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