MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Plaintiff Charles Truitte Surgeon requests review of a determination by the Commissioner of Social Security ("the Commissioner"), made pursuant to the Stieberger and the Dixon settlement orders, that he was not under a disability from December 31, 1981 to February 5, 1985. The Commissioner moves for judgment on the pleadings. For the reasons stated below, the Commissioner's motion is granted.

BACKGROUND

A. Procedural History

Surgeon applied for disability insurance and Supplemental Security Income ("SSI") benefits on March 1, 1982, claiming eligibility for benefits since December 31, 1981. The Commissioner denied his claim and Surgeon did not appeal. (Tr. 391, 409, 418, 435.) On August 28, 1983, Surgeon applied for disability insurance benefits again, alleging disability as of March 22, 1983, based on a work-related injury to his back and left leg. ( Id. at 180-83, 206.) The application was denied initially and a hearing was then held. The ALJ denied Surgeon's claim in a decision dated June 20, 1985 (not in the record), and the Appeals Council denied Surgeon's request for review as untimely ( see id. at 267-68).

About a year later, on June 6, 1986, Surgeon applied for disability insurance benefits once again, alleging disability since February 5, 1985, based on a work-related back injury. On September 19, 1986, he applied for SSI benefits. Both claims were separately denied initially and on reconsideration. (Tr. 273-80, 283-90, 301-10.) A consolidated hearing was held on the claims and in a decision dated September 2, 1987, the ALJ found that Surgeon was disabled as of June 21, 1985. ( Id. at 411.) That onset date was selected not because it was the actual onset date of Surgeon's disability (he was injured in a fall on February 5, 1985), but rather to give res judicata effect to the June 20, 1985 decision denying benefits.

Surgeon's applications, dated March 1, 1982, August 28, 1983 and June 6, 1986, were reopened pursuant to the settlement order in Stieberger v. Sullivan, 801 F.Supp. 1079 (S.D.N.Y. 1992) and Dixon v. Sullivan, 792 F.Supp. 942 (S.D.N.Y. 1992), aff'd, Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). The Stieberger order allowed claimants who (1) had a disability claim denied or terminated between October 1, 1981 and July 2, 1992 on the ground that the claimant was not disabled; (2) were New York State residents at the time of the denial or termination; and (3) had a disability claim denied or terminated at any level of review between October 1, 1981 and October 17, 1985, or at the ALJ or Appeals Council level between October 18, 1985 and July 2, 1992, to have their claims readjudicated. Id. at 1086. Under the Dixon order, New York claimants whose applications were denied between June 1, 1976 and July 19, 1983 on the basis that their impairments were insufficiently severe were permitted to resubmit their claims taking into account the effect of each claimant's age, education and work history on the claimant's ability to work. See Dixon, 54 F.3d at 1035-36.

Surgeon's applications were reopened for the period between December 31, 1981 and June 20, 1985. (Tr. 15.) After a hearing held on February 5, 2002, ALJ Jerry Bassett found that for the period in question, Surgeon was disabled as of February 5, 1985 (as opposed to the original finding of June 21, 1985), but not any earlier due to his substantial gainful activity. ( Id. at 9-16.) The Appeals Council denied Surgeon's request for review on October 29, 2003. ( Id. at 4-6.) Due to a mailing error, the decision was not sent to Surgeon's correct address until August 10, 2004, and he was given 60 days from that date to file this action.

Surgeon brought the instant action seeking review of the denial of his application for benefits on October 6, 2004. The only period at issue is from December 31, 1981 to February 5, 1985. I heard oral argument on May 13, 2005.

B. Medical and Employment History from December 31, 1981 to February 5, 1985

Surgeon was born on February 27, 1944. (Tr. 31.) He completed high school and attended three years of college. ( Id. at 32.) Surgeon has a long medical history, including a period of disability from October 1975 to May 1979, when his benefits were terminated based on his work activity. ( Id. at 148-53, 161.) That period is not relevant to this inquiry.

On March 22, 1983, Surgeon sustained an injury while lifting a heavy piece of steel. (Tr. 231, 233.) The injury, diagnosed as a likely muscle spasm, caused pain in his lower back that radiated to his left leg. ( Id. at 230-31.) He received workers' compensation of $215 per week based on that injury beginning March 30, 1983. ( Id. at 226-28.) From July 12, 1983 to July 19, 1983, Surgeon was hospitalized for his back injury and received traction treatment. ( Id. at 237-42.) As of August 25, 1983, he was not working and he was still receiving workers' compensation. ( Id. at 228.) There are no medical records for the rest of 1983 or 1984. In his August 1983 application for disability benefits, he stated that he had been working for Nelson Galvanizing, Inc., for over 2 years, with his employment ending in March of 1983. ( Id. at 180-83.) However, in the 2002 hearing, Surgeon testified that he had only been working one month when he was injured and stopped working in March of 1983. ( See id. at 39-40.)

On February 5, 1985, Surgeon fell 15 feet off a truck while working. He applied for disability benefits based on the injury. In his work activity report, he stated that he had worked for Nelson Galvanizing, Inc. five days a week, eight hours a day for $525 per week from April 20, 1984 to February 5, 1985, when he was injured. ( Id. at 220.)

C. The ALJ's Decision

ALJ Bassett reviewed Surgeon's application of March 1, 1982 to determine whether he was disabled from December 31, 1981 to June 20, 1985. (Tr. 13.) In a decision dated February 22, 2002, the ALJ found that Surgeon was disabled as of his February 5, 1985 injury, but not prior to that date. ( Id. at 16.) Although the record had medical evidence of chronic low back pain and severe diabetes in 1983, there was no medical evidence for either 1982 or 1984. ( Id. at 14.) The ALJ found that

[t]he absence of any medical evidence in 1982 and 1984, and the claimant's significant earnings for 1982, 1983 and 1984, despite some treatment in 1983, clearly demonstrate that his March 1983 injury did not prevent the claimant from working for 12 months. It was not until his February 5, 1995 injury that the claimant became so restricted as to again be incapable of performing substantial gainful activity.

( Id.) He cites Surgeon's income for each year as evidence of his work activity: $7,966 in 1981; $18,176 in 1982; $10,826 in 1983; and $27,925 in 1984. ( Id. at 14, 314.) Although Surgeon testified to the contrary, ALJ Bassett found that "[w]hile it does not appear that the claimant intentionally misrepresented the facts, it is quite clear that his memory is faulty regarding when and how much he worked, and how restricted he was at what times." ( Id. at 14.)

Accordingly, he found that based on the record, including medical records or the lack thereof, and the earnings that evidence nearly sustained employment from 1982 through early 1985, "the claimant's testimony cannot be considered credible prior to February 5, 1985." ( Id.) The same evidence led ALJ Bassett to conclude that Surgeon performed substantial gainful activity from December 1981 through February 4, 1985. ALJ Bassett found Surgeon to be disabled from February 5, 1985 (as opposed to June 21, 1985, the date previously granted) due to the back injury from the 15-foot fall Surgeon suffered on that date.

DISCUSSION

A. Standard of Review

I review the Commissioner's decision and the administrative record to determine whether the Commissioner's findings are "supported by substantial evidence" and whether the Commissioner applied the correct legal standard. 42 U.S.C. § 405(g); Pollard v. Halter, 377 F.3d 183, 188 (2d Cir. 2004) (internal quotation marks omitted). "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.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where substantial evidence supports the ALJ's conclusions, this Court will not substitute its own judgment as to the facts. At the same time, "an error of law . . . that might have affected the disposition of the case . . . is grounds for reversal." Pollard, 377 F.3d at 189 (internal quotation marks omitted). In deciding whether there is substantial evidence to support the Commissioner's findings, I must "first be satisfied that `the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)).

B. Steps for Disability Determination

"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Social Security Act." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 423(a), (d)). A claimant is "disabled" within the meaning of the Act when he can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). The impairment must be 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." Id. at § 423(d)(2)(A).

A five-step analysis is used to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132 (citing the five steps with approval); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (same). First, the claimant must not currently be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is currently employed, considerations in making this determination include "the nature of your work," "how well you perform," whether or not you do your work under special conditions, and the time spent performing the work. See id. at § 404.1573. Generally, in evaluating substantial gainful activity, the Commissioner's "primary consideration will be the earnings you derive from the work activity." Id. at § 404.1574(a)(1). The Commissioner does not "consider any income that is not directly related to your productivity," i.e., income is considered only if it is equivalent to the true value of the work performed by the claimant. Id. at § 404.1574(a)(2). A threshold amount of earnings will create a presumption that a claimant engaged in substantial gainful activity. For the period at issue here, average monthly earnings of more than $300 will create that presumption. See id. at § 404.1574(b), Table 1. On the other hand, average monthly earnings of less than $190 will ordinarily show that a claimant has not engaged in substantial gainful activity. Id. at Table 2. Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. Id. at § 404.1520(c). Third, if the claimant suffers from an impairment listed in Appendix 1 of the regulations (or an impairment that is equivalent to a listed impairment), the Commissioner will automatically consider him disabled. Id. at § 404.1520(d), (e). Fourth, if the impairment is not listed (or equivalent to a listed impairment), the claimant must show that he has no residual functional capacity to perform his past work. Id. at § 404.1520(f). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy that the claimant could perform. Id. at § 404.1520(g). The claimant has the burden of proving the first four steps; the Commissioner bears the burden of proof on the last step. Shaw, 221 F.3d at 132.

In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citations omitted). As the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the [Social Security Administration] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon, 54 F.3d at 1031; (citing De Leon v. Sec'y of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984)).

C. Surgeon's Case

The Commissioner, in her motion for judgment on the pleadings, argues that Surgeon was engaged in substantial gainful activity during the entire period under review. ALJ Bassett found that Surgeon was engaged in substantial gainful activity from December 31, 1981 to February 5, 1985. Specifically he found that, based on the recorded earnings, Surgeon's March 22, 1983 injury did not prevent him from working for at least 12 months. I agree.

The ALJ's finding that Surgeon was engaged in substantial gainful activity from December 31, 1981 to at least February 4, 1985 is supported by substantial evidence. His earnings for 1982 total $18,176, which is an average of over $1,500 per month. His earnings for 1983 total $10,826, an average of $902 per month. His earnings for 1984 total $27,925, an average of $2,327 per month. As noted above, the regulations governing the Commissioner's determination state that earnings in excess of an average of $300 per month for the time period in question ordinarily create a presumption of substantial gainful activity. See 20 C.F.R. § 404.1574(b), Table 1.

Moreover, for 1982 and 1984, there are no medical records or other evidence showing that Surgeon's earnings of over $300 per month were not the product of substantial gainful activity, i.e., to rebut the presumption created by the regulations. In fact, in his application for disability benefits dated August 28, 1983, Surgeon stated that he had been working for Nelson Galvanizing, Inc. for over 2 years prior to his March 22, 1983 injury. (Tr. 180-83.) Similarly, the ALJ's determination that Surgeon was engaged in substantial gainful activity for the period from April 20, 1984 to February 4, 1985 is supported by substantial evidence. On February 5, 1985, Surgeon was injured on the job; the ALJ found that Surgeon was disabled as of that date. ( Id. at 14.)

According to Surgeon's testimony, he had only been working for "a few months" when he was injured. ( Id. at 45-46.) However, both his earnings and the work activity report he submitted to SSA, dated February 19, 1985, contradict that statement. In 1984, Surgeon earned $27,925.92. ( Id. at 314.) In his work activity report, he stated that he worked from April 20, 1984 to February 5, 1985. ( Id. at 220.)

The period between March 22, 1983 and April 20, 1984 is not as clear. However, substantial evidence supports the ALJ's findings that Surgeon was engaged in substantial gainful activity and that Surgeon's testimony regarding his limitations was not supported by objective medical evidence. After his injury on March 22, 1983, the record shows that Surgeon was not working until at least August 28, 1983. The SSA only averages earnings for periods where work was "continuous without significant change in work patterns or earnings, and there has been no change in the substantial gainful activity earnings levels." 20 C.F.R. § 404.1574a. Thus, Surgeon's total earnings over the 12 months in 1983 cannot be averaged. Instead, all of the evidence in the record for that period must be considered.

In his disability benefits application of August 28, 1983, Surgeon states that he had earned over $4000 as of that date. His total earnings for 1983 were $10,826. Thus, he was engaged in some form of substantial gainful activity during the period between August 28, 1983 and the end of that year, for which he earned over $6,000. Furthermore, Surgeon stated that after his March 22, 1983 accident, he went back to work "after the doctor told [him] [he] could do a little work. [He] went back to driving truck." (Tr. 40.) Given these facts, the ALJ's determination is supported by substantial evidence. The statute governing disability requires that a claimant show that he has a disability "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). The record supports the ALJ's finding that Surgeon returned to work less than 12 months after his injury. Accordingly, the ALJ's conclusion that Surgeon's back and leg injuries did not result in a disability is supported by substantial evidence.

Moreover, the SSA's original determination, dated October 26, 1983, states that

[t]he medical evidence shows that you have had pain and stiffness with some restriction of your activities. Since you were treated, your condition has stabilized. Although you may have some discomfort and restriction of your personal activities, your condition does not interfere with your ability to perform work-related duties.

(Tr. 189.) This determination was reexamined and affirmed by the SSA on December 26, 1984. On June 24, 1983, Dr. JoAnn Bishop examined Surgeon and found that he required a period of hospitalization for traction for about a week, and that he would then be able to return to work after six weeks. ( Id. at 231-32.) Surgeon was hospitalized for traction from July 12 to July 19, 1983. ( Id. at 208, 237.) An examination by Dr. Jack Sokolow on August 10, 1983 revealed that while his back was tight and straight leg raising was 45 degrees on the left, there was no atrophy. ( Id. at 233.) The diagnosis was "L-S and thoracic sprains," and the doctor recommended exercise and ultra-sound treatment. ( Id.) These findings are consistent with the ALJ's determination that Surgeon was not disabled during the period, and that Surgeon's testimony that he did not and could not work for over a year after his accident was not credible given the medical evidence.

Accordingly, I find that the ALJ's determination that Surgeon was not under a disability during the period between December 31, 1981 and February 4, 1985 is supported by substantial evidence.

CONCLUSION

For the foregoing reasons, I grant the Commissioner's motion for judgment on the pleadings. The Clerk of the Court is directed to close the case.

So Ordered.