Sligh v. Commissioner of the Social Security Administration
Filing
17
ORDER granting 10 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum & Order, the defendant's motion is granted and the decision of the Commissioner is affirmed. The Clerk of the Court is respectfully directed to close this case. Ordered by Senior Judge Denis R. Hurley on 9/28/2011. (Monaco, Laura) (Main Document 17 replaced on 9/28/2011) (Fagan, Linda).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DEBORAH MCKEE SLIGH,
Plaintiff,
-against-
MEMORANDUM & ORDER
09 CV 3507 (DRH)
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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APPEARANCES:
For Plaintiff:
Kassoff, Robert & Lerner, LLP
100 Merrick Road, Suite 508W
Rockville Centre, New York 11570
By:
Steven P. Lerner, Esq.
For Defendant:
Loretta E. Lynch
United States Attorney for the Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Candace Scott Appleton, Assistant U.S. Attorney (Of Counsel)
HURLEY, Senior District Judge:
Plaintiff Deborah McKee Sligh commenced this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of a final decision by the Commissioner of Social Security (the
“Commissioner” or “defendant”), which denied her claim for disability benefits. Presently
before the Court is defendant’s motion for judgment on the pleadings. For the reasons set forth
below, defendant’s motion is granted and the decision of the Commissioner is affirmed.
BACKGROUND
I.
Procedural Background
Plaintiff applied for Social Security disability insurance benefits and Supplemental
Security Income (“SSI”) on June 14, 2007. (Transcript (hereafter “Tr.”) 43.)1 Plaintiff alleged
that she suffered from a disability, commencing on January 23, 2007, due to a left knee injury
and a bone spur in her right heel. (Tr. 101.) The claim was denied initially on July 31, 2007 (Tr.
86-91), and plaintiff requested a hearing before an administrative law judge (“ALJ”). A hearing
was held before ALJ Jay L. Cohen on November 6, 2008, at which plaintiff appeared represented
by counsel. (Tr. 9-39.) The ALJ issued a decision on November 18, 2008 finding that plaintiff
was not disabled within the meaning of the Social Security Act. (Tr. 40-48.) Plaintiff requested
review by the Appeals Council (“AC”). (Tr. 219, 221-22.) By notice dated June 2, 2009, the
AC denied plaintiff’s request for review. (Tr. 3-5.) Subsequently, plaintiff submitted additional
evidence to the AC and on July 23, 2009, the AC set aside its June 2, 2009 decision in order to
consider that additional evidence. (Tr. 223-26.) After doing so, however, the AC issued a
separate decision that again denied plaintiff’s request for review. (Tr. 223-26.) Accordingly, the
ALJ’s decision became the “final decision” of the Commissioner. (Tr. 1-3.)
II.
Factual Background
A.
Non-Medical Evidence
1.
Hearing Testimony
Plaintiff was born on July 23, 1957 and was 51 years of age at the time of the hearing.
1
Page citations are to the transcript of the administrative record filed by the
Commissioner in this case.
2
(Tr. 97.) She has completed high school as well as secretarial school. (Tr. 106.) From 1994 to
2005, plaintiff worked as a electronics assembler and electronics inspector, which involved
assembling cell phone and television components or inspecting those components with a
microscope. (Tr. 16-17, 102.) These jobs required plaintiff to walk for one hour, stand for one
hour, sit for six hours, and lift less than ten pounds. (Tr. 102-03.)
Plaintiff’s application for disability benefits indicated that she stopped working on
January 23, 2007. (Tr. 101.) At the start of the hearing, however, plaintiff’s counsel informed
the ALJ that, as of June 2008, plaintiff had been working, without pay, for 21 hours per week at a
Salvation Army store in order to maintain her public assistance. (Tr. 12, 14.) Plaintiff testified
that her job duties include hanging up clothes, taking them off the racks, sorting through
donations, and tagging items. (Tr. 14-15.) Plaintiff further testified that she performed these
duties while standing and that she lifts objects that weigh between twenty and thirty pounds. (Tr.
15-16.) Plaintiff indicated that sometimes a co-worker will help her move heavy objects, but on
other occasions she manages to move heavy items herself, although she is in pain afterwards.
(Tr. 30.) According to plaintiff, her supervisor allows her to take breaks, but she has difficulty
completing her work. (Tr. 27.)
During the hearing, plaintiff asserted that she could not work for forty hours per week
because of spurs on her feet and a bad knee, back, and shoulder. (Tr. 20.) Plaintiff testified that
she could not sit, stand, or walk for extended periods, and that she had a difficult time bending to
lift things up. (Tr. 20.) Specifically, plaintiff testified that she could only sit for between five
and fifteen minutes, and stand for between ten and fifteen minutes. (Tr. 20.) Plaintiff further
testified that she could walk between fifty and one hundred feet with mild to extreme pain. (Tr.
3
21.) Finally, plaintiff stated that she could lift no more than fifteen pounds. (Tr. 21.)
Plaintiff testified that she does not cook and does very little cleaning. (Tr. 25-26.) She
testified that she does not drive, but that she takes the public bus to get to and from work. (Tr.
26.) The bus that plaintiff rides is equipped with a handicap-accessible lift, but she has trouble
getting on and off the bus. (Tr. 28.) Plaintiff testified that, in terms of recreation, she watches
television, reads, knits, or crochets. (Tr. 26.)
Plaintiff testified that her pain intensifies when she sits for long periods of time. (Tr. 29.)
She stated that if she stands for a few moments and then sits back down, “sometimes [the pain]
will shift, other times it like leaves.” (Tr. 29.) Plaintiff further testified that her knee swells up,
locks, cracks, and sometimes “go[es] out from underneath” her. (Tr. 29.) Plaintiff indicated that
she walks with a limp and sometimes has to lean on things to walk. (Tr. 30.) With respect to her
shoulder pain, plaintiff testified that she has never been treated or hospitalized for that pain. (Tr.
22.) Plaintiff stated that he sees an orthopedist, Dr. Feldman, for her heel spurs and knee
problems. Seven years prior to the hearing, plaintiff underwent an operation to remove spurs
from the tops of her feet. (Tr. 23.) Plaintiff testified that Dr. Feldman has recommended that she
have another such operation, but she has not scheduled it for fear that she will lose her job and,
by extension, her public benefits. (Tr. 23-24, 28.)
2.
Function Report
On July 12, 2007, plaintiff completed a Function Report for submission to the New York
State Office of Temporary and Disability Assistance, Division of Disability Determination. (Tr.
113.) In the Function Report, plaintiff stated that she lived in a homeless shelter with her
husband and other married couples. (Tr. 113.) Plaintiff described her daily activities as
4
including reading, writing, listening to music, watching television, and performing limited
washing and chores. (Tr. 113.) Plaintiff stated that she takes care of her husband by cooking,
giving him medication, and checking on his health daily. (Tr. 114.) She indicated that she could
not do household chores, exercise, work at a job, or bend, lift, push, pull, or climb stairs. (Tr.
114.) Plaintiff also stated that the pain in her feet and knees interrupted her sleep. (Tr. 114.)
Plaintiff indicated that she did not have problems with personal care, although she did require
help to put on or take off clothing due to her knee and foot pain. (Tr. 114-15.) Plaintiff stated
that her husband usually cooked, although she often made her own breakfast and lunch by
preparing microwave or fast food. (Tr. 115.)
B.
Medical Evidence
1.
Dr. Matthew Illikal – Orthopedist
The Division of Disability Determination referred plaintiff to Dr. Illikal for an orthopedic
examination, which was conducted on July 19, 2007. (Tr. 143.) Plaintiff complained of left
knee and shoulder pain as well as a calcaneal spur on her right foot. (Tr. 143.) Plaintiff
recounted that in 1998 her left knee had been crushed between the bumpers of two cars, and she
was taken to Huntington Hospital. (Tr. 143.) X-rays revealed a hairline fracture on the patella,
and her left knee was immobilized in a brace for four weeks. (Tr. 143.) During the examination,
plaintiff complained of intermittent aching pain in the left knee, extending to her left thigh. (Tr.
143.) She reported that she could sit and lie down in bed without discomfort, and could stand for
more than thirty minutes and walk for longer than 3/4 of a mile. (Tr. 143.) Plaintiff stated that
she could not bend her knee to pick up anything from the floor, or lift more than ten pounds. (Tr.
143.)
5
Plaintiff also complained of pain in her left shoulder, but could not recall any inciting
event except for a motor vehicle accident around 1987. (Tr. 143.) She described the pain
as intermittent, and stated that she had never received any medical evaluation or treatment for it.
(Tr. 143.) Plaintiff claimed that she had limited range of motion in her left arm. (Tr. 143.)
Plaintiff also complained of right heel pain that had become severe in 2007, for which she had
received no medical consultation or treatment. (Tr. 143.) She stated that it was painful for her to
walk. (Tr. 143.) Plaintiff stated that she cooked five times a week, with the help of her husband.
(Tr. 144.) She further reported that she showered and dressed daily, watched television, listened
to the radio, and read. (Tr. 144.)
On examination, Dr. Illikal observed that Plaintiff was in no acute distress. (Tr.
144.) She walked with a mild limp and was unable to walk on her heels due to the right foot
spur. (Tr. 144.) Plaintiff’s squatting was half the normal range, her station was normal, and she
used no assistive device. (Tr. 144.) Plaintiff did not require assistance to change for the exam or
get on and off the exam table. (Tr. 144-45.) The examination of the cervical, thoracic, and
lumbar spines was normal. (Tr. 145.) The forward flexion of her shoulders was 150 degrees on
the right and 135 degrees on the left. (Tr. 145.) The range of motion of plaintiff’s left shoulder
was limited due to her complaints of pain, and the internal and external rotation were reduced.
(Tr. 145.)
Dr. Illikal diagnosed arthralgia of plaintiff’s left knee and moderate osteoarthritis, as well
as a calcaneal spur on plaintiff’s right heel, and arthralgia of her left shoulder. (Tr. 146.) The
doctor opined that plaintiff had a mild limitation in standing and walking, bending her
left knee, picking up objects off the floor, flexion and abduction of the left shoulder, and lifting
6
and carrying with her left hand. (Tr. 146.)
X-rays performed on July 19, 2007 revealed moderate osteoarthritic changes around the
knee, no evidence of a current fracture or evidence of any healing change from the previous
fracture, and no step-off at the tibial plateau. (Tr. 147.) The x-rays of Plaintiff’s right foot and
toes were unremarkable except for a plantar calcaneal spur. (Tr. 147.)
2.
Dr. William Bollhofer, D.O.
Plaintiff was examined by Dr. Bollhofer, of the Queens Long Island Medical Group
(“QLI Medical”) on November 23, 2007.2 (Tr. 208.) Plaintiff presented with multiple
complaints, including left arm and left knee pain, spurs on her left foot, a lump in the middle of
her chest, a double ear infection, hot flashes, and a rash in her groin area. (Tr. 208.) A
musculoskeletal examination revealed pain in plaintiff’s left shoulder when it was actively or
passively moved. (Tr. 209.) Dr. Bollhofer observed that plaintiff’s shoulder did not suddenly
“lock up” or catch during movement, and the shoulder joint did not feel unstable or “out of
place.” (Tr. 209.) Dr. Bollhofer also noted that plaintiff experienced pain when her left knee
was actively or passively moved, and that such pain got worse with “weightbearing.” (Tr. 209.)
Although Dr. Bollhofer did not observe any swelling, redness, or warmth of plaintiff’s knee, he
did take note of a clicking or grating sensation in her left knee. (Tr. 209.)
Dr. Bollhofer diagnosed plaintiff with flushing, tinea cruris of the groin, acute
arthropathy of the shoulder region, arthropathy of the left knee, patella, tibia, and fibula, as well
as a calcancal spur, nicotine dependence, and lipoma of the fatty tissue. (Tr. 209.) Dr. Bollhofer
2
The record does not indicate whether plaintiff was referred to Dr. Bollhofer or
whether she saw him on her own initiative.
7
noted that plaintiff’s calcaneal spurs were asymptomatic, and he instructed plaintiff to consult a
podiatrist if the symptoms returned. (Tr. 209.) For plaintiff’s shoulder and knee pain, Dr.
Bollhofer prescribed a Medrol dose pack, warm compresses, and certain range of motion
exercises. (Tr. 212.)
3.
Dr. Shankar Iyer – Surgeon
On January 7, 2008, Dr. Shankar Iyer, also of QLI Medical, examined the soft tissue mass
on plaintiff’s chest, which was first observed during her November 23, 2007 visit with Dr.
Bollhofer. (Tr. 192.) Dr. Iyer determined the mass to be a lipoma3 and recommended that it be
reevaluated in six months or if it increased in size. (Tr. 193.)
4.
Dr. Neil Ferrara – Gastroenterologist
On February 25, 2008, Dr. Neil Ferrara, also of QLI Medical, examined plaintiff in
connection with “rare” blood in her rectum. (Tr. 187.) Plaintiff reported that she did not feel
“tired or poorly.” (Tr. 187.) A review of plaintiff’s gastrointestinal symptoms revealed no
dysphagia, pain on swallowing, heartburn, or abdominal pain. (Tr. 187.) Dr. Ferrara ordered
blood work and a colonoscopy. (Tr. 188.)
5.
Plaintiff’s Request for Documentation
On March 13, 2008, plaintiff requested that QLI Medical provide her with a letter stating
that she cannot work because she has a bad knee, back, arthritic feet, and is limited in her ability
to sit and stand. (Tr. 169.) A notation on plaintiff’s request form indicates that an employee of
QLI Medical informed plaintiff that Dr. Bollhofer would not write such a letter because plaintiff
3
According to the Commissioner, a lipoma is “a benign tumor composed of
adipose tissue.” (Def.’s Mem. at 6 n.3 (citing Dorland’s Illustrated Med. Dictionary 1016 (30th
ed. 2003)).)
8
had only seen him once. (Tr. 169.) Plaintiff was told that she would need to see an orthopedist.
(Tr. 169.)
6.
Dr. Harold Grafstein – Gynecologist
On February 7, 2008, plaintiff saw Dr. Harold Grafstein, also of QLI Medical, for a
pelvic examination. (Tr. 190-91.) Dr. Grafstein conducted follow up examinations of plaintiff in
March and May 2008, after testing revealed an abnormal Pap smear and mild dysplasia of the
cervix. (Tr. 159-66, 170-71.) On May 1, 2008, plaintiff underwent a colposcopy/loop
electrosurgical excision procedure (LEEP) to remove abnormal cervical cells. (Tr. 174, 177,
179.) On May 2, 2008, Dr. Grafstein wrote a letter indicating that plaintiff needed to be on light
duty for six days – between May 2 and May 7, 2008 – following the procedure. (Tr. 175.)
7.
Dr. Feldman
On June 11, 2008, plaintiff was examined by Dr. Feldman, also of QLI Medical, based on
her complaints of left knee pain and bilateral heel pain. (Tr. 153.) Dr. Feldman’s physical
examination revealed no effusion in the left knee and a full range of motion. (Tr. 153.) Dr.
Feldman did not observe any varus/valgus or anterior/posterior instability with localized
tenderness over the medial and posterior medial joint line. (Tr. 153.) Dr. Feldman’s
examination of plaintiff’s feet revealed normal skin color and turgor with localizing tenderness
over the medial calcaneal tuberosities. (Tr. 153.)
X-rays of the left knee revealed evidence of medial joint space narrowing. (Tr. 153.) Dr.
Feldman did not observe any evidence of an acute fracture, dislocation, or interosseous
pathology. (Tr. 153.) X-rays of plaintiff’s feet revealed evidence of calcaneal spurs, greater on
the right than the left, with underlying plantar fasciitis. (Tr. 153.)
9
Dr. Feldman diagnosed early degenerative changes in plaintiff’s left knee, although he
could not exclude underlying meniscal pathology. (Tr. 153.) The doctor recommended a
magnetic resonance imaging (MRI) study for further evaluation and prescribed an antiinflammatory medication. (Tr. 153.) Dr. Feldman also diagnosed bilateral plantar fasciitis, and
recommended a stretching program and physical therapy. (Tr. 154.)
C.
Vocational Expert’s Testimony
Edna Clark took the stand during the November 2008 hearing as an expert vocational
witness. (Tr. 31.) Clark testified that plaintiff’s prior position as an electronics inspector was
light and semi-skilled with an SVP of three, under the U.S. Department of Labor’s Dictionary of
Occupational Titles (“DOT”) Code 726.684-022, although Clark was of the opinion that, based
on plaintiff’s testimony at the hearing, plaintiff actually performed that work at the sedentary
level. (Tr. 32.) Plaintiff’s work for the same employer as an electronics assembler was light and
semi-skilled with an SVP of four, under DOT Code 726.684-018, although plaintiff’s testimony
led Clark to conclude that plaintiff also performed that work at the sedentary level. (Tr. 32.)
Clark testified that plaintiff had only job-specific, non-transferrable skills. (Tr. 33.)
The ALJ asked Clark to assume a hypothetical individual of the same age, education, and
work history as plaintiff who was limited to the performance of light work and who had
occasional postural limitations (i.e., climbing and balancing). (Tr. 33.) Clark testified that this
hypothetical individual could perform plaintiff’s past jobs as an electronic inspector and
assembler as those positions were generally performed in the national economy. (Tr. 33.)
The ALJ then asked Clark to consider an individual with the same vocational profile as in
the first hypothetical, but who was also limited in picking up objects from the floor, and in
10
reaching and handling with the left upper extremity (the dominant hand). (Tr. 33-34.) Clark
testified that such a hypothetical individual could not perform plaintiff’s past work as an
electronics inspector or assembler. (Tr. 34.) Clark further testified, however, such a hypothetical
individual could perform other work in the national or regional economy as, for example, a final
assembler (DOT Code 789.687-046, which involves light duty work with an SVP of two, and
with 3,000 jobs in the local economy and 15,000 jobs in the national economy), hand trimmer
(DOT Code 781.687-070, which involves light duty work with an SVP of two and 2,000 jobs
locally, and 14,000 nationally), and as a messenger (DOT Code 230.663-010, which involves
light duty work with an SVP of two, and with 14,000 positions locally, and 40,000 nationally).
(Tr. 34.)
The ALJ then posed a third hypothetical involving an individual of the same vocational
profile as plaintiff, who was limited to sedentary work, and who was limited in the ability to pick
up objects from the floor. (Tr. 35.) Clark testified that such a hypothetical individual could
perform plaintiff’s past work as an electronics inspector and assembler. (Tr. 35.) Finally, the
ALJ instructed Clark to assume that all of plaintiff’s testimony regarding her limitations was
credible, and asked Clark whether a hypothetical individual with all such limitations could
perform plaintiff’s past work. (Tr. 35.) Clark answered that since plaintiff performed her past
work with a sit/stand option and lifted less than one pound, a hypothetical individual with
plaintiff’s alleged limitations could perform plaintiff’s past work. (Tr. 35.)
Next, plaintiff’s attorney asked Clark several questions. Plaintiff’s counsel stated that
plaintiff had testified that she suffered from “extreme pain” in her back, knee, foot and shoulder,
and that she could sit for only limited periods of time due to this pain. (Tr. 35-36.) Plaintiff’s
11
attorney asked whether such pain would limit plaintiff’s ability to perform sedentary work. (Tr.
36.) Clark responded that the accommodations that plaintiff received in her prior jobs permitted
her to perform sedentary work; plaintiff had the option to stand if her back hurt and then sit back
down if her knee hurt. (Tr. 36.) Plaintiff’s counsel then described a hypothetical individual who
experienced pain that limited her ability to sit to periods of only ten to fifteen minutes, who then
had to stand up to alleviate the pain, and who experienced worse pain when she sat back down.
(Tr. 38.) Clark testified that such a hypothetical individual could not perform sedentary work.
(Tr. 38.)
D.
Medical Evidence Submitted to the AC After the Hearing and ALJ’s Decision
1.
Catherine Geoghan, LMSW
On March 16, 2009, approximately five months after the ALJ rendered his decision on
plaintiff’s claim, Catherine Geoghan, LMSW, wrote a letter addressed “To Whom it May
Concern,” indicating that plaintiff was participating in counseling offered at her residential
program. (Tr. 76.) As of that date, plaintiff had attended three counseling sessions. (Tr. 76.)
2.
Warren R. Levine, RCSW, LCSW, Behavior Therapist
On April 16, 2009, Warren Levine, RCSW, LCSW, completed a Suffolk County
Department of Social Services Psychiatric Assessment for Determination of Employability form.
(Tr. 73-74.) Levine indicated that he had provided individual psychotherapy sessions to plaintiff
twice per week beginning on March 3, 2009. (Tr. 73.) Levine diagnosed plaintiff as having an
intermittent explosive disorder and a personality disorder. (Tr. 73.) He reported that plaintiff
had taken repetitive violent actions towards herself or others on occasion, and had lost a job or
failed to complete an education program due to her psychiatric conditions. (Tr. 74.) Levine
12
noted that plaintiff’s behavior frequently interfered with her activities of daily living. (Tr. 74.)
Plaintiff did not exhibit any evidence of a limitation on her ability to understand and remember
simple instructions, to maintain basic standards of personal hygiene and grooming, or to use
public transportation. (Tr. 74.) Levine found plaintiff moderately limited in her ability to
understand and remember complex instructions, to maintain attention and concentration, to
interact appropriately with others, to maintain socially appropriate behavior, and to complete low
stress, simple tasks. (Tr. 74.) Levine assigned plaintiff a Global Assessment of Functioning
(“GAF”) score of 56. (Tr. 73.) A note from Levine, dated April 21, 2009 confirmed plaintiff’s
attendance at an intake evaluation on March 17, 2009, and twice weekly therapy sessions since
that date. (Tr. 75.)
2.
Mark Gresser, DPM
On May 4, 2009, Mark Gresser, DPM, completed a Physical Assessment form for the
Suffolk County Department of Social Services. (Tr. 77-78.) Dr. Gresser indicated that he had
treated plaintiff’s heel spur by administering steroid injections on a weekly basis between April
20, 2009 and the date he completed the form. (Tr. 77.) Dr. Gresser noted that plaintiff could
stand or walk for one to two hours a day, and could sit for more than four hours. (Tr. 78.) He
also stated that plaintiff could lift ten pounds occasionally, but that she was moderately limited in
her ability to use public transportation. (Tr. 78.) Dr. Gresser opined that plaintiff was capable of
full time employment, education, or training, so long as it entailed “seated work.” (Tr. 78.)
3.
S. Chandra Shekher, M.D.
Dr. S. Chandra Shekher began providing individual psychotherapy sessions to plaintiff on
May 14, 2009. (Tr. 71.) On May 21, 2009, Dr. Shekher completed a Psychiatric Assessment for
13
Determination of Employability for the Suffolk County Department of Social Services. (Tr. 7172.) Dr. Shekher diagnosed plaintiff as suffering from bipolar and other personality disorder.
(Tr. 71.) She indicated that plaintiff had no history of past treatment, acute psychiatric
hospitalizations, or suicide attempts. (Tr. 72.) Dr. Shekher wrote that, on occasion, plaintiff
engaged in behavior that interfered with her activities of daily living, and had lost a job or failed
to complete an education or training program because of her psychiatric conditions. (Tr. 72.) Dr.
Shekher opined that plaintiff was able to understand and remember simple and complex
instructions, to maintain attention and concentration, and to use public transportation. (Tr. 72.)
She stated that plaintiff was only moderately limited in her ability to interact appropriately with
others, maintain socially appropriate behavior, and maintain basic standards of personal hygiene
and grooming. (Tr. 72.) Dr. Shekher indicated, however, that plaintiff was very limited in her
ability to perform low stress, simple tasks. (Tr. 72.) Dr. Shekher assigned plaintiff a GAF score
of 41. (Tr. 71.)
DISCUSSION
I.
Legal Standards
A.
Review of the ALJ’s Decision
In reviewing a decision of the Commissioner, a court may “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). The Court may set aside a determination of the ALJ only if it is “based upon
legal error or is not supported by substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999) (internal quotation marks and citation omitted). “Substantial evidence is ‘more than a
14
mere scintilla,’ and is ‘such relevant evidence as [a] reasonable mind might accept as adequate to
support a conclusion.’” Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, the findings of the
Commissioner as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. §
405(g), and thus, the reviewing court does not decide the case de novo. Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004). Thus, the only issue before the Court is whether the ALJ’s
finding that plaintiff was not eligible for disability benefits was “based on legal error or is not
supported by substantial evidence.” Rosa, 168 F.3d at 77.
B.
Eligibility for Disability Benefits
To be eligible for disability benefits under the Social Security Act (the “SSA”), a
claimant must establish that he is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or 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 SSA further states that this impairment must be “of
such severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy . . . .” Id. § 423(d)(2)(A).
The SSA has promulgated regulations prescribing a five-step analysis for evaluating
disability claims. See 20 C.F.R. § 404.1520. This Circuit has described the procedure as
follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
15
impairment” which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and
work experience . . . . Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Rosa, 168 F.3d at 77 (alterations in the original) (quoting Berry v. Schweiker, 675 F.2d 464, 467
(2d Cir. 1982) (per curium)). The claimant bears the burden of proof at steps one through four,
while the burden shifts to the Commissioner at step five to show that the claimant is capable of
working. Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
II.
The ALJ’s Decision
Applying the five-step analysis enumerated in 20 C.F.R. § 404.1520, the ALJ found that
plaintiff satisfied the first two steps, to wit: (1) plaintiff had not engaged in substantial gainful
activity since January 23, 2007; and (2) plaintiff’s left knee and shoulder impairments with
associated pain, as well as her back pain and right heel bone spur all constituted severe
impairments. (Tr. 45.) The ALJ concluded that plaintiff did not meet the third step, however,
because her impairments did not meet or equal in severity any impairment in the Listing of
Impairments, Appendix 1, Subpart P, Part 404 of the Regulations. (Tr. 45.)
The ALJ next found under the fourth factor that plaintiff had the residual functional
capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) “but
for a limited ability to pick up objects from the floor.” (Tr. 45.) The ALJ further found that
16
plaintiff was capable of performing her past relevant work as an electronics inspector and
electronics assembler. (Tr. 47.) The ALJ found that this work did not require the performance of
activities precluded by plaintiff’s residual functional capacity. (Tr. 47.) In this regard, the ALJ
relied on Clark’s testimony that although the positions of electronics inspector and electronics
assembler are classified as light in the DOT, because plaintiff performed that work with a
sit/stand option and lifted less than one pound (i.e., in a manner that was less strenuous than what
would normally be considered light duty), that work could be classified as sedentary. (Tr. 47.)
Accordingly, the ALJ determined that plaintiff was not disabled under the SSA from
January 23, 2007 through the date of the decision. (Tr. 47).
III.
The Parties’ Arguments
Plaintiff asserts two main objections to the ALJ’s decision. First, she contests the ALJ’s
finding that her subjective testimony regarding the intensity, persistence, and limiting effects of
her symptoms was not credible. (See Pl.’s Opp’n at 11; Tr. 46.) Plaintiff asserts that if the ALJ
had fully credited her testimony about the intensity and effects of her symptoms, and considered
her testimony in conjunction with Clark’s testimony, the ALJ would have found plaintiff unable
“to perform any work, sedentary or otherwise.” (Pl.’s Opp’n at 11, 16.) Plaintiff further argues
that even if the ALJ was not “persuaded by plaintiff’s testimony,” the “medical evidence
unequivocally proves that [she] is suffering [from] severe mental and physical disabilities.” (Id.
at 18.)
Second, plaintiff argues that the AC erred in refusing to consider the medical evidence of
plaintiff’s mental impairments, which was submitted after the ALJ rendered the November 2008
decision. (See id. at 12.)
17
IV.
Application of the Governing Law to the Present Facts
A.
Assessment of Credibility
Social Security regulations require an ALJ to consider a claimant’s subjective testimony
regarding her symptoms when analyzing whether she is disabled. See 20 C.F.R. § 404.1529(a).
The regulations contemplate a two-step process to evaluate a claimant’s subjective testimony
regarding her symptoms. First, the ALJ must determine “whether there is an underlying
medically determinable physical or mental impairment . . . that could reasonably be expected to
produce” the claimed symptoms. See SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). Here,
the ALJ found that “claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms.” (Tr. 46.)
Second, the ALJ “must evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.” SSR 96-7p, 1996 WL 374186 at *2. If a claimant’s
subjective evidence of pain is supported by objective medical evidence, it is entitled to “great
weight.” Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992) (internal
quotation marks omitted). If, however, a claimant’s symptoms suggest a greater severity of
impairment than can be demonstrated by the objective medical evidence, additional factors must
be considered. See 20 C.F.R. § 404.1529(c)(3). These include daily activities, the location,
duration, frequency and intensity of symptoms, the type, effectiveness and side effects of
medication, and other treatment or measures to relieve those symptoms. Id.
In the present case, the ALJ concluded that “the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they
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are inconsistent with the above residual functional capacity assessment.” (Tr. 46.) In particular,
the ALJ noted that although plaintiff testified as to the physical limitations caused by her pain
(i.e., sitting for no longer than five to fifteen minutes, standing for no longer than ten to fifteen
minutes, no lifting more than fifteen pounds, and walking only 50-100 feet with mild to extreme
pain), none of the records from the QLI Medical doctors contained any “restrictions preclusive of
lighter forms of employment . . . nor can any reasonably be discerned.” (Tr. 47.) Moreover, the
ALJ found that Dr. Illikal, the only doctor who addressed plaintiff’s limitations in the areas of
standing, walking, and lifting, “furnished a profile essentially consistent with sedentary work as
he noted mild limitations regarding standing/walking; bending of the left knee; flexing of the left
shoulder; and lifting/carrying weight with the left hand.” (Tr. 47.)
The Court agrees with the ALJ’s conclusion that plaintiff’s testimony regarding the
limiting effects of her medical impairment was not substantiated by objective medical evidence.
The ALJ’s task, then, was to “make a finding on the credibility of the individual’s statements
based on a consideration of the entire case record.” SSR 96-7p, 1996 WL 374186, at *2; Vargas
v. Astrue, 2011 WL 2946371, at *15 (S.D.N.Y. July 20, 2011) (stating that if an ALJ’s credibility
determination is supported by substantial evidence, it must be upheld) (citing Aponte v. Sec’y,
Dep’t of Health & Human Servs., 728 F.2d 558, 591 (2d Cir. 1984)). Here, the ALJ found that
“the claimant’s statements regarding her activities of daily living are inconsistent with the work
performed in repayment of her grant.” (Tr. 46.) In particular, plaintiff testified that during her 21
hours per week working at the Salvation Army, she performs her job duties while standing. (See
Tr. 46.) Plaintiff also testified that she was able to perform her past job duties as electronics
inspector and electronics assembler in either a sitting or standing position. (Tr. 46.)
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In addition, the record demonstrates the existence of certain discrepancies with respect to
plaintiff’s statements about her abilities. For example, although the record contains evidence of
statements by plaintiff recounting a limited ability to dress herself without help (Tr. 114-15),
other record evidence demonstrates that plaintiff showered and dressed daily (Tr. 144) and did
not require assistance changing before medical examinations (Tr. 144-45). Moreover, the ALJ
noted that Suffolk County Social Services did not grant plaintiff a medical waiver regarding the
repayment of her grant, and the ALJ inferred that “Suffolk County has found the claimant
medically fit for work.” (Tr. 46.) Finally, the Court notes that the ALJ did account for plaintiff’s
testimony regarding her limited ability to lift objects off the ground; his ultimate conclusion was
that plaintiff was able to perform sedentary work “but for a limited ability to pick up objects from
the floor.” (Tr. 45.)
Therefore, the Court finds that the ALJ’s findings as to plaintiff’s credibility are
supported by substantial evidence and are, therefore, upheld.
B.
Consideration of Evidence Post-Dating the Hearing
Plaintiff also contends that the AC erred when it did not provide “proper consideration”
to her psychiatric and psychological impairments, which are documented in the medical records
submitted to the AC after it issued the June 2, 2009 notice. Plaintiff argues that this information
“supports a remand for a new Administrative Hearing to determine whether plaintiff’s psychiatric
and psychological impairments are disabling.” (Pl.’s Opp’n at 13.)
In connection with its review of an ALJ’s decision on an application for benefits, the AC
is required to consider “new and material evidence . . . only where it relates to the period on or
before the date of the administrative law judge[’s] [ ] decision.” 20 C.F.R. § 416.1470(b). Here,
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as defendant correctly points out, “all of the evidence submitted to the [AC] postdated the [ ]
ALJ’s [November 17, 2008] decision by five to six months.” (See Def.’s Mem. at 20.) The
Court notes that Dr. Gresser’s records relate to his treatment of plaintiff’s heel spur, a condition
that plaintiff had at the time the ALJ considered her application. However, because Dr. Gresser’s
records reflect treatment for the period between April 20, 2009 and May 4, 2009 (Tr. 77-78) –
which was not the time period at issue before the ALJ – the AC was not required to consider
them. See Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D.Conn. 2009) (“Evidence is material in
this context if it is relevant to the plaintiff’s condition during the time period at issue and it is
probative. The SSA thus need not consider evidence related to plaintiff’s condition after the
ALJ’s decision . . . .”) (internal citation omitted).
Moreover, there is no indication that any of plaintiff’s documented psychological
impairments existed prior to March 2009. Plaintiff’s proper remedy in connection with any
psychological conditions that developed after the relevant period would be to submit a new
application for benefits. See Quinlivan v. Comm’r of Soc. Sec., 2011 WL 2413491, at *8
(N.D.N.Y. May 23, 2011).
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CONCLUSION
For the reasons set forth above, defendant’s motion is granted and the decision of the
Commissioner is affirmed. The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated:
Central Islip, New York
September 28, 2011
/s/
Denis R. Hurley
United States District Judge
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