John v. Social Security Administration
Filing
21
ORDER granting Commissioner's 17 Motion for Judgment on the Pleadings -- For the reasons set forth in the ATTACHED MEMORANDUM AND ORDER, the Commissioner's motion for judgment on the pleadings is granted and this appeal is dismissed. T he Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff. The Clerk of the Court is further directed to enter judgment and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/12/2014. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
GLENROY JOHN, pro se,
:
:
Plaintiff,
:
:
-against:
:
CAROLYN W. COLVIN,
:
Commissioner of Social Security,
:
:
Defendant.
:
----------------------------------------------------------------x
DORA L. IRIZARRY, United States District Judge:
MEMORANDUM AND ORDER
13-CV-3321 (DLI)
On March 31, 2010, pro se Plaintiff Glenroy John (“Plaintiff”) filed an application for
Social Security disability insurance benefits (“DIB”) and, on April 26, 2010, filed an application
for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). (See
Certified Administrative Record (“R.”), Dkt. Entry No. 19 at 10.)
On June 8, 2010, the
applications were denied and Plaintiff requested a hearing. (Id.) On August 31, 2011, Plaintiff
appeared, pro se, and testified at a hearing before Administrative Law Judge Moises Penalver
(the “ALJ”). (R. 40-53.) Due to a lack of medical evidence, the hearing was adjourned to more
fully develop the record. (R. 50-53.) The hearing continued on November 3, 2011, at which
Plaintiff appeared pro se. (R. 54-106.) By a decision dated April 4, 2012, the ALJ concluded
Plaintiff was not disabled within the meaning of the Act. (R. 17.) On March 12, 2013, the ALJ’s
decision became the Commissioner’s final decision when the Appeals Council denied Plaintiff’s
request for review. (R. 1-3.)
The Commissioner moved for judgment on the pleadings, pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, seeking affirmance of the denial of benefits. (See Mem. of
Law in Supp. of Def.’s Mot. for J. on the Pleadings (“Def. Mem.”), Dkt. Entry No. 18.) Plaintiff
filed no opposition. For the reasons set forth below, the Commissioner’s motion for judgment on
the pleadings is granted. The appeal is dismissed.
BACKGROUND
A.
Non-Medical and Self-Reported Evidence
Plaintiff was born in 1973. (R. 70.) He graduated from high school and completed one
year of college. (R. 74.) Plaintiff worked as a furniture mover for Victory Van Line from 1995
to 1996. (R. 193.) Between 1995 and 1996, he also worked as a security officer, patrolling the
lobby of a public housing building. (R. 93, 193.) He spent three hours per shift standing or
walking and four to five hours per shift sitting, but no lifting was required. (Id.) From 1998 to
2001, he worked as a package handler for FedEx. (R. 193.) In 2001, he was self-employed as a
home cleaner. (R. 94-95.) From 2001 to 2003, he worked as a porter at a college. (R. 193.)
From 2005 to 2006, he worked as a grounds keeper for the parks department, which was his last
job. (Id.) His current source of income, which he has received since April 2010, is public
assistance. (R. 75, 164.)
In a disability report from April 2010, he stated that he was unable to work because of
partial paralysis on his left side, unspecified kidney, heart, and liver problems, and diabetes. (R.
191.) The pain on his left side spanned from his heart to his kidneys and to his left testicle. (R.
79.) He described the pain as poking, “like a knife go[ing] inside me.” (R. 78, 207.) In a
function report from May 2010, Plaintiff wrote that he had the ability to drive, but usually relied
upon public transportation. (R. 73.) He stated that he could no longer work, go camping, or take
his sons to parks or movies. (R. 199.)
Plaintiff testified that, on one occasion, when his left side pain was at its strongest, he
collapsed outside his building.
(R. 76.)
After collapsing, he was taken to Staten Island
2
University Hospital (“SIUH”). 1 (Id.) According to Plaintiff, a MRI of his left side was negative
and blood and urine tests were negative. (R. 77, 79.) He testified that Dr. Alex Bruckstein
performed an endoscopy and diagnosed him with unspecified viral infections. (R. 81-82.) Dr.
Bruckstein prescribed Metrodoziatab, Prilosec, and Clarithyomycin, but Plaintiff claimed that
medicine only hid the pain and he never healed fully. (R. 82.)
Plaintiff further testified that he is separated from his wife and their children live with
her. (R. 71.) He lives alone in public housing. (R. 71-72.) He is able to dress, bathe, and cook
for himself. (R. 72, 87.) He performs light household chores. (R. 88.) However, he needs help
carrying groceries and tires after thirty minutes of housework. (Id.) He testified that his daily
activities include watching the news, cleaning and vacuuming the house, caring for his three
birds, preparing meals, checking the mail, walking, and reading. (R. 89.)
Notably, Plaintiff testified that he could work if he was able to alternate positions
frequently, and was not required to lift more than 20 pounds, stand or walk for longer than four
hours, and sit for more than six hours. (R. 90.)
B.
Medical Evidence
1.
Medical Evidence from February 26, 2006 (Alleged Onset Date) Through
December 31, 2009 (Date Last Insured for DIB)
There is no evidence from this period.
2.
Medical Evidence after April 26, 2010 (SSI Application Date)
On June 3, 2010, Chitoor Govindaraj, M.D., of Brook Island Medical Group,
consultatively examined plaintiff. (R. 217-219.) Plaintiff stated that he was laid off from his last
job. (R. 217.) He complained of unspecified heart and kidney trouble as well as diabetes. (Id.)
He stated that he had no prior surgeries or medical admissions and had not seen a doctor since
1
Despite the ALJ’s efforts to procure medical records from SIUH (R. 59), there are no medical records
regarding this incident.
3
2004. (R. 217-18.) He was diagnosed with diabetes ten years ago and he preferred to diet and
exercise rather than medicate. (R. 218.) He walked for exercise. (Id.) He also reported that he
suffered an unspecified injury to his left testicle during high school. (Id.) He complained of a
recent cough, which caused pain from his chest to his left testicle. (Id.)
Dr. Govindaraj observed that Plaintiff was alert and not in distress. (Id.) He was five
feet and eleven inches tall and weighed 224 pounds. (Id.) His blood pressure was 130/80. (Id.)
Examination of Plaintiff’s head revealed no abnormalities. (Id.) Examination of his neck
revealed no masses and movement was normal. (Id.) Plaintiff’s chest was symmetrical with
good air entry bilaterally with no rhonchi, rales or wheezing. (Id.) Plaintiff’s abdomen was soft,
non-distended, and non-tender. (Id.) Examination of his spine revealed no tenderness and he
exhibited a normal range of motion. (R. 219.) Plaintiff was able to bend and touch the floor.
(Id.) Examination of his heart revealed no abnormalities. (Id.) There was no sign of congestive
heart failure such as hepatomegaly, peripheral or pulmonary edema. (Id.) Plaintiff’s extremities
showed no signs of cyanosis, clubbing or edema. (Id.) His peripheral pulses, vibratory sense,
and knee jerk were 4/4. (Id.)
Examination of Plaintiff’s central nervous system revealed no evidence of cerebral or
cerebellar involvement. (Id.) His nerves were within normal limits and his motor and sensory
systems and reflex findings were normal. (Id.) The range of motion of his back and joints were
normal. (Id.) His hand dexterity was normal and there was no evidence of muscle spasm. (Id.)
His straight leg raising was normal. (Id.) There was no evidence of subluxation, contractures,
ankylosis, instability, redness, heat or swelling. (Id.) His gait was grossly normal. (Id.) His
posture was normal and he could walk without a cane. (Id.)
4
Dr. Govindaraj diagnosed Plaintiff with a history of diabetes mellitus, heart trouble, and
kidney problems.
(Id.)
He concluded that Plaintiff was medically stable and clear for
occupation. (Id.) Plaintiff’s prognosis was fair to good. (Id.)
On June 27, 2010, Rauvan Averick, M.D., of SIUH signed an “Excuse from Work or
School” form excusing Plaintiff from work for one day.
(R. 229.)
A welfare program
requirements form, dated August 2, 2010, indicated Plaintiff was exempt from participating in
welfare program activities due to his medical condition.
(R. 230.) The form included a
determination by a licensed physician or other medical professional that stated Plaintiff was
restricted to “limited bending, lifting, pulling, pushing, and low stress environment.” (R. 231.)
Notably, there are no contemporaneous medical records supporting the work assessments
contained in these records.
On January 4, 2011, Dr. Syed Rizvi of SIUH completed a wellness plan for Plaintiff. (R.
227-28.) Dr. Rizvi diagnosed Plaintiff with rule-out diverticulosis, epididymitis, and rule-out
renal stones. (R. 227.) He noted that Plaintiff was overweight and had elevated blood pressure,
chronic left-sided pain, and normal abdominal and neurological examinations. (Id.) Dr. Rizvi
was uncertain as to whether Plaintiff took prescribed medication or complied with treatment
modalities.
(Id.)
The notes from this visit indicate that, previously, Dr. Rizvi prescribed
Metformin 500 mg, which Plaintiff ceased taking. (Id.) Similarly, Dr. Rizvi prescribed Plaintiff
an ACE inhibitor, which Plaintiff failed to procure. (Id.) The notes also indicate that several
months prior to this visit, Plaintiff underwent a right upper quadrant sonogram for elevated
gamma-glutamyl transferase and a testicular sonogram, both of which were normal. (Id.) Dr.
Rizvi recommended that Plaintiff follow up with an endocrinologist, a gastroenterologist, and a
5
urologist. (R. 228.) Dr. Rizvi opined that Plaintiff would be able to work with restriction, but
provided no further detail as to his specific work restrictions. (Id.)
A Temporary Assistance Work Requirements Determination form dated September 20,
2011, indicated that Plaintiff could participate in welfare work activities as long as those
activities involved “limited bending and pushing.” (R. 223-24.)
C.
Vocational Expert (“VE”) Testimony
VE David Vandergoot testified at Plaintiff’s November 3, 2011 hearing. (R. 97-105.)
The VE testified that Plaintiff’s past work as a security patrolman is classified as semi-skilled,
light exertion work, and that his past work as a cleaner is classified as unskilled, heavy exertion
work, but based on Plaintiff’s testimony, was performed as light exertion work. (R. 98.) The VE
testified that a hypothetical individual with the ability to perform modified light duty work would
not be able to perform either of Plaintiff’s past relevant positions. (R. 101.) However, the VE
testified that there are ample other positions available in the national and local economies, such
as cashier, surveillance monitor, routing clerk, and clerical sorter. (R. 101-03.)
DISCUSSION
A.
Standard of Review
Unsuccessful claimants for disability benefits under the Act may bring an action in
federal district court seeking judicial review of the Commissioner’s denial of their benefits
“within sixty days after the mailing . . . of notice of such decision or within such further time as
the Commissioner of Social Security may allow.”
42 U.S.C. § 405(g).
A district court,
reviewing the final determination of the Commissioner, must determine whether the correct legal
standards were applied and whether substantial evidence supports the decision. See Schaal v.
Apfel, 134 F. 3d 496, 501 (2d Cir. 1998). The former determination requires the court to ask
6
whether “the claimant has had a full hearing under the [Commissioner’s] regulations and in
accordance with the beneficent purposes of the Act.” Echevarria v. Sec’y of Health & Human
Servs., 685 F. 2d 751, 755 (2d Cir. 1982) (internal citations omitted). The latter determination
requires the court to ask whether the decision is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The district court is empowered “to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A remand
by the court for further proceedings is appropriate when “the Commissioner has failed to provide
a full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations.”
Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004) (citing Williams v. Apfel, 204 F.
3d 48, 50 (2d Cir. 1999); Rosa v. Callahan, 168 F. 3d 72, 82-82 (2d Cir. 1999); Parker v. Harris,
626 F. 2d 225, 235 (2d Cir. 1980)). A remand to the Commissioner is also appropriate “[w]here
there are gaps in the administrative record.” Rosa v. Callahan, 168 F. 3d 72, 83 (2d Cir. 1999)
(quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997)). ALJs, unlike judges,
have a duty to “affirmatively develop the record in light of the essentially non-adversarial nature
of the benefits proceedings.” Tejada v. Apfel, 167 F. 3d 770, 774 (2d Cir. 1999) (quoting Pratts
v. Chater, 94 F. 3d 34, 37 (2d Cir. 1996)) (quotations omitted).
Pro se pleadings are held “to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret
[such papers] to raise the strongest arguments that they suggest.” Forsyth v. Fed’n Emp’t &
Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation and internal quotation marks
7
omitted). Though a court need not act as an advocate for pro se litigants, in such cases there is a
“greater burden and a correlative greater responsibility upon the district court to insure that
constitutional deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F. 3d 917,
922 (2d Cir. 1998) (citation omitted).
B.
Disability Claims
To receive disability benefits, claimants must be disabled within the meaning of the Act.
See 42 U.S.C. §§ 423(a), (d). Claimants establish disability status by demonstrating an “inability
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 claimant bears the initial burden of proof
on disability status and is required to demonstrate disability status by presenting medical signs
and findings, established by medically acceptable clinical or laboratory diagnostic techniques, as
well as any other evidence the Commissioner may require. 42 U.S.C. § 423(d)(5)(A); see also
Carroll v. Sec’y of Health & Human Servs., 705 F. 2d 638, 642 (2d Cir. 1983).
ALJs must adhere to a five-step inquiry to determine whether a claimant is disabled under
the Social Security Act as set forth in 20 C.F.R. §§ 404.1520 and 416.920. If at any step the ALJ
finds that the claimant is either disabled or not disabled, the inquiry ends there. First, the
claimant is not disabled if he or she is working and performing “substantial gainful activity.” 20
C.F.R. §§ 404.1520(b), 416.920(b). Second, the ALJ considers whether the claimant has a
“severe impairment,” without reference to age, education and work experience. Impairments are
“severe” when they significantly limit a claimant’s physical or mental ability to conduct basic
work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, the ALJ will find the claimant
disabled if his or her impairment meets or equals an impairment listed in 20 C.F.R. § 404,
8
Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant does not have a listed impairment, the ALJ makes a finding about the
claimant’s residual functional capacity (“RFC”) in steps four and five.
20 C.F.R. §§
404.1520(e), 416.920(e). In the fourth step, the claimant is not disabled if he or she is able to
perform past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, in the fifth step, the
ALJ determines whether the claimant could adjust to other work existing in the national
economy, considering factors such as age, education, and work experience. If so, the claimant is
not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g). At this fifth step, the burden shifts to the
Commissioner to demonstrate that the claimant could perform other work. See Draegert v.
Barnhart, 311 F. 3d 468, 472 (2d Cir. 2002) (citing Carroll, 705 F. 2d at 642).
C.
The ALJ’s Decision
On April 4, 2012, the ALJ issued a decision denying Plaintiff’s claims. (R. 10-17.) The
ALJ followed the five-step procedure in making his determination that Plaintiff could not
perform past relevant work as a security guard or cleaner, but was capable of making a
successful adjustment to other work in the national economy, and therefore, was not disabled.
(R. 12-17.) At the first step, the ALJ determined that Plaintiff had not worked since February 28,
2006, the alleged onset date. (R. 12.) At the second step, the ALJ found the following severe
impairments: hypertension; rule out diverticulitis; rule out kidney stones; and obesity. (Id.) At
the third step, the ALJ concluded that Plaintiff’s impairments, in combination or individually, did
not meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. 13.)
At the fourth step, the ALJ found that Plaintiff retained the RFC to perform light work as
defined in 20 CFR §§ 404.1567(b) and 416.967(b). (R. 13.) However, the ALJ noted that
9
Plaintiff was unable to perform the full range of light duty work as he: could not stand or walk
more than four hours during an eight-hour shift; needed the ability to alternate between sitting
and standing; could occasionally push or pull with his left upper extremity; could not climb
ladders, ropes, or scaffolds; and could occasionally climb ramps or stairs. (Id.) The ALJ found
Plaintiff’s statements concerning the intensity, persistence, and limiting effect of his symptoms
were not credible to the extent that they were inconsistent with the ALJ’s RFC assessment. (R.
15.) The ALJ concluded that Plaintiff was not capable of performing his past relevant work as a
security guard or a cleaner. (Id.) At the fifth step, the ALJ noted that, although Plaintiff, a
thirty-two-year-old, was a “younger individual,” his light duty work restrictions impeded an
automatic finding of “not disabled” under Medical-Vocational Rule 202.21. In relying on the
VE’s testimony, the ALJ found that there are “jobs that exist in significant numbers in the
national economy that the [Plaintiff] can perform” at a modified light duty exertion level, such as
cashier, surveillance systems monitor, routing clerk, and clerical sorter. (R. 16-17.) Thus, the
ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (R. 17.)
D.
Duty to Develop the Record
In light of the non-adversarial nature of social security proceedings, the ALJ has an
affirmative duty to develop a full and fair record. See Tejada v. Apfel, 197 F. 3d 770, 774 (2d
Cir. 1999); 20 C.F.R. § 404.1512(d)-(f) (setting forth the affirmative obligations of ALJs).
Plaintiff’s claim can be remanded to the Commissioner “[w]here there are gaps in the
administrative record.” Rosa v. Callahan, 168 F. 3d 72, 83 (2d Cir. 1999) (quoting Sobolewski v.
Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997)). ALJs have a duty to “affirmatively develop the
record in light of the essentially non-adversarial nature for the proceedings.” Tejada v. Apfel,
167 F. 3d 770, 774 (2d Cir. 1999).
10
In this case, the ALJ fulfilled his duty to develop the record. In advance of Plaintiff’s
first hearing, the ALJ contacted the treating physicians listed on Plaintiff’s application to request
records of Plaintiff’s treatment. (R. 59.) However, both treating physicians indicated that they
had no records of treating Plaintiff. (Id.) This result is not surprising as Plaintiff indicated to the
consultative examining physician that he had not visited a physician since 2004. (R. 217.)
Nonetheless, the ALJ adjourned the hearing to develop the record more fully. (R. 50-53.)
At the second hearing, the ALJ explained to Plaintiff that his file still contained very
limited medical evidence, and that such evidence was necessary to verify Plaintiff’s claims. (R.
44-45, 50-53, 59.) The ALJ permitted Plaintiff to submit copies of records at the hearing (R. 6364, 105-06) and told Plaintiff that he would keep the record open for thirty days to allow Plaintiff
to submit additional records (R. 68-69). Plaintiff submitted additional medical records, which
the ALJ considered in reaching his decision. Under these circumstances, the ALJ fulfilled his
duty to develop the record. See Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010)
(concluding that the ALJ fulfilled his duty to develop the record by requesting medical records,
conducting two hearings, and permitting the claimant to cross-examine the VE).
E.
Application
The Commissioner moves for judgment on the pleadings, seeking affirmance of the
denial of Plaintiff’s benefits on the grounds that the ALJ applied the correct legal standards to
determine Plaintiff was not disabled and the factual findings are supported by substantial
evidence. (Def. Mem.) Plaintiff filed no opposition to the Commissioner’s motion. Upon
review of the record, the Court is satisfied that the ALJ applied the appropriate legal standards
and the conclusion is supported by the substantial evidence.
11
1.
Substantial Gainful Activity
There is no dispute as to the ALJ’s analysis at step one. The evidence establishes that
Plaintiff was not engaged in substantial gainful activity since February 28, 2006 (the alleged
onset date).
2.
Severe Impairments
There is no viable challenge to the ALJ’s analysis at step two. The ALJ found that
Plaintiff had the following severe impairments: hypertension; rule out diverticulitis; rule out
kidney stones; and obesity. (R. 12.) There is no medical evidence of any additional impairments,
severe or otherwise.
3.
Medical Listings
There is no viable challenge to the ALJ’s analysis at step three. The ALJ considered
listing 4.12 (peripheral arterial disease) when evaluating Plaintiff’s hypertension.
(R. 13.)
Listing 4.12 sets forth that:
[p]eripheral arterial disease, as determined by appropriate medically acceptable
imaging, causing intermittent claudation and one of the following: A. [r]esting
ankle/brachial systolic blood pressure ratio of less than 0.50; B. [d]ecrease in
systolic blood pressure at the ankle on exercise of 50 percent or more of preexercise level and requiring 10 minutes or more to return to pre-exercise; C.
[r]esting toe systolic pressure of less than 30mm Hg; or D. [r]esting toe/brachial
systolic blood pressure ratio of less than 0.40.
20 C.F.R. § 404, Subpart P, App. 1, 4.12. There are no medical records establishing any of the
criteria for listing 4.12.
(R.13.)
To the contrary, medical examinations of Plaintiff’s
cardiovascular system were unremarkable, other than noting untreated hypertension. (R. 219,
227.)
Accordingly, the ALJ correctly concluded Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id.)
12
4.
Ability to Perform Light Work
The Court construes the pro se submissions as a challenge the ALJ’s determination that
Plaintiff can perform modified light duty work. “Light work requires the ability to lift up to 20
pounds occasionally, lift 10 pounds frequently, stand and walk for up to 6 hours a day, and sit for
up to two hours.” Mancuso v. Astrue, 361 F. App’x 176, 178 (2d Cir. 2010); see also 20 C.F.R.
§ 404.1567(b). The ALJ found that Plaintiff was capable of performing “light work,” except that
Plaintiff could stand and/or walk for no more than four hours total out of an eight-hour day. (R.
13.) Further, the ALJ found that Plaintiff “must be able to alternate between sitting and standing,
provided that he will not be off task more than five percent of the work period; he can only
occasionally push or pull with his left upper extremity; he can never climb ladders, ropes, or
scaffold; and he can only occasionally climb ramps or stairs.” (Id.)
First, the ALJ’s function-by-function assessment was adequate as the ALJ made
sufficient findings as to Plaintiff’s capabilities. See Oliphant v. Astrue, 2012 WL 3541820, at
*23 (E.D.N.Y. Aug. 14, 2012) (concluding that the Commissioner sustained his burden at step
five, as the ALJ, in determining that plaintiff could perform [light] work, made findings as to
plaintiff’s ability to sit, stand, walk, lift, carry, push, and pull, in addition to findings regarding
plaintiff’s mental and physical ability to perform [light] work); see also Campbell v. Astrue, 465
F. App’x. 4, 6 (2d Cir. 2012) (finding that, even though the ALJ did not discuss Plaintiff’s ability
to perform each function identified in 20 C.F.R. § 404.1567(b) as “light work,” substantial
evidence supported the ALJ’s overall RFC determination, such as detailed medical evidence
from treating sources and opinions from state-medical examiners).
Second, there is no evidence to the contrary. Plaintiff testified that he would be able to
work if he could alternate positions, was not required lift to more than 20 pounds, could stand
13
and walk for longer than four hours, sit for more than six hours, and was able to shift positions
for a few minutes every hour. (R. 90.) Furthermore, all of the medical evidence in the record
supports the ALJ’s findings as each doctor indicated that Plaintiff could work with limited
restrictions. (R. 218, 228, 231.)
Finally, the ALJ correctly discounted Plaintiff’s statements as to his pain and his
symptoms. The Second Circuit recognizes that subjective allegations of pain may serve as a
basis for establishing disability. See Taylor v. Barnhart, 83 F. App’x 347, 350 (2d Cir. 2003)
(summary order) (citing Marcus v. Califano, 615 F. 2d 23, 27 (2d Cir. 1979)). However, the
ALJ is afforded discretion to assess the credibility of a claimant and is not required to credit
Plaintiff’s testimony about the severity of [his] pain and the functional limitations it caused.
Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 434 (S.D.N.Y. 2010) (quoting Rivers v.
Astrue, 280 F. App’x 20, 22 (2d Cir. 2008) (summary order) (quotation marks and alterations
omitted)).
In determining Plaintiff’s credibility, the ALJ must adhere to a two-step inquiry set forth
by the regulations. See Peck v. Astrue, 2010 WL 3125950, at *4 (E.D.N.Y. 2010). First, the
ALJ must consider whether there is a medically determinable impairment that could reasonably
be expected to produce the pain or symptoms alleged. 20 C.F.R. § 404.1529(b); S.S.R. 96-7p.
Second, if the ALJ finds that the individual suffers from a medically determinable impairment
that could reasonably be expected to produce the pain or symptoms alleged, then the ALJ is to
evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine
the extent to which they limit the individual’s ability to work. 20 C.F.R. § 404.1529(c). When
the ALJ finds that the claimant’s testimony is not consistent with the objective medical evidence,
the ALJ is to evaluate the claimant’s testimony in light of seven factors: 1) the claimant’s daily
14
activities; 2) the location, duration, frequency, and intensity of the pain; 3) precipitating and
aggravating factors; 4) the type, dosage, effectiveness, and side effects of any medications taken
to alleviate the pain; 5) any treatment, other than medication, that the claimant has received; 6)
any other measures that the claimant employs to relieve the pain; and 7) other factors concerning
the claimant’s functional limitations and restrictions as a result of the pain.
20 C.F.R. §
404.1529(c)(3)(i)-(vii).
“If the ALJ rejects plaintiff’s testimony after considering the objective medical evidence
and any other factors deemed relevant, he must explain that decision with sufficient specificity to
permit a reviewing court to decide whether there are legitimate reasons for the ALJ’s disbelief.”
Cairo v. Comm’r of Soc. Sec., 2013 WL 1232300, at *9 (E.D.N.Y. Mar. 26, 2013) (citing
Correale-Englehart, 687 F. Supp. 2d at 435). When the ALJ neglects to discuss at length his
credibility determination with sufficient detail to permit the reviewing court to determine
whether there are legitimate reasons for the ALJ’s disbelief and whether his decision is supported
by substantial evidence, remand is appropriate. Id. (citing Correale-Englehart, 687 F. Supp. 2d
at 435-36; Grosse v. Comm’r of Soc. Sec., 2011 WL 128565, at *5 (E.D.N.Y. Jan. 14, 2011)
(finding the ALJ committed legal error by failing to apply factors two through seven); Valet v.
Astrue, 2012 WL 194970, at *22 (E.D.N.Y. Jan. 23, 2012) (remanding because the ALJ failed to
address all seven factors)).
Turning to the instant action, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these
symptoms were not credible to the extent they were inconsistent with the above residual
functional capacity assessment.”
(R. 15.)
The ALJ explained in depth that the objective
15
evidence did not support Plaintiff’s subjective complaints, allegations, and physical limitations.
(R. 13-15.) First, Plaintiff’s statements as to his daily activities indicate that he is able to engage
in a level of physical exertion that is greater than what he indicated in his applications. (R. 7273, 87-89.) Indeed, Plaintiff testified that he could perform modified light duty work that
involved precisely the work restrictions the ALJ established. (R. 90.) He further indicated that
he preferred to exercise and diet rather than seek medical treatment for his diabetes. (R. 218.)
Finally, the medical evidence supports the ALJ’s credibility determination, as every diagnostic
test was negative. (R. 217-19, 223-32.)
5.
Other Work
The Court construes the pro se submissions as challenging the ALJ’s determination that
Plaintiff could perform other work. In his decision, the ALJ concluded that Plaintiff could not
engage in his past relevant work as a security guard or cleaner. (R. 15.) He reached this decision
by relying on the testimony of the VE. The VE testified that Plaintiff’s past work as a security
guard was semi-skilled, light duty work, and that his past work as a cleaner was unskilled, heavy
duty work. (R. 98.) Thus, the ALJ considered whether Plaintiff could perform other work.
With respect to Plaintiff’s ability to perform other work, the VE testified that with
Plaintiff’s age, education, work experience, and RFC, Plaintiff would be able to perform the
duties of a cashier, surveillance systems monitor, routing clerk or clerical sorter and that these
jobs were readily available in the national and local economies.
(R. 101-04.)
The ALJ
concluded Plaintiff could engage in other work readily available in the national economy
because light duty jobs exist that can accommodate Plaintiff’s RFC. (R. 15-16.) In reaching this
result, the ALJ’s decision was supported by the substantial evidence in the record. (R. 101-04.)
Accordingly, the ALJ’s disability determination is affirmed.
16
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
granted and this appeal is dismissed.
SO ORDERED.
Dated: Brooklyn, New York
September 12, 2014
______________/s/______________
DORA L. IRIZARRY
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?