Summary
upholding the ALJ's decision that the HIV positive claimant was not disabled and can perform light work despite possible side effects and fatigue from his HIV
Summary of this case from Alvarez v. BarnhardtOpinion
01 CIV. 503 (DLC)
March 5, 2002
Frank Gonzalez, N Y, Pro Se
Lorraine S. Novinski, Assistant United States Attorney, New York, N Y, Attorney for the Defendant
OPINION AND ORDER
On January 22, 2001, Frank Gonzalez ("Gonzalez") filed this action pursuant to Section 405(g) of the Social Security Act, 42 U.S.C. § 405et seq., seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") disability benefits. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. Gonzalez has not opposed the Commissioner's motion. For the reasons set forth below, the Commissioner's motion is granted.
BACKGROUND
Gonzalez was born on August 24, 1962. He attended school through the tenth grade and can read and write in English. Gonzalez was incarcerated from 1986 through 1993. After his release in February 1993 and until December 1994, he worked for a maintenance company, buffing and waxing floors and cleaning office buildings. He was reincarcerated in 1995 on drug-related offenses. From October 1996 to August 1997, Gonzalez worked as an inventory clerk for a recycling business as part of a work release program. Gonzalez's duties as an inventory clerk required him to lift bags of 250 empty cans weighing ten to fifteen pounds each.
Gonzalez stated elsewhere that as an inventory clerk, he frequently lifted fifty pounds and that the heaviest weight he lifted was 100 pounds. He stated in another place in the record that the heaviest and most frequently-lifted weight was ten pounds.
Gonzalez returned to prison in August 1997, after he violated the conditions of his work release program by using heroin. Gonzalez was released from prison in January 1998. He has resided in housing provided by New York City's Division of AIDS Services ("DAS") since his release. In March 1999, Gonzalez was receiving $230 a month from DAS.
A. Medical History
Gonzalez was diagnosed with HIV by Dr. Manglapus on August 14, 1997, while incarcerated at the Mohawk Correctional Facility ("Mohawk"). In November 1997, Gonzalez, under the care of Dr. Manglapus at Mohawk, began taking anti-viral medication for his HIV infection. Upon release from prison, Gonzalez ceased taking his anti-viral medication for a three month period, from January 14, 1998 to March 17, 1998, because of the side-effects of the medication. These side-effects included diarrhea, back and leg pain, and rashes.
On February 13, 1998, Gonzalez sought treatment at the Spellman Center of St. Clare's Hospital and Medical Center ("Spellman Center"). Gonzalez resumed taking his anti-viral medication on March 17, 1998. Gonzalez has received regular care at the Spellman Center since February 1998 and has been treated for skin rashes, minor penile warts, and upper respiratory infections. His medical records indicate that he has been symptomatic only once, in June 1998.
Gonzalez's primary treating physician at the Spellman Center was Dr. Ian Tang. On July 8, 1998, Dr. Tang completed a medical report regarding the extent of Gonzalez's HIV disability. Dr. Tang reported that Gonzalez tested positive for HIV and Hepatitis A, B, and C. He indicated that Gonzalez's condition did not produce any physical limitations on his ability to sit, stand, walk, lift, carry, or handle objects. Dr. Tang's report also noted that Gonzalez did not suffer from any mental impairments that would affect his understanding, memory, concentration, persistence, social interaction, or adaption to a work environment. On September 28, 1998, Dr. Tang re-examined Gonzalez and reported the same findings as in his July 1998 evaluation. Plaintiff's most recent medical examination with Dr. Tang was November 1998. The medical chart from that examination does not reference side-effects such as night sweats or knee and elbow pain.
At the hearing before the ALJ, Gonzalez stated that Dr. Tang was no longer at the Spellman Center and that he was currently being treated by Dr. Shettie.
On October 2, 1998, plaintiff was examined by Dr. Peter E. Graham, a New York State consulting physician. Gonzalez described a fifteen-pound weight loss over the past year, as well as night sweats and fatigue after walking three blocks. Dr. Graham reported that Gonzalez had full range of motion in his joints, adequate muscle strength, no muscle atrophy, and normal hand dexterity. He concluded that Gonzalez suffered from no limitations in sitting, walking, lifting, carrying, handling objects, hearing, speaking, and traveling.
Since March 1998, plaintiff has also been under the care of Dr. Eugene Silbermann for opiate dependency. Gonzalez has been using heroin intravenously since age fifteen. Although Gonzalez testified that he has not used heroin since he violated his work release program in August 1997, Dr. Silbermann's report from October 21, 1998, indicated that Gonzalez is undergoing a methadone treatment program for continued use of illicit drugs. In his October 1998 report, Dr. Silbermann anticipated that Gonzalez would be stabilized in one to three months.
At the March 1999 hearing before Administrative Law Judge Robin J. Artz, Gonzalez testified that he had not been hospitalized overnight or taken to the emergency room for any reason since March 1998. Judge Artz asked Gonzalez about the symptoms and problems he had been experiencing. Gonzalez replied:
I be having some problems probably from the after effects from the medication. I have diarrhea, back pains, my legs hurt sometimes. . . . I be tired a lot and it's in my medical record, I'm taking — I forget the name of it. It's for giving me — I lost my appetite and medications on there [the list] is for appetite, because I don't eat that much now. Well, ever since I've been taking that, I gain more — you know, I have an appetite now.
Gonzalez stated that the side effects included diarrhea and a rash that seemed to be from his medication. He added that "basically the medication I'm on now is working good, because everything is going good now. You get these side-effects, but that's something that I have to deal with when I'm taking the medication." Gonzalez stated that he had experienced only one infection since he was diagnosed; he believed he had an infection when he was first treated at the Spellman Center. Gonzalez stated that he suffered from night sweats and pain in his knees and elbows, and that his elbow and knee problem began approximately one month prior to the hearing.
At the hearing, Gonzalez stated that he could walk for about a mile at a slow pace before he needed to stop and rest. He noted that he could stand for at least two hours before he needed to sit down and that he tired easily because of the pain in his knees. He stated that he could bend down and pick items up off the floor. He said that sometimes he had difficulty sitting for too long, but that he could sit two to three hours. Judge Artz then asked him about his ability to lift and carry weight:
Gonzalez's statement about his ability to sit is ambiguous. Judge Artz asked if he had problems sitting for as long as he wanted to, and Gonzalez replied: "Sometimes I can't sit too long. I can't sit too long." Judge Artz asked: "And how long were you able to sit before?" Gonzales stated: "I say, I say like two or three hours."
Q: Do you have any problems using your hands and arms?
A: No.
Q: If you had to go to the store a block from your house to buy one gallon of milk. One of those big Would you be able to carry that home?
A: Yes.
Q: Would you be able to carry two gallons of milk? That's about 16 pounds?
A: I be able to carry it yeah, but, you know, I got to take a rest, because on this —
Q: How much weight do you think you are able to lift and carry constantly?
A: Weight?
Q: Yes.
A: Let's see. Go to the supermarket from my house. I carry — I put like two liter sodas and. and I switch it from hand and hand. At one time the weight at least 10 pounds, 10 or 15 pounds.
Gonzalez is currently taking a variety of anti-viral, pain and other medications, including Vinacept, Combivar, Hydroxyzi and Lamisil, and Piroxican for pain in his knees, elbows and back. The records from the Spellman Center reveal that Gonzalez's HIV infection is currently well-controlled by his medications. Gonzalez's T-cell counts were consistently normal throughout 1998, and his last T-cell count — in September 1998 — was 390, or within the normal range.
B. Procedural History
Gonzalez applied for SSI benefits on March 10, 1998. The application was denied on August 5, 1998, and his request for reconsideration was denied on November 17, 1998. Gonzalez's application for benefits was denied by the ALJ after a hearing held on March 11, 1999. Gonzalez's request for an Appeals Council review was denied on September 22, 2000.
The Government moved for judgment on the pleadings on November 11, 2001. By Order of October 15, 2001, any opposition was to be filed by December 7, 2001. Gonzalez has not submitted opposition to the Government's motion.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may:
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.42 U.S.C. § 405(g). The factual findings of the Commissioner, are conclusive if supported by substantial evidence. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). The district court is not to determinede novo whether the plaintiff is disabled. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Rather, it is to "determine whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Id. (citation omitted) "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." Id. (citation omitted). This Court may set aside a determination of the ALJ only if it is "based upon legal error or . . . not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted).
The ALJ's decision must be guided by the appropriate legal standards.Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). To be "disabled" for the purposes of the Social Security Act, a claimant must demonstrate:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A); see also Shaw, 221 F.3d at 131. Further, the claimant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d) (2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d) (3).
The Social Security Administration uses a five-step process to make determinations of disability. See 20 C.F.R. § 404.1520 416.920. The Second Circuit has summarized the procedure as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa, 168 F.3d at 77 (citations omitted). In determining whether the claimant can perform other work, the ALJ determines first whether the applicant retains residual functional capacity for work-related activities. If the applicant is subject only to exertional, or strength, limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
B. Commissioner's Findings
The ALJ found that Gonzalez (1) had not engaged in substantial gainful activity since March 10, 1998, when he filed his SSI application; (2) has a severe impairment because he has an HIV infection, a condition that "imposes more than a minimal or slight limitation on the claimant's ability to perform basic work-related activities;" (3) does not have an impairment, or combination of impairments, listed in, or equivalent to those listed in, 20 C.F.R. § 12.04, app. 1; (4) is unable to perform his past relevant work as an inventory clerk and maintenance worker; and (5) has a residual functional capacity to perform exertionally light work. Gonzalez received a full hearing and was advised of and waived his right to counsel. He also offered into evidence supplemental medical records from his treatment at the Spellman Center.
Judge Artz found that Gonzalez's substance abuse was not a severe impairment because "given that [Gonzalez] was able to perform a job for at least two years while he steadily was using heroin, his heroin use does not interfere with his ability to work and thus is not a severe impairment."
The ALJ concluded that Gonzalez was unable to perform his past relevant work because his HIV infection limited him from performing such work. Although the reports from both Gonzalez's treating physician, Dr. Tang, and the consulting physician, Dr. Graham, indicated that Gonzalez was not limited in his ability to do work-related activities, Judge Artz explained:
Since HIV is an active infection from its inception and reasonably may be expected to cause intermittent fatigue and weakness from its outset, it is not reasonable to find that the claimant has no physical limitations, despite these reports. It is not reasonable to expect the claimant to be able to do strenuous work.
Both of Gonzalez's previous jobs involved frequent lifting, bending and carrying, and Judge Artz found that given Gonzalez's HIV infection, he no longer possessed the residual functional capacity to perform those activities.
The ALJ also concluded that Gonzalez had residual functional capacity to do light work. She explained that "[a]lthough the claimant has numerous subjective complaints, the testimony and objective documentary evidence presented herein, reveal a person who is able to perform light work activity, on a sustained basis." Judge Artz based her decision on Dr. Graham's report, which stated that Gonzalez suffered from no functional limitations, the records and tests of Gonzalez's treating physicians at the Spellman Center, and Gonzalez's testimony that he was able to sit for two or three hours, walk a mile, carry ten to fifteen pounds, and stand for at least two hours. Judge Artz gave significant weight to the testimony of the consulting physician, Dr. Graham, and controlling weight to the testimony of the treating physician, Dr. Tang. She further concluded:
Moreover, the claimant described exertional capacity for between sedentary and light work activity, with the only limit on light being an ability to lift and carry up to 15 pounds. The objective medical evidence and testimony, therefore, support a finding that the claimant retains the ability to perform light work activity on a sustained basis.
Judge Artz considered Gonzalez's subjective complaints of pain and other symptoms — warts, rashes, tiredness, lack of sleep, night sweats, back and leg pain, and other side-effects from his anti-viral medication — and found that they were "not of such a severity, persistence, or intensity as to preclude all work activity." Judge Artz found that Gonzalez's statements regarding his limitations were
not supported by the objective medical evidence of record, clinical findings, medical treatment received, or his own statements regarding his activities of daily living. Although the claimant may have experienced some pain and discomfort in the past, such conditions appear to have resolved and do not impose any significant restrictions affecting his ability to work.
Based on his capacity to do light work, and given his age, education and past relevant work, the ALJ concluded that there was work Gonzalez could perform. Consequently, the ALJ determined that Gonzalez was not and had not been disabled since March 10, 1998.
Gonzalez was 35 when he applied for benefits and 36 at the time of the hearing, and thus was a "younger individual." His education through the tenth grade was defined as limited education, and his past relevant work as a maintenance worker and inventory clerk qualified as unskilled, exertionally medium level work.
The ALJ's conclusion that the Commissioner satisfied his burden of proving that "there is other work which the claimant could perform" because Gonzalez retained the ability to perform light work is supported by substantial evidence. Rosa, 168 F.3d at 77 (citation omitted). Light work requires
Although the Government has not challenged the ALJ's finding that plaintiff is incapable of returning to his previous work, this determination is also supported by substantial evidence, including Gonzalez's testimony of his limitations and the fact of his HIV infection.
lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567 (emphasis supplied). An activity is frequent if it occurs "from one-third to two-thirds of the time." Soc. Sec. Rul. 83-10, 1983-1991 Soc. Sec. Rep. Ser. 24, 1983 WL 31251, at *6 (1983). Further, "the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." Id.
The ALJ found that Gonzalez was able to perform light work based on his testimony and his medical records. Judge Artz considered Gonzalez's testimony. "[T]he subjective experience of pain can support a finding of disability" when supported by medical findings that show that the claimant has an impairment that could be expected to produce pain. Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). The ALJ found that Gonzalez's "statements of his symptoms and limitations are credible but do not support a finding that he is disabled." Further, the ALJ found that Gonzalez's complaints were not supported by the medical evidence.
Judge Artz gave significant weight to Dr. Graham's testimony that Gonzalez was able to "sit, stand, walk, lift, carry, handle objects, hear, speak and travel." She gave controlling weight to the testimony of Dr. Tang, Gonzalez's treating physician, that Gonzalez's HIV infection did not create any physical limitations on plaintiff's ability to lift and carry, stand and walk, sit, push and pull, or perform light work.
The opinion of a treating physician "is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence." Shaw, 221 F.3d at 134.
The objective medical evidence indicates no limitation that would prevent Gonzalez from performing light work. His medical records from the Spellman Center and the reports by Drs. Tang and Graham do not show that Gonzalez suffered from any limitation at the time of his hearing in March 1999. Gonzalez had not been hospitalized since he applied for benefits, and his T-cell counts and "viral loads" were normal.
Further, Gonzalez's own testimony indicates that he would be able to do light work. Light work requires lifting of no more than twenty pounds with frequent lifting of ten pounds. Gonzalez stated that he could lift up to sixteen pounds at one time and carry ten to fifteen pounds constantly. Light work requires standing or walking off and on for six of an eight-hour day. Gonzalez testified that he could walk for about a mile at a slow pace before he needed to stop and rest, stand for at least two hours continuously, and sit for two to three hours continuously.
Light work also requires sitting with some pushing and pulling of arm or leg controls. Gonzalez testified that he could bend down and pick items up off the floor and that he could use his hands and arms without limitation. Although he testified that he was experiencing night sweats, rashes, fatigue, diarrhea, and pain in his back, legs and elbows, these complaints are not reflected in his most recent medical records and are in tension with Gonzalez's testimony that his current medication produced fewer side-effects and had helped improved his appetite.
In sum, while Gonzalez may occasionally experience side-effects of his medication, in light of Gonzalez's medical records showing no limitation and the fact that his testimony regarding his ability was largely consistent with the requirements of light work, Judge Artz's conclusion that Gonzalez could perform light work and thus was not disabled was supported by substantial evidence.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court shall close the case.
SO ORDERED: