Opinion
No. 04 Civ. 6022 (NRB).
June 30, 2005
Siria Marcela Hernandez, New York, NY, Plaintiff Pro Se
Susan D. Baird, Esq., Assistant United States Attorney, New York, NY, Counsel for Defendant
MEMORANDUM AND ORDER
Plaintiff Siria Marcela Hernandez brought this pro se action pursuant to Section 1631(c) (3) of the Social Security Act, 42 U.S.C. § 1383(c), to challenge the final decision of the Commissioner of Social Security ("Commissioner" or "defendant") finding her ineligible for Supplemental Security Income ("SSI") benefits. Defendant moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, defendant's motion is granted.
BACKGROUND
I. Procedural History
On December 17, 2001, plaintiff filed an application for SSI benefits, alleging that she had been unable to work since December 1, 2001 because of hearing loss and stomach pain. Tr. 30-34, 51.
"Tr." refers to the administrative transcript filed with defendant's answer in accordance with 42 U.S.C. § 405(g).
On February 26, 2002, plaintiff's application was denied and she requested a hearing with an administrative law judge ("ALJ"). Tr. 20-23. Plaintiff appeared before an ALJ (Strauss, J.) on July 2, 2002 and testified through a Spanish-speaking interpreter. Tr. 93. She testified without representation and waived her right to counsel. Tr. 104.
On September 24, 2002, the ALJ issued a decision finding that plaintiff was not disabled at any time through that date and was thus not eligible for SSI benefits. Tr. 9-19. The Social Security Administration's Appeals Council denied plaintiff's request for review on May 5, 2004, thereby making the ALJ's decision the final decision of the Commissioner. Tr. 3-5; see 42 U.S.C. § 405(h). On July 7, 2004, this Court received plaintiff's complaint initiating the instant action.
II. Plaintiff's Medical History And Other Biographical Information
Plaintiff was 78 years old at the time of the July 2002 hearing. Tr. 38, 40. She was born in the Dominican Republic and moved to the United States some time around 1995. Tr. 30, 107. Plaintiff is a resident alien and claims that she has been in the United States at all times since November 17, 2001. Tr. 30, 37. Plaintiff's SSI application indicates that she lives with relatives Norma Hernandez and Cristobal Colon, Tr. 35, but she testified at the hearing first that she lives with her daughter, then that she lives with her grandson, and finally that she lives alone. Tr. 108-09. Carmen Olivo, a close friend of plaintiff's for seven years, testified that plaintiff lives with her niece, Noreda Hernandez. Tr. 102-03, 120.
The transcriber noted that "Noreda Hernandez" is a phonetic spelling. Tr. 109. Presumably this person is the same as "Norma Hernandez," whom plaintiff listed on her SSI application as a relative that lives with her, and whom plaintiff identified at the hearing as her cousin. Tr. 113. Plaintiff elsewhere mentioned "Nereida Hernandez," who is also presumably the same person. Tr. 62, 64.
Plaintiff testified that she spends her days lying down and praying while friends, usually her niece and nephew, buy her food and pay her rent. Tr. 117-18. She cleans her house and washes her clothes but does not cook. Tr. 121. A government record of plaintiff's reported wages indicates that she earned over $35,000 from 1997 to 1999 working for various landscaping companies. Tr. 41-42. But at the hearing she testified that she had not worked since 1987 and at one point said she had never worked. Tr. 114.
In a "Function Report" dated January 7, 2002, plaintiff reported that she cooks meals for herself on a daily basis, Tr. 64, but at the hearing she said that she does not cook. Tr. 121. Similarly, the "Function Report" indicates that plaintiff spends her days watching television, Tr. 63, but at the hearing she said that she does not watch televison. Tr. 121.
Plaintiff claimed that she could not work because of hearing loss and pain in her stomach and left ankle. Tr. 99, 115. She does not use hearing aids. Tr. 99. She allegedly treats her ankle pain by rubbing her foot with an over-the-counter product, Clotrimazole and Betamethasone Dispropionate cream. Tr. 116.
Olivo and another witness, Beatric Castro, a neighbor and friend of plaintiff's for five years, testified that plaintiff also has mental problems. Tr. 97, 120, 122. Olivo said that plaintiff's "mind is not working really well" and, as an example, said that often plaintiff does not eat food that has been prepared for her. Tr. 120.
Plaintiff saw three different doctors during the winter of 2001-2002. On December 28, 2001, plaintiff went to the emergency services unit of Columbia Presbyterian Medical Center ("CPMC") complaining of body aches and prolonged ear pain. At the time of the examination, however, she denied to the doctor that pain was present. Tr. 85-86. The doctor's notes indicate that plaintiff's hearing improved after her left ear was irrigated and wax dislodged from it. Tr. 86.
On January 23, 2002, plaintiff was examined by ear, nose, and throat ("ENT") specialist Peter Schindler, M.D. Plaintiff told the doctor that her hearing had been deteriorating for 20 years, particularly in the left ear, and that she experienced occasional tinnitus (ringing in the ears). Tr. 73. She denied any history of treatment or hospitalization for hearing loss, but noted that she had her ears cleaned at CPMC about 3 years earlier. Id. The ENT examination revealed no pathological findings. Audiometric tests found moderate to severe hearing loss in her right ear and severe hearing loss in her left ear, although Dr. Schindler noted that plaintiff's responses were "highly unreliable." Tr. 73-74. He also noted that plaintiff's speech in Spanish was "normal and fluent" and that her high degree of professed hearing loss "hardly corresponded to the whispered face-to-face conversation she had with her niece" during the examination. Tr. 73.
Plaintiff in fact visited CPMC about three weeks, not years, prior to her ENT exam. Presumably either Dr. Schindler or plaintiff misspoke.
Finally, on January 25, 2002, plaintiff was examined by an internist, Babu Joseph, M.D., at the request of the Social Security Administration. Tr. 75-77. Plaintiff told Dr. Joseph that she had suffered from hearing problems for five years but not from tinnitus or ear pain. Tr. 75. She said that an ENT specialist had recently advised her to wear bilateral hearing aids and that she was waiting for approval from Medicare to obtain them. Id. Plaintiff also reported a five-year history of gastritis and complained of epigastric pain. Id. Dr. Joseph observed that plaintiff appeared "weak and thinly built" but was in no acute distress. Id. She was "oriented and alert" and communicated adequately. Tr. 75-76. His examination revealed conductive hearing loss in both ears. Tr. 75-77. He also noted tenderness over the epigastric region of the abdomen, which indicated a history of gastritis. Tr. 76-77. Dr. Joseph's "guarded" prognosis was that plaintiff was capable of performing the following work-related activities: "Walking, standing and sitting — no limitation. Carrying and lifting, pulling and pushing — no limitation." Tr. 77. He advised her to schedule regular follow-up visits with a physician. Id.
Dr. Schindler's notes are silent as to whether or not he recommended plaintiff wear hearing aids.
DISCUSSION
Plaintiff is not entitled to Social Security disability benefits based on her age because she is an alien. See 8 U.S.C. § 1612(a) (1); Tr. 37. However, an alien may be entitled to SSI benefits if she (a) was lawfully residing in the United States on August 22, 1996, and (b) is blind or disabled. 8 U.S.C. § 1612(a) (2) (F) (i). The law defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d) (1) (A); Melville v. Apfel, 198 F.3d 45, 50 (2d Cir. 1999). Such a "physical or mental impairment" must be supported by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).The scope of judicial review is limited. The Commissioner's decision, as laid out by an ALJ, is deemed conclusive unless it is not supported by substantial evidence in the record or is based on an erroneous legal standard. 42 U.S.C. § 405 (g); see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Wagner v. Secretary of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Substantial evidence, although "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)), is not the same as the weight of the evidence. That is, if substantial evidence supports the Commissioner's decision then it must be upheld, even if substantial evidence also supports the contrary result. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.").
To facilitate our review of the Commissioner's findings, we will briefly summarize the standard that applies to plaintiff's claim.
I. The Five-Step Analysis
The Second Circuit has established a five-step analysis to be followed by the Commissioner when determining whether a claimant is eligible for disability benefits. First, the Commissioner should consider whether the claimant is currently engaged in substantial gainful activity. If she is not, the Commissioner should next consider whether the claimant has a "severe impairment" which significantly limits her physical or mental ability to do basic work activities. If the claimant has such an impairment, the third step requires the Commissioner to determine whether the impairment is listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the impairment is listed, disability is presumed, and the claimant is considered unable to perform substantial gainful activity. Otherwise, the Commissioner must proceed to the fourth step and determine whether the claimant retains the residual functional capacity to perform her past work. If she is unable to perform her past work, the final step requires the Commissioner to determine whether there is other work within the national economy that the claimant is qualified to perform. 20 C.F.R. § 416.920 (a) (4); DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).
The Second Circuit has also established that the claimant bears the burden of proof for each of the first four steps. The Commissioner bears the burden of proof on only the last step.DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467);see also Melville, 198 F.3d at 51.
II. The ALJ's Findings
Plaintiff's claim for disability benefits involved three alleged health conditions: ankle pain, stomach pain, and hearing loss. The ALJ stopped at step two of the analysis described above by finding that plaintiff's conditions, whether considered singly or in combination, did not constitute "severe medical impairments." Tr. 16. We will first address the ALJ's findings with regard to plaintiff's ankle and stomach pain. We will then address the ALJ's finding with regard to plaintiff's hearing loss.
A. Ankle And Stomach Pain
Substantial evidence supports the ALJ's finding that plaintiff's ankle and stomach problems did not constitute a severe impairment. Tr. 18-19.
Assessing the severity of a claimant's impairment does not involve consideration of her "age, education, [or] work experience." 20 C.F.R. § 416.920(c). An impairment, to be severe, must by itself "significantly" limit a claimant's ability to do "basic work activities," which include "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 C.F.R. §§ 416.920(c), 416.921(b) (1). In this regard, the ALJ noted the results from Dr. Joseph's examination of plaintiff, in particular his opinion that she "has no limitations in her ability to stand, walk, sit, push, pull, lift or carry." Tr. 17. These medical findings represent "such relevant evidence as a reasonable mind might accept as adequate to support" the ALJ's conclusion. See Richardson, 402 U.S. at 401 (1971).
Although it was proper for the ALJ to consider plaintiff's subjective complaints of pain, 20 C.F.R. § 416.929(c), those complaints neither trump nor discredit Dr. Joseph's findings.See 42 U.S.C. § 423(d) (5) (A); see also 20 C.F.R. §§ 416.929(a)-(b). Plaintiff's complaint of stomach pain, even if given full credence, did not amount to a "significant" functional limitation because she admitted that the pain was not associated with nausea, vomiting, or weight loss. Tr. 75. As for plaintiff's ankle pain, the record is devoid of the requisite "medical signs and findings." See 42 U.S.C. § 423(d) (5) (A) ("objective medical evidence of pain . . . must be considered"); see also 42 U.S.C. § 423(d)(3) (defining a physical impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques"). Indeed, Dr. Joseph examined plaintiff's extremities and found no abnormalities. Tr. 76. He observed that she was able to stand on her tip-toes, as well as get on and off the examining table with no trouble. Tr. 75-76. The only piece of evidence that might have established the extent of plaintiff's ankle pain was the tube of cream that she produced at the hearing. Tr. 116. But, as the ALJ noted, that cream is not designed to treat pain or swelling. Tr. 18.
B. Hearing Loss
Plaintiff alleged that she suffered from disabling hearing loss, while the three doctors who examined her presented a less severe and somewhat conflicted picture. The medical evidence of hearing loss, including Dr. Schindler's finding of severe hearing loss in plaintiff's left ear, is entitled to considerable weight but is not controlling because each of the doctors saw plaintiff only once. See 20 C.F.R. § 416.927(d)(2) (an ALJ should generally "give more weight to" the opinion of a doctor who treated a claimant on an ongoing basis than to reports from "individual examinations, such as consultative examinations or brief hospitalizations"). The ALJ took account of all of the evidence in the record and found that plaintiff's hearing loss did not constitute a severe impairment because it created no more than a "slight limitation on her functional capacity." Tr. 18;see 20 C.F.R. §§ 416.921(a)-(b)(2) (an impairment "is not severe if it does not significantly limit" the claimant's "ability to do basic work activities"). Central to the ALJ's decision was an evaluation of plaintiff's credibility. Tr. 16-19;see 20 C.F.R. § 416.929(c); see also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) ("Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings."); Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998) (finding that it was appropriate for an ALJ to consider the plaintiff's demeanor at her hearing as one part of an inquiry into her credibility). The ALJ concluded that plaintiff was generally not credible. Tr. 18.
As noted in the Background section, Dr. Joseph found only that plaintiff had "bilateral hearing problems," Dr. Schindler found moderate to severe hearing loss in plaintiff's right ear and severe hearing loss in her left ear but noted that her responses were "highly unreliable," and the record from plaintiff's visit to CPMC makes no mention of any permanent hearing loss.
Substantial evidence supports the ALJ's finding that plaintiff exaggerated the extent of her hearing loss. We note some of the more telling pieces of evidence: 1) government records show that plaintiff earned over $35,000 in the late 1990s, even though she claimed to have never worked and never given her Social Security number to anyone; 2) Dr. Schindler noted that plaintiff's speech in Spanish was normal, yet severe hearing loss often causes distorted speech; 3) Dr. Schindler observed plaintiff having a whispered conversation with her niece; 4) plaintiff reported a different history of symptoms to each doctor she saw; 5) plaintiff's testimony at the hearing contradicted several statements she made elsewhere in the record; 6) plaintiff did not seek medical treatment beyond one visit to CPMC, see 20 C.F.R. § 416.929(c) (3) (v); and 7) plaintiff initially appeared to be unable to hear anything said at the hearing but then began competently answering questions after the ALJ threatened to end the proceeding. In short, substantial evidence supports the ALJ's decision.
CONCLUSION
Because we find that substantial evidence in the record supports the Commissioner's determination that plaintiff is not disabled, and because the Commissioner did not apply an erroneous legal standard, we affirm the decision to deny plaintiff SSI benefits. Defendant's motion for judgment on the pleadings is granted. The Clerk of the Court is respectfully requested to close this case.