Opinion
01 Civ. 7373 (SAS)
October 11, 2002
Ralph Rodriguez, Bronx, New York, Plaintiff (Pro Se).
Susan D. Baird, Assistant United States Attorney, Office of United States Attorney for the Southern District of New York, New York, New York, For Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Pro se plaintiff Ralph Rodriguez brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), seeking judicial :review of a final decision by the Commissioner of Social Security (the "Commissioner"). The Commissioner found that plaintiff was not disabled and therefore denied his application for Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff failed to respond within thirty days of the issuance of a Court order directing him to submit Opposition papers. See Order dated July 2, 2002. The motion is therefore decided solely on the papers filed by the Commissioner.
For the reasons set forth below, the Commissioner's motion is granted and her determination is affirmed.
II. BACKGROUND
A. Procedural Background
Plaintiff applied for SSI benefits on September 15, 1999. See Transcript of Administrative Record filed as part of the Commissioner's Answer ("Tr.") at 58-61. This application was denied initially, see id. at 33, 35-38, and on reconsideration, see id. at 34, 41-44. Pursuant to plaintiff's request, a hearing was held on November 16, 2000 before an Administrative Law Judge ("ALJ"). See id. at 17-32. On January 17, 2001, the ALJ issued a decision denying plaintiff's application for benefits.See id. at 7-16. The ALJ's decision became the final decision of the Commissioner after the Appeals Council denied plaintiff's request for review. See id. at 3-4.
B. Factual Background
Plaintiff is a 48 year old man, living in a rented apartment in the Bronx, together with his two adult daughters. See id at 58, 110. He has an eleventh grade education. See id. at 25. Plaintiff worked as a maintenance man from March to October of 1990. See id. at 85. Prior to that, he worked as hospital security guard from 1976 to 1983. See id. Plaintiff alleged that he became disabled on or about September 25, 1998, due to high blood pressure, diabetes, a vision problem, and poor circulation in his legs. See id. at 58, 65. Plaintiff testified that he had constant pain in his right hand and legs, see id. at 28, and although he could have performed his job duties, his vision problems due to diabetes would prevent him from reading, see id. at 26.
The period of disability at issue is September 15, 1999, the date plaintiff filed an application for SSI benefits, through January 17, 2001, the date of the ALJ's decision. See id. at 7-16, 58-61.
See 20 C.F.R. § 416.335 (SSI benefits available only after application filed).
1. Prior Medical History
On January 8, 1998, plaintiff was seen by Dr. Jorge Chan at the Family Health Center. See id. at 151-153. Dr. Chan stated that plaintiff had poorly controlled diabetes with diabetic neuropathy and diabetic retinopathy, see id. at 153, and that plaintiff's best corrected vision was 20/200 in his right eye and 20/50 in his left eye, see id. at 151. Dr. Chan also stated that plaintiff's depth perception was limited. See id.
During the period April 3, 1998 through August 18, 1998, plaintiff was treated at an outpatient clinic of Bronx Lebanon Hospital. See id. at 87-94. Alethea Shepardson, a Family Nurse Practitioner at that hospital, reported that plaintiff had positive hyperlipidemia from 1988 to 1993, and was treated with medication. See id. at 94. Ms. Shepardson also stated that plaintiff had occasional hypoglycemic (low blood sugar) symptoms and open wounds in the left leg and neck. See id.
Under the Commissioner's regulations, although the Commissioner may consider evidence provided by a nurse-practitioner, a nurse-practitioner is not an acceptable medical source who can provide evidence to establish an impairment. See 20 C.F.R. § 416.913(a), (d). Therefore, the ALJ discounted this evidence in her determination.
In her report of May 13, 1998, Ms. Shepardson stated that plaintiff was not checking his blood sugar regularly and not complying with his medications. See id. at 92-93. Plaintiff was then instructed to maintain a well-balanced diet and exercise regimen, and to use insulin consistently. See id. On July 21, 1998, plaintiff's symptoms of hypoglycemia and neuropathy were noted to be improving. See id. at 89. Plaintiff was treated on August 4, 1998, for an infection in his left heel caused by blisters from his sandals, which healed by August 18, 1998. See id. at 87-88.
In her August 18, 1998 report, Ms. Shepardson also stated that plaintiff had diabetic neuropathy in his legs and feet, and signs of retinopathy. See id. at 154. Ms. Shepardson opined that plaintiff's prognosis was good with proper management of his diabetes. See id. at 155.
2. Medical Evidence
On November 12, 1998, plaintiff was seen by Dr. B. Fajardo, a consulting physician. See id. at 95-98. Upon examination, plaintiff had normal station and gait. See id. at 96. Plaintiff had a cast on his right forearm due to a fracture. See id. at 95. Some limitation of the right upper extremity was observed in dressing and undressing. See id. at 98. He had no difficulty getting up from a seated position or getting on or off the examination table. See id. at 97. No tenderness or spasm of the back was noted. See id. There was also full range of motion in all joints with no deformity, swelling and tenderness, other than the impairment of his right arm. See id. Plaintiff could heel, toe, and tandem walk without difficulty, and straight leg raising was negative. See id. Neurological examination indicated normal motor function, muscle tone, and strength in all extremities. See id. Plaintiff was noted to have no end organ damage stemming from his diabetes. See id.
Dr. Fajardo diagnosed plaintiff with (1) insulin-dependent diabetes mellitus, uncontrolled with medication, (2) hypertension, not well-controlled with medication, (3) decreased visual acuity, (4) urinary tract infection, (5) diabetic nephropathy, and status post right forearm and hand fracture. See id. at 97. Dr. Fajardo concluded that plaintiff was able to sit, stand, and walk without limitation, but due to a forearm and hand fracture, he had a moderate limitation in lifting, carrying and handling of objects with this right arm. See id.
On October 19, 1999, Dr. Robert Cicarell, a psychiatrist, conducted a consulting examination. See id. at 110-11. Plaintiff reported no past or present psychiatric problems. See id. at 110. Dr. Cicarell reported that plaintiff's speech was normal and thought process was logical and coherent. See id. There was no evidence of psychosis. See id. at 111. Plaintiff was not diagnosed with any mental illness. See id.
On the same day, plaintiff was also examined by Dr. Cristiana Bortuzzo, an internist. See id. at 112-14. Dr. Bortuzzo's diagnosis was hypertension currently well-controlled with medication, type-two insulin-dependent diabetes, peripheral neuropathy, and a history of diabetic retinopathy with decreased visual acuity, mainly on the right side. See id. at 114. As for work-related activity, Dr. Bortuzzo concluded that plaintiff was moderately impaired for repetitive carrying, lifting, pushing, pulling, bending, walking and standing. See id. She opined, however, that plaintiff could perform fine and gross manipulations. See id.
On December 15, 1999, Dr. R. McClintock, a state agency physician, reviewed plaintiff's medical evidence and evaluated his residual functional capacity. See id. at 121-27. Dr. McClintock noted that his examination was essentially normal, and that plaintiff could occasionally lift or carry fifty pounds, and frequently lift or carry twenty-five pounds. See id. at 122. Dr. McClintock opined that plaintiff could sit, stand or walk about six hours each in an eight hour workday,see id. at 123, and had no manipulative or visual limitations. See id. at 124.
"Residual functional capacity" is defined as the most an individual can still do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks. See 20 C.F.R. § 416.945.
On March 20, 2000, plaintiff underwent a third consulting examination — this time by Dr. Peter Graham, an internist. See id. at 128-30. Plaintiff's blood pressure was 194/100. See id. at 129. Visual acuity was tested as 20/100 right and 20/70 left. See id. Plaintiff's gait and station were normal. See id. Examination revealed full range of motion of all joints without pain, swelling, redness or heat. See id. There was no edema, cyanosis, or clubbing present. See id. Muscle strength was adequate and symmetrical. See id. There was no muscle atrophy present.See id. A full fist was made bilaterally and hand dexterity was normal.See id. Dr. Graham diagnosed plaintiff with diabetes mellitus, no diabetic retinopathy, poorly controlled hypertension, and a prior right hand fracture. See id. at 130. He further opined that plaintiff was able to sit, stand, walk, lift, carry, handle objects, but moderate activities might be limited due to poorly controlled hypertension. See id.
On March 27, 2000, Dr. S. Imam, a state agency reviewing physician, reviewed medical evidence and evaluated plaintiff's residual functional capacity. See id. at 34, 135-41. Dr. Imam's conclusion was similar to that of Dr. R. McClintock.
On August 15, 2000, Dr. Simeon Carvajal reported that plaintiff was under his medical supervision and primary care for treatment of uncontrolled diabetes, hypertension, and peripheral neuropathy. See id. at 149.
On August 22, 2000, Ms. Shepardson, a Family Nurse Practitioner at the clinic of Bronx Lebanon Hospital, saw plaintiff and opined in her diabetic disability medical report that plaintiff's general health was poor. See id. at 142. In Ms. Shepardson's view, plaintiff could work in a supported work environment for 15 hours per week. See id.
The ALJ also discounted this medical evidence. See supra note 2.
On September 13, 2000, Dr. Duncalf from the Bronz-Lebanon Hospital Center stated in a pulmonary tuberculosis report that plaintiff's chest X-ray revealed no evidence of active disease, and plaintiff was asymptomatic. See id. at 144. Dr. Duncalf reported that plaintiff was in good physical condition and had no active tuberculosis. See id. He also opined that plaintiff could not perform strenuous lifting due to leg weakness. See id. Dr. Duncalf stated that plaintiff had no mental or emotional abnormality. See id. at 148.
III. LEGAL STANDARD
A final determination by the Commissioner must be affirmed if it is based on substantial evidence. See 42 U.S.C. § 405(g) (Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive"); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence" has been :interpreted as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). A court, therefore, is limited to deciding whether an ALJ's determination is based on appropriate legal principles and supported by substantial evidence in the record. See id. "A court may not substitute its own judgment for that of the ALJ, even if it may have reached a different result upon a de novo review." Lopez v. Barnhart, No. 01 Civ. 7516, 2002 WL 1822739, at *2 (S.D.N.Y. Aug. 8, 2002) (quoting Williams v. Barnhart, No. 01 Civ. 353, 2002 WL 618605, at *4 (S.D.N.Y. Apr. 18, 2002)).
IV. DISCUSSION
The Act defines disability as an
[i]nability 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 no less than twelve months.42 U.S.C. § 1382c(a)(3)(A). To be found disabled, a plaintiff must have a physical or mental impairment of such severity as to preclude him from doing not only his previous work, but any other kind of substantial gainful work in the national economy, given his age, education and work experience. See 42 U.S.C. § 1382c (a)(3)(B).
To determine whether plaintiff was disabled, the ALJ employed the well-known five-step evaluation required by 20 C.F.R. § 416.920. See Tr. at 11. The ALJ first found that plaintiff had not engaged in any substantial gainful activity since the alleged onset of his disability.See id. The ALJ next found that plaintiff had hypertension, insulin dependent diabetes mellitus with neuropathy and retinopathy. However, the ALJ found that these impairments did not rise to the level of severity meeting or equaling one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). See Tr. at 12. Furthermore, the ALJ found that plaintiff retained the residual functional capacity for sedentary work, diminished somewhat by a non-exertional limitation of grasping with the right hand. See id. at 14. Next, the ALJ determined that plaintiff could not engage in his past relevant work as a hospital security guard. See id. Finally, the ALJ concluded that considering plaintiff's residual functional capacity and vocational factors, plaintiff could perform other sedentary work in the national economy. See id.
A "non-exertional limitation" is a limitation or restriction imposed by impairments and related symptoms that only affect a claimant's ability to meet the non-strength demands of some jobs. For example, difficulty in performing the manipulative or postural functions of some work such as reaching, handling, or stooping, is considered non-exertional. See 20 C.F.R. § 4O4.1569a(c) (vi).
Substantial evidence in the record supports the ALJ's decision that plaintiff was not disabled. First, the ALJ properly determined that the severity of plaintiff's impairments did not rise to the level of an impairment found in the Listings. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 9.08(A). Diabetes mellitus qualifies under the Listings if there is "neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station. . . ." Id. Other subsections of the Listings require that in order to qualify as a listed impairment, diabetes must require amputation, cause severe retinopathy, or cause acidosis to occur an average of once every two months. See id. § 9.08(B), (C) and (D). After reviewing all the relevant medical evidence, the ALJ found that plaintiff did not have an impairment meeting or equaling the listed impairments. See Tr. at 12. This conclusion is supported by substantial evidence in the record.
Second, the ALJ reasonably concluded that plaintiff retained the residual functional capacity to do sedentary work. In making this assessment, the ALJ carefully considered all of the relevant medical evidence, as well as plaintiff's subjective complaints. See id. at 13. The treating and consulting physicians opined that plaintiff was capable of sitting, standing, walking, lifting, carrying, and handling of objects with moderate limitations. See supra Part II.B.2. These medical opinions were consistent with the ALJ's finding that plaintiff was capable of performing sedentary work.
Sedentary work requires lifting no more than ten pounds at a time, standing or walking two hours, and sitting six hours within an eight hour work day. See 20 C.F.R. § 416.967.
The ALJ found that plaintiff's subjective complaints were not fully credible. See Tr. at 13. Several of plaintiff's statements were inconsistent with the objective evidence and undermined his credibility. For example, plaintiff alleged a complete inability to read due to visual problems ("my right eye is completely shut because of diabetes"), see id. at 21, 25-26. He testified, however, that he spent his day watching TV, see id. at 30, which indicated some ability to see. Furthermore, while testifying that he was unable to work as a result of his vision problems, see id. at 25, plaintiff indicated in his application that he left the job because the salary was too low, see id. at 65. Moreover, while plaintiff claimed a total inability to work due to pain and functional limitation, he also stated that he can sit and stand "not too long," id. at 29, walk eight blocks with stops, see id., and lift less than 40 pounds, see id. After discounting plaintiff's subjective complaints, the ALJ nonetheless found that plaintiff could not return to his past relevant work of security guard, because he could not walk eight hours a day as the job required. See id. at 14.
Where there is inconsistency in plaintiff's testimony, the Commissioner has the discretion to evaluate plaintiff's credibility in light of the evidence in the record. "it is the function of the [Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant." Aponte v. Sec'y, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1982)); see also Saviano v. Chater, 956 F. Supp. 1061, 1071 (E.D.N.Y. 1997), aff'd, 152 F.3d 920 (2d Cir. 1998) (table); Centano v. Apfel, 73 F. Supp.2d 333, 338 (S.D.N.Y. 1999).
The phrase "past relevant work" is defined in the Regulations at 20 C.F.R. § 416.965. The work usually must have been performed within the last 15 years and have lasted long enough for a claimant to sufficiently learn the job.
Third, the ALJ satisfied the burden of showing that given plaintiff's residual capacity, age, education and work experience, there was other work existing in the national economy that he could perform. The ALJ reviewed these factors according to the Medical-Vocational Guidelines.See 20 C.F.R. § 416.969, Pt. 404, Subpt. P, App. 2. The ALJ found that plaintiff was 45 years old at the time of his SSI application, and 46 years old on the date of the ALJ's decision, placing him in the category of younger individual". See 20 C.F.R. § 416.963(c) (a person under 50 is defined as a younger individual). Furthermore, the ALJ found that although plaintiff's capacity to perform sedentary work was limited somewhat by a diminished ability to grasp with his right hand, see Tr. at 14, this non-exertional limitation did not significantly narrow the range of sedentary work he can perform, see id.; see also Social Security Ruling 96-9p, 1996 WL 374185 at *8 (July 2, 1996) (indicating that only a significant manipulative limitation would erode the range of sedentary occupations). Thus, using Medical-Vocational Rule 201.18 as a framework, the ALJ concluded that there were a significant number of unskilled sedentary occupations in the national economy, each representing numerous jobs, that were available to a plaintiff with a limited education. See Tr. at 14.
For disability determinations, the Commissioner may rely on the Medical-Vocational Guidelines, even when there is a non-exertional impairment, as long as the impairment does not significantly diminish an individual's capacity to perform sedentary work. See Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986); Martell v. Apfel, No. 99 Civ. 4985, 2000 WL 567012 at *6 (S.D.N.Y. May 9, 2000).
In short, the ALJ's decision is supported by substantial evidence and reflects a thoughtful and thorough consideration of all the medical evidence, as well as plaintiff's own testimony.
V. CONCLUSION
For the reasons given above, the Commissioner's motion is granted. The Clerk of the Court is directed to close this case.