Summary
finding that the ALJ's assessment of Plaintiff's limitations was proper, in part because, despite Plaintiff's subjective complaints of side effects, "none of the medical records submitted by [Plaintiff] indicate[d] that he was suffering from side-effects of the medications he was taking"
Summary of this case from Miller v. ColvinOpinion
05 Civ. 5799 (DLC).
September 6, 2006
Laurence Beck Brooklyn, NY, For plaintiff.
Leslie A. Ramirez-Fisher Assistant United States Attorney Southern District of New York New York, NY, For defendant.
OPINION ORDER
Plaintiff Angel Peguero ("Peguero") brings this action for review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") benefits. The Commissioner moves for a reversal and remand of the decision for further development of the record regarding Peguero's mental health treatment. Peguero cross-moves for reversal and remand for calculation of benefits, arguing that the Commissioner did not properly evaluate evidence of his impairments and failed to consider the Social Security Administration's Medical-Vocational Guidelines (the "Guidelines") in making the disability determination. For the following reasons, the Commissioner's motion is granted, and Peguero's motion is denied.
Background
The following facts are taken from the administrative record and are undisputed. Peguero is a 51-year-old resident of the Bronx, New York. Until 1986, when he moved to the United States at the age of approximately 31, Peguero lived in the Dominican Republic. He has a fourth or fifth grade education, and although he speaks fluent Spanish, he does not read or write it competently. He neither reads nor writes English, and he required a Spanish-language translator in order to participate in the proceedings below.
Peguero worked in cabinet-making and construction before he began suffering from the ailments at issue here. He applied for SSI benefits on August 16, 2002, claiming that he had been disabled since 1998 because of hypertension, seasonal allergies, an abnormal EKG, "alcoholic syndrome," and depression. Peguero's claim was denied on initial review on October 7, 2002. Peguero then requested a hearing before an administrative law judge ("ALJ"). The hearing, at which Peguero was represented by an attorney, was held on October 20, 2004.
Although Peguero suggests that he was unable to work beginning in 1998, he does not claim benefits for the period prior to the filing of his application.
Peguero testified before the ALJ that he was no longer drinking and that he was attending alcohol counseling on a daily basis and receiving psychiatric therapy. He also stated that he was on "[a] whole bunch" of medications that were aimed at addressing his blood pressure, insomnia, depression, nerves, and "the voices" he was hearing. Peguero testified that he was living with a woman who helped him around the house, and that he did not cook or do other chores. According to Peguero, he was doing very little outside the apartment other than attending alcohol counseling, and when he was at home, he watched television and slept. The ALJ also heard testimony from a vocational expert who described the types of jobs that Peguero might be able to perform, given his limitations.
On November 23, 2004, the ALJ issued a decision denying Peguero's claim. Although he found that Peguero's ailments severely impaired his ability to work, the ALJ determined that there were "a significant number of jobs . . . that he could perform." As a result, the ALJ concluded that Peguero was not disabled within the meaning of the Social Security Act (the "Act"). Peguero requested review by the Appeals Council of the Social Security Administration (the "SSA"), which affirmed the ALJ's decision on March 17, 2005. Peguero then filed this action for review of the Commissioner's denial of benefits on June 22, 2005.
The Commissioner now moves for reversal and remand on the limited ground that the ALJ did not sufficiently develop the record regarding the mental health treatment Peguero had received. Peguero cross-moves for a reversal of the ALJ's decision and a remand solely for the purpose of calculating the SSI benefits due him, arguing that: (1) the ALJ made errors in evaluating evidence of the severity of Peguero's occupational limitations, and (2) even if the ALJ's view of Peguero's limitations were correct, the range of jobs that Peguero could perform is so limited that he should have been deemed disabled in light of the Guidelines. Discussion
Peguero also argues in the alternative that if the decision is remanded for the correction of legal errors or supplementation of the medical record, rather than simply for the computation of benefits, (1) the "limited part" of the ALJ's decision regarding the "environmental limitations" on Peguero's employment should be upheld, and (2) the Commissioner should be instructed to make a renewed determination of Peguero's eligibility within 60-120 days.
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court may set aside a determination of the ALJ only if it is based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "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." Halloran v. Barhhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Furthermore, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995), and thus, the reviewing court does not decide the case de novo. Halloran, 362 F.3d at 31 (citation omitted).
The Commissioner will find a claimant disabled under the Act if the claimant demonstrates the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted . . . for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) (1) (A). 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, 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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers in either the region where such individual lives, or in several regions of the country.Id. § 423(d) (2) (A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d) (3).
The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520 and 416.920. The Second Circuit has described the process as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Rosa, 168 F.3d at 77 (citation omitted). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Here, the ALJ found at step one that there was conflicting evidence regarding Peguero's work history but proceeded through the remaining four steps on the assumption that Peguero was not gainfully employed. At steps two and three, the ALJ concluded that although Peguero suffered from "severe" impairments, they were not among the ailments that would automatically entitle him to SSI benefits. At steps four and five, the ALJ determined that Peguero was unable to engage in his previous work, but that he retained the functional capacity to perform other jobs, subject to the following restrictions: (1) he could not be exposed to fumes, odors, dusts, gasses, poor ventilation, hot and cold temperature extremes, extreme wetness and humidity, and direct sunlight; and (2) he could only perform work that involved simple, routine, repetitive tasks, did not involve quotas or mathematical calculations, could be learned through oral instructions given in Spanish, and required only occasional interaction with others. The ALJ determined that there were "no exertional limitations" on the types of work Peguero could do. Relying on the testimony of the vocational expert that 500 jobs meeting those criteria existed in the New York area, and 75,000 such jobs existed nationally, the ALJ concluded that there was a "significant number of jobs in the national economy" that Peguero could perform.
A. Evidence of Peguero's Functional Limitations
Peguero argues that the ALJ erred in assessing his functional limitations by: (1) failing to take into account the time demands of Peguero's alcohol counseling and psychotherapy; (2) exaggerating the activities of daily living that Peguero could perform; and (3) according only minimal weight to a physician's assessment of Peguero's physical limitations. With the exception of the ALJ's evaluation of the physician's assessment, none of these alleged errors require remand or reversal.
1. Counseling and Therapy
Peguero's first argument is that it was unreasonable for the ALJ to expect him to work, given his daily treatment for alcoholism. He has submitted no evidence, however, that the counseling services are unavailable outside of working hours. Peguero's speculation that his alcohol treatment schedule might be incompatible with full-time employment is insufficient to demonstrate that the ALJ's conclusion was erroneous.
Peguero asserts that the Commissioner should have demonstrated that counseling services are available outside of working hours. This is incorrect. Although the ALJ in a SSI proceeding bears an "obligation to develop the record in light of the non-adversarial nature of the benefits proceedings," Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000), it would be unreasonable to require him to address every contingency of a claimant's potential employment arrangement — particularly where, as here, the issue is not raised by the claimant or his attorney at the hearing.
2. Activities of Daily Living
Peguero's second argument is that the ALJ minimized certain of his impairments — in particular, the side-effects of his medication, his difficulties using public transportation unassisted, and his inability to be active for "sustained periods." The ALJ found that Peguero's subjective allegations regarding these impairments were "exaggerated and not fully credible."
In determining whether a claimant is disabled, an ALJ must consider the claimant's subjective complaints of pain and other symptoms. See 20 C.F.R. § 416.929(c) (3) ("Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms."). Where a claimant's subjective complaints are inconsistent with the overall medical evidence, however, the adjudicator is not required to accept them as true. 20 C.F.R. § 416.929(c) (4). Because determinations of witness credibility must be made by the Secretary, rather than the reviewing court, if such a finding is supported by substantial evidence, "the court must uphold the ALJ's decision to discount a claimant's subjective complaints." Aponte v. Sec'y of Health and Human Serv., 728 F.2d 588, 591 (2d Cir. 1984).
The ALJ's conclusions regarding the extent of Peguero's limitations are not beyond dispute, but they are supported by sufficient evidence to place them outside the scope of review here. For example, the ALJ pointed to a July 2002 physician's examination in which Peguero was found to be able to "walk, sit, stand, lift, carry, handle objects, hear, speak, and travel." The physician's notes also reflected "normal" behavior and affect, and no limitations in the range of motion of Peguero's joints or spine. Peguero's daily activities were described as "watching television, reading, taking walks, going to the store and cooking on occasion." The ALJ also highlighted a psychiatric evaluation of Peguero that was performed the same month. The doctor noted that, although Peguero could not handle money and had "difficulty in understanding and following instructions and relating to people, supervisors and the pressure of the work setting," he led a "fairly active life" that involved seeing friends, watching television, and taking walks. Another psychiatric review, which was performed in September 2002, concluded that Peguero suffered only "mild" limitations in his activities of daily living and ability to maintain social functioning, and "moderate" limitations in his ability to maintain concentration. The ALJ also noted that Peguero stated on an August 2002 New York State disability form that he traveled unaccompanied on public transportation. Finally, the ALJ pointed out that none of the medical records submitted by Peguero indicate that he was suffering from side-effects of the medications he was taking. Substantial evidence therefore supports the ALJ's assessment of Peguero's functional limitations.
3. Opinion of Dr. Blum
Peguero's third argument is that the ALJ improperly accorded minimal weight to the opinion of Dr. Blum, a physician who evaluated Peguero in April 2003, and concluded that his disabilities impaired his capacity to lift, stand, and walk. The ALJ wrote:
While [Dr. Blum] opined that the claimant could lift and carry only 10 pounds frequently, and had a limited ability to sit, stand, and walk, he provides no specific limitations or objective findings to support any such limits. . . . [Dr. Blum's opinion] has been afforded only minimal weight. It is not supported by any specific clinical or objective findings, and is at odds with the minimal findings and treatment contained in this physician's office treatment notes. Moreover, it is inconsistent with the examination and findings of the consultative physician. Moreover, it is inconsistent with the claimant's activities of daily living, which will be discussed below.
The opinion of a treating physician is typically given "controlling weight if it is well supported by medical findings and is not inconsistent with other substantial evidence." Rosa, 168 F.3d at 78-79. Moreover, "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." Id. at 79. Here, the ALJ's rejection of Dr. Blum's conclusion regarding Peguero's physical limitations was based, at least in part, on the doctor's failure to describe the medical findings on which he based his opinion. Because there is no evidence that the ALJ contacted Dr. Blum to request further information regarding the basis of his conclusions, the ALJ's decision to discount the doctor's opinion requires remand. See, e.g., id. ("Even if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from the treating physician sua sponte." (Citation omitted.))
As noted above, the Commissioner requests remand on the additional ground that the ALJ did not sufficiently develop the record regarding Peguero's mental health treatment at the Hunts Point Multiservice Program ("Hunts Point"). The Commissioner states that, although the record "suggests ongoing treatment at Hunts Point," the ALJ reviewed only the initial evaluation reports and medication lists from the facility. Peguero does not dispute the insufficiency of this record, and the matter will be remanded for this reason, as well.
B. The Medical-Vocational Guidelines
The SSA has adopted rules to guide decisionmakers in determining, at step five, whether there is work in the national economy that the claimant is able to perform. 20 C.F.R. Part 404, Subpart P, App. 2. These Medical-Vocational Guidelines (the "Guidelines") take "administrative notice . . . of the numbers of unskilled jobs that exist throughout the national economy at various functional levels" and direct a conclusion, based on a claimant's residual functional capacity and vocational capabilities, as to whether or not he is disabled. Id. at § 200.00(a) — (b). Notably, however, "[t]he rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments." Id. at § 200.00(e) (1). In other words, the Guidelines do not bind decisionmakers in cases involving claimants like Peguero, whose impairments do not restrict their movement or strength.
Although Peguero acknowledges that the Guidelines do not speak directly to his situation, he argues that the ALJ should have found him to be disabled by comparing him to individuals whowould be covered by the Guidelines. For example, Peguero notes that a person his age, who is unable to communicate in English, lacks previous work experience in a "skilled" field, and is limited to performing "light" work, would be considered disabled under the Guidelines. Id. at § 202.09 ("Rule 202.09"). Peguero is not limited to light work, but otherwise meets the criteria of Rule 202.09. According to Peguero, the other limitations on his employment mean that the range of jobs open to him is even more restricted than the range available to people who would be considered disabled under Rule 202.09. As a matter of logic, then, he must be disabled, too.
Although Peguero contends elsewhere in his motion papers that the Commissioner erred in rejecting Dr. Blum's finding that Peguero had certain physical impairments, he accepts, for the purposes of this argument, the ALJ's assessment of his limitations.
This argument fails. The Guidelines provide a way to estimate the level of relevant work available in the national economywithout using a vocational expert. Here, however, because the Guidelines did not apply, the SSA did consult a vocational expert. This expert provided a personalized estimate of the number of jobs in both the local and national economies that Peguero could perform, given his impairments. The relevant question, then, is not how Peguero compares to certain categories of claimants under the Guidelines, but whether the vocational expert's assessment of the quantity of jobs available to someone with Peguero's limitations is sufficiently high to qualify as a "significant" number under the Social Security Act. Peguero has provided no authority for his implicit argument that a vocational expert's precisely tailored estimate of the number of jobs a claimant could perform should be overridden by the rough approximations of the Guidelines.
The one case on which Peguero relies — Cooper v. Sullivan, 880 F.2d 1152 (9th Cir. 1989) — addressed a claimant who was affected by both exertional and nonexertional limitations. In such situations, the regulations explicitly instruct the factfinder to use the Guidelines as a framework for determining the availability of work. 20 C.F.R. Part 404, Subpart P, App. 2 § 200.00(e) (2). The Guidelines do not contain a comparable instruction when a claimant, like Peguero, suffers only from nonexertional limitations. Peguero also points to an excerpt from the SSA's Program Operations Manual System ("POMS"), which states that the Guidelines should be used as "guidance as to the proper decision of `disabled' or `not disabled.'" Even if "guidance" could be read as a binding instruction, there is no indication that the POMS procedures would be applicable to a case in which a vocational expert has testified.
Moreover, Peguero has not identified substantial legal precedent for the proposition that the expert's figures — 500 jobs in the New York area and 75,000 in the United States — are so low that Peguero must be considered disabled. The Commissioner, on the other hand, points to three cases from other circuits holding that the existence of 500 relevant jobs in a local economy could defeat a finding of disability. See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988); Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987).
Peguero cites a handful of cases from other district courts holding that 30,000 or fewer jobs do not constitute a "significant" number. See, e.g., Walker v. Shalala, 1994 WL 171209, at *2 (S.D. Tex. Jan. 6, 1994) (18,000 jobs "not a significant number"); Hodges v. Sec'y of Health and Human Serv., 1989 WL 281926, at *5 (N.D.N.Y. Nov. 15, 1989) (30,000 jobs "not very substantial"). These cases are not dispositive, however, as the vocational expert here testified that there were as many as four times the number of jobs available to Peguero.
C. Peguero's Other Arguments
Peguero argues that, in lieu of remand for further proceedings, he should be awarded benefits. Such an award is only appropriate in the rare circumstance where there is "persuasive evidence of total disability that render[s] any further proceedings pointless." Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999). Peguero has not made such a showing here.
Peguero also suggests that the Court should impose a limit on the amount of time the Commissioner is given to perform further administrative proceedings. He points to the Second Circuit's decision in Butts v. Barnhart, 388 F.3d 377 (2d Cir. 2004), in which the Commissioner was instructed to complete further proceedings before an ALJ within 60 days. Butts, 388 F.3d at 387. The decision in Butts was rendered eight years after the claimant initially applied for benefits, and the court noted that "the past delay is of such magnitude — years — that a time limit is imperative." Id. The court also urged district courts to consider imposing time limits "in cases involving an ALJ's failure to call a vocational expert." Id. While a swift resolution of Peguero's claim is obviously desirable, a time limit is not warranted here, since (1) the case does not involve the failure to call a vocational expert, but rather, the failure to develop sufficiently the medical record — a much more complicated undertaking; and (2) Peguero's claim has not been delayed to the same extent as the claimant's in Butts.
Finally, Peguero requests that the Court "affirm" the ALJ's finding that the type of work he can perform is limited by certain environmental factors. Although the nature of this request is not entirely clear, Peguero appears to argue that the ALJ should be barred from altering this finding on remand. While the finding of environmental limitations is supported by substantial evidence and is therefore "affirmed" to the extent that the ALJ will not be instructed to revisit it on remand, Peguero has provided no factual basis or legal authority for prohibiting the ALJ from revisiting the issue if new evidence is discovered.
Conclusion
For the reasons explained above, the Commissioner's motion for an order reversing her final decision is granted. Peguero's cross-motion is denied. The case is remanded to the Commissioner pursuant to sentence four of Section 405(g) for further administrative proceedings consistent with this Opinion. The Clerk of Court shall enter judgment for the plaintiff and close the case.
SO ORDERED: