Nunez v. Commissioner of Social Security
REPORT AND RECOMMENDATION TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE re: 15 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. For the foregoing reasons, I recommend that the defendants motion for judgment on the pleadings, Docket Entry No. 15, be granted. Pursuant to 28 U.S.C. 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. Suc h objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer, 40 Centre Street, Room 2201, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. Objections to R&R due by 8/5/2013. Respectfully submitted. (Signed by Magistrate Judge Kevin Nathaniel Fox on 7/18/2013) Copies Mailed By Chambers. (rsh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
: REPORT AND RECOMMENDATION
11 Civ. 8519 (PAE) (KNF)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
Patria Nunez (“Nunez”) commenced this action pro se against the Commissioner of
Social Security (“Commissioner”), seeking review of an administrative law judge’s (“ALJ”)
decision finding her ineligible for disability insurance benefits (“DIB”), pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-434, and Supplemental Security Income (“SSI”)
payments, under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Before the
Court is the defendant’s unopposed motion for judgment on the pleadings, pursuant to Rule
12(c) of the Federal Rules of Civil Procedure.
Administrative Procedural History
On July 2, 2009, Nunez filed applications for DIB and SSI, alleging a period of disability
beginning on January 1, 2009. (Julio Infiesta Decl. Ex. 1, Tr. 66-68). Her applications were
denied on July 20, 2009. (Tr. 34). On October 26, 2010, plaintiff testified at a hearing before an
Administrative Law Judge (“ALJ”), without an attorney and with the aide of a Spanish language
interpreter. On October 29, 2010, the ALJ found that Nunez was not disabled because she
engaged in substantial gainful activity during her alleged period of disability. (Tr. 13-16). On
September 22, 2011, the Appeals Council denied Nunez’s request for a review of the ALJ’s
decision, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-3). This
Nunez was forty-three years old at the time of the hearing. (Tr. 24). She testified at the
October 26, 2010 hearing that she worked as a home attendant. (Tr. 27). Nunez stopped
working for three months, due to her emotional health problems, following her hospitalization in
June 2009, but returned to work after those three months. (Tr. 27-28). She continued seeing a
psychiatrist after the 2009 hospitalization. (Tr. 28-29). At the time of the hearing, Nunez was
working thirty-two hours per week as a home attendant, and was taking medication to control her
condition. (Tr. 28-29). Nunez was paid $9.50 per hour for her work. (Tr. 113, 121). Nunez
earned $12,150.53 in 2007, $11,639.58 in 2008, and $11,761.33 in 2009. (Tr. 76). According to
Nunez’s earning records, she was insured for disability insurance benefits based on the work
activity in each of these years. (Tr. 84-88, 93).
Nunez was admitted to the Columbia-Presbyterian Emergency Room, on June 2, 2009,
and was transferred to the New York Psychiatric Institute (“NYPI”). (Tr. 158). Dr. Sonya L.
Martin’s June 3, 2009 progress note indicates that Nunez was assessed with “Psychosis NOS, r/o
MDD with psychotic features” and prescribed medication. (Tr. 166). Nunez was discharged
from NYPI on June 26, 2009. (Tr. 162).
Nunez was treated by a psychiatrist, Dr. J.A. Amat (“Dr. Amat”), at the Inwood Clinic of
the Washington Heights Community Services, beginning on June 29, 2009. (Tr. 174, 176-77).
On July 1, 2009, Dr. Amat diagnosed Nunez with “psychosis NOS” and prescribed medication.
(Tr. 179). On July 14, 2009, Dr. Amat diagnosed Nunez with “psychosis, NOS, in partial
remission,” and prescribed medication. (Tr. 183). On July 23, 2009, Dr. Amat noted that Nunez
was “psychiatrically stable.” (Tr. 183). Nunez continued treatment through September 2009.
On September 17, 2009, Dr. Carol Wiener, a consultative psychologist, examined Nunez,
diagnosing her with “Depressive disorder NOS” and “Panic disorder with agoraphobia.” (Tr.
201). On that same date, a consultative physician, Dr. Benjamin Kropsky, conducted an internal
medicine examination of Nunez, diagnosing her with psychotic episodes, probable gastric reflux
disease and lumbar disk with lower back pain. (Tr. 205).
Dr. T. Harding, a state agency psychologist, reviewed the record on October 19, 2009,
and assessed Nunez’s functional abilities. (Tr. 208-30). He concluded that Nunez could perform
work involving simple tasks. (Tr. 230).
On October 15, 2010, Dr. Amat completed a functional assessment report for Nunez, in
which he noted her ability to assume increased mental demands associated with competitive
work. (Tr. 239). In the psychiatric report completed by Dr. Amat on October 15, 2010, he noted
that, since Nunez’s discharge on June 29, 2009, she had been “stable on meds,” and had a
positive response to medication. (Tr. 242). He assessed that Nunez had no limitations in
activities of daily living and opined that her limitations were mild in all categories of
functioning, except her ability to respond appropriately to co-workers and customary work
pressures and to perform simple and complex tasks on a sustained basis in a full-time work
setting. (Tr. 247-48). Dr. Amat stated that Nunez “has been able to do work half-time.” (Tr.
The ALJ’s Decision
On October 29, 2010, the ALJ rendered his decision. (Tr. 13-16). He stated that Nunez
alleged, in her Title II and Title XVI applications, that disability began on January 1, 2009. (Tr.
13). The ALJ found that Nunez engaged in substantial gainful activity from: (a) the alleged
onset disability date of January 1, 2009, through June 2009; and (b) October 2009, through the
date of the ALJ’s decision. (Tr. 15). The ALJ determined that Nunez worked as a home
attendant from July 1, 2008, until June 2009, and she earned $9.50 an hour. (Tr. 15). The ALJ
found that, at the time of the hearing, Nunez was working as a home attendant, and she only
stopped working for three months after being psychiatrically hospitalized in 2009, but returned
to work after that. (Tr. 15). The ALJ stated that Nunez engaged in substantial gainful activity
during her alleged period of disability and “is not disabled regardless of medical severity and
other considerations.” (Tr.16). The ALJ found that Nunez had not been disabled from January
1, 2009, through the date of the decision, because “[t]here has been no continuous 12-month
period during which [Nunez] has not engaged in substantial gainful activity.” (Tr. 16).
The defendant contends that substantial evidence supports the ALJ’s finding that Nunez
was working and performing substantial gainful activity, making her not disabled at step one of
the sequential evaluation. According to the defendant, that evidence includes Nunez’s
statements from her applications that she had worked as a home attendant “for eight hours a day,
five days a week through June 29, 2009.” It also includes her testimony that, at the time of the
hearing, she was working as a home attendant for thirty-two hours per week, and that she only
stopped working for the three months following her June 2009 hospitalization. The defendant
contends that Nunez confirmed that, despite her symptoms, she was able to work. He maintains
that the ALJ considered Nunez’s testimony and her hourly pay of $9.50, finding, properly, that
this constituted substantial gainful activity. Moreover, Nunez’s testimony is consistent with the
record evidence, showing that she returned to work as early as July 30, 2009. Nunez reported at
the consultative examination that she had been working, and she told Dr. Wiener, on October 17,
2009, that she was currently working part-time as a home attendant, that she worked about
twenty hours per week and had been doing that for about one month. Moreover, Dr. Amat
concluded in his report that Nunez had been able to work half-time.
The defendant contends that Nunez’s earnings are also consistent with the ALJ’s finding
that she was performing substantial gainful activity in 2009. Nunez testified she was paid $9.50
per hour for thirty-two hours per week, which would yield $304 in pay weekly, or approximately
$1,216 per month. According to the defendant, the monthly amount of countable earnings
indicating substantial gainful activity, in 2009, was $980 per month, which shows that Nunez
was earning more than the threshold amount for substantial gainful activity pursuant to the
Social Security Administration’s (“SSA”) regulations. Furthermore, Nunez’s earnings of
$11,761.33 for 2009, are also consistent with the ALJ’s finding because, notwithstanding the
period of three months when Nunez did not work in 2009, the average of her earnings over the
course of the year are sufficient to meet the threshold of $980 per month to constitute substantial
gainful activity in 2009.
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g).
A district court may set aside the Commissioner’s determination that a claimant is
not disabled only if the factual findings are not supported by “substantial evidence”
or if the decision is based on legal error. Substantial evidence “means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings ‘must be given conclusive effect’ so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (quoting
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)). “Failure to apply the correct legal
standard constitutes reversible error, including, in certain circumstances, failure to adhere to the
applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations
omitted). “It is not the function of a reviewing court to decide de novo whether a claimant was
disabled, or to answer in the first instance the inquiries posed by the five-step analysis set out in
the SSA regulations.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal citation
To qualify for disability benefits, an individual must be 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); see
42 U.S.C. § 1382c(a)(3)(A). “Substantial work activity is work activity that involves doing
significant physical or mental activities” and “work may be substantial even if it is done on a
part-time basis or if you do less, get paid less, or have less responsibility than when you worked
before.” 20 C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity is work activity that you
do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or
profit, whether or not a profit is realized.” 20 C.F.R. §§ 404.1572(b), 416.912(b). Generally, in
determining whether the claimant engaged in substantial gainful activity, the Commissioner
compares a claimant’s earnings from the work activity to the amounts prescribed in the
Commissioner’s regulations. See 20 C.F.R. §§ 404.1574-404.1575, 416.974-416.975. The SSA
regulations establish a five-step process for determining a disability claim. See 20 C.F.R. §§
If at any step a finding of disability or nondisability can be made, the SSA will not
review the claim further. At the first step, the agency will find nondisability unless,
the claimant shows that he is not working at a “substantial gainful activity.” At step
two, the SSA will find nondisability unless the claimant shows that he has a “severe
impairment,” defined as “any impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability to do basic work
activities.” At step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of impairments presumed
severe enough to render one disabled; if so, the claimant qualifies. If the claimant’s
impairment is not on the list, the inquiry proceeds to step four, at which the SSA
assesses whether the claimant can do his previous work; unless he shows that he
cannot, he is determined not to be disabled. If the claimant survives the fourth stage,
the fifth, and final, step requires the SSA to consider so-called “vocational factors”
(the claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy.
Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003) ( internal
The SSA regulations provide: “At the first step, we consider your work activity, if any, If you are
doing substantial gainful activity, we will find you are not disabled . . . regardless of your
medical condition or your age, education, and work experience.” 20 C.F.R. §§
404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b).
Application of Legal Standard
The ALJ applied the correct legal standard in finding that Nunez was not disabled
because that finding was made at the first step of the sequential analysis, and the ALJ did not
consider Nunez’s medical condition, her age, education or work experience, after he found that
she engaged in substantial gainful activity during the period of the alleged disability. The ALJ’s
decision is supported by substantial evidence. Nunez testified that the only time she did not
work as a home attendant was the three months following her June 2009 hospitalization, and
that, at the time of the hearing, she worked thirty-two hours weekly, earning $9.50 per hour. The
record evidence, including Nunez’s earnings of $11,761.33, in 2009, corroborates her testimony
and supports the ALJ’s finding that Nunez engaged in substantial gainful activity from the
alleged onset date of January 1, 2009, through June 2009, and from October 2009, through the
date of the decision. Since the ALJ applied the correct legal standard and his decision is
supported by substantial evidence, granting the defendant’s motion is warranted.
For the foregoing reasons, I recommend that the defendant’s motion for judgment on the
pleadings, Docket Entry No. 15, be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be
filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable
Paul A. Engelmayer, 40 Centre Street, Room 2201, New York, New York, 10007, and to the
chambers of the undersigned, 40 Centre Street Room 425, New York, New York, 10007. Any
requests for an extension of time for filing objections must be directed to Judge Engelmayer.
Failure to file objections within fourteen (14) days will result in a waiver ofobjections and
will preclude appellate review. See Thomas v. Am, 474 U.S. 140, 106 S. Ct. 466 (1985);
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
Dated: New York, New York
Copy mailed to:
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
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