Opinion
01 Civ. 0902 (RWS)
December 12, 2002
IRA H. ZUCKERMAN, ESQ., MAX D. LEIFER, P.C., New York, NY, for Plaintiff.
JAMES B. COMEY, United States Attorney for the Southern District of New York, JOHN E. GURA, JR., Assistant US Attorney, New York, NY, for Defendant.
OPINION
Defendant Jo Anne B. Barhart, the Commissioner of Social Security (the "Commissioner"), has moved pursuant to Rule 12(c), Fed.R.Civ.P., for judgment on the pleadings to dismiss the complaint of plaintiff Gail Norris ("Norris"). Norris brought this action to review the decision of the Commissioner finding that she was not entitled to disability insurance benefits under the Social Security Act (the "Act"). For the following reasons, the Commissioner's motion is granted.
Prior Proceedings
Norris filed an application for disability insurance benefits on June 13, 1996. The application was denied initially and on reconsideration. Norris then requested a hearing which was held on January 20, 1998. Following the hearing, the Administrative Law Judge ("ALJ") vacated the reconsideration determination and remanded the matter to the state agency for an evaluation of Norris' allegations of a mental impairment. On reconsideration, Norris' claim was denied. A second administrative hearing was held on November 24, 1998. The ALJ considered the case de novo and on December 28, 1998, found that Norris was not under a disability prior to June 30, 1993, the date by which Norris' insured status expired. The ALJ's decision became final when the Appeals Council denied Norris' request for review on December 8, 2000. Norris filed suit with this Court on February 6, 2001. Motions were marked fully submitted on July 10, 2002.
Issue on Appeal
The issue on appeal is whether substantial evidence supports the Commissioner's decision that Norris was not disabled from February 16, 1990, her alleged disability onset date, to June 30, 1993, the date her insured status expired.
Facts
Norris was born on October 31, 1951 and was thirty-eight years old at the time she alleges her disability began. She graduated from high school and received three years of beauty school training. Norris worked as a hair dresser from 1969 through 1990. From 1982 she owned and managed her own beauty shop until it burned down in 1990. During an examination on June 18, 1998, Norris stated that she became disabled as of February 16, 1990, the day she gave birth to twins. From May 1990 through September 1993, Norris was treated at DOCS, a medical group affiliated with Beth Israel Hospital.
Starting in May 1990, Norris sought medical help. The examining physician noted two problems, a toe contusion and postpartum depression. Her physician started her on a trial of Prozac. Norris indicated that she felt better when examined on July 9, 1990, although she also reported experiencing some panic attacks. The following month Norris was treated for complaints of swelling in her right ear canal.
Five months later Norris was seen at DOCS for complaints of right elbow pain and for a breast examination. The examining physician's assessment was epicondylitis (also referred to as "tennis elbow") and Norris was given a prescription for Naprosyn. Norris was next examined on March 19, 1991, and complained of headaches, weakness and a cough. The examining physician diagnosed acute pharyngitis and tracheitis and referred Norris for a complete blood count. A follow-up examination four days later revealed left lower lobe rhonchi and expiratory wheezes. Norris was not taking any medication. On April 9, Norris reported that she was still coughing and wheezing and her physician increased her dosage of Proventil. On June 18, 1991, Norris had her prescription for Prozac refilled.
Norris returned to DOCS on August 16, 1991, complaining of a "pins and needles" feeling on the left side of her face, headaches, low energy and fatigue. Norris told the examining physician that she had been to the emergency room two weeks earlier for chest complaints. An electrocardiogram and lab test results taken at the emergency room were negative. In December 1991, Norris received treatment for a persistent cough, bronchitis, and the flu. On January 9, 1992, Norris was assessed as suffering from fatigue, depression and an electrocardiogram abnormality.
On January 20, 1992, Dr. Judith Monteferrante conducted a cardiac evaluation. Norris reported an episode of chest discomfort in October 1991 which had lasted for a few days. Since that time, Norris reported that she experienced multiple episodes of palpitations, which were not caused by exertion or stress. Upon physical examination, Norris was well-developed, moderately obese, and in no acute distress. Her lungs were clear and equal bilaterally. A cardiac examination revealed a soft systolic murmur while sitting but could not be duplicated supine with multiple maneuvers.
On March 24, 1992, Norris reported chronic neck pain and indicated that she felt a lump on her breasts. On examination, her breasts were normal. The examining physician prescribed a trial of Anaprox. On May 18, 1992, Norris reported bilateral knee pain with tenderness and swelling with no trauma being the cause. The examining physician's assessment was anemia and possible arthritis. The physician prescribed Naprosyn and ordered a knee x-ray. On August 14, 1992, Norris reported a history of headaches, knee and ankle pain. On examination, her gait was impaired by pain. The examining physician decided to rule out arthritic syndrome and multiple sclerosis and therefore ordered laboratory testing.
Dr. Azia Eshragahi examined Norris on December 18, 1992 and offered a provisional diagnosis of cervical and lumbar radiculopathy. Dr. Eshragahi reported no obvious spasm of the lumbar spine and a neurological examination revealed hypoesthesia. In a later examination on March 31, 1993, Dr. Eshragahi offered a provisional diagnosis of acute low back pain.
Following the expiration of her insured status on June 30, 1993, Norris saw DOCS' physicians two more times. On August 18, 1993, Dr. Rosemarin reported that Norris continued to do well on weight loss medications and reported no other problems. On September 24, 1993, Norris reported neck pain, headaches, a cough and a worsening of left knee pain.
On January 10, 1994, after slipping and falling on her knees, Norris saw Dr. Insler for complaints of knee pain. Dr. Insler prescribed Tylenol with codeine, physical therapy, and a knee immobilizer. Thereafter, Drs. Insler, Fay and Small treated Norris for knee and ankle complaints.
On February 4, 1994, Dr. Fay reported that Norris was experiencing persistent left knee pain since falling six weeks earlier. Norris underwent arthoscopy and partial lateral measurement of the left knee on February 18, 1994. Two years later, on May 31, 1996, Norris underwent the same operation on her right knee. On April 22, 1997, Dr. Fay opined that Norris could occasionally lift and carry five pounds, stand and/or walk less than two hours per day and sit without limitation. Norris could push and/or pull with her upper extremities but not with her lower extremities. On November 10, 1997, Norris underwent arthoscopic fusion of the left ankle.
Norris was also seen by Dr. Richard Landau and Dr. Firmer primarily for respiratory ailments, including pneumonia and bronchitis. On June 2, 1996, Dr. Landau provided a summary of Norris' condition and an assessment of her functioning. Dr. Landau indicated that he had examined Norris every three to six months since March 2, 1992. His current diagnoses were bronchitis and bronchiectasis. Dr. Landau reported that Norris had no physical or other objective signs of chronic fatigue. He also indicated that Norris was depressed secondary to fatigue. With respect to Norris' ability to work, Dr. Landau opined that Norris could occasionally lift and carry objects weighing twenty pounds, stand and/or walk up to two hours per day, and sit without limitation. Norris had no limitations on her ability to push and pull foot or hand controls. On July 15, 1998, Dr. Firmer submitted an assessment of Norris' ability to work. He opined that Norris could lift up to five pounds occasionally, stand and/or walk less than two hours per day, and sit without limitation. He also reported that Norris had no limitation of her upper extremities but could not push or pull with lower extremities due to pain. Norris had no other limitations.
Norris was also examined by Dr. William Latham, a consulting physician, on July 19, 1996. He opined that Norris could perform work-related activities in a sedentary position.
On March 30, 1998, Norris was examined by Dr. Kathleen Acer, Ph.D., a consulting psychologist. Based on a mental status evaluation, she opined that Norris would have some difficulty relating to co-workers or supervision and handling work stresses. On June 18, 1998, Dr. Jerome Siller, Ph.D. conducted a psychological evaluation of Norris. Based on Norris' symptoms and his examination, Dr. Siller opined that Norris' medical and depressive state prevented her from employment and normal life since 1990.
Discussion
This Court reviews the Commissioner's decision to determine whether it is based upon correct legal standards and is supported by substantial evidence in the record as a whole. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted). Substantial evidence is "more than a mere scintilla" and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). If there is substantial evidence in the record to support the Commissioner's factual findings they are conclusive and must be upheld. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996);Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (citations omitted). The Court is not empowered to make a de novo determination of whether Norris is disabled.
In order to establish disability under the Act, Norris must prove that: (1) she is unable to engage in substantial gainful activity by reason of a physical or mental impairment expected to result in death or which has lasted or could be expected to last for a continuous period of at least twelve months; and (2) the existence of such impairment was demonstrated by medically acceptable clinical and laboratory techniques.See 42 U.S.C. § 1382c(a)(3); see also Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983). The Social Security regulations establish a five-step process, see 20 C.F.R. § 404.1520 and § 416.920, for determining whether an impairment is of sufficient severity:
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; the [Commissioner] presumes that a claimant who is afflicted with a `listed' impairment is unable to perform substantial gainful activity. 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. . . . [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.DeChirco v. Callahan, 134 F.3d 1177, 1180-01 (2d Cir. 1998); citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
According to Norris, the ALJ ignored the fact that the physical conditions described in the post-1993 treatment relate to conditions that existed while Norris had coverage. For example, the knee surgeries of 1994 and 1996 relate to knee problems during her eligibility period. Moreover, Norris contends that the ALJ incorrectly interprets and disregards the reports of Drs. Siller and Acer. Norris further contends that as the ALJ acknowledged that Norris could no longer work as a hairdresser, that the burden therefore shifts to defendant to establish that other jobs exist for her. Norris argues that defendant has failed to establish that such employment exists.
In this case the relevant period is from February 1990 (the alleged onset date) through June 30, 1993 (the date last insured). The ALJ decided that despite her orthopedic and respiratory impairments, Norris retained the ability to perform sedentary work that did not involve pulmonary irritants. The ALJ further determined that although Norris' impairments prevented her from doing her past work as a hairdresser, she was capable of performing other work in the national economy prior to June 30, 1993.
Substantial evidence supports the ALJ's decision that Norris was not disabled prior to the expiration of her insured status on June 30, 1993. In order to qualify for disability insurance benefits, the disability must commence at a time when the claimant met the insured status requirements for such benefits. See 20 C.F.R. § 404.130, 404.315. Evidence of an impairment that reached disabling severity after the expiration of an individuals' insured status cannot be the basis for a disability determination, even though the impairment itself may have existed before the individual's insured status expired. Arone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989); see 42 U.S.C. § 423(a)(1)(A) and 423(c).
A review of the medical evidence does not reveal an orthopedic impediment that would have prevented Norris from performing sedentary work through June 1993. The ALJ further considered Norris' allegations of lung problems and reasonably concluded the she need only avoid concentrated exposure to pulmonary irritants during the relevant period. The ALJ considered evidence of a mental impairment and found that the record did not document the existence of severe depression lasting twelve continuous months during the relevant period.
Moreover, the ALJ determined that the Norris' testimony was not credible because it was not supported by the record and undermined by inconsistent statements. The determination of credibility must be accepted by a reviewing court unless clearly erroneous. Centano v. Apfel, 73 F. Supp.2d 333, 338 (S.D.N.Y. 1999). Initially Norris testified that she closed her business in 1989 due to the severity of impairments. However, she subsequently admitted that she closed the business only after it burned down. The record does not show a persistent, diagnosed orthopedic impairment prior to June 30, 1993.
The ALJ analyzed opinions provided by examining sources before finding Norris was not disabled. Most notably, Dr. Siller's assessment was contradicted by the opinion of Dr. Landau who, unlike Dr. Siller, treated Norris during the relevant period. Dr. Landau reported that Norris had not displayed any behavior suggestive of a significant psychiatric disorder and opined that Norris' limitations did not preclude her from performing sedentary work.
Considering Norris' residual functional capacity for sedentary work with restrictions with respect to respiratory irritants, the ALJ concluded that Norris could not perform her past work as a hairdresser. To support his finding of ability to perform sedentary work, the ALJ adopted the functional assessment provided by Dr. Landau, who treated Norris during the relevant period. The ALJ determined that Norris was thirty-eight years of age at the time of alleged onset of disability, was a high school graduate, and that her past work skills were not transferable. These factors, coupled with Norris' residual functional capacity for sedentary work, correspond to Rule 201.28 of the medical vocational guidelines at 20 C.F.R. part 404, Subpart P, Appendix 2. Rule 201.28 directs a finding that an individual with this profile is not disabled. 20 C.F.R. § 404.1569. The ALJ also concluded that Norris also had certain non-exertional, respiratory, limitations. When the limitations imposed by an individual's impairments affect her ability to meet the strength requirements of a job and non-exertional demands of a job, the medical-vocational guidelines are used as a framework for decision-making. 20 C.F.R. § 404.1569-a(d).
Conclusion
The ALJ's decision was based on substantial evidence and is affirmed.