Cordero v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: For the reasons set forth in the Opinion And Order, the defendant's November 11, 2013 motion for judgment on the pleadings is granted. The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 4/29/2014) Copies Mailed To Plaintiff, S.C. By Chambers. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
S.C.,
:
Plaintiff,
:
:
-v:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security :
Defendant.
:
:
----------------------------------------X
APPEARANCES

12 Civ. 9153 (DLC)
OPINION AND ORDER

For the Plaintiff:
S.C., pro se
For the Defendant:
Susan D. Baird
Assistant U.S. Attorney for the Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007

DENISE COTE, District Judge:
Plaintiff S.C. brings this action, seeking review of an
order of the Commissioner of Social Security (“Commissioner”)
that denied S.C.’s application for Supplemental Security Income
(“SSI”) benefits and disability benefits under the Social
Security Act (“the Act”).

S.C. initially applied for such

benefits on September 27, 2010.

He claimed that he became

disabled as of January 20, 2009 due to human immunodeficiency
1

virus (“HIV”), herpes, and syphilis.
denied, S.C. requested an ALJ hearing.

After his application was
The hearing took place

on September 9, 2011, before Administrative Law Judge Robert C.
Dorf (“ALJ”).

On December 5, 2011, the ALJ found that S.C. did

not qualify for the benefits because, despite his medical
conditions, he was capable of performing his past relevant work.
S.C. then filed a request for review of the ALJ’s decision,
which was denied by the Appeals Board on October 9, 2012,
rendering the ALJ’s decision the final decision of the
Commissioner.

This petition followed.

S.C.’s complaint was filed on December 12, 2012.

The

matter was reassigned to this Court on February 5, 2013.

A July

11, 2013 Order of this Court set a deadline for any motions and
required the non-moving party to serve a responsive brief within
thirty days of any such motion.

After being granted various

extensions, the Commissioner moved for judgment on the pleadings
on November 11, 2013.

According to a certificate of service,

S.C. was served with the motion on January 7, 2014.

A January

8, 2014 Order, which was mailed to S.C., set a deadline for S.C.
to oppose the motion by February 14.
opposition brief.

S.C. failed to submit an

This Court has conducted an independent

review of the administrative record and has determined, for the
reasons that follow, that the petition for review lacks merit.

2

DISCUSSION
In reviewing the decision of the Commissioner, a district
court may “enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”

42 U.S.C. § 405(g).

A

court must uphold the Commissioner’s determination to deny
benefits unless it is unsupported by substantial evidence or is
based on an incorrect legal standard.
F.3d 409, 417 (2d Cir. 2013).

Selian v. Astrue, 708

Substantial evidence in this

context means “more than a mere scintilla.

It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Id. (citation omitted).

“[A]n ALJ’s

credibility determination is generally entitled to deference on
appeal.”

Id. at 420.

The Commissioner will find a claimant disabled under the
Act if the claimant demonstrates the “inability 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 that has lasted or can be expected to last
for a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

42 U.S.C.

The claimant’s impairment must be “of such

severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
3

engage in any other kind of substantial gainful work which
exists in the national economy.”

Id. § 423(d)(2)(A).

The

disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.”

Id.

§ 423(d)(3).
The Commissioner uses a five-step process when making
disability determinations.

See 20 C.F.R. §§ 404.1520 & 416.920.

The Second Circuit has described the process as follows:
First, the Commissioner considers whether the claimant
is currently engaged in substantial gainful activity.
If he is not, the Commissioner next considers whether
the claimant has a “severe impairment” which
significantly limits his physical or mental ability to
do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment,
the Commissioner will consider him [per se] disabled.
Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual
functional capacity to perform his past work.
Finally, if the claimant is unable to perform his past
work, the Commissioner then determines whether there
is other work which the claimant could perform.
Selian, 708 F.3d 417-18 (citation omitted).

A claimant bears

the burden of proof as to the first four steps, while the
Commissioner bears the burden in the final step.

Id. at 418.

The ALJ’s conclusions regarding each of the “five steps”
identified in the relevant SSA regulations and discussed in
Selian, 708 F.3d at 417-18, were supported by substantial
4

evidence.

The ALJ first concluded that S.C. was not engaged in

any substantial gainful activity, had not done so since the
alleged onset of his disability, and that his HIV could be
considered “severe” insofar as it “significantly limit[s] [his]
physical or mental ability to do basic work activities.”
C.F.R. § 416.921(b).

20

S.C. presumably does not challenge these

conclusions, which were in any event substantially supported by
the administrative record.
The ALJ also concluded that, while S.C.’s HIV could be
considered “severe,” it does not constitute a listed impairment
under 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ

considered the specific listing for HIV, Listing 14.08, but
concluded that S.C. does not meet the requirements for Listing
14.08 because his HIV is asymptomatic.

This finding was

supported by substantial evidence, including S.C.’s own
testimony.
Having reached the above conclusions, the ALJ then reviewed
the medical record to determine S.C.’s residual functional
capacity.

Based on a review of the medical evidence, the ALJ

found that S.C. has the capacity to perform “the full range of
light work,” as defined by Social Security regulations:
Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category
when it requires a good deal of walking or standing,
5

or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range
of light work, you must have the ability to do
substantially all of these activities. If someone can
do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to
sit for long periods of time.
20 C.F.R. § 416.927(b).
This finding was supported by substantial evidence in the
record including, inter alia, the approximately twenty medical
evaluations between January 2008 and August 2011.

These

evaluations indicated that S.C.’s HIV (the contraction of which
he discovered in 2001) was asymptomatic and that he responded
well to his HIV medications.

Moreover, at the ALJ hearing, S.C.

confirmed that he could walk a mile, lift and carry 25 to 30
pounds, bend down, comb his hair, and button his shirt.

He also

confirmed that he shops and cleans for himself.
The ALJ also considered S.C.’s claim that he suffered from
chronic stomach pain and diarrhea, that he had nausea and
vomited two or three times per week, that he must use the
bathroom five or six times before noon each day, and that has
had some opportunistic infections.

Based on a review of the

relevant medical records, the ALJ determined that S.C.’s
testimony regarding these limitations was not credible.
There is substantial evidence in the record to support this
adverse credibility determination.
6

Despite the considerable

number of medical evaluations in the record, spanning through
and before the onset date of the alleged gastro-intestinal
issues, there is almost no mention of these issues, and the
limited mentions suggest that any issues were minor and resolved
themselves.

Most significantly, multiple medical records post-

dating the alleged onset of his disability state that S.C.
expressly denied having diarrhea, nausea, or any related
symptoms.

Additionally, while the ALJ arranged for consultative

exams following the hearing -- which S.C. stated he would attend
-- S.C. failed to show up for these exams, even after multiple
attempts to reschedule them.
Having found that S.C. could perform “light work,” the ALJ
then considered whether S.C. could perform the requirements of
his past work.

Finding that S.C.’s past work was that of an

insurance administrator, the ALJ concluded that S.C. was capable
of performing this job because it requires only “light work.”
These findings were supported by substantial evidence.
Both the administrative record and S.C.’s own testimony
confirmed that he previously worked in an administrative
capacity at an insurance company.

Further, S.C.’s testimony

confirmed that this work consisted of generally sitting at a
desk for eight hours each day, and using computers and
telephones without lifting more than ten pounds.

This meets the

definition of “light work” under the SSA guidelines.
7

After an evaluation of the record, as well as the
Commissioner’s arguments, this Court finds that the ALJ’s
decision, which is entitled to deferential review, is supported
by substantial evidence.

Because S.C. has not opposed the

Commissioner’s motion for judgment on the pleadings, the Court
reviewed the complaint with particular care to identify any
specific flaws in the ALJ’s decision of which S.C. complains.
S.C.’s complaint does not identify any particular deficiency,
but rather simply states that the ALJ’s decision was “erroneous,
not supported by substantial evidence, and/or contrary to law.”
The only specific deficiency discernible from the record is the
one that S.C. raised at the hearing: that due to his alleged
gastro-intestinal issues, he was unable to perform the
administrative duties of his prior work.

The ALJ found that

S.C.’s testimony to this effect was not credible.

As explained

above, this finding is supported by substantial evidence and is
therefore entitled to deference.

8

CONCLUSION
The defendant’s November 11, 2013 motion for judgment on
the pleadings is granted.

The Clerk of Court shall close the

case.

SO ORDERED:
Dated:

New York, New York
April 29, 2014
____________________________
DENISE COTE
United States District Judge

9

COPIES MAILED TO:
S.C.
[address redacted]

10