Opinion
01 Civ. 6907 (DLC)
October 24, 2002
OPINION AND ORDER
On July 27, 2001, Justina Bierd ("Bierd") filed this action pursuant to the Social Security Act ("SSA") seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying Bierd's application for Supplemental Security Income ("SSI") disability benefits. Bierd asserted before the Commissioner that her disability began on January 1, 1998, and was due primarily to H. Pylori gastritis and back pain. The Commissioner found that Bierd, although suffering from a severe impairment, retains the ability to perform sedentary work. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. Bierd has not opposed the Commissioner's motion. For the reasons set forth below, the Commissioner's motion is granted.
BACKGROUND
Bierd was born on April 13, 1962, in the Dominican Republic and came to the United States in 1988. She completed the fifth grade in the Dominican Republic but does not understand or speak much English. Bierd last worked from 1988 to 1990 as an assembler in an eyeglass factory, a job that required her to sit for most of the day but did not require any lifting or carrying. Bierd testified that she left her job at the eyeglass factory due to "nerves."
A. Medical History
Bierd alleges that her disability began on January 1, 1998, but that her back problems began in the early 1990's after she fell down a flight of stairs. The medical records in this case date from 1997.
On November 24, 1997, Dr. John Hardie ("Hardie") examined Bierd at Metropolitan Hospital's neurology clinic due to complaints of back and leg pain. Although a neurological exam showed no impairments, an MRI showed non-specific degenerative changes in the lower lumbar spine. Hardie found no gross motor deficits, that Bierd's gait was steady, and that her neurological exam was normal. He noted, however, that her lower back pain is aggravated by heavy lifting or prolonged walking and prescribed Elavil.
On February 23, 1998, Bierd returned to the neurology clinic. She stated that she did not take the medication that Hardie had prescribed for her, but instead took Tylenol and Motrin. The doctor reported that she had motor strength in all four extremities, that she had no sensory deficits, that her coordination was intact, and that the neurological exam was normal. Although the doctor also reported muscle spasms and tenderness in the lumbar spine, he determined that Bierd needed no further neurological work-up and discharged her from the neurology clinic, stating that she should follow up with her primary care physician.
Following her August 15, 1998 application for SSI benefits, on October 7, 1998, Dr. Joseph Grossman ("Grossman") examined Bierd. He observed that she was in no acute distress, that her gait and station were normal, and that she had no trouble undressing or dressing or getting on and off the examination table. He reported that her lumbar range of motion was within normal limits and that her cervical spine had full range of motion. Examination of her extremities showed that her joints had full range of motion with no swelling, deformity, redness or heat. Her muscle strength was adequate and she was able to stand on her toes normally and perform a full squat. Grossman reported that her abdomen was soft, symmetrical and non-tender. Also, the liver and spleen were not palpably enlarged, there were normal active bowel sounds, and there were no abnormal masses or ascites.
In his neurological assessment, Grossman reported that Bierd was alert and oriented. In his diagnosis, Grossman stated that Bierd had a history of back pain due to possible lumbar disc disease, that she had a history of peptic ulcers, a history of a skin disorder, a history of psychiatric problems with depression without suicidal thoughts, and a history of headaches. In his functional assessment, Grossman stated that she may be "impaired" for prolonged repeated vigorous bending, stooping, and crouching, but that she was not "impaired" for heavy pushing, pulling, lifting, carrying, standing, sitting, climbing, walking, hand and foot controls, hearing, speech, and travel.
On October 8, 1998, after an examination of Bierd at Metropolitan Hospital due to complaints of acute lower back pain, Dr. Stephen Henderson ("Henderson") filled out a form in which he reported that she could lift or carry up to ten pounds, could stand or walk up to six hours per day as tolerated, could sit less than six hours per day as tolerated, but had limited ability to push or pull.
On December 6, 1998, Dr. Imam ("Imam"), a state agency review physician, determined that Bierd could occasionally lift or carry up to 20 pounds, could frequently lift or carry up to ten pounds, could stand or walk about six hours in an eight-hour workday, could sit for a total of six hours in an eight-hour workday, and had an unlimited ability to push and pull. On March 15, 1999, Dr. Kleinerman ("Kleinerman"), a state agency review physician, agreed with Imam's assessment.
On January 12, 1999, Henderson noted that Bierd suffers from frequent migraine headaches, but also complains of anxiety episodes. He also stated that she was taking propanolol for the migraine headaches and serazone for anxiety and that her condition at times disables her from performing regular work activities.
On February 4, 1999, Dr. Robert Cicarell ("Cicarell") examined Bierd at Diagnostic Health Services, Inc. Cicarell noted that Bierd was talkative, alert, and oriented to person, place, time, and situation. He reported that her mood was depressed, but that she was expressive and friendly. Bierd stated that her depression started eight years ago when two persons entered her apartment with a gun but left her unharmed. When Cicarell asked her why she had not started treatment sooner, Bierd answered that she told her primary physician at Lincoln Hospital who made numerous referrals for treatment, but that she never followed through. Bierd stated that she has no history of alcohol abuse, no history of drug abuse, no history of suicide attempts, and no history of psychiatric hospitalizations. In his mental status examination, Cicarell reported that Bierd's overall intellectual functioning was within normal limits, that she possessed emotional insight, that her judgment was fair, and that she was not suicidal or homicidal. He stated that she had a fair ability to understand and to carry out and remember instructions in a work setting. In his conclusion, Cicarell stated that Bierd's allegations were only partially consistent with the findings of the interview in that her affect was not congruent with her mood. He noted that Bierd had waited eight years before going to therapy. He suggested continuation of treatment at Morrisania Clinic, indicating that her prognosis was fair.
Also on February 4, 1999, Bierd was examined at the rehabilitation department of Metropolitan Hospital. The examining physician reported that Bierd was able to walk on her heels and toes and had full range of motion of her legs. The physician diagnosed Bierd as having chronic lower back pain and referred her to physical therapy twice a week for four weeks.
Bierd attended physical therapy on March 11, March 18, March 24, and April 8, 1999. On April 8, the therapist stated that the goals of therapy had been achieved and discharged her from therapy.
On March 2, 1999, Dr. Jasjit Pawha ("Pawha") examined Bierd. Pawha reported that Bierd was in no acute distress, gait and station were normal, and she had no trouble undressing and dressing or getting on and off the examination table. Pawha reported that the range of motion of the lumbarsacral spine was within normal limits and her cervical spine had full range of motion. An examination of her extremities revealed that Bierd could stand on her toes and that her muscle strength was normal with no muscle wasting. Pawha reported that her abdomen was soft, symmetrical and non-tender, there were no abnormal masses or ascites, and the liver and spleen were not palpably enlarged. In his functional assessment, Pawha stated that Bierd was not impaired for sitting, standing, walking, pushing, or pulling, but that she had mild impairment for lifting and carrying. Also, her finger and hand dexterity, hearing, vision, and speech were normal.
On March 15, 1999, Kleinerman concluded that Bierd's impairments were not severe, there was no evidence of a sign or symptom related to an anxiety disorder, no evidence of a personality disorder, and no substance addiction disorder.
On June 3, 1999, Bierd was seen in the orthopedic clinic of Metropolitan Hospital due to complaints of migraine headaches and back pain. The physician found that Bierd had no spasm or tenderness of her lumbosacral spine and that she could walk on her heels and toes.
On July 1, 1999, Bierd was examined at the gastrointestinal clinic of Metropolitan Hospital due to complaints of gas, bloating, acid reflux, and epigastric pain. The physician noted that Bierd had been treated in October of 1998, for H. pylori gastritis but that she did not complete her regimen. Examination revealed that Bierd had epi-tenderness and the physician prescribed Biaxin, Amoxicillan, and Prilosec.
On July 8, 1999, Bierd visited the orthopedic clinic of Metropolitan Hospital. An examination revealed right paraspinal tenderness and a limited range of motion. Bierd was able to walk heel to toe with some difficulty but her reflexes were normal. It was also noted that x-rays had been negative for any bony abnormality or space deformity of the spine.
On July 12, 1999, Henderson noted that Bierd had received treatment for H. Pylori gastritis with good results. In a letter dated April 10, 2000, Henderson stated that Bierd takes Celexa for her depression and that her migraine headaches are stable. Henderson further stated that Bierd's back pain was stable and that physical examination showed no neurological impairments.
This letter was not submitted to the ALJ but was submitted to the Appeals Council. New evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review. Perez v. Chater, 77 F.3d 41, 45 (2nd Cir. 1996).
Finally in an undated letter, Dr. Jun Xa ("Xa") stated that Bierd had been seen at the rehabilitation clinic of Metropolitan Hospital for chronic lower back pain, that Bierd had been provided with a lumbar/sacral corset, and that frequent bending related to work should be avoided.
B. Procedural History
Bierd's initial application for SSI benefits was denied on December 18, 1998; on January 15, 1999, Bierd requested reconsideration of her application. After the request for reconsideration was denied, Bierd requested a hearing. On August 9, 1999, Bierd appeared and testified before ALJ Robin J. Artz. On February 24, 2000, the ALJ issued a finding that Bierd was not disabled at any time through the date of the decision. On April 11, 2000, Bierd filed a request for review of the AJL's decision and on May 31, 2001, the Appeals Council denied her request for review and the decision of the ALJ became the final decision of the Commissioner.
On July 27, 2001, Bierd filed this action. In her complaint seeking review of the ALJ's decision by the United States District Court, Bierd states that her disability is caused by back pain and spinal derangement. While the record below reveals that Bierd had also complained of mental impairment and stomach pain, she has not pursued those complaints in this action.
In her opinion, the ALJ did not discuss Bierd's allegation of mental impairment as a potential disability. Where application of the correct legal standard could only lead to one conclusion, remand is not necessary. Schall v. Apfel, 134 F.3d 496, 504 (2nd Cir. 1998)
On February 19, 2002, the Commissioner filed an answer. The Commissioner moved for judgment on the pleadings on May 9, 2002. Pursuant to a scheduling order, Bierd's opposition was due May 31, 2002. On June 14, 2002, the Court advised Bierd that neither the Court nor the Government had received her opposition and that she should contact the Pro Se Office for guidance. As of today, Bierd has not submitted any opposition to the Commissioner's motion or been in touch with the Pro Se Office.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may:
enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.42 U.S.C. § 405 (g). The factual findings of the Commissioner are conclusive if supported by substantial evidence. Diaz v. Shalala, 59 F.3d 307, 312 (2nd Cir. 1995). The district court is not to determine de novo whether the plaintiff is disabled. Curry v. Apfel, 209 F.3d 117, 122 (2nd Cir. 2000). Rather, it is to "determine whether the Commissioner's conclusions are supported by substantial evidence in the record as whole or are based on an erroneous legal standard." Id. (citation 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." Id. (citation omitted) This Court may set aside a determination of the ALJ only if it is "based upon legal error or . . . not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2nd Cir. 1999) (citation omitted).
The ALJ's decision must be guided by the appropriate legal standards. Shaw v. Chater, 221 F.3d 126, 131 (2nd Cir. 2000). To be "disabled" for purposes of the Social Security Act, a claimant must demonstrate:
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 12 months.42 U.S.C. § 423(d)(1)(A); see also Shaw, 221 F.3d at 131. Further, the claimant's 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." 42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Social Security Administration uses a five-step process to make determinations of disability. See 20 C.F.R. § 404.1520 416.920. The Second Circuit has summarized the procedure 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 is Appendix 1 of the regulations. . . . 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.
Curry, 290 F.3d at 122. (citations omitted). In determining whether the claimant can perform other work, the ALJ determines first whether the applicant retains the functional capacity for work-related activities. If the applicant is subject only to exertional, or strength, limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2nd Cir. 1996) A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2nd Cir. 1998)
B. Commissioner's Findings
The ALJ found that Bierd (1) has not engaged in substantial gainful activity since August 15, 1998; (2) has an impairment that is considered "severe"; (3) does not have an impairment which meets or is equivalent to one listed in Appendix 1, Subpart P, Regulation No. 4; (4) has the residual functional capacity to perform her past relevant work; and (5) in the alternative, based on her residual functional capacity to perform a full range of sedentary work, and considering her age, education, and past relevant work experience, is "not disabled." The ALJ also found that Bierd's statements of disabling symptoms and limitations were not fully supported by the medical evidence and were inconsistent with her testimony about her activities. Bierd received a full hearing and was advised of and waived her right to counsel.
The ALJ concluded that the evidence supported a finding that Bierd has a resolved H. Pylon gastritis infection, which is not a severe impairment as defined by 20 C.F.R. § 416.921, but that she also has a lower back disorder that does meet the definition of severe. With respect to Bierd's H. Pylon gastritis, the ALJ observed that, although Bierd testified that she continued to have an H. Pylori gastritis infection, her treating physician stated that she had received treatment for H. Pylori gastritis with good results. Further, although Bierd's gastritis complaints recurred, clinical notes indicated that she was simply going to be prescribed another round of antibiotics.
The ALJ concluded that Bierd's only significant impairment is a lower back disorder but that she retains the residual functional capacity for sedentary work which encompasses her past relevant work. The ALJ noted that Bierd's testimony indicated that she had the ability to perform sedentary work. She testified that she was raising two small children, ages eight and eleven, by herself, that she was able to lift and carry at least one gallon one block, walk two or three blocks at a time, stand for one half hour at a time, and sit for three hours at a time. Bierd also stated that she can travel alone by bus and that she has no problems with fine or gross manipulations. Thus the ALJ concluded that her symptoms are not of such an intensity and frequency as to preclude work activity.
C. Discussion of Commissioner's Findings
The ALJ's determination that Bierd retains a residual capacity to perform her past relevant work is supported by substantial evidence. The exertional and nonextertional requirements of her past work as an eyeglass assembler are not in excess of the exertional and nonextertional requirements of sedentary work. 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); see also 20 C.F.R. § 404.1567. Sedentary work is the least restrictive of the five categories of work recognized by SSA regulation. Rosa, 168 F.3d at 78. (citation omitted). "Sedentary work also generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Perez v. Chater, 77 F.3d 41, 46 (2nd Cir. 1996).
When the ALJ asked Bierd about her past work as an eyeglass assembler, Bierd stated that the job was full time, that she went into work at 8:30 a.m. and spent most of the time sitting, except for approximately an hour at lunch time. She also stated that the job did not require her to do any lifting or carrying. Bierd's description of her past work indicates that it meets the definition of sedentary work.
There is substantial evidence to support the ALJ's determination that Bierd's complaints of back pain do not support a finding that Bierd is disabled. Specifically, the ALJ's finding is supported by the results of Bierd's October 7, 1998 exam conducted by Grossman, her December 6, 1998 exam conducted by Imam, and her March 2, 1999 exam conducted by Pawha, as well as by the April 8, 1999 opinion of Beird's physical therapist and the undated opinion of Xa.
The only evidence suggesting that Bierd does not have the residual functional capacity to perform the exertional and nonexertional requirements of sedentary work are a form filled out by Henderson on October 8, 1998, indicating that her capacity to sit is limited to less than six hours a day, and Bierd's own testimony at the ALJ hearing that she can only sit for three hours. The ALJ was entitled to find that the other evidence in the record effectively undermined Bierd's own testimony. Further, although Henderson is a treating physician whose opinion is ordinarily entitled to controlling weight, see 20 C.F.R. § 416.927(d)(2), to be given such deference it must be "well supported by medical findings and not inconsistent with other substantial record evidence." Shaw, 221 F.3d at 134. Here, Henderson's October 8, 1998 opinion is inconsistent with the other evidence in the record, including Henderson's later findings.
First, in Henderson's later assessments of Bierd, he did not repeat his earlier statement that Bierd's back pain prevented her from sitting for more than six hours a day. Henderson wrote two separate letters on January 12, 1999. In the first letter, Henderson stated that Bierd had complained of acute back pain for the past three days and that he recommended that she be excused from work activities for only one week. The second letter was addressed to the Department of Disability Determinations and, although he mentioned her complaints of migraine headaches and abdominal pain, he did not mention her back impairment. In addition, on January 22, 1999, in his referral of Bierd to physical therapy, Henderson wrote that Bierd had suffered an acute back pain episode one week prior but that it had been resolved fifty to seventy-five percent. Finally, on April 10, 2000, in a letter from Henderson that Bierd submitted to the Appeals Council, Henderson stated that Bierd's back pain was currently stable and that a physical examination showed no neurological deficits.
Second, Henderson's assessment that Bierd can sit for less than six hours is not consistent with the other medical evidence in the record. Neither Hardie nor Xa found that Bierd was impaired for sitting. In addition, Grossman, Imam, and Pawha all explicitly stated that Bierd's back pain did not impair her ability to sit.
The other ailments reflected in the administrative record, but not in the complaint filed in this action, do not support a finding of disability. The medical record indicates that Bierd does not have a mental impairment that disables her. Cicarell's February 4, 1999 and Kleinerman's March 15, 1999 examinations of Beird indicate that she had no substantial mental impairment that would disable her from performing regular work functions. Similarly, there is substantial evidence that supports the ALJ's determination that Bierd's complaints of stomach problems do not warrant a finding of disability. Bierd's intermittent complaints of stomach problems were treated successfully with medication.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court shall close the case..