Stone v. Commissioner of Social Security

Filing 19

MEMORANDUM & ORDER granting 13 Commissioner's Motion for Judgment on the Pleadings and dismissing this action. The Clerk of Court is directed to enter judgment in favor of the defendant and to close this case. Ordered by Judge Sandra L. Townes on 8/11/2017. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------x
DARREL STONE,
Plaintiff,
- against COMMISSIONER OF SOCIAL SECURITY,
Defendant.
---------------------------------------------x
TOWNES, United States District Judge:

MEMORANDUM & ORDER
14-CV-6543 (SLT)

HLU

*4 eLERY1,15 OFMok,
E.b.N.V.

U* DISTRICT COURT

*

AUik2O17

COt(LYM OFFICE

Plaintiff Darrel Stone brings this action pursuant to Section 405(g) of the Social Security
Act (the "Act"), 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of
the Social Security Administration ("Commissioner") denying his application for Supplemental
Security Income ("SSI"). The Commissioner moves for judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c). (ECF No. 13). Plaintiff opposed the motion with a filing labeled "Reply
Memorandum of Law in Support of Plaintiff's Cross-Motion for Judgment on the Pleadings,"
(ECF No. 15), but has made no motion of his own. For the reasons set forth below, the
Commissioner's motion is granted.

I.

*

PROCEDURAL HISTORY
Plaintiff filed an application for SSI on April 15, 2011. (R. 167-75). He asserted that he

had been disabled since April 1, 2011, due to HIV, memory loss, and cytomegalovirus. (A.R. at
191). His application was denied on July 11, 2011, (R. 60-66), and he requested a hearing before
an administrative law judge ("AU"), (R. 67-70). Hearing was once adjourned at Plaintiff's
request so that he could secure counsel, (A.R. at 28), and ultimately held on March 6, 2013,
before ALJ Lucian A. Vecchio. (A.R. at 30-59). Plaintiff, who was by then represented by
Eugenie Gilmore, Esq., testified, as did Dr. Bernard Gussoff, M.D., a certified internist,

hematologist, and oncologist. (R. 3 0-59). ALJ Vecchio issued a decision on March 20, 2013, in
which he concluded that Plaintiff was not disabled within the meaning of the Act. (R. 6-19). On
September 5, 2014, the AL's decision became the Commissioner's final decision when the
Appeals Council denied Plaintiff's request for review. (R. 1-8). Plaintiff commenced this action
on November 6, 2014, represented by the same counsel. On May 15, 2015, the Commissioner
filed its motion for judgment on the pleadings pursuant to Rule 12(c). Plaintiff was given notice
and opposed that motion, but nevertheless did not cross move for judgment on the pleadings.
(See ECF Nos. 13-17).

II. RELEVANT FACTS
A.

Nonmedical Evidence

Plaintiff was born in 1965, graduated high school, completed at least one year of college,
and received "Job Corp" training for work as a security guard. (R. 34, 192). The record is
inconsistent and otherwise unclear with respect to his employment: he worked as a security
guard in or around 2001 (A.R. 182, 183-84, 192-93), worked in "stock" for a clothing
manufacturer from eitherl985 to 1990 or 1985 to 1987 (See A.R. at 230, 236), and for a book
company from 1985 to 1987 (A.R. at 236). He was previously "trained as a bricklayer." (A.R.
at 213).
In his Disability Report Form SSA-3368, Plaintiff indicated two somewhat contradictory
reasons for stopping work: first, the form states that he stopped working in January 2001
"[b]ecause of my condition(s) and other reasons." (A.R. at 191). The next line states "I was
laid off and. . . couldn't find other work after that." (Id.) Roughly two years later Plaintiff
testified that he had not worked in the interim but had been in a "work program, and once they
found out I kept going to the doctor, and I was getting sicker and sicker, so they took me out of
2

the program and put me in the hospital." (A.R. at 34, 57-58). There is no other record of the
referenced work program.
In his April 10, 2011 SSA application Plaintiff indicated that he was unable to work due
to AIDS "memory loss," and cytomegalovirus.' (A.R. at 191). Plaintiff's SSA-3368 form
indicated that he weighed 168 pounds (at 57") on April 20, 2011. (A.R at 191). His
handwritten responses in a May 26, 2011 "Function Report" indicate that his daily activities
include reading, watching television, "walk[ing] outside," and cooking. (A.R. at 198). He
indicated that he slept poorly due to "dreams about dying" but that his condition had no effect on
his ability to dress, bathe, shave, feed himself, or use the toilet. (A.R. at 198-99). He needed no
special help or reminders to "take care of [his] personal needs," and he prepared meals like
"meatloaf" and "fried chicken" on a regular basis. (A.R. at 199). "Sometimes" he forgot to take
his medicine, but went outside every day and personally "cleaned the dishes, [did] laundry [and]
ironing," but performed "no outside work." (A.R. at 199-200). He shopped for his own food
and clothes "once a month [for] 2 hour[s]." (A.R. at 201). His ability to handle money was not
limited and he kept his own finances. (A.R. at 201). He visited his friends once a week and his
illnesses had no effect on his social activities. (A.R. at 202). He indicated that he got tired "after
walking a while" and lost his breath quickly when walking stairs but had no difficulty sitting,
reaching, or using his hands. (A.R. at 203.) He had "real bad [eye]sight" and would sometimes
want to say something but couldn't "get the words to come out." (A.R. at 203). Sometimes he
got "real bad" headaches, and sometimes he went to the store only to forget what he went there

1

Later, on March 5, 2013, Plaintiffs counsel wrote to AU Vecchio and retracted the assertion that Plaintiff suffered
from cytomegalovirus. He offered to "make a correction" and clarify that Plaintiffs "eye doctor. . . does not feel he
had cytomegalorvirus [sic] retinitis." Counsel also advised that Plaintiff "did," in the past, have uveitis, and
continued to experience "floaters." (A.R. at 380). As explained below, Plaintiffs treating physician had since
treated and "resolved" Plaintiffs uveitis.
3

to buy in the first place. (A.R. at 205). In response to the question "How does stress or changes
in schedule affect you," he responded "I get upset sometime[s]." (A.R. at 205).
Plaintiff's SSA-3367 form indicated that he had no problems hearing, breathing,
concentrating, talking, sitting, standing, walking, seeing, using hands, or writing. (A.R. at 181).
In an updated Disability Report completed in August of 2011 and submitted in conjunction with
his administrative appeal, Plaintiff stated that his conditions had worsened: he was "increasingly
forgetful," he had frequent headaches, and he "constantly [felt] fatigued." (A.R. at 207). It had
"become very difficult for [him] to carry out . . . .daily activities such as shopping, cooking, and
cleaning," and he no longer went out, "socialized, played sports, or shopped for groceries."
(A.R. at 211-12). He also reported feeling "flu/cold symptoms for the past two months." (A.R.
at 211).
An SSA-provided "Recent Medical Treatment" form date-stamped December 12, 2012,
stated, in response to a prompt regarding what his doctors had told him regarding his condition,
as follows:
Chronic illness, full blown AIDS. [Diagnosed] 1989 stable at present with
medication. Good adherence.
(A.R. at 243). It also indicated Plaintiff had recently been hospitalized at some
unspecified point for pneumonia at Woodhull Hospital.
At the March 6, 2013, hearing Plaintiff testified that he was unable to work because of an
HIV infection, memory loss, poor eyesight, headaches, pain, "locking up" of his arms, fatigue,
and depression. (A.R. 35-42). Plaintiff also testified that he twice had pneumonia—he did not
specifically state when, but the last time appears to have been in early 2011 when he first visited
the emergency room and began HIV treatment. (A.R. at 39; see also A.R. at 279). He also
testified that he had not sought work since April of 2011 because his arm "locked," because he
suffered from headaches and foot pain, and because he had been visiting doctors "back and forth
4

• . . three times a month" and had recently received HIV medication." (A.R. at 35-37). He also
testified that his weight fluctuated between 145 and 170 pounds (A.R. at 38), and that his cousin
recently began delivering him groceries and helping to "clean up" because he could no longer
"really do too much" on his own (A.R. at 41). He testified that he consistently had either
diarrhea or constipation. (A.R. at 41). He testified both that "when I'm home I sleep all day"
and that "I don't sleep that often, very easily." (A.R. at 38, 40). He said he was "never happy"
and started to see a psychiatrist, one "Dr. Kahn," who prescribed him Zoloft and "sleeping pills."
(A.R. at 42). He also testified, without much clarity that he had "AIDS since - HIV since 1985
with no medicine. . . .When I went to the doctor, they told me I had AIDS diagnosis." (A.R. at
58) .2

B.

Medical Evidence

Plaintiff's medical record, besides the consultative examinations, is primarily comprised
of treatment records from (i) emergency room visits to the Interfaith Medical Center in Brooklyn
made between October 2010 and March 2011, and (ii) regular outpatient visits made between
March 2011 and December 2012 to the PATH Center, which provides HIV treatment and
counseling at the Brooklyn Hospital,

Emergency Room Visits
Plaintiff's first documented treatment was in October 2010. He was admitted to the
emergency room complaining of a cough and sore throat, diagnosed with Pharyngitis, and
advised to "come back if it gets worse." (A.R. at 316-18). He visited the same emergency room

2

The record suggests that Plaintiff was originally diagnosed as HIV positive in 1989. Notes from his treating
physician in 2011 state that "he has been positive since 1989, but was in denial." (A.R. at 279). He appears to have
first received HIV medication in March of 2011, one month before applying for SSI benefits. (See id.; A.R. at 58).
5

again on December 22, 2010. (A.R. at 320). The intake report from that visit indicates that he
again complained of coughing and sore throat and that prior treatment led to "no improvements."
(Id.) Severity was listed as "mild" and Plaintiff was advised to follow up in five days at the Orris

G. Walker Health Center. (A.R. at 222-23). No diagnosis from this visit appears in the record,
although notes indicate a respiratory infection and possible pneumonia. (A.R. at 320-24). He
returned on January 11, 2011, stating that he had had a cold for 2 days, a cough, sinus pain,
fever, and chills. (A.R. at 325-26). He was diagnosed with Sinusitis. (A.R. at 328). He
returned again on February 8, 2011, complaining of a sore throat and diagnosed with general
viral syndrome. (A.R. at 331-33). He returned again on March 15, 2011, complaining of
abdominal pain and vomiting. (A.R. at 325-37). He was treated with illegibly described
medication, diagnosed with gastroenteritis, and referred to an unidentified clinic, presumably the
Path Center. (A.R. at 338-41).

HIV Treatment at the Path Center
Plaintiff visited the Path Center, where he first received HIV treatment from Dr. Leonard
Berkowitz, in March of 2011. (A.R. at 267). An "Initial History and Physical Examination"
report from Dr. Berkowitz reported no fever, fatigue, or weight changes, nausea, vomiting,
diarrhea, constipation, shortness of breath, or abdominal pain. (A.R. at 272). Plaintiff appeared
"well developed and well nourished, alerted and oriented x 3 in no apparent distress." (A.R. at
274). His mood and dress were appropriate, he had "good breathe sounds bilaterally," a
"nontender and nondistended" abdomen," and a normal anal sphincter tone. (A.R. at 274). The
report concluded that Plaintiff "look[ed] well clinically, naïve to [antiretroviral therapy] although
[diagnosed] since 1989, has never been in care." (A.R. at 275). Dr. Berkowitz ordered
comprehensive blood work that day and stated that treatment would continue with multivitamins.
on

(A.R. at 275). It also stated, without elaboration, "Depression - Refer M[ental]H[ealth]." (A.R.
at 275).
A progress note from the Path Center dated March 24, 2011, noted that Plaintiff "denie[d]
any new medical complaints," had improved eye photophobia, had been "re-treated" with
steroids, and had an "ok" appetite with no weight loss. (A.R. at 276). Test results showed a
CD4 count of 189 and no recorded viral burden. 3 The note further stated that Plaintiff had been
"in denial" regarding his HIV positivity. (A.R. at 279). Doctor Berkowitz prescribed Atripla, an
antiretroviral medication, to treat his HIV, and Bactrium, an antibiotic, to treat pneumonia. He
also diagnosed Uveitis and "restarted" steroid treatment. Thus, based on Dr. Berkowtiz's notes,
it appears that Plaintiff was HIV positive for decades and first received antiretroviral treatment in
March of 2011. It also appears that Plaintiff suffered from pneumonia on that date.
Plaintiff returned to the Path Center for a checkup on April 5, 2011, just prior to his SSI
application. He responded well to treatment and denied any new medical complaints. (A.R. at
281). In particular, he denied headaches, neck stiffness, fevers, or chills. His appetite decreased

The HIV virus uses immune system cells called "CD4 cells" or "T-cells" to make copies of itself and
destroys these cells in the process. A normal CD4 count is between 500 and 1,600 cells per cubic millimeter of
blood ("cc/mm3"). See http://www.cdc.gov/hivlbasics/whatishiv.html (last visited August 3, 2016). A person
whose CD4 cell count falls below 200 cells/mm3 is considered to have progressed to AIDS. And AIDS diagnosis
can also occur if a person develops one or more opportunistic illnesses, regardless of the CD4 count. See
http://www.cdc.gov/hivlbasics/whatishiv.html (last visited August 3, 2016).
The U.S. Department of Health and Human services suggests starting treatment when the CD4 count falls
below 350 cells/mm3 because opportunistic diseases typically begin to affect people at that level. See
(last visited
August 3, 2016).
The CD4 percentage, on the other hand, measures how many of the body's white blood cells are actually
CD4 cells. The percentage provides a more stable count over a long period of time, but the CD4 count is typically a
better measure of immune function. See http://aids.gov/hiv-aids-basics/just-diagnosed-with-hiv-aids/understandyour-test-results/types-of-lab-tests/index.html (last visited August 3, 2016).

7

and he lost four pounds since starting Atripla, for which adherence was "perfect." (A.R. at 281).
His CD4 count remained at 189 (16%), and his viral burden was recorded as "61200. „4
Plaintiff again returned to the Path Center for checkup on April 21, 2011. He again
denied new complaints, stiffness, fever, or chills. (A.R. at 285). His appetite was again "OK”
and he had no recent weight loss, no rashes, and no dizziness or nightmares. (A.R. at 285).
Plaintiff "look[ed] well clinically on Atripla" and "ha[d] a nice virologic response." He was on a
steroid and a pupil dilator for his uveitis. (A.R. at 287). His CD4 count had risen to 220 (22%),
and his viral burden had plummeted to 990. (A.R. at 285).
At a May 26, 2011 Path Center visit, Plaintiff again denied new complaints and still
"looked well" with a "nice virologic response." (A.R. 287-89). ). His CD4 count and viral
burden had the same recording. (A.R. at 287).
Plaintiff's next documented visit to the Path Center was on September 8, 2011. Plaintiff
complained of "chronic fatigue," said that he was depressed, had no new weight loss and had an
"OK" appetite. (A.R. at 344). With respect to HIV, he continued to "look[] well clinically on
Atripla," and his "CD4 [was] improving (333 25%) with excellent virologic suppression (<20
copies)." (A.R. at 344-45). His past decreased appetite was noted, which had improved after a
prescription of an appetite stimulant, megestrol acetate. (A.R. at 345). During a visit the
following month, Plaintiff denied any new complaints, continued to express feelings of
depression, had an "ok" appetite," and had gained two pounds since the last visit. (A.R. at 347).
His CD4 count lowered some to 219, and his viral burden registered at 70. (A.R. at 347-49). His
uveitis had been "resolved." (A.R. at 345). Notes from a November 22 visit reflect that

In the context of HIV infection, "viral burden" or "viral load" measures the level of HIV in the blood. This
measurement helps physicians monitor the disease, decide when to start treatment, and determine whether HIV
medications are working. The goal of HIV treatment is to help reduce viral load, ideally to undetectable levels. See
(last visited
August 3, 2016).

Plaintiff was "not depressed today," gained four more pounds, and had an improved CD4 count
of 80 and a lowered viral burden of 30. (A.R. at 351). His Uveitis remained "resolved." (A.R.
at 352).
During a Path Center visit in January of 2012, Plaintiff complained of flatulence and
constipation but denied abdominal pains. His appetite decreased and he had lost five pounds.
(A.R. at 3 54-56). He looked clinically well and had a CD4 count of 303 and a viral burden of
80. (A.R. at 354). He was prescribed Bisacodyl for constipation and advised to increase fiber
and water intake. (A.R. at 356). One month later, in February of 2012, he had "no more
constipation," had gained nine pounds since his last visit, and had a CD4 count of 303 with a
viral burden of 80. (A.R. at 359). The doctor's notes reflected that recent measures likely
resulted from less than perfect adherence. (A.R. at 361).
In April of 2012, Plaintiff complained of numbness in his arm but denied any "weakness"
and had no slurred speech "or other associated neurological symptoms." (A.R. at 364). His
appetite was "alright" and his weight was stable at 170 pounds. (A.R. at 364). His CD4 count
remained at 303 and his viral burden dropped to 60. (A.R. at 365). He looked "clinically well"
on Atripla but had missed three doses of his medication. (A.R. at 365).
On June 5, 2012, Plaintiff had his annual examination at the Path Center. He denied
experiencing fevers, chills, and nightsweats, though he experienced discomfort swallowing some
solid foods. (A.R. at 368). His appetite was "fine" and he had gained four pounds since April.
(A.R. at 368). Review of his systems and physical examination had no negative results. (A.R. at
369-71). His appetite was listed as "good," his sleeping habits as "7-8 hours," and "Depression"
was marked "no." (A.R. at 371). His CD4 count was at 303 and viral burden at 80. (A.R. at
371).

During a checkup at the Path Center six months later, in December of 2012, Plaintiff
complained of experiencing blurry vision several times a week, reported a steady appetite despite
having lost 8 pounds in the interim, and continued to "look well clinically" with a CD4 count of

385 and a viral burden of 220, which the doctor deemed "low but increased" from his last visit in
June. (A.R. at 377-78).
Finally, lab results, apparently ordered by Dr. Berkowitz at the Path Center, show an
increased CD4 count of 486 in January of 2013. (A.R. at 395). No viral burden is recorded or
referenced.'

Consultative and Administrative Evaluations
On June 23, 2011 Plaintiff underwent a consultative psychological evaluation by Michael
Alexander, Ph.D., a psychologist. Dr. Alexander noted no hospitalizations for medical health
issues. (A.R. at 291). He described Plaintiff as cooperative, friendly, and alert. (A.R. at 292).
Plaintiff appeared well-groomed with normal gait, posture, motor behavior, and eye contact.
(A.R. at 292). His expressive and receptive language was adequate, and he appeared "coherent
and goal directed with no evidence of hallucinations, delusions, or paranoia in the exam." (A.R.
at 292). His affect was of normal range and appropriate, his mood was neutral, and his attention,
concentration, and memory skills were "intact." (A.R. at 292).
His cognitive function was deemed "average," his insight "good," and his judgment
"good." (A.R. at 293). The report states that he "is able to cook, clean, shop, manage his own
money, and does take public transportation independently." (A.R. at 293). The report made a
A "lab tracker" report dated January 23, 2013 (just prior to the hearing before the AU), summarizes a visit to
provider "Sangeet" for a "Psychiatry Initial Notice." (A.R. at 394). It states that Plaintiff "reports feeling depressed
for the past 5 months. . . gets stressed easily and at times can smoke up to 3 packs a day, appetite is poor but
improving." (A.R. at 394). The report ended with a diagnosis of "major depressive disorder" and noted "start" of a
prescription of both Zoloft and Seroquel. (AR. at 394). This report appears to document the psychiatric visit to
"Dr. Kahn" about which plaintiff briefly testified before the AU. (See page 5, supra).
10

prognosis of "good" and a recommendation that Plaintiff "may benefit from individual
psychotherapy for depressed mood." (A.R. at 294). It concluded with the following source
statement:
[Plaintiff] can follow and understand simple directions. He can
perform simple tasks independently. He can maintain attention
and concentration. He can maintain a regular schedule. He can
learn new tasks. He can perform more complex tasks
independently. He can make appropriate decisions. He can relate
adequately with others. He can appropriately deal with stress.
The results of the examination appear to be consistent with both
psychiatric as well as substance abuse problems which do not
significantly interfere with the claimant's ability to function on a
daily basis.
(A.R. at 293-94). Presumably reviewing that report and the surrounding record, L. Meade, a
non-examining state agency psychology consultant, concluded on July 1, 2011 that Plaintiff had
no severe mental impairment. (A.R. at 296-309).

Expert Testimony - Dr. Bernard Gussoff
Dr. Gussoff, a certified internist, hematologist, and oncologist, testified that Plaintiff has
a documented "HIV positivity" but not AIDS, considering his recent CD4 counts, which were
"somewhat suppressed, but certainly not at a low level." (A.R. at 45). He also noted Plaintiff's
low viral loads, emphasizing that the measure had been reduced to as low as 70, whereas "viral
loads of active disease [AIDS] are in six digits, like 100,000." (A.R. at 48). Thus, he testified
that he did not consider labeling Plaintiff as suffering from AIDS an accurate depiction due an
absence of cytomegalic episodes, pneumonitis, "or other hematologic or other systemic
infectious problems." (A.R. at 45)6 Dr. Gussoff opined that plaintiff's impairments did not

6

Dr. Gussoff also stated "we have a CD4 of 1220 here, which is just about normal." (A.R. at 45). After reviewing
the record, the Court finds no documented CD4 count of 1220. The Court therefore assumes in Plaintiff's favor that
this is a typographical error and a reference to Plaintiff's various CD4 counts of "220."

11

meet any of the required listings and that he was capable of performing exertional work at
sedentary level and "even ... light work" because he lacked any musculo skeletal, spinal, or
similar problems. (A.R. 46-47). He acknowledged two episodes of pneumonia in "the past,"
prior to Plaintiff's March 2011 antiretroviral treatment and SSI application. (A.R. at 46)
When questioned by counsel about Plaintiff's claims of chronic fatigue, Dr. Gussoff
stated that he found no clinical basis for concluding that fatigue resulted from Plaintiff's HIV in
the record. (A.R. at 50-52). When questioned about memory loss, he stated the same. (A.R. at

53). With respect to Plaintiff's weight loss and gain, he acknowledged some fluctuation but
emphasized an absence of "straight-line descent" or, in other terms, loss of at least 10 percent of
his body weight. (A.R. at 55).

III. DISCUSSION
A.

Standard of Review

In reviewing the AL's decision, "it is not [this Court's] function to determine de novo
whether plaintiff is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal
quotation marks and citation omitted). "Rather, [this Court] must determine whether the
Commissioner's conclusions are supported by substantial evidence in the record as a whole or
are based on an erroneous legal standard." Id. (internal quotation marks and citation omitted);
accord Jordan v. Comm'r of Social Security, 194 Fed. App'x 59, 61 (2d Cir. 2006) ("We review
the agency's final decision to determine, first, whether the correct legal standards were applied
and, second, whether substantial evidence supports the decision.") (internal citation omitted); see
also 42 U.S.C. § 405(g). Substantial evidence has been defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Schaal, 134 F.3d at 501
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted);
12

accord Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). "To determine whether the [AL's]
findings are supported by substantial evidence, the reviewing court is required to examine the
entire record, including contradictory evidence and evidence from which conflicting inferences
can be drawn." Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (internal quotations marks and
citation omitted). "When there are gaps in the administrative record or the AU has applied an
improper legal standard," remand to the Commissioner "for further development of the
evidence" or for an explanation of the AL's reasoning is warranted. Pratts v. Chater, 94 F.3d
34, 39 (2d Cir. 1996).
B.

Analysis for Disability Determinations

The Social Security regulations "establish a five-step process" pursuant to which "the
Commissioner is required to evaluate a claim for disability benefits." Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); accord 20 C.F.R. § 404.1520 (codifying the five-step analytical
framework). The process is one of sequential evaluation, such that if the Commissioner is able
to make a specified conclusive determination regarding the claimant's disability at a given step,
there is no need to perform the analysis set forth under the next successive step. See 20 C.F.R. §

404.1520(4).
At step one, a claimant's work activity is considered. See 20 C.F.R. § 404.1520(4)(i). A
finding of "not disabled" is warranted if the claimant is engaged in substantial gainful activity.
See id.; accord Draegert, 311 F.3d at 472. If the claimant is not engaged in substantial gainful
activity, the analysis proceeds to step two, at which the medical severity of the claimant's
impairments is evaluated. See 20 C.F.R. § 404.1520(4)(ii); accord DeChirico v. Callahan, 134
F.3d 1177, 1179 (2d Cir. 1998). If the claimant is found to suffer from a severe impairment or
combination of impairments that is severe, the third step of the inquiry is performed to determine
whether the claimant has an impairment or impairments that meet or equal the criteria listed in
13

Appendix ito Subpart P of Part 404, Title 20 of the Code of Federal Regulations (the
"Listings"). See 20 C.F.R. § 404.1520(4)(iii); DeChirico, 134 F.3d at 1179-80. A finding of
"disabled" must be made if all criteria for a listed impairment are met. See j4 If the claimant's
impairment or impairments cannot be equated with at least one of the impairments listed in
Appendix 1, the analysis continues.
Before step four is performed, however, an assessment of the claimant's residual
functional capacity ("RFC") is made. See -20 C.F.R, § 404.1520(4). This assessment is then used
at both steps four and five. See id. At step four of the analysis, the claimant's ability to perform
her past relevant work is evaluated; if the claimant is found to possess the RFC to perform such
work, she is deemed "not disabled." See 20 C.F.R. § 404.1520(4)(iv); DeChirico, 134 F.3d at
1180.
Otherwise, the analysis proceeds to the fifth and last step, at which the Commissioner
"consider[s] [her] assessment of [the claimant's] residual functional capacity and [the claimant's]
age, education, and work experience to see if [the claimant] can make an adjustment to other
work." 20 C.F.R. § 404.1520(4)(v); accord 20 C.F.R. § 404.1560(c)(1); DeChirico, 134 F.3d at
1180. At this final step of the analysis, "the AU is required to consult with a vocational expert"
if "a claimant has nonexertional limitations that significantly limit the range of work permitted
by his exertional limitations." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp
v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)). If the claimant is found to possess the residual
functional capacity to perform other work that exists in significant numbers in the national
economy, a finding of "not disabled" is made; otherwise, a finding of "disabled" is made. See 20
C.F.R. § 404.1560(c); see also 20 C.F.R. § 404.1520(4)(v). "The claimant bears the burden of
proof as to the first four steps, while the Commissioner must prove the final one." DeChirico,
134 F.3d at 1180 (internal citation omitted); accord 20 C.F.R. § 404.1560(c)(2) ("In order to
14

support a finding that you are not disabled at [the] fifth step of the sequential evaluation process,
we are responsible for providing evidence that demonstrates that other work exists in significant
numbers in the national economy that you can do, given your residual functional capacity and
vocational factors.")
C.

ALJ Decision

On March 29, 2013 ALJ Vecchio issued a decision denying Plaintiffs application for
SSI benefits. (A.R. at 12-20). Applying the five-step sequential evaluation process, the AU
found at step one that Plaintiff "has not engaged in substantial gainful activity since April 15,
2011, the alleged onset date." (A.R. at 15). Proceeding to step two, the ALJ concluded that
Plaintiff had "one severe impairment: asymptomatic human deficiency infection ('AHIV')."
(A.R. at 15). The ALJ found that Plaintiffs depression, vision problems, and other complaints
were non-severe because, considered individually and in combination, they did not cause more
than minimal limitation in his ability to perform basic work activities. (A.R. at 15-18). With
respect to Plaintiffs depression, the AU found the impairment less than severe in light of Dr.
Alexander's examination, Dr. Meade's assessment, the inconsistencies in Plaintiffs statements,
lack of objective support for Plaintiffs account, and the absence of episodes set forth in Listing
12.00(C)(4). (A.R. at 13-17).
At step three of the analysis, the ALJ found that Plaintiff "does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1." (A.R. 16). The ALJ next determined
that Plaintiff had the RFC to perform the "full range of sedentary work as defined in 20 CFR
416.967(a)." (A.R. at 1 7)7 In making the above findings, the ALJ emphasized the

This capacity was narrower than that opined by Dr. Gussoff, who stated that Plaintiff could perform "light work."
(A.R. 46-47).

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inconsistencies in Plaintiff's accounts, that expert testimony and consultative review was not
controverted by medical evidence, and that "no medical source has indicated that the [plaintiff]
has limitations more severe than those included in [the AL's] residual capacity finding." (A.R.
at 19).
The AU also proceeded to step five, essentially skipping step four in Plaintiffs favor
because Plaintiff had no recent former employment or transferrable skills, and found with
reference to the Medical-Vocational Guidelines (the "Guidelines") that other jobs existed in
significant numbers in the national economy that Plaintiff could perform, given his age,
education, work experience, and residual functional capacity. (A.R. at 19).
The AU also considered Plaintiffs testimony at the hearing that he was unable to work
due to other conditions, including troubled eyesight, "locking" hand issues, headaches, "bad
memory," and depression. (A.R. at 19). As to Plaintiffs depression, the AU noted that Plaintiff
had not sought psychiatric treatment before the eve of his hearing, Dr. Alexander's and Dr.
Meade ' s psychological assessments, and Plaintiffs intermittent denial of depression or
psychological problems while receiving treatment at the Path Center. (A.R. at 16-19). As to
Plaintiffs eye problems, the ALJ emphasized Dr. Gussoffs testimony that he was not
significantly impaired and the fact that Plaintiffs treating records documented progress with that
issue. (A.R. at 17-19).
The Court is satisfied that the AU applied the correct legal principles in his decision. He
stated and applied the five-step evaluation, citing to the relevant regulations setting forth that
process. The AU then thoroughly discussed the regulations relevant to each step before
determining that Plaintiff was not disabled within the meaning of the Act at step five.
Substantial evidence supports the AL's finding at each step.

Ifi

At step two, substantial evidence supported the AL's finding that HIV was Plaintiffs
only severe impairment. Consultative examinations concluded that Plaintiff's depression was
not limiting and no records or opinions from treating physicians counsel otherwise. Plaintiffs
eye problems—originally listed as cytomegalovirus and later as uveitis—were deemed
"resolved" by Plaintiffs treating physician and, as Dr. Berkowitz noted, his vision was
diminished but far from being impaired enough to meet relevant listings.
Regarding step three, the ALJ correctly found that no medical evidence in the record
indicates that Plaintiff met or equaled the listings for HIV at 14.08, which require among other
things that a claimant have specific infections, neoplasms, skin and membrane conditions,
encephalopathy, or ten percent weight loss combined with specified month-long symptoms. 20
C.F.R. Subpart P, Part 404, Section 14.08. Likewise, his finding that Plaintiff was able to
perform a full range of sedentary work was supported by the consultative testimony, records
from Plaintiffs treating physician, and the record as a whole. Having made this RFC, the AU
then properly applied the Guidelines.
Plaintiffs arguments to the contrary are without merit. Plaintiff primarily argues (i) that
Dr. Gussoff s testimony was based on considerations impermissibly limited in scope, (ii) that Dr.
Gussoffs testimony disclosed mistakes and conclusory statements that are not reliable, and (iii)
that the AU was required to call a vocational expert. (ECF No. 15).
The first two arguments mischaracterize Dr. Gussoffs testimony. Plaintiff contends that
the doctor based his opinion on only a portion of record and did not consider Plaintiffs hearing
testimony concerning his fatigue. (ECF No. 15 at 7). Plaintiff argues that this is evident in the
doctor's testimony that "he was only going by the written file and not the testimony." (ECF No.
15 at 7). To the contrary, Dr. Gustoff acknowledged at the hearing that Plaintiff had
"testimonially" evidenced his fatigue, but the doctor nevertheless concluded that any attribution
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of fatigue to Plaintiffs HIV would be unsupported by medical evidence. (A.R. at 50-5 1).
Likewise, Plaintiffs claims that Dr. Gustoff improperly focused on limited portions of the record
and thereby failed to properly determine whether Plaintiff met the requirements for Section 14.08
of the Listings, (ECF No. 15 at 7), is plainly contradicted by the record. The Doctor expressly
acknowledged fluctuations in CD4 counts and viral loads over time, and simply emphasized
moderate counts made at particular times. (A.R. at 48 (acknowledging that CD4 counts
"fluctuate. . . like any laboratory parameter."); A.R. at 50 (Plaintiff's viral load was "70, another
occasion, 220.")) In any event, such general "recurrence" of symptoms and fluctuation of
measures does not, without more, meet the relevant listings, established limitations, otherwise
lead to a finding of disability.
Plaintiffs second argument, that Dr. Gussoff made errors and conclusory remarks, also
ignores the context of the doctor's statements. Dr. Gussoff s statements that Plaintiff had "no
infections" were clearly made in discussion of whether Plaintiffs antiretroviral medication,
Atripla, was successful treatment, and not an assertion that Plaintiff had never experienced
infections prior to that treatment. (See A.R. at 48-49). In any event, that Plaintiff twice had
pneumonia during the relevant time frame—assuming this much appeared in the record—would
not change the analysis at step three because there is no indication that the pneumonia was
"resistant to treatment or require[d] hospitalization or intravenous treatment three or more times
in a 12-month period" or otherwise met or equaled the Listings. 20 C.F.R. Subpart P, Part 404,
Section 14.08. Likewise, Dr. Gussoffs statement that "I'm no authority on AIDS" was
immediately followed by "but I've dealt with many cases" and appears, when read in context, to
be nothing more than a statement of humility prefacing his disagreement with other doctors who
would opine that Plaintiffs antiretroviral treatment was unsuccessful. (A.R. at 48-49). Selfeffacing aside, Dr. Gussoffs view that Plaintiffs treatment was successful remains supported by
18

substantial medical evidence. Indeed, Plaintiffs treating physician, Dr. Berkowitz, routinely
stated that he "look[ed] well clinically on Atripla," and nothing in the record beyond Plaintiffs
uncorroborated testimony suggests otherwise. (See, e.g., A.R. at 285, 287, 365, 377-78).
Finally, Plaintiffs contention that the ALJ was obligated to call a vocational expert is
essentially an oblique challenge his RFC finding. That is, it rests on the assertion that Plaintiff
has more limitations than the ALJ found. As clearly stated in the case on which Plaintiff relies
for this point, the Guidelines are properly referenced where "a plaintiff has the capacity to
perform a full range of sedentary work," and not "[w]here plaintiff cannot perform a full range of
sedentary work, [in which case] she must be evaluated on an individual basis rather than by a
mechanical application of the grid rules." Gonzalez v. Barnhart, 491 F. Supp. 2d 329, 337-38
(W.D.N.Y. 2007). Here, however, the AL's RFC rested on ample record evidence. Indeed,
none of Plaintiffs treating physicians suggested he had any notable limitations.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the ALJ applied the correct legal
principles in making his determination and that the determination was supported by substantial
evidence. Accordingly, Commissioner's motion for judgment on the pleadings (ECF No. 13) is
GRANTED and this action is dismissed. The Clerk of Court is directed to enter judgment in
favor of the defendant and to close this case.

SO ORDERED.
/s/ Sandra L. Townes
SANDRA L. TOWN VS
United States District Judge
Dated:

itA14A4

(1, 2017

Broo1lyn, New York
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