Opinion
02 Civ. 3121 (JSM) (AJP)
November 26, 2002
REPORT AND RECOMMENDATION
To the Honorable John S. Martin, United States District Judge: Pro se plaintiff Ramon Alvarez 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 Alvarez disability and Supplemental Security Income ("SSI") benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 8-10.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.
PROCEDURAL BACKGROUND
On September 2, 1999, plaintiff Ramon Alvarez applied for Social Security SSI and disability benefits, alleging an inability to work since February 26, 1999. (Dkt. No. 8: Administrative Record filed by the Commissioner ("R.") at 56-58, 66.) Alvarez claimed that he was unable to work due to his HIV positive status, fatigue and back pain. (E.g., R. 28, 66.) Alvarez's application was denied initially (R. 39-42) and upon reconsideration (R. 44-47, 244-47). At Alvarez's request (R. 48), a hearing was held before an administrative law judge ("ALJ") on February 22, 2001 (R. 23, 25, 52). On March 13, 2001, the ALJ issued his decision finding that Alvarez was not disabled. (R. 12-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Alvarez's request for review on January 4, 2002. (R. 5-9.)
FACTS
Alvarez's Hearing Before the ALJ
On February 22, 2001, a hearing was held before ALJ Walter J. Brudzinski. (R. 23-34.) Alvarez was represented at the hearing by Nike Adekunle. (R. 23, 25.)
Alvarez was born in 1957 and was 43 at the time of the hearing. (R. 26.) Alvarez resided with his mother in the Bronx and was receiving public assistance. (R. 25-27; see also R. 80.) Alvarez was educated through the tenth grade and had not received a GED equivalency. (R. 27;see also R. 72.) Alvarez can speak, read and write English. (R. 65.) Alvarez last worked as a stock clerk, frequently lifting heavy items up to 80 pounds, from 1991 to February 26, 1999. (R. 27; see also R. 66-67.) He testified that he would not be able to work in that position any longer because of his HIV and fatigue. (R. 27-28, 33; see also R. 85, 89.) Additionally, Alvarez testified that he had chronic back pain. (R. 28.) Alvarez received an MRI of his lower back the day before the hearing, but had not yet received the results. (R. 32.) Alvarez was not being treated for any psychiatric illness. (R. 28.)
When questioned about his ability to walk, sit and stand, Alvarez responded that he could walk about one city block, sit for about an hour, and stand for one half-hour. (R. 29.) He testified that he did not exercise and "maybe would lift up, like, maybe five pounds." (Id.) Alvarez testified that he spends his days reading and watching TV and that his mother does most of his chores. (R. 30-31; see also R. 80.)
The Medical Evidence Before the ALJ Treating Physician Records
The medical evidence in the record includes records from Throgs Neck Urgent Medical Care (R. 118, 126-47) and Jacobi Medical Center (R. 91-117, 148-52, 161-67). (See also R. 69-70.)
On January 2, 1997, Alvarez was admitted to Jacobi Medical Center for pneumonia and inflamation of the left auditory canal. (R. 92-94, 110-13.) He complained of fever, chills, cough, ear pain and right side chest pain (R. 92.) Alvarez was discharged on January 9, 1997 in "stable" condition and prescribed Tylenol, Amoxicillin and other drugs. (Id.)
On January 13, 1997, Alvarez obtained a second opinion from Throgs Neck Urgent Medical Care. (R. 126.) He was diagnosed as HIV positive. (Id.) A chest x-ray revealed no evidence of pulmonary infiltrates or pleural effusions. (R. 142.)
Pleural effusion is "an accumulation of fluid between . . . the membrane lining the lungs and the chest cavity." The American Medical Association Encyclopedia of Medicine at 802 (Charles B. Clayman, M.D., ed.) (Random House 1989) ("AMA Encyclopedia"). An infiltrate is "[a] cellular infiltration . . . in the lung as inferred from appearance of a localized, ill-defined opacity on a chest radiograph; commonly used to describe a shadow on a radiograph." Stedman's Med. Dictionary 896 (27th ed. 2000). Pulmonary is "relating to the lungs." Id. at 1482.
Alvarez continued to be treated at Throgs Neck Urgent Care through January 4, 1999. (R. 128-47.) On May 13, 1997, Alvarez complained of fever, headaches, chills, sweats and a productive cough. (R. 128.) A chest x-ray revealed no chest disease or change from his previous visit. (R. 143.) On September 16, 1997 Alvarez presented with sores on his lips and tongue and a lesion on the side of his tongue. (R. 132) The doctor recommended that Alvarez go to the Jacobi Hospital Emergency Room (Id.), but there is no evidence that he did so. On September 17, 1997, Alvarez returned to Throgs Neck Urgent Medical Care with a rash on his arms, eyes, and scalp, and he was referred to a dermatologist. (R. 129.) On May 27, 1998 Alvarez complained of chest pain after being hit at work. (R. 133.) An x-ray revealed no rib fracture or acute chest disease. (R. 144.) Alvarez was prescribed Tylenol with codeine for the pain. (R. 133.) On October 29, 1998, Alvarez complained of having a cough, runny nose, and a headache for the previous two days. (R. 134.) An x-ray revealed no change from his last visit. (R. 145.) Alvarez was told to stay off from work for two days, drink fluids and follow up at the Jacobi HIV Clinic. (R. 134.) At this visit, the doctor noted in Alvarez's medical records that Alvarez was not taking medication for his HIV and did not "want to deal with his illness." (R. 134.) On January 4, 1999, Alvarez was diagnosed with pneumonia based on both his symptoms and an x-ray. (R. 135, 141.) He was advised to go to the Jacobi Medical Center Emergency Room. (R. 135.)
After Alvarez stopped working on February 26, 1999, he began receiving treatment at Jacobi Medical Center on March 17, 1999. (R. 108-09.) Alvarez was treated mostly in Jacobi's AIDS Consultation Service Clinic ("ACS"). (R. 97, 99, 103-106.) Alvarez was assessed on March 17, 1999, and it was noted that although he was diagnosed as HIV positive "3 years ago," he "never bother[ed] to get medical follow up" for his HIV condition. (R. 108.)
On April 22, 1999, Alvarez was seen and told to call the clinic for his medication when his insurance was issued. (R. 106.) On May 6, 1999, Alvarez went to the ACS outpatient clinic to begin his medication and for "medication education." (R. 103.) On May 25, 1999, Alvarez's medication was changed after he reported side effects such as insomnia. (R. 102.) Alvarez received check-ups on July 12, 1999 (R. 99) and on August 12, 1999, at which the doctor noted that Alvarez "claims compliance" with treatment, but had "lack of insight and motivation" and only "spotty compliance" with treatment. (R. 97). On December 13, 1999, Alvarez was seen for treatment and the physician noted that he "discussed adherence [to the medication with Alvarez,] but [was] doubtful [that there would be] compliance" with all of the treatment. (R. 151.) Alvarez was also treated on January 18, 2000 (R. 227) and March 16, 2000 (R. 163).
Alvarez was treated on April 19, 1999 and June 1, 1999 in the dermatology clinic with medication for skin infection and molluscum contagiousum. (R. 96, 101.) Alvarez missed appointments he had at the genito-urinary clinic (R. 95, 97, 98, 100, 151) and in opthomology (R. 97) though, he was treated once in ophthalmology (R. 107).
Molluscum Contagiosum is "a harmless viral infection characterized by shiny, pearly white . . . (tiny lumps) on the skin surface." AMA Encyclopedia at 693.
On February 16, 2001, Jacobi physician Dr. Jorge Fleischer reported that Alvarez was still being treated at Jacoby for HIV. Additionally, he diagnosed Alvarez with "Herpes zoster virus-shingles infection[,] chronic back pain" as a result of a "disc herniation and removal of cyst" and "sebhorric dermatitis." (R. 232.)
Sebhorric dermatitis is "a red, scaly, itchy rash that develops on the face . . . scalp, chest and back." AMA Encyclopedia at 345.
Consultative Medical Records
On November 12, 1999, Alvarez was examined by Dr. Pawha of K-M.D. Medical Services on behalf of the Commissioner. (R. 119-22.) Dr. Pawha's report stated that Alvarez requested disability on the basis of HIV and anemia. (R. 119.) Dr. Pawha took a "history of present illness" from Alvarez, who reported having HIV for four years, being on a drug regime since March 1999 that has improved his T-cell count, pneumonia on two occasions in 1998, and a history of thrush, skin rash, anemia and fatigue. (R. 119.) Dr. Pawha reported that Alvarez's gait and station were normal and he had no trouble dressing or undressing and getting on or off the examination table. (R. 119.) His chest x-ray was normal. (R. 121.) Dr. Pawha diagnosed Alvarez with "HIV with a history of weight loss, fatigue, pneumonia, rash and anemia." (Id.) He determined that Alvarez was not impaired for sitting, standing or walking, but was "mildly-moderately impaired" in lifting, carrying, pushing and pulling, while his finger/hand dexterity, hearing, speech and vision were normal. (Id.) Dr. Pawha's prognosis was "[g]uarded." (Id.)
Thrush is also called Candidiasis and is an "infection by the fungus Candidaalbicans, . . . [in] areas of mucous membrane, such as inside the mouth or on moist skin." AMA Encyclopedia at 230.
On March 22, 2000, Dr. Ford performed a residual functional capacity on Alvarez. (R. 153-60.) Dr. Ford found that Alvarez could occasionally lift twenty pounds, frequently lift ten pounds, sit and stand or walk each for about six hours per eight hour work day, and was unlimited in his ability to push or pull. (R. 154.) Dr. Ford also indicated that Alvarez was occasionally limited in his ability to climb, balance, stoop, kneel, crouch, and crawl. (R. 155.) Dr. Ford noted that there were no manipulative, visual, communicative, or environmental limitations. (R. 156-57.)
On May 31, 2000, Dr. David Stein, a physician at Jacobi, reported that Alvarez had AIDS, but had no opportunistic infections nor any current symptoms. (R. 168-69.) Additionally, he indicated that Alvarez had no limitations in his hearing, speaking, vision, travel, ability to remember and carry out instructions, understanding, memory, concentration, persistence, social interaction or adaption. (R. 170-71.) Dr. Stein filled out another report on November 3, 2000. (R. 234-36.) The only change that Dr. Stein reported was that Alvarez was now experiencing "low back pain." (R. 234.) Alvarez still was not impaired in his lifting/carrying, standing/walking, sifting, physical, or environmental functions. (R. 235-36.) Additionally, he could frequently climb, balance, stoop, crouch, kneel, and crawl. (R. 236.)
On July 13, 2000 Alvarez was examined on behalf of the Commissioner by Dr. Graham of HS Systems. (R. 173-75.) Dr. Graham took a medical history from Alvarez, who indicated that he had HIV for five years, and suffered from fatigue, night sweats, history of pneumonia, and an episode of shingles. (R. 173.) Alvarez denied significant weight loss, fever, diarrhea, tuberculosis, lymphoma, Kaposi's sarcoma, meningitis, or neurological involvement of the HIV. (R. 173.) Dr. Graham reported that Alvarez's "station is normal" and he was able "to dress and undress" and "get on and off the examination table without difficulty." (R. 174.) Alvarez's chest x-ray was normal as was his CBC blood test. (R. 175.) Dr. Graham assessed that Alvarez had HIV and "livido reticularis." (R. 175.) Dr. Graham found that Alvarez was "able to sit, stand, walk, lift, carry, handle objects, hear, speak and travel" without limitation. (Id.) Dr. Graham noted that Alvarez's "moderate activities may be limited by fatigue." (Id.) Alvarez's prognosis was "[s]table." (Id.)
Livido reticularis is "a persistent purplish network-patterned discoloration of the skin caused by dilation of the capillaries . . ." Stedman's Med. Dictionary 1025.
The ALJ's Decision
ALJ Walter J. Brudzinski denied Alvarez's applications for SSI and disability benefits in a written decision dated March 13, 2001. (R. 12-22.) The ALJ found that Alvarez had not engaged in any substantial gainful activity since February 26, 1999. (R. 16, 20-21.) The ALJ further found that Alvarez was HIV positive, which is a severe impairment. (R. 16, 21) The ALJ found that Alvarez's impairment did not "meet or equal the criteria for any impairment described in" the regulations (R. 16) and that Alvarez "retains the functional capacity to perform sedentary work activity." (R. 21.)
The ALJ concluded that "the record establishes that the claimant does not have a history of debilitating symptoms secondary to his HIV positive status." (R. 17.) While Alvarez had two episodes of pneumonia in the past, current x-rays "yielded unremarkable results." (R. 16.) The medical records indicated that in "August 1999, it was noted that he had a good appetite and that he did not have fevers, and that in March 2000 it was noted that he was feeling well and that he did not have any complaints." (R. 17.) The ALJ noted that examinations in 1999 and 2000 "yielded unremarkable results" except for evidence of erythema in December 1999. (Id.) Reports by the consultative examiners and Jacobi hospital indicated that Alvarez did not have many limitations and can perform light work activity. (R. 17-18.) The ALJ found that Alvarez's "HIV positive status does not significantly interfere with his activities of daily living." (R. 18.) The ALJ noted that a report from Jacobi Hospital indicated that while Alvarez experienced lower back pain, he did not have limitations pertaining to sitting, standing/walking, and lifting/carrying. (Id.)
Erythema is "redness due to capillary dilation." Stedman's Med. Dictionary 615.
The ALJ further held that there "is no documentation in the record of a medically determinable mental impairment." (R. 19.) Reports indicated that he did not experience "anxiety, depression, sleep disturbance or short-term memory impairment and that he does not have limitations pertaining to understanding and memory, sustained concentration and persistence, social interaction and adaption." (Id.)
The ALJ summarized that "in evaluating the claimant's complaints regarding all symptoms, including but not limited to pain, fatigue, shortness of breath, weakness and /or nervousness, I have carefully considered the nature, location and intensity of the pain and other symptoms, any precipitating or aggravating factors, the effectiveness of medication and other treatment and the claimant's activities . . . [and] I find that the claimant's subjective complaints are not adequately supported by objective findings in the record and are inconsistent with his activities." (R. 19-20.)
The ALJ noted that "during the past fifteen years" Alvarez has worked as a stock clerk and "[i]n as much as the claimant retains the functional capacity for sedentary work activity, he is unable to perform his past relevant work which involved heavy work activity." (R. 20.) The ALJ found that Alvarez was a younger individual with a limited education, who previously was employed in an unskilled job and therefore transferring skills was not an issue. (Id.) Accordingly, the ALJ found Alvarez retained the functional capacity for sedentary work and was not disabled. (Id.)
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 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 he 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., Draegert v.Barnhart, No. 01-6185, 2002 WL 31520637 at *4 (2d Cir. Nov. 14, 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
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., Draegert v. Barnhart, 2002 WL 31520637 at *4; 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.
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).
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 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 *56 (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, Mi.); 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) (Bans, 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., 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);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); 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., 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., 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., Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996). 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).
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, No. 01-6185, 2002 WL 31520637 at *4 (2d Cir. Nov. 14, 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).
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his 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 his medical capacity but also his age, education and training. See, e.g., Draegert v. Barnhart, 2002 WL 31520637 at *4; 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 *45 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 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). 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. The Commissioner's current "treating physician" regulations were approved by the Second Circuit inSchisler 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 ALVAREZ'S CLAIM, BECAUSE ALVAREZ'S COMPLAINT IS CONCLUSORY AND HE 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 Government 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 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.'"); Pena v. Barnhart, 01 Civ 502, 2002 WL 31487903 at *8 (S.D.N.Y. Oct. 29, 2002); Reves 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, Alvarez's pro se complaint states only that he should receive Social Security benefits because of "HIV-[and a] degenerated disc." (Dkt. No. 2: Compl. ¶ 4.) Alvarez has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings, and the deadline for his doing so has passed. Thus, Alvarez does not point to any specific testimony or evidence which he believes the ALJ overlooked, unjustly weighted, or otherwise should have considered. Alvarez'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 rejects 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. 1 (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 ALVAREZ'S CLAIM
For the reasons set forth in Point II above, the Court need not apply the five-step sequence to Alvarez's claims. Even if the Court were to do so, however, the Commissioner's decision that Alvarez was not disabled should be affirmed.
A. Alvarez Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Alvarez was engaged in substantial gainful activity after February 26, 1999. "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 (1993). The ALJ's conclusion that Alvarez was not engaged in substantial gainful activity during the applicable time period is not disputed.
See, e.g., 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. Alvarez Had A Severe Physical Impairment That Significantly Limited His Ability To Do Basic Work Activities
The next step of the analysis is to determine whether Alvarez proved that he had a severe physical impairment or combination of impairments that "significantly limit[ed] [his] 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., 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., 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; see also, e.g., Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 19, 1999) ("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.'") (quoting Social Security Ruling 85-28, 1985 WL 56856 at *3 (SSA 1985), quoted in Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12 (1987)).
"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, 1999 WL 294727 at *5 (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., 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.
The ALJ found that the evidence supported a finding that Alvarez "is HIV positive and that he has an impairment which is severe." (R. 21.) This finding is not disputed.
C. Alvarez Does Not Have A Disability Listed in Appendix I of the Regulations
The third step of the five-part test requires a determination of whether Alvarez 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). The ALJ found that Alvarez's impairments did not meet or equal the severity of any of the listed impairments. (R. 21.)
Accord, e.g., Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *9 (S.D.N.Y. July 11, 2001) (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 regulations provide that "[a]ny individual with HIV infection, including one with a diagnosis of acquired immunodeficiency syndrome (AIDS), may be found disabled under this listing if his or her impairment meets any of the criteria in 14.08 is of equivalent severity to any impairment in 14.08." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.00(D)(1). There is no record of Alvarez having the severity of impairment listed in § 14.08, all of which involve infections, malignant neoplasms, or hematologic or neurological abnormalities. Id. § 14.08, see Castro v. Apfel, No. 99-6009, 189 F.3d 460 (table), 1999 WL 568022 at *1 (2d Cir. July 30, 1999) ("Social Security benefits are not available for positive HIV status unless it is accompanied by one of various related disorders listed under 20 C.F.R. pt. 404, subpt. P, app. 1, § 14.08(A)-(N)."); Pratts v. Chater, 94 F.3d 34, 37-39 (2d Cir. 1996) (When HIV is claimed as a disability, analysis of the same five factors is required as all social security cases.); Perez v. Apfel, 99 Civ. 2183, 2000 WL 124818 at *3 (S.D.N.Y. Feb. 1, 2000) (finding that at step 3, claimants HIV status did not meet or equal an impairment described in the criteria).
Medical findings support the ALJ's determination that Alvarez is not disabled due to HIV or low back pain. Dr. Stein, a physician at Alvarez's treating hospital, noted that on May 31, 2000, Alvarez had no opportunistic infections or current symptoms, nor any limitations in his hearing, speaking, vision, travel, ability to remember and carry out instructions, understanding, memory, concentration, persistence, social interaction or adaption. (R. 168-71.) On November 3, 2000, Dr. Stein reported that there was no change from his May 31 determination except that Alvarez was experiencing "low back pain." (R. 234.) Dr. Stein, however, found that Alvarez still was not impaired in lifting/carrying, standing/walking, sitting or other activities. (R. 234-36.)
Dr. Ford performed a "residual functional capacity" on March 22, 2000 finding that Alvarez could occasionally lift twenty pounds, frequently lift ten pounds, sit, stand or walk each for about six hours in an eight hour workday and was unlimited in his ability to push and pull and only occasionally limited in his ability to climb, balance, stoop, kneel, crouch and crawl. (R. 153-55.)
Alvarez also was examined by two state disability review doctors. An assessment by Dr. Pawha on November 12, 1999 found that Alvarez was not impaired in sitting, standing and walking, though he was "mildly-moderately impaired" in lifting, carrying, pushing and pulling. (R. 121.) Another assessment, by Dr. Graham on July 13, 2000 (R. 173-75), found that Alvarez was "able to sit, stand, walk, lift, carry, handle objects, hear, speak and travel" without limitation, though "moderate activities may be limited by fatigue" (R. 175).
Indeed, none of Alvarez's treating or examining physicians found that Alvarez was disabled due to HIV or back pain — 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"); 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). Additionally, Alvarez himself indicated that he is able to take care of his personal needs and is able to use public transportation.
The Court finds that the ALJ's decision that Alvarez did not satisfy any Appendix I listing is supported by substantial evidence.
D. Alvarez Did Not Have The Ability To Perform His Past Work
The fourth prong of the five part analysis is whether Alvarez had the residual functional capacity to perform his past relevant work. 20 C.F.R. § 404.1520(e). Because Alvarez's past employment as a stock clerk required frequent lifting of heavy items up to 80 pounds (R. 27, 66-67), the ALJ concluded that Alvarez is incapable of resuming his former employment. (R. 21.) This finding is undisputed.
E. Alvarez Can Perform Other Work In The Economy
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, e.g., Curry v. Apfel, 209 F.3d 117, 122-23 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);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.).
See also, e.g., 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; Pratts v.Chater, 94 F.3d 34, 39 (2d Cir. 1996) (application of Grid to HIV);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., 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; 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 Alvarez "retains the functional capacity to perform sedentary work activity." (R. 21.)
Sedentary work is defined as involving "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 416.967(a) 404.1567(a). It is generally agreed by both the Commissioner and the Second Circuit that sedentary work involves sitting six hours out of an eight hour work day. See,e.g., Ferraris v. Heckler, 728 F.2d 582, 587 n. 3 (2d Cir. 1984);Casiano v. Apfel, 39 F. Supp.2d 326, 329 n. 2 (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 (Jan. 14, 2000); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *9 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
Alvarez's treating physicians did not describe any limitations on his activity, and the consultative doctors all found that he had no limitation on standing, sitting or walking and could lift 10-20 pounds, and specifically that he could sit and stand or walk for six hours of an eight hour day. (See pages 6-8 23-24 above.)
Reference to the Grid demonstrates that a person of Alvarez's age (forty-three) (R. 26), transferable skills (none, since Alvarez's last job involved heavy lifting which he can no longer perform), and ability to perform sedentary work is not disabled for purposes of Social Security benefits. See 20 C.F.R. § 404, Subpt. P, App. 2, §§ 201.00(h), 201.24. See, e.g., Castro v. Apfel, No. 99-6009, 189 F.3d 460 (table), 1999 WL 568022 at *1 (2d Cir. July 30, 1999) (affirming the ALJ's decision that an HIV infected individual was not disabled and can work); Gonzalez v. Massanari, 01 Civ. 503, 2002 WL 362759 at *6 (S.D.N.Y. Mar. 6, 2002) (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); Perez v. Apfel, 99 Civ. 2183, 2000 WL 124818 at *4 (S.D.N.Y. Feb. 1, 2000) (affirming the ALJ's decision to deny benefits to an HIV positive individual because he can perform sedentary work); Oyola v. Apfel, 98 Civ. 4746, 1999 WL 511970 at *7-12 (S.D.N.Y. July 20, 1999) (HIV-positive plaintiff's subjective complaints were not supported by objective medical evidence, and while there was evidence in the medical record of back and joint pain, there was no impairment that would prevent her from performing sedentary work.). Thus, the ALJ's decision that Alvarez 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 Alvarez is capable of performing sedentary work and thus 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. (The Court notes that if Alvarez's condition worsens, he can apply for disability benefits with a new onset date.)
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 John S. Martin, 500 Pearl Street, Room 1620, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Martin. 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 v. 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).