Opinion
01 Civ. 4334 (RwS)
December 12, 2002
FRANK KELLER, Plaintiff Pro Se, Bronx, NY.
HONORABLE JAMES B. COMEY, United States Attorney for the Southern District of New York Attorney for Defendant, New York, NY, By: SUSAN D. BAIRD, Assistant US Attorney Of Counsel
OPINION
Defendant Jo Anne B. Barhart, the Commissioner of Social Security (the "Commissioner"), has moved pursuant to Rule 12(c), Fed.R.Civ.P., for judgment on the pleadings to dismiss the complaint of plaintiff Frank Keller ("Keller"). Keller, pro se, brought this action to review the decision of the Commissioner finding that he was not entitled to disability insurance benefits under the Social Security Act (the "Act") for the period January 1, 1987 through December 31, 1989. For the following reasons, the Commissioner's motion is granted.
Prior Proceedings
Keller filed an application for disability insurance benefits on September 30, 1985, alleging that he was disabled due to lower back pain and pain in both legs. The application was denied administratively and then by an Administrative Law Judge ("ALJ") on August 28, 1986. Keller subsequently sought reopening of the 1985 application pursuant to a class action decision, Stieberger v. Sullivan, 792 F. Supp. 1376 (S.D.N.Y. 1992), modified, 801 F. Supp. 1079 (S.D.N.Y. 1992). Pursuant to that decision, Keller was entitled to a de novo decision on his application for benefits. Stieberger, 792 F. Supp. at 1385. On reopening, the application was denied administratively on August 23, 1999. Keller requested a hearing which was held on April 26, 2000. On September 12, 2000, the ALJ issued a decision denying Keller's claim for the period at issue pursuant to the Stieberger decision. Thereafter, Keller sought review by the Appeals Council which denied his request on February 27, 2001. The motion to dismiss was marked submitted on June 19, 2002, and no opposition was presented by Keller.
Issue on Appeal
The issue on appeal is whether substantial evidence supports the Commissioner's decision that Keller was not disabled from January 1, 1987 through December 31, 1989.
Facts
Keller testified at the administrative hearing that he was born on August 27, 1936 and that he was 54 years old at the time his insured status expired. Keller completed his education through the ninth grade and worked as a truck driver from 1976 until 1983. He subsequently worked as a driver for a moving company for twelve hours per week from 1991 through 1998. Keller applied for social security retirement benefits in December 1998 and began receiving benefits in January 1999. Keller alleged that he was injured when he fell off a truck while at work on January 15, 1983. He stated that because of back and leg pain caused by that injury he could not stand for long periods of time or lift heavy objects.
Keller reported that he visited Bronx Lebanon Hospital on an as needed basis from 1982 through 1994. He stated that he received treatment and examinations for back and foot conditions among others. The ALJ subpoenaed records from the hospital, but the hospital reported that it had no record of treatment for this period of time.
In a letter dated January 30, 1999, Dr. Serafin Izquierdo, a chiropractor, reported that Keller was under his care for an injury sustained to his lower back in January 1983. Dr. Izquierdo stated that Keller had radiculopathy that caused him to become disabled. Keller was examined on July 28, 1999 by Dr. Vijaya Doddi at the request of the Social Security Administration, and the doctor reported that Keller had full range of motion. Dr. Doddi opined that Keller could perform standing, pushing, pulling and sitting, light lifting and driving with frequent rest periods.
Discussion
This Court reviews the Commissioner's decision to determine whether it is based upon correct legal standards and is supported by substantial evidence in the record as a whole. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted). Substantial evidence is "more than a mere scintilla" and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). If there is substantial evidence in the record to support the Commissioner's factual findings they are conclusive and must be upheld. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996);Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (citations omitted). The Court is not empowered to make a de novo determination of whether Keller is disabled.
In order to establish disability under the Act, Keller must prove that: (1) he is unable to engage in substantial gainful activity by reason of a physical or mental impairment expected to result in death or which has lasted or could be expected to last for a continuous period of at least twelve months; and (2) the existence of such impairment was demonstrated by medically acceptable clinical and laboratory techniques.See 42 U.S.C. § 1382c(a)(3); see also Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983). The Social Security regulations establish a five-step process, see 20 C.F.R. § 404.1520 and § 416.920, for determining whether an impairment is of sufficient severity:
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.DeChirco v. Callahan, 134 F.3d 1177, 1180-01 (2d Cir. 1998); citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
The ALJ evaluated Keller's claim and determined that during the period January 1, 1987 through December 31, 1989, Keller did not establish by medically acceptable evidence the existence of any medically determinable severe impairment. A claim for disability benefits is properly denied as non-severe at the second step of the sequential evaluation process when an impairment or combination of impairments does not significantly limit an individual's ability to perform work activities. 20 C.F.R. § 404.1521(a). The ALJ's decision was reasonable and is affirmed.
For Keller to be eligible for disability the condition must be established by adequate medical evidence. Without such objective medical evidence, Keller cannot sustain his burden by means of conclusory statements. Peterson v. Gardner, 391 F. Supp.2d 209, 209 (2d Cir. 1968);Moscatiello v. Apfel, 129 F. Supp.2d 481, 489 (E.D.N.Y. 2001)
Here Keller has not sustained his burden of showing that he was disabled prior to December 31, 1989, the date he was last insured for disability insurance benefits. Although the medical evidence of record shows that Keller may currently have severe impairments, this evidence post-dates Keller's last insured date by approximately ten years. There is no evidence regarding treatment from January 1, 1987 to December 31, 1989. Although Keller reported that had visited Bronx Lebanon Hospital for back and leg pain during the relevant period, the hospital responded to the ALJ that it had no such records.
The record contains two letters from Dr. Izquierdo which suggest that Keller may have had back trouble during the relevant period. However, this evidence is insufficient to establish disability. Dr. Izquierdo's opinion that Keller was disabled since 1983 is also belied by the fact that Keller worked from 1991 until 1998 as a driver for moving company. The ALJ properly decided that Keller failed to establish the existence of a severe impairment during the relevant period.
Conclusion
For the foregoing reasons the Commissioner's determination is supported by substantial evidence and is affirmed.