Byrd v. Commissioner of Social Security
Filing
23
MEMORANDUM & ORDER re: 19 Motion for Judgment on the Pleadings is GRANTED and the final decision of the Commission is AFFIRMED. Plaintiff's Complaint is DISMISSED. The Clerk of the Court is directed to CLOSE this matter. Ordered by Judge Joanna Seybert on 8/16/2013. (C/M Plaintiff) (C/ECF Defendant) (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
LYNDA BYRD,
Plaintiff,
MEMORANDUM & ORDER
12-CV-2211(JS)
-againstMICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiff:
Lynda Byrd, pro se
P.O. Box 5594
Hempstead, NY 11550
For Defendant:
Robert W. Schumacher, II, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, NY 11722
SEYBERT, District Judge:
Plaintiff
Lynda
Byrd
(“Plaintiff”)
commenced
this
action pro se pursuant to Section 205(g) of the Social Security
Act, as amended, 42 U.S.C. § 405(g), and Section 1631(c)(3) of
the
Social
challenging
Security
Act,
Defendant
as
amended,
Commissioner
42
of
U.S.C.
Social
§
1383(c),
Security’s
(“Defendant” or the “Commissioner”) denial of her application
for
disability
insurance
Security Income (“SSI”).
benefits
(“DIB”)
and
Supplemental
Presently before the Court is the Defendant’s motion
for
judgment
on
the
pleadings.
For
the
following
reasons,
Defendant’s motion is GRANTED.
BACKGROUND
Plaintiff worked as a security guard at the Probation
Department in Mineola, New York.
at 2.)
(Def.’s Br., Docket Entry 20,
On March 16, 2007, Plaintiff tripped over wires and fell
while on the job as a security officer for the Mineola probation
department.
emergency
(R. 121.)
room
and
1
She was taken by ambulance to the
reported
injuries
to
her
neck,
right
shoulder, right groin, lower back, right foot, and right hip.
(R. 173.)
She applied for DIB and SSI on December 2, 2009 (R.
46) and December 9, 2009 (R. 45) asserting that carpal tunnel
syndrome and back, shoulder, neck, foot, and hip pain limited
her ability to work as of November 4, 2009 (R. 96).
application was denied on March 3, 2010.
(R. 47.)
2010,
which
Plaintiff
requested
a
hearing,
Plaintiff’s
On March 22,
took
place
on
December 30, 2010 before Administrative Law Judge (“ALJ”) Jay
Cohen.
(R. 13, 24.)
Plaintiff was represented by counsel and
was the only witness to testify before the ALJ.
(R. 24-44.)
Plaintiff received an unfavorable decision by the ALJ
on
February
11,
2011
(R.
10)
and
filed
an
appeal
with
the
“R.” denotes the administrative record which was filed by the
Commissioner on July 30, 2012 and October 4, 2012. (Docket
Entries 13, 18.)
2
1
Appeals Council of the Office of Disability Adjudication and
Review on March 15, 2011 (R. 7).
The Appeals Council denied
Plaintiff’s request for review on March 22, 2012, making the
decision of the ALJ the final decision of the Commissioner.
(R.
1.)
The Court will first summarize the relevant evidence
that was presented to the ALJ, followed by a discussion of the
ALJ’s findings and conclusions as well as the Appeals Council’s
decision.
I.
Non-Medical Evidence
Plaintiff, who was born in 1969, was 40 years old at
the
time
of
her
onset
date.
(R.
74.)
At
her
hearing
on
December 30, 2010, Plaintiff indicated that she lives alone on
the first floor of an apartment building in Hempstead, New York
where she has lived for around four years.
attended
high
school
through
the
ninth
(R. 28.)
grade
and
Plaintiff
her
only
vocational education consisted of a three-week home health aid
course.
(R. 28.)
Plaintiff testified that she sometimes does
her own cooking, has help cleaning, and does not shop but sends
a
friend
to
shop
for
her
(R.
39-40),
though
she
apparently
reported to Dr. Peter Stefanides that she shops once per month
(R. 208).
Plaintiff testified that although she used to jog and
exercise, she can no longer do those activities except to take
3
her dog for short walks.
(R. 40-41.)
She does not visit
friends or relatives and rarely goes outside.
Plaintiff
testified
that
before
(R. 40-41.)
work
each
day
she
relaxes until she sees her doctor at 2 p.m., and at about 3 p.m.
she takes the bus to work.
(R. 39.)
As she has not driven a
car since 2007, she takes public transportation, but testified
that holding the rail on the bus causes her arm to pull and her
neck to cramp when the bus stops. (R. 41.)
Plaintiff also
testified that she is in pain all of the time (R. 41) and that
her injuries prevent her from lifting a gallon of milk, standing
longer
than
twenty-five
minutes,
sitting
longer
than
thirty
minutes without cramping, or walking far (R. 32-33).
Plaintiff began her employment as a security officer
in 2000, and did not indicate in a work history report any
employment prior to 2000. 2
(R. 88.)
She currently works as a
security guard at the Probation Department in Mineola, New York
where her responsibilities include searching people’s property
before they go through metal detectors.
(R. 29.)
Prior to her
alleged onset date, Plaintiff states that she would frequently
lift
the
pounds),
belongings
and
would
she
walk,
was
searching
stand,
sit,
(up
stoop,
to
twenty-five
kneel,
crouch,
Plaintiff’s FICA Summary indicates additional earnings between
1996 and 1999 of less than $5,200 per year from an unspecified
source (R. 81), but Plaintiff’s Social Security application
indicated no employment during that time (R. 88).
4
2
reach, and write, type or handle small objects throughout her
entire eight-hour workday.
(R. 89, 97.)
She testified that she
no longer lifts the belongings as she searches them to avoid
straining her shoulder and neck.
(R. 30-31.)
After her March 16, 2007 accident, Plaintiff was out
of work until March 2008 and stopped work again between March
2009 and May 2009 for surgery.
(R. 96.)
After resuming work as
a security officer in June 2009, Plaintiff again became unable
to work on November 4, 2009.
(R. 96.)
From July 2010 through
the time of the ALJ hearing, Plaintiff had resumed working parttime as a security guard.
(R. 29.)
According to her testimony,
she works between twenty and twenty-eight hours per week and is
paid $12.29 per hour.
II.
(R. 28-29.)
Medical Evidence Prior To The Alleged Onset Date
Plaintiff was taken by ambulance to Franklin General
Hospital immediately after she was injured at work on March 16,
2007.
(R. 173.)
At the hospital, doctors x-rayed Plaintiff,
prescribed her Motrin, and discharged her the same day.
(R.
173.)
On May 10, 2007, a magnetic resonance imaging (“MRI”)
of
Plaintiff’s
“[a]cromion
right
impingement
shoulder
on
the
and
cervical
supraspinatus
spine
showed
muscle”
and
“[i]ncreased signal in the supraspinatus tendon consistent with
5
a tendinopathy,” and “a subligamentous posterior disc herniation
at C6-7.”
(R. 130-31.)
Plaintiff
saw
Dr.
Robert
Michaels,
M.D.
of
Western
Nassau Orthopaedic Association on May 25, 2007 and complained of
difficulty
using
her
right
shoulder,
numbness
radiating down the right arm, and night pain.
and
tingling
(R. 164, 171.)
Upon physical examination, Dr. Michaels indicated that Plaintiff
had a “weakly positive impingement sign, mild restriction in
forward elevation and internal rotation, but other motions are
full.”
(R. 164.)
After taking x-rays, Dr. Michaels ruled out
fracture, dislocation, or osseous pathology, but indicated that
the
x-ray
did
show
Type
II
acromial
morphology.
(R.
164.)
Referring to Plaintiff’s MRI report, Dr. Michaels repeated that
Plaintiff
some
had
“acromial
tendinopathy,
diagnosed
her
impingement,”
but
with
and
impingement
there
is
“[r]ight
no
of
the
tear.”
shoulder
“[p]ossible
supraspinatus
cervical
(R.
164.)
and
He
derangement
with
radiculopathy,”
and
injected her right shoulder with Depo-Medrol and Carbocaine for
therapeutic and diagnostic purposes.
(R. 164.)
it
Plaintiff
was
Dr.
Michaels’
opinion
that
disabled from returning to her occupation.
At that time,
was
completely
(R. 164.)
Dr. Michaels reported in July of 2007 that Plaintiff’s
shoulder pain had lessened owing to the May injections, but that
she now complains of pain extending from the clavicle to the
6
anterior chest wall with occasional numbness and tingling down
the arm, exacerbated by neck motion.
(R. 165.)
Dr. Michaels’
diagnosis remained the same, and he indicated that her symptoms
were likely coming from the neck.
(R. 165.)
Her shoulder pain
returned in August 2007 and Dr. Michaels gave her another DepoMedrol
injection
and
ordered
an
Electromyography
(“EMG”)
to
determine whether shoulder arthroscopy would have any potential
benefit.
(R. 166.)
The EMG showed no evidence of cervical radiculopathy,
and in February 2008, Plaintiff had no rotator cuff weakness.
(R. 166.)
At that time, Dr. Michaels reported that some of
Plaintiff’s pain continued after the injections and her physical
examinations showed mild restriction in motion and discomfort
elicited from supraspinatus testing.
a
right
shoulder
arthroscopy,
(R. 166.)
He recommended
decompression,
a
Mumford
procedure, and possible rotator cuff repair. (R. 167.)
Dr.
Michaels referred Plaintiff to Dr. Peter Langan, M.D. for these
procedures. (R. 168.)
Plaintiff underwent a right shoulder arthroscopy with
decompression on March 17, 2009 with Dr. Langan.
post-operative
partial
diagnosis
thickness
tear
revealed
that
of
rotator
tendinitis, and impingement.
the
(R. 149.)
7
(R. 134.)
Plaintiff
cuff,
had
a
rotator
His
small
cuff
In
his
examinations
after
the
surgery,
Dr.
Langan
indicated a good early range of motion and started Plaintiff on
physical therapy.
(R. 169.)
On April 27, 2009, he indicated
that Plaintiff could easily abduct her arm to ninety degrees but
should stop doing so out of his presence and continue to wear a
sling.
(R. 169.)
During that visit Plaintiff reported that she
had some tearing when lifting her arm, but after x-raying her,
Dr. Langan found no dislodgement or evidence of distraction in
the area that bothered her.
By
May
2009,
(R. 169.)
Dr.
Langan
thought
Plaintiff
could
continue therapy with unlimited range of motion, and on June 4,
2009 he reported that she could return to work.
Meanwhile,
chiropractor.
Plaintiff
also
sought
(R. 169-70.)
the
care
of
a
She first saw Dr. Raymond Jaghab, a chiropractor
for West Hempstead Neck and Spinal Chiropractic Office, in March
2007 complaining of an injury to her neck, right shoulder, right
groin, lower back, right foot, and right hip.
(R. 173.)
The
record shows that Dr. Jaghab treated Plaintiff regularly between
October 2008 and September 2009.
visits,
Dr.
Jaghab
adjunctive therapy.
performed
(R. 173-96.)
manual
(R. 175-96.)
spinal
During these
manipulation
and
In his progress reports, Dr.
Jaghab never indicated the level at which Plaintiff was impaired
or described any work restrictions she might have aside from
noting that between October 2008 and December 2008 Plaintiff
8
would have no work restrictions.
(R. 175-96.)
He diagnosed
Plaintiff with “multiple cervical vertebra subluxation, cervical
radiculitis, thoracic sprain/strain, and lumbar sprain/strain.”
(R. 173.)
In
October
2008,
and
again
in
February
2009,
Dr.
Jaghab referred Plaintiff to chiropractor Dr. Mark Soffer for a
voltage-actuated sensory nerve conduction threshold (“V-sNCT”)
test
in
order
complaints.
to
evaluate
Plaintiff’s
study
238.)
(R.
and
The
October
cervical
hypoesthesia”
in
the
nerve
C7
sites
Right/Radial
Plaintiff’s
2008
and
Nerve
subjective
V-sNCT
detected
Med.
tested
“marked
Branch
and
“severe-very severe hypoesthesia” in the C8 Left/Ulnar Nerve,
supporting
an
radiculopathy.
Plaintiff’s
electrophysiological
(R. 233.)
lumbar
hypoesthesia”
at
of
cervical
The February 4, 2008 V-sNCT tested
nerve
the
diagnosis
sites
L3
and
detected
Right/Femoral
“very
severe
Cutaneous
Nerve,
supporting a clinical diagnosis of lumbar radiculopathy.
236.)
(R.
After both V-sNCT tests, Dr. Soffer indicated that the
“findings
objectively
document
described by the patient.”
the
sensory
symptomotology
(R. 233, 236.)
In September 2009, Plaintiff had a consultation with
internist Dr. Tonuca Basu, at which time Plaintiff complained of
painful
headaches,
neck
pain, and low-back pain.
pain,
mid-back
(R. 265.)
9
pain,
right
shoulder
On examination, Dr. Basu
reported
that
cervical
Plaintiff
spine
with
had
fifty
normal
ranges
motion
extension,
degrees
of
sixty
in
her
degrees
rotation, and thirty degrees lateral bend, and showed “moderate
spasm
of
bilateral
palpitation
of
paraspinals”
paraspinals.”
and
(R.
“moderate
267.)
tenderness
Additionally,
to
the
Plaintiff had restricted range of motion in the lumbar spine
with ten degrees extension, twenty degrees rotation, and twenty
degrees lateral bend, and showed “moderate spasms of bilateral
paralumbar musculature” and “moderate tenderness to palpitation
of paralumbar musculature.”
(R. 267-68.)
Dr. Basu noted that
Plaintiff’s shoulder ranges of motion and her motor testing were
normal.
(R. 268.)
Her clinical impression was that Plaintiff
had cervicocranial syndrome, lumbosacral sprain, neck sprain,
right
shoulder
internal
derangement,
and
traumatic
ligamentous injuries to the thoracic spines.
Musculo-
(R. 270-71.)
She
recommended that Plaintiff undergo conservative physical therapy
and get chiropractic and acupuncture consultations.
Dr.
Basu’s
prognosis
did
not
rule
out
the
(R. 271.)
possibility
that
Plaintiff’s condition could become chronic and indicated that
there are significant functional limitations to the neck and
back.
(R. 272.)
She recommended x-rays to rule out fractures
and indicated that an EMG/NCV of the upper extremities would be
referred if the neuropathy pain and weakness continued.
271.)
10
(R.
On
Stiler,
a
8,
2009,
neurologist
complained
of
extremities.
sensory
October
neck
at
nerve,
and
electrodiagnostic
Premier
pain
(R. 213.)
Plaintiff
with
met
with
radiation
Igor
Service,
Neuromed
Dr.
and
into
the
upper
Plaintiff underwent EMG, motor nerve,
FWave/HReflex
results
tests.
indicated
(R.
“evidence
273-74.)
of
radiculopathy and a bilateral median neuropathy.”
a
right
The
C8
(R. 274.)
MRIs of Plaintiff’s lumbar and cervical spines taken
on October 3, 2009 and October 30, 2009, respectively, indicated
“[d]iffuse bulging with superimposed posterior protruded disc
herniation
L5-S1
posterior
annular
level
with
fibers
associated
at
this
annular
level”
and
tear
of
the
“[p]osterior
protruded disc herniation C4-C5, C5-C6, and C6-C7 levels” and
“[a]nterior protruded disc herniations with adjacent spondylitic
change C5-C6 and C6-C7 levels and tonsillar ectopia noted.”
(R.
199-202.)
On
November
5,
2009,
Dr.
Elliot
Strauss,
a
chiropractor at Hempstead Family Chiropractic Group, filled out
a disability certificate for Plaintiff, certifying that she was
totally
disabled
due
to
the
injuries
she
sustained
in
her
accident at work and was unable to work beginning November 4,
2009.3
(R. 264.)
The record lacks any reports by Dr. Strauss indicating
examinations of the Plaintiff prior to this November 5, 2009
11
III. Medical Evidence After The Alleged Onset Date
On the referral of Dr. Strauss, Plaintiff returned to
Dr. Soffer for another V-sNCT test of her cervical spinal nerve
roots on November 5, 2009.
(R. 241.)
Her test results were
normal (R. 242) and on December 2, 2009 Dr. Soffer confirmed her
diagnosis of cervical radiculopathy.
(R. 243.)
Plaintiff had a
second V-sNCT test of her lumbrosacral nerve roots on January
12,
2010,
tested”
detecting
supporting
radiculopathy.
“findings
(R.
Hypoesthesia
an
at
“five
electrophysiologic
246.)
objectively
He
once
document
described by the patient.”
of
diagnosis
again
the
fourteen
of
lumbar
that
noted
sensory
sites
these
symptomology
(R. 246.)
On February 4, 2010, Dr. Peter Stefanides performed a
consultative examination of Plaintiff on the referral of the
Division of Disability Determinations.
(R. 207-10.)
At the
time, Plaintiff complained of lower back pain ranging from a 610/10
in
aggravated
lifting.
severity,
by
which
prolonged
(R. 207.)
radiated
into
standing/walking,
her
legs
bending,
and
and
was
heavy
She also reported neck pain at an average
certification of disability.
He is, however, listed as the
referring physician for her October 2009 MRIs. (R. 199.) Some
of his reports for examinations are dated October 19, 2009;
however, these reports refer to the November 5, 2009 finding of
disability, indicating that they reflect examinations after that
date (296-309).
The Court has thus interpreted Dr. Strauss’
reports to reflect examinations on dates consistent with the
“date of examination” listed therein.
12
of 8/10 in severity, ongoing headaches, and right sided foot
pain
at
a
10/10
severity,
aggravated
by
prolonged standing, and climbing up stairs.
prolonged
walking,
(R. 207-08.)
Dr.
Stefanides reported that she appeared to be in no acute distress
and could walk on her heels and toes without difficulty.
208.)
(R.
He also reported that Plaintiff had a “full range of
[motion in her] shoulders bilaterally,” no joint inflammation,
effusion, or instability, and 5/5 strength in the proximal and
distal muscles.
had
seventy
twenty
(R. 209.)
degrees
degrees
of
of
He determined that her lumbar spine
flexion,
lateral
five
bending,
degrees
and
of
twenty
extension,
degrees
of
lumbosacral rotation bilaterally, and that her cervical spine
had
thirty
rotation
degrees
bilaterally,
bilaterally.
of
flexion/extension,
and
(R. 208-09.)
thirty
degrees
sixty
of
degrees
lateral
of
bending
He found a full range of motion of
the knees, hips, and ankles bilaterally, and “right sided ankle
pain with passive range of motion.”
(R. 209.)
His diagnosis
was “[o]ngoing lower back, right hip, neck and right foot pain,”
and he indicated that Plaintiff’s prognosis is guarded.
209.)
with
(R.
He also noted that “[t]he claimant has mild restrictions
prolonged
standing,
walking,
climbing up stairs and neck twisting.”
bending,
heavy
lifting,
(R. 209.)
On March 3, 2010, Dr. M. Pagan completed a Physical
Residual Functional Capacity Assessment for the Social Security
13
Administration to determine Plaintiff’s physical limitations or
restrictions.
(R. 225-30.)
Dr. Pagan reviewed the evidence
related to Plaintiff’s disability for the period of December 15,
2009
through
diagnoses
March
to
tendinopathy.
be
3,
2010
cervical
(R.
211-16)
disk
disease
and
and
reported
left
her
shoulder
(R. 225-30.) He reported that Plaintiff could
4
occasionally lift and/or carry twenty pounds, could frequently
lift and/or carry ten pounds, and could stand, walk, or sit for
about
six
reported
hours
no
in
an
postural
eight-hour
limitations
stooping, kneeling, or crouching.
“non-specific”
alleged
when
symptoms
impairments
consistent
and
with
prompted
are
In
addition,
from
February
discuss
the
or
diagnosed
Plaintiff
Plaintiff
with
He
stairs,
Dr. Pagan answered
whether
of
other
the
claimant’s
determinable
symptoms
medical
or
is
non-
(R. 228.)
was
through
under
November
chiropractic care and physical therapy.
He
226.)
climbing
medically
severity
impairments
2010
to
(R.
as
(R. 227.)
attributable
whether
these
such
to
medical evidence of disability.
Strauss
workday.
cervical
the
care
2010,
of
Dr.
receiving
(R. 254-59, 275-308.)
radiculopathy,
thoracic
myalgia, and lumbrosacral radiculopathy based on positive MRIs
of her lumbar and cervical spines.
(R. 275-76.)
Dr. Strauss’
As Plaintiff’s claim has thus far only referred to symptoms in
her right shoulder, the Court understands this diagnosis to be
for Plaintiff’s right shoulder.
14
4
regular examinations between March 1, 2010 and July 6, 2010
indicate that at the time of examination Plaintiff had 100%
temporary impairment, was not working, and was unable to return
to work.
(R. 275-90.)
One report dated both July 19, 2010 and
July 27, 2010 notes that Plaintiff was 50% impaired, working,
and able to work without restrictions beginning July 5, 2010
contradicting
Strauss’
his
reports
July
6,
dated
2010
report.
September
7
(R.
and
291-92.)
September
17,
Dr.
2010
indicate that Plaintiff was 100% impaired, yet working with no
restrictions.
(R. 295-96.)
In his most recent reports between
September 20, 2010 and November 30, 2010, Dr. Strauss stated
that
Plaintiff
was
restrictions noted.
50%
impaired
and
yet
working
with
no
(R. 297-304, 306-09.)
On September 8, 2010, Plaintiff returned to Dr. Langan
complaining of continued pain in her right shoulder.
(R. 305.)
He gave her Marcaine and Depo-Medrol injections, indicating that
insufficient improvement may show the need for another MRI.
305.)
(R.
Plaintiff returned to Dr. Langan on November 24, 2010
with ongoing pain on the right side, which he believed to be
cervical radiculitis.
(R. 305.)
He suggested that she consider
disc decompression before going to pain management.
(R. 305.)
On December 9, 2010, Dr. Langan completed a Doctor’s
Narrative Report for the Workers Compensation Board concerning
Plaintiff’s diagnosis.
(R. 310-11.)
15
He listed his diagnosis as
“unspecified D/O of Tendon Shoulder” and “rotator cuff strain”
and opined that her temporary impairment was 50%.
(R. 311.)
On
December 22, 2010, he completed an RFC questionnaire for the
purposes of Plaintiff’s disability claim based on his treatment
of
her
right
shoulder.
(R.
312.)
He
indicated
that
her
impairment has not lasted and cannot be expected to last at
least twelve months, that she can frequently lift six to ten
pounds,
that
she
can
lift
a
maximum
of
twenty-one
to
fifty
pounds, and that she can stand, sit, or walk for up to six hours
in an eight-hour workday.
could
stoop,
crouch,
(R. 314.)
kneel,
bend,
He indicated that she
climb,
or
occasionally, up to 1/3 of an eight-hour workday.
balance
(R. 314.)
only
He
also indicated Plaintiff’s trouble turning her head due to her
disk herniation (R. 314) and noted that Plaintiff had trouble
performing
pushing,
functions
or
pulling
such
as
with
stretching,
her
right
reaching,
arm
due
to
grasping,
cervical
radiculopathy and trouble with fine manipulations with the right
hand (R. 315).
He noted that Plaintiff could walk ten blocks
without stopping and can travel alone by bus or subway, but
opined that Plaintiff has to lie down during the day to take
pressure off her foot.
(R. 315.)
Plaintiff then saw Dr. David R. Adin, D.O. on December
21,
2010
complaining
with
of
a
chief
right
complaint
upper
of
extremity
16
neck
pain
pain
and
and
also
neurological
symptoms,
pain.
low-back
(R. 317.)
pain,
and
right
and
left
lower
extremity
He found “[o]blique extension-based pain is
positive to the right, positive to the left and moderate to
severe,” “[m]yofascial trigger points to the bilateral cervical
paraspinal and bilateral periscapular,” and “myofascial trigger
points to the bilateral lumbar paraspinal muscles.”
His
diagnosis
spine,
was
cervical
myofascial
HNP,
lumbar
pain
syndrome
herniated
in
nucleus
myofascial pain syndrome in the lumbar spine.
diagnostic/therapeutic
epidural
and cervical interlaminar esi.
IV.
steroid
(R. 318.)
the
cervical
pulposus,
and
He recommended
injection:
caudal
esi
(R. 319.)
Decision by the ALJ
After reviewing all of the above evidence, the ALJ
issued his decision on February 11, 2011, finding that Plaintiff
was not disabled.
The
(R. 10, 19.)
ALJ
gave
little
weight
to
chiropractor
Dr.
Strauss’ opinion, finding that it is not in accord with the
clinical evidence of record, and also noting that a chiropractor
falls
under
the
category
of
“other
regulations of 20 C.F.R. § 404.1513.
treating
(R. 17.)
source”
by
the
The ALJ gave
weight to Dr. Langan’s functional assessment only as it was
consistent with the overall medical evidence of record, and gave
“little,
if
any,
weight”
to
Dr.
Langan’s
statement
that
Plaintiff needs to lie down during the day, as it “is in no way
17
supported by the record.”
(R. 17.)
The ALJ afforded weight to
Dr. Stephanides’ finding of no disability and his finding that
Plaintiff can engage in at least sedentary work with only “mild
restrictions,”
medical
“as
evidence
findings.”
his
of
(R.
conclusions
record
18-19.)
as
The
are
well
ALJ
as
in
accord
with
the
his
own
examination
commented
that
Dr.
Adin’s
findings of decreased range of cervical motion, cervical spasm,
and decreased range of lumbar motion were “pertinent,” but that
the doctor failed to note findings preclusive of work.
The
ALJ
did
not
discuss
the
treatment
and
(R. 17.)
findings
of
Dr.
Michaels or Dr. Jaghab, and did not mention the results of the
V-sNCT
tests
in
his
decision.
With
respect
to
Plaintiff’s
complaints of injury to her neck, right shoulder, and back, the
ALJ
found
that
while
her
“medically
determinable
impairments
could reasonably be expected to cause the alleged symptoms[,]
. . .
the
persistence
claimant’s
and
statements
limiting
effects
concerning
of
these
the
intensity,
symptoms
are
not
credible to the extent they are inconsistent with [her] residual
functional capacity assessment.”
(R. 18.)
The ALJ found that although Plaintiff is unable to
perform any past relevant work, considering her age, education,
work
experience,
and
residual
functional
capacity,
there
are
jobs that exist in significant numbers in the national economy
that Plaintiff can perform.
(R. 18.)
18
He based this conclusion
on his finding of Plaintiff’s residual functional capacity for
the “full range of sedentary work.”
(R. 19.)
After the ALJ issued his decision, Plaintiff requested
review by the Appeals Council.
submitted
gainful
evidence
activity
evidence
quarter
$3,097
new
to
revealed
of
in
monthly.
2010,
the
relating
the
that
Appeals
Plaintiff
$3,690
first
At that time, the Commissioner
in
to
Plaintiff’s
Council
earned
for
review.
That
$3,229
in
the
of
2010,
the
quarter
substantial
fourth
quarter
of
2011,
averaging
over
third
and
$1,000
(R. 1-2, 326-27.)
The Appeals Council considered Plaintiff’s reasons for
disagreeing
with
information
did
decision.
the
not
ALJ’s
provide
(R. 1-2.)
decision
a
basis
and
for
determined
changing
that
the
the
ALJ’s
Additionally, the Appeals Council found
that Plaintiff’s continuing employment qualifies at substantial
gainful employment.
(R. 2.)
DISCUSSION
I.
Standard of Review
In reviewing the ruling of the ALJ, this Court will
not determine de novo whether Plaintiff is entitled to SSI or
DIB.
Thus, even if the Court may have reached a different
decision, it must not substitute its own judgment for that of
the ALJ.
See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
Instead, this Court must determine whether the ALJ’s findings
19
are supported by “substantial evidence in the record as a whole
or are based on an erroneous legal standard.”
Curry v. Apfel,
209 F.3d 117, 122 (2d Cir. 2000) (internal quotations marks and
citation omitted), superseded by statute on other grounds, 20
C.F.R. § 404.1560.
Where the ALJ has applied incorrect legal
principles in evaluating the evidence, the Court may refuse to
uphold the Commissioner’s decision.
F.2d 23, 27 (2d Cir. 1979).
evidence
exists
decision
will
exists.
See
to
be
If the Court finds that substantial
support
upheld,
Johnson
v.
See Marcus v. Califano, 615
the
even
Commissioner's
if
evidence
Barnhart,
269
F.
decision,
to
the
Supp.
the
contrary
2d
82,
84
(E.D.N.Y. 2003).
“Substantial evidence is such evidence that a
reasonable
might
mind
conclusion.”
accept
as
adequate
to
support
a
Id. (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)).
The substantial
evidence test applies not only to the ALJ’s findings of fact,
but also to any inferences and conclusions of law drawn from
such facts.
See id.
To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including
contradictory
evidence
and
conflicting inferences can be drawn.”
F.3d
59,
62
(2d
citation omitted).
Cir.
1999)
evidence
from
which
See Brown v. Apfel, 174
(internal
quotation
marks
and
New evidence that relates to the period on
20
or before the ALJ’s decision and is submitted to and evaluated
by the Appeals Council is part of the administrative record for
judicial review.
1996).
See Perez v. Chater, 77 F.3d 41, 45 (2d Cir.
“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . . .”
II.
42 U.S.C. § 405(g).
Eligibility for Benefits
To
be
eligible
for
DIB,
a
claimant
who
is
a
U.S.
citizen must be insured for disability benefits at the time of
the alleged disability onset, must not have reached the age of
retirement,
must
file
for
disability
insurance
benefits,
and
must be disabled within the meaning of the Social Security Act
(“the Act”).
See 42 U.S.C. § 423(a)(1).
benefits,
individual
resource
an
requirement
of
must
the
meet
Act
within the meaning of the Act.
To be eligible for SSI
the
and
specified
must
have
a
income
and
disability
See 42 U.S.C. § 1381a.
The
Plaintiff’s disability is the only component contested in the
present case; as such the Court will only address the issue of
whether the Plaintiff is disabled.
A claimant is disabled under the Act when she can show
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 twelve months.”
21
42 U.S.C.
§ 1382c(a)(3)(A).
The claimant's impairment must be of “such
severity that he is not only unable to do his previous work but
cannot,
engage
considering
in
any
his
other
age,
kind
education,
of
and
substantial
exists in the national economy . . . .”
work
gainful
experience,
work
which
Id. § 1382c(a)(3)(B).
“Under the governing regulations, the duration requirement to
establish disability will not be met where a claimant undertakes
substantial gainful activity within 12 months after the onset of
the
impairment
determination
at
or
issue
and
decision
before
finding
receiving
any
disability.”
notice
of
Rainero
v.
Astrue, No. 08-CV-4266, 2011 WL 1327700, at *1 (E.D.N.Y. Mar.
31, 2011) (internal quotation marks and citations omitted).
The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the
Act.
See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982);
Petrie v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011).
the
claimant
activity.”
(a)(4)(i).
must
not
be
engaged
in
“substantial
First,
gainful
20 C.F.R. § 404.1520(a)(4)(i); 20 C.F.R. § 416.920
Second,
the
claimant
must
prove
that
he
or
she
suffers from a severe impairment that significantly limits his
or her mental or physical ability to do basic work activities.
Id. § 416.920(a)(4)(ii).
Third, the claimant must show that his
or her impairment is equivalent to one of the impairments listed
in Appendix 1 of the Regulations.
22
Id. § 416.920(a)(4)(iii).
Fourth, if his or her impairment or its equivalent is not listed
in the Appendix, the claimant must show that he or she does not
have the residual functional capacity to perform tasks required
in his or her previous employment.
Id. § 416.920(a)(4)(iv).
Fifth, if the claimant successfully makes these showings, the
Commissioner must determine if there is any other work within
the national economy that the claimant is able to perform.
§ 416.920(a)(4)(v).
Id.
The claimant has the burden of proving the
first four steps of the analysis, while the Commissioner carries
the burden of proof for the last step.
See Rosa v. Callahan,
168 F.3d 72, 77 (2d Cir. 1999); Poupore v. Astrue, 566 F.3d 303,
306 (2d Cir. 2009).
The five-step analysis is sequential, and
“if an individual is found to be disabled (or not) at any step,
the Commissioner is not required to proceed to the next step.”
Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000).
“In making
the required determinations, the Commissioner must consider: (1)
the objective medical facts; (2) the medical opinions of the
examining or treating physicians; (3) the subjective evidence of
the
claimant's
the
claimant's
educational background, age, and work experience.”
Boryk v.
Barnhart,
(E.D.N.Y.
No.
symptoms
02–CV–2465,
.
.
.
2003
;
WL
and
(4)
22170596,
at
*8
Sept. 17, 2003).
In
analysis
and
the
present
first
found
case,
that
the
ALJ
Plaintiff
23
performed
had
not
the
above
engaged
in
substantial
gainful
activity
since
the
alleged
onset
date,
although her earnings were just barely under the threshold.
15.)
(R.
He then found that Plaintiff has severe cervical, right
shoulder,
and
determined
lumbar
that
impairments.
neither
the
(R.
15.)
Plaintiff’s
The
ALJ
impairments
next
nor
a
medical equivalent was among those enumerated in Appendix 1 and
then
preceded
residual
to
functional
security guard.
was
determine
not
capable
capacity
(R. 15.)
of
whether
to
Plaintiff
perform
her
retained
past
work
the
as
a
The ALJ found that although Plaintiff
performing
her
past
work,
she
had
residual functional capacity to perform sedentary work.
the
(R. 15-
18.)
The Court must determine whether the ALJ’s decision is
based
on
the
correct
legal
principles
and
supported
by
substantial evidence.
III. Substantial Gainful Activity
The primary consideration when determining whether a
plaintiff
is
engaged
in
substantial
earnings derived from work activity.
gainful
activity
is
the
42 U.S.C. § 404.1574.
The
threshold level of earnings to show substantial gainful activity
for 2010, the time of Plaintiff’s ALJ hearing, was $1,000 per
month.
See
Substantial
Gainful
http://www.ssa.gov/oact/cola/sga.html
2013).
Activity,
SOC.
(last
visited
SEC.
ADMIN.,
June
24,
Earnings in excess of this minimum raise the presumption
24
that a Plaintiff is not disabled within the meaning of the Act.
See Storyk v. Sec’y of Health, Educ., & Welfare, 462 F. Supp.
152, 157-58 (S.D.N.Y. 1978).
The Plaintiff bears the burden of
establishing that despite surpassing the established level of
earnings, she was not engaged in substantial gainful activity.
See
Figueroa-Plumey
v.
Astrue,
764
F.
Supp.
2d
646,
650
work
(S.D.N.Y. 2011) (citing 20 C.F.R. § 404.1512(a)).
Courts
performed
earnings.”
nor
have
held
part-time
that
status
“[n]either
is
relevant
the
type
of
to
the
limit
on
Powers v. Apfel, No. 98-CV-4736, 1999 WL 493354, at
*3 (S.D.N.Y. July 12, 1999). 5
Factors that rebut a presumption
of ability to work at the substantial gainful activity level are
Plaintiff’s inability to perform work “satisfactorily without
more
supervision
or
assistance
than
is
given
other
people
performing similar work,” and Plaintiff’s need to work under
special conditions, which include but are not limited to:
(1) [being] required and receiv[ing] special
assistance
from
other
employees
in
performing your work;
(2) [being] allowed to work irregular hours
or take frequent rest periods;
In some instances, “sporadic” work activity has rebutted the
presumption of substantial gainful activity, but only when the
Plaintiff has shown that the work history is transitory or
nearly nonexistent.
See Storyk, 462 F. Supp. at 158 (“Working
only several months over a period of several years because of
severe pain and refusing permanent jobs because of that pain,
clearly rebut[s] the presumption raised under the regulation.”).
25
(3) [being] provided with special equipment
or were assigned work especially suited to
your impairment;
(4) [being] able to work only because of
specially
arranged
circumstances,
for
example, other persons helped you prepare
for or get to and from your work;
(5) [being] permitted to work at a lower
standard of productivity or efficiency than
other employees; or
(6) [being] given the opportunity to work
despite your impairment because of family
relationship, past association with your
employer, or your employer's concern for
your welfare.
20 C.F.R. § 404.1573(c).
Plaintiff
testified
at
the
ALJ
hearing
in
December
2010 that she had been working “twenty hours, sometimes 28” per
week, since July 2010 at a rate of $12.29 per hour.
Given
that
testimony,
the
ALJ
determined
that
(R. 29.)
Plaintiff’s
earnings were just below the threshold for substantial gainful
activity levels for 2010 and concluded that her work activity
did not rise to the level of substantial gainful activity.
(R.
15.)
The
new
evidence
submitted
to
the
Appeals
Council,
however, indicates that Plaintiff’s earnings were $3,229 for the
third quarter of 2010, $3,690 for the fourth quarter of 2010,
and $3,097 for the first quarter of 2011, averaging just over
$1,000
per
threshold
month
(R.
earnings
326)
level
and
to
therefore
determine
26
slightly
above
substantial
the
gainful
activity.
The Appeals Council specifically noted this evidence
and determined that Plaintiff’s “continuing employment qualifies
as substantial gainful employment . . . .”
(R. 2.)
“[W]hen, as
here, the Appeals Council denies review after considering new
evidence, [the] Court simply reviews the entire administrative
record, including the new evidence, and determines . . . whether
there is substantial evidence to support the decision of the
Commissioner.”
Sobolewski
v.
Apfel,
985
F.
Supp.
300,
311
(E.D.N.Y. 1997) (internal quotation marks and citation omitted).
The
evidence
to
Court
finds
support
the
here
that
there
Commissioner’s
is
substantial
decision.
Plaintiff
submitted no evidence to rebut the presumption that her earnings
are
sufficient
Plaintiff
to
testified
indicate
that
substantial
although
she
gainful
used
to
activity.
pick
up
the
belongings she searched in her job as a security guard, after
her injury she no longer picks up these items, but “just ask[s]
them to sit the bag on the table, open it, and move their
property around inside the bags” to avoid straining.
(R. 31.)
There is no other evidence in the record showing a change in
Plaintiff’s job performance after her alleged onset date.
fact,
in
Plaintiff’s
disability
report,
she
indicated
In
that
although her injuries caused her to work fewer hours, they did
not cause her to change job duties.
indication
in
the
record
that
27
this
(R. 96.)
minor
There is no
change
in
job
performance
is
suggestive
of
an
inability
to
perform
satisfactorily, and Plaintiff has made no showing that she works
under any special conditions, including those specified in 20
C.R.F. § 404.1573.
Furthermore,
2009,
but
the
new
Plaintiff’s
evidence
onset
date
demonstrates
is
November
that
she
4,
was
substantially gainfully employed beginning in the third quarter
of
2010.
Accordingly,
she
was
not
unable
to
engage
in
substantial gainful activity for a continuous period of twelve
months, as required.
See Nappa v. Sec’y of U.S. Dep’t of Health
& Human Servs., 731 F. Supp. 579, 585 (E.D.N.Y. 1990) (“[S]ince
[plaintiff’s] substantial gainful activity was undertaken before
the lapse of twelve continuous months from the onset of her
injury, she is not entitled to disability benefits.”).
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
28
CONCLUSION
For
the
foregoing
reasons,
Defendant’s
motion
for
judgment on the pleadings is GRANTED, and the final decision of
the
Commissioner
is
AFFIRMED.
Accordingly,
Plaintiff’s
Complaint is DISMISSED.
The Clerk of the Court is directed to send a copy of
this Memorandum and Order to pro se Plaintiff and mark this
matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
August
16 , 2013
Central Islip, NY
29
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