Opinion
00 Civ. 8954 (GBD)(JCF)
April 25, 2002
REPORT AND RECOMMENDATION
The plaintiff, Francisco Reyes, brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking judicial review of a determination by the Commissioner of the Social Security Administration (the "Commissioner") denying Mr. Reyes' application for Disability Insurance Benefits ("disability insurance") and Supplement Security Income ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The plaintiff, proceeding pro se, was given the opportunity to respond to the motion but did not do so. For the reasons that follow, I recommend that the Commissioner's motion be granted.
Background
Francisco Reyes was born in Puerto Rico on December 3, 1936. (Tr. at 34). At the time he filed his application, he was sixty years old. (Tr. at 203). Mr. Reyes has resided in the Bronx, New York, for approximately twenty years. (Tr. at 34). He has a first grade education and speaks Spanish, but he cannot read or write in Spanish or English. (Tr. at 36). Mr. Reyes was a full-time doorman and janitor in a cooperative building for approximately fifteen years before he was laid off on September 24, 1990. (Tr. at 37, 119). From 1994 to 1997, Mr. Reyes worked for the New York City Sanitation Department roughly thirty-one to thirty-five hours per week loading garbage onto trucks as part of a welfare-to-work program. (Tr. at 39-40).
"Tr. refers to the Administrative Record filed with the commissioner's answer.
Procedural History
On July 8, 1997, Mr. Reyes applied for disability insurance benefits and SSI alleging disability due to back pain that began on September 21, 1990. (Tr. at 12-13, 73). When his application was denied initially and on reconsideration, he requested a hearing before an administrative law judge ("ALJ"). (Tr. at 52-61, 210-13). At the hearing on August 20, 1998, the plaintiff waived his right to counsel and testified with the assistance of a Spanish-speaking interpreter. (Tr. at 25-27). In sum, Mr. Reyes testified to continual pain in his legs and back. He stated that he also experienced occasional pain in his shoulders and hands, which he attributed to possible arthritis. On March 26, 1999, the ALJ issued a decision holding that Mr. Reyes was not disabled at any time since September 21, 1990, because he did not have a severe impairment or combination of impairments. (Tr. at 12). This determination became the final decision of the Commissioner when the Appeals Council adopted it on September 29, 2000. (Tr. at 4-5).
The plaintiff filed the instant complaint on October 10, 1999, alleging that he had been disabled since 1997 due to pain and swelling in his legs.
In his initial application, Mr. Reyes alleged disability due to back pain that began in 1990. (Tr. at 12-13). In his current complaint, however, he contends that he is disabled due to leg pain and swelling that began in 1997. In order to construe the claims of this pro se litigant most broadly, both sets of complaints shall be considered here.
Medical History
Based upon Mr. Reyes' earnings record, the ALJ determined that he last met the insured disability status requirements of the Social Security Act on December 31, 1994. (Tr. at 12-13). Thus, disability must be established on or before that date.A. Medical History Before December 31, 1994
Mr. Reyes' medical documentation preceding December 31, 1994, consists of clinical records from the Bronx-Lebanon Family Practice Center ("Bronx-Lebanon") and clinical notes from Dr. William H. Kalafatic, his treating physician.
Although the file is not consistently legible, it is clear that Mr. Reyes complained of back and knee pain during his initial visit to Bronx-Lebanon on March 2, 1992, two years after the onset of his alleged disability. (Tr. at 187). Following this appointment, Mr. Reyes returned to Bronx-Lebanon at least ten more times during 1992. (Tr. at 172-86). On nearly every one of these occasions, the plaintiff complained of general muscle cramps without indicating exactly where they occurred in his body. (Tr. at 172-86). Mr. Reyes was prescribed Motrin and quinine to minimize his pain and subsequently reported that his cramps had lessened. (Tr. at 172-86). In 1993, the plaintiff visited Bronx-Lebanon two times. (Tr. at 170-71). On both of these occasions he complained of muscle cramps, but he mentioned lower back pain only at the first. (Tr. at 170-71).
Although once used to prevent and control malaria, quinine also has analgesic properties. Dorland's Illustrated Medical Dictionary ("Dorland's") at 1507 (29th ed. 2000).
During his initial appointment with Dr. Kalafatic on July 1, 1994, the plaintiff's chief complaint was lower back pain. (Tr. at 124). Mr. Reyes saw Dr. Kalafatic at least two more times that year, but it is unclear from the record what the reasons for these visits were and what treatment was prescribed, if any. (Tr. at 125).
In 1991, Mr. Reyes was under psychiatric care for six to seven months for nervousness. It was determined that this condition was the result of drinking too much coffee, and once Mr. Reyes stopped drinking coffee, his symptoms disappeared. (Tr. at 44-46).
B. Medical History After December 31, 1994
Mr. Reyes' medical history after December 31, 1994, consists of reports from Dr. Kalafatic and a consulting physician and the records from Bronx-Lebanon. In addition, Mr. Reyes also had two x-rays taken of his back during this period.On July 5, 1995, Dr. Kalafatic performed a physical examination on Mr. Reyes after he complained of back pain. The record does not reveal what the results of this examination were. The plaintiff saw Dr. Kalafatic fifteen more times between July 5, 1995, and December 16, 1998. On at least eleven of these ocassions, Mr. Reyes mentioned back pain. (Tr. at 126-33). Accordingly, Dr. Kalafatic prescribed anti-inflammatory agents, such as Naprosyn, to reduce the pain, which they reportedly did. (Tr. at 101, 129). Upon Dr. Kalafatic's recommendation, the plaintiff had x-rays taken of his back on September 15, 1995, and August 26, 1997. Both x-rays were unremarkable and showed that Mr. Reyes' lumbosacral spine was normal in all respects. (Tr. at 102, 105).
Naprosyn is the trademark name for naproxen, a nonsteroidal anti-inflammatory agent. Dorland's, at 1177.
Dr. Mario Mancheno, a consulting physician, examined Mr. Reyes on August 26, 1997. His report noted that the plaintiff reported an abnormal MRI, but did not state what the abnormalities were. Dr. Mancheno observed that the plaintiff's neck, upper and lower extremities, muscle power and tone, and neurology were all normal. He did, however, find that the plaintiff had some tenderness in his lower back. Dr. Mancheno diagnosed Mr. Reyes with discogenic disorder of the lumbosacral spine and found that his abilities to lift, carry, stand, walk, push, pull and sit were mildly impaired. The doctor gave Mr. Reyes a fair prognosis. (Tr. at 103-04).
Mr. Reyes returned to Bronx-Lebanon three times between December 31, 1994, and January 26, 1998. Only on the first of these visits did the plaintiff complain of back pain. All clinical records for this time period show that Mr. Reyes was healthy. (Tr. at 154, 168-69, 192-202).
In 1998, Mr. Reyes tested positive for exposure to tuberculosis and was prescribed prophylaxis medication by Dr. Kalafatic. (Tr. at 120).
Discussion
A. Standard of ReviewThe scope of judicial review of an SSI and disability insurance determination involves two levels of inquiry. First, the court reviews the Commissioner's decision to determine whether the correct legal standard and principles of law were applied. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983 985 (2d Cir. 1987); Lugo v. Chater, 932 F. Supp. 497, 500 (S.D.N Y 1996). Second, the court must determine whether the ALJ's decision was supported by substantial evidence. See Rosa, 168 F.3d at 77; Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Torres v. Shalala, 938 F. Supp. 211, 215 (S.D.N.Y. 1996); Lugo, 932 F. Supp. at 500; see also 42 U.S.C. § 405(g) (providing that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive"). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)); see Rosa, 168 F.3d at 77; Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). "[T]o determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence[.]" Brown, 174 F.3d at 62 (quotation and citation omitted).
In addition, a reviewing court must be satisfied that the claimant had "a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982) (quotation and citation omitted). Accordingly, the ALJ must have issued a written decision explaining the reasons for his or her findings. 20 C.F.R. § 404.953(a). "`It is self-evident that a determination by the [Commissioner] must contain a sufficient explanation of [her] reasoning to permit the reviewing court to judge the adequacy of [her] conclusions.'" Lugo, 932 F. Supp. at 501 (quoting Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991)); see also White v. Secretary of Health and Human Services, 910 F.2d 64, 65 (2d Cir. 1990).
A claimant seeking disability benefits under the Social Security Act is considered disabled if 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In order to determine whether a claimant is disabled, the ALJ follows a five-step process outlined in regulations promulgated under the Social Security Act. See 20 C.F.R. § 416.920; see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (describing five-step process in parallel statutory provision for disability benefits); Rosa, 168 F.3d at 77 (same); Balsamo, 142 F.3d at 79-80 (same). First, the ALJ determines if the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 416.920(b). If he is not, the ALJ must decide if the claimant has a severe impairment, one that "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). If the claimant's impairment is severe and is either listed in 20 C.F.R. Part 404, Subpt. P, App. 1, or is equivalent to a listed impairment, the claimant must automatically be found disabled without considering vocational factors such as age, education, and work experience. See 20 C.F.R. § 416.920(d). If the claimant's impairment is severe but is not listed or equal to a listed impairment, a finding of not disabled is directed if his residual functional capacity permits him to do the work he did in the past. See 20 C.F.R. § 416.920(e). If the claimant is unable to perform his past work, the ALJ must decide if there is other available work that the claimant is able to perform based on his residual functional capacity, age, education, and past work. See 20 C.F.R. § 404.920(f).
The claimant bears the burden of proof with respect to the first four steps of the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rosa, 168 F.3d at 77; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
B. The ALJ's Decision
The ALJ determined Mr. Reyes was not disabled, stating that there was "no objective medical evidence that [Mr. Reyes] was treated or examined for a back impairment prior to December 31, 1994, or was disabled at any time since September 21, 1990, because of any impairment." (Tr. at 13). The ALJ established that based upon his earnings record, Mr. Reyes last met the insured status requirements of the Social Security Act on December 31, 1994. (Tr. at 12-13). The ALJ also determined that Mr. Reyes' "occasional lower back pain is not a severe impairment, since it does not impose significant limitations on the claimant's basic work related activities." (Tr. at 13). He found that the plaintiff's "subjective complaint of lower back pain prior to December 31, 1994, is not a medically determinable impairment." (Tr. at 13). Because the objective medical record reflected only "occasional minor findings of lower back tenderness," the ALJ concluded that Mr. Reyes "has not had any impairment or combination of impairments that imposed significant limitations upon the claimant's basic work related activities." (Tr. at 14).
C. Merits
The issue in this case is whether substantial evidence supports the ALJ's finding that Mr. Reyes is not entitled to SSI or disability insurance benefits since he was not disabled on or before December 31, 1994. The evidence supports the ALJ's finding that Mr. Reyes has not been disabled at any time since September 21, 1990, and that he is not currently disabled.
1. Medical Evidence
Mr. Reyes has provided a number of medical documents and records dating back to 1992. According to this documentation, the plaintiff visited Bronx-Lebanon and saw Dr. Kalafatic with varying regularity between 1992 and 1994. Mr. Reyes' medical records show that he consistently complained of pain in his lower back and legs, and that he was prescribed different pain medications to relieve it. That said, these records are devoid of any objective clinical findings which support the plaintiff's subjective complaints.
In light of this documentation, the ALJ's finding that there was "no mention of a back complaint" in either the Bronx-Lebanon records or Dr. Kalafatic's notes was incorrect. (Tr. at 14). Nevertheless, the ALJ correctly stated that the clinical records from Bronx-Lebanon "reveal[ed] no ongoing impairment of any kind." (Tr. at 14). The ALJ's mischaracterization of the plaintiff's pre-1994 medical records, therefore, was harmless, since Mr. Reyes consistently indicated that his condition improved with medication. Furthermore, there is no suggestion that Dr. Kalafatic or any personnel at Bronx-Lebanon recommended that Mr. Reyes limit or modify his work related activities in order to alleviate his pain. The ALJ's final conclusion that Mr. Reyes was not disabled at any time after September 21, 1990, and prior to December 31, 1994, due to any impairment was therefore adequately supported.
After December 31, 1994, Mr. Reyes continued to seek medical treatment from Bronx-Lebanon and Dr. Kalafatic. The only diagnosis regarding the plaintiff's back, however, was made by Dr. Mancheno in 1997. He detected mild tenderness in the plaintiff's lower back and concluded that he had a "discogenic disorder of the lumbosacral spine." (Tr. at 104). Dr. Mancheno also stated that Mr. Reyes' abilities to lift, carry, stand, walk, push, pull, and sit were mildly impaired. (Tr. at 104).
Upon Dr. Kalafatic's recommendation, Mr. Reyes had x-rays taken of his lower back in September, 1995, and August, 1997. Both x-rays, which were performed by separate radiologists, had unremarkable findings and revealed that Mr. Reyes' lumbosacral spine was normal in all respects. As of 1998, the date of his last medical record, Mr. Reyes' was healthy and his lower back was normal. (Tr. at 192-202).
The ALJ properly concluded, therefore, that Mr. Reyes did not have any disabling impairment at any time after December 31, 1994.
2. Mr. Reyes' Testimony
The remaining evidence of disability consists solely of Mr. Reyes' testimony that he is, and has been, in such severe and constant pain that he cannot work at all. In his testimony before the ALJ, however, the plaintiff made several statements that contradicted this proposition. For example, on the date of his hearing before the ALJ, Mr. Reyes walked from his residence to the hearing office, a distance of about six or seven blocks. (Tr. at 46). He testified further that he is able to stand for approximately two to three hours at a time. (Tr. at 46). He stated that he has no problems sitting down or bending over. (Tr. at 46). Although his shoulders and hands sometimes bother him, the plaintiff noted that he can carry up to 50 pounds. (Tr. at 46-48).
The ALJ may make credibility determinations, Tejada, 167 F.3d at 775-76, and must do so where "there is conflicting evidence about a claimant's pain[.]" Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); see also Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985) (after considering objective medical evidence, claimant's demeanor and other indicia of credibility, ALJ may discredit claimant's subjective estimation of degree of impairment). An ALJ's determination as to the credibility of a claimant's subjective complaints of pain must be accepted by the reviewing court unless it is clearly erroneous. See Aponte v. Secretary of Health and Human Services, 728 F.2d 588, 591 (2d Cir. 1984); Centano v. Apfel, 73 F. Supp.2d 333, 338 (S.D.N.Y. 1999). Here, the ALJ committed no error. The plaintiff provided no objective medical evidence showing a condition that could reasonably be expected to cause disabling pain. Moreover, there is no indication that pain interfered with his ability to perform his duties as a doorman, janitor, or garbage collector.
As the ALJ noted, while the sanitation job was not substantial gainful activity, it demonstrates an ability to perform work without any exertional limitations. (Tr. at 13).
Accordingly, the ALJ's conclusion that Mr. Reyes has not been disabled because of any impairment prior to December 31, 1994, or at any time since September 21, 1990, is supported by substantial evidence.
Conclusion
For the reasons set forth above, I recommend that the Commissioner's motion be granted and the complaint be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable George B. Daniels, Room 410, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.