Opinion
06 Civ. 909 (SAS).
February 21, 2007
For Plaintiff: John J. Fallon, Esq., McAdam Fallon, P.C., Walden, New York.
For Defendant: Susan D. Baird, Assistant United States Attorney, New York, New York.
OPINION AND ORDER
I. INTRODUCTION
Deborah Gianotti brings this action, pursuant to the Social Security Act (the "Act"), seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") denying her claim for disability insurance benefits and a period of ensurability from June 2, 1995, through June 30, 2001. Gianotti moved for judgment on the pleadings, and the Commissioner cross-moved for the same relief. For the reasons set forth below, the Commissioner's cross-motion is granted and Gianotti's motion is denied.
See 42 U.S.C. § 405(g).
II. BACKGROUND
A. Procedural Background
Gianotti filed an application with the Social Security Administration ("SSA") on February 10, 2004, for Disability Insurance Benefits ("DIB") covering a period of disability that began on June 2, 1995 and ended on June 30, 2001, Gianotti's last date of insurability. The application alleged that Gianotti has been disabled since June 2, 1995, due to hepatitis C and related illnesses. After her application was initially denied on July 20, 2004, Gianotti requested a hearing before an Administrative Law Judge ("ALJ"), and appeared before ALJ Thomas P. Zolezzi on May 31, 2005. Gianotti, represented by counsel, testified at the hearing. On July 20, 2005, the ALJ issued a decision finding that Gianotti "was not under a `disability' as defined in the Social Security act [sic], at any time through her date last insured." The ALJ's decision became the final decision of the Commissioner on November 25, 2005, when the Appeals Council denied Gianotti's request for review of the ALJ's decision. This action followed.
See Transcript of Administrative Record ("Transcript" or "Tr.") filed as part of the Commissioner's Answer pursuant to 42 U.S.C. § 405(g), at 41, 30, 40, 45, 49.
See id. at 41.
See id. at 30, 49.
See id. at 10.
See id. at 4Q, 11.
See id. at 4I, 259-281.
See id.
Id. at 40. The ALJ's decision is found at pages 4I-4P of the Transcript.
See id. at 4A-4C.
B. Gianotti's Testimony with Respect to Her Disability and Work Experience
Gianotti was born on October 21, 1953, and was 41 years old on June 2, 1995, when she allegedly became disabled due to hepatitis C. At the time of the hearing, she had one minor child still living at home. Gianotti graduated from high school. Her past relevant work experience includes approximately four years as an office manager for an electrical contractor (1993-1997), approximately three months as a cleaner (January 1997-March 1997), and approximately one year as a restaurant owner with her daughter and son-in-law (2000-2001). As an office manager at the electrical contracting company, Gianotti worked forty hours per week, and spent at least six hours of each workday standing, walking, or climbing. Her job frequently involved lifting objects that weighed at least twenty-five pounds. As a cleaner, Gianotti worked eight hours per day, six days per week, spending the majority of each day walking or climbing. She also frequently lifted objects that weighed at least twenty-five pounds. As a restaurant owner, Gianotti worked ten hours per day, six days per week, never sitting during the work day, and frequently lifting objects that weighed at least twenty-five pounds.
See id. at 22, 49, 262.
See id. at 263, 275.
See id. at 55, 263.
See id. at 50, 58, 64, 263-267. On the SSA Work Activity Report dated March 19, 2004, Gianotti states that she did cleaning work from January through March 1997. See id. at 64. On the SSA Disability Report dated March 25, 2004, Gianotti writes that she worked as a "cleaning business owner" from 1999 through 2000. Id. at 50. On the SSA Work History Report dated April 28, 2005, Gianotti again states that she did cleaning work from January through March 1997. See id. at 58.
See id. at 61.
See id.
See id. at 60.
See id.
See id. at 59.
At her May 31, 2005 hearing, Gianotti testified that she suffered from the following ailments: chronic Lyme disease, diagnosed in 1990; hepatitis C, first diagnosed in 1995; high blood pressure; anxiety and emotional problems; chronic cirrhosis; migraine headaches; an esophageal hernia; arthritis; and side effects associated with Interferon treatment for hepatitis C, including dizziness, confusion, insomnia, shortness of breath, leg pain, body aches, low grade fevers, and chronic fatigue.
See id. at 263-280.
On SSA Disability and Work Report forms dated March 25, 2004 and April 28, 2004, Gianotti described the symptoms of her illness, the side effects of her medication, and their combined effect on her ability to work — presumably as of the dates on which she filled out the forms — as follows: "pain, chills, headaches, mental confusions, fevers, weight loss, loss of appetite, lack of energy"; "flu-like symptoms e.g. fever, headache, neusea [sic], cough, vomiting, chills, fatigue, muscle pain, Body aches, dizziness"; "this combination therapy has been a very trying time for me. I can no longer function as I use [sic] to. My day consists of nothing but Lying down + feeling sick all the time. this is a 48 weeks treatment. I am a Genotype 1 Hep C this is the hardest And most difficult to treat;" "The treatment for Hepatitis C is very radical and very intense. It is 48 weeks of constant doctors appointment + lab work;" "My disability does not allow me to do very much. Fatique [sic] has me lying down or resting for my awake hours. I have trouble breathing when I climb the steps to my bedroom. I mostly watch T.V. + rest." Gianotti also reported exhaustion after completing everyday tasks such as dressing, bathing, eating, and walking for five minutes. She reported inability to focus on activities such as reading and paying bills.
Id. at 49.
Id. at 56.
Id.
Id. at 75.
Id. at 68.
See id. at 69, 70, 74.
See id. at 72.
However, Gianotti does not specify on any of the SSA forms whether or not these subjective symptoms limited her ability to work during her period of insurability. She did note on the SSA Work History Report Form dated April 28, 2004, that "I could never go back to work while I am under this treatment." On the SSA Disability Report form dated March 25, 2004, Gianotti's answers to the questions "When did you become unable to work because of your illnesses, injuries or conditions?" and "When did you stop working?" were both "Sept 2001," which was at least two months after Gianotti's insured status expired. At the May 31, 2005 hearing, however, Gianotti testified that she became disabled in 1995.
On the "SSA USE ONLY" portion of the SSA Work Activity Report, SSA interviewer A. Rogers, who conducted an interview by telephone, noted that Gianotti had made an "Unsuccessful work attempt" because "Clmt worked over 40 hours a month but only worked about 3 months and had to stop due to her medical condition. This can be considered an UWA." Id. at 67.
Id. at 63.
Id. at 49.
See id. at 167.
C. Medical Evidence
a. 1997
1. Evidence Relating to Gianotti's Last Period of Insurability: June 2, 1995 through June 30, 2001
The record does not contain medical records for Gianotti prior to February of 1997. Progress notes from New York Medical College dated December 1, 1997, indicate that Gianotti was seen by Dr. E. Lebovics in February 1997 for fatigue, and again in April, May, and September of 1997. Lab reports indicate that Gianotti had lab work done at New York Medical College on October 31, 1997 and December 1, 1997. The December 1, 1997 notes also indicate a mild increase in alanine aminotransferase ("ALT"), a forty pound weight gain, and a hepatitis C viral load of 4,000,000.
There is some confusion in the record as to the existence and consideration by the ALJ of records from "Valhalla Medical Center." At the May 31, 2005 hearing Gianotti testified that she "had been going down to Valhalen [phonetic] Medical Center to hepatitis-C clinic" in 1997. Id. at 272. Because records from 1997 were not in the file at the time of the hearing, the ALJ kept the record open for twenty days so that records from "Valhalen Med Center" could be added. See id. In her Memorandum in Support of Motion for Judgment on the Pleadings ("Pl. Mem.") Gianotti notes that the ALJ, in his Decision, wrote that "`[t]he claimant's attorney was afforded time subsequent to the hearing to submit evidence from Valhalla Medical Center but this had not been submitted.'" Pl. Mem. at 7; Tr. at 4M. The Memorandum continues to note that "[t]hese records appear to be in the file and were submitted by Claimant's attorney by letter of June 13, 2005, and contained in the transcript on pages 194-202." Pl. Mem. at 7. The medical records at pages 194-202 of the Transcript are from New York Medical College, which is located in the city of Valhalla, New York. Tr. at 194-202. The ALJ did in fact refer to these medical records in his Decision, perhaps not realizing that New York Medical College was the "Valhalen Medical Center"/"Valhalla Medical Center" that Gianotti had referred to at the hearing. Id. at 4J.
See id. at 194.
See id. at 195-202.
See id. at 194.
A liver biopsy report read at Vassar Brothers Hospital by Dr. James W. Sharp on May 21, 1997, comments that "[t]he overall histologic pattern [of the liver] suggests the possibility of a very early chronic active hepatitis. This must be correlated with clinical findings and enzyme results."
Id. at 91.
b. 1998
Dr. Richard I. Horowitz treated Gianotti from April through November of 1998. In progress notes dated April 23, 1998, Dr. Horowitz wrote that Gianotti described symptoms that "come and go," such as body aches, fatigue, joint pains, tingling and numbness of fingers, "terrible memory," and mood swings, and that pain sometimes wakes her up at night. He noted, "no fever, chills." The April 23, 1998 notes also indicated that Dr. Horowitz discussed diet and treatment options with Gianotti, and that Gianotti "doesn't want to go back to Dr. Lebovics @ NY Med."
See id. at 214, 216-244.
Id. at 224-225.
Id. at 224.
Id. at 225.
In a note dated April 27, 1998, Dr. Horowitz wrote that Gianotti suffered from "Lyme disease, Ehrlichiosis, Babesiosis chronic hepatitis C." In the note, Dr. Horowitz also described Gianotti's complaints of "extreme fatigue, body aches, joint pains, headaches and insomnia, as well as terrible neurocognitive problems." Dr. Horowitz concluded, "She will require long term treatment with antibiotics interferon for the above medical problems." Dr. Horowitz's progress notes from May 21, 1998, indicate that there had been "no major shift" in Gianotti's symptoms, and that she was still complaining of fatigue, body aches, insomnia, tingling, bad memory, and fluid retention, but that these symptoms were prior to starting a course of doxycycline to treat the ehrlichiosis.
Id. at 214. Ehrlichiosis and babesiosis are both diseases transmitted by the same ticks that carry Lyme disease, and the symptoms of both are similar to some of the symptoms of Lyme disease, including fatigue, malaise, myalgia, arthralgia, chills and fever. See id. at 250-251.
Id. at 214.
Id.
Id. at 223.
Dr. Horowitz examined Gianotti again on June 15, 1998, when she had just finished a course of doxycycline for the ehrlichiosis and Cleocin and quinine for the babesiosis. Although Gianotti suffered some nausea as a side effect of the treatment, Dr. Horowitz noted that Gianotti was "feeling slightly improved after finishing medications. Her body aches are better along with some decrease in her fatigue." After that visit, Gianotti was scheduled to see Dr. Khurana to discuss treatment of chronic hepatitis C, and to "start a Bicillin/Zithromax regimen." Dr. Horowitz's final assessment for the June 15, 1998 examination was that Gianotti was "up to 30% of normal" with "some improvement in symptomology" after her treatment for babesiosis.
See id. at 222.
Id.
Id.
Progress notes from Gianotti's July 14, 1998 visit with Dr. Horowitz indicate that Gianotti felt "some improvement in energy," slow improvement in concentration and mood swings, and less headaches, but that she still had myalgias, especially in her legs. Dr. Horowitz noted that Gianotti was exercising twice a week for two hour sessions and sticking to an "Atkins-type" diet.
Id. at 221.
Id.
At her August 17, 1998 visit with Dr. Horowitz, Gianotti was "starting to feel like herself again," and her symptoms had improved after one month on Bicillin. Gianotti's energy and muscle aches were better; the "only pain left" was in her hip. She was having less headaches, and though she was still having memory problems, her memory was "continuously improving." Gianotti was again advised to see Dr. Khurana about her hepatitis C, and to consider interferon treatment. Dr. Horowitz also discussed a diet plan for weight loss involving less consumption of simple carbohydrates.
Id. at 220.
Id.
Id.
See id.
See id.
At her September 18, 1998 visit with Dr. Horowitz, Gianotti was "feeling better," with "not as much fatigue," though she still experienced body aches and pains and numbness in her hands. Dr. Horowitz also noted that Gianotti's father had passed away.
Id. at 219-220.
See id. at 219.
On October 16, 1998, Dr. Horowitz noted that Gianotti was seventy percent of normal. She had lost weight, and though her body aches continued, they were "no better or worse" than they had been. She was still "feeling very tired" and had "tingling in her hands." Dr. Horowitz prescribed Mepron and Zithromax.
See id.
Id.
Id.
See id.
Gianotti's last visit with Dr. Horowitz prior to July, 2001 was on November 23, 1998. Dr. Horowitz noted that at that time Gianotti was ninety percent of normal, and that she had started to feel better four to five days after taking the Mepron and Zithromax. The progress notes indicate that Gianotti no longer had aches or headaches except for some pain in her upper legs, that her fatigue was improving, and that the tingling in her hands was occasional, but improving. Dr. Horowitz decided to "hold off" on other prescription drugs unless there was no further improvement.
See id. at 218.
See id.
See id.
Id.
c. 2000
The record does not contain any medical treatment records for Gianotti between the date of her last visit with Dr. Horowitz in November of 1998 and her first visit with Dr. Robert Holland in March of 2000. In his notes from Gianotti's March 7, 2000 visit, Dr. Holland wrote that Gianotti had hepatitis C by history, but was not taking any regular medications. The notes indicate that Gianotti had complications relating to Lyme disease, including leg pain and fatigue, three years prior, and that she had been seeing Dr. Horowitz for those symptoms and had been on antibiotics for nine months, which she stopped on her own because she was "feeling good." Gianotti reported to Dr. Holland that she had trouble losing weight, that her weight "fluctuates up and down" with changes in diet and exercise, and that she was walking briskly two miles per day for thirty-five minutes. The notes also indicate that Gianotti complained of frequent heartburn and occasional fatigue and myalgias in both legs. Dr. Holland's final assessment for Gianotti on March 7, 2000, was: mild fatigue relating to hypothryoidism and Lyme disease, chronic hepatitis C, hypothyroidism by history, overweight, and a prescription for Axid to manage her heartburn.
See id.
Id.
Id.
See id.
See id.
Dr. Holland's notes from March 28, 2000, indicate that Gianotti was "feeling well," that the Axid was working, and that Gianotti was exercising and eating well, though not losing weight. Gianotti's lab results for hepatitis C and Lyme disease were negative. Dr. Holland noted that he would review Gianotti's old records regarding her hepatitis C and Lyme disease, and would consider hepatitis C-Ab. On April 4, 2000, Dr. Holland noted that it was "unusual" for the PCR hepatitis C test to have come up negative, and that he would repeat that test as well as the Lyme disease test.
Id. at 117.
See id. at 117, 132-134. The test used for hepatitis C was an HCV RNA PCR test. See id. at 134.
See id. at 117.
Id.
On June 16, 2000, Gianotti presented with a sore throat, though she had a negative rapid strep test. Gianotti's temperature was 98.4, though she reported that over the past week she had experienced fever, headache, mild cough, mild diarrhea, itchy eyes, and myalgias. Her blood pressure was 142/98. Dr. Holland noted that Gianotti had pharyngitis, and that she should return in three to four weeks based on her high blood pressure.
See id. at 116.
See id.
See id.
See id.
On July 17, 2000, Gianotti was feeling well, with no fatigue and myalgias, and her blood pressure had gone down to 128/90.
See id.
On October 30, 2000, Dr. Holland noted that Gianotti's heartburn had improved on Prevacid and that her high blood pressure had improved on Ziac. On December 18, 2000, Gianotti's blood pressure was "stable" at 116/82, and her heartburn was stable.
See id. at 115.
Id. at 114.
d. 2001
From January 30, 2001, through February 8, 2001, Dr. Holland reported that Gianotti had symptoms of the flu — fever, cough, sore throat, chest congestion, chills, fatigue, and vertigo. Her blood pressure was 154/100. Dr. Holland referred Gianotti to the hospital in order to rule out pneumonia. Gianotti was admitted to Saint Francis Hospital in Poughkeepsie, New York on February 8, 2001, and was released on February 13, 2001. Gianotti was found to have hypoxemia, and was treated for her respiratory distress. She was given erythromycin for possible whooping cough, after which treatment Gianotti "got much better." At discharge from Saint Francis on February 13, 2001, Gianotti had no respiratory distress, clear lungs, and decreased cough and sore throat. Her blood pressure was 110/60. At a follow-up visit with Dr. Holland on February 20, 2001, Gianotti felt "95% better" and had minimum cough and fever, on and off fatigue, and some insomnia. Notes from February 22, 2001 and March 20, 2001 indicate that Gianotti had normal X-rays, her pneumonia had resolved, her strength was returning, her cough was much better, and her appetite was good.
See id. at 112-113.
See id. at 113.
See id.
See id. at 94.
See id. at 95.
Id.
See id.
See id.
Id. at 112.
See id. at 111.
The last medical evidence that appears in the record prior to Gianotti's date of last insurability is a prescription for Prevacid written by Dr. Holland on May 29, 2001.
See id.
2. Evidence Relating to the Period After Gianotti's Date Last Insured Through the Date of the Hearing Before the ALJ: June 30, 2001 — May 31, 2005
Dr. Horowitz saw Gianotti again in July and August of 2001. Gianotti complained of not feeling well for approximately two months, and described symptoms of fatigue, pains in her legs, shoulders, and arms, numbness in her hands, insomnia, short term memory loss, mood swings, and weight gain with no change in diet, but less exercise. Progress notes indicate that Dr. Horowitz continued to prescribe Prevacid for heartburn, Ziac for high blood pressure, and that he ordered tests for hepatitis C, Lyme disease, anemia, hypothyroidism, and B12 deficiency.
See id. 216-218.
See id. at 217-218.
See id. at 217.
Dr. Holland treated Gianotti for the flu and monitered her blood pressure throughout 2002 and 2003. In March of 2002, Dr. Holland noted that Gianotti felt mild depression, was experiencing insomnia, complained of hair loss, and showed some obsessiveness. She was walking twice per week for exercise, and declined medications for her depression. By July of 2002, Gianotti's depressive episodes had decreased and she was walking three to four times per week for exercise. In October of 2002, Dr. Holland noted that Gianotti was feeling stress due to "family issues," and that she couldn't sleep, but that she was walking three miles per day, five days per week. Dr. Holland prescribed Xanax for anxiety on October 18, 2002. On June 10, 2003, Dr. Holland noted that Gianotti saw Dr. Khurana for her hepatitis C. On October 27, 2003, Dr. Holland noted that Gianotti's blood pressure was stable at 122/86, and that Gianotti "feels well."
See id. at 101-110.
See id. at 109.
See id.
See id. at 106.
Id. at 104.
See id.
See id. at 102.
Id. at 101.
Dr. Andrew Packard treated Gianotti for her hepatitis C between January and November of 2004 with interferon-alpha and ribavirin. On January 1, 2004, Dr. Packard's progress notes show that Gianotti wanted drug treatment for her hepatitis C, even though she hadn't sought treatment in the past. Dr. Packard noted symptoms of weight gain, chronic fatigue, poor sleep, and anxiety. The course of treatment was to have taken forty-eight weeks, but Dr. Packard discontinued the ribavirin and interferon-alpha two months prior to the completion date because of Gianotti's decreasing white blood count.
See id. at 183, 138-161.
See id. at 142.
See id.
See id. at 183.
Gianotti returned to Dr. Holland in November 2004, and progress notes indicate that Dr. Holland treated her for cough, hoarseness, insomnia, and anxiety until March of 2005. According to Dr. Holland's notes, Gianotti had a low white blood cell count (leukopenia) in November due to the hepatitis C treatments that she had just discontinued, but that her leukopenia had resolved by March of 2005. Dr. Holland prescribed Ambien for insomnia, Xanax for anxiety, and gave Gianotti a referral to a hepatitis C specialist, since her viral load was increasing.
See id. at 164-166.
See id.
See id. at 164.
The record indicates that Gianotti was subsequently treated by Dr. Arthur Walczyk for her hepatitis C beginning in April of 2005 until after the May 31, 2005 hearing with the ALJ. In notes from a consultation on April 7, 2005, Dr. Walczyk wrote that when Gianotti had discontinued her first round of hepatitis C treatment with PegIntron her viral load was "as low as 460 IU/mL," but that it was now back up to 170,000 IU/mL. Gianotti complained of "increasing lethargy and generalized fatigue." Dr. Walczyk noted Gianotti's history of chronic Lyme disease. Dr. Walczyk and Gianotti decided to re-treat her hepatitis C with Pegasys and ribavirin in combination for forty-eight weeks. Dr. Walxzyk prescribed Augmentin to control Gianotti's sinus infection, and Paxil in case the re-treatment for hepatitis C caused depression.
See id. at 174-181, 204-205.
Id. at 174.
Id.
See id.
See id. at 175.
See id.
In a letter to Dr. Holland dated June 9, 2005, Dr. Walczyk wrote that Gianotti was on re-treatment for her hepatitis C with Pegasys and Copegus, and that she was experiencing "significant side effects, particularly fatigue, headaches, shortness of breath," periods of confusion, and some hair loss. Dr. Walczyk also noted, however, that Gianotti was "fairly lucid at this time," and that she was "in no acute distress."
Id. at 204-205.
Id.
III. LEGAL STANDARD
A. Substantial Evidence
When examining the ALJ's decision in a disability benefits case, "`[i]t is not our function to determine de novo whether [plaintiff] is disabled.'" A district court must not disturb the Commissioner's final decision if "correct legal standards were applied" and "substantial evidence supports the decision." "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.'" "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner." "To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." "[E]ven if there is also substantial evidence for the plaintiff's position," if substantial evidence exists to support the Commissioner's decision, the decision must be affirmed. "`Reversal and entry of judgment for the claimant is appropriate only when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.'"
Schaal v. Apfel, 134 F.3d 496, 50 (2d Cir. 1998) (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). Accord Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).
Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). Accord Halloran, 362 F.3d at 31.
Halloran, 362 F.3d at 31 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Accord Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
Veino, 312 F.3d at 586. Accord Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999).
Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y. 2001). Accord Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1982). Moreover, the Commissioner's findings of fact, as well as the inferences and conclusions drawn from those findings, are conclusive even in cases where a reviewing court's independent analysis of the evidence might differ from the Commissioner's analysis. See Rutherford, 685 F.2d at 62.
Pimentel v. Barnhart, No. 04 Civ. 3769, 2006 WL 2013015, at *8 (S.D.N.Y. July 19, 2006) (quoting Cruz ex rel. Vega v. Barnhart, No. 04 Civ. 9794, 2005 WL 2010152, at *8 (S.D.N.Y. Aug. 23, 2005), modified on other grounds on reconsideration, 2006 WL 547681 (S.D.N.Y. Mar. 7, 2006)). See also Butts, 388 F.3d at 386.
B. Requirements for Eligibility
To be eligible for disability insurance under the Act, a person must have been unable, during her period of insurability, "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." A claimant's impairment must have been of "such severity that [she was] not only unable to do [her] previous work but [could not], considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exist[ed] in the national economy." The Supreme Court has made clear that it is the inability to engage in substantial gainful activity, not merely the medical condition, that must last for a continuous period of at least twelve months in order for the individual to be found disabled.
42 U.S.C. Ch. 7.
See Barnhart v. Walton, 535 U.S. 212, 217-22 (2002).
C. Requirements for the ALJ's Evaluation and Determination
In evaluating the severity of an impairment, an ALJ must consider a claimant's subjective statements regarding symptoms such as pain. However, an individual's subjective complaints do not alone establish disability. Rather, "medical signs or laboratory findings [must] show that a medically determinable impairment(s)" that could reasonably be expected to produce the symptoms complained of "is present." Furthermore, an ALJ "is not obliged to accept without question the credibility of such subjective evidence." "The ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence" in the record. In doing so, the ALJ must set forth his or her reasons for discounting the claimant's subjective complaints "`with sufficient specificity to enable [the court] to decide whether the determination is supported by substantial evidence.'"
See 20 C.F.R. § 416.929. See also Krizek v. Cigna Group Ins., 345 F.3d 91, 102 (2d Cir. 2003) ("`[T]he subjective evidence of appellant's pain, based on her own testimony and the medical reports of examining physicians, is more than ample to establish her disability, if believed.'") (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
Marcus, 615 F.2d at 27. Accord Krizek, 345 F.3d at 102; Pietrunti v. Director, Office of Workers' Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997).
Marcus, 615 F.2d at 27. Accord Pietrunti, 119 F.3d at 1042.
See Snell, 177 F.3d at 135.
Toro v. Chater, 937 F. Supp. 1083, 1086 (S.D.N.Y. 1996) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1987)).
Additionally, "[i]t is the rule in our circuit that the ALJ, unlike a judge in a trial, must . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." To do so, the ALJ must try "to fill any clear gaps in the administrative record." If the available "clinical records are inadequate, the ALJ has a duty to seek additional information."
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (internal quotation marks and citations omitted). Accord Leach ex rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, at *7 (S.D.N.Y. Jan. 22, 2004).
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Id.
The Social Security Administration has promulgated a five-step sequential procedure for evaluating disability claims. The Second Circuit summarized this process as follows:
See 20 C.F.R. § 404.1520.
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If [s]he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits [her] 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 Secretary will consider [her] disabled without considering vocational factors such as age, education, and work experience; the Secretary 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, [s]he has the residual functional capacity to perform [her] past work. Finally, if the claimant is unable to perform [her] past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (emphasis added). Accord Butts, 388 F.3d at 383; Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir. 1998).
D. Burdens of Proof
The Second Circuit has also set forth the burdens of proof for the five-step procedure. "[T]he claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one." More specifically,
Berry, 675 F.2d at 467. Accord Butts, 388 F.3d at 383.
[t]he claimant bears the initial burden of showing that [her] impairment prevents [her] from returning to [her] prior type of employment. If [s]he meets that burden, the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only [her] physical and mental capabilities, but also [her] age, [her] education, and [her] experience and training.
Id. Accord Butts, 388 F.3d at 383; Balsamo, 142 F.3d at 80.
IV. DISCUSSION
A. The Parties' Contentions
Gianotti asks this Court to find that she is entitled to disability benefits under the Act because of "severe impairments" that developed prior to her date of last insurability, June 30, 2001, and that the case be remanded to the Commissioner for "further hearing to be conducted in accordance with law." Specifically, Gianotti claims that the Commissioner's decision to deny her benefits was not supported by substantial evidence because the Commissioner "failed to properly evaluate the objective medical evidence in support of Plaintiff's subjective complaints of Hepatitis C, anxiety, and other disabling impairments prior to Plaintiff's date of last insurability." Additionally, Gianotti claims that "the Commissioner did not apply the proper legal standards in making this determination" because the ALJ "failed in his duty to recontact the medical source for clarification regarding the medical source's report and/or opinion."
Pl. Mem. at 11.
Id. at 2.
Id.
The Commissioner contends that substantial evidence supports the ALJ's determination that Gianotti "failed to demonstrate that she was disabled under the Act during the period at issue." Accordingly, the Commisioner asks that its cross-motion be granted.
Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings ("Def. Mem.") at 1.
B. The Commissioner's Decision to Deny Benefits Is Supported by Substantial Evidence
Gianotti has not met her initial burden of proving that prior to her date last insured, June 30, 2001, she was so severely impaired by illness that she was prevented from returning to her previous type of employment. The ALJ correctly decided that neither the objective medical evidence in the record nor Gianotti's subjective complaints supported a finding of disability within the meaning of the Act during Gianotti's period of insurability.
See Berry, 675 F.2d at 467.
Gianotti asserts that the ALJ failed to properly consider the fact that "the record is replete with indications in her main treating physician's office records at a time prior to her date of last insurability that the Claimant suffered from fatigue, tingling, shoulder pain, myalgias, arthralgias, short-term memory loss, and some depression and anxiety." This is simply an incorrect assertion, however. In his decision, the ALJ considered all of the evidence in the record that related to Gianotti's period of insurability, including records from her visits to the New York Medical Center in 1997, records from her visits with Dr. Horowitz in 1998, records from her visits with Dr. Holland in 2000 and 2001, and records from her stay at Saint Francis Hospital in 2001. The ALJ did not erroneously "substitute his own opinion for a medical expert's opinion" or fail to give "controlling weight" to the opinions of any of Gianotti's treating physicians. In fact, quite the opposite. The ALJ's opinion is consistent with evidence in the record from Gianotti's treating physicians.
Pl. Mem. at 7-8.
See Tr. at 4J-4M.
Pl. Mem. at 8.
Although Dr. Horowitz's progress notes from 1998 do show that Gianotti suffered from the complaints listed above, the same progress notes also indicate that at that time, the symptoms were related to Gianotti's diagnosis of ehrlichiosis, babesiosis, and Lyme disease — not specifically her hepatitis C — since the symptoms cleared up after a course of treatment designed to combat those diseases. The medical evidence in the record also indicates that during her period of insurability Gianotti was treated for flu, heartburn, high blood pressure, excess weight, and pneumonia (which required a hospital stay). However, neither Gianotti's hepatitis C as it manifested itself during her period of insurability, nor her experiences with Lyme disease, ehrlichiosis, babesiosis, flu, heartburn, high blood pressure, excess weight, or pneumonia fit the definition of disability within the Act, since none of these illnesses — prior to Gianotti's date last insured — resulted in her "inability to engage in any substantial gainful activity" or "lasted . . . for a continuous period of not less than 12 months."
See Tr. at 214, 218-220, 222.
See id. at 94, 111-115, 218.
Although the record first indicates a diagnosis of hepatitis C in 1997, Gianotti did not seek direct treatment for her hepatitis C until 2004, even though Dr. Horowitz suggested that she do so. Gianotti's failure to seek treatment, during her period of insurability, for the medical condition that she alleges is the cause of her disability, "seriously undermines [her] contention that [s]he was continuously disabled during that time."
See Tr. at 194, 220.
Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989). Accord Edwards v. Shalala, 165 F.3d 13, 13 (2d Cir. 1998).
Additionally, Gianotti's own testimony supports the ALJ's conclusion that Gianotti was not disabled under the Act prior to her date last insured. From 2000 to 2001, Gianotti worked as a restaurant owner for ten hours per day, six days per week, never sitting during the work day, and frequently lifting objects that weighed at least twenty-five pounds. This is consistent with Gianotti's statements on the SSA Disability Report form to the effect that her condition first began to bother her in 1995, but that she did not become unable to work because of her condition until September 2001 — which was at least two months after Gianotti's date last insured. Further, both Dr. Horowitz's and Dr. Holland's progress notes indicate that throughout the periods during which Gianotti was under their treatment in 1998 and 2000, she engaged in regular exercise by walking several times weekly, whether or not she was employed at those times.
See Tr. at 59.
See id. at 49.
Id. at 117, 218, 221.
Gianotti also testified that she worked as an office manager between 1993 and 1997 — a job that required her to spend at least six hours of each workday in a forty hour workweek standing, walking, or climbing — although in her testimony at the May 31, 2005 hearing she claimed that she became disabled in 1995. After that job ended, Gianotti attempted work as a cleaner, a job that involved working eight hours per day, six days per week, with the majority of each day spent walking or climbing, as well as frequently lifting objects that weighed at least twenty-five pounds. The only evidence in the record that could possibly be construed as evidence of Gianotti's illness having a limiting effect on her ability to work during her period of insurability is that an SSA interviewer categorized Gianotti's three-month effort to work as a cleaner in 1997 as an "unsuccessful work attempt" due to her medical condition. The dates of this "unsuccessful work attempt" coincide with Gianotti's first documented visit to New York Medical Center in February of 1997. The notes from Gianotti's visit with Dr. Lebovics at New York Medical Center indicate fatigue and a 4,000,000 viral load for hepatitis C. However, there is no medical evidence in the record that Gianotti's condition was disabling at that time within the meaning of the Act. In the face of the substantial evidence in the record that supports the ALJ's decision to deny benefits, a comparatively small amount of evidence that could possibly be characterized by this Court as supportive of Gianotti's position cannot overturn the Commissioner's determination.
See id. at 61, 267.
See id. at 60.
Id. at 67.
See id. at 194. It is possible that Gianotti actually worked as a cleaner from 1999 to 2000, since there is conflicting evidence in the record. See supra Part II.B, pages 3-4, n. 14. If that were the case, her attempt to work as a cleaner might have occurred during the period from November 23, 1998 through March 7, 2000, during which Gianotti sought no medical care at all.
See Tr. at 194.
Furthermore, while Gianotti testified, and the ALJ agreed, that Gianotti experienced, as side effects of treatment for her hepatitis C, "significant symptoms that would interfere with her ability to perform work-related functions," Gianotti did not begin her first course of ribavirin and interferon treatment until 2004, three years after Gianotti's date last insured. The majority of Gianotti's testimony at her May 31, 2005, hearing related to symptoms resulting from taking ribavirin and interferon. Similarly, Gianotti's written descriptions of her symptoms on SSA forms are also descriptions of the side effects she experienced as a result of her 2004 through 2005 treatment for hepatitis C. It may be true that, as Gianotti asserted on her SSA Work History Report form, she "could never go back to work while . . . under this treatment." However, because the treatment that Gianotti refers to — ribavirin and interferon for hepatitis C — did not begin until three years after Gianotti's date last insured, the symptoms that Gianotti experienced as side effects of that treatment were irrelevant to the ALJ's determination.
See id. at 142.
See id. at 264-265, 268-269, 272-279.
See id. at 49, 56, 63, 68-75, 82, 89.
Id. at 63.
C. The ALJ Properly Considered the Opinion and Statement of Dr. Horowitz
Gianotti claims that the ALJ had a "duty to recontact" Dr. Horowitz for clarification regarding Dr. Horowitz's note of April 27, 1998 about which the ALJ wrote in his decision,
Pl. Mem. at 9.
In April 1998, Richard Horowitz, M.D. noted that the claimant suffered from Lyme disease, Ehrlichiosis, Babesiosis, and chronic hepatitis C. He noted complaints of extreme fatigue, body aches, headaches, and insomnia as well as terrible neurocognitive problems. Dr. Horowitz noted that the claimant will require long term treatment with antibiotics and interferon for her above medical problems. Despite this statement, progress notes do not reflect the significant complaints listed above. Furthermore, the record showed that after one month treatment with Bicillin, the claimant had significant improvement in all her symptomology. In fact, in August 1998, she reported that she felt like herself again.
Tr. at 4L-4M.
The ALJ's statement regarding Dr. Horowitz's note does not require any additional clarification. While Gianotti is correct that the ALJ is required "to fill any clear gaps in the administrative record," Plaintiff's Memorandum does not explain how the ALJ, in his decision, "has taken issue" with Dr. Horowitz's note of April 27, 1998 such that it required any "clarification." Dr. Horowitz's note was written at the beginning of the period of time during which he treated Gianotti for Lyme disease, ehrlichiosis, and babesiosis, and the note reflected the symptoms that Gianotti had complained of at that time. And, just as the ALJ wrote, Dr. Horowitz's progress notes beyond April 27, 1998, "do not reflect the significant complaints listed above," since the evidence shows that Gianotti "had significant improvement in all her symptomology" following Dr. Horowitz's prescribed treatment. There is simply no "additional information that is needed to be added to the record" in order to clarify the reasoning behind the ALJ's decision to deny Gianotti benefits.
Rosa, 168 F.3d at 79.
Pl. Mem. at 10-11.
Tr. at 4M.
Pl. Mem. at 11.
V. CONCLUSION
For the foregoing reasons, Gianotti's motion is denied and the Commissioner's cross-motion is granted. The Clerk of the Court is directed to close this motion [Documents #2 and 4 on the docket] and this case.
SO ORDERED: