Cruz v. Colvin
| Decision Date | 02 July 2013 |
| Docket Number | 12 Civ. 7346 (PAC) (AJP) |
| Parties | RICARDO CRUZ, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Plaintiff Ricardo Cruz, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Supplemental Security Income ("SSI") benefits. (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. Nos. 11 & 15: Notices of Motion.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be DENIED and Cruz's motion for judgment on the pleadings should be GRANTED to the extent of remanding the case to the Commissioner.
On August 4, 2009, Cruz applied for SSI benefits, alleging that he was disabled since April 24, 2009. Cruz alleged disability due to abdominal pain related to hernia surgery and depression. (R. 41-42, 106, 126, 145.) Upon initial review, the Social Security Administration ("SSA") found that Cruz was not disabled and denied his application. (R. 52-55.) On January 6, 2010, Cruz requested an administrative hearing. (R. 56-58.)
Administrative Law Judge ("ALJ") Jerome Hornblass conducted a hearing on August 17, 2010. (R. 23-48.) Cruz appeared at the hearing with his attorney. (R. 23, 25.) On November 30, 2010, ALJ Hornblass issued a written decision finding that Cruz was not disabled. (R. 9-19.) ALJ Hornblass' decision became the Commissioner's final decision when the Appeals Council denied review on August 27, 2012. (R. 1-3.)
The issue before the Court is whether the Commissioner's decision that Cruz was not disabled is supported by substantial evidence.
Cruz was born on December 17, 1976 and was thirty-two years old at the alleged onset of his disability. (R. 18, 25, 33.) Cruz speaks and reads English, graduated from high school, and attended college for two years. (R. 26, 105, 110.) Cruz previously worked as an after-school tutor, limousine driver, delivery person, and parking attendant. (R. 27-29, 107, 112-18, 134-38, 161-68.) Cruz lives in Manhattan with his mother, who does the shopping, cooking, and cleaning for the household. (R. 42-43.)
In 2003, Cruz suffered a gunshot wound to the abdomen and underwent several surgeries as a result. (R. 26-27, 29-30, 36.) Cruz continued to work for approximately six years after the gunshot injury occurred, until April 2009. (R. 40-41.) In 2009, Cruz was hospitalized for about three months when one of his surgeries resulted in an abdominal infection. (R. 30, 43.) After this, Cruz was assisted for about six months by a home health aid who cleaned his wound. (R. 30, 43.) Cruz used a "binder" around his stomach that he removed to shower. (R. 39, 158.) Cruz occasionally experienced sharp pains in his stomach, and he takes OxyContin three times a day to help with the pain. (R. 34, 37-38.)
Cruz described his condition and daily activities in a form dated August 26, 2009. (R. 124-40.) At the time, Cruz had a "v.a.c. machine" attached to his stomach and thus had to be "on bed rest" all day and could not shave, care for his hair, or bathe himself. (R. 128-29, 158.) Cruz left the house only for doctor's appointments and never left the house unaccompanied. (R. 46, 128.) Cruz's activities included reading, talking on the phone, and watching television, and he reported no problems getting along with family and friends. (R. 129-30.) Cruz was able to follow instructions, remember things, and pay attention. (R. 131-32.) He said he was "not able to lift, stand, walk, sit, climb stairs, kneel, [or] squat." (R. 130.) He only could walk for about half a block before needing to rest for five minutes. (R. 32, 131, 158.)
At the ALJ hearing on August 17, 2010, Cruz reported that he began to receive mental health treatment in November 2009 and gets psychiatric treatment three times a month. (R. 37.) Cruz took Zoloft, which helped him improve his mood somewhat. (R. 37, 42.) Cruz saw a doctor for pain management. (R. 37-38.) Cruz does not like crowds, dealing with people, or being social. (R. 34-35.) During a typical day, Cruz takes a walk, reads books, and uses a computer. (R. 38.) A friend often visits Cruz at his home, keeping him company. (R. 38-39.) Cruz can shower and dress himself. (R. 42-43.) Between pain management, psychiatry and surgery related doctor appointments, he has five to six doctor visits a month. (R. 40.)
Physical Condition
Treating Physicians
Cruz's abdominal gunshot wound was treated with an exploratory laparotomy without intervention. (R. 202-03, 216, 262, 298, 305.) On January 28, 2009, a CT scan of Cruz's pelvis and abdomen revealed a 1.7 cm midline ventral hernia related to the 2003 laparotomy. (R. 262-63, 447-48.)
On April 24, 2009, Dr. Susan Talbert at St. Luke's-Roosevelt Hospital performed a type of ambulatory surgery (R. 215-18, 295-98, 455-56) called open incisional hernia repair with mesh on Cruz's wound (R. 190-91, 217). Aside from noting obesity and a well-healed scar, Dr. Talbert's examination findings basically were normal. (R. 216.) Cruz received treatment after his surgery, including a blood transfusion. (R. 215.) A hematoma drained through Cruz's wound. (R. 215.) On discharge, Cruz was ambulatory and his pain was controlled. (R. 215.) Cruz received a prescription for Tylenol. (R. 296.)
On May 7, 2009, Dr. Talbert examined Cruz's post-surgery recovery. (R. 259.) Cruz did not require pain medication, denied any symptoms, and could perform his daily activities normally. (R. 259.) Dr. Talbert's findings were unremarkable and she described Cruz's recovery as "stable." (R. 259.) Dr. Talbert removed Cruz's surgical staples and performed further wound care. (R. 259.) Dr. Talbert renewed the prescription for an abdominal binder and Percocet. (R. 259.) Cruz returned to Dr. Talbert on May 21, 2009 and generally was healing well. (R. 258.)
On June 13, 2009, Cruz sought treatment at St. Luke's for swelling at his surgical site. (R. 255-57.) Dr. Jeffrey Rabrich diagnosed post-operative pain, discharged Cruz in stable condition, and told him to follow up with his physician. (R. 254, 256.) Five days later, Cruz visited Dr. Talbert because his skin had "bubbled up" at the incision site. (R. 253.) Dr. Talbert found a one-centimeter fluid-filled nodule with no draining, purulence or erythema. (R. 253.)
On June 22, 2009, Cruz again returned to St. Luke's, where a physician observed the incision site and found brown serous fluid, likely evincing a liquified hematoma. (R. 252.) Cruz returned, as instructed, on June 25, 2009 and was seen by Dr. Talbert. (R. 251.) Dr. Talbert noted a recent cyst at the site, but observed that the wound was closing. (R. 251.) Dr. Talbert instructed Cruz to use dry gauze and to continue to change the dressing twice daily. (R. 251.)
On July 2, 2009, Drs. Talbert and Myers treated Cruz. (R. 209-10, 250.) Cruz reported two new blisters at the site, but reported only minimal pain and denied other symptoms. (R. 209, 250.) Dr. Myers' diagnosis was status post ventral hernia repair with mesh and skin blistering and an infected hematoma that was likely liquified. (R. 210, 250.) The doctors recommended that Cruz be admitted to the hospital, administered intravenous ("IV") fluids, and given additional tests. (R. 210, 250.)
The next day, July 3, 2009, Cruz was admitted to St. Luke's and reported drainage, wound swelling, and mild pain. (R. 203-08, 274-92.) Cruz's psychiatric history was negative for anxiety and depression. (R. 203.) Dr. Peter Fontana diagnosed wound infection and Cruz was given antibiotics by IV. (R. 204, 208.) Cruz declined pain medication. (R. 204.) Tests revealed that the area around Cruz's abdominal mesh was infected and doctors decided to remove the mesh. (R. 192, 211-14, 260-61.) On July 7, 2009, Dr. Talbert conducted an exploratory laparotomy, removing the infected mesh and closing the fascia using alloderm mesh and peritoneal lavage. (R. 187-89, 214, 268-72.) Cruz had no complications from the surgery (R. 214) and was discharged on July 13, 2009 (R. 274-76). Cruz was prescribed a vacuum dressing and Percocet, and instructed to follow up at the clinic in one week and avoid lifting. (R. 275-76.)
During July, August and September 2009, Cruz visited St. Luke's for follow-up visits. (R. 246-49.) Attending physicians observed a satisfactory course of healing and Cruz denied pain or any problems. (R. 246-49.) The physicians instructed Cruz to use the vacuum dressing and Curasol. (R. 246-47.) While a greenish discharge was observed on September 10, 2009, there was healthy tissue granulation and no sign of purulence or bleeding. (R. 246.)
Seeking a referral for continued treatment, Cruz visited the William Ryan Community Health Center on September 23, 2009. (R. 303-04.) Cruz denied any symptoms or pain. (R. 303-04.) Eddie Sung, a physician assistant, reported that Cruz had an open surgical wound and ventral hernia. (R. 303-04.) Sung ordered a surgical consultation and recommended that Cruz visit his primary care physician in a month. (R. 304.)
On October 23, 2009, Dr. Donzella Dixon examined Cruz. (R. 305-07.) Cruz was experiencing abdominal pain and stated that he wanted permanent disability. (R. 305.) At the time, Cruz was visiting St. Luke's once a month and taking OxyContin for pain. (R. 305.) Dr. Dixon examined Cruz and assessed a healing surgical wound and depression. (R. 306.) Dr. Dixon referred Cruz for a mental health consultation; she reassured...
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