Opinion
98 CV 5125
June 19, 2001
VERONICA SIERRA Brooklyn, New York, for plaintiff pro se.
(Michelle T. Weiner, Kathleen A. Mahoney, Assistant U.S. Attorneys, of counsel) LORETTA LYNCH, United States Attorney Eastern District of New York, Brooklyn, New York, for defendant.
MEMORANDUM AND ORDER
Plaintiff Veronica Sierra brought this action to review a final determination of the Commissioner of Social Security denying plaintiff disability insurance benefits and supplemental security income (SSI) benefits under Title II and Title XVI of the Social Security Act. 42 U.S.C. § 401 et seq., 1381 et seq. This court has jurisdiction under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). The Commissioner now moves for judgment on the pleadings.
Veronica's father, Edwin Sierra, filed an SSI application on plaintiff's behalf on October 19, 1993. The application was denied initially, and on reconsideration. A hearing was requested, and held on April 21, 1995. Michelle Crosby, a Benefits Advocate for the Brooklyn Center for Independence of the Disabled, represented Veronica. Administrative Judge Law Judge (ALJ) Harold Rosenbaum, by decision dated June 30, 1995, found that Veronica, then under age eighteen, was not disabled.
On February 12, 1996, the Appeals Council granted the request for review and remanded the claim for another hearing and further development of the record. On June 26, 1996, Veronica and her representative appeared before ALJ Rosenbaum for a de novo hearing. On July 23, 1996, ALJ Rosenbaum found that plaintiff was not disabled and not eligible for SSI benefits either as a child or as an adult. This action followed.
I
Medical Evidence Prior to SSI Application
In 1989, Veronica was diagnosed with scoliosis, and she wore a brace for eighteen months. She began attending the Scoliosis Clinic of the Hospital for Joint Diseases in March 1990.
Veronica had scoliosis surgery at age thirteen, in October of 1991. Dr. Moskowitz, the attending physician, noted that she had a history of heart murmur, which was evaluated with an electrocardiogram and reported as normal. The admission diagnosis was Idiopathic Scoliosis, constipation, proteinuria, hematuria, and blood loss anemia. The doctor also noted that she has pain in the lower back when bending and after sitting for long periods of time, but that she was in no acute distress. She denied any radiating pains into the extremities.
Veronica underwent a Posterior spinal fusion, T2 to L3, with a right iliac crest bone graft. She apparently tolerated the operation well, and after surgery she began physical therapy. She attended follow-up visits at the Hospital for Joint Diseases Scoliosis Clinic. Subsequent to the surgery, x-rays confirmed partially corrected scoliosis, with mild residual lumbar compensatory curvature. No post-surgical complications were seen.
Verconica was discharged from physical therapy on October 24, 1991. By June of 1992, she was cleared to go to gym classes. She complained of occasional lower back pain with prolonged standing. In May of 1993, she described "sometime" pain upon bending the right waist.
Medical Evidence after the October 19, 1993 SSI Application
Veronica received health maintenance care at the Sunset Park Family Health Center. On December 15, 1993, she told her doctor that she sometimes experienced back pain, and she was advised to lose weight. X-rays of her back taken in March and May of 1994 showed scoliosis with the rod in place from surgery, and no complications. An electrocardiogram performed on April 27, 1994 showed a non-specific T-wave abnormality. Dr. S. Cruz considered this "normal."
On March 14, 1995, orthopedist Lynn Letro completed a functional assessment form. Dr. Letro stated that Veronica was seen annually, and that this was her first examination of Veronica. Her diagnosis was status post posterior spinal fusion for scoliosis. Veronica's complaints were listed as left trapezoid fullness and waist asymmetry. The only limitation Dr. Letro found was a mild physical limitation in Veronica's spinal range of motion secondary to posterior spinal fusion. Dr. Letro noted under "physical activity" that Veronica "states she is deconditioned" and prescribed physical therapy.
Veronica went to physical therapy from March through November of 1995. She lifted weights, performed strength and flexibility maneuvers, exercised on a bicycle, treadmill and other aerobic equipment, and stretched. Her physical therapists stated that she tolerated her exercises well, and that she continued to improve in strength, endurance, flexibility and ease of movement.
An MRI of Veronica's cervical spine on November 28, 1995 revealed loss of the lordotic curve with kyphotic angulation at C5-C6 with a pseudo bulge, but no intrinsic cord pathology or herniation.
On April 3, 1996, Veronica underwent a neurological examination by Dr. Chu, a pediatric neurologist at the Hospital for Joint Diseases. She complained of occasional sharp left shoulder and arm and hand pain that occurred two or three times week, lasted about fifteen minutes, and was associated with paresthesia. Veronica had multiple areas of tenderness to palpation of her cervical spine. She had full muscle strength, bulk and tone. She was able to toe and heel walk, and hop on either leg without difficulty. Her reflexes were brisk and her senses intact to light touch, pinprick, vibration and position sense.
Dr. Chu reported that Veronica had generalized hyperreflexia, and borderline microcephaly and borderline cognitive function. He recommended that fibromyalgia should be ruled out, and that her thyroid functions be tested. He requested a rheumatological consult, and stated that he wished to see Veronica again in two months.
Veronica saw Dr. Frank Chen, an orthopedist at the Hospital for Joint Diseases on May 7, 1996, complaining of neck pain. A physical examination revealed some paraspinal tenderness. Motor strength was full at 5/5 in all muscle groups. Reflexes were symmetrical and senses were intact. The doctor's impression was to rule out fibromyalgia, and thyroid disfunction. He recommended a rheumatologic consult. His plan was to follow up with repeat x-rays in three months with the results of a rheumatologic consult and a pediatric neurology follow-up. There was no record of these tests having been performed as of Veronica's hearing before ALJ Rosenbaum was on June 26, 1996.
Non-Medical Evidence
Veronica was born on December 14, 1977. According to the record, she reached all developmental milestones normally. But according to her mother, Veronica was a "slow learner" and was held back in the first and fifth grades. She attended small, bilingual, individualized special education classes in high school.
In May and August 1993, the Board of Education evaluated Veronica prior to her entry into tenth grade at age fifteen. She was bilingual in English and Spanish. Testing showed an eight year delay in speech/language, a nine year delay in reading, and a five and one-half year delay in mathematics. Veronica was classified as "Learning Disabled," and was placed in bilingual special education classes for the tenth grade.
Wechsler Intelligence Scale for Children-III testing scores were within the low average range. Dr. Constantino, the psychologist who administered the test, stated that in light of plaintiff's bilingualism and psychosocial environment., "higher potential within the upper end of the low average range or perhaps within the average range is suggested." Dr. Constantino also considered that she appeared somewhat immature in her general functioning, though she did not present specific emotional problems.
Veronica's guidance counselor, Ms. Heyer, reported on November 15, 1993 that Veronica did not interact inappropriately with others, or exhibit poor frustration tolerance behavior. She did not have problems effectively completing tasks in a timely fashion, or handling age appropriate self-care activities.
In September of 1994, Veronica was re-evaluated. She and her parents wished to have her exempted from bilingual classes and placed in English as a Second Language classes. The bilingual school psychologist noted that Veronica was more proficient in English than in Spanish, and recommended that she continue receiving special education in English with an ESL component. She commented that Veronica was a "timid, sweet and somewhat immature young lady who seems to become more assertive when addressed in English."
In a letter dated June 18, 1996, Tobias Weissman, Assistant Principal, Special Education, wrote that Veronica was a full time student at Fort Hamilton High School, and that although she should be at eleventh grade level, her math and reading scores showed a seven year delay (fourth grade level) due to learning disabilities. When she appeared for the hearing in front of ALJ Rosenbaum, she was in special education in the twelfth grade.
Veronica's father brought her to the Lutheran Medical Center Sunset Park Mental Health Center clinic on March 29, 1995, to be evaluated for depression and low self-esteem. Her father stated that she was depressed and acted immature. Her mood was described as depressed, with affect appropriate to the mood; she denied having hallucinations, and there was no evidence of delusions. Veronica's memory was good, her intelligence "appear[ed] average," and she was noted to have a "poor attention span."
Lillian Gonzales, A.C.S.W., wrote after her first meeting with Veronica on April 18, 1995 that she was "fairly quiet" but that Veronica said she is "always like this." She recorded that Veronica was "angry with her father for referring her" to the clinic. Ms. Gonzales also advised that she called Michelle Crosby of the Brooklyn Center for Independence of the Disabled to inform her that she would need more time to evaluate Veronica. There is a notation on Veronica's clinic chart the next day saying that Veronica's father had come to the clinic and stated that the clinic was "no longer needed for a SSI application therefore he did not need client to cont[inue] here?!"
According to the chart, Veronica appeared at the clinic two days later and stated that "her mo[ther] wants her to come." She attended a group therapy session on May 3, 1995, in which she was "uninvolved" and "somber." One week later, Veronica's father came again to the clinic and stated that he did not wish her to attend the clinic, that he was afraid that the members of the group would have a bad influence on Veronica, and that he was sending her to Florida for a rest. He brought her back to the clinic later in the month.
On June 7, 1995, Veronica met individually with Ms. Gonzales. She reported that her mother was from Ecuador and her father from Guatemala, and she lived with them and four other siblings in a two-bedroom apartment. Both of her parents were on public assistance. She revealed that her eighteen-year-old brother Edwin was physically abusive. She said that police had come to their home three times because Edwin had hit his eleven-year old brother and his fourteen-year old sister, the latter with a chair. He also hit his father. The entry notes that "[h]e was brought to jail but mother always accepts him back." Veronica was reported to have said that "all 3 boys fight in school and no limits are set whereas the girls are hardly allowed out." Ms. Gonzales further noted that "[c]lient expressed a lot of anger esp[ecially] toward parents and other family members."
Veronica had three more individual therapy sessions, and canceled, postponed or failed to attend three more, intermittently over the ensuing four months. Ms. Gonzales noted that in the second session she was more responsive and spoke of riding a bike with a friend. On August 2, 1995 she was reported to be "faring well," and "still angry with her family members" but was "starting to go out more and dep[ression] is less." On October 2, 1995 was described as "in good spirits and quite talkative" as well as "much improved."
Veronica's final appointment was on October 11, 1995. In her report dated January 11, 1996, Ms. Gonzales noted the following under the heading of "problems Treated/Treatment course:" "Client was quite depressed + agitated re: her friction with her bro[ther]s. She also feels her parents allow them greater freedom and are stricter with she (sic] + sister. She made very good progress."
II
The Supplemental Security income program provides benefits to needy aged, blind, or disabled individuals who meet certain statutory income and resources limitations. 42 U.S.C. § 1381a. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 established a new standard by which children's claims based on disability are determined. The statute provides:
(i) An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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.
(ii) Notwithstanding clause (i), no individual under the age of 18 who engages in substantial gainful activity . . . may be considered disabled.42 U.S.C. § 1382c(a)(3)(C) (Supp. 1998).
Under implementing regulations promulgated by the Commissioner in 1997, if a child's impairment or combination of impairments does not meet or equal any impairment contained in the Listing of Impairments (the "Listing"), the Commissioner will assess all functional limitations caused by the child's impairments. If the functional limitations caused by the impairments are the same as the disabling functional limitations caused by a listed impairment, the Commissioner will find that the impairments are functionally equivalent in severity to the listed impairment. 62 Fed. Reg. 6408; 20 C.F.R. § 416.926a(a).
The Commissioner may find that the child's functional limitation is equivalent to a disabling functional limitation caused by a listed impairment in one of four ways. The first is that there is a "limitation of specific functions" equivalent in severity to a listed impairment because of the extreme limitation of one specific function such as walking or talking. The second is a limitation in "broad areas of development or functioning," in which the Commissioner evaluates whether the child has extreme limitations in one area of functioning or marked limitation in two areas of functioning. The areas of development considered vary according to the age group of the specific child.
The third way in which a child's functional limitations can be considered equivalent to those created by a listed impairment is under the heading of "episodic impairments," encompassing chronic impairments categorized by frequent illnesses or attacks. These limitations may be evaluated in the same manner as are the specific functions and the broad areas of development, or they may be compared to those in any listing for a chronic impairment with similar episodic criteria, to determine whether their impact on the child's functioning over time is functionally equivalent in severity to that of a listed impairment.
The fourth way functional limitations are compared is by comparing limitations related to treatment or medication. If the treatment of the child's impairment produces functional limitations that are the same as the disabling functional limitations of a listed impairment, the child's impairment is considered equivalent in severity to that impairment.
Adult claimants for SSI benefits must demonstrate that they are
unable 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 twelve months.42 U.S.C. § 1382c(a)(3)(A). An individual will be determined to be under a disability
only if his physical or mental impairment or impairments are 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. § 1382c(a)(3)(B). The statute further defines a physical or mental impairment as
an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.42 U.S.C. § 1382c(a)(3)(D)
Adult disability claims are evaluated according to a five-step procedure. If an individual is currently engaged in substantial gainful activity, he will not be found disabled regardless of medical findings. If he is not so engaged, the Commissioner determines whether the medical evidence indicates that the claimant suffers from a severe impairment. If the claimant does suffer from a severe impairment, the Commissioner then determines whether the impairment meets or equals the criteria of an impairment in the Listing of Impairments. If so, the claimant is disabled; if not, the Commissioner must determine whether the claimant is capable of performing his past relevant work despite the impairment. If the claimant has no past relevant work, or is determined to be incapable of performing his past relevant work, then the Commissioner determines whether the claimant is capable of performing other work which exists in the national economy, considering his age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.420; see Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The ALJ found that Veronica's impairments did not satisfy the criteria for disabled child's benefits for the period of October 19, 1993 to December 13, 1995, and that she was ineligible for adult SSI benefits after attaining the age of 18 because she retained the capacity to perform at least the full range of light work. Therefore, he found that Veronica was not disabled.
The ALJ specifically found that Veronica did not have markedly impaired functioning in one area and moderately impaired functioning in a second, or moderately impaired functioning in three areas. Nor did he find that she had extreme limitation of one specific function, or two marked limitations in functioning. The ALJ found that Veronica had only mild limitations in the functional domains and in concentration, persistence and pace. There were no marked or moderate limitations in any other functional area.
In the communicative domain, the ALJ noted that Veronica was quiet, and formerly had a speech impediment which was treated and had improved. He further found that she had less than moderate limitation in the domain of motor function, since she had no significant medical restrictions. The ALJ also found no limitations in social or personal functions.
Under the adult standard, the ALJ found that Veronica was ineligible for benefits because she does not suffer from a severe impairment, and retains the capacity to perform at least the full range of light work.
III
The issue before the court is whether substantial evidence supports the Commissioner's decision that Veronica was not disabled from October 19, 1993, the date of her application, through July 23, 1996, the ALJ's decision. The court reviews the Commissioner's findings to determine only whether they are "supported by substantial evidence in the record as a whole or are based or. an erroneous legal standard." Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997); see 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla," and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971).
The court finds that the record includes substantial evidence to support the ALJ's findings. There is no evidence in the record that Veronica's corrected scoliosis prevented her from normal age-appropriate activities. The only limitation in the record noted by the treating orthopedist, Dr. Letro, was a mild limitation in spinal range of motion secondary to the spinal fusion operation. Veronica was cleared to attend gym classes and was quite successful in her physical therapy sessions, in which she exercised on a stationary bicycle, and a treadmill, lifted weights, stretched, and performed other exercises such as "lunges" which she consistently "tolerated well" according to two separate physical therapists. In addition, Veronica noted that she rode her bicycle in her neighborhood, although not for long distances. She also said that she was able to "hang out" with her friends outside, either sitting or standing.
Dr. Canepa, a medical doctor and board certified psychiatrist, testified as an expert at second hearing before the ALJ on June 26, 1996. Dr. Canepa found mild limitations, "less than moderate," in the areas of motor function, and concentration, persistence and pace. He found no evidence of limitation in the personal behavior domain. Ms. Heyer, Veronica's guidance counselor, reported that she had no problems interacting with others appropriately, tolerating frustration, or performing self-care activities. Veronica herself testified that she got along well with teachers and friends, and that she liked school.
Although Veronica was in special education classes, she was promoted to the twelfth grade at the time of her application. Her intelligence testing revealed her abilities to be within low average range, and the psychologist who tested her opined that she had the potential to be in a higher range, given her bilingual schooling and psychosocial environment. Dr. Canepa testified that Veronica had less than a moderate limitation in the cognitive domain.
As an adult, at the time of the hearings, Veronica was not engaged in substantial gainful activity, and had no prior work experience. The burden therefore shifted to the Commissioner to show that there are other jobs existing in significant numbers in the national economy that she can perform, considering her age, education and residual functional capacity.
Veronica's scoliosis does not prevent her from performing light work, and her cognitive limitations do not prevent her from performing a wide range of jobs in the national economy. The record does not support a claim of severe impairment or an impairment equaling the criteria of an impairment in the Listing of Impairments. In less than a year after surgery, she complained only of occasional low back pain after prolonged standing. As of April 1996, she had full muscle strength, was able to toe and heel walk, and could hop without difficulty. More recent examinations note only occasional pain, treated with Tylenol.
Veronica can read and write, albeit at a level significantly below her age level. The ALJ therefore considered her to have a limited education, rather than a high school education. However, Veronica understands and can be understood in two languages, and at one point in her childhood mentioned that she might like to be a secretary. There is no evidence to support a conclusion that she cannot perform a wide variety of tasks in the national economy, particularly since she lives in a large metropolitan area.
There is no evidence in the record that Veronica suffers from any emotional or psychological impairments. No physician referred her for psychotherapy, and indeed her treatment for depression was initiated by her father three weeks before her first disability hearing. While her sessions revealed some anger and depression, the focus of her discussions with her therapist almost exclusively surrounded her difficult home situation. There is no evidence that her scoliosis or her status as a special education student caused Veronica emotional distress.
Although Veronica was often described as "quiet" initially, there is no evidence that Veronica's learning disability interfered with her ability to communicate. She was consistently described as cooperative, eager to please, and responsive to encouragement and praise in her interactions with doctors and psychiatrists, and even "talkative" at one session with her therapist.
Veronica has the residual capacity for at least a full range of light work, limited only by an inability to do heavy lifting. Work requiring lifting of a maximum of 20 pounds would not be precluded. Her nonexertional impairments do not preclude her from performing a wide range of jobs in the national economy.
In reviewing the entire record, the Court finds that the decision of the Administrative Law Judge is supported by substantial evidence. As a child, Veronica's scoliosis during the relevant period did not cause functional limitations equivalent to a disabling functional limitation caused by a listed impairment. As an adult, Veronica retains the residual capacity to perform a large number of jobs in the national economy. Veronica is not disabled within the meaning of the Act.
The Commissioner's motion for judgment on the pleadings is granted, and the complaint is dismissed.
So ordered.