Opinion
00 Civ. 9171 (RWS)
March 22, 2002
Barbara Finkelstein, Esq., Elyse J. Factor, Esq., Westchester/Putnam Legal Services, Inc., Yonkers, NY, for Plaintiff.
Honorable James B. Comey, United States Attorney for the Southern District of New York, John E. Gura, Jr., Assistant U.S. Attorney, New York, NY, for Defendant.
O P I N I O N
Plaintiff Juana Ortiz ("Ortiz") brought this action pursuant to Section 205(g) of the Social Security Act (the "Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of defendant Jo Anne B. Barnhart, the Commissioner of the Social Security Administration (the "Commissioner"), denying Ortiz's request for disability insurance benefits. Both Ortiz and the Commissioner have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. Rule 12(c).
For the reasons discussed below, the plaintiff's motion is denied and the defendant's motion is granted.
Background
Ortiz filed an application for disability insurance on February 25, 1998, alleging that she had been disabled since 1995 due to a combination of psychiatric and physical impairments including depression, panic disorder, personality disorder, asthma and migraine headaches. The application was denied initially and on reconsideration.
At a hearing held on February 2, 2000, Administrative Law Judge Dennis G. Katz (the "ALJ"), before whom Ortiz appeared, considered the case de novo and on March 13, 2000, found that Ortiz was not under a disability. That decision became the final decision of the Commissioner when the Social Security Administration Appeals Council ("Appeals Council") denied Ortiz's request for review on October 6, 2000.
This action was initiated by Ortiz by the filing of a complaint on December 4, 2000. The defendant served her answer on June 7, 2001. Ortiz filed her Rule 12(c) motion on December 5, 2001, and the Commissioner filed her cross-motion on January 3, 2002.
Ortiz was born on October 22, 1960, and completed a ninth grade education as well as nurse's training. At the time of the administrative hearing, she had last worked as a home attendant from 1990 to 1994. Ortiz stopped working because she was depressed and became anxious and forgetful. Ortiz has also provided child care for her daughter's child since 1998. The care involved changing, dressing and feeding her granddaughter, as well as taking her for short walks and watching television with her. Ortiz also took care of her own personal needs during this period and did her own laundry.
Medical Evidence
Ortiz visited St. Vincent's Hospital on May 12, 1998 complaining of symptoms of anxiety and depression. At the time, a psychologist, Dr. Leo Leiderman, performed an initial assessment of Ortiz. His diagnoses of Ortiz were: Axis I, major recurrent depression with psychotic panic disorder without agoraphobia, rule out alcohol abuse, rule out post-traumatic stress disorder; Axis II, personality disorder, not otherwise specified; Axis III, family/primary support, social/relationships, occupational, economic, legal system/crime; Axis V, GAF at admission of 50.
The DSM-IV multiaxial scale assesses an individual's mental and physical condition on five axes, each of which refers to a different class of information. Axis I refers to clinical disorders; Axis II refers to developmental and personality disorders; Axis III refers to general medical conditions; Axis IV refers to psychosocial and environment problems; and Axis V cites the individual's global assessment of functioning ("GAF"). Diagnostic and Statistical Manual of Mental Disorders 27 ("DSM-V") (4th ed. text rev. 2000).
A GAF of between 41 and 50 is indicated when an individual either has some impairment in reality testing or communication (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social occupational or school functioning (e.g., no friends, unable to keep a job).
Based on the evaluation, Ortiz was admitted to St. Vincent's outpatient mental health clinic. Plaintiff was treated at St. Vincent's until June 1999.
She was seen individually by Miriam J. Cruz-Soto, R.N.; Michel Bensadon, Ph.D.; and Dr. Adolph Soto. She also participated in group therapy. Throughout her treatment, Ortiz denied any suicidal or homicidal ideation. At an initial session on June 18, 1998, Cruz-Soto noted Ortiz was verbal, cooperative, friendly and had good eye contact.
At the next session on June 25, 1998, Ortiz stated she was depressed, irritable, and had decreased energy and aches and pains.
She also requested that her medication be changed because she was not sleeping.
On June 25, 1998, Ortiz attended a medical management treatment session with Dr. Soto. Ortiz stated that she felt very paranoid and heard voices at night. She said that the prescription drug Buspar helped the anxiousness but had not eased the fearfulness and paranoid thoughts. Dr. Soto then prescribed her the anti-psychotic, Zyprexa, and renewed her prescription for Buspar.
Cruz-Soto saw Ortiz four times in July. Plaintiff appeared more relaxed and was verbal, cooperative and friendly.
Her paranoid feelings were less intense, but she continued to feel irritable and depressed. By July 30, 1998, Ortiz told Cruz-Soto she was feeling better.
Cruz-Soto saw Ortiz three times in August. At the first two sessions, on August 13 and 20, Ortiz was upset and discussed problems she was having with her daughter and family life. On August 27, 1998, Ortiz was doing "very well" and showed increased insight regarding her problems and illness. Ortiz reported an increase in self-esteem, a desire to be healthy for her unborn grandchild, and the potential to start "dating again."
Plaintiff saw Dr. Soto on September 9, 1998, and renewed her prescription for Buspar. Ortiz reported feeling anxious about her daughter, her soon-to-be-born grandchild, and her financial situation.
When plaintiff next saw Cruz-Soto on September 19, 1998, her granddaughter had been born. Ortiz was upset about the increased demands placed on her. She was angry, hurt, resentful, frustrated, and worried about her granddaughter. Ortiz had three sessions with Cruz-Soto in October 1998.
At first, Ortiz was sad, angry and stressed because her daughter and granddaughter had left her house. Ortiz had her last session with Cruz-Soto on October 21, 1998. At that session, Ortiz was more relaxed and animated. Her daughter and the baby had returned home. Cruz-Soto reported that the plaintiff had made progress.
She controlled her anger better and her anxiety and depression had decreased. She verbalized feelings without being self-destructive and complied with her treatment. At that session, Cruz-Soto introduced Ortiz to Bensadon, who took over her treatment. Ortiz saw Dr. Soto on November 9, 1998, when he renewed her prescription for Buspar. He reported that Ortiz was less depressed but was still quite anxious and somatically preoccupied.
Ortiz attended her first session with Bensadon on December 15, 1998. At the session, she reported long-standing symptoms of anxiety and panic attacks. She was also anxious that her daughter and granddaughter lived intermittently with her daughter's boyfriend. Ortiz was worried about her daughter's leaving her because she depended on her daughter for rent.
In January 1999, Ortiz attended three sessions with Bensadon. On January 11, Bensadon noted Ortiz was confused, conflicted, anhedonic, given to panic attacks, and "likes nothing, can stand very little short contact with others and is hopeless about her life." Later that month, Bensadon reported that Ortiz appeared less depressed, less stressed, and more optimistic. Her granddaughter was now living with her.
Plaintiff attended sessions with Bensadon on February 11 and March 5, 1999. She was depressed about her daughter and felt overwhelmed. Bensadon recommended group therapy for Ortiz. At a March 11 session, Bensadon reported that Ortiz was calm and in good spirits, but noted that if her environment disintegrated "she will once again appear as she had previously, depressed and despondent."
Plaintiff attended three group therapy sessions led by Bensadon. During them, she was quiet and withdrawn. Ortiz nonetheless always appeared on time and remained attentive. Ortiz also took part in group therapy in May 1999. Ortiz made an effort to participate in these sessions.
On June 8, 1999, Dr. Soto provided an assessment of Ortiz's ability to perform work-related activities. He described her as recurrently depressed and anxious. He noted that plaintiff's ability to follow work rules, use judgment, and function independently was fair. She had a fair ability to understand, remember and carry out instructions. She could also maintain her personal appearance. Her ability to relate to co-workers, deal with the public, interact with supervisor(s), deal with work stress and maintain attention/concentration was poor.
According to the assessment form, "fair" means that the individual's ability is limited but satisfactory. "Poor" means that the individual's ability is seriously limited but not precluded.
Her ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability was poor. Dr. Soto opined that Ortiz could manage benefits in her own best interest. Dr. Soto later noted, on October 5, 1999, that Ortiz had had a substance abuse disorder in the past, but that it was in complete remission while she was treated at St. Vincent's.
After leaving treatment at St. Vincent's outpatient program, Ortiz began treatment in the care of Dr. Kouyhoumdjian at St. Joseph's Medical Center on November 4, 1999. Dr. Kouyhoumdjian saw Ortiz four to five times from November 4, 1999 to January 20, 2000. He indicated that Ortiz's depression was mild to moderate but noted that if her conditions were any more severe, she would require inpatient psychiatric care. He also noted that Ortiz had a substance abuse disorder, which had been in remission for at least two years. Dr. Kouyhoumdjian noted that Ortiz's memory was fair to good, and her concentration was poor. Her reasoning was coherent and her mood was depressed. She could take care of her personal needs at a basic level. Dr. Kouyhoumdjian was prescribing the following medications at the time of this report: Serzone, an antidepressant, 300 mg daily; Neurontin, a mood stabilizer, 100 mg twice daily; and Zyprexa, an antipsychotic, 5 mg at bedtime.
Dr. Kouyhoumdjian also assessed plaintiff's ability to perform work-related activities. He noted that Ortiz's ability to carry out simple job instructions, maintain her personal appearance, and demonstrate reliability was fair. He rated as poor all other abilities: to make occupational adjustments; to understand, remember and carry out complex or detailed instructions; to behave in an emotionally stable manner; and to relate predictably in social situations. Ortiz could, however, manage benefits in her own best interest. Dr. Kouyhoumdjian noted Ortiz remained depressed.
Ortiz's personal physician, Dr. Michele St. Louis of the Montefiore Family Health Center, also provided an assessment of Ortiz's ability to work. Dr. St. Louise diagnosed asthma and depression. She indicated that Ortiz could lift up to twenty pounds and occasionally carry up to twenty pounds. Ortiz had no limitation in sitting, standing, or walking. Ortiz experienced "some shortness of breath when walking at times." Dr. St. Louise also noted that as a result of her asthma, Ortiz had certain environmental restrictions including exposure to dust, fumes, temperature extremes, chemicals, humidity, heights, and moving machinery. A physical examination revealed that Ortiz's lungs were clear and her joints had no swelling.
Discussion
Ortiz claims she is entitled to benefits for her disability. The issue here is whether there is substantial evidence to support the Commissioner's finding that Ortiz is not disabled, as that term is defined in 42 U.S.C. § 423(d). This Court finds that there is.
I. Rule 12(c)
In deciding a motion for judgment on the pleadings, the court is generally limited to considering the factual allegations set forth in the complaint and corresponding answer. Fed.R.Civ.P. 12(c). A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law. Juster Assocs. v. Rutland, 901 F.2d 266 (2d Cir. 1990); Adames v. Chater, No. 95 Civ. 9384, 1996 WL 306549 (S.D.N.Y. 1996); Madonna v. United States, 783 F. Supp. 165 (S.D.N.Y. 1992).
II. The Scope of Judicial Review/Standard of Judicial Review
The Act provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
Thus, the Commissioner's determination must be upheld if the Court finds there is substantial evidence supporting it, even if there is also substantial evidence for the plaintiff's position. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (Commissioner's decision affirmed where substantial evidence for both sides). Substantial evidence in this context has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427, quoting Consolidated Edison co. v. NLRB, 305 U.S. 197, 229 (1938); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
The substantial evidence test applies not only to findings on basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968); Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y.1995); Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977). The rule that the Commissioner's findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive applies even in those instances where a reviewing court's independent analysis of the evidence may differ from the Commissioner's analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
In short, the reviewing court is not to decide the case de novo. Schaal v. Apfel, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
III. Burden of Proof
In order to establish disability under the Act, Ortiz has the burden of establishing: (1) that she was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment was demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques. 42 U.S.C. § 423(d)(1)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
More particularly, the Act provides:
[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . .42 U.S.C. § 423(d)(2).
For a person to be found disabled within the meaning of the Act, it is not sufficient that she establish the mere presence of a disease or impairment. The claimant bears the burden of persuasion to show that the disease or impairment has caused functional limitations that preclude her from engaging in any substantial gainful activity and thus that she is entitled to benefits. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983).
The Commissioner has established a five-step sequential evaluation for adjudication of disability claims, 20 C.F.R. § 416.920, which the Second Circuit Court of Appeals has articulated 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 "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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord DeChirico, 134 F.3d at 1179-80. The Supreme Court has noted that in determining whether a claimant can perform less strenuous work, the Commissioner must assess each claimant's individual abilities. Heckler v. Campbell, 461 U.S. 458, 467 (1983). In making these decisions, the Commissioner must consider objective medical evidence, opinions of examining physicians, subjective evidence of pain and disability and a claimant's age, educational background and work history. Mongeur, 722 F.2d at 1037 (citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Parker, 626 F.2d at 231; Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
IV. The Commissioner's Decision
The ALJ evaluated Ortiz's claim pursuant to the sequential evaluation regulation, 20 C.F.R. § 404.1520, and determined that while Ortiz had asthma and depression, she did not have an impairment or combination of impairments that met or equaled the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P. The ALJ further found that Ortiz had the residual functional capacity to perform simple medium work activity. Because Ortiz's past work as a home attendant did not require exertional levels or mental demands in excess of those found by the ALJ, he therefore concluded that plaintiff was not disabled. The ALJ's finding is supported by substantial evidence.
Medium work involves lifting no more than fifty pounds at a time with frequent lifting or carrying of object weighing twenty-five pounds. 20 C.F.R. § 416.967(c).
While plaintiff has put forward some evidence to the contrary, that is not sufficient for this court to overturn the ALJ's finding. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998).
Plaintiff's treating physician, Dr. St. Louis, indicated that Ortiz can perform the basic physical activities required by work, such as sitting, standing, and walking. Dr. St. Louis also noted that Ortiz could frequently lift and occasionally carry objects weighing up to twenty pounds.
Further, the restrictions Dr. St. Louis placed on Ortiz's ability to work did not preclude her from performing her home attendant job. Dr. St. Louis stated that Ortiz could not perform fine manipulations or work in settings where she would be exposed to dust, temperature extremes, chemicals, and fumes. These restrictions do not limit Ortiz's ability to fulfil the requirements of her past work as described by her and as usually performed in the national economy. Ortiz described her duties as involving shopping, cooking, and light cleaning for the sick or elderly. According to the Department of Labor, a home attendant performs simple tasks that do not require fine manipulations.
Department of Labor, Dictionary of Occupational Titles, § 354.377-014 (4th ed., rev. 1991). Because the job takes place in a home or institutional setting, it does not involve exposure to pulmonary irritants. Id. A home attendant may also assist patients into and out of bed or help with dressing, bathing, and grooming. Ortiz's inabilities do not interfere with these tasks.
The ALJ found that the record supported that Ortiz is functionally able to do the tasks required of her past work. As Dr. Kouyhoumdjian noted, Ortiz had a fair ability to understand, remember, and carry out her job instructions. In addition, the requirements of her past work were nearly identical to many of the same tasks she performed for her granddaughter, such as cooking, cleaning and grooming. In terms of mental demands, the job of home attendant requires only the ability to apply common-sense understanding to carry out instructions in written, oral, or diagrammatic form, and deal with problems involving several concrete variables.
The ALJ also found substantial evidence to support the fact that Ortiz's diagnosed depression should not prevent her from performing her past work. He found that she lived independently, performed her own household chores, and displayed sufficient resourcefulness to obtain custody of her granddaughter. In fact, her treating therapist noted that Ortiz performed very well when she had a goal, and recommended that she seek a job or other activity. In addition, Ortiz's condition responded well to treatment.
In finding that Ortiz retained the ability to do her past work, the ALJ also considered plaintiff's subjective complaints of totally disabling pain and other subjective symptoms. Subjective symptomology, by itself, cannot be the basis for a finding of disability. A claimant must demonstrate that she has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms. 20 C.F.R. § 404.1529(b). Therefore, if objective medical evidence does not suffice to support a claimant's allegations, the Commissioner considers such factors as the claimant's daily activities; the intensity of her symptoms; any precipitating and aggravating factors; the type of medication prescribed and its side effects; any other treatment; and any measure that the claimant has used to relieve her symptoms. 20 C.F.R. § 416.929(c)(3). The ALJ also has the discretion to evaluate the credibility of the claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by claimant. Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).
The ALJ reviewed the medical findings for the relevant time period, including the functional assessment by Dr. St. Louis, and determined that plaintiff's complaints of joint pain and shortness of breath upon exertion were not credible to the extent alleged. The ALJ noted that Dr. St. Louis, a treating source, placed no restrictions on plaintiff's ability to walk, sit or stand, and indicated she could frequently lift up to twenty pounds.
In addition, the ALJ found that the plaintiff's mental condition did not impair her ability to perform activities of daily living.
The ALJ noted that plaintiff lived independently, cared for her granddaughter, socialized with her sister and mother, and related well to her therapists. In terms of concentration and memory, Ortiz watched movies, news and other programs, which she understood. The ALJ also found that she could recall the requirements of her past work and other events in her life. The ALJ's assessment of Ortiz's pain and other subjective symptoms was therefore appropriate.
For the foregoing reasons, the plaintiff's motion is dismissed and the defendant's motion is granted.
It is so ordered.