, socialized, and crocheted. (Id. at 447-48.) She said she could not work due to hand and leg problems. (Id. at 448.) Nancy Flores, M.D., a psychiatrist, assessed Martinez as psychotic and thought disordered and diagnosed mood disorder not otherwise specified (“NOS”), as well as PTSD. (See Id. at 294-300.) Dr. Flores wrote that Martinez demonstrated poor attention, registration, and concentration when doing tasks, and was unable to function in a work setting. (Id. at 299.) She opined that Martinez was permanently disabled. (Id.) After both mental and physical examinations, Martinez was diagnosed with lower back pain, hypertension, chronic obstructive pulmonary disease, PTSD, schizoaffective disorder, and depression. (Id. at 454.) Ilya Smuglin, M.D., opined that Martinez was “temporarily unemployable” due to psychosis and thought disorder, per Dr. Flores's assessment. (Id. at 454.)

         Martinez was reevaluated at WeCARE in August 2010. (See Id. at 305-13, 428-41.) At her mental health intake, she said that she did not remember her last paid employment. (Id. at 431.) At her physical medical intake, she stated that she had worked as a child care provider for six years and stopped in 2009. (Id. at 307.) She said she had no history of using illegal substances and was not in drug treatment. (Id. at 307, 433, 437.) Martinez said that she had undergone outpatient psychiatric treatment for 23 years, but not since 2004. (Id. at 308, 309.) She stated that she was not experiencing any symptoms of depression. (Id. at 308-09, 430.) Martinez reported that she washed dishes and clothes, swept and mopped the floor, made beds, shopped for groceries, cooked meals, watched television, read, and socialized. (Id. at 434.) She said that she also spent her days assisting elderly couples. (Id.) She reported that she could travel by bus or train, without assistance. (Id. at 309.) Martinez reported having back pain, bilateral leg pain/numbness (mostly on the right side), hypertension, asthma, and depression. (Id. at 310.) She used a cane. (Id.) She said that her inability to work was based on bilateral leg pain that affected her ability to stand and walk. (Id.)

         As part of the WeCARE reevaluation, Eddy Cadet, M.D., diagnosed: possible lumbosacral radiculopathy with mild functional impairment, rule/out peripheral artery disease with mild functional impairment, peripheral venous insufficiency with mild functional impairment, asthma that was mild/intermittent and stable, and a history of controlled depression. (Id. at 440; see Id. at 428-41.) He opined that Martinez should limit, or possibly eliminate, lifting, pushing, pulling, carrying, stooping, bending, and reaching due to backache, but he stated that she was otherwise able to do light work. (Id. at 440-41.)

         Martinez returned to WeCARE on February 7, 2012. (Id. at 413-27.) She traveled independently to the appointment by bus. (Id. at 414.) She was using a cane. (Id.) Martinez reported that she had previously endured physical abuse by her late husband, who had died during an altercation with her. (Id. at 415.) She said she was not jailed because “it was out of self-defense.” (Id.) She reported that she had been treated over at least the previous two years for bipolar disorder, depression, claustrophobia, and anxiety. (Id. at 414, 420.) She saw a therapist weekly and a psychiatrist monthly and said that talking to the therapist helped her “a lot.” (Id. at 415.) Her anxiety was improved with medication. (Id. at 421.) She denied having any drug history. (Id. at 418, 422.) Martinez said she had last worked as a babysitter in 2011 and that since then, her medical conditions prevented her from working. (Id. at 416.) She also reported having back pain that radiated to her legs and caused her to fall, high blood pressure, and asthma. (Id. at 420, 421.) On examination, Sundararaja Chandrasekaran, M.D., classified Martinez as obese, with a Body Mass. Index (“BMI”) of 39.[8] (Id. at 424.) Plaintiff had nonspecific leg tenderness, with restriction of knee flexion, as well as non-specific sensory loss, with no anatomic correlation, in both legs. (Id.) Straight leg raising was positive at 50 degrees. (Id.) Dr. Chandrasekaran diagnosed: PTSD by history, unstable; obesity, stable; essential hypertension, unspecified, stable; asthma, unspecified, stable; lumbosacral spondylosis without myelopathy, unstable; other abnormal glucose, stable; bipolar disorder/depression; and abnormal liver function. (Id. at 426.) She referred Martinez to a psychiatrist for further evaluation and opined that Martinez was unable to work. (Id. at 425, 427.)

         Thomas Kranjac, M.D., a WeCARE psychiatrist, examined Martinez on the same day. (Id. at 463-72.) Martinez told him that she traveled to the examination with a friend because she was afraid of fainting. (Id. at 464.) Martinez complained of: mood swings, depressed mood, poor concentration, panic, rapid heartbeat, fear of going outside, insomnia, anxiety/fearfulness, fatigue, crying, suicidal thoughts, forgetfulness, flashbacks, irritability, yelling at people, racing thoughts, and hearing voices. (Id. at 464-65.) On mental status examination, Martinez was neat and calm. (Id. at 466.) Her affect was constricted, and her mood was depressed. (Id.) She reported experiencing auditory hallucinations, obsessions, and suicidal ideations. (Id.) Her speech was normal, and her thought was logical. (Id.) Dr. Kranjac said Martinez had difficulty with mobility and used a cane. (Id.) He diagnosed: bipolar disorder, NOS; panic disorder with agoraphobia; and PTSD. (Id. at 468.) He assessed a Global Assessment of Functioning (“GAF”) score of 50.[9] (Id.) Dr. Kranjac assessed that Martinez had moderate functional impairments in: ability to follow work rules; relating to co-workers; accepting supervision; adapting to change; dealing with the public; and maintaining attention. (Id. at 467.) He opined that Martinez would have severe impairments in adapting to stressful situations and stated that Martinez needed a lower stress environment and non-rush hour travel accommodations. (Id.) Dr. Kranjac also stated that Martinez was unable to work for at least twelve months due to incompletely treated mental disorders. (See Id. at 426-27, 469-70.)

         iii. Cumberland Diagnostic and Treatment Center - August 2008

         Martinez had a routine physical exam at Cumberland Diagnostic and Treatment Center in August 2008, which produced unremarkable results. (See Id. at 315-22.)

         iv. Kingsbrook Jewish Medical Center - May-June 2011

         On May 11, 2011, Martinez went to the Kingsbrook Jewish Medical Center emergency department complaining of left knee swelling and pain after falling on the sidewalk five days earlier. (Id. at 627-37.) She noted a history of previous falls. (Id. at 630.) She denied experiencing depression or visual or auditory hallucinations. (Id. at 628-29.) Her mental status examination was normal. (Id. at 629, 630.) Her left knee X-rays were unremarkable. (Id. at 633.) Martinez returned on June 20, 2011 complaining of dizziness, shortness of breath, and bilateral leg edema. (Id. at 614-626.) Her mental status examination again was normal. (Id. at 617.) She did not present with back tenderness, and there was mild edema in her legs. (Id.) Her lungs were clear. (Id.) Martinez was diagnosed with benign paroxysmal vertigo and edema. (Id. at 619.)

         v. Preferred Health Partners - February-October 2011

         On February 24, 2011, Martinez was examined at Preferred Health Partners (“PHP”), complaining of anxiety. (Id. at 400-01). She was diagnosed with: anxiety, unspecified; and chronic and essential hypertension, unspecified and stable. (Id. at 401.)

         Plaintiff returned to PHP on October 5, 2011, complaining of hypertension and pain in her lower back radiating to both legs. (Id. at 402-04.) Rose Yves-Lyne Daniel, M.D., diagnosed: unspecified essential hypertension; low back pain radiating to both legs, chronic; and anxiety state, unspecified. (Id. at 404.)

         vi. Community Counseling & Mediation - August 2011

         Martinez visited Community Counseling & Mediation (“CCM”) on August 22, 2011, for an initial psychiatric evaluation. (Id. at 493-505, 560-66.) Eli Shalenberg, M.D., a psychiatrist, noted Martinez's psychiatric history, including past domestic abuse. (Id. at 495, 497.) Martinez admitted to current marijuana use (“to help me relax”) and denied having any other drug history. (Id. at 496.) On examination, she was tearful and distraught at times, but her range of affect was broad and reactive. (Id. at 498.) She was neat, had appropriate affect, and good impulse control. (Id.) Her mood was sad, and her mannerisms were normal. (Id.) Martinez's memory, recent and remote, was normal. (Id.) She was alert, and she had normal concentration, thought content, and eye contact. (Id.) Intellectual functioning was normal; her insight was fair, and her judgment was good. (Id.) She denied experiencing hallucinations. (Id.) Dr. Shalenberg assessed that Martinez's major depressive disorder, PTSD, panic disorder, and agoraphobia were fairly well-controlled on Lexapro and Klonopin until she ran out those medications four days prior. (Id. at 497, 499.) The doctor restarted Martinez on both medications, and he referred her for psychotherapy. (Id. at 499.)

         c. Medical Evidence After Alleged Onset Date

         i. Wycoff Heights Medical Center - February 2012

         Martinez was treated in the Wyckoff Heights Medical Center emergency department on February 20, 2012, for head, neck, lower back, and knee pain after tripping and falling down steps at home. (See Id. at 639-43, 650-53.) Left knee X-rays showed degenerative changes but no evidence of acute distress or fracture. (Id. at 644.) Lumbosacral spine X-rays were unremarkable. (Id. at 645.) A brain CT-scan was normal; a CT scan of the cervical spine showed mild degenerative changes but no acute injury. (Id. at 646-49.) Martinez's discharge diagnosis was accidental fall. (Id. at 642.) Martinez was given a cane for support, a wrap for her knee, and pain medication, and she was discharged in improved condition. (See Id. at 475-77, 639-43.)

         ii. Dr. Vinod Thukral, Consultative Examiner - March 2012

         On March 30, 2012, Vinod Thukral, M.D., performed a consultative internal medicine examination. (Id. at 483-87.) Martinez reported histories of hypertension without complications since 2005 and asthma relieved by an inhaler since 1994. (Id. at 483.) She said she experienced “on and off” lower back pain over the previous four years, with an exacerbation two months earlier when she slipped and fell. (Id.) Martinez said she had decreased vision due to glaucoma in both eyes. (Id.) She also reported a twenty-year history of anxiety, bipolar disorder, claustrophobia, and depression. (Id.) She reported that she took the following medications: Clonazepam, Risperidone, Divalproex, [10] Citalopram, [11] Clonidine, [12] Lasix, [13] and Lyrica. (Id. at 484.) Martinez said that she smoked a half-pack of cigarettes per day and denied any alcohol or drug abuse. (Id.) She lived with her two sons, ...

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