Opinion
No. 01 CIV. 6485 (DLC)
August 21, 2002
For Plaintiff, No Appearance
For Defendant, Susan D. Baird, Assistant United States Attorney New York, N.Y.
OPINION AND ORDER
On July 18, 2001, Orlando Vazquez ("Vazquez"), a forty-three year old male, filed this action pursuant to the Social Security Act seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") disability benefits. In his application for benefits, Vazquez had asserted that his hypertension, high cholesterol, hepatitis C and chronic lower back pain rendered him unable to work. The Commissioner found that Vazquez, although suffering from severe impairments, was able to perform light work, which includes the ability to lift up to 20 pounds and to walk or stand up to six hours in an eight hour workday. Vazquez has not opposed the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons set forth below, the Commissioner's motion is granted.
BACKGROUND
Vazquez was born on December 14, 1957, in Puerto Rico. He completed the eleventh grade and is able to read and speak English. Vazquez last worked in 1993 as a garment factory worker, a job for which he lifted boxes weighing approximately 20 to 30 pounds and spent the majority of his time standing. In response to a question on a form as to why he stopped working, Vazquez wrote, "I think I got fired."
A. Medical History
There is no medical history in the administrative record for the period between Vazquez's last employment in 1993 and early 1999. The plaintiff was treated at the Ryan Nena Community Health Center (the "Nena Center") during the period from May 1999 through February 2001. Vazquez was diagnosed with a left wrist sprain on May 3, 1999. His blood pressure at this time was 160/130 on the right, and 170/120 on the left. The plaintiff was next seen at the Nena Center on February 29, 2000, complaining of a clogged ear. Vazquez's blood pressure at this visit was 142/96, and he was diagnosed with left otitis externa and hypertension. He reported occasional heavy drinking and was advised to eat a low salt diet and avoid alcohol.
Vazquez was seen at the Nena Center three months later, on May 26, 2000. He complained of lower back pain for the prior two months, which was most severe when sitting and lying down. The plaintiff reported no weakness in his lower extremities and denied any acute trauma. There was positive focal-tenderness at L5 and positive straight leg raising. Heel walk and toe walk were both negative. Vazquez's reflexes were two plus and symmetrical in the lower extremities, and his motor strength was five out of five in the lower extremities. The doctor diagnosed sub-acute lower back pain and prescribed ibuprofen and Flexeril. A note indicates that Vazquez also had hypertension but had not taken the prescribed medication. The doctor diagnosed the hypertension as probably secondary to alcohol use, and advised the plaintiff to stop drinking. She noted that Vazquez had a bottle of vodka in his pocket and that his breath smelled of alcohol. At a follow-up visit on June 8, 2000, Vazquez stated that he was feeling much better, and his blood pressure was 120/100.
When examined at the Nena Center on August 16, 2000, the plaintiff reported no complaints and his blood pressure was 110/80. Laboratory reports revealed that Vazquez tested positive for the hepatitis A and C antibodies. A blood test also showed that the plaintiff's cholesterol was 220 mg/dl. The doctor diagnosed hypertension, which was reported to have improved with Diovan. Vazquez was also diagnosed with hepatitis C and was started on the hepatitis A and B vaccine. Finally, the plaintiff was diagnosed with a mild increase in cholesterol and was counseled on his diet. On August 22, 2000, Dr. Shelley Samuel of the Nena Center wrote that the plaintiff was being treated at the Nena Center for chronic lower back pain, hypertension, hypercholesterol, and recently detected positive hepatitis C virus antibody.
Vazquez was examined by Dr. A. Cacciarelli on September 7, 2000. Vazquez reported a history of lower back pain and hypertension, as well as a history for several years of hepatitis C. He also reported a history of hypertension for several years with headache, dizziness and blurry vision. Plaintiff's blood pressure was normal at 120/80. The plaintiff also complained of some lower back pain and stiffness when sitting for more than a half hour. Vazquez reported that he was depressed, that he smokes half a pack of cigarettes a day and has a history of alcohol abuse. He stated that the last time he had a drink was approximately two months earlier. Vazquez stated that he stays in bed during the day watching television, that his mother takes care of the household chores, and that he traveled to the appointment by bus.
On examination by Dr. Cacciarelli, Vazquez had "some difficulty" in getting into and out of a chair, and complained of some mild back pain. A musculoskeletal examination showed no impairment of dextrous motion in either hand, forward flexion of about 50 degrees, full range of motion in all other joints, and no effusion or synovitis. Neurological examination revealed negative straight leg raising. The plaintiff's cranial nerves were intact, power was five out of five in all muscle groups, and there were no sensory deficits. Coordination was normal. Deep tendon reflexes were two plus throughout, Romberg's sign was negative, and posture was normal. An X-ray of the lumbosacral spine showed sacralization of L5. An EKG was normal with nonspecific ST-T wave changes. Dr. Cacciarelli diagnosed Vazquez with hepatitis C, lower back pain, hypertension, depression, and a history of alcohol use. With respect to the plaintiff's ability to do work-related activities, Dr. Cacciarelli noted that Vazquez would have a limited ability to push, pull or carry heavy objects, or stand for long periods of time.
During a visit to the Nena Center on September 13, 2000, the plaintiff's blood pressure was high at 124/86. On September 28, 2000, Vazquez underwent a consultative examination by Dr. Margaret Chu. The plaintiff complained of "nerves and difficulty accepting his recent diagnosis of hepatitis C." Vazquez reported a history of alcohol use, drinking heavily on a daily basis since the age of 20, but stated he had stopped drinking after the hepatitis C diagnosis. Vazguez also reported a history of cocaine and marijuana abuse, ending ten years earlier. Vazquez stated that he had never had any hallucinations or suicidal ideations, and he denied aggressivity. Vazquez stated that he lives with his mother, is able to do household chores, does not have friends, and that his girlfriend recently left him.
Dr. Chu observed the plaintiff to be appropriately dressed, neat and clean, and capable of maintaining good eye contact. Vazquez's speech was relevant, free of loosening of associations or flight of ideas. The plaintiff's affect was depressed and described as mostly anxious since he was diagnosed with hepatitis C. Plaintiff's judgment and reality orientation were appropriate, and he was able to follow instructions. He had some insight regarding his history of substance and alcohol abuse. Vazquez's attention and concentration were reported as fair, and his memory intact for immediate, recent and remote recall. Dr. Chu reported no significant limitations in Vazquez' s understanding and memory. She reported some limitations in Vazquez's concentration and persistence, social interaction and adaptations, due to anxiety. Dr. Chu diagnosed Vazquez as having adjustment disorder with anxiety and depressive symptoms, as well as alcohol abuse and dependence in remission. She observed that the plaintiff's prognosis was fair, and that he might benefit from individual psychotherapy.
In a letter dated October 4, 2000, Dr. Samuel wrote that Vazquez was being treated at the Nena Center for hypertension, hypercholesterol, and chronic hepatitis C. She also noted that the plaintiff had recently been suffering from depression, and that he was taking Diovan. An entry in the progress notes from the October 4 visit states that the patient "needs a letter for SSI stating he has been weak + depressed."
In October 2000, state agency physician Dr. Judith Belsky reviewed the medical evidence and opined that the plaintiff has an adjustment disorder which causes mild limitations in the activities of daily living, in maintaining social functioning, and in maintaining concentration, persistence or pace. She stated that Vazquez had no repeated episodes of decompensation. State agency physician Dr. John Cordice reviewed the evidence of record and completed an assessment of Vazquez's ability to perform work-related physical activities on October 16, 2000. Dr. Cordice stated that the plaintiff can (1) occasionally lift or carry twenty pounds, (2) frequently lift or carry ten pounds, (3) stand or walk with normal breaks for about six hours in an eight hour workday, and (4) sit with normal breaks for about six hours in an eight hour workday. Dr. Cordice further stated that the plaintiff is not limited in his ability to push and/or pull, including the operation of hand or foot controls. In addition, no postural, manipulative, visual, communicative, or environmental limitations were noted.
On a form he completed on November 16, 2000, Vazquez stated that he lives with his mother and that she and her sister do all of the household chores. He stated that he spends his time doing jigsaw puzzles, making model airplanes, and playing cards and chess with a friend once or twice a week. As far as getting around, Vazquez stated that he usually travels by himself on the subway.
State agency physician Dr. Juan C. Echevarria reviewed the evidence of record and completed an assessment of the plaintiff's ability to perform work-related mental activities on November 22, 2000. Dr. Echevarria concluded that the plaintiff had a depressive syndrome characterized by anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight and sleep disturbance. He concluded that Vazquez was moderately limited in his ability to (1) understand and remember very short and simple instructions, (2) carry out very short and simple instructions, (3) maintain attention and concentration for extended periods, (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (5) sustain an ordinary routine without special supervision, (6) interact appropriately with the general public, and (7) accept instructions and respond appropriately to criticism from supervisors. In all other areas, Dr. Echevarria concluded that the plaintiff was not significantly limited. In terms of plaintiff's functional limitations, Dr. Echevarria stated that Vazquez was mildly limited in maintaining social functioning and in maintaining concentration, persistence or pace. He stated that the plaintiff was not limited in the activities of daily living and had no repeated episodes of decompensation.
On January 17, 2001, a substance abuse counselor at the Nena Center indicated that plaintiff had a scheduled appointment for psychiatric evaluation on January 30, 2001. In a report dated February 7, 2001 and based in part on an examination of February 6, 2001, Dr. Samuel diagnosed the plaintiff as having controlled hypertension, hepatitis C virus with normal liver function since diagnosis, mild hypercholesterol, and adjustment disorder of depressed mood. Dr. Samuel reported that Vazquez was "clinically stable," but complained of constant fatigue. Medications prescribed were Diovan, Wellbutrin, and Ambien. A recent EKG was reported as normal except for an indication of early repolarization. Vazquez's blood pressure on February 6 was 130/94. Dr. Samuel noted that the plaintiff is able to sit, stand and walk for two hours each in a work day, and has no limitations on his ability to lift or carry. Dr. Samuel noted finally that the plaintiff has a history of depressed mood.
At the February 8, 2001 hearing before Administrative Law Judge Mark Sochaczewsky (the "ALJ"), Vazquez testified that he is single with no children, and lives with his mother. Vazquez traveled to the hearing alone by subway. He testified that he is unable to work because he has no strength and is very weak. Vazquez testified that he takes medicine for his high blood pressure and that, so far, his blood pressure has been successfully controlled with medication. He testified that he experiences lower back pain and stiffness which is alleviated with medication. In response to questioning from the ALJ, Vazquez explained that he had not yet seen a psychiatrist but was going to start seeing one on a regular basis because he was depressed and his regular doctor recommended that he see a psychiatrist. Vazquez testified that he became depressed because every time he would visit his doctors, they would find something wrong with him. According to Vazquez, he experiences frustration as a result of his depression.
At the hearing, Vazquez also testified that the assessments in the February 7, 2001 report from Dr. Samuel as to how long the plaintiff is able to stand, sit, and walk, were based upon what the plaintiff told the physician he was capable of and were not based on an independent assessment by the doctor. Vazquez testified that he plays chess and watches movies with his friends and family, reads and builds model airplanes, and that he is able to take care of his personal needs such as feeding, dressing and bathing himself, but that he does not help with household chores. Vazquez testified that he is able to walk for a couple of hours at a time, stand for an unlimited amount of time, and sit for about an hour. The plaintiff further testified that he is able to carry ten pounds at most. In response to questions from the ALJ regarding how long plaintiff would be able to walk in an eight hour workday assuming periodic breaks, Vazquez testified that he would be able to walk for four hours in an eight hour workday. Finally, Vazquez testified that he gets dizzy for about five or ten minutes about twice a day, but that this condition has improved somewhat due to a change in medication.
The plaintiff submitted two additional documents to the Appeals Council. In a note dated February 20, 2001, Dr. Sieeanie Lindahl of the Nena Center states that the plaintiff is suffering from depression resulting from stress associated with his medical condition, has been started on appropriate medications, and is currently unable to work and thus should be excused "from all work duties." A letter from a substance abuse counselor at the Nena Center dated February 22, 2001, states that the plaintiff saw the counselor for his first individual therapy session on that day.
B. Procedural History
Vazquez applied for SSI benefits on August 22, 2000, claiming he was unable to work because of high blood pressure, hepatitis C positive antibody, high cholesterol, chronic lower back pain and hypertension. The initial application was denied on October 18, 2000, and again on reconsideration on November 27, 2000. The plaintiff requested a hearing before an ALJ on December 11, 2000, and appeared and testified before the ALJ on February 8, 2001. The ALJ considered the case de novo and, on March 13, 2001, issued a decision finding that plaintiff was not disabled at any time through the date of the decision. Vazquez's request for an Appeals Council review was denied on May 25, 2001. The plaintiff then filed this action.
By Order of February 20, 2002, the parties were advised that any motion was to be filed no later than March 29, 2002, with opposition to be filed by May 31, 2002. Through a Memo Endorsement of March 25, 2002, this schedule was extended to April 29, 2002 for the filing of any motion, and June 28, 2002 for Opposition. The Commissioner moved for judgment on the pleadings on May 3, 2002. Vazquez has not submitted any Opposition to the Commissioner's motion.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may:
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.42 U.S.C. § 405 (g). The factual findings of the Commissioner are conclusive if supported by substantial evidence. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). The district court is not to determine de novo whether the plaintiff is disabled. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Rather, it is to "determine whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Id. (citation omitted) "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." Id. (citation omitted). This Court may set aside a determination of the ALJ only if it is "based upon legal error or . . . not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted).
The ALJ's decision must be guided by the appropriate legal standards. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). To be "disabled" for the purposes of the Social Security Act, a claimant must demonstrate:
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); see also Shaw, 221 F.3d at 131. Further, 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 Social Security Administration uses a five-step process to make determinations of disability. See 20 C.F.R. § 404.1520 416.920. The Second Circuit has summarized the procedure 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. . . . 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.
Curry, 209 F.3d at 122 (citations omitted). In determining whether the claimant can perform other work, the ALJ determines first whether the applicant retains functional capacity for work-related activities. If the applicant is subject only to exertional, or strength, limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
B. Commissioner's Findings
The ALJ found that Vazquez (1) had not engaged in substantial gainful activity since August 22, 2000, when he filed his SSI application; (2) has an impairment or a combination of impairments considered "severe" based on the requirements in the regulations, 20 C.F.R. § 416.920 (b); (3) does not have an impairment listed or equivalent to one listed in Appendix 1, Subpart P, Regulation No. 4; (4) is unable to perform his past relevant work; and (5) has the residual functional capacity to perform substantially all of the full range of light work. The ALJ also found that Vasquez's allegations regarding his limitations were not entirely credible in light of the medical evidence in the record. Vasquez received a full hearing and was advised of and waived his right to counsel.
The ALJ concluded that the medical evidence indicated that the plaintiff has hypertension, hepatitis C, and adjustment disorder — all impairments that are severe within the meaning of the applicable regulations, but not severe enough to meet or medically equal a listed impairment. Based on the medical evidence in the record, the ALJ concluded that the plaintiff's allegations were not fully credible. The ALJ observed that, although the plaintiff's treating physician listed as limited his ability to stand, walk, and sit, Vazquez confirmed at the hearing that the doctor merely wrote down his responses to those questions. Morover, Vazquez testified that he had no limitations in standing. Accordingly, the ALJ found that Vazquez has the residual functional capacity to perform a wide range of light work, as set forth by the state agency doctors. The ALJ concluded that Vazquez's past work as a factory worker exceeded his residual functional capacity. He noted that at age 43, Vazquez was a younger individual having a limited education and no transferable skills from any past relevant work. Finding that Vazquez had the capacity to perform substantially all of the requirements of light work and that his nonexertional limitations did not significantly limit his capacity, the ALJ concluded that a finding of "not disabled" was supported by the record.
The ALJ's determination that Vazquez retains a residual functional capacity for light work is supported by substantial evidence. Light work requires
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567. An activity is frequent if it occurs "from one-third to two-thirds of the time." Soc. Sec. Rul. 83-10, 1983-1991 Soc. Sec. Rep. Ser. 24, 1983 WL 31251, at *6 (1983) Further, the "full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." Id.
The ALJ found that Vazquez was able to perform light work based on his testimony and his medical records. In his application for disability benefits, Vazquez indicated that he is unable to work because he has hypertension, hepatitis C, high cholesterol, and chronic lower back pain. The medical evidence indicates and Vazquez testified that his hypertension has been successfully controlled with medication. Dr. Samuel's most recent report of February 7, 2001, stated that the plaintiff has had normal liver function since he was diagnosed with hepatitis C. It is apparent from the plaintiff's hearing testimony that he feels he is unable to work principally because of his lower back pain and an issue not listed in his application for benefits, his depressed mood.
While the medical record indicates sporadic complaints of lower back pain, there is no indication that this condition is disabling or not controllable with medication. Vazquez complained of lower back pain in the Spring of 2000, and was given ibuprofen and Flexeril, but he stated he was feeling much better in June of that year and reported no complaints during a visit to the Nena Center in August. In an October 2000 note, Dr. Samuel did not list chronic lower back pain as one of the conditions for which the plaintiff was being treated. At the hearing before the ALJ, Vazquez testified that his lower back pain and stiffness are alleviated with medication.
The only indications in the record that Vazquez may be unable to perform light work are a report from Dr. Samuel, an assessment by Dr. Cacciarelli, and evaluations by Drs. Echevarria and Lindahl. The first two of these reports concern Vazquez's back condition, the latter two his depression.
The February 7, 2001 report of Dr. Samuel does not refer to any complaints of lower back pain, but states that Vazquez is able to sit, stand and walk for two hours each in a work day. At the hearing before the ALJ, however, Vazquez testified that these assessments were based on what he told Dr. Samuel he was capable of and were not based on a physical examination. Vazquez also testified that he is able to stand for an unlimited amount of time and would be able to walk for four hours in an eight hour workday. Because Dr. Samuel's assessment of the plaintiff's functional capacity was not based on any medical examination or analysis but rather was based on the plaintiff's assessment of his own limitations, it is not entitled to controlling weight. See 20 C.F.R. § 404.1527 (controlling weight given to opinions of treating physicians only where "well-supported by medically acceptable clinical and laboratory diagnostic techniques"). In contrast, Dr. Cordice determined that Vazquez could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, stand or walk with normal breaks for about six hours in an eight hour workday, and sit with normal breaks for about six hours in an eight hour workday.
Dr. Cacciarelli reported on September 7, 2000, that Vazquez would have a limited ability to push, pull or carry heavy objects, or stand for long periods of time. Since the report does not indicate what weight limit might apply to the plaintiff's limited ability to push, pull or carry heavy objects, such a limitation would not necessarily take the plaintiff out of the light work capacity category. While Dr. Cacciarelli's opinion as a treating physician who based his assessment on a physical examination of the plaintiff is entitled to controlling weight, a more recent examination by Dr. Samuel, another treating physician, found no limitations on the plaintiff's ability to lift or carry. In addition, as discussed above, Vazquez testified to his ability to stand for an unlimited amount of time.
Based on the record before the ALJ, the most serious problem facing Vazquez is his depression. Vazquez first applied for disability benefits on August 22, 2000, six days after he was diagnosed with hepatitis C. Vazquez asserted only physical ailments in support of the application. In September 2000, he was examined by Dr. Chu who diagnosed him with an adjustment disorder with anxiety and depressive symptoms, relating to his recent hepatitis C diagnosis, that imposed some limitation on Vazquez's ability to concentrate for a sustained period, and interact and adapt socially. Dr. Chu stated that he "might benefit from individual psychotherapy." Approximately a month later, in October 2000, Dr. Belsky, a state agency physician, reviewed the medical evidence. Her opinion echoed that of Dr. Chu, the only medical opinion in the record addressing Vazquez's mental limitations. Dr. Belsky thus opined that Vazquez has an adjustment disorder which causes mild limitations in the activities of daily living and in maintaining social functioning and concentration. An evaluation was then completed in November 2000, by state agency physician Dr. Echevarria, also based on a review of the medical evidence of record. Dr. Echevarria concluded, however, that Vazquez was suffering from a depressive syndrome that would moderately limit his ability to work in a number of different ways. Dr. Echevarria did echo the opinions of Drs. Chu and Belsky in concluding that Vazquez was mildly limited in maintaining social functioning and concentration.
With respect to his depression, Vazquez testified at the hearing that he had not yet seen a psychiatrist but was planning to begin seeing one, and that feelings of frustration are the main way in which his depression affects him. The February 20, 2001 note from Dr. Lindahl that was submitted to the Appeals Council states simply that Vazquez has been started on appropriate medications and is "currently unable to work" as a result of his depression. In sum, while the medical evidence indicates that Vazquez has experienced difficulty in adjusting to medical problems that have arisen, and experiences symptoms of depression and anxiety which impose some mild limitations on his ability to function and concentrate, aside from Dr. Lindahl's note, there is no evidence that these mild limitations required a finding of disability by the Commissioner. Accordingly, the ALJ's conclusion that Vazquez is suffering from an adjustment disorder but retains a residual functional capacity for light work that is not significantly compromised by nonexertional limitations is substantially supported by the record.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court shall close the case.
SO ORDERED