Opinion
04 Civ. 4514 (RJH) (AJP).
March 21, 2005
REPORT AND RECOMMENDATION
To the Honorable Richard J. Howell, United States District Judge:
Pro se plaintiff William Rodriguez 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 Rodriguez Supplemental Social Security ("SSI") benefits. (Dkt. No. 2: Complaint.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 10: Notice of Motion.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.
PROCEDURAL BACKGROUND
On February 21, 2002, plaintiff William Rodriguez applied for SSI benefits, alleging an inability to work since June 1, 2000. (Dkt. No. 7: Answer Ex.: Administrative Record filed by the Commissioner ["R."] at 33-35.) Rodriguez claimed that he was unable to work due to depression, anxiety, insomnia, exhaustion, lack of concentration, and back pain. (R. 42-43.) Rodriguez's application was denied initially. (R. 28-31.) As this was an expedited prototype case, the reconsideration phase was bypassed. (R. 29, 31.) At Rodriguez's request (R. 32), a hearing was held before an administrative law judge ("ALJ") on October 7, 2003 (R. 117-25). On October 18, 2003, the ALJ issued his decision finding that Rodriguez was not disabled. (R. 11-17.) The ALJ's decision became the final decision when the Appeals Council denied Rodriguez's request for review on March 18, 2004. (R. 4-6.)Rodriguez's complaint in this case claims that he was entitled to receive benefits because of a disability due to mental impairment including depression and substance dependence, urinary track infection, Hepatitis C, and back pain. (Dkt. No. 2: Compl. ¶ 4.)
FACTS
Rodriguez's Hearing Before the ALJ
On October 7, 2003, a hearing was held before ALJ Newton Greenberg. (R. 117-25.) Rodriguez appeared without counsel. (R. 119.) The ALJ reminded Rodriguez of his right to have an attorney or other representative, and Rodriguez elected to proceed without a representative. (Id.) Rodriguez submitted a list of his doctors and medications, which the ALJ entered into the record. (Id.)
Rodriguez was born in January 1969 and was almost thirty-four years old at the time of the hearing. (R. 33, 69, 119.) Rodriguez is a United States citizen (R. 33), who completed the tenth grade and can read and write in English. (R. 49, 119-20.) He had held several jobs including photocopy key operator, house officer, laborer and warehouse clerk. (R. 44-45.) Rodriguez worked as a photocopy key operator for two periods from 1986 to 1989 and 1993 to 1997. (Id.) This job required Rodriguez to make photocopies for clients and to record the number of copies for client billing purposes. (R. 55, 58). In an eight-hour day, this job required Rodriguez to walk or stand for up to eight hours, and sit for up to one hour. (R. 55, 58.) The job also required Rodriguez to stoop and to handle small and big objects. (R. 55, 58.) Although weights lifted frequently were ten pounds or less, he had lifted up to twenty pounds. (R. 55, 58.)
In 1989, Rodriguez worked as a hotel house officer. (R. 44, 54, 56.) As a house officer, he stood in the hotel's front lobby, and also assisted guests with their room keys. (R. 56.) This job required him to keep records of room key numbers. (Id.) In an eight-hour day, Rodriguez had to walk or stand for the entire shift, but he was not required to carry any significant weight. (Id.)
In 1990, Rodriguez worked as a construction laborer, shoveling dirt from the ground to a wheel barrel, which he transported to a dumpster. (R. 44, 54, 57.) In an eight-hour day, he walked or stood for eight hours, and handled big and small items for three hours each. (R. 57.) He also was required to stoop, crouch and kneel for up to an hour each per day. (Id.) He frequently lifted fifty pounds or more; the heaviest weight he lifted was ninety pounds. (Id.)
Rodriguez's last job was as a warehouse clerk from 1999 through 2000. (R. 44, 54, 59, 120.) He filled customer orders relayed to him by his supervisor. (R. 59.) Although Rodriguez reported that all the heavy lifting was done by machine, he was required to frequently lift objects weighing ten pounds, and the heaviest he lifted was twenty pounds. (Id.) During a nine-hour shift Rodriguez was required to walk for four hours, stand for two hours, sit for four hours, and write or handle small objects for up to three hours. (Id.)
To attend his ALJ hearing, Rodriguez traveled on his own using public transportation (R. 120), as he often does when traveling to his daily "appointments" (R. 65, 67). Rodriguez lives with his mother (R. 62,120), but does none of the household chores (R. 65). Rodriguez notes that he mostly stays at home, except for his primary daily activities which involve visits to his methadone treatment program (R. 63, 67, 121-22) and a psychiatric group therapy program (R. 63). Despite attending his present methadone program for almost three years, and participating in psychiatric group therapy, Rodriguez admits to "self-medicate" occasionally with illicit drugs. (R. 122.)
The Medical Evidence Before the ALJ
The medical evidence before the ALJ contained records from Rodriguez's treating physicians at St. Luke's Hospital (R. 74-94), consultative psychiatrist Dr. Richard King (R. 96-97), and New York state agency review physician Dr. Apacible. (R. 98-113.)
Treating Physician Records
Mr. Rodriguez was first treated at St. Luke's-Roosevelt Hospital for a one week psychiatric stay beginning on May 15, 1999. (R. 78-92.) According to Dr. Clark, the intake evaluator, Rodriguez's mother referred him for treatment because he had been "deteriorating" and was no longer leaving the apartment, nor was he bathing on a regular basis. (R. 88.) Rodriguez reported that he had "been experiencing racing thoughts, severe insomnia, pressured speech, night terrors, depressed mood, and feels that life may not be worth living if he does not improve." (Id.;see also R. 77.) He had been "increasingly irritable and [was] constantly arguing with his mother with whom he lives." (R. 88;see also R. 77.)
Prior to this stay, Rodriguez did not have a history of outpatient psychiatric treatment, but he had a history of "depression, mania and substance abuse." (R. 77-79, 88.) Rodriguez had undergone eight admissions for detox treatment and five admissions for drug rehabilitation treatment. (R. 79.) He also was in a methadone maintenance program. (R. 77, 79.) Rodriguez had two documented prior suicide attempts by drug overdose. (R. 77, 79-80.) Rodriguez also reported that when he was six years old he was sexually abused over the course of a month, but that there is no current sexual abuse. (R. 80.)
Dr. Clark's functional assessment reported that Rodriguez could perform the activities of daily living, despite significantly impaired sleep. (R. 81.) Dr. Clark's mental status assessment observed that although Rodriguez's grooming was disheveled, his hygiene was adequate and that he made good eye contact. (R. 86.) He was cooperative throughout the evaluation. (Id.) Even though he was sad and depressed, his "affect" was "[a]ppropriate to content." (Id.) He demonstrated a full range of emotion at the appropriate level of intensity. (Id.) His speech was normal, and there was no evidence of thought disorder or hallucinations. (Id.) Rodriguez was alert and oriented in person, place, and time. (Id.) Although his concentration varied, his memory recall was intact and rated fair. (Id.) Moreover, his judgment also was rated intact and fair, and his intelligence was rated average. (Id.)
Dr. Clark diagnosed Rodriguez with bipolar disorder, opioid dependence, hypertension, and "[p]roblems related to the social environment." (R. 88.) Dr. Clark prescribed medication. (R. 89.) Dr. Clark assigned Rodriguez a Global Assessment of Functioning ("GAF") score of 65 (R. 89), which correlates to "some mild symptoms . . . but generally functioning pretty well, [with] some meaningful interpersonal relationships." See Diagnostic Statistical Manual of Mental Disorders (DMS-IV-TR) at 34 (Am. Psychiatric Ass'n 2002). Dr. Clark's prognosis identified a "high risk for substance abuse relapse," and that Rodriguez should have a goal to "prevent substance abuse relapse." (R. 89.) Consultative Medical Records
On April 12, 2002, consulting psychiatrist Dr. Richard King evaluated Rodriguez. (R. 96-97.) Rodriguez came alone to the interview by means of public transportation. (R. 96.) Rodriguez claimed that he was depressed. (Id.) Rodriguez reported his history of childhood sexual abuse and his history of substance abuse including non-intravenous cocaine and heroin use starting when he was seventeen. (Id.) Rodriguez was participating in an outpatient treatment program at St. Luke's Hospital and was participating in a methadone program, Narco Freedom, and he claimed to have been "'clean', for several months." (Id.)
Dr. King reported that Rodriguez was well groomed and had good hygiene. (Id.) Rodriguez was cooperative throughout the interview, and displayed "no acute distress." (Id.) His mood was "euthymic," and he was "not significantly depressed or anxious." (Id.) Rodriguez had "no hallucinations, delusions, suicidal ideations, . . . or paranoid trends." (Id.) Dr. King concluded that Rodriguez was not a suicide risk. (Id.)
According to Dr. King, Rodriguez's intellectual functioning was average. (Id.) His insight and judgment were fair, while his attention and concentration were adequate. (Id.) Rodriguez's memory was "grossly intact." (Id.) His sensorium was clear and he was "oriented to time, place and person." (Id.) Dr. King found that Rodriguez was "able to perform routine activities of daily living." (Id.) Dr. King also found that Rodriguez had "a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting, with psychiatric treatment." (R. 97).
Dr. King diagnosed Rodriguez with mild to moderate "dysthymia disorder"; "[h]istory of major depressive episode, resolved"; rule out "[s]ubstance induced mood disorder"; "[m]ethadone dependence"; and history of non-intravenous cocaine and heroin dependence. (Id.) Dr. King concluded that Rodriguez's prognosis was "fair," and recommended "psychiatric treatment, and a substance abuse rehabilitation program." (Id.)
On May 2, 2002, Dr. Apacible, a state agency review psychiatrist, reviewed Rodriguez's medical record, assessed his functional limitations, and assessed his mental residual functional capacity. (R. 98-113.) Dr. Apacible noted Dr. King's diagnosis of Rodriguez's mild to moderate dysthymia disorder. (R. 101.) According to Dr. Apacible, this condition caused: (1) a mild limitation upon Rodriguez's activities of daily living, (2) a moderate limitation in his maintaining social functioning, and (3) a mild limitation upon his ability to maintain concentration, persistence or pace. (R. 108.) Dr. Apacible's evaluation further found that Rodriguez was markedly limited in his ability to understand and remember detailed instructions and carry out detailed instructions. (R. 111.) Rodriguez was moderately limited in his ability to interact appropriately with the public and maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (R. 112.)
Dr. Apacible's evaluation further found that Rodriguez's functional capacity was not limited for his ability to: (1) remember locations and work-like procedures, (2) understand and remember very short and simple instructions, (3) carry out very short and simple instructions, (4) maintain attention and concentration for extended periods, (5) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (6) sustain an ordinary routine without special supervision, (7) work in coordination with or proximity to others without being distracted by them, (8) make simple work-related decisions, (9) ask simple questions or request assistance, (10) accept instructions and respond appropriately to criticism from supervisors, (11) get along with co-workers or peers without distracting them or exhibiting behavioral extremes, (12) respond appropriately to changes in the work setting, (13) be aware of normal hazards and take appropriate precautions, (14) travel in unfamiliar places or use public transportation, and (15) set realistic goals or make plans independently of others. (R. 111-12.)
Dr. Apacible concluded that Rodriguez could "sustain a normal workday/week and maintain a consistent pace," and that he was "capable of simple entry-level work activity." (R. 112.)
The ALJ's Decision
The ALJ denied Rodriguez's application for SSI benefits in a written decision dated October 18, 2003. (R. 11-17.) The ALJ found that Rodriguez had not engaged in substantial gainful activity since June 1, 2000 (R. 15), the claimed onset date of Rodriguez's alleged disability (R. 38). The ALJ found that "[t]here is no evidence that the claimant has any physical impairment which would limit his ability to sit, stand, walk, lift or carry or otherwise perform exertional requirements of work." (R. 15-16.) The ALJ concluded that Rodriguez has "the residual functional capacity to perform work at all exertional levels." (R. 15, 16.)
However, the ALJ found that Rodriguez had a "history of mental impairment," but these impairments as observed by the consulting physician were "only slight to moderate limitations of mental functioning." (R. 16.) The consulting physicians also "found the claimant able to understand, remember and carry out instructions and respond appropriately to supervision and work pressures." (R. 16.) The ALJ continued by concluding that Rodriguez's "non-compliance with treatment and his continued substance abuse result in his continuing to experience limitations of mental functioning." (Id.)
Based on Rodriguez's residual functional capacity, the ALJ determined that Rodriguez "could perform work activity if he followed prescribed treatment and stopped substance abuse." (R. 16; see also R. 17.) The ALJ concluded that Rodriguez was not under a disability, as defined in the Act, at any time through the date of the decision, and therefore was not eligible for SSI payments (R. 16-17).
The Appeals Council's Decision
On November 24, 2003, Rodriguez requested Appeals Council review of the ALJ's hearing decision. (R. 9.) On March 18, 2004, the Appeals Council denied Rodriguez's request for review. (R. 4-6; see page 2 n. 1 above.)
ANALYSIS
I. THE APPLICABLE LAWA. The Definition of Disability
For additional decisions by this Judge discussing the definition of disability, standard of review and the treating physician rule in Social Security cases in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Serrano v. Barnhart, 02 Civ. 6372, 2003 WL 22683342 at *9-12 (S.D.N.Y. Nov. 14, 2003) (Peck, M.J.); Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *6-10 (S.D.N.Y. July 8, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 21755932 (S.D.N.Y. July 30, 2003) (Kaplan, D.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *6-10 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v.Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *7-11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhart, 02 Civ. 3121, 2002 WL 31663570 at *5-7 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.),report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Jimenez v. Massanari, 00 Civ. 8957, 2001 WL 935521 at *6, 8 (S.D.N.Y. Aug. 16, 2001) (Peck, M.J.); Morel v.Massanari, 01 Civ. 0186, 2001 WL 776950 at *4-6 (S.D.N.Y. July 11, 2001) (Peck, M.J.); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *6-8 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp. 2d 518, 535-37 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp. 2d 172, 180-82 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v.Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5-8 (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.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6-7 (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., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Butts v.Barnhart, 388 F.3d 377, 383 (2d Cir. 2004); Green-Younger v.Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Veino v.Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v.Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
See also, e.g., 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); Martinez v. Massanari, 242 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *4 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp. 2d 265, 268 (S.D.N.Y. 2002);Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *4 (S.D.N.Y. Dec. 23, 2002); Perez v. Barnhart, 234 F. Supp. 2d 336, 339 (S.D.N.Y. 2002).
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), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S. Ct. at 379;Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270;Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.
See also, e.g., 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; Garcia v. Barnhart, 2003 WL 68040 at *4; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
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., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at *1 (2d Cir. Oct. 14, 1999);Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Rivas v. Barnhart, 01 Civ. 3672, 2005 WL 183139 at *16 (S.D.N.Y. Jan. 27, 2005); Batista v. Commissioner of Soc. Sec., 03 Civ. 10121, 2004 WL 2700104 at *7 (S.D.N.Y. Nov. 23, 2004); Rebull v. Massanari, 240 F. Supp. 2d at 268; Worthy v. Barnhart, 2002 WL 31873463 at *4. B. Standard of Review
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., Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); Veino v.Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vapne v. Apfel, No. 01-6247, 36 Fed. Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 537 U.S. 961, 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); 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. Barnhart, 2002 WL 1733804 at *4.
See also, e.g., 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); Rodriguez v. Barnhart, 03 Civ. 7272, 2004 WL 1970141 at *8 (S.D.N.Y. Aug. 23, 2004); Martinez v. Massanari, 242 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *7 (S.D.N.Y. Jan. 13, 2003); Garcia v.Barnhart, 01 Civ. 8300, 2003 WL 68040 at *3 (S.D.N.Y. Jan. 7, 2003); Rebull v. Massanari, 240 F. Supp. 2d 265, 268-69 (S.D.N.Y. 2002); Worthy v. Barnhart, 01 Civ. 7907, 2002 WL 31873463 at *3 (S.D.N.Y. Dec. 23, 2002); Norris v. Barnhart, 01 Civ. 0902, 2002 WL 31778794 at *3 (S.D.N.Y. Dec. 12, 2002);Morales v. Barnhart, 01 Civ. 4057, 2002 WL 31729526 at *6 (S.D.N.Y. Dec. 5, 2002).
See also, e.g., Duran v. Barnhart, 01 Civ. 8307, 2003 WL 103003 at *9; 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., Veino v. Barnhart, 312 F.3d at 586; 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., Veino v. Barnhart, 312 F.3d at 586;Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Rodriguez v. Barnhart, 2004 WL 1970141 at *9; Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barnhart, 2002 WL 31729526 at *6. 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); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
See also, e.g., Green-Younger v. Barnhart, 335 F.3d at 106; Batitsta v. Commissioner of Soc. Sec., 03 Civ. 10121, 2004 WL 2700104 at *5 (S.D.N.Y. Nov. 23, 2004); Rodriguez v.Barnhart, 2004 WL 1970141 at *9; Martinez v. Massanari, 242 F. Supp. 2d at 375; Duran v. Barnhart, 2003 WL 103003 at *9;Garcia v. Barnhart, 2003 WL 68040 at *3; Worthy v.Barnhart, 2002 WL 31873463 at *3; Norris v. Barnhart, 2002 WL 31778794 at *3; Morales v. Barnhart, 2002 WL 31729526 at *6; Soto v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *4 (S.D.N.Y. Dec. 4, 2002).
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; Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, 42 U.S.C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 CFR § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." §§ 404.1520(b), 416.920(b). [2] At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c). Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. omitted); accord, e.g., Green-Younger v. Barhnart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 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.
Recent amendments to 20 C.F.R. 404.1520 became effective September 25, 2003. See 68 Fed. Reg. 51153, 2003 WL 22001943 (Aug. 26, 2003); see also Barnhart v. Thomas, 540 U.S. at 25 n. 2, 124 S. Ct. at 380 n. 2. The amendments, inter alia, added a new § 404.1520(e) and redesignated previous §§ 404.1520(e) and (f) as §§ 404.1520(f) and (g), respectively. 20 C.F.R. § 404.1520; see 68 Fed. Reg. 51156. The new § 404.1520(e) explains that if the claimant has an impairment that does not meet or equal a listed impairments, the SSA will assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520(e). The SSA uses the residual functional capacity assessment at step four to determine whether the claimant can perform past relevant work and, if necessary, at step five to determine whether the claimant can do any work. See 68 Fed. Reg. 51156.
See also, e.g., 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); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982);Batitsta v. Commissionerr of Soc. Sec., 2004 WL 2700104 at *6; Rodriguez v. Barnhart, 2004 WL 1970141 at *9-10;Martinez v. Massanari, 242 F. Supp. 2d at 375-76; Garcia v.Barnhart, 2003 WL 68040 at *4; Worthy v. Barnhart, 2002 WL 31873463 at *4; Norris v. Barnhart, 2002 WL 31778794 at *3-4;Perez v. Barnhart, 234 F. Supp. 2d 336, 339 (S.D.N.Y. 2002);Soto v. Barnhart, 2002 WL 31729500 at *4-5.
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., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80; Green-Younger v. Barnhart, 335 F.3d at 106; Draegert v. Barnhart, 311 F.3d at 472; 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 464, 467 (2d Cir. 1982); Rodriguez v.Barnhart, 2004 WL 1970141 at *10.
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 *4-5 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).
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., Green-Younger v.Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 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).
See also, e.g., 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); Martinez v. Massanari, 242 F. Supp. 2d 372, 376 (S.D.N.Y. 2003); Garcia v. Barnhart, 01 Civ. 8300, 2003 WL 68040 at *5 n. 4-5 (S.D.N.Y. Jan. 7, 2003).
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; Martinez v. Massanari, 242 F. Supp. 2d at 376; Garcia v. Barnhart, 2003 WL 68040 at *6; Rebull v. Massanari, 240 F. Supp. 2d 265, 268 (S.D.N.Y. 2002).
The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler 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 RODRIGUEZ'S CLAIM, BECAUSE RODRIGUEZ'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 Jiang v.Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *9 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *10 (S.D.N.Y. July 2, 2003) (Peck, M.J.);Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *6-8 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); 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.'").
See also, e.g., Pena v. Barnhart, 01 Civ 502, 2002 WL 31487903 at *8 (S.D.N.Y. Oct. 29, 2002); Reyes 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, Rodriguez's pro se complaint states only that he should receive Social Security benefits because of mental impairment including depression and substance dependence, urinary track infection, Hepatitis C, and back pain. (Dkt. No. 2: Compl. ¶ 4.) Rodriguez has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings, and the filing deadline for doing so has long passed. Thus, Rodriguez does not point to any specific testimony or evidence which he believes the ALJ overlooked, unjustly weighed, or otherwise should have considered. Rodriguez's complaint is conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. See cases cited in fn.14 above;see also Reyes v. Barnhart, 01 Civ. 4059, 2004 WL 439495 at *3 (S.D.N.Y. Mar. 9, 2004) (following my decisions in Jiang, Alvarez and Morel); 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 RODRIGUEZ'S CLAIM
For the reasons set forth in Point II above, the Court need not apply the five-step sequence to Rodriguez's claims. Even if the Court were to do so, however, the Commissioner's decision that Rodriguez was not disabled should be affirmed since it is supported by substantial evidence.
A. Rodriguez Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Rodriguez was engaged in substantial gainful activity after his application for SSI benefits. "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 Rodriguez was not engaged in substantial gainful activity during the applicable time period is not disputed.
See, e.g., Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *10 (S.D.N.Y. July 8, 2003) (Peck, M.J.); De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *11 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.);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. Rodriguez Had No Demonstrated Severe Physical Impairments That Significantly Limited His Ability To Do Basic Work Activities
The next step of the analysis is to determine whether Rodriguez proved that he had a severe physical or mental 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 instructions. . . . [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., De Roman v. Barnhart, 03 Civ. 6372, 2003 WL 21511160 at *11 (S.D.N.Y. Nov. 14, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *11 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v.Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.), report and rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.); Morel v. Massanari, 00 Civ. 8957, 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 *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., Jiang v. Barnhart, 2003 WL 21526937 at *10; De Roman v. Barnhart, 2003 WL 21511160 at *11;Acosta v. Barnhart, 2003 WL 1877228 at *11; Alvarez v.Barnhardt, 2002 WL 31663570 at *9; 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.
"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, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 13, 1999) (citing 20 C.F.R. § 404.1520(c)); accord, e.g., Jiang v. Barnhart, 2003 WL 21526937 at *10; 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., Jiang v. Barnhart, 2003 WL 21526937 at *10; De Roman v. Barnhart, 2003 WL 21511160 at *11; Acosta v. Barnhart, 2003 WL 1877228 at *12; Alvarez v. Barnhardt, 2002 WL 31663570 at *9; 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.
"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.'" Rosario v. Apfel, 1999 WL 294727 at *5 (quotingBowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S. Ct. 2287, 2298 n. 12 (1987)).
The ALJ found that the medical evidence indicated that Rodriguez's history establishes the presence of mental impairment which produces more than minimal functional restriction and therefore constitutes a "severe" impairment." (R. 15.) This finding is not disputed.
C. Rodriguez Did Not Have A Disability Listed in Appendix 1 of the Regulations
The third step of the five-part test requires a determination of whether Rodriguez had an impairment listed in Appendix 1 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).
Accord, e.g., Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *____ (S.D.N.Y. July 8, 2003) (Peck, M.J.);De Roman v. Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *12 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Acosta v. Barnhart, 99 Civ. 1355, 2003 WL 1877228 at *13 (S.D.N.Y. Apr. 10, 2003) (Peck, M.J.); Alvarez v. Barnhardt, 02 Civ. 3121, 2002 WL 31663570 at *9 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 272063 (S.D.N.Y. Jan. 16, 2003) (Martin, D.J.);Morel v. Massanari, 01 Civ. 0186, 2001 WL 776950 at *9 (S.D.N.Y. July 11, 201) (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 ALJ found that although Rodriguez's history of mental impairment was "severe," his impairments do not "meet or equal the specific requirements established for a listed impairment in the listings of impairments in Appendix 1, Subpart P. . . ." (R. 15.)
Appendix 1 provides a categorization of mental impairments. 20 C.F.R., Pt. 404, Subpart. P. App. 1, §§ 12.00-12.10. Rodriguez's mental impairment diagnoses were bipolar disorder from the treating physician and moderate dysthymia disorder, history of major depressive episode (resolved) from a consulting physician. (See pages 6-9 above.)
Rodriguez has made numerous claims as to his impairments; however, he has not consistently applied them to his claim. In the complaint Rodriguez lists his ailments as "mental impairment including depression and schizophrenia, urinary track infection, Hepatitis C, [and] back pains." (Dkt. No. 2: Compl. ¶ 4.) His original disability claim form, however, only notes depression, anxiety, insomnia, lack of concentration, stress, exhaustion, and back pain. (R. 43.) There is no mention in the administrative record of Hepatitis C. The only medical evidence of a urinary track infection is doctor's notes of a post-emergency room visit, where Rodriguez now "feels fine." (R. 76.) Further, there are no medical records to support Rodriguez's claimed back pain, and he never addressed it at his administrative hearing. (R. 117-25.) As to schizophrenia, Rodrighez does not meet the criteria in 20 C.F.R., Pt. 404, Subpart P, App. 1, § 12.03, which deals with schizophrenia.
Among these impairments is affective disorders "[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." 20 C.F.R., Pt. 404, Subpart. P. App. 1, § 12.04. In order to qualify for this category both § 12.04(A) and § 12.04(B) must be satisfied. Subsection A of § 12.04 lists criteria for depression alone and for bipolar disorder. Utilizing the treating physician's diagnosis of bipolar disorder, to satisfy this subsection there must be "[b]ipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes)." 20 C.F.R., Pt. 404, Subpart. P. App. 1, § 12.04(A)(3). On the other hand, the consulting physicians merely found depression. (See page 18 above.) Applying the consulting physicians' diagnosis of depression, at least four of the following criteria must be met to satisfy this subsection:
Rodriguez does not fit in the other alternative, § 12.04(C), which states:
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
§ 12.04(C).
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking.
20 C.F.R., Pt. 404, Subpart. P. App. 1, § 12.04(A)(1) . The record contains evidence that Rodriguez had at least four of the above listed criteria: pervasive loss of interest in almost all activities (R. 88), sleep disturbance (R. 81), decreased energy (R. 88), and thoughts of suicide (R. 79, 88, 96). Thus, for present analysis, whether under the depression or bipolar disorder diagnosis, Rodriguez satisfied § 12.04(A).
To satisfy § 12.04(B), however, Rodriguez must demonstrate at least two of the following criteria: "1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration." § 12.04(B). Neither the treating physician's findings nor the consulting physicians' analyses support satisfaction of § 12.04(B). The treating physician found that Rodriguez had a GAF score of 65, which correlates to "some mild symptoms . . . but generally functioning pretty well, [with] some meaningful interpersonal relationships." (See page 6 above.) Consulting psychiatrist Dr. King found that despite having his social connections primarily limited to his mother and his brother, Rodriguez has the "ab[ility] to perform routine activities of daily living . . . [,] has a satisfactory ability to understand, carry out and remember instructions, and a satisfactory ability to respond appropriately to supervision, co-workers and work pressures in a work setting, with psychiatric treatment." (R. 96-97.) The other consulting psychiatrist, Dr. Apacible, found only mild to moderate limitations as to daily living activities, social functioning and concentration. (R. 108.) Rodriguez's mental impairment claim does not satisfy § 12.04(B), and thus it does not qualify as an Appendix 1 impairment.
Since none of Rodriguez's treating or consulting physicians found that Rodriguez was disabled due to mental impairment, 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"); Jiang v. Barnhart, 2003 WL 21526937 at *13; De Roman v. Barnhart, 2003 WL 21511160 at *13; Alvarez v. Barnhart, 2002 WL 31663570 at *10; 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).
The Court finds that the ALJ's decision that Rodriguez did not satisfy any Appendix 1 listing is supported by substantial evidence. D. Rodriguez Had The Ability To Perform His Past Work
The fourth prong of the five part analysis is whether Rodriguez had the residual functional capacity to perform his past relevant work, that is, his work as a photocopy key operator, house officer, laborer, or warehouse clerk. (See page 3 above.) Given the medical evidence that found no physical or mental limits to Rodriguez's ability to do his former work-related activities, the ALJ correctly concluded that Rodriguez was capable of resuming his former employment. (R. 15, 16.)
Because Rodriguez did not meet his burden of proof on the fourth step of the analysis, the Court is not required to advance to the fifth step. See 20 C.F.R. § 404.1520(a)(4) ("If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step."); Jiang v. Barnhart, 03 Civ. 0077, 2003 WL 21526937 at *15 (S.D.N.Y. July 8, 2003) (Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *11 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.) (citing Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Velk v. Shalala, 93 Civ. 3111, 1995 WL 217516 at *5 (S.D.N.Y. April 11, 1995)).
CONCLUSION
For the reasons set forth above, the Commissioner's determination that Rodriguez 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.