Opinion
03 Civ. 0075 (RCC) (AJP).
July 2, 2003.
REPORT AND RECOMMENDATION
Pro se plaintiff Evangelista DeRoman brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny DeRoman disability benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 7-9.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.
PROCEDURAL BACKGROUND
On October 3, 2001, plaintiff Evangelista DeRoman applied for disability benefits, alleging an inability to work since September 2, 2001 due to back pain and depression. (Dkt. No. 7: Administrative Record filed by the Commissioner ["R."] at 67-82.) DeRoman's application was denied initially (R. 53-56) and upon reconsideration (see Dkt. No. 9: Gov't Br. at 2). At DeRoman's request (R. 58), a hearing was held before an administrative law judge ("ALJ") on June 11, 2002. (R. 21-51, 61-65.) On July 5, 2002, the ALJ issued her decision finding that DeRoman was not disabled. (R. 8-20.) The Appeals Council denied DeRoman's request for review on October 11, 2002. (R. 4-5.) On November 14, 2002 (filed as of January 6, 2003), DeRoman filed a complaint in this court to review the Commissioner's decision. (Dkt. No. 2: Compl.)
FACTS
DeRoman's Hearing Before the ALJ
On June 11, 2002, a hearing was held before ALJ Hazel C. Strauss. (R. 21-51.) DeRoman testified with the assistance of a Spanish interpreter. (See R. 23.) Also present at the hearing was a Social Security Administration vocational expert, Pat Green. (R. 23, 42, 45.)
Before hearing testimony, the ALJ confirmed that DeRoman was fully appraised of her right to legal representation and that she waived that right. (R. 24.) The ALJ then explained to DeRoman that the issue before the ALJ was to determine whether DeRoman was disabled as defined by the Act and informed DeRoman of the legal standard for determining disability. (R. 24-25.)
DeRoman was born in Santo Domingo and was forty-nine years old at the time of the hearing. (R. 26.) She came to the United States in 1985 and resides in Manhattan with her mentally disabled daughter and her grandson, who weighs eighteen pounds. (R. 23, 26-27, 42.) DeRoman was supported by her public assistance income and her daughter's SSI income. (R. 42.) DeRoman was educated through the tenth or eleventh grade in Santo Domingo (R. 28), is able to read and write in Spanish (id.), but does not speak English and only understands "a little" (R. 26, 44). Her work experience includes working as a machine operator in an umbrella factory, as a home attendant, and most recently as a housekeeper. (R. 28-33.) She last worked through the beginning of September 2001 in housekeeping at Macy's, which required her to lift and carry a vacuum cleaner that weighed under ten pounds. (R. 28, 29; see R. 95.) DeRoman testified that she stopped working because of severe pains in her lower back and legs and because she suffered from depression. (R. 28, 33-34, 37.)
DeRoman testified that the pain started in the lower right side of her back and spread throughout both her legs, through her waist, and down to her ankles. (R. 33.) The pain was present almost every day, receding only temporarily and very slightly. (R. 34-35.) Since March 2002, DeRoman has taken Celebrex "for the bones," "when [she] feel[s] the pain" but that it only helps "[a] little" and then only "for about 15 minutes." (R. 34-35.) She claimed that she had difficulties walking more than one block because she falls down often when her legs "give out" "[b]ecause of the pain." (R. 46-47.) DeRoman asserted that she is unable to stand in place for longer than ten minutes or sit for more than fifteen minutes. (R. 47.) Finally, DeRoman testified that she may be able to lift fifteen pounds, but did not think that she could lift twenty pounds. (R. 48.) She is able, however, to cook, sweep, wash dishes, watch television, attend church, feed her grandson, play games with him and diaper him, as well as take care of her own personal care. (R. 39-41;see also R. 97-98.)
Celebrex is a "trademark for a preparation of celecoxib," "a nonsteroidal anti-inflammatory drug . . . used for the symptomatic treatment of osteoarthritis and rheumatoid arthritis." Dorland's Illustrated Medical Dictionary 305 (29th ed. 2000) (hereafter "Dorland's Med. Dictionary").
In addition to her back pain, DeRoman cited her depression as the reason she stopped working. (R. 37.) She explained that her symptoms consisted of occasional weakness and lack of desire to get out of bed, eat, or talk to anyone. (R. 37.) She takes Wellbutrin to help with the depression, diphenhydramine to help her sleep (R. 34-35), and had undergone various forms of therapy since 1997 (R. 37). However, the combination of medication and therapy only remedied her depression "[a] little." (R. 37-38.)
Wellbutrin is a "trademark for a preparation of bupropion hydrochloride," Dorland's Med. Dictionary at 1985, "a monocyclic compound structurally similar to amphetamine, used as an antidepressant." Id. at 253.
Diphenhydramine is "A potent antihistamine with anticholinergic, antitussive, antiemetic, and sedative actions."Dorland's Med. Dictionary at 506.
When asked by the ALJ if she had described all the symptoms that prevented her from working, DeRoman answered "[y]es." (R. 37.)
The ALJ also obtained testimony from Pat Green, a vocational expert hired by the Social Security Administration. (R. 42-43, 45, 48-50.) Describing DeRoman's prior relevant work and the skill and exertion levels required for each job, Green reported that DeRoman performed all her previous jobs at "unskilled," "light," or "sedentary" levels. (R. 46.) When the ALJ asked Green to evaluate DeRoman's capacity to perform her past relevant work in light of her age, education level, skills, and experience and the level of exertion required, Green opined that DeRoman could do her prior work, and in any event there were a large number of "light," "unskilled" jobs in the region and in the national economy that DeRoman could perform. (R. 48-50.) The Medical Evidence Before the ALJ
Pat Green's testimony before the ALJ is not perfectly clear. She testified that DeRoman could perform her past relevant work, but then qualified that statement, specifying that DeRoman could not perform the work as it is described by the DOT. (R. 48.) Green later stated that DeRoman could not do either of her past relevant jobs. (R. 49.) The Court reads Green's testimony to mean that if one credited DeRoman's allegations regarding her inability to sit or stand, DeRoman could not perform her past work. Since the ALJ found DeRoman's subjective complaints not credible (see page 12 below), however, it was proper for Green to conclude that DeRoman could in fact perform her past relevant work.
The medical evidence before the ALJ consisted of DeRoman's treating physicians' records from Heritage Health Care (a.k.a. Council Health Center) (R. 124-50) and the New York University Medical Center (R. 151-56), as well as her treating mental health records from Upper Manhattan Mental Health Center (R. 168-83). Additionally, the ALJ had records from consulting examiners: Dr. Kyung Seo (R. 186-87), Dr. L. Donatela (R. 161-67), Dr. Richard King (R. 184-85), and Dr. M. Apacible (R. 190-203).
Treating Physician Records Heritage Health Care
From July 1998 through August 2001, DeRoman received her medical treatment at Heritage Health Care. (R. 124-50.) In over twenty visits within this three year period, DeRoman's treatment records indicate that her principle health concern was hypercholesterolemia for which she was placed on a low-fat diet and prescribed medication. ( Id.) The records further indicate a history of cyclic depression. ( Id.) DeRoman returned to Heritage Health Care regularly, for (1) routine physical examinations; (2) common ailments such as soar throats, seasonal allergies, and conjunctivitis; (3) renewal of her medications. ( Id.) A physical examination performed on July 31, 2001, weeks before she filed her application for benefits, indicated that she still suffered from hyperlipidemia but that she had no complaints and "'feels well' following a low fat diet." (R. 124.)
Hypercholesterolemia is an "excess of cholesterol in the blood." Dorland's Med. Dictionary at 849.
Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc."Dorland's Med. Dictionary at 852.
NYU Medical Center
On August 29, 2001, DeRoman sought treatment at the New York University Medical Center, complaining of lower back pain. (R. 151-56.) The treatment record indicates that this was her first clinic visit. (R. 154.) DeRoman stated that she fell in 1991, had experienced pain ever since, and claimed that the pain had worsened over the past two months. ( Id.) She reported a constant pain that was worse on ambulation and that radiated down both legs to the dorsum of both feet. ( Id.) Finally, DeRoman complained of a history of depression since 1998 and pain in her knees for years. (R. 151.) The treatment records indicate that DeRoman had no gross deformity in her back and had no point tenderness. (R. 151, 154.) She had full strength in her lower extremities bilaterally, a full range of motion, intact reflexes and sensation in her legs, and demonstrated a normal gait. ( Id.) Additionally, she was able to perform a leg raising test without difficulty. ( Id.) The record indicates, however, that DeRoman had hamstring rigidity on her right side. ( Id.) She was diagnosed with lower back pain, and directed to do hamstring stretches and take Robaxin. (R. 151-54.)
The dorsum is "the aspect of an anatomical part or structure corresponding in position to the back; posterior, in the human." Dorland's Med. Dictionary at 541.
Robaxin is a "trademark for preparations of methocarbamol," Dorland's Med. Dictionary at 1583, "a skeletal muscle relaxant." Dorland's Med. Dictionary at 1099.
Treating Psychiatrist Records Upper Manhattan Mental Health Center
DeRoman received psychiatric treatment at the Upper Manhattan Mental Health Center since July 1998. (R. 168-83.) DeRoman's psychiatrist, Dr. Kury, diagnosed her with dysthymia and major depression. (R. 170, 177.) DeRoman complained of recurrant headaches, stress, and sleep disturbances. (R. 170, 173, 176.) DeRoman's explanation for the depressed feelings varied: she claimed that her symptoms were related to (1) financial pressures (R. 171, 175, 176), (2) difficulties with a workfare program (R. 171), (3) her sixteen year old daughter's pregnancy and the birth of her grandson (R. 170, 176), (4) the difficulties of being a single parent to a mentally retarded child (R. 174, 177), (5) discomfort due to her back pain (R. 176), and (6) job dissatisfaction (R. 179). On July 24, 2001, shortly before filing her initial application for disability insurance benefits, she was assigned a GAF score of 65, indicative of a patient with some mild difficulty in social or occupational functioning, but who generally functions pretty well. (R. 170.) Her GAF score in the previous year was in the same range. ( Id.)
Dysthymia is "a mood disorder characterized by depressed feeling . . ., loss of interest or pleasure in one's usual activities and by at least some of the following: altered appetite, disturbed sleep patterns, lack of energy, low self esteem, poor concentration or decision-making skills, and feelings of hopelessness. Symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depressive disorder." Dorland's Med. Dictionary at 529.
Major depression is "a syndrome that, every day for at least two weeks, includes at least four of the following symptoms: (a) decreased or increased appetite with corresponding change in weight; (b) insomnia (especially very early awakening) or sleeping for excessively long periods; (c) motor retardation, or agitation; (d) loss of interest and pleasure in surroundings and decreased sexual drive; (e) feelings of excessive guilt, self-reproach, or worthlessness; (f) decreased ability to make decisions; (g) fatigue; and (h) recurrent suicidal thinking or attempts." Attorney's Illustrated Medical Dictionary D12 (1997) (hereafter "Attorney's Med. Dictionary").
The Global Assessment of Functioning ("GAF") is a scale used by clinicians for reporting an individual's overall level of psychological functioning. American Psychiatric AssociationDiagnostic Statistical Manual of Mental Disorders 32-34 (4th ed. 1994). The GAF scale is used to plan treatment, measure its impact and predict its outcome. Id. at 32. A patient with a GAF score of 61-70 has "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful interpersonal relationships." Id. at 34.
At the hearing, DeRoman submitted a letter from her psychiatrist (Dr. Kury) and social worker dated April 5, 2002. (R. 205.) The letter confirmed that DeRoman had been receiving mental health treatment consisting of supportive psychotherapy and psychotropic drug prescriptions at the Upper Manhattan Mental Health Center since July 1998. ( Id.) The letter also set forth the doctor's diagnoses of dysthymia and major depression, exacerbated by her physical ailments, and concluded that DeRoman was "unable to work at present." ( Id.)
Consultative Physical Examinations Dr. Seo
On November 7, 2001, consulting physician Dr. Seo performed an orthopedic examination on DeRoman to evaluate her back pain. (R. 186-87.) DeRoman reported a seventeen year history of back pain, dating back to an injury she sustained in her lower back and right leg. (Id.) DeRoman described a "constant pain" in her lower back that occasionally radiated down to both legs and feet, causing numbness. (Id.) DeRoman explained that her daily activities were "somewhat limited" and that she mostly stayed home and rested. (Id.) Dr. Seo reported that although DeRoman wore a back brace, she entered the examination room without a problem and had no difficulty standing up from a sitting position or getting on and off the examination table. (Id.) DeRoman's cervical spine showed normal lordosis, her fine motor activity and strength in both hands were normal, and she exhibited normal range of motion throughout her upper and lower extremities, showing no sensory defects and no muscular atrophy. (Id.) Her sitting leg raising test was negative. (R. 187.) The flexion of her spine was slightly limited and produced mild spasms of the paraspinal muscles. (R. 186.) Although her muscle strength in both legs was normal, the examination indicated a diminished sensation on her lower right side. (R. 187.) An x-ray of her lumbrosacral spine showed signs of early osteoarthritis. (R. 187.) A radiologist confirmed this diagnosis on November 8, 2001, although he stated that all other findings were normal. (R. 188.) In conclusion, Dr. Seo's diagnosis was a probable low back derangement that caused a slight limitation in sitting, standing, bending, lifting, and carrying heavy objects. (R. 187.) His prognosis was "[g]uarded."(Id.)
Lordosis is "the anterior concavity in the curvature of the lumbar and cervical spine as viewed from the side."Dorland's Med. Dictionary at 1027.
The lumbrosacral spine is the area of the spine adjacent to the "loins and sacrum." Dorland's Med. Dictionary at 1029. The sacrum is "the triangular bone just below the lumbar vertebrae." Id. at 1593.
Osteoarthritis is "a noninflammatory degenerative joint disease seen mainly in older persons, characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. It is accompanied by pain, usually after prolonged activity, and stiffness, particularly in the morning or with inactivity."Dorland's Med. Dictionary at 1286.
Dr. Donatela
On December 21, 2001, Dr. Donatela, a state agency physician, performed a Physical Residual Functional Capacity Assessment of DeRoman based on the evidence in the record. (R. 161-67.) Dr. Donatela opined that Dr. Seo overestimated DeRoman's ability to lift and carry heavy objects, stating that the evidence supported more than slight limitations. (R. 167.) Specifically, Dr. Donatela believed that DeRoman could lift or carry up to twenty pounds occasionally and up to ten pounds frequently, and could stand, walk or sit for about six hours in an eight hour day. (R. 162.) However, Dr. Donatela stated that the objective medical evidence only partially supported DeRoman's claims of constant back pain and that the record did not support the alleged severity of DeRoman's back pain. (R. 166.)
Consultative Mental Examinations Dr. King
On November 7, 2001, DeRoman was examined by Dr. King, a consultative psychiatrist. (R. 184-85.) DeRoman explained that she had been receiving treatment at the Upper Manhattan Mental Health Center on an ongoing basis, although she had never been hospitalized for depression. (R. 184.) DeRoman felt the medications she was taking were "helpful." (Id.) Dr. King noted that DeRoman had appropriate affect, "established a good rapport, was in no acute distress and was cooperative." (Id.) Although DeRoman claimed to hear occasional voices calling her name, she did not hallucinate during the examination. (Id.) DeRoman's intellectual functioning was "average," her insight and judgment were "fair," her "[a]ttention and concentration were adequate," and her "[m]emory was grossly intact." (Id.) Her "[s]peech was coherent and relevant" and did not evidence any thought disorder. (Id.) Her mood was "euthymic," "not significantly depressed or anxious." (Id.) Dr. King diagnosed DeRoman with an adjustment disorder of adult life, finding her anxious and depressed to a mild degree. (R. 185.) In light of this diagnosis, Dr. King opined that DeRoman was able to perform routine activities of daily living (R. 184) and had "a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (R. 185.)
A euthymic mood refers to "a state of mental tranquility and well-being; neither depressed nor manic." Dorland's Med. Dictionary at 629.
An adjustment disorder is a "[m]aladaptive or unusually prolonged reaction to stressful events or situations; may be severe but is often relatively limited in scope, generally reversible, and usually resolved by therapeutic intervention or by the passage of time as the person adapts to the stress."Attorney's Med. Dictionary at D38.
Dr. Apacible
On December 17, 2001, Dr. Apacible conducted a psychiatric review of the evidence on record. (R. 190-203.) He concurred with the findings of the prior examinations and concluded that DeRoman had an affective disorder, which was not a severe impairment. (R. 190.)
Affective disorders are "a group of disorders characterized principally by a disturbance of the mood, either elation or depression, expressed as an increase or decrease of activity and thought, and not due to any other physical or mental disorder." Attorney's Med. Dictionary at D38.
The ALJ's Decision
ALJ Strauss denied DeRoman's applications for SSI and disability benefits in a written decision dated July 5, 2002. (R. 8-20.) The ALJ found that DeRoman had not engaged in any substantial gainful employment since September 2, 2001, the alleged onset of the disability. (R. 19.) The ALJ further found that DeRoman had early osteoarthritis in the lumbar spine, a severe impairment, and non-severe depressive disorders. (R. 16, 18-19.) The ALJ found that these impairments, either singly or together, did not meet or medically equal in severity the requirements for benefits. (Id.) The ALJ determined that DeRoman had a "residual functional capacity to perform light to medium work" (R. 19) that enabled her to "perform her past relevant work as a machine operator as she had performed the job" (R. 19-20).
First, as to DeRoman's back pain, the ALJ found that DeRoman had been diagnosed with lumbar arthritis, a severe impairment as defined in the Act. (R. 16.) However, the ALJ stated that DeRoman's impairment was not severe enough to meet or equal the impairments listed in the Appendix. (Id.) The ALJ noted that the medical evidence indicated that the severity of DeRoman's subjective complaints was not substantiated by the results of the various medical examinations. (Id.) Indeed, the medical records indicated that her examination results were mostly normal and that her physical condition was satisfactory. (Id.) In conclusion, the ALJ found that DeRoman was only slightly physically impaired. (Id.)
Second, as to DeRoman's mental condition, the ALJ agreed with the consultative examiner's opinion that DeRoman suffered only non-severe depressive disorders — dysthymia, major depression, and adjustment disorder of adult life. (R. 18.) The ALJ concluded that the evidence indicated that DeRoman had "only mild restriction of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence or pace and no episodes of deterioration." (Id.) In conclusion, the ALJ held that the evidence did not support a finding of a more severe impairment. (Id.)
The ALJ stressed in her findings that DeRoman's allegations were "not totally credible" due to certain inconsistencies in the record. (R. 17-19.) First, the ALJ pointed out that DeRoman provided several contradictory reasons for leaving her last job, including the alleged disabilities, her need to take care of her disabled daughter and her grandson, and a disagreement with her supervisor regarding her request for time off. (R. 18.) Second, the ALJ questioned the extent of DeRoman's limitations and the alleged severity of her physical impairment, finding it "reasonable to conclude that . . . caring for an infant and her mentally ill daughter, teaching her to care for her child, who now weighs 18 pounds, requires at least light exertional activity" (R. 18), which the ALJ felt was inconsistent with DeRoman's allegations of severe limitations (Id.). Third, the ALJ stressed that DeRoman's psychiatric evaluation on July 24, 2001, less than two months before filing her application, was normal except for a depressed mood and a blunted affect, which is not consistent with DeRoman's allegations that she was unable to work. (R. 17.) Fourth, the ALJ questioned DeRoman's credibility concerning her inability to speak and understand English. (R. 18.) The ALJ noted that DeRoman must have understood some English and must have been able to write in English since she was capable of completing the various forms and applications, albeit with the assistance of her daughter and her psychiatrist. (Id.)
The ALJ rejected the April 5, 2002 letter from DeRoman's treating physician that concluded that DeRoman was "unable to work." (R. 19, 205.) The ALJ found that the letter's "conclusion is not consistent with the record as a whole as shown above," and "undoubtedly" was written "for the purpose of having welfare benefits continue." (R. 19.)
Finally, the ALJ found that DeRoman retained the residual functional capacity for light and medium work. (R. 19.) She determined that the work that DeRoman performed in the umbrella factory only required a light exertion and required her to lift only ten to twenty pounds and DeRoman could therefore perform her past relevant work. (Id.) Accordingly, the ALJ found that DeRoman "was not under a 'disability' as defined in the Social Security Act, at any time through the date of the decision" and "is not entitled to a period of disability or Disability Insurance Benefits." (R. 19-20.)
ANALYSIS
I. THE APPLICABLE LAW A. The Definition of Disability
For additional decisions by this Judge discussing the definition of disability in Social Security cases in language substantially similar to that in this entire section of this Report and Recommendation, see Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *7 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *5 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Jimenez v.Massanari, 00 Civ. 8957, 2001 WL 935521 at *6 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *4-5 (S.D.N.Y. July 11, 2001) (Peck, M.J.);Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *6 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 535 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.);Craven v. Apfel, 58 F. Supp.2d 172, 180-81 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5-6 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 422-23 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.);DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at *4 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995); Francese v. Shalala, 897 F. Supp. 766, 769 (S.D.N.Y. 1995) (Batts, D.J. Peck, M.J.);Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
A person is considered disabled for Social Security benefits purposes when she is 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), 1382c(a)(3)(A); see, e.g., Barnhart v.Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002);Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002);Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002);Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v.Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The combined effect of all impairments must be of such severity that the person
See also, e.g., Martinez v. Massanari, 01 Civ. 2114, 2003 WL 179771 at *4 (S.D.N.Y. Jan. 27, 2003); Garcia v.Barnhart, 01 Civ. 8300, 2003 WL 68040 at *4 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp.2d 265, 268 (S.D.N.Y. 2002); Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *4 (S.D.N.Y. Dec. 23, 2002); Perez v. Barnhart, 234 F. Supp.2d 336, 339 (S.D.N.Y. 2002).
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A); see, e.g., Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Draegert v. Barnhart, 311 F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.
See also, e.g., Garcia v. Barnhart, 2003 WL 68040 at *4; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience."Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62;Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Rebull v. Massanari, 240 F. Supp.2d at 268; Worthy v. Barnhart, 2002 WL 31873463 at *4.
For additional decisions by this Judge discussing the standard of review in Social Security cases, in language substantially similar to that in this entire section of this Report and Recommendation, see Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *7-9 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 99 Civ. 1355, 2002 WL 31663570 at *5-7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morris v.Barnhardt, 02 Civ. 0377, 2002 WL 1733804 at * 3 (S.D.N.Y. July 26, 2002) (Peck, M.J.); Jimenez v. Massanari, 01 Civ. 8957, 2001 WL 935521 at *6 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.);Tucker v. Massanari, 99 Civ. 12037, 2001 WL 868031 at *5-6 (S.D.N.Y. Aug. 1, 2001) (Peck, M.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *5 (S.D.N.Y. July 11, 2001) (Peck, M.J.); DeLeon v. Apfel, 00 Civ. 3701, 2000 WL 1873851 at *6 (S.D.N.Y. Dec. 21, 2000) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. Sept. 20, 1999) (Pauley, D.J. Peck, M.J.); Craven v.Apfel, 58 F. Supp.2d 172, 181 (S.D.N.Y. July 12, 1999) (Preska, D.J. Peck, M.J.); Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *6 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418,423 (S.D.N.Y. Nov. 13, 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Veino v.Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v.Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 123 S.Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed. Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002);Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v.Apfel, 209 F.3d 117, 122 (2d Cir. 2000); 42 U.S.C. § 405(g). "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 2002 WL 1733804 at *4.
See also, e.g., Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);Schaal v. Apfel, 134 F.3d 496,501 (2d Cir. 1998); Perez v.Chater, 77 F.3d 41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Martinez v. Massanari, 01 Civ. 2114, 2003 WL 179771 at *3 (S.D.N.Y. Jan. 27, 2003); Duran v.Barnhart, 01 Civ. 8307, 2003 WL 103003 at *7 (S.D.N.Y. Jan. 13, 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *3 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp.2d 265, 268 (S.D.N.Y. 2002); Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *3 (S.D.N.Y. Dec. 23, 2002);Norris v. Barnhart, 01 Civ. 0902, 2002 WL 31778794 at *3 (S.D.N.Y. Dec. 12, 2002); Morales v. Barnhart, 01 Civ. 4057, 2002 WL 31729526 at *6 (S.D.N.Y. Dec. 5, 2002).
See also, e.g., Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *9; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted).
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Veino v.Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46. "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also, e.g., Veino v. Barnhart, 312 F.3d at 586; Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at * I (2d Cir. Sept. 26, 1996); Garcia v.Barnhart, 2003 WL 68040 at *3; Morales v. Barnhardt, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7;see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).
See also, e.g., Martinez v. Massanari, 2003 WL 179771 at *3; Duran v. Barnhart, 2003 WL 103003 at *9;Garcia v. Barnhart, 2003 WL 68040 at *3; Worthy v.Barnhart, 2002 WL 31873463 at *3; Norris v. Barnhart, 2002 WL 31778794 at *3; Morales v. Barnhardt, 2002 WL 31729526 at *6; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:
[1] First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. [3] 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. [4] 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. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982);accord, e.g., Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d at 132; Curry v.Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62;Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46;Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
See also, e.g., Martinez v. Massanari, 2003 WL 179771 at *4; Garcia v. Barnhart, 2003 WL 68040 at *4;Worthy v. Barnhart, 2002 WL 31873463 at *4; Norris v.Barnhart, 2002 WL 31778794 at *3-4; Perez v. Barnhart, 234 F. Supp.2d 336, 339 (S.D.N.Y. 2002); Soto v. Barnhart, 2002 WL 31729500 at *4-5.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that she cannot return to her past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only her medical capacity but also her age, education and training. See, e.g., Draegert v. Barnhart, 311 F.3d at 472; Curry v. Apfel, 209 F.3d at 122; Rosa v.Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46;Berry v. Schweiker, 675 F.2d at 467.
Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 1031;see, e.g., DeLeon v. Secretary of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984). C. The Treating Physician Rule
See also, e.g., Miles v. Apfel, 51 F. Supp.2d 266, 269 (E.D.N.Y. 1999); Nivar v. Apfel, 98 Civ. 3930, 1999 WL 163397 at *4-5 n. 8 (S.D.N.Y. Mar. 23, 1999); Vitale v.Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999); Irvin v.Heckler, 592 F. Supp. 531, 540 (S.D.N.Y. 1984).
For additional decisions by this Judge discussing the treating physician rule in language substantially similar to that in this entire section of this Report and Recommendation,see Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *9-11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v.Barnhardt, 99 Civ. 1355, 2002 WL 31663570 at *7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Jimenez v. Massanari, 01 Civ. 8957, 2001 WL 935521 at *8 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *6 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *8 (S.D.N.Y. Mar. 29. 1999) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 537 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v.Apfel, 58 F. Supp.2d 172,182 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *7-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Walzer v.Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2); see, e.g., Kamerling v.Massanari, 295 F.3d 206, 209 n. 5 (2d Cir. 2002); Jordan v.Barnhart, No. 01-6181,29 Fed. Appx. 790, 792, 2002 WL 448643 at *2 (2d Cir. Mar. 22, 2002); Bond v. Social Sec. Admin., No. 00-6333, 20 Fed. Appx. 20, 21, 2001 WL 1168333 at *1 (2d Cir. Sept. 27, 2001); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).
See also, e.g., Martinez v. Massanari, 01 Civ. 2114, 2003 WL 179771 at *4 (S.D.N.Y. Jan. 27, 2003); Garcia v.Barnhart, 01 Civ. 8300, 2003 WL 68040 at *5 n. 4-5 (S.D.N.Y. Jan. 7, 2003).
Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503;Martinez v. Massanari, 2003 WL 179771 at *4; Garcia v.Banhart, 2003 WL 68040 at *6; Rebull v. Massanari, 240 F. Supp.2d 265, 268 (S.D.N.Y. 2002).
The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
II. THE GOVERNMENT'S MOTION SHOULD BE GRANTED, WITHOUT THE NEED TO APPLY THE FIVE-STEP SEQUENCE TO DE ROMAN'S CLAIM, BECAUSE DE ROMAN'S COMPLAINT IS CONCLUSORY AND SHE DID NOT FILE PAPERS OPPOSING THE GOVERNMENT'S MOTION
For additional decisions by this Judge discussing the grant of judgment on the pleadings to the Commissioner where the plaintiff has filed no opposing papers (or only conclusory papers) in language substantially similar to that in this entire section of this Report and Recommendation, see Alvarez v.Barnhart, 02 Civ. 3121, 2002 WL 31663570 at *6-8 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *7 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Casiano v. Apfel, 39 F. Supp.2d 326, 327-28 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.), aff'd mem., No. 99-6058, 205 F.3d 1322 (table), 2000 WL 225436 (2d Cir. Jan. 14, 2000).
In a proceeding to judicially review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Melville v. Apfel, 198 F.3d 45,51 (2d Cir. 1999) ("The claimant generally bears the burden of proving that she is disabled under the statute . . ."); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981) ("It is well established that the burden of proving disability is on the claimant."); Dousewicz v. Harris, 646 F.2d 771,772 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225,231 (2d Cir. 1980); Adams v. Flemming, 276 F.2d 901, 903 (2d Cir. 1960) ("The controlling principles of law upon [judicial] review [of a Social Security denial] are well established . . ., namely, 'the burden of sustaining the claim for benefits is on the claimant' and 'The findings of the Social Security Agency are final and binding if there is a substantial basis for them.'").
See also, e.g., Pena v. Barnhart, 01 Civ 502, 2002 WL 31487903 at *8 (S.D.N.Y. Oct. 29, 2002); Reyes v.Barnhart, 01 Civ 1724, 2002 WL 31385825 at *5 (S.D.N.Y. Oct. 21, 2002); Ortiz v. Shalala, 93 Civ. 3561, 1994 WL 673630 at *1 (S.D.N.Y. Dec. 1, 1994); Morton v. Heckler, 586 F. Supp. 110, 111 (W.D.N.Y. 1984); Harvey L. McCormick, Social Sec. Claims Proc. § 14:16 (5th ed. 1998) ("In a proceeding to review judicially a final decision of the Commissioner, the plaintiff has the burden of establishing the correctness of his or her contention. The procedure is akin to that in a regular civil appeal under the Federal Rules of Civil Procedure. . . .").
Here, DeRoman's pro se complaint states only that she should receive Social Security benefits because of "hernia on back, arthritis, back problem, [and] depression." (Dkt. No. 2: Compl. ¶ 4.) DeRoman has not filed any papers opposing the Commissioner's motion for judgment on the pleadings, and the deadline for doing so has passed. (See Dkt. Nos. 5-6: Scheduling Orders.) DeRoman does not point to any specific testimony or evidence which she believes the ALJ overlooked, unjustly weighted, or otherwise should have considered. DeRoman's complaint is overly conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. E.g., Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996) (Court rejected plaintiff's allegations that the ALJ "failed to consider [minor claimant's] parent's testimony as medical evidence, failed to consider all the medical evidence, failed to consider [child's] mother's testimony with respect to the IFA analysis, and failed to render his decision based upon the record as a whole," on the ground that they are "broad and conclusory. She offers no specific testimony or evidence which she believes that the ALJ overlooked and should have considered."); Steiner v. Dowling, 914 F. Supp. 25, 28 n. I (N.D.N.Y. 1995) (rejecting plaintiffs' argument that the State's social security regulations are too restrictive as "neither sufficiently explained nor seriously advanced by plaintiffs — providing only a single conclusory paragraph in their Statement of Undisputed Facts . . ., and in their Attorney's Affirmation. . . ."), aff'd, 76 F.3d 498 (2d Cir. 1996); see generally Southern District of New York Local Civil Rule 7.1 ("all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion. . . . Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.").
III. APPLICATION OF THE FIVE-STEP SEQUENCE TO DE ROMAN'S CLAIM
For the reasons set forth in Point II above, the Court need not apply the five-step sequence to DeRoman's claims. Even if the Court were to do so, however, the Commissioner's decision that DeRoman was not disabled should be affirmed since it is supported by substantial evidence.
A. DeRoman Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether DeRoman was engaged in substantial gainful activity after September 2, 2001. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. The ALJ's conclusion that DeRoman was not engaged in substantial gainful activity during the applicable time period (R. 19) is not disputed.
See, e.g., Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.);Alvarez v. Barnhardt, 99 Civ. 1355, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *9 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *9 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Craven v.Apfel, 58 F. Supp.2d 172,183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *8 (S.D.N.Y. May 20, 1998) (Peck, M.J.);Pickering v. Chater, 951 F. Supp. 418,424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
B. DeRoman Had A Severe Physical, But Not Mental, Impairment That Significantly Limited Her Ability To Do Basic Work Activities From September 2, 2001
The next step of the analysis is to determine whether DeRoman had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] her physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and remembering simple instruction . . . [u]se of judgment . . . [r]esponding appropriately to supervision, co-workers and usual work situations.20 C.F.R. § 404.1521(b)(1)-(5). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
See also, e.g., Acosta v. Barnhart, 2003 WL 1877228 at * 11; Alvarez v. Barnhardt, 2002 WL 31663570 at *9; Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v.Apfel, 99 Civ. 4614, 2000 WL 328593 at *9 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v.Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *9 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
Accord, e.g., Acosta v. Barnhart, 2003 WL 1877228 at * 11; Alvarez v. Barnhardt, 2002 WL 31663570 at *9;Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v.Apfel, 2000 WL 328593 at *9; Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at *7-8;Pickering v. Chater, 951 F. Supp. at 424.
"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 19, 1999) (citing 20 C.F.R. § 404.1520(c)); accord, e.g., Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v. Apfel, 2000 WL 328593 at *9. On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.
See also, e.g., Acosta v. Barnhart, 2003 WL 1877228 at *12; Alvarez v. Barnhardt, 2002 WL 31663570 at *9;Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v.Apfel, 2000 WL 328593 at *9; Craven v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at *9;Pickering v. Chater, 951 F. Supp. at 424.
"A finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 1999 WL 294727 at *5 (quotingBowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12 (1987)).
At the conclusion of DeRoman's hearing, the ALJ found that the medical evidence proved that "[t]he claimant's early osteoarthritis in the lumbar spine is a severe impairment, based upon the requirements in the Regulations ( 20 C.F.R. § 404.1521)." (R. 19.) Additionally, the ALJ found that the medical evidence supported the treating psychiatrists' and consultative examiners' opinions that DeRoman had a non-severe depressive disorder. (R. 18.) Because it is not disputed that at least DeRoman's physical impairment was severe, the analysis advances, in DeRoman's favor, to the third analysis step.
C. DeRoman Did Not Have A Disability Listed in Appendix I of the Regulations
The third step of the five-part test requires a determination of whether DeRoman had an impairment listed in Appendix I of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). 1. DeRoman's Physical Impairments
Accord, e.g., Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *13 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 99 Civ. 1355, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v.Massanari, 01 Civ. 0186, 2001 WL 776950 at *9 (S.D.N.Y. July 11, 201) (Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 183-84 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v.Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418,424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.).
The ALJ found that DeRoman's early osteoarthritis, while severe, did not meet the criteria of any impairment in the Listing of Impairments. (R. 19.) To reach the level of severity necessary for DeRoman to be considered disabled, her osteoarthritis must have lasted, or have been expected to last, at least twelve months, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(a), and have been accompanied by "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)" id. § 1.04(A). These physical findings "must be determined on the basis of objective observation during the examination and not simply a report of the individual's allegation. . . ." Id., § 1.00(D).
The clinical findings support the ALJ's determination. DeRoman's treating physician at New York University Medical Center found no deformities in her back, and found that she demonstrated full strength in her lower extremities bilaterally, had a full range of motion, and no loss of reflexes or sensation in her legs. (R. 151-56.) Additionally, the NYU record indicates that DeRoman's straight leg raising test was negative. (Id.) These conclusions were confirmed and supplemented by Dr. Seo's consultative orthopedic examination. (R. 186-87.) Dr. Seo found that DeRoman's muscle strength and range of motion in both her upper and lower extremities were normal and that she did not have any muscle atrophy. (Id.) Her sensory perception and reflexes were normal. (Id.) DeRoman passed a second straight leg raising test, showing only slight discomfort behind her right knee. (R. 187.) Furthermore, DeRoman had no difficulty entering the examination room, getting on and off the examining table, or standing up from a sitting position. (R. 186.) Her testimony regarding her range of daily activities also contradicted her allegations regarding the severity of her physical impairment. (R. 40-41.)
2. DeRoman's Mental Impairments
DeRoman's mental impairments are not sufficiently severe to meet or equal the severity of any listed impairment. The ALJ found that DeRoman suffered from a "non severe depressive disorder" (R. 19), which is governed by 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. The issue is whether there is substantial evidence that DeRoman's mental impairments "[r]esult[ed] in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B)(1)-(4).
"Marked," as defined in the Regulations for measuring the degree of limitation, means "more than moderate but less than extreme." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C).
DeRoman's treating psychiatrist did not provide evidence of a mental impairment sufficiently severe to meet the requirements of the Regulation's listed affective disorders. Dr. Kury diagnosed DeRoman as suffering from dysthymia and major depression, both at a mild level. (R. 168-83.) Furthermore, less than two months before DeRoman filed her application with the Social Security Administration, Dr. Kury assigned her a GAF score of 65 (id.), which specifically indicated that DeRoman had only mild and not marked symptoms, and that she generally functions pretty well (id). The evidence produced by Dr. King's consultative examination also supports the conclusion that DeRoman's mental impairment was not severe. (R. 184-85.) Dr. King diagnosed DeRoman with an adjustment disorder of adult life, finding her anxious and depressed to a mild degree. (Id.) Furthermore, he found that her mood was euthymic, that she had an appropriate affect, established a good rapport, and was in no acute distress. (Id.) Finally, Dr. Apacible's psychiatric review confirmed that DeRoman suffered from a non severe mental disorder. (R. 190-203.)
None of DeRoman's treating or examining psychiatrists provided evidence that DeRoman's mental impairments were severe enough to support a conclusion that she was disabled — and the ALJ was entitled to rely on that absence of evidence of disability.See, e.g., Salvaggio v. Apfel, No. 01-6062, 23 Fed. Appx. 49, 51, 2001 WL 1388521 at *1 (2d Cir. Nov. 6, 2001) (lack of medical evidence supports the ALJ's determination that plaintiff was not disabled); O'Connor v. Shalala, No. 96-6215, 111 F.3d 123 (table), 1997 WL 165381 at *1 (2d Cir. Mar. 31, 1997) ("the Commissioner is also entitled to rely on the absence of contemporaneous evidence of the disability.");Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Dumas v.Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the [medical] record says, but also on what it does not say"); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *10 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v. Massanari, 2001 WL 776950 at *10;Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 11 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); De La Cruz v. Chater, 937 F. Supp. 194, 197 (E.D.N.Y. 1996); see also, e.g., Berry v. Schweiker, 675 F.2d 464, 468-69 (2d Cir. 1982) (upholding ALJ's decision to deny benefits where plaintiff failed to provide evidence of a mental impairment); Schulte v.Apfel, No. 98-CV-422, 2000 WL 362025 at *12 (W.D.N.Y. Mar. 31, 2000) (denying benefits where the medical evidence failed to allege a mental impairment of the severity required for a finding of a disability).
3. DeRoman's Subjective Complaints
In making his decision, the ALJ also is required to make specific findings as to the claimant's credibility. 20 C.F.R. § 416.929(c)(4); see, e.g., Jordan v. Barnhart, No. 01-6181,29 Fed. Appx. 790, 794, 2002 WL 448643 at *4 (2d Cir. Mar. 22, 2002) ("The ALJ . . . was entitled to make a credibility determination regarding [claimant's] allegations of disabling pain."); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) ("Where there is conflicting evidence about a claimant's pain [i.e., subjective complaints of pain not verified by objective medical evidence], the ALJ must make credibility findings.");Montes-Ruiz v. Chater, No. 97-6013, 129 F.3d 114 (table), 1997 WL 710607 at *2 (2d Cir. Nov. 14, 1997); Dunn v.Chater, No. 95-6400, 101 F.3d 1392 (table), 1996 WL 387218 at *2 (2d Cir. July 11, 1996); Donato v. Secretary of Health Human Servs., 721 F.2d 414, 418-19 (2d Cir. 1983) ("The ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability."); Stanton v. Barnhart, 01 Civ. 3486, 2003 WL 1900855 at *7 (S.D.N.Y. Apr. 17, 2003) ("The ALJ must resolve conflicts in the record and make determinations of credibility."); Brown v. Barnhart, 02 Civ. 4523, 2003 WL 1888727 at *10 (S.D.N.Y. Apr. 15, 2003) ("Upon remand, the ALJ should make specific findings regarding [claimant's] credibility with respect to his symptoms, pain, and functional limitations."). Here, the ALJ noted that "[t]he claimant's allegations regarding her limitations are not totally credible." (R. 19.) Although DeRoman testified that her physical and mental symptoms were so severe that she could not work (R. 28, 33, 37), DeRoman reported that she is able to prepare meals, do some housecleaning, attend church, watch television, care for her grandson, take care of her personal hygiene, and take public transportation. (E.g., R. 27, 40-41.) In addition, the ALJ correctly noted the contradictory statements that DeRoman had made as to the reasons she stopped working. (See page 13 above.)
After weighing objective medical evidence, the ALJ, in considering conflicting evidence, was entitled to disregard DeRoman's subjective estimation of the degree of impairment, in light of the uncontradicted medical evidence from treating and consulting physicians. See, e.g., Baladi v. Barnhart, No. 01-6155, 33 Fed. Appx. 562, 564, 2002 WL 507139 at *2 (2d Cir. Apr. 4, 2002) (treating physician's opinions disregarded when based entirely on plaintiff's subjective complaints of pain);Jordan v. Barnhart, 29 Fed. Appx. at 794, 2002 WL 448643 at *4 (ALJ entitled to disregard plaintiff's allegations of disabling pain where it is inconsistent with the medical evidence); Snell v. Apfel, 177 F.3d at 135 (plaintiff's report of subjective pain not sufficient to establish disability and can be disregarded when not supported by medical evidence);Pascariello v. Heckler, 621 F. Supp. 1032, 1035-36 (S.D.N.Y. 1985); see also, e.g., Tejada v. Apfel, 167 F.3d 770, 775-76 (2d Cir. 1999); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979); Morel v. Massanari, 2001 WL 776950 at *11;Baladi v. Halter, No. 00-CV-3240, 2001 WL 527406 at *11 (E.D.N.Y. May 4, 2001) ("[I]t is within the discretion of the ALJ to evaluate the credibility of the claimant's allegations and render an independent judgment in light of the medical findings and other evidence regarding the true extent of such symptomatology."), aff'd, No. 01-6155, 33 Fed. Appx. 562, 2002 WL 507139 (2d Cir. Apr. 4, 2002); Ceballos v. Apfel, 99 Civ. 4444, 2001 WL 199410 at *7 (S.D.N.Y. Feb. 28, 2001); Rodriguez v. Apfel, 96 Civ. 8330, 1998 WL 150981 at *11 (S.D.N.Y. Mar. 31, 1998); Gibbons v. Bowen, 653 F. Supp. 1478, 1481 (S.D.N.Y. 1987).
The Court finds that the ALJ's decision that DeRoman did not satisfy any Appendix I listing is supported by substantial evidence.
D. DeRoman Had The Ability To Perform Her Past Work
The fourth prong of the five part analysis is whether DeRoman had the residual functional capacity to perform her past relevant work. 20 C.F.R. § 404.1520(e). For the purposes of this analysis, the Commissioner considers that work experience is relevant "'when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity [SGA].'" SSR 82-62, 1982 WL31386 at *1 (quoting 20 C.F.R. § 404.1565(a),416.965(a)); see also Melville v.Apfel, 198 F.3d 45, 53 (2d Cir. 1999) (quoting SSR 82-62). Because DeRoman worked as a machine operator in an umbrella factory from 1985 to 1991 (R. 89), the ALJ correctly considered it to be past relevant work. See, e.g., id.; Vargas v.Sullivan, 898 F.2d 293,293 (2d Cir. 1990) (claimant found to have no past relevant work experience because she had not worked for at least fifteen years); Rodriguez v. Barnhart, 01 Civ. 7373, 2002 WL 31307167 at *5 n. 8 (S.D.N.Y. Oct. 15, 2002) ("The work usually must have been performed within the last 15 years and, have lasted long enough for a claimant to sufficiently learn the job."); Rogers v. Apfel, 97 Civ. 0210, 2001 WL 9037 at *3 (S.D.N.Y. Jan. 4, 2001) (claimant's one-year work experience was not "past relevant work" because it took place more than fifteen years before her application for benefits).
See also, e.g., Barrett v. Apfel, 99 Civ. 148, 2000 WL 1206741 at *7-8 (S.D.N.Y. Aug. 23, 2000) (claimant's job that occurred ten years before the onset of his disability and lasted only several months was past relevant work); Nivar v. Apfel, 98 Civ. 3390, 1999 WL 163397 at *3 (S.D.N.Y. Mar. 23, 1999) (claimant had no past relevant work where the last time she performed substantial gainful activity was eighteen years prior to the application for benefits); Dabrowski v.Sullivan, 84 Civ. 3764, 1989 WL 48889 at *10 (S.D.N.Y. Apr. 14, 1989) (Leval, D.J.) (although claimant could no longer perform his last job, his past relevant work also included a previous job performed less than fifteen years before the alleged disability).
The record evidence indicates that DeRoman's physical impairment did not prevent her from performing her past work as a machine operator in an umbrella factory. DeRoman stated that she had a seventeen-year history of back pain (R. 186), but that pain did not interfere with her ability to perform various jobs until September 2001, when she alleged that the pain was so severe that she could no longer work. During the three years prior to her filing an application for benefits, DeRoman received treatment at Heritage Health Center for elevated cholesterol and common ailments only. (R. 124-50.) The first time DeRoman sought treatment for her back pain was in August 2001, when she visited the New York University Medical Center. (R. 151-56.) However, as discussed above (see pages 6-7 above), the results of the examination did not evidence a severe condition. (R. 151-56.) The record indicated no gross deformity of her back, no point tenderness, normal strength, normal reflexes normal gait, and only a slight hamstring rigidity on her right side. (Id.) Furthermore, DeRoman's treating physicians believed the condition could be treated with a simple home program of hamstring stretches twice a week and taking Robaxin three times a day. (Id.) Dr. Seo's conclusions confirm this diagnosis. (R. 186-87.) Indeed, he found that DeRoman's condition only slightly limited her ability to sit, stand, bend, lift and carry heavy objects — i.e., only slightly limited her ability to perform basic work activities as defined in 20 C.F.R. § 404.1521(b)(1)-(5). Although Dr. Donatela, upon reviewing the medical records, opined that Dr. Seo underestimated DeRoman's limitations, Dr. Donatela agreed that DeRoman could still perform a full range of light work. (R. 161-67.) Indeed, in his Physical Residual Functional Capacity Assessment, Dr. Donatela found that DeRoman could lift up to 20 pounds occasionally and up to 10 pounds frequently, and could sit, stand or walk for about six hours in an eight-hour workday. (R. 162.) See also 20 C.F.R. § 404.1567(b) ("Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.").
As analyzed by Pat Green, the Social Security Administration's vocational expert who testified before the ALJ, DeRoman's prior job as a machine operator in an umbrella factory was unskilled and performed at a sedentary level. (R. 46.) DeRoman stated that the job required her to operate the machine with her foot, while sitting, and also required her to lift or move up to twenty pounds of umbrellas. (R. 31-32.) Because the medical evidence indicates that DeRoman was able to continue to perform these tasks despite her impairment, she failed to satisfy her step four burden of proving that she was unable to perform her past relevant work.
DeRoman also failed to prove that her mental impairments prevented her from performing her past relevant work. The record indicates that DeRoman complained of a history of depression dating back to her adolescence. (R. 184.) The Upper Manhattan Mental Health Center records indicate that DeRoman had been receiving treatment for dysthymia and major depression since July 1998 (R. 168-83), but DeRoman continued to work until September 2001 without the mental impairment ever interfering with her ability to perform the requirements of her various jobs. The evidence supports the ALJ's conclusion that DeRoman suffered from a non-severe affective disorder. The GAF score she received at the time of her most recent psychiatric examination indicated that she had only mild symptoms or only some difficulties in occupational functioning. Finally, in his consultative psychiatric evaluation of claimant in November 2001, Dr. King concluded that DeRoman had "a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting." (R. 184-85.)
Substantial evidence supported the ALJ's decision not to grant any weight to the letter from DeRoman's psychiatrist and case worker stating that she was unable to work due to her mental condition. (R. 19,205; see pages 13-14 above.) A treating physician's opinion is only given special weight when it is a medical opinion regarding the nature and severity of a medical condition. 20 C.F.R. § 404.1527(d)(2); see cases cited on pages 20-21 above. The ALJ is responsible for determining whether a claimant is disabled, as it is not a medical decision but rather an administrative finding based on all the evidence in the record, and the treating physician's opinion is not dispositive when it is inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(e)(1); see, e.g., Snell v.Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("The Social Security Administration considers the data that physicians provide but draws its own conclusions as to whether those data indicate disability. A treating physician's statement that the claimant is disabled cannot itself be determinative."); Murphy v.Barnhart, 00 Civ. 9621, 2003 WL 470572 at *7 (S.D.N.Y. Jan. 21, 2003) ("An ALJ who does not give the treating physician's medical opinion controlling weight must provide 'good reasons' for that decision. . . . The ALJ is not required to give controlling weight to a treating physician's opinions as to the ultimate issue of whether the claimant meets the statutory definition of disability."). The ALJ was correct to give this letter little weight, since it was inconsistent with the other medical evidence (including that from treating physicians) in the record.
The Court finds that the ALJ's decision that DeRoman retained the residual functional capacity to perform her past relevant work is supported by substantial evidence.
E. DeRoman Can Also Perform Other Work In The Economy
Because DeRoman did not meet her burden of proof on the fourth step of the analysis, the Court is not required to advance to the fifth step. However, even assuming arguendo that DeRoman could not perform her past work, the ALJ's decision that DeRoman was not disabled is supported by the evidence that shows that she could perform other work despite her impairments.
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); see, Curry Apfel, 209 F.3d 117, 122-23 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
See also, e.g., Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *11 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003); Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *11 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Vega v.Commissioner, 97 Civ. 6438, 1998 WL 255411 at 10 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 425 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at *6-7 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995).
In meeting his burden under the fifth step, the Commissioner ordinarily will make use of the "Grid":
In meeting [his] burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability.Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fns. omitted); see, e.g., Heckler v. Campbell, 461 U.S. 458, 461-62, 465-68, 103 S.Ct. 1952, 1954-55, 1956-58 (1983) (upholding the promulgation of the Grid); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41,46 (2d Cir. 1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). "The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Zorilla v. Chater, 915 F. Supp. at 667 n. 2; see 20 C.F.R. § 404.1567(a). Taking account of the claimant's residual functional capacity, age, education, and prior work experience, the Grid yields a decision of "disabled" or "not disabled." 20 C.F.R. § 404.1569, 404 Subpt. P, App. 2, 200.00(a).
See also, e.g., Alvarez v. Barnhardt, 2002 WL 31663570 at *11; Morel v. Massanari, 2001 WL 776950 at *12;Vega v. Commissioner, 1998 WL 255411 at *10; Pickering v.Chater, 951 F. Supp. at 425.
See also, e.g., Perez v. Chater, 77 F.3d at 46;Alvarez v. Barnhardt, 2002 WL 31663570 at *11; Morel v.Massanari, 2001 WL 776950 at *12; Vega v. Commissioner, 1998 WL 255411 at *10; Pickering v. Chater, 951 F. Supp. at 425.
The ALJ determined that DeRoman "retains the functional capacity for light and medium exertional work." (R. 19.) Because the evidence indicates that DeRoman performed her most recent jobs at a "light" or even "sedentary" exertional level, the Court will discuss her ability to perform other light work in the national economy. Light work is defined as involving
a good deal of walking or standing, or, when it involves sitting most of the time, some pushing and pulling of arm or leg controls. It involves 'lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.' To be considered capable of performing a full or wide range of light work, a claimant . . . 'must have the ability to do substantially all of these activities.' [20 C.F.R.] § 416.967(b); see also 20 C.F.R. § 404.1567(b).Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990). Social Security Ruling 83-10 further explains:
See also, e.g., Morel v. Massanari, 2001 WL 776950 at *12; Vega v. Commissioner, 1998 WL 255411 at * 10-11; Pickering v. Chater, 951 F. Supp. at 425 n. 3;Feliciano v. Chater, 931 F. Supp. 215, 220 (S.D.N.Y. 1996),aff'd mem., 108 F.3d 1369 (2d Cir. 1997); McLaughlin v.Chater, No. CV 93-3191, 1996 WL 705281 at *1 (E.D.N.Y. Nov. 25, 1996); Komak v. Chater, No. 94 CV 3225, 1996 WL 622187 at *7-8 (E.D.N.Y. Oct. 22, 1996), aff'd mem., 122 F.3d 1056 (2d Cir. 1997).
Since frequent lifting or carrying requires being on one's feet up to two-thirds of a work day, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour work day. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk.
SSR 83-10, 1983 WL 31251 at *6 (1983).
See also, e.g., Morel v. Massanari, 2001 WL 776950 at * 12-13; Vega v. Commissioner, 1998 WL 255411 at *11; Feliciano v. Chater, 931 F. Supp. at 220; McLaughlin v. Chater, 1996 WL 705281 at *1; Komak v. Chater, 1996 WL 622187 at *8.
DeRoman's treating physicians and the consultative physicians did not describe any limitations on DeRoman's ability to perform light work. Dr. Donatela's Physical Residual Functional Capacity Assessment specifically found that DeRoman could perform all the requirements of light exertional work. (R. 162.) Furthermore, DeRoman's testimony regarding the everyday activities that she performed, including lifting and carrying her eighteen-pound grandchild, is further evidence that she can perform light work. The vocational expert who testified before the ALJ provided three examples of categories of jobs that DeRoman could perform in the national economy; the three categories contained a total of over 50,000 jobs in the national economy and over 4,800 jobs in her region. (R. 49-50.)
Reference to the Grid demonstrates that a person of DeRoman's age (forty-eight years old) (R. 124), transferable skills (none, since her past relevant work was unskilled), and "[i]lliterate or unable to communicate in English" (giving DeRoman the benefit of the doubt on this point), and ability to perform light work is not disabled for purposes of Social Security benefits. See 20 C.F.R. § 404, Subpt. P, App. 2, §§ 201.00(h), 202.16. Thus, the ALJ's decision that DeRoman was not disabled for purposes of Social Security benefits is supported by substantial evidence.
CONCLUSION
For the reasons set forth above, the Commissioner's determination that DeRoman was not disabled within the meaning of the Social Security Act is supported by substantial evidence, and the Commissioner's motion for judgment on the pleadings should 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 ten (10) 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 the Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Casey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).