James v. Commissioner of Social Security

Filing 15

ORDER granting 12 Motion for Judgment on the Pleadings: For the reasons stated in the attached Memorandum & Order, Defendant's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is granted in its entirety, and Plaintiff's complaint is dismissed with prejudice. The Clerk of Court respectfully is directed to terminate this matter. Ordered by Judge Pamela K. Chen on 9/24/2014. (Doerr, Mark)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHARLES JAMES, JR.,
Plaintiff,
MEMORANDUM & ORDER
13-CV-2492 (PKC)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Charles James, Jr., proceeding pro se, brings this action under 42 U.S.C. §
405(g), seeking judicial review of the Social Security Administration’s denial of his claim for
social security disability insurance benefits. (Dkt. 1.) Pending before the Court is the unopposed
motion of the Acting Commissioner of Social Security (“Commissioner”) for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(c). (Dkt. 12–14.) For the
reasons stated below, the Commissioner’s motion is granted, and Plaintiff’s complaint is
dismissed with prejudice.
BACKGROUND
Because the Commissioner’s motion is unopposed, the Court adopts the facts set forth in
the Commissioner’s moving brief as if set forth fully herein. (Dkt. 13 at 2–8 (setting forth
relevant non-medical and medical evidence); see also Dkt. 7 Administrative Record (“Record”)
at 14); Jackson v. Fed. Exp., --- F.3d ----, 2014 WL 4412333, at *6 (2d Cir. Sept. 9, 2014)
(noting that in the case of an unopposed motion, “there is no need for a district court to
robotically replicate the defendant-movant’s statement of undisputed facts and references to the

record or otherwise serve as an assistant to our law clerks”) (citing Miranda v. Bennett, 322 F.3d
171, 175, 177 (2d Cir. 2003)). 1 Though an unopposed motion for judgment on the pleadings
“allow[s] the district court to accept the movant’s factual assertions as true,” Vt. Teddy Bear Co.
v. 1–800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004), the Court has independently reviewed
the record in order to “determine from what it has before it whether the moving party is entitled
to [] judgment [on the pleadings] as a matter of law.” McDowell v. Commissioner of Soc. Sec.,
2010 WL 5026745, at *1 (E.D.N.Y. Dec. 3, 2010) (quoting Vt. Teddy Bear Co., 373 F.3d at 246)
(internal quotation marks omitted).
As for the procedural history giving rise to this matter, on January 5, 2010, Plaintiff filed
an application for supplemental security income (“disability benefits”), which was denied.
(Record at 14.) Plaintiff requested a hearing, which was held on November 16, 2010, at which
Plaintiff testified and represented himself without an attorney. (Record at 14.) Subsequent to the
hearing, Administrative Law Judge (“ALJ”) Jerome Hornblass issued a written decision, dated
December 15, 2010, in which he denied Plaintiff’s application for disability benefits on the basis
that Plaintiff is not disabled under Section 1614(a)(3)(A) of the Social Security Act (“Act”).
(Record at 19.) Plaintiff’s petition for judicial review of the Commissioner’s decision followed
on April 24, 2013. (Dkt. 1.)
STANDARD OF REVIEW
I.

FRCP 12(c)
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” FRCP 12(c).
The legal standards applicable to a FRCP 12(c) motion are the same as those applied to a FRCP
1

The Administrative Law Judge’s specific findings of fact and conclusions of law are discussed
below where pertinent. See infra at 6–9.
2

12(b)(6) motion to dismiss. Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d
Cir. 2010). To survive a FRCP 12(b)(6) motion, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). In evaluating a FRCP 12(b)(6)
motion, the Court must accept all well-pleaded factual allegations of the complaint as true and
draw all reasonable inferences in favor of the non-moving party, here, Plaintiff. Id. at 679.
Even when a motion for judgment on the pleadings is unopposed, “[w]here . . . the
pleadings are themselves sufficient to withstand dismissal, a failure to respond to a 12(c) motion
cannot constitute ‘default’ justifying dismissal of the complaint.” McCall v. Pataki, 232 F.3d
321, 322 (2d Cir. 2000). As with unopposed motions for summary judgment pursuant to FRCP
56, when a FRCP 12(c) motion is unopposed, the Court must review the record to determine
whether the moving party has established entitlement to judgment as a matter of law. See Vt.
Teddy Bear Co., 373 F.3d 241 at 246. In addition, where a plaintiff proceeds pro se, the Court
must construe the pleadings liberally and interpret them to raise the strongest arguments they
suggest. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013); Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 472 (2d Cir. 2006).
II.

Review of Administrative Decisions
In reviewing a final decision of the Commissioner, the Court’s duty is to determine

whether it is based upon correct legal standards and principles and whether it is supported by
substantial evidence in the record, taken as a whole. See Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012) (the Court “is limited to determining whether the [Social Security
Administration’s] conclusions were supported by substantial evidence in the record and were
based on a correct legal standard”). “‘Substantial evidence is more than a mere scintilla. It

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means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)) (alterations and internal quotation marks omitted). In determining
whether the Commissioner’s findings were based upon substantial evidence, “‘the reviewing
court is required to examine the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Id. (quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983)). However, the Court is mindful that “it is up to the agency, and not
this court, to weigh the conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143
F.3d 115, 118 (2d Cir. 1998). Under any circumstances, if there is substantial evidence in the
record to support the Commissioner’s findings as to any fact, they are conclusive and must be
upheld. 42 U.S.C. § 405(g); Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013).
DISCUSSION
I.

Disability Under the Social Security Act
The Act provides that an individual is disabled if he or she is unable “to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Act’s regulations prescribe a five-step analysis
for the Commissioner to follow in determining whether a disability benefit claimant is disabled
within the meaning of the Act. See 20 C.F.R. § 404.1520; Talavera, 697 F.3d at 151.
First, the Commissioner determines whether the claimant currently is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
If not, the Commissioner proceeds to the second inquiry, which is whether the claimant
suffers from a medical impairment or combination of impairments that is “severe,” meaning that

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the impairment “significantly limits [claimant’s] physical or mental ability to do basic work
activities.”

If the impairment is not severe, the claimant is not disabled. 20 C.F.R. §

404.1520(a)(4)(ii), (c).
If the impairment is severe, the Commissioner proceeds to the third inquiry, which is
whether the impairment meets or equals one of the impairments listed in Appendix 1 to Subpart
P of Part 404 of the Act’s regulations. If so, the claimant is presumed disabled and entitled to
benefits. 20 C.F.R. § 404.1520(a)(4) (iii).
If not, the Commissioner proceeds to the fourth inquiry, which is whether, despite
claimant’s severe impairment, he has the “residual functional capacity” to perform past work. 20
C.F.R. § 404.1520(a)(4)(iv).

In determining a claimant’s residual functional capacity, the

Commissioner considers all medically determinable impairments, even those that are not
“severe.” 20 C.F.R. § 404.1545(a). If the claimant’s residual functional capacity is such that
s/he can still perform past work, the claimant is not disabled.
If the claimant cannot perform past work, the Commissioner proceeds to the fifth and
final inquiry, which is whether, in light of the claimant’s residual functional capacity, age,
education, and work experience, the claimant has the capacity to perform other substantial
gainful work which exists in the national economy. If the claimant has such capacity, the
claimant is not disabled. If not, the claimant is disabled and entitled to benefits. 20 C.F.R. §
404.1520(a)(4)(v); 42 U.S.C. § 423(d)(2)(A).
The claimant bears the burden of proving his case at steps one through four; at step five,
the burden shifts to the Commissioner to establish that there is substantial gainful work in the
national economy that the claimant could perform. Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.
2004).

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II.

The Administrative Law Judge’s (“ALJ”) Decision
In denying Plaintiff’s application for disability benefits, the ALJ clearly followed the

five-step analytic procedure prescribed by the Act and pertinent regulations. First, the ALJ
found that Plaintiff “has not engaged in substantial gainful activity since January 5, 2010, the
application date.” (Record at 16.) Second, the ALJ determined that Plaintiff had the “severe”
impairments of a history of low back pain and asthma. (Record at 16.) The ALJ found that the
medical evidence showed that Plaintiff “has more than minimal limitations due to the medical
impairments” and, therefore, Plaintiff’s impairments are “severe.” (Record at 16.) 2 Next, the
ALJ determined that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix,” even when considering Plaintiff’s low back pain and asthma in conjunction. (Record
at 16.) 3
Next, and most relevant to the present motion, the ALJ determined that Plaintiff “has the
residual functional capacity to perform medium work activity, avoiding environments with
concentrated respiratory irritants.” (Record at 16.) Although the ALJ made numerous findings
with respect to Plaintiff’s medical condition (see Record at 16), two findings are of particular
note. First, a medical source who examined Plaintiff following his application for benefits,
found that “[t]he patient is currently medically stable and clear for occupation.” (Record at 17,

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However, the ALJ found that Plaintiff’s gastroesophageal reflux disease (commonly known as
“GERD”) “is well control[led] with medication, not[] functionally limit[ing], and not an
additional severe impairment.” (Record at 16.)
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As previously discussed, if the claimant’s impairment meets or equals one of the impairments
set forth in this section of the CFR, the claimant is presumed disabled and entitled to benefits.
See 20 C.F.R. § 404.1520(a)(4)(iii) (“If you have an impairment(s) that meets or equals one of
our listings in appendix 1 of this subpart and meets the duration requirement, we will find that
you are disabled.”).
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207.) Second, in support of his finding that Plaintiff could perform “medium work activity,” the
ALJ noted that Plaintiff, who is 6 feet, 2 inches tall and 260 pounds, “admitted that he could do
exertionally medium work” and that he “walked to the hearing and it took him about ten
minutes” to travel from his nearby home. 4 (Record at 17, 45 (emphasis added).)
Indeed, at the administrative hearing held before the ALJ on November 16, 2010,
Plaintiff (“Π”) testified, in relevant part:
Π:

. . . my back is really messed up a little bit — and that’s about it, I mean, I
could work but —

ALJ:

You can work?

Π:

Yes.

ALJ:

You physically can work?

Π:

Yes.

ALJ:

Is there something emotionally or mentally that prevents you from
working?

Π:

No.

...
ALJ:

. . . [H]ow would you characterize yourself in terms of your physical
strength, could you do light work, medium work, or heavy work?

Π:

Medium work.

(Record at 42–43.) Plaintiff then stated that he was not being treated for any psychiatric-related
disorders that impaired his ability to work, and that he had received therapy for anger
management following his release from prison but no long had an anger problem. (Record at
44.) In consideration of all the evidence, the ALJ found that although “[Plaintiff’s] medically
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Plaintiff stated that he lived “close” to the location of the administrative hearing. (Dkt. 7 at
ECF 48) (“Q: [H]ow did you get here by the way? A: I walked. Q: You live close to here? A:
Yes.”)
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determinable impairments could reasonably be expected to cause the alleged range of symptoms
. . . [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of the
symptoms are not credible to the extent they are inconsistent with the residual functional
capacity.” (Record at 17.)
Having determined that Plaintiff was able to perform medium work activity, the ALJ then
proceeded to the next step of the inquiry, and found that Plaintiff “is not able to perform any past
relevant work or type of work.” (Record at 18.) The ALJ considered whether Plaintiff could
perform any past work functions, including work as a construction laborer, groundskeeper, and
corrections officer, but found that “[t]he physical and exertional demands exceed his residual
functional capacity.” (Record at 18.) The ALJ next concluded that Plaintiff “is a younger
individual, age 18–49, who had “attended a year of college and is able to communicate in
English.” (Record at 18.) The ALJ also noted that Plaintiff had not made use of the barber
school and real estate agent training he had received. (Record at 18.) The ALJ then found that
the transferability (or lack thereof) of Plaintiff’s job skills was not material to his analysis
because the Medical-Vocational Rules supported a finding that Plaintiff is not disabled
irrespective of Plaintiff’s job skills. (Record at 18.)
Lastly, the ALJ determined that “[c]onsidering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in
the national economy that [Plaintiff] can perform.” (Record at 18.) The ALJ based his decision
centrally on Plaintiff’s admitted ability to perform medium work activity, but also considered
whether Plaintiff’s asthma, and concomitant sensitivity to respiratory irritants, impaired his
ability to perform at the occupational base of unskilled medium work. (Record at 18.) The ALJ
concluded that it did not, and that “[t]he limitation on respiratory irritants does not have a

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significant impact because restrictions against excessive amounts of noise, dust and respiratory
irritants have minimal impact for work at any residual functional capacity.” (Record at 18.)
Accordingly, the ALJ concluded, “[a] finding of not ‘disabled’ is appropriate under the
framework of Medical-Vocational Guideline Rule 203.29.” (Record at 18.)
Ultimately, the ALJ concluded that Plaintiff “has not been under a ‘disability’, as defined
in the Social Security Act, since January 5, 2010, the date the current application was filed,” and
denied disability benefits. (Record at 19.)
III.

The Appeal
Following the ALJ’s denial of disability benefits, Plaintiff sought review by the Social

Security Appeals Council (“Appeals Council”). Plaintiff submitted new evidence to the Appeals
Council, evidence which the ALJ did not have the opportunity to review. (Record at 1–2.)
Where a disability benefits claimant submits new evidence to the Appeals Council, the Appeals
Council only considers that evidence which is pertinent to the relevant claimed period, i.e.,
evidence predating the ALJ’s decision. See 20 C.F.R. §§ 416.1470 (“In reviewing decisions
based on an application for benefits, if new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where it relates to the period on or before the
date of the administrative law judge hearing decision.”), 416.1476(b)(1) (“If you submit
evidence which does not relate to the period on or before the date of the administrative law judge
hearing decision, the Appeals Council will return the additional evidence to you . . . .”). The
Appeals Council accordingly disregarded the additional evidence submitted by Plaintiff because
it fell outside the relevant time period. (Record at 2) (“This new information is about a later
time. Therefore, it does not affect the decision about whether you were disabled beginning on or
before December 15, 2010.”). The Appeals Council denied Plaintiff’s appeal, concluding that

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“[w]e have found no reason under our rules to review the [ALJ]’s decision. Therefore, we have
denied your request for a review.” (Record at 1.)
The instant petition followed.
IV.

Analysis
a. The ALJ Applied the Correct Legal Standards and Did So Correctly
The ALJ clearly applied the correct legal standards in the appropriate fashion.

discussed, the ALJ applied the required five-step analysis.

As

He also correctly applied the

appropriate legal standards in determining that Plaintiff had the residual functional capacity to
perform medium level work, particularly given Plaintiff’s acknowledgement that he was able to
perform medium level work and that he was not experiencing any psychological or emotional
impairments. Accordingly, because the ALJ’s five-step analysis was appropriate and sufficient
to conclude that James is not disabled, the Court declines to overturn the ALJ’s decision as
contrary to law. See Lynn v. Comm’r of Soc. Sec., 11-CV-917(CBA), 2013 WL 1334030, at *13
(E.D.N.Y. Mar. 30, 2013) (declining to overturn as “contrary to law” ALJ decision where the
ALJ conducted the five-step analysis).
b. The ALJ’s Decision is Supported by Substantial Evidence
In assessing a claim for disability benefits, the ALJ must consider all of the relevant
medical and non-medical evidence in the record and assess the claimant’s ability to meet the
physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3)–(4). The
ALJ is required to consider all of the claimant’s impairments, even those ultimately determined
to be non-severe. 20 C.F.R. § 404.1545(a)(2).
In evaluating a claimant’s assertions of pain and other symptoms, the ALJ must follow a
two-step process. First, the ALJ must determine whether the claimant suffers from an underlying

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medically determinable physical or mental impairment that reasonably could be expected to
produce the pain or other symptoms complained of. 20 C.F.R. § 404.1529(b). The ALJ here did
just that. (Record at 17) (“[T]he undersigned finds that [Plaintiff’s] medically determinable
impairments could reasonably be expected to cause the alleged range of symptoms[.]”).
The next step in the analysis is to consider the extent to which the claimant’s symptoms
can reasonably be accepted as consistent with the objective medical and non-medical evidence in
the record.

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).

In making this second

determination, the ALJ considers all of the evidence in the case record, including statements or
reports from the claimant and the claimant’s treating or nontreating medical sources about the
claimant’s medical history, diagnosis, prescribed treatment, daily activities, and efforts to work,
and any other evidence showing how the claimant’s impairment(s) and any related symptoms
affect the claimant’s ability to work. 20 C.F.R. § 404.1529(a). Although the ALJ is required to
take the claimant’s reports of pain and other limitations into account, the claimant’s statements
alone cannot establish disability, see id.; Genier, 606 F.3d at 49, and the ALJ is “not required to
accept the claimant’s subjective complaints without question; [s/]he may exercise discretion in
weighing the credibility of the claimant’s testimony in light of the other evidence in the record.”
Genier, 606 F.3d at 49 (citations omitted); see also Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979) (“The ALJ has discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment, in light of medical findings and other evidence, regarding the true extent
of the pain alleged by the claimant.”).

It is the ALJ’s responsibility to weigh conflicting

evidence in the record and afford proper weight to the evidence that the ALJ finds most
persuasive and that is more consistent with the record as a whole. See Veino v. Barnhart, 312

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F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the
Commissioner to resolve.”).
Here, the ALJ’s findings are supported by substantial evidence in the record. The ALJ
considered the testimony Plaintiff gave at the hearing, including descriptions of Plaintiff’s low
back pain, arthritis, asthma, and acid reflux condition. (Record at 17.) The ALJ also considered
Plaintiff’s statements that he was able to perform medium work activities and had walked to the
hearing in about ten minutes from Plaintiff’s home, which was nearby. (Record at 17, 45.) The
ALJ also considered Plaintiff’s medical records which, the ALJ concluded, “shows infrequent
emergency room treatment for asthma and back pain with muscle spasm[s].” (Record at 17.) 5
The ALJ also described in depth the results of an emergency room visit Plaintiff made in
March 18, 2010, subsequent to Plaintiff’s application for disability benefits. (Record at 17.) The
ALJ noted that the “lumbosacral x-ray was normal with a trace of levoscoliosis for [Plaintiff’s]
complaint of back pain” and that “no degenerative joint disease or arthritic changes [were]

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The ALJ’s observation that Plaintiff offered no medical source statements or opinions from any
treating sources (Record at 17) is correct, insofar as the only medical source statement submitted
is from a Dr. Chitoor Govindaraj, who appears to have examined Plaintiff on one occasion in
connection with Plaintiff’s disability claims, but not in connection with providing medical
treatment or in the context of an ongoing physician-patient relationship. (See Record at 205–
208.) Therefore, Dr. Govindaraj does not qualify as a treating physician for purposes of the
“treating physician rule.” See Coty v. Sullivan, 793 F. Supp. 83 (S.D.N.Y. 1992) (quoting
Schisler v. Bowen, 851 F.2d 43, 46 (App’x A) (2d Cir. 1988)) (defining “treating physician” as a
physician “who has provided the individual with medical treatment or evaluation and who has or
had an ongoing treatment and physician-patient relationship with the individual”); see also
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (explicating treating physician rule, which
provides that “the opinion of a claimant’s treating physician as to the nature and severity of the
impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record”) (quoting 20 C.F.R. § 404.1527(d)(2)). In any event, Dr.
Govindaraj’s statement amply supports the ALJ’s finding on non-disability—Dr. Govindaraj
concluded that “[t]he patient is currently medically stable and clear for occupation” and that
“[o]verall medical prognosis is good.” (Record at 207.) The ALJ did not erroneously afford
controlling weight to the statements of Dr. Govindaraj, which could constitute reversible error.
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visible.” (Record at 17.) The ALJ took into account that at the examination, Plaintiff’s “[b]ack
motion was normal and there was no spinal muscle spasms” with Plaintiff’s “[g]ait and straight
leg raising tests [] normal.” (Record at 17.) The ALJ finally credited the examining physician’s
medical source statement that “[t]he patient is currently medically stable and clear for
occupation.” (Record at 17.) There were no contrary medical source statements in the Record.
Based on the record evidence before the ALJ, which notably included Plaintiff’s
testimony that he was able to perform “medium” work activities and “could work” without any
psychological or emotional impediments, the ALJ found that Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of the symptoms are not credible to the extent that
they are inconsistent with the residual functional capacity.” (Record at 17.) The ALJ, in
accordance with his duty to weigh conflicting evidence in the record and credit that which was
more persuasive and consistent with the record as a whole, was entitled to credit the admissions
of Plaintiff, along with the rest of the medical and non-medical evidence. In light of that
evidence, the ALJ concluded that Plaintiff possessed the residual functional capacity to perform
medium work activity. Those findings and conclusions were amply supported by substantial
evidence in the record, and there is no basis for overturning them.
CONCLUSION
Based on the foregoing, the Court finds that the ALJ applied the correct legal standards
and did so in the correct manner, and that the ALJ’s conclusions of law and findings of fact are
supported by substantial evidence. Accordingly, the Commissioner’s motion for judgment on
the pleadings pursuant to FRCP 12(c) is granted in its entirety, and the ALJ’s decision is
affirmed. The Clerk of Court respectfully is directed to terminate this matter.

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SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: September 24, 2014
Brooklyn, New York

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