Opinion
11 Civ. 7278 (KBF)
10-28-2013
JOSE SANTOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
CC: Jose Santos 1428 Webster Avenue Apartment 13H Bronx, NY 10456 PRO SE
MEMORANDUM DECISION & ORDER
:
Plaintiff pro se Jose Santos seeks review of the decision by defendant Commissioner of Social Security ("the Commissioner") denying him disability benefit payments. (R. at 44-48.) The Commissioner denied plaintiff's application on initial review, after which plaintiff appeared before an Administrative Law Judge ("ALJ"). (R. at 21-43.) The ALJ reviewing his case affirmed, on the grounds that he was not disabled under the prevailing statute during the period in question. (R. at 6-18.) Plaintiff filed this action seeking judicial review of the ALJ's decision, (ECF No. 2.)
Now before the Court is defendant's unopposed motion for judgment on the pleadings. ("Def.'s Mot.," ECF No. 16.) For the reasons set forth below, defendant's motion is GRANTED.
I. BACKGROUND
The Court recites here only those facts relevant to its review. This Court reviews the ALJ's decision to determine whether there is substantial evidence to support his determination that plaintiff was not disabled between March 24, 2010, when he applied for disability benefit payments, and the date of the ALJ's decision, April 8, 2011.
A thorough summary of Plaintiff's medical history is set forth in the administrative record. --------
A. Factual Background
Over the course of a year and a half, from October 2009 to March 2011, plaintiff repeatedly visited doctors with complaints of pain and swelling in his right hand, knees, right ankle, and right shoulder. Those doctors' reports, together with the testimony of the experts who testified at plaintiff's administrative hearing, all reflect that—despite his subjective complaints of pain and notwithstanding certain psychiatric problems—plaintiff was consistently able to function normally and to participate in the activities necessary for sedentary work.
In his application for disability benefit payments, plaintiff alleged that he was disabled due to pain in his hands, knees, ankles, and right shoulder; osteoarthritis; sleep apnea; anxiety attacks; depression; hypertension; and high cholesterol. (R. at 100.) Plaintiff also claimed that he had numbness in his right hand and difficulty moving his fingers in both hands, (R. at 113.) Plaintiff prepared his own meals at times and generally took care of his daily needs, but he could not do heavy household chores. (R. at 120-122.) He tried to walk as much as possible, but claimed to use crutches or a cane to get around and stated that he could only walk two blocks before needing to stop and rest. (R. at 29, 120, 123, 125.) Plaintiff also stated that he could stand for two to three hours at a time depending on his pain level, had no limitations on his ability to sit, and could lift and carry about 40 pounds. (R. at 33.)
On October 14, 2009, plaintiff went to the emergency room at St. Barnabas Hospital with a complaint of left knee pain. Examination revealed that he had tenderness and diffuse swelling of the left knee. (R. at 169-72.) A follow-up examination on October 23, 2009 revealed a normal active range of motion of the left knee and a possible lateral meniscus injury. (R. at 173.) Several days later, Dr. Shaparak Mojtabai examined plaintiff, still complaining of knee pain, and found no edema of the extremities. (R. at 150.)
On November 23, 2009, plaintiff went to the emergency room for swelling and pain in his right hand and wrist. (R. at 174-84.) Plaintiff was treated with Percocet, reported feeling much better, and was discharged. (R. at 174, 176-78.) The next day, Dr. Mojtabai again examined plaintiff, who again complained of pain and swelling of his right wrist and hand, and found that plaintiff had some tenderness. (R. at 154.) The doctor advised plaintiff to avoid alcohol, prescribed medications, and referred him for an orthopedic evaluation of his hand. (Id.)
On January 6, 2010, Dr. Mojtabai recorded that plaintiff's right hand was improved but still swollen, and referred him for occupational therapy. (R. at 155.) On April 7, 2010, Dr. Mojtabai found that, despite plaintiff's complaints of right arm and hand pain, his swelling was diminished, and he was "doing well." (R. at 156.) The doctor examined plaintiff again on August 17, 2010, and found that plaintiff had no edema of the extremities. (R. at 160.) On November 23, 2010, plaintiff returned to see Dr. Mojtabai, who found that plaintiff had diminished swelling of his right arm, though it was still stiff. (R. at 164.) The doctor advised plaintiff to follow a diet and to exercise to address most of his problems. (Id.)
On May 7, 2010, Dr. William Lathan examined plaintiff in connection with his application for disability benefit payments. (R at 135-38.) Plaintiff's gait and stance were normal, he could walk on his heels and toes without difficulty, and he could squat fully. (R. at 136.) He did not use an assistive device, needed no help changing for the examination or getting on and off the examining table, and was able to rise from a chair without difficulty. (Id.) While plaintiff complained of bilateral knee pain, he had full ranges of motion in his cervical and lumbar spine as well as his upper and lower extremities, and had five-out-of-five strength in his upper and lower extremities, including his grip. (R. at 137.) Plaintiff's joints were stable and not tender, and he had no sensory or motor deficits. (Id.) Dr. Lathan assessed a history of arthritis, hypertension, anxiety, and obesity, and assessed a moderate restriction for strenuous exertion. (R. at 137-38.)
Also on May 7, 2010, Dr. Arlene Broska conducted a psychiatric evaluation of plaintiff. (R. at 139-42.) Plaintiff appeared to have psychiatric problems and substance abuse problems that were not significant enough to interfere with his ability to function on a daily basis. (R. at 141.)
On March 2, 2011, Dr. Mojtabai completed a medical report listing the following diagnoses: diabetes mellitus, hypertension, elevated cholesterol, chronic liver disease, bilateral knee and joint arthritis, carpal tunnel syndrome, and gout. (R. at 193.) The doctor reported that plaintiff had severe pain and stiffness in his right hand and forearm, and chronic right knee and bilateral ankle pain. (Id.) Dr. Mojtabai further opined that plaintiff could lift up to ten pounds frequently, sit for eight hours for one hour at a time, stand for two hours for one hour at a time, and walk for one hour total per workday. (R. at 200-201.)
On March 28, 2011, Dr. Wagman, an internist, testified at plaintiff's administrative hearing. (R. at 35.) Summarizing the record, Dr. Wagman noted that plaintiff had a history of pain in his right hand, knees, right ankle, and right shoulder. (R. at 36.) The doctor found there to be insufficient evidence for Dr. Mojtabai's diagnoses of carpal tunnel syndrome and gout, and further opined that plaintiff's subjective complaints of pain were not supported by any actual limitation of motion. (Id.) In Dr. Wagman's opinion, plaintiff could perform light work, including lifting up to 10 pounds regularly, could stand and/or walk about a total of six hours (but not more than four hours of either), and could sit without limitation. (R. at 37.) Finally, the doctor believed there was no medical support for Dr. Mojtabai's March 2 opinion regarding plaintiff's functional limitations. (R. at 40.)
Vocational expert Raymond Cestar, also testifying at plaintiff's administrative hearing, reported that an individual of plaintiff's age, education, and work experience, who had no restrictions on his ability to sit, and could lift and carry up to 20 pounds occasionally and 10 pounds frequently, would be able to perform the unskilled sedentary jobs of a clerical worker, an account clerk, and an assembler, and the unskilled light jobs of a fast-food worker and a cashier. (R. at 41-42.)
Also at the hearing, Dr. Vitolo, a psychiatrist, reviewed the record concerning plaintiff's mental impairments. (R. at 38.) He believed that the record documented an affective disorder, specifically a substance-abuse-induced anxiety disorder. (R. at 38-39.) Dr. Vitolo believed that plaintiff was able to function independently, appropriately, and effectively. (R. at 39.)
B. Procedural History
Plaintiff first applied for disability benefit payments on March 24, 2010 (R. at 9), alleging that he was disabled due to pain in his hands, knees, ankles, and right shoulder; osteoarthritis; sleep apnea; anxiety attacks; depression; hypertension; and high cholesterol. (R. at 100.) The Commissioner denied plaintiff's application on initial review (R. at 44-48), after which plaintiff requested an administrative hearing. (R. at 49-51.) On March 28, 2011, plaintiff appeared with his non-attorney representative before ALJ Kenneth G. Levin. (R. at 21-43.) The ALJ considered the case de novo and, on April 8, 2011, issued a decision finding that Plaintiff was not disabled. (R. at 6-18.)
On October 13, 2011, plaintiff filed a complaint seeking review of the ALJ's decision. (ECF No. 2.) On July 8, 2013, the Commissioner moved for judgment on the pleadings. ("Def.'s Mot.," ECF No. 16.) Plaintiff filed no opposition.
II. STANDARDS OF REVIEW
A. Judgment on the Pleadings
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The Court reviews Rule 12(c) motions for judgment on the pleadings under the same standard as Rule 12(b)(6) motions to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint 'must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
Even where a motion stands unopposed, the Court does not embrace default judgment principles. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004) (applied in context of summary judgment). Though an unopposed motion "allow[s] the district court to accept the movant's factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Id. at 246 (citations and quotation marks omitted); see also Martell v. Astrue, No. 09 Civ. 1701 (NRB), 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20, 2010) (noting that the same standard applies in the context of a pro se unopposed Social Security benefits appeal).
"[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally," and interpret them as raising the strongest arguments they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
B. The Disability Standard
The Commissioner will find a claimant disabled under the Act if he or she demonstrates 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 that 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), 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 Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520, 416.920; DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998). The Second Circuit has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that 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 that is listed in 20 C.F.R, Part 404, Subpart P, App. 1 ["Appendix 1"]. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity ["RFC"] to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
C. Review of the ALJ's Judgment
The Commissioner and ALJ's decisions are subject to limited judicial review. The Court may only consider whether the Commissioner has applied the correct legal standard and whether his findings of fact are supported by substantial evidence. When these two conditions are met, the Commissioner's decision is final. 42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.").
If the Commissioner and ALJ's findings as to any fact are supported by substantial evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Substantial evidence means "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court must consider the record as a whole in making this determination, but it is not for this Court to decide de novo whether the plaintiff is disabled. See Veino, 312 F.3d at 586 ("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."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997).
The Court must uphold the Commissioner's decision upon a finding of substantial evidence, even when contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ decision where substantial evidence supported both sides).
III.DISCUSSION
Particularly in light of the deferential standard of review required of this Court, the ALJ properly conducted the five-step analysis required by 20 C.F.R. §§ 404.1520 and 416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since March 24, 2010. (R. at 17.) At steps two and three, the ALJ found that plaintiff had certain severe ailments, but no impairments that met or medically equaled the requirements of any impairment listed in Appendix 1. (Id.) Having found none, the ALJ then determined plaintiff's RFC: plaintiff had no significant limitations for sitting; he could stand and walk for up to four hours each during an eight-hour workday; he could lift or carry objects weighing up to 20 pounds occasionally and 10 pounds frequently; and he could do at least simple and routine tasks. (Id.) At step four, the ALJ found that plaintiff was unable to perform his past relevant work as a "supervisor." (Id.) Finally, at step five, the ALJ concluded that in consideration of plaintiff's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that he could perform (e.g., clerical worker, account clerk, assembler, fast food worker, and cashier).
The ALJ supported each of his determinations with substantial evidence.
Most important, the ALJ's determination of plaintiff's residual functional capacity was supported by substantial evidence: the medical opinion of Dr. Wagman that plaintiff was able to sit without restrictions and to stand and/or walk for a total of six hours, but not more than four hours of either. (R. at 16.)
In reaching his conclusion, the ALJ accorded Dr. Wagman's opinion greater evidentiary weight than the more restrictive March 2, 2011 opinion of Dr. Mojtabai. (R. at 16.) Whereas Dr. Wagman found that plaintiff could perform light work and had few limitations in sitting and walking, Dr. Mojtabai's March 2011 medical report stated that plaintiff could sit for eight hours for one hour at a time, stand for two hours for one hour at a time, and walk for one hour total. (R. at 200-01.) An ALJ is entitled to give more weight to the opinion of a non-examining medical source than to a treating source, notwithstanding the treating physician rule, provided that the treating physician's opinion is "not supported by other evidence." See Diaz, 59 F.3d 307 at 313 n.5; see 20 C.F.R. § 416.927(d)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.").
Here, the ALJ appropriately found Dr. Wagman's opinion to be more consistent with the record as a whole. (R. at 15-16.) Dr. Wagman's opinion was consistent with Dr. Lathan's May 2010 examination (R. at 135-38), Dr. Broska's May 2010 psychiatric evaluation (R. at 139-42), and both of his emergency room treatments in October and November 2009, each of which revealed pain and swelling that was relatively easily treated. (R. at 169-72, 174-84.) Dr. Wagman's opinion was also consistent with the majority of Dr. Mojtabai's examinations—in November 2009, January 2010, April 2010, August 2010, and November 2010—that each revealed pain and swelling that was relatively easily treated through medication. (R. at 154-56, 160, 164.) Dr. Mojtabai himself recommended that plaintiff follow a diet and exercise to address most of his problems, and noted in November 2010 that plaintiff was only taking his medications once per day. (R. at 164.) Only Dr. Mojtabai's March 2, 2011 report, which stated that plaintiff could sit and stand for one hour at a time, is inconsistent with the record as a whole.
Because the ALJ discounted that report based on substantial evidence, the Court must uphold his determination. The ALJ, not one particular medical expert, is responsible for "the ultimate finding of whether a claimant is disabled and cannot work." Snell v. Apfel, 177 F.3d 128, 133 (1999). Furthermore, any "[g]enuine conflicts in the medical evidence are for the Commissioner to resolve." Veino, 312 F.3d at 588. Moreover, even if substantial evidence did support both viewpoints here, the Court must uphold the Commissioner's finding. "Where there is substantial evidence to support either position, the determination is one to be made by the factfinder." Alston, 904 F.2d at 126.
As required by the regulations, the ALJ also addressed plaintiff's subjective complaints of pain and limitations. (R. at 14-15.) Under the Social Security Act, an "individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability," 42 U.S.C. §§ 423(d)(5)(A). Rather, the ALJ must rely on "medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques." Id. Here, the ALJ acted within his discretion in determining that plaintiff's allegations of disability were not credible. (R. at 14-15.) Plaintiff himself acknowledged that he had no restrictions in his ability to sit, that he could stand two to three hours, and that he could lift about 40 pounds. (R. at 33.) Accordingly, the ALJ properly discounted plaintiff's subjective complaints of pain in light of the substantial evidence that plaintiff was not in fact disabled.
Finally, the ALJ similarly supported his decision with substantial evidence at step five, where he determined that, given his RFC and vocational factors—his age, education, and work experience—plaintiff would be able to perform jobs that existed in significant numbers in the economy. The ALJ properly enlisted the assistance of a vocational expert to identify what jobs an individual with plaintiff's vocational profile could perform and the incident of such jobs in the national economy. Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986). That expert's testimony provided the ALJ with substantial evidence to support his determination that plaintiff would be able to perform the unskilled sedentary jobs of clerical worker, account clerk, and assembler, and the unskilled light jobs of fast food worker and cashier, of which there were significant numbers in the economy. (R. at 41-42.) The ALJ therefore met his burden of "showing the existence of alternative substantial gainful employment" that was suited to plaintiff's capabilities. See Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983).
IV.CONCLUSION
For these reasons, defendant's motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 16 and to terminate this action.
SO ORDERED. Dated: New York, New York
October 28, 2013
/s/_________
KATHERINE B. FORREST
United States District Judge CC:
Jose Santos
1428 Webster Avenue
Apartment 13H
Bronx, NY 10456
PRO SE