Opinion
01 Civ. 7907 (JSM)
December 23, 2002
Attorney for Plaintiff: Pro Se Ronald Worthy, Bronx, N.Y.
Attroney for Defendant: Susan D. Baird, Assistant United States Attorney, New York, N.Y.
OPINION AND ORDER
Ronald Worthy ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) for an Order and Judgment reversing a final determination of the Commissioner of Social Security (the "Commissioner") finding Plaintiff not disabled between February 17, 1999 and July 22, 2000 and therefore not entitled to Supplementary Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). The Commissioner now moves for judgment on the pleadings. For the reasons set forth below, the Commissioner's motion is granted.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI benefits on February 17, 1999. The application was denied initially and on reconsideration. Plaintiff was granted a hearing on April 14, 2000, before an administrative law judge ("ALJ"). The ALJ considered the case de novo and, on July 22, 2000, found that the Plaintiff was not disabled within the meaning of the Act. The decision became the final decision of the Commissioner on May 22, 2001, when the Appeals Council denied Plaintiff's request for review. On August 23, 2001, Plaintiff appealed the Commissioner's decision in this Court. On May 14, 2002, Commissioner Barnhart filed a motion for judgment on the pleadings to which Plaintiff did not RESPOND. On May 21 and July 12, 2002, the Court ordered Plaintiff to respond to Defendant's motion, indicating in its July 12th order that it would decide the motion on Defendant's submissions alone, if Plaintiff failed to respond. Plaintiff has not responded to Defendant's motion. Thus, this motion will be decided on Defendant's submissions alone.
FACTS
Plaintiff claimed at his social security hearing and in his application for benefits that he is disabled due to his HIV positive status, a back problem, fatigue, memory loss, depression and a history of substance abuse. The only issue before this Court is whether the evidence substantially supports the Commissioner's decision that Plaintiff was not disabled between February 17, 1999, the date he applied for SSI benefits, and July 22, 2000, the date the ALJ rendered its decision denying Plaintiff those benefits.
Plaintiff was born on August 14, 1952. He attended school through the ninth grade, but has never held a job. He was convicted and imprisoned for three felonies, including robbery and credit card fraud, and was last paroled in 1997. Plaintiff has had a long history of substance abuse, though he claims he no longer uses drugs or alcohol.
Plaintiff has been HIV positive since 1986. He sees a physician once every two months and is taking medication to treat his HIV infection. Although Plaintiff reported on his initial history and physical examination form, dated July 30, 1997, that he had the opportunistic infection PCP in September and December 1996, he stated at his hearing that he has not had any opportunistic infections as a result of HIV. Plaintiff's HIV status was described as stable and the results of his physical examinations as within normal limits by Dr. Shetty, who monitored Plaintiff at the Spellman Clinic from May 1999 to December 1999.
Plaintiff complains of fatigue and back pain due to his HIV, though he does not take medication for this pain and has not consulted a physician about it. Although Plaintiff does not always have back pain, the pain, when present, can last up to two weeks. Plaintiff also claims he is undergoing treatment for syphilis.
Plaintiff claims he has trouble remembering things and is depressed. He is not, however, receiving treatment from a mental health professional. Plaintiff underwent an initial psychiatric evaluation on August 13, 1997. It was observed at that time that Plaintiff exhibited a normal mood and appropriate effect, was goal-oriented, had no suicidal or homicidal thoughts, and no delusions or hallucinations. Plaintiff was also described as three-dimensionally oriented, in possession of good memory and normal abstract thinking.
Plaintiff generally travels by subway. He attends religious services every Friday, to which he travels alone on the subway. Plaintiff reported in his disability questionnaire that he "tr[ied] to cook every day" and that he "d[id] all the housework alone a little at a time." Plaintiff also shops for himself "a little at a time."
According to Plaintiff, he can walk for approximately fifteen to twenty minutes, sit for approximately 45 minutes at a time, stand for one hour at a time, and lift and carry approximately ten pounds.
Plaintiff was seen and/or treated for various conditions prior to filing his application, including blurred vision on August 18, 1997, a rash on August 19, 1997, and facial cellulitis on November 13, 1997. Plaintiff was also seen and/or treated for a productive cough between February 6th through 11th of 1998, and for wheezing on March 2, 1998. Plaintiff's chest x-ray, however, taken on March 3, 1998, revealed that his heart, lungs, and mediastinum were within normal limits.
Plaintiff had no health related complaints in January and February 1999, the time period immediately preceding the filing of his application for benefits.
On April 28, 1999, after Plaintiff applied for SSI benefits, he was consultatively examined by Dr. Joseph Grossman, who diagnosed the following: that Plaintiff had a history of back and joint pain and skin disorder, was HIV positive, though he didn't exhibit clear signs of AIDS, and had a history of drug abuse in remission. Dr. Grossman also observed that Plaintiff was able to sit, stand, walk, lift, push, pull, climb, bend, stoop, crouch, hear, speak, travel, and use hand and foot controls without impairment. Dr. Grossman observed that Plaintiff, who was 6' 1" and weighed 182 pounds, had a normal gait and station, had full range of motion and adequate muscle strength and could make a fist, squat, and stand on his toes normally.
Dr. Lawrence Lutchen conducted a psychiatric evaluation of Plaintiff on April 28, 1999 and observed that Plaintiff was not depressed, was cognitively intact and appropriately oriented to person, place and time. Dr. Lutchen also tested Plaintiff's memory and found that Plaintiff missed only one item when tested at one, five and ten minute intervals.
Dr. Ladopolous, a state agency physician, reviewed Plaintiff's medical records on May 25, 1999 and completed a physical residual functional capacity assessment form. According to his findings, Plaintiff can periodically lift twenty pounds, frequently lift ten pounds, stand or walk about six hours in an eight-hour day, and is not limited in pushing or pulling.
On August 30, 1999, Dr. Imam, another state agency review physician, reviewed Plaintiff's records and determined that the opportunistic infection PCP was not documented in Plaintiff's files. On September 8, 1999, Dr. Imam assessed Plaintiff's residual functional capacity based on a review of his medical records and determined that Plaintiff can occasionally lift fifty pounds, frequently lift twenty-five pounds, stand and walk approximately six hours in an eight-hour workday, and can push and pull without restriction.
DISCUSSION
I. Scope of Review
Under the Act, the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). In reviewing the Commissioner's decision, the Court will set aside the "decision only where it is based upon legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Thus, the Court will give conclusive effect to the Commissioner's determination that a person is not entitled to SSI benefits if it finds that the decision was supported by substantial evidence.
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, 91 S.Ct. 1420, 1427 (1971) (internal quotation marks and citations omitted). "To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." See Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curium)).
"The substantial evidence test also applies to inferences and conclusions drawn from findings on facts." Cruz v. Callahan, No. 96 Civ. 9016, 1998 WL 142328, at *3 (S.D.N.Y. Mar. 27, 1998) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)) Therefore, the Commissioner's findings of fact and the inferences and conclusions drawn from such findings are conclusive, even if the reviewing court's analysis differs from the analysis of the Commissioner. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). "It is the function of the [Commissioner], not [the courts], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant."Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citations omitted).
II. Statutory Requirements for Eligibility
To establish disability within the meaning of the Act, a claimant must prove: (1) that he is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment is demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. § 423(d), 1382c(a)(3).
The statutory definitions of "disability" are virtually identical under both the Title II disability insurance and Title XVI SSI programs.Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a)(3). Consequently, "cases under 42 U.S.C. § 423 are cited interchangeably with cases under 42 U.S.C. § 1382c(a)(3)." Hankerson v. Harris, 636 F.2d 893, 895 n. 2 (2d Cir. 1980) (citation omitted).
In evaluating a disability claim, the Commissioner follows a, five-step process promulgated by the Social Security Administration in 20 C.F.R. § 404.1520, 416.920. Courts have interpreted that process 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 a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical' evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education; and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform . . . . [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.See DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (quotingBerry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)) (brackets and ellipsis in original). See also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). In addition to following this five-step process, the Commissioner considers the following factors in determining whether a claimant is disabled: "(1) objective medical facts and clinical findings, (2) diagnoses and medical opinions of examining physicians, (3) the claimant's subjective evidence of pain and physical incapacity as testified to by himself and others who observed him, and (4) the claimant's age, educational background, and work history." Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983).
"The burden is on the claimant to prove that he is disabled within the meaning of the Act." Id. The burden shifts to the Commissioner to prove that the claimant is capable of working, once the claimant proves the first four steps in the analytical process outlined above. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). "Once a disability claimant proves that his severe impairment prevents him from performing his past work, the [Commissioner] then has the burden of proving that the claimant still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)
III. Application of the Legal Standard
Here, Plaintiff has not proven that he suffers from a severe. impairment significantly limits his physical or mental ability to work, caused by HIV, back problems, fatigue, memory loss, depression and a history of substance abuse.
The ALJ found that Plaintiff's HIV status did not prevent him from performing light, repetitive work. These findings are substantially supported by the evidence. According to Dr. Grossman, Plaintiff did not exhibit any clear signs of AIDS. Dr. Ladopolous found no evidence, upon a review of Plaintiff's medical records, of an opportunistic infection that would meet the requirements of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Dr. Imam also found no documentary evidence, upon a review of Plaintiff's medical records, of the opportunistic infection, PCP. Although PCP was mentioned only in a medical history given by Plaintiff, Plaintiff himself testified at his hearing that he has not suffered from any opportunistic infections. Furthermore, Plaintiff's HIV status, according to Dr. Ladopolous, was asymptomatic as of January 1999. Dr. Shetty also described Plaintiff's HIV status as stable. Finally, evidence of Plaintiff's daily activities demonstrates that he is not severely physically impaired by his HIV positive status.
The ALJ'S finding that Plaintiff's purported back pain was not a severe impairment is also supported by the record, which did not reflect treatment for back problems, despite Plaintiff's bimonthly visits to physicians, and by evidence that Plaintiff competently conducted his daily affairs.
The ALJ'S finding that Plaintiff's history of substance abuse was not a severe impairment is supported by evidence that Plaintiff has been free of drugs and alcohol since 1997.
The ALJ'S finding that Plaintiff was not severely impaired by depression is supported by Dr. Lutchen's determination that Plaintiff was not depressed and did not have a severe mental impairment.
In addition, Plaintiff's complaints of pain and functional limitations rendering him disabled is belied by evidence of his daily activities. Plaintiff uses public transportation, cooks, shops, and cleans without help from others. He can walk for at least fifteen to twenty minutes at a time, can stand for at least an hour, and can lift and carry at least ten pounds. The evidence substantially supports the Commissioner's finding that Plaintiff is not disabled.
Finally, the ALJ'S finding that there is work in the national economy that Plaintiff is capable of performing work is substantially supported by evidence of Plaintiff's age, education and experience at the time of his application. Plaintiff is 47, has a ninth grade education and is not severely impaired within the meaning of the Act.
CONCLUSION
For the foregoing reasons, Commissioner's motion is granted. SO ORDERED.