Opinion
1:01 Civ. 0743 (RCC)(FM)
January 21, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD C. CASEY
I. Introduction
Pursuant to Section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), plaintiff Martha Morcelo seeks review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, I recommend that the Commissioner's motion be granted.
II. Background
A. Procedural History
On September 17, 1998, Morcelo filed an application for SSI benefits in which she alleged that she had been disabled since February 10, 1995. (Tr. 81-83). Her application was denied initially on December 2, 1998, and upon reconsideration on February 11, 1999. (Id. at 57-59, 63-66).
"Tr." refers to the certified copy of the administrative record filed by the Commissioner as part of the Answer. (Docket No. 4).
Morcelo subsequently requested a de novo hearing before an administrative law judge ("ALJ"), which was held before ALJ Kenneth L. Scheer on June 11, 1999. (Id. at 27-54, 67-68). Following the hearing, on June 25, 1999, ALJ Scheer issued a written decision in which he concluded that Morcelo w as not eligible for SSI benefits. (Id. at 11-22). The ALJ's decision became final after the Appeals Council denied further review on September 29, 2000. (Id. at 5-10).
On or about January 31, 2001, Morcelo filed a timely complaint seeking review of the Commissioner's decision. (Docket No. 2). Despite notice, (see Docket No. 7), Morcelo has filed no papers in opposition to the Commissioner's motion for judgment on the pleadings.
The Act requires that a complaint be filed no more than sixty days after a claimant's receipt of an Appeals Council decision denying review. See 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). The Appeals Council decision was mailed to Morcelo on October 4, 2000. (See Compl.). Thus, the earliest date by which Morcelo could have received the decision was October 5, and the earliest date on which the sixty-day period could have expired was December 4, 2000. Morcelo's complaint was received by the Pro Se Office of the Court on the latter date and, consequently, is timely.
B. Relevant Facts
1. Non-Medical Evidence
Morcelo was born on July 10, 1962. (Id. at 34). Morcelo completed the tenth grade and later received her GED. (Id.). She worked as a cashier at a fast food restaurant for approximately one year as part of a prison release program until September 1998, when she stopped working due to pain in her leg. (Id. at 35-36, 39, 90). Previously, she had worked as a kitchen helper at a fast food restaurant in 1993. (Id. at 48-49, 90). Morcelo has been in prison a total of four times, twice as a result of felony convictions. (Id. at 37).
Morcelo testified that she had seen a psychiatrist in the past and had an appointment to see a new psychiatrist because she had "an issue with trusting people" and was "stressed out." (Id. at 40). She stated that she suffered from seizures, for which she was taking medication, and that her last seizure had occurred seven months earlier. (Id. at 42). She testified that she was HIV positive, but that the condition had not progressed to AIDS. (Id.). Morcelo said that she suffered from pain and inflammation in her knee and femur, for which she was taking medication. (Id. at 43-44). Morcelo stated that she could complete most everyday tasks, such as cooking food, showering, and walking a short distance to the bus stop, but that due to pain, she could sit for only fifteen minutes at a time, after which she would need to stand for fifteen minutes. (Id. at 45-46).
At the hearing, Edna C lark, a vocational expert from the Social Security Administration Office of Hearings and Appeals, testified that Morcelo's past relevant work was at a light to medium exertional level and unskilled. (Id. at 49-50). Clark testified that work existed in the local and national economy that Morcelo could perform. (Id. at 50-51). She identified three suitable jobs — surveillance systems monitor, charge account clerk, and order clerk — all of which are sedentary and unskilled. (Id. at 50-51). Clark stated that such jobs existed in large numbers in the local and national economy. (Id.).
2. Medical Evidence
From approximately September 1997 until August 1998, Morcelo received medical care at the Spellman Center at St. Clare's Hospital in New York City. (Id. at 113). The hospital's records indicate that Morcelo is HIV positive, but declined to take any medication for this condition despite repeated urging, that she had a seizure disorder, for which she took Dilantin and phenobarbital, and that she suffered from pain in her left leg. (Id. at 114-21).
A medical report completed on October 12, 1998 by Morcelo's treating physician, Dr. Mark Coleman of St. Clare's Hospital, indicates that Morcelo still was not taking any HIV medication but remained asymptomatic and had no opportunistic infections or AIDS-related diseases. (Id. at 131-32). Dr. Coleman concluded that there were no limitations on her ability to perform such activities as sitting, standing, walking, lifting, carrying, and handling objects. (Id. at 133-34). He also noted that she did not have any limitations on her understanding and memory, sustained concentration and persistence, social interaction, and adaption. (Id. at 134-35).
Consulting physician Dr. E. B. Balinberg of Diagnostic Health Services, Inc. conducted a physical evaluation of Morcelo on November 5, 1998. In his report, Dr. Balinberg observed that Morcelo had a "mildly distorted gait," "favor[ing] her left leg," (id. at 142), and that she had "motor weakness in the left leg." (Id. at 143). The report noted that Morcelo had a history of seizures, but that there was "[n]o evidence of focal neurological deficit." (Id.). Dr. Balinberg concluded that Morcelo had some restriction in her ability to stand for long periods of time, walk long distances, and perform heavy physical activities. (Id. at 144).
Consulting psychiatrist Dr. Robert Cicarell also examined Morcelo the same day. He noted that even though Morcelo's mood was depressed, she was "alert" and "oriented to person, place, time, and situation." (Id. at 147). Furthermore, her memory and concentration were normal and her attention was fair. (Id.). Dr. Cicarell concluded that Morcelo possessed emotional insight, did not have impaired judgment, and was neither suicidal nor homicidal. (Id.). He found that Morcelo had "a fair to satisfactory ability to understand, carry out, and remember instructions," and "to respond appropriately to supervision, co-workers, and work pressure." (Id. at 148).
At the hearing, Morcelo submitted a medical report completed by Dr. Karen Hoover of Gouverneur Hospital on April 2, 1999. Dr. Hoover reported that she had seen Morcelo once a month since December 31, 1998. (Id. at 190). The report indicated that Morcelo is HIV positive and suffered from asthma, chronic pain in her left knee, thigh, and hip, and subjective low-grade fevers. (Id.). Dr. Hoover noted no significant abnormalities in Morcelo's gait, but reported that Morcelo occasionally required a cane to walk and had some muscle weakness in the left leg. (Id. at 192-93). She noted that Morcelo had not had a seizure for over a year. (Id. at 194). Dr. Hoover's medical opinion was that Morcelo could lift and carry only five pounds, and stand or walk a maximum of two hours per day. (Id. at 195). Dr. Hoover also noted that Morcelo had limitations pushing or pulling with her lower extremities, but no limitation sitting. (Id.). In an HIV medical report prepared the same day, Dr. Hoover noted that the pain in Morcelo's left leg "will continue to impair her performance in physical (not sedentary) activities." (Id. at 207).
C. Decision of the ALJ
ALJ Scheer found that Morcelo had "not engaged in substantial gainful activity since the amended alleged onset date" of her disability. (Id. at 15). The ALJ also found that Morcelo's HIV infection, epilepsy, leg pain, and depressive disorder constituted severe impairments under 20 C.F.R. § 416.920(c) because they "impose[d] more than a minimal or slight limitation on her ability to perform basic work-related activities." (Id. at 15). The ALJ further found, however, that Morcelo's impairments did not "meet or equal in severity the clinical criteria of any impairment" listed in 20 C.F.R. § 404, Appendix 1, Subpart P. (Id. at 16). Because Morcelo did not have a listed impairment, the ALJ considered whether Morcelo had the residual functional capacity to perform her past work. He found that Morcelo required the option to sit and stand and needed to avoid working around moving machinery on unprotected heights. (Id. at 20). He concluded that Morcelo's "current residual functional capacity for exertionally sedentary work with the aforementioned limitations precluded her from performing her past relevant work experience" as a cashier and cook helper in a fast food restaurant. (Id.).
Finally, the ALJ determined that Morcelo retained the residual functional capacity to do exertionally sedentary work and that such jobs existed in significant numbers in the regional and national economies. (Id. at 20-21).
III. Applicable Law
A. Disability Determination
"Disability" is defined in the Act 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 12 months." 42 U.S.C. § 423(d)(1)(A). In making a determination as to a claimant's disability, the Commissioner is required to apply the familiar five-step sequential process set forth in 20 C.F.R. § 404.1520 and 416.920. The Second Circuit has described that process as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Accord Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
The claimant bears the burden of proof with respect to the first four steps of this process. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the Commissioner finds that a claimant is disabled or not disabled at an early step in the process, she is not required to proceed with any further analysis. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). However, if the analysis reaches the fifth step of the process, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180.
B. Standard of Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party is entitled to judgment on the pleadings if it establishes that no material facts are in dispute and that it is entitled to judgment as a matter of law. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Caraballo ex rel. Cortes v. Apfel, 34 F. Supp.2d 208, 213 (S.D.N.Y. 1999) (internal citations omitted).
The Act, in turn, provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term "substantial" does not require that the evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)) (internal quotation m arks omitted).
A reviewing court is not permitted to review the Commissioner's decision de novo. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, where the Commissioner's determination is supported by substantial evidence, the decision must be upheld. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Ortiz v. Barnhart, 2002 WL 449858, at *4 (S.D.N.Y. Mar. 22, 2002).
IV. Discussion
ALJ Scheer essentially sided with Morcelo at the first four steps of the disability analysis. At the fifth step, in determining that there were sedentary jobs that Morcelo could perform despite her limitations, the ALJ considered the relevant medical evidence as well as Morcelo's own statements, admissions, and testimony. Morcelo's treating physician Dr. Coleman reported in October 1998 that Morcelo had no limitations on her ability to perform physical or mental activities related to work. (Tr. 133-35). Similarly, the only limitations consulting physician Dr. Balinberg noted in a medical report one month later were that Morcelo was unable to stand for long periods of time, walk long distances, and perform heavy physical activities. (Id. at 144). In an April 1999 report, Dr. Hoover indicated that Morcelo could stand or walk for up to two hours a day, lift or carry up to five pounds, and sit without limitation. (Id. at 195).
The ALJ found that Morcelo's "statements of disabling symptoms and limitations" were not supported by the medical evidence or by her own testimony. (Id. at 19). Indeed, Morcelo's testimony, at times, was inconsistent with the objective evidence. For example, although she testified to having had a seizure in November 1998, Dr. Hoover noted in April 1999 that Morcelo had not had a seizure for over a year. (Id. at 42, 194). ALJ Scheer concluded, on the basis of the limitations that he found credible and the testimony of Edna Clark, the vocational expert, that there were at least three occupations suitable for Morcelo, and that these jobs existed in large numbers in both the national and local economy. (Id. at 20-22).
In short, the ALJ's decision is supported by substantial evidence and is based on a thorough examination of the medical evidence, Morcelo's testimony, and expert opinion.
V. Conclusion
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings should be granted.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard C. Casey and the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Casey. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).