D'Amato v. Apfel

Full title: LOUIS D'AMATO, Plaintiff v. KENNETH S. APFEL, Commissioner of Social…

Court: United States District Court, S.D. New York

Date published: Jul 10, 2001

00 Civ. 3048 (JSM) (S.D.N.Y. Jul. 10, 2001)

Opinion

00 Civ. 3048 (JSM)

July 10, 2001

Christopher James Bowles, Center for Disability Advocacy Rights ("CeDAR"), Inc., For Plaintiff.

Susan D. Baird, Assistant United States Attorney For Defendant.

MEMORANDUM OPINION AND ORDER

JOHN S. MARTIN, Jr., District Judge:

Louis D'Amato ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) for an Order and Judgment reversing a final determination of the Commissioner of Social Security (the "Commissioner") finding Plaintiff not disabled from March 24, 1995, through September 24, 1996, and denying Plaintiff's application, dated March 24, 1995, for Supplemental Security Income ("SSI") benefits under the Social Security Act (the "Act"). Both parties now move for judgment on the pleadings.¹ For the reasons set forth below, Plaintiff's motion is denied and the Commissioner's cross-motion is granted.

1 Pursuant to 42 U.S.C. § 405(g), the Commissioner has attached a certified copy of the record of the administrative proceedings to the Answer.

PROCEDURAL BACKGROUND

Plaintiff first applied for SSI benefits on March 24, 1995. The application was denied initially and on reconsideration. Plaintiff then requested and received a hearing before an administrative law judge. After the hearing, which was held on September 17, 1996, Administrative Law Judge Levin ("ALJ Levin") issued a decision finding that Plaintiff was not disabled within the meaning of the Act and therefore he was not entitled to SSI benefits. Plaintiff appealed ALJ Levin's decision and also filed a second application for disability benefits on September 25, 1996. The second claim was approved on December 1, 1997, and Plaintiff received SSI disability benefits retroactive to the second application date. By decision dated March 20, 1998, the Appeals Council vacated ALJ Levin's decision for failure to consider the opinion of Dr. Anastassios Charonis, one of Plaintiff's many treating physicians.

Prior to holding a second hearing, ALJ Levin contacted Plaintiff's counsel and offered to resolve the case by approving Plaintiff's 1995 application as of Plaintiff's 50th birthday, July 16, 1996. Plaintiff declined to amend his onset date, and his counsel requested that ALJ Levin recuse himself from the case. ALJ Levin declined to recuse himself, and a second hearing was held on November 11, 1998. On December 4, 1998, ALJ Levin rendered a decision and determined that Plaintiff was not disabled for the period between March 24, 1995 and September 24, 1996. The decision became the final decision of the Commissioner when the Appeals Council denied review on February 16, 2000. The only period at issue in this case is the eighteen-month period between March 24, 1995 and September 24, 1996.

FACTS

Plaintiff was born on July 16, 1946. He attended school through the ninth grade and has the ability to read and write English. He left school after the ninth grade and began working in heavy menial labor, primarily loading and unloading trucks. Plaintiff was most recently employed as a messenger/deliveryman for a florist in 1994. In this job, Plaintiff characterized a delivery of a dozen roses as typical. He currently lives in a small room at 340 Bowery in New York City, a building he describes as a "flop house."

Plaintiff has a history of alcohol abuse that is at least partly responsible for the adult onset of a seizure disorder. On October 11, 1994, Plaintiff was admitted to New York Downtown Hospital ("NYDH") after suffering two seizures. One of the seizures was a generalized tonic-clonic seizure² which was likely a result of alcohol consumption. Plaintiff was admitted to the hospital and stayed for two weeks during which time the hospital noted an unsteady gate and nystagmus.³ A scan of Plaintiff's head revealed a large low density region posterior to the cerebellum thought to possibly represent an arachnoid cyst with an adjacent craniectomy.⁴ After his hospitalization, Plaintiff stopped drinking and began treatment for his seizures, which consisted of taking the anti-convulsant medication Dilantin.

2 According to Plaintiff, a tonic-clonic seizure is characterized by the sudden onset of tonic contraction of the muscles often associated with a cry or moan, and frequently resulting in a fall to the ground.

3 According to Plaintiff, nystagmus is an involuntary movement of the eyeballs in a rotary, horizontal, or vertical direction, either spontaneously or in response to some stimulus. Nystagmus is a symptom, not a disease, and there are many different types of nystagmus.

4 The record does not indicate the relationship between these abnormalities and Plaintiff's walking difficulties.

After his discharge from the hospital, Plaintiff sought outpatient treatment at NYDH. Between January 11, 1995, and February 21, 1996, Plaintiff was examined on nine different occasions by several different doctors at NYDH. Although some reported that Plaintiff complained of decreased coordination when walking, all reported that Plaintiff's gait was within a normal range. Three of the reports noted nystagmus. On May 19, 1995, Dr. Peter Graham, an internist hired by the Social Security Administration, examined Plaintiff and listed his capabilities as being able to "sit, stand, walk, lift, carry, handle objects, hear, speak, and travel." (R. at 192.)

On February 28, 1996, Plaintiff was examined by a neurologist who noted nystagmus and a mild ataxic gait,⁵ but dysdiadochokinesis⁶ was not observed. On March 20, 1996, a second neurologist examined Plaintiff and found Plaintiff's gait to be "shaky" with a borderline tandem gait. Dysdiadochokinesis was not observed, but an MRI revealed extensive cerebellar encephalomalacia.⁷ A month later, yet another doctor noted a quasi-normal but somewhat unstable gait. On May 1, 1996, Plaintiff's neurology follow-up reported nystagmus and that his tandem gait was slightly off. The writer of the report suggested that a neuro-surgical consult would be considered if Plaintiff developed any new symptoms.

5 Ataxia is defined as the loss of the power to control movement or muscular action. See New Webster's Dictionary and Thesaurus 58 (Lexicon Publ'ns 1992).

6 According to Plaintiff, dysdiadochokinesis is an impairment of the ability to perform rapidly alternating movements.

7 The doctor who examined the MRI noted that Plaintiff most likely had Arnold-Chiari Malformation, a condition in which the cerebellum portion of the brain protrudes down into the spinal canal.

On May 2, 1996, Plaintiff had a second tonic-clonic convulsion and was admitted to Cabrini Medical Center;: His gait was assessed as normal and he had no sensory deficits, but he was rated as a "high risk" for falling. Plaintiff signed out of the hospital the following day.

Between June 12, 1996, and September 18, 1996, Plaintiff visited the NYDH for eleven more appointments. On several occasions, nystagmus was noted. Ataxia was noted on three occasions, but there were also notations of a gait within normal limits. On June 20, 1996, an examination of Plaintiff was performed by Dr. Anastassois Charonis, a first-year intern. Although Plaintiff's previous neurological examination records did not indicate dysdiadochokinesis, Dr. Charonis found "minor dysdiadochokinesia" during the examination. (R. at 282.) It appears that mild dysdiadochokinesia was reported during one other visit to NYDE on July 31, 1996. (R. at 439) It is not clear who examined Plaintiff on that date.

Dr. Brian Anziska testified as a medical expert at both of Plaintiff's hearings before ALJ Levin. He acknowledged that Plaintiff suffered from persistent coordination problems when walking which caused him to stagger at times. However, he did not believe that Plaintiff's condition rose to the level of a "listing-level" impairment⁸ because the neurological listings contained in the disability regulations required that an individual have "a great difficulty walking." (R. at 78.) Based on an examination of Plaintiff's file and his statement that he could carry an object weighing approximately twenty pounds without worrying about dropping the item, Dr. Anziska testified at both hearings that Plaintiff could perform certain light work. Dr. Anziska concluded that Plaintiff did not suffer from dysdiadochokinesia because the condition was noted only by Dr. Charonis, a first-year intern, and only three months before Dr. Charonis's diagnosis, a neurologist had reported that Plaintiff's test for dysdiadochokinesia was negative.

8 A listing-level impairment is one that is listed in the regulations promulgated under the Social Security Act. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If a claimant has a listinglevel impairment, the Commissioner presumes that the claimant is unable to perform substantial gainful activity. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).

A vocational expert, Dr. William Mooney, also testified at Plaintiff's 1996 hearing. Based on Plaintiff's age, education, work experiences, and medical conditions, Dr. Mooney opined that Plaintiff could perform a full range of sedentary work. When asked to assume that Plaintiff could stand for only thirty minutes before needing to sit for a short period, Dr. Mooney stated that an individual with such restrictions could function in a job involving in security. Dr. Mooney also testified that if Plaintiff could walk up to a mile at a time for six and a half hours with regular breaks, then Plaintiff could work as a messenger. Plaintiff now seeks a finding that he was disabled and eligible for disability benefits for the period of time from March 24, 1995 through September 24, 1996.

DISCUSSION

I. Scope of Review

In reviewing the Commissioner's decision to approve or deny SSI benefits, the Court will set aside the "decision only where it is based upon legal error or is not supported by substantial evidence" in the record. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); see also 42 U.S.C. § 405(g); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Thus, the Court must give conclusive effect to the Commissioner's determination that a person is not entitled to disability insurance benefits if it finds that the decision was supported by substantial evidence, even if there is also substantial evidence in favor of the plaintiff's position. See DeChirico v. Callahan, 134 F.3d 1177, (2d Cir. 1998).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Curry, 209, F.3d at 122 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427(1971)). A determination that the findings are supported by substantial evidence requires a review of the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn. See Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999).

The substantial evidence test also applies to inferences and conclusions drawn from findings of fact. See Cruz v. Callahan, No. 96 Civ. 9016, 1998 WL 142328, at *3 (S.D.N.Y. Mar. 27, 1998) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). Therefore, the Commissioner's findings of fact and the inferences and conclusions drawn from such findings of fact are conclusive, even if the reviewing court's analysis differs from the analysis of the Commissioner. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). "It is the function of the [Commissioner], not [the courts], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant."

Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citation omitted).

II. Statutory Requirements for Eligibility

To establish disability within the meaning of the Act, a claimant must prove: (1) that he unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment is demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. § 1382c(a)(3).

In evaluating a disability claim, the Commissioner is required to use the following five-step process as promulgated in 20 C.F.R. § 416.920:

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" [that] 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 . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform.

Curry, 209 F.3d at 122 (citations omitted); see also DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998). The burden of proof rests on Plaintiff to show that he is disabled as defined by the Act, but if he shows that he is unable to perform his past work, the burden of proof shifts to the Commissioner to prove that there is other work that the Plaintiff could perform.

III. Application of the Legal Standard

ALJ Levin evaluated Plaintiff's claim pursuant to the sequential evaluation regulations as stated above. He found that Plaintiff had epilepsy and gait ataxia with some balance problems, but that he did not have an impairment or combination of impairments that met or equaled an impairment listed in the Federal Regulations promulgated under the Act. ALJ Levin next found that Plaintiff retained the ability to perform a full range of light work, and that he therefore retained the ability to perform his past work as messenger or delivery man. Alternatively, at step five of the sequential evaluation, using the medical vocational rules as a framework for decision-making, ALJ Levin found that Plaintiff was not disabled even if he could not perform his past work because there were other jobs he could perform. ALJ Levin's findings were based on Plaintiff's medical records and his own testimony.

Plaintiff's principal arguments in this appeal are that the ALJ violated Plaintiff's right to an impartial hearing by offering to negotiate or settle Plaintiff's claim before holding a second hearing; the ALJ failed to provide any rationale to explain why he found the Plaintiff's testimony to be "not credible" in several key areas; and the ALJ's finding that Plaintiff could work as a messenger or an interior security guard is not supported by substantial evidence.

A. Plaintiff's Right to an Impartial Hearing

On August 26, 1998, after the Appeals Council vacated ALJ Levin's initial decision, ALJ Levin called Plaintiff's counsel and offered to resolve Plaintiff's claim by finding him disabled as of his 50th birthday on July 16, 1996, if Plaintiff would not pursue his disability claim for the time period from March 24, 1995 through July 15, 1996. Plaintiff's counsel objected to the ALJ's proposal and requested that ALJ Levin recuse himself, arguing that the offer was evidence that ALJ Levin had already made up his mind and therefore could not be impartial. ALJ Levin denied the recusal motion, stating that the offer to settle did not signal any prejudice or inability to be impartial. Rather, his offer to compromise with Plaintiff was "an effort to more efficiently resolve a controversy." (R. at 24.) Plaintiff contends that the ALJ's offer to, cast him in the role of an adversary, thereby violating his role as adjudicator. See Richardson v. Perales, 402 U.S. 389, 403, 91 S.Ct. 1420, 1428 (1971). Thus, Plaintiff argues, the hearing was not impartial and thereby violated Plaintiff's due process rights. See Kendrick v. Sullivan, 784 F. Supp. 94, 102 (S.D.N.Y. 1992). Finally, Plaintiff asserts that there is no authority for the proposition that an ALJ can make a settlement offer to a claimant.

The Commissioner acknowledges that due process requires an impartial decision-maker in administrative proceedings. See Schweiker v. McClure, 456 U.S. 188, 195-96, 102 S.Ct. 1665, 1670 (1982). However, there is a presumption of honesty and integrity in those who serve as adjudicators for administrative proceedings. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464(1975). Furthermore, this presumption of integrity can be overcome only by "a showing of conflict of interest or some other specific reason for disqualification." Schweiker, 465 U.S. at 195, 102 S.Ct. at 1670. Plaintiff has not met this standard. As noted by the Appeals Council, ALJ Levin gave Plaintiff a "second full and fair hearing. His a to reach a compromise for the sake of efficiency does not amount to bias, especially when Plaintiff can point to no other evidence of prejudice in the record. ALJ Levin even took pains to assure Plaintiff that the failure to reach a settlement was not held against him by stating:

I made an offer . . . to resolve this case . . . I did so without having either received or reviewed any of the new evidence . . . . [The offer was] the result that the regulations would have called for if I had reached the very same legal conclusions in 1996 that [were] made regarding the newer application. . . . I wish the claimant to understand that my present finding that he is not "disabled" even through September 24, 1996, is in no way meant to be a "penalty" for his attorney's not having accepted my earlier proposal. Once an offer made in an effort to more efficiently resolve a controversy has been rejected, the ALJ is under an obligation to evaluate the entire case before him and render a decision on the evidence as he sees it — even if that decision is less favorable than one he was prepared to offer at a different stage of the proceedings.

(R. at 24.)

It is clear that ALJ Levin attempted to resolve Plaintiff's claim in an abbreviated manner by making a settlement offer. However, once the offer was rejected, it is equally clear that ALJ Levin afforded Plaintiff a second fair and impartial hearing and rendered a decision supported by the evidence. As for Plaintiff's argument that there is no authority for ALJs to make offer, of settlement, Plaintiff does not cite any authority suggesting that such offers are prohibited. In fact, Plaintiff acknowledges in his brief that the role of the ALJ is complicated and often requires an ALJ to play various roles, including advocate for the claimant, advocate for the Commissioner, and then impartial adjudicator. (Pl. Mem. Law at 16 n. 13.)

"Indeed, the Second Circuit has recognized that the high standard of propriety applied to recusal motions for federal judges "cannot apply to administrative law judges who, after all, are employed by the agency whose actions they review." Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d 164, 167 (2d Cir. 1992). Even applying the heightened standard to a federal district judge, the Second Circuit affirmed the denial of a recusal motion when Judge Baer "urged the parties to settle," and suggested that the plaintiff should consider his "prior remittur in assessing the wisdom of trying the case again." Lightfoot v. Union Carbide Corp., 92 Civ. 6411, 1997 WL 543076, at *1 (S.D.N.Y. Sept. 4, 1997) aff'd, 175 F.3d 1008 (2d Cir. 1999) Although Judge Baer did not offer to settle the case himself, his strong recommendation that the case should be settled was not considered evidence of bias because there was no display of "deep seated favoritism or antagonism that would make fair judgement impossible." Id. at *2. Similarly, ALJ Levin's offer to settle the case did not reveal any reason why he could not make a fair and impartial decision regarding Plaintiff's application. Both the record of the second hearing and the resulting decision in this case further illustrate that ALJ Levin fully examined all of the evidence and reached a reasoned conclusion.

B. Plaintiff's Testimony

Plaintiff argues that ALJ Levin committed reversible error by finding some of Plaintiff's testimony to be "not credible" without offering any specific reasons for such a finding. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). However, ALJ Levin actually found Plaintiff to be reasonably credible. (R. 25.) Plaintiff simply finds fault with the ALJ's determination that Plaintiff's testimony did not completely support his claim of restricted walking ability. For instance, Plaintiff now takes exception to ALJ Levin's finding that he can and does use the subway, arguing that his "infrequent use of the subway provides no basis to extrapolate that he has the capacity to use the subway at will." (Pl. Mem Law at 19.) However, when asked at the hearing why he did not use public transportation very often, Plaintiff simply stated: "Well I don't have to mostly." (R. at 67.) In the end, ALJ Levin and Plaintiff disagreed about the extent of Plaintiff's walking difficulties and the impact of those difficulties on his ability to work. This disagreement does not equate to the ALJ discrediting Plaintiff's testimony. Rather, ALJ Levin credited the facts contained in Plaintiff's testimony, rather than the conclusions. Because the ALJ's findings were supported by substantial evidence, Plaintiff's disappointment with them does not amount to reversible error.

C. Substantial Evidence

Plaintiff contends that ALJ Levin's determination that Plaintiff could work as a messenger or delivery person during the disputed period was not supported by substantial evidence. As stated above, the ALJ's findings will be affirmed as long as they are supported by substantial evidence even if there is substantial evidence for Plaintiff's position. See DeCherico, 134 F.3d at 1182. There is substantial evidence in the record that almost all of the medical professionals that examined Plaintiff during the relevant period found that his gait was normal and that he did not suffer from dysdiadochkinesia. The weight of the medical evidence supported ALJ Levin's finding of "not disabled."

The record also indicates that ALJ Levin examined Plaintiff's testimony as well as the testimony of the vocational expert in order to evaluate whether Plaintiff could perform light work. As the Commissioner argues, Plaintiff's subjective statements about his pain or other symptoms, without more, cannot form the sole basis for a finding of disability.See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.929(a). ALJ Levin also relied on Plaintiff's testimony to find that Plaintiff walked around his neighborhood, used public transportation when necessary, could carry objects weighing twenty pounds, and generally took care of his own chores. He incorporated the information found in Plaintiff's medical records and testimony into questions for the vocational expert. At that point, ALJ Levin found that Plaintiff could return to his previous employment as a delivery person. He also found that there were other employment options for Plaintiff during the relevant period. Plaintiff requests that these findings be discounted because he believes that ALJ Levin overstated Plaintiff's ability to walk and take public transportation. Plaintiff reported that on one occasion he and another delivery person were required to carry a "big tray" of flowers and implies that such a delivery would have been too heavy or awkward to carry during the disputed period. However, he did not offer other evidence about his walking difficulties and carry the required amount to be a delivery person or interior security guard. Further, he argues that his nystagmus, or rapid movement of the eyeballs, would interfere with any sedentary work but offers no medical testimony to that effect. Put simply, ALJ Levin based his decision on substantial evidence gathered from Plaintiff's medical record, Plaintiff's own testimony, and expert testimony. The fact that Plaintiff disagrees with the ALJ's conclusions and attacks them with conclusory interpretations of his own testimony is not sufficient to reverse the Commissioner's decision that Plaintiff was "not disabled" from March 24, 1995, through September 25, 1996.

CONCLUSION

For the foregoing reasons, Plaintiff's motion is denied and the Commissioner's determination is affirmed.

SO ORDERED.