Opinion
No. 01 Civ. 4331 (SHS)
August 14, 2002
OPINION ORDER
Cynthia Daniels brings this action pro se pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge a final determination by Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner"), denying her claim for disability benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). As set forth below, defendant's motion is granted because there is substantial evidence supporting her determination.
BACKGROUND
I. Administrative Proceedings
On December 1, 1998, Daniels submitted an application to the Social Security Administration for Social Security Disability Insurance ("SSDI") benefits. (R. 35-37.) The application was denied both initially and on reconsideration. (R. 17-29.) Upon Daniels's request, administrative law judge Kenneth Levin ("the ALJ") held a de novo hearing on January 31, 2000 to determine whether Daniels was entitled to benefits. (R. 135-72.) On February 15, 2000, the ALJ denied Daniels's application. (R. 7-16.) The ALJ's decision became the final determination of the Commissioner on March 9, 2001, when the Appeals Council of the Social Security Administration (the "Administration") denied Daniels's request for review. (R. 3-4.)
References to "R. ___" are to the relevant pages of the record of proceedings prepared by the Commissioner.
II. The Record
A. Daniels's Testimony
Daniels, who was 35 years old at the time of the ALJ's hearing, lives in Manhattan with her mother and infant daughter. (R. 142.) After graduating from high school, she attended college for two and one half years but did not obtain a degree. (R. 138-39.) Before she stopped working in 1998, Daniels had worked as a switchboard operator or receptionist for more than thirteen years. (R. 52.) Starting in 1989, she served as a switchboard operator for Morgan Stanley Dean Witter Co. ("MSDW"). (R. 140.) At MSDW, Daniels was required to handle 1,500 to 2,000 calls a day using a "push-button" switchboard, which she could operate while either sitting or standing. (R. 140-41, 155.) Generally, she worked while sitting. (R. 140.) Her day was eight hours long, and she was given regular breaks. (R. 140.) The work did not require lifting, carrying, standing, climbing, kneeling, crouching, or crawling. (R. 52, 140.)
Daniels testified that she stopped working at MSDW in November 1997 because of pain that she was experiencing in her ankles. (R. 46.) She returned to work briefly for one week in April 1998. (R. 38.) However, she has not worked since then, either full-time or part-time. (R. 137, 139.)
Daniels told the ALJ that she has ankle instability due to "severe osteoarthritis" in both feet. (R. 150.) This condition, Daniels claimed, causes her constant pain, which she likened to "a knife going through both [her] ankles." (R. 150.) She added that the pain is slightly more severe in her left ankle. (R. 150.) To address this condition, Daniels has used a cane (which a doctor prescribed) for about three years and worn ankle fixation orthotics ("AFOs") on both ankles for about six months. (R. 148.) In addition, she takes Celebrex, a pain reliever that was prescribed to her in May 1999. (R. 146.)
Daniels testified that she is unable to work because the pain in her ankles precludes her from sitting without her ankles swelling, (R. 152), keeps her from concentrating for more than 20 minutes, (R. 152), requires her to take drugs that make her drowsy, (R. 145, 154), and prevents her from traveling out of her home. (R. 148, 149, 158.) Because she can no longer cook, clean, or shop, her thirty-four year old cousin assists with the chores around the house. (R. 142-43.) Daniels stated that she does her best to personally take care of her daughter, from bathing and dressing her to reading to her. (R. 144.) She can also lift her daughter, who weighs about twenty-six pounds. (R. 144.) Other than caring for her daughter, however, Daniels said that she spends most of her time at home either lying down or sleeping. (R. 145.) Indeed, she claimed that, in addition to eight or nine hours of sleep each night, she sleeps four to six hours each day because Celebrex makes her drowsy. (R. 128.)
Daniels claimed that her ankle condition also restricts her ability to commute. She stated at one point that she cannot walk more than one city block at a time or stand for more than ten minutes without her ankles "giving way" entirely. (R. 154.) Thus, she claimed that she is "not necessarily" able to take public transportation. (R. 148.) Later, however, she admitted that she uses public transportation occasionally when she "ha[s] to come to the city" or when she takes her daughter to the hospital. (R. 148, 158.) Although Daniels took the train to the ALJ's hearing, she did so accompanied by her mother and claimed difficulty in "going up and down the stairs and standing." (R. 149.)
Finally, Daniels testified that she is now unable to drive because of the pain in her ankles. (R. 148.) As a result, she donated her car to charity sometime in 1999. (R. 149.)
B. Medical Expert's Testimony
Dr. Charles A. Plotz, an internist and an arthritis specialist, also testified. His review of the medical records indicated to him that Daniels was born with "severe flat feet" that have caused her to "put an undue strain on her heel[s] and the ligament[s] that go down to her heel[s]." (R. 159.) That, in turn, "has caused a strain on the heel bone[s]" and "produced some instability of both ankles" and "minimal arthritis." (R. 159.) Dr. Plotz noted that, "apparently," Daniels's "symptoms became worse [when] her daughter was born" and she had to "put more weight on her feet" in order to take care of her. (R. 159-61.)
As for the pain, Dr. Plotz testified that, due to her condition, Daniels "has to put extra effort into the areas around her ankle[s]" in order to walk and that "this kind of extra effort can lead to little local areas of stretching of muscles and ligaments, which can be painful." (R. 162.) However, Dr. Plotz added that her condition "should not be particularly painful, unless she is using her feet more than they are capable of being used." (R. 161-62.) In that regard, Dr. Plotz opined that, in spite of her condition, Daniels can stand or walk "15 to 20 minutes at a time, 2 hours in the course of a day." (R. 163.) Absent "persistent weight bearing," he said, the condition "should not be causing the amount of pain of which [Daniels] complains." (R. 160.)
Moreover, Dr. Plotz did not think that Daniels's ankle condition causes her ankles to swell while in a seated position. After noting that there is nothing in Daniels's medical records that indicates major swelling, Dr. Plotz explained that any minor swelling likely results from her low level of activity and would afflict any person who sat for a long time without moving her feet. (R. 162-66.)
Finally, Dr. Plotz addressed Daniels's drowsiness. He testified that, in his experience, Celebrex "very, very seldom" causes drowsiness. (R. 164.)
C. Vocational Expert's Testimony
The vocational expert, Stephen Feinstein, testified that the positions of switchboard operator and receptionist are sedentary from the standpoint of exertion. (R. 169.) A switchboard operator job is low-level semi-skilled, and a receptionist job is somewhat higher-level semiskilled. (R. 169.) Acknowledging that both positions require some ability to concentrate, Feinstein stated that the tasks required are nevertheless "simple or routine" for someone with experience. (R. 169-70.)
D. The Medical Evidence
The earliest record relating to Daniels's ankle condition is dated April 28, 1998. On that date, Dr. Neil Herbsman, a physician at the New York Medical Group ("NY Medical"), determined that Daniels had pedal edema in both feet and an ulcerated infected lesion on the right heel. (R. 98.) He told Daniels "not to wear shoes for another 2-3 weeks." (R. 98.) On the following day, Daniels was examined by Dr. Zev Kohn at N.Y. Medical; Dr. Kohn provided Daniels with a note saying that she would be unable to work until May 20. (R. 72-73.)
On May 15, 1998. Daniels returned to N.Y. Medical. (R. 99.) X-rays revealed flat feet and a small spur in her ankles, but they did not show any evidence of a fracture. (R. 100.) Dr. Herbsman opined on a MSDW "Medical Certification Form" that Daniels was restricted to working only "desk jobs" with "no standing." (R. 78.) He also indicated that she required "assistance" with "transportation to work." (R. 78.)
On June 10, 1998, Daniels was seen by Dr. Robert Ziets, an orthopedic surgeon at N.Y. Medical. Daniels complained that she had "had severe pain in both ankles" for two months and that her ankles "occasionally g[a]ve way giving her the feeling that she [would] fall." (R. 101.) Dr. Ziets found bilateral flat feet with "diffuse tenderness" and restricted motion. (R. 101.) He noted that Daniels's X-rays indicated a "possible talar calcaneal tarsal coalition" and that there may have been a strain related to the condition. (R. 101.) He prescribed bilateral custom molded orthotic inserts and recommended a cane to assist in ambulating. (R. 101-02.) Still, he "advised" Daniels to "return to work as she works in a sedentary position." (R. 101.)
On July 8, 1998, Daniels returned to Dr. Ziets with renewed complaints of ankle pain, which, she said, caused her ankles to "`give way' from time to time and limit[ed] her walking to only about two to three blocks." (R. 106.) Dr. Ziets again found "diffuse tenderness" in both ankles, but noted that there was neither significant swelling nor gross instability. From his review of a June 18 MRI, he described "[c]hanges consistent with lateral instability . . . without evidence [of] acute tendon rupture" and "peritendinous thickening . . . in the peroneus longus and brevis tendons indicative of lateral instability." (R. 106.) A CT scan, also taken on June 18, revealed no evidence for tarsal coalition, although there were "degenerative changes . . . in the left talonavicular joint." (R. 106.) He gave Daniels a new prescription for a laced ankle support brace (a "rocket sock") and referred her to Dr. Andrew Sands, a foot and ankle specialist. (R. 107.) However, Dr. Ziets noted that Daniels's "subjective complaints exceed[ed] objective findings" of "bilateral ankle instability." (R. 106.)
On September 4, 1998, Daniels reported to Dr. Ziets that Dr. Sands had recommended surgery. (R. 108.) She further informed Dr. Ziets that she had not worked since April 1998 and was now applying for disability. (R. 108.) While indicating again that Daniels's "subjective complaints exceed[ed] objective findings," Dr. Ziets provided Daniels with a note explaining that she had "chronic bilateral ankle instability causing significant functional difficulty." (R. 75, 108.)
On December 19, 1998, Daniels underwent a consultative examination by Dr. Daoud Karam, an orthopedics specialist from HS Systems, Inc. Dr. Karam observed that Daniels walked with a "waddling gait" and that she was unable to get up on her heels, although she could get up on her toes. (R. 81.) Her feet had a tendency to be in "eversion with evidence of pes planus." (R. 81.) Dr. Karam also found "mild swelling" at the ankles with "slight tenderness" and "moderate pain on motion of the ankles but no redness." (R. 81.) X-rays showed "possible old avulsion injury with healing deformity" in the right ankle and "large spur formation of talus" and "minimal arthritis" in the left ankle. (R. 82-84.) Dr. Karam concluded that Daniels had osteoarthritis of both ankles" and "bilateral congenital foot deformities." (R. 82.) He opined that Daniels would be "limited by her ankles and feet . . . in all standing activities and ambulation." (R. 82.)
On March 6, 1999, Dr. Anthony Danza and Dr. R. B. Reynolds completed a "Physical Residual Functional Capacity Assessment" based on their review of Daniels's medical records. (R. 87-94.) The doctors agreed that Daniels suffered primarily from "osteoarthritis of both ankles" and also from "congenital foot deformities." (R. 87.) Their opinion was that Daniels could frequently (defined as "occurring one-third to two-thirds of an 8-hour workday") lift and/or carry 10 pounds. (R. 88.) They also indicated that Daniels could stand or walk, with normal breaks, for "at least 2 hours," and sit, with normal breaks, for a total of "about 6 hours" in an 8-hour workday. (R. 88.) They found that Daniels did not suffer from any postural limitations, even with respect to her ability to climb ramps or stairs. (R. 89.)
On April 28, 1999, Daniels saw Dr. William Joffe at the Hospital for Joint Diseases Orthopaedic Institute at the New York University Medical Center (the "NYU Medical Center"). (R. 112.) Although Dr. Joffe observed Daniels to have "severe gait deformity," he wrote in his notes that she could "ambulate independently." (R. 112.)
On May 5, 1999, Daniels returned to the NYU Medical Center, complaining that her pain was not improving and that she still had difficulty walking. (R. 114.) Dr. Donna Astion observed tenderness over bilateral posterior tibial tendon "with palpation" and "tenderness with resisted inversion of [the] foot," which suggested "talsal coalition." (R. 114.) She advised Daniels to wear an arch support. (R. 114.) An X-ray examination on May 17, 1999 confirmed "bilateral flatfoot deformity and talar beaks, suspicious for subtalar coalition" and "degenerative changes between the fibula and calcaneus" in both ankles. (R. 115-120.)
On May 19, a doctor at the NYU Medical Center prescribed Celebrex and AFOs to Daniels. (R. 121.) On September 8, 1999, braces were applied to her ankles so that they would "fit comfortably." (R. 122.)
On September 6, 1999, Dr. Bernard Ong completed a "Physician's Report for Claim of Disability." He remarked that Daniels suffered from sub-talon arthritis and probable tarsal coalition. (R. 129-134.) Although Daniel's prognosis was "good," Dr. Ong indicated that her condition required her to lie down during the day and that she could sit continuously only "as tolerated." (R. 129-34.) Finally, Dr. Ong indicated with a checkmark that Daniels was unable to "travel alone on a daily basis" either by bus or subway. (R. 134.)
In a medical report dated January 19, 2000, Dr. Stein of the NYU Medical Center diagnosed Daniels as having "bilateral posterior tibial tendon dysfunction." (R. 123-27.) He reported that she "ha[d] pain in both feet [because] of this and [was] therefore unable to spend time on her feet." (R. 127.) He told Daniels to wear "walking boots." (R. 126.)
DISCUSSION
I. Standard of Review
In reviewing a denial of SSDI benefits, a court may reverse the Commissioner's finding only if that finding is "based upon legal error or is not supported by substantial evidence" in the record. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); see 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). 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, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Rosa, 168 F.3d at 77. "The substantial evidence test applies not only to findings of basic evidentiary facts but also to inferences and conclusions drawn from such facts." Tillery v. Callahan, No. 97 Civ. 0438, 1997 WL 767561, at *2 (S.D.N.Y. Dec. 11, 1997) (citation omitted). Moreover, a court "`may not substitute its own judgment for that of the [Commissioner], even if it might have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
II. The Definition of Disability
In order to establish disability pursuant to the Act, a plaintiff must demonstrate that he or she was unable "to engage in any substantial gainful activity by reason of a physical or mental impairment that . . . had lasted or could have been expected to last for a continuous period of at least twelve months." 42 U.S.C. § 423(d)(1)(A); see Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques." 42 U.S.C. § 423(d)(3). Furthermore, it must be "of such severity that [the plaintiff] 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. § 423(d)(2)(A); see Rosa, 168 F.3d at 77.
The Commissioner has promulgated a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520. The Second Circuit articulates the doctrine 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. . . . 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.
Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)).
If the claimant fulfills her burden of proving the first four steps, then the burden shifts to the Commissioner to determine the fifth step — whether there is alternative substantial gainful work in the national economy that the claimant can perform. See id. The Commissioner must consider four factors: (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. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
The ALJ determined that Daniels, who has not performed any substantial gainful activity since the onset of her claimed disability, suffers from severe' congenital flat feet . . . as well as minimal osteoarthritis of the ankles." (R. 15.) However, he found that that condition is not the medical equivalent of any impairment listed in Appendix 1 of the regulations. (R. 10). See 20 C.F.R. §§ 404.1520(d), 416.920(d). Then, at the fourth step of analysis, the ALJ concluded that Daniels, notwithstanding her subjective complaints, maintains the residual functional capacity to perform her past exertionally sedentary jobs.
III. Residual Functional Capacity
Daniels, who brings this action pro se has not filed any opposition to the Commissioner's present motion for judgment on the pleadings. Her objection to the ALJ's determination cannot be that he was wrong on step three of the five-step procedure: there is no evidence in the record, and Daniels did not argue to the ALJ, that she suffers from a "listed" impairment that would make her automatically disabled. Rather, Daniels's objection must be to the ALJ's finding that, in spite of her ankle impairment, she retains the residual functional capacity to perform her past work.
There is no real dispute that Daniels past work as switchboard operator consisted of exertionally sedentary work. Generally,
sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 416.967(a). Courts have further explained that sedentary work implies a capacity to sit for at least six hours in an 8-hour workday. See Murdaugh v. Secretary of Health Human Servs., 837 F.2d 99, 102 (2d Cir. 1988); Walzer v. Chater, No. 93 Civ. 6240, 1995 WL 791963, at *2 (S.D.N.Y. Sep. 26, 1995); Troupe v. Heckler, 618 F. Supp. 248, 253 (S.D.N.Y. 1985); Mazzella v. Secretary of Health Human Servs., 588 F. Supp. 603, 607 (S.D.N.Y. 1984). In this case, Daniels's past work required one hour of walking and seven hours of sitting during an eight-hour workday, with no lifting or carrying. (R. 52.) Daniels testified that she usually worked sitting for eight hours, with breaks, but she could have worked standing up if she had wanted. (R. 140-41.) The vocational expert, Stephen Feinstein, confirmed at the ALJ's hearing that the positions of switchboard operator and receptionist are both exertionally sedentary. (R. 169.)
Daniels's complaint has always been that she lacks the ability to return to this exertionally sedentary work because of knife-like pain in her ankles. She has asserted, specifically, that the pain prevents her from performing her past work by making her unable to (1) sit for an extended period of time, (2) concentrate for more than 20 minutes, and (3) stay awake and alert during the daytime. Additionally, Daniels has argued that even if she could perform the work tasks of her former job, she is nonetheless "disabled" because she is unable to travel to and from her work on a daily basis.
Statements about a claimant's pain cannot by themselves establish disability; there must be medical evidence that shows that the claimant has a medically determinable impairment that could reasonably be expected to produce the pain or other symptoms alleged. See Kojac v. Apfel, No. 97 Civ. 5049, 1999 WL 461776, *5 (S.D.N.Y. July 6, 1999); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a). If there is a medically determinable impairment, then, in order to determine the extent of any resulting functional limitations, the Commissioner must evaluate the intensity and persistence of the claimant's symptoms, considering the claimant's credibility in light of "all of the available evidence," including the objective medical evidence. 20 C.F.R. § 416.929(c)(1); see also Social Security Ruling 96-7p, 1996 WL 374186, at *2.
In evaluating the record evidence, the ALJ must give controlling weight to a treating physician's opinion if the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 2001) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). Further, the regulations specify that when a treating physician's opinion is not given controlling weight, the following factors should be considered in determining the weight it should be given: (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. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal, 134 F.3d at 503.
The regulations of the Social Security Administration also provide that "observations by our employees and other persons" will be treated as evidence. 20 C.F.R. § 416.929(c)(3); see Schaal, 134 F.3d at 502. "Although such observations should be assigned only `limited weight,' there is no per se legal error where the ALJ considers physical demeanor as one of several factors in evaluating credibility." Id. at 502.
A. Work Tasks
Substantial evidence supports the ALJ's determination that, despite her ankle condition and her subjective complaints, Daniels retains the residual functional capacity to perform her past work. Dr. Herbsman found that Daniels could perform "desk jobs." (R. 78.) Dr. Ziets advised Daniels to "return to work as she works in a sedentary position." (R. 101.) Dr. Danza and Dr. Reynolds concluded that Daniels could sit, with normal breaks, for a total of "about 6 hours," as well as stand and walk for a total of "at least 2 hours" in an 8-hour workday. (R. 88.) They also believed that Daniels could "frequently" lift 10 pounds (R. 89) and concluded that Daniels could perform "sedentary work" and "past jobs." (R. 92.)
The record also contains evidence sufficient to support the ALJ's decision to discount all three aspects of Daniels's subjective accounts of her disabling pain. Daniels's first assertion — that she cannot sit for more than 20 minutes because of "swelling" — is believed, first, by the absence of any medical evidence that her medical condition could reasonably be expected to cause her ankles to swell. Dr. Plotz testified that the swelling is not caused by her ankle condition. Rather, in his opinion, it is a normal consequence of her sitting for a long time without moving her feet. (R. 162, 166.) He explained that Daniels could reduce the swelling if she were to move her ankles and feet more. (R. 162.)
Second, even if Dr. Plotz is wrong, and Daniels's condition can cause swelling, there is substantial evidence limiting the extent to which the swelling impacts on her ability to sit. Dr. Plotz testified that Daniels's condition should not be producing any significant pain if she is not on her feet. (R. 162.) The ALJ observed that Daniels "actually sat a good deal longer" than 20 minutes at the hearing. (R. 12.) Furthermore, representatives from the Social Security Administration who observed Daniels on December 1, 1998 and on March 2, 1999 indicated that Daniels had no difficulty sitting. (R. 48, 64.)
Daniels's second assertion — that the pain in her ankles is so severe that she cannot concentrate for more than 20 minutes — is contradicted by Dr. Plotz's testimony that her condition should not be producing significant pain if she is not on her feet (R. 162) and Dr. Ziets's repeated finding that Daniels's "subjective complaints exceed[ed] objective findings." (R. 106, 108.) Additionally, Social Security Administration employees, including the ALJ, observed that Daniels did not have any problems with hearing, understanding, concentrating, talking, or answering at any of their meetings with Daniels. (R. 48, 64.) In light of the fact that Daniels has more than thirteen years of experience with what the vocational expert described as "routine" and "simple" work, there is substantial evidence to support the ALJ's conclusion that any "distraction from pain she might have would be quite compatible with the absolutely sedentary types of work . . . that she is accustomed to doing." (R. 14.)
With respect to Daniels's third assertion — that she cannot work because Celebrex makes her so drowsy that she has to sleep 4 to 6 hours during the daytime — Dr. Plotz testified that Celebrex "very, very seldom" causes drowsiness in his own patients (R. 13, 164) and Dr. Ong indicated that Celebrex did not have any side effects on Daniels or limit her activities. (R. 131.) Moreover, the ALJ observed that Daniels "showed no signs what[so]ever of sleepiness, drowsiness or inattention at any time during her hearing" despite having taken Celebrex about 30 minutes prior to the start of the hearing. (R. 11, 154.) He also surmised that Daniels probably could not take care of her two-year-old daughter if she had to sleep as much as she claimed. (R. 14.) Thus, there is more than a scintilla of evidence to support the ALJ's finding that Celebrex does not prevent Daniels from returning to her past work.
B. Commuting
Daniels has consistently complained that her impairment not only prevents her from performing the tasks required by her past work, but also prevents her from getting to that work. (R. 51, 60, 62, 66, 149.) The Court of Appeals for the First Circuit has held that "the physical capacity to transport oneself to a job is relevant to a determination of `disability.'" Lopez Diaz v. Secretary of Health, Education and Welfare, 585 F.2d 1137, 1139 (1st Cir. 1978). Although the Court of Appeals for the Second Circuit has not directly addressed the question, it has indicated that inability to commute is at least a factor that should be considered. See Murdaugh, 837 F.2d at 102. Courts in this district have generally agreed that the inability to use public transportation provides a basis for concluding that a claimant cannot perform her past work. See Rivera v. Sullivan, 771 F. Supp. 1339, 1356 (S.D.N.Y. 1991) (citing Andino v. Bowen, 665 F. Supp. 186, 192 (S.D.N.Y. 1987)); Flanders v. Chater, No. 93 Civ. 5671, 1995 WL 608287, at *7 (S.D.N.Y. Oct. 17, 1995).
In this respect, too, the ALJ's conclusion that Daniels is not disabled is supported by substantial evidence. Dr. Kohn indicated that Daniels did not require assistance with, among other "basic" needs, transportation. (R. 73.) Dr. Plotz also believed that Daniels could walk "15, 20 minutes at a time, 2 hours in the course of a day." (R. 163.) Dr. Danza and Dr. Reynolds, upon their review of the medical records, indicated that Daniels could walk "for a total of at least 2 hours" with normal breaks. (R. 88.) They further noted that Daniels had no postural limitations, and even indicated that she had the ability to "climb ramp/stairs/ladder/rope/scaffolds." (R. 89.)
Moreover, Daniels's own testimony at the ALJ's hearing suggests that she is capable of commuting. When asked by her lawyer whether she is able to take the bus or the subway, Daniels answered, "No, not necessarily, but I do when I have to come to the city." (R. 148.) She also admitted that she is able to get a seat when she takes the train. (R. 149.)
Two of Daniels's physicians indicated that she would have difficulty getting to work by herself. Dr. Herbsman noted that Daniels requires "assistance" with "transportation to work." (R. 78.) Dr. Ong noted with a checkmark that Daniels "could not travel on a daily basis" either by bus or by subway. (R. 134.) However, their conclusions are unsupported by any meaningful medical explanation and are contradicted not only by Daniels's own testimony, but also by the medical reports or opinions of Drs. Kohn, Ziets, Danza, Reynolds, and Plotz.
CONCLUSION
Because the Commissioner's determination that plaintiff is not disabled is supported by substantial evidence, defendant's motion for judgment on the pleadings is granted. The Clerk of Court is directed to enter judgment accordingly.