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DEROMAN v. BARNHART

July 2, 2003

EVANGELISTA DE ROMAN, PLAINTIFF,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew Peck, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se plaintiff Evangelista DeRoman brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny DeRoman disability benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 7-9.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED.

PROCEDURAL BACKGROUND

On October 3, 2001, plaintiff Evangelista DeRoman applied for disability benefits, alleging an inability to work since September 2, 2001 due to back pain and depression. (Dkt. No. 7: Administrative Record filed by the Commissioner ["R."] at 67-82.) DeRoman's application was denied initially (R. 53-56) and upon reconsideration (see Dkt. No. 9: Gov't Br. at 2). At DeRoman's request (R. 58), a hearing was held before an administrative law judge ("ALJ") on June 11, 2002. (R. 21-51, 61-65.) On July 5, 2002, the ALJ issued her decision finding that DeRoman was not disabled. (R. 8-20.) The Appeals Council denied DeRoman's request for review on October 11, 2002. (R. 4-5.) On November 14, 2002 (filed as of January 6, 2003), DeRoman filed a complaint in this court to review the Commissioner's decision. (Dkt. No. 2: Compl.)

FACTS

DeRoman's Hearing Before the ALJ

On June 11, 2002, a hearing was held before ALJ Hazel C. Strauss. (R. 21-51.) DeRoman testified with the assistance of a Spanish interpreter. (See R. 23.) Also present at the hearing was a Social Security Administration vocational expert, Pat Green. (R. 23, 42, 45.)

Before hearing testimony, the ALJ confirmed that DeRoman was fully appraised of her right to legal representation and that she waived that right. (R. 24.) The ALJ then explained to DeRoman that the issue before the ALJ was to determine whether DeRoman was disabled as defined by the Act and informed DeRoman of the legal standard for determining disability. (R. 24-25.)

DeRoman was born in Santo Domingo and was forty-nine years old at the time of the hearing. (R. 26.) She came to the United States in 1985 and resides in Manhattan with her mentally disabled daughter and her grandson, who weighs eighteen pounds. (R. 23, 26-27, 42.) DeRoman was supported by her public assistance income and her daughter's SSI income. (R. 42.) DeRoman was educated through the tenth or eleventh grade in Santo Domingo (R. 28), is able to read and write in Spanish (id.), but does not speak English and only understands "a little" (R. 26, 44). Her work experience includes working as a machine operator in an umbrella factory, as a home attendant, and most recently as a housekeeper. (R. 28-33.) She last worked through the beginning of September 2001 in housekeeping at Macy's, which required her to lift and carry a vacuum cleaner that weighed under ten pounds. (R. 28, 29; see R. 95.) DeRoman testified that she stopped working because of severe pains in her lower back and legs and because she suffered from depression. (R. 28, 33-34, 37.)

DeRoman testified that the pain started in the lower right side of her back and spread throughout both her legs, through her waist, and down to her ankles. (R. 33.) The pain was present almost every day, receding only temporarily and very slightly. (R. 34-35.) Since March 2002, DeRoman has taken Celebrex*fn1 "for the bones," "when [she] feel[s] the pain" but that it only helps "[a] little" and then only "for about 15 minutes." (R. 34-35.) She claimed that she had difficulties walking more than one block because she falls down often when her legs "give out" "[b]ecause of the pain." (R. 46-47.) DeRoman asserted that she is unable to stand in place for longer than ten minutes or sit for more than fifteen minutes. (R. 47.) Finally, DeRoman testified that she may be able to lift fifteen pounds, but did not think that she could lift twenty pounds. (R. 48.) She is able, however, to cook, sweep, wash dishes, watch television, attend church, feed her grandson, play games with him and diaper him, as well as take care of her own personal care. (R. 39-41; see also R. 97-98.)

In addition to her back pain, DeRoman cited her depression as the reason she stopped working. (R. 37.) She explained that her symptoms consisted of occasional weakness and lack of desire to get out of bed, eat, or talk to anyone. (R. 37.) She takes Wellbutrin*fn2 to help with the depression, diphenhydramine*fn3 to help her sleep (R. 34-35), and had undergone various forms of therapy since 1997 (R. 37). However, the combination of medication and therapy only remedied her depression "[a] little." (R. 37-38.)

When asked by the ALJ if she had described all the symptoms that prevented her from working, DeRoman answered "[y]es." (R. 37.)

The ALJ also obtained testimony from Pat Green, a vocational expert hired by the Social Security Administration. (R. 42-43, 45, 48-50.) Describing DeRoman's prior relevant work and the skill and exertion levels required for each job, Green reported that DeRoman performed all her previous jobs at "unskilled," "light," or "sedentary" levels. (R. 46.) When the ALJ asked Green to evaluate DeRoman's capacity to perform her past relevant work in light of her age, education level, skills, and experience and the level of exertion required, Green opined that DeRoman could do her prior work, and in any event there were a large number of "light," "unskilled" jobs in the region and in the national economy that DeRoman could perform. (R. 48-50.)*fn4

The Medical Evidence Before the ALJ

The medical evidence before the ALJ consisted of DeRoman's treating physicians' records from Heritage Health Care (a.k.a. Council Health Center) (R. 124-50) and the New York University Medical Center (R. 151-56), as well as her treating mental health records from Upper Manhattan Mental Health Center (R. 168-83). Additionally, the ALJ had records from consulting examiners: Dr. Kyung Seo (R. 186-87), Dr. L. Donatela (R. 161-67), Dr. Richard King (R. 184-85), and Dr. M. Apacible (R. 190-203).

Treating Physician Records

Heritage Health Care

From July 1998 through August 2001, DeRoman received her medical treatment at Heritage Health Care. (R. 124-50.) In over twenty visits within this three year period, DeRoman's treatment records indicate that her principle health concern was hypercholesterolemia*fn5 for which she was placed on a low-fat diet and prescribed medication. (Id.) The records further indicate a history of cyclic depression. (Id.) DeRoman returned to Heritage Health Care regularly, for (1) routine physical examinations; (2) common ailments such as soar throats, seasonal allergies, and conjunctivitis; (3) renewal of her medications. (Id.) A physical examination performed on July 31, 2001, weeks before she filed her application for benefits, indicated that she still suffered from hyperlipidemia*fn6 but that she had no complaints and "`feels well' following a low fat diet." (R. 124.)

NYU Medical Center

On August 29, 2001, DeRoman sought treatment at the New York University Medical Center, complaining of lower back pain. (R. 151-56.) The treatment record indicates that this was her first clinic visit. (R. 154.) DeRoman stated that she fell in 1991, had experienced pain ever since, and claimed that the pain had worsened over the past two months. (Id.) She reported a constant pain that was worse on ambulation and that radiated down both legs to the dorsum*fn7 of both feet. (Id.) Finally, DeRoman complained of a history of depression since 1998 and pain in her knees for years. (R. 151.) The treatment records indicate that DeRoman had no gross deformity in her back and had no point tenderness. (R. 151, 154.) She had full strength in her lower extremities bilaterally, a full range of motion, intact reflexes and sensation in her legs, and demonstrated a normal gait. (Id.) Additionally, she was able to perform a leg raising test without difficulty. (Id.) The record indicates, however, that DeRoman had hamstring rigidity on her right side. (Id.) She was diagnosed with lower back pain, and directed to do hamstring stretches and take Robaxin.*fn8 (R. 151-54.)

Treating Psychiatrist Records

Upper Manhattan Mental Health Center

DeRoman received psychiatric treatment at the Upper Manhattan Mental Health Center since July 1998. (R. 168-83.) DeRoman's psychiatrist, Dr. Kury, diagnosed her with dysthymia*fn9 and major depression.*fn10 (R. 170, 177.) DeRoman complained of recurrant headaches, stress, and sleep disturbances. (R. 170, 173, 176.) DeRoman's explanation for the depressed feelings varied: she claimed that her symptoms were related to (1) financial pressures (R. 171, 175, 176), (2) difficulties with a workfare program (R. 171), (3) her sixteen year old daughter's pregnancy and the birth of her grandson (R. 170, 176), (4) the difficulties of being a single parent to a mentally retarded child (R. 174, 177), (5) discomfort due to her back pain (R. 176), and (6) job dissatisfaction (R. 179). On July 24, 2001, shortly before filing her initial application for disability insurance benefits, she was assigned a GAF*fn11 score of 65, indicative of a patient with some mild difficulty in social or occupational functioning, but who generally functions pretty well. (R. 170.) Her GAF score in the previous year was in the same range. (Id.)

At the hearing, DeRoman submitted a letter from her psychiatrist (Dr. Kury) and social worker dated April 5, 2002. (R. 205.) The letter confirmed that DeRoman had been receiving mental health treatment consisting of supportive psychotherapy and psychotropic drug prescriptions at the Upper Manhattan Mental Health Center since July 1998. (Id.) The letter also set forth the doctor's diagnoses of dysthymia and major depression, exacerbated by her physical ailments, and concluded that DeRoman was "unable to work at present." (Id.)

Consultative Physical Examinations

Dr. Seo

On November 7, 2001, consulting physician Dr. Seo performed an orthopedic examination on DeRoman to evaluate her back pain. (R. 186-87.) DeRoman reported a seventeen year history of back pain, dating back to an injury she sustained in her lower back and right leg. (Id.) DeRoman described a "constant pain" in her lower back that occasionally radiated down to both legs and feet, causing numbness. (Id.) DeRoman explained that her daily activities were "somewhat limited" and that she mostly stayed home and rested. (Id.) Dr. Seo reported that although DeRoman wore a back brace, she entered the examination room without a problem and had no difficulty standing up from a sitting position or getting on and off the examination table. (Id.) DeRoman's cervical spine showed normal lordosis,*fn12 her fine motor activity and strength in both hands were normal, and she exhibited normal range of motion throughout her upper and lower extremities, showing no sensory defects and no muscular atrophy. (Id.) Her sitting leg raising test was negative. (R. 187.) The flexion of her spine was slightly limited and produced mild spasms of the paraspinal muscles. (R. 186.) Although her muscle strength in both legs was normal, the examination indicated a diminished sensation on her lower right side. (R. 187.) An x-ray of her lumbrosacral spine*fn13 showed signs of early osteoarthritis.*fn14 (R. 187.) A radiologist confirmed this diagnosis on November 8, 2001, although he stated that all other findings were normal. (R. 188.) In conclusion, Dr. Seo's diagnosis was a probable low back derangement that caused a slight limitation in sitting, standing, bending, lifting, and carrying heavy objects. (R. 187.) His prognosis was "[g]uarded."(Id.)

Dr. Donatela

On December 21, 2001, Dr. Donatela, a state agency physician, performed a Physical Residual Functional Capacity Assessment of DeRoman based on the evidence in the record. (R. 161-67.) Dr. Donatela opined that Dr. Seo overestimated DeRoman's ability to lift and carry heavy objects, stating that the evidence supported more than slight limitations. (R. 167.) Specifically, Dr. Donatela believed that DeRoman could lift or carry up to twenty pounds occasionally and up to ten pounds frequently, and could stand, walk or sit for about six hours in an eight hour day. (R. 162.) However, Dr. Donatela stated that the objective medical ...


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