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JIANG v. BARNHART

United States District Court, Southern District of New York


July 8, 2003

DAO C. JIANG, 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 Dao Jiang brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 205(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Jiang Supplemental Social Security ("SSI") benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 8-10.)

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

PROCEDURAL BACKGROUND

On October 20, 2000, plaintiff Dao Jiang applied for SSI benefits, alleging an inability to work since March 1, 1999. (Dkt. No. 10: Administrative Record filed by the Commissioner ["R."] at 59, 62-64.) Jiang claimed that she was unable to work due to headaches, dizziness, and pain in her left leg. (R. 26, 36, 69.) Jiang's application was denied initially (R. 33-36) and upon reconsideration (R. 39-42). At Jiang's request (R. 43-45), a hearing was held before an administrative law judge ("ALJ") on January 30, 2002 (R. 19-30). On March 25, 2002, the ALJ issued his decision finding that Jiang was not disabled. (R. 10-18.) The ALJ's decision became the final decision when the Appeals Council denied Jiang's request for review on October 30, 2002. (R. 5-6.)

FACTS

Jiang's Hearing Before the ALJ

On January 30, 2002, a hearing was held before ALJ Mark Sochawczewsky. (R. 19-30.) Jiang appeared without counsel but with an interpreter. (R. 19, 21.) The ALJ reminded Jiang of her right to have an attorney or other representative, and Jiang stated that she wished to proceed without a representative. (R. 21.) Jiang also confirmed that the medical records before the ALJ were complete. (Id.)

Jiang was born in May 1942 and was almost sixty years old at the time of the hearing. (R. 62, 138.)*fn1 Jiang was born in China, came to the United States in 1990, and is a U.S. citizen. (R. 24.) She completed "[g]rade school,"*fn2 and could "read, write, speak, and understand simple, basic English." (R. 24-25.) Jiang worked as a seamstress until 2000. (R. 25.)*fn3 Her job involved mostly sitting (for up to ten hours a day) while sewing clothes on a sewing machine. (R. 25, 70.) Jiang told the ALJ that her job did not require lifting or carrying any weight. (R. 26.)*fn4

Jiang testified that she had to stop working due to daily headaches, dizziness, and frequent pain in her left leg. (R. 26, 29.) Jiang also complained that her "osteoporosis has worsened," she was "unable to walk for long periods of time without resting," she had arthritis, she could not "walk fast because [her] heart would start to beat rapidly," and that left shoulder pain prevented her from lifting or carrying heavy objects with her left arm. (R. 86, 88.)

Jiang walked to the hearing and was also able to use public transportation on her own. (R. 25.) Jiang testified that she had used a cane in the past and had for "[a] couple months" been using an umbrella for support. (R. 27.) Jiang lived with her husband, who performed all of the household chores. (R. 25, 27.)*fn5 When asked how she spent her time, she responded, "I try to move around the house and when I have a headache or I have pain, I just lie down." (R. 27.)

Jiang testified that medicine relieved the pain in her leg and head, but that recently she had experienced stomachaches as a side effect. (R. 26.) Also, her headache medication made her feel "sleepy." (R. 29.) When questioned about her ability to walk, sit, and stand, Jiang responded that she could walk or sit for fifteen to twenty minutes, and stand for fifteen minutes. (R. 27-28.) Jiang said she could only lift objects weighing seven or eight pounds at the most. (R. 28.) When asked if she had any other symptoms or problems, Jiang answered that she had been examined for "some growth" on the right side of her abdomen, and that the doctors had not yet made a diagnosis and were still investigating. (R. 28-29.)

The Medical Evidence Before the ALJ

The medical evidence before the ALJ contained records from Jiang's treating physicians at Cabrini Medical Center (R. 121-24) and N.Y.U. Downtown Hospital & Family Care Center (R. 107-20), and from consultative physicians Dr. Myron Seidman (R. 91-94), Dr. Anthony Danza (R. 96-103), Dr. John Cordice (R. 103), Dr. Ronnie Chiu (R. 125-28), and Dr. Melissa Chan (R. 129-32).

Treating Physician Records

On November 10, 1997, a cholesterol check performed at Cabrini Medical Center showed Jiang's cholesterol level of 216 indicated a "borderli[]ne risk." (R. 124.) On November 18, 1998, also at Cabrini Medical Center, Jiang tested positive for the hepatitis B virus,*fn6 and she was advised to consult a physician as soon as possible. (R. 121-22.)

Medical records from N.Y.U. Downtown Hospital for the period April 6, 2001 through May 8, 2001 document referral for removal of an "RLQ [right lower quadrant] cyst/mass."*fn7 (R. 108-14.) The referring physician indicated that Jiang was "asx" (asymptomatic), that she had a visible mass that measured two centimeters, and that the mass was "NT" (not tested). (R. 109.) Jiang was advised to schedule a CT scan*fn8 of her "ABD" (abdomen). (R. 110.) She was also instructed to "RTC" (return to clinic) after surgery. (R. 114.)*fn9

On April 26, 2001, as part of a "research study" (see R. 107), Jiang underwent a bone density test at N.Y.U. Downtown Hospital that showed she had osteoporosis of the lumbar spine*fn10 and osteopenia*fn11 of the hip. (R. 117-20.) Dr. Rajeev Babbar assessed Jiang's relative risk of future fracture as about average for her peer group. (R. 117, 119.) On June 4, 2001, Dr. Babbar recommended a follow-up bone density test in a year to monitor progress, and also suggested that Jiang discuss with her doctor taking Fosamax*fn12 as a treatment option. (R. 117, 119.) Dr. Babbar also advised nutritional support such as daily vitamins and adequate consumption of calcium-rich foods, and moderate regular weight-bearing exercise. (R. 117, 119-20.) Jiang was advised to make an appointment with her regular medical care provider for further treatment. (R. 107, 120.)

No other "treating physician" medical records were presented to the ALJ, and as noted above, Jiang confirmed to the ALJ that he had all of her medical records. (R. 21.)

Consultative Medical Records

On November 14, 2000, Dr. Seidman, an internist from Kings-M.D. Medical Services, examined Jiang on behalf of the Commissioner. (R. 91-94.) Dr. Seidman's report stated that Jiang complained of daily headaches, joint pain and swelling, and hepatitis B. (R. 91.) With respect to her hepatitis condition, Jiang reported no jaundice, weakness, weight loss, or hematemesis,*fn13 but described suffering from occasional epigastric*fn14 abdominal pain. (R. 91.) Jiang's medications included 400 milligrams of Motrin*fn15 four times a day, Zyrtec*fn16 five milligrams a day, and "several unrecognizable Chinese medications." (R. 91.) Jiang stated that she had never been hospitalized. (R. 91.) Dr. Seidman noted that Jiang had "no history of head trauma, [and] no work-up was done." (R. 91.)

Dr. Seidman reported that Jiang's "[g]ait and station" were normal, and that she had no difficulty dressing and undressing, sitting, or getting on and off the examination table. (R. 92.) Dr. Seidman could not observe Jiang's spine because she would not remove her shirt. (R. 92.) Jiang complained of tenderness of the left upper back and displayed a reduced range of lumbar spine motion. (R. 92.) Her cervicalr*fn17 spine range of motion was normal. (R. 92.) Dr. Seidman observed a "very slight deformity" of the right third distal interphalangeal joint (finger). (R. 93.) Straight leg raising was negative. (R. 93.) During ankle flexion, Jiang complained of pain in the feet, and Dr. Seidman observed some edema.*fn18 (R. 93.) Jiang "exerted major muscle groups of both upper and lower extremities on request only 2-3 out of a maximum of 5,"*fn19 but Dr. Seidman noted that there was no corresponding muscle wasting. (R. 93.) A right shoulder X-ray revealed a mild acromioclavicular*fn20 joint separation. (R. 93, 95.)

Dr. Seidman determined that there was a history of chronic headache, joint pain, and hepatitis B, that some range of motion was limited or resisted, that there was only minimal joint abnormality, and that there was mild edema. (R. 93.) Dr. Seidman concluded that "on the basis of objective examination findings, [he] could not confirm limitations [on] lifting, carrying, standing, walking, sitting, handling of objects, hearing, speaking or traveling." (R. 94.) His prognosis was "guarded." (R. 94.)

On December 5, 2000, Dr. Danza, a state agency non-examining consultative doctor, reviewed the medical evidence. (R. 96-103.) Dr. Danza determined that Jiang could occasionally lift and carry twenty pounds, could frequently lift and carry ten pounds, could stand, walk, and sit for about six hours in an eight-hour work day, and could operate hand and foot controls without limitation. (R. 97.) Dr. Danza diagnosed Jiang as having a history of joint pain and headaches (R. 96), and reported that Jiang had no non-exertional limitations and no environmental limitations (R. 97-100). On January 26, 2001, Dr. Cordice, another non-examining consultative doctor, reviewed Dr. Danza's assessment and concurred with his findings and conclusions. (R. 103.)

On January 28, 2002, Dr. Chiu completed an assessment of Jiang's ability to do workrelated activities. (R. 125-28.) Prior to the assessment, Jiang had not visited Dr. Chiu for two years. (R. 23.) Seven times on the assessment form, the assessing physician is asked the question, "What are the medical findings that support this assessment?" (R. 125-28.) In response to the six questions relating to lifting/carrying, standing/walking, sitting, postural activities, environmental restrictions, and other work-related activities, Dr. Chiu wrote either that there were "no" medical findings to support the assessment, or that "patient states" she is impaired. (R. 125-28.)

Dr. Chiu reported that Jiang complained of osteoporosis. (R. 125.) He assessed Jiang as having no restrictions on lifting and carrying. (R. 125.) However, Dr. Chiu reported that, in an eight-hour work day, Jiang could stand or walk for only three hours because of leg pain, and could sit for only one to two hours because of dizziness. (R. 126.) He did not, however, identify any medical findings to support this assessment. Dr. Chiu also noted that Jiang could occasionally perform postural activities (climbing, balancing, stooping, crouching, kneeling), and had no problems with her physical functions (reaching, handling, feeling, pushing/pulling, seeing, hearing, speaking). (R. 126-27.) Jiang also complained of environmental restrictions due to allergies and stated that she had to take allergy drugs every day. (R. 127.)

On January 25, 2002, Dr. Melissa Chan, Jiang's regular doctor, completed the same assessment of Jiang's ability to do work-related activities that Dr. Chiu had completed. (R. 23, 12932.) Dr. Chan did not respond to the seven questions asking what medical findings supported her assessment. (R. 129-32.) She reported that Jiang's ability to lift, carry, stand, walk, and sit were unaffected by any impairment. (R. 129-30.) Dr. Chan also indicated that Jiang could occasionally perform postural activities, that her physical functions were unimpaired, and that she suffered from no environmental restrictions. (R. 130-31.) Dr. Chan concluded that Jiang had a history of allergies, peptic ulcer disease,*fn21 and chronic headaches and dizziness. (R. 132.)

The ALJ's Decision

The ALJ denied Jiang's application for SSI benefits in a written decision dated March 25, 2002. (R. 10-18.) The ALJ found that Jiang had not engaged in substantial gainful activity since her application date. (R. 14, 17.) He further found that Jiang had a "history of headaches, hepatitis B and joint pain," and that these impairments were "severe . . ., but not severe enough to meet or medically equal" in severity the requirements for benefits. (R. 14, 17.) He noted that "she can lift twenty pounds occasionally and ten pounds frequently. She can sit for 6 hours, and stand and[/]or walk for six hours." (R. 14.) The ALJ concluded that Jiang "has the residual functional capacity to perform the full range of light work, as defined by the Commissioner." (R. 14; see also R. 17.)

The ALJ found that Jiang's statements concerning her impairments and their impact on her ability to work "were not fully credible in light of the degree of medical treatment required and the findings made on examination, as well as the other relevant factors, pursuant to SSR 96-7p and 96-8p." (R. 15-16.) In considering the medical record, the ALJ did not give significant weight to Dr. Chiu's report because Jiang stated that she had not seen Dr. Chiu for more than two years, and because the report was based on Jiang's own statements rather than an independent medical examination. (R. 16.) The ALJ gave more weight to Dr. Chan's report because she was Jiang's regular doctor. (R. 16.) The ALJ found "persuasive" the opinions of Dr. Danza and Dr. Cordice, the state non-examining consultative doctors, as they were "supported by the medical and other evidence" (R. 16), and the ALJ gave significant weight to the report of Dr. Seidman, the examining consultative doctor, because his assessment was also supported by the record (R. 16).

Based on Jiang's residual functional capacity, the ALJ determined that Jiang "could perform her past relevant work as a seamstress, as typically and as actually performed." (R. 16; see also R. 17.) The ALJ concluded that Jiang was not under a disability, as defined in the Act, at any time through the date of his decision (R. 16, 17), and was not eligible for SSI payments (R. 16-18).

The Appeals Council's Decision

On May 17, 2002, nearly two months after the ALJ issued his decision, Dr. Chan completed an additional medical report detailing Jiang's condition and functioning. (R. 133-37.) Dr. Chan indicated that she began treating Jiang on March 26, 2001, and last saw Jiang on May 12, 2002, and that she diagnosed Jiang with headaches, dizziness, and osteoporosis. (R. 133.) Dr. Chan stated that Jiang did not need to lie down during the day. (R. 134.) She also noted that Jiang's medications could cause dizziness. (R. 134.) Dr. Chan's prognosis was "stable/good." (R. 134.) According to Dr. Chan, Jiang could sit continuously for six to eight hours; could stand for six to eight hours in an eight hour day; could occasionally during an eight hour workday lift or carry objects weighing up to five pounds; and could occasionally bend, squat, climb, and reach. (R. 135.) Jiang could use her hands, legs, and feet for repetitive motions. (R. 136.) Dr. Chan noted that Jiang could not work around unprotected heights or in areas with changes in temperature and humidity, and that she had moderate restrictions regarding exposure to dust, fumes, gases, and stress, and being around moving machinery. (R. 136.) Dr. Chan also indicated that Jiang was capable of traveling by public transportation on a daily basis, and that she suffered from insomnia. (R. 137.)

On September 4, 2002, Jiang wrote to the Appeals Council asking it to reverse the ALJ's decision. (R. 138-39.) Jiang claimed the ALJ erred because (1) the ALJ, perhaps because he confused Jiang with her husband, thought she was older, more well-educated, and more proficient in English than she really was (see fn.1 above); (2) the translator was not always able to complete the translations; and (3) Dr. Chan's report of May 17, 2002 indicated that Jiang was "limited to a less than sedentary range of activities." (R. 138.)

On October 30, 2002, the Appeals Council denied Jiang's request for review. (R. 56.) The Appeals Council noted that Dr. Chan's additional report dated May 17, 2002 "indicates significantly more severe restrictions and limitations compared with [Dr. Chan's] statement dated January 25, 2002." (R. 6.) However, since the ALJ considered Jiang's condition only through March 25, 2002, Jiang would have to file a new claim to have changes in her medical condition or severity after March 25, 2002 considered. (R. 6.)

ANALYSIS

I. THE APPLICABLE LAW

A. The Definition of Disability*fn22

A person is considered disabled for Social Security benefits purposes when he is 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 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117,122 (2d Cir. 2000); Brown v. Apfel 174 F.3d 59, 62 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).*fn23 The combined effect of all impairments must be of such severity that the person

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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A); see, e.g., Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Draegert v. Barnhart, 311 F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.*fn24

In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Rebull v. Massanari, 2002 WL 31898080 at *2; Worthy v. Barnhart, 2002 WL 31873463 at *4.

B. Standard of Review*fn25

A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Vappne v. Apfel, No. 01-6247, 36 Fed.Appx. 670, 672, 2002 WL 1275339 at *2 (2d Cir. June 10, 2002), cert. denied, 123 S.Ct. 394 (2002); Horowitz v. Barnhart, No. 01-6092, 29 Fed.Appx. 749, 752, 2002 WL 337951 at *2 (2d Cir. Mar. 4, 2002); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); 42 U.S.C. § 405(g).*fn26 "`Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 2002 WL 1733804 at *4.*fn27

The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] 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, 1427 (1971); accord, e.g., Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.*fn28 "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "`substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); see also, e.g., Veino v. Barnhart, 312 F.3d at 586; Toles v. Chater, No. 96-6065, 104 F.3d 351 (table), 1996 WL 545591 at *1 (2d Cir. Sept. 26, 1996); Garcia v. Barnhart, 2003 WL 68040 at *3; Morales v. Barsnhardt, 2002 WL 31729526 at *6. However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 2000 WL 328593 at *7; see also, e.g., Tejada v. Apfel, 167 F.3d at 773 (citing cases).

The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:

[1] First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. [3] 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. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. [4] 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. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, e.g., Draegert v. Barnhart 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).*fn29

The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Draegert v. Barnhart 311 F.3d at 472; Curry v. Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.

Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 1031; see, e.g., DeLeon v. Secretary of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).*fn30

C. The Treating Physician Rule*fn31

The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:

If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(d)(2); see, e.g., Kamerling v. Massanari, 295 F.3d 206, 209 n. 5 (2d Cir. 2002); Jordan v. Barnhart, No. 01-6181,29 Fed.Appx. 790, 792, 2002 WL 448643 at *2 (2d Cir. Mar. 22, 2002); Bond v. Social Sec. Admin., No. 00-6333, 20 Fed.Appx. 20, 21, 2001 WL 1168333 at *1 (2d Cir. Sept. 27, 2001); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).*fn32

Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503; Martinez v. Massanari, 2003 WL 179771 at *4; Garcia v. Barnhart, 2003 WL 68040 at *6; Rebull v. Massanari, 00 Civ. 9774, 2002 WL 31898080 at *2 (S.D.N.Y. Dec. 30, 2002).

The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).

II. THE GOVERNMENT'S MOTION SHOULD BE GRANTED, WITHOUT THE NEED TO APPLY THE FIVE-STEP SEQUENCE TO JIANG'S CLAIM, BECAUSE JIANG'S COMPLAINT IS CONCLUSORY AND SHE DID NOT FILE PAPERS OPPOSING THE GOVERNMENT'S MOTION*fn33
In a proceeding to judicially review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) ("The claimant generally bears the burden of proving that she is disabled under the statute . . ."); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981) ("It is well established that the burden of proving disability is on the claimant."); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Adams v. Flemming, 276 F.2d 901, 903 (2d Cir. 1960) ("The controlling principles of law upon [judicial] review [of a Social Security denial] are well established . . ., namely, `the burden of sustaining the claim for benefits is on the claimant' and `The findings of the Social Security Agency are final and binding if there is a substantial basis for them.'").*fn34

Here, Jiang's pro se complaint states only that she should receive Social Security benefits because of "headache[s], dizz[iness], [and] osteoporosis." (Dkt. No. 2: Compl. ¶ 4.) Jiang has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings, and the filing deadline for doing so has passed. (See Dkt. No. 7: 5/15/03 Order.) Thus, Jiang does not point to any specific testimony or evidence which she believes the ALJ overlooked, unjustly weighed, or otherwise should have considered. Jiang's complaint is overly conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. E.g., Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996) (Court rejects plaintiff's allegations that the ALJ "failed to consider [minor claimant's] parent's testimony as medical evidence, failed to consider all the medical evidence, failed to consider [child's] mother's testimony with respect to the IFA analysis, and failed to render his decision based upon the record as a whole," on the ground that they are "broad and conclusory. She offers no specific testimony or evidence which she believes that the ALJ overlooked and should have considered."); Steiner v. Dowling, 914 F. Supp. 25, 28 n. 1 (N.D.N.Y. 1995) (rejecting plaintiffs' argument that the State's social security regulations are too restrictive as "neither sufficiently explained nor seriously advanced by plaintiffs — providing only a single conclusory paragraph in their Statement of Undisputed Facts . . ., and in their Attorney's Affirmation. . . ."), aff'd, 76 F.3d 498 (2d Cir. 1996); see generally Southern District of New York Local Civil Rule 7.1 ("all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion. . . . Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.").

III. APPLICATION OF THE FIVE-STEP SEQUENCE TO JIANG'S CLAIM
For the reasons set forth in Point II above, the Court need not apply the five-step sequence to Jiang's claims. Even if the Court were to do so, however, the Commissioner's decision that Jiang was not disabled should be affirmed since it is supported by substantial evidence.

A. Jiang Was Not Engaged In Substantial Gainful Activity

The first inquiry is whether Jiang was engaged in substantial gainful activity after her application for SSI benefits. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510 (1993).*fn35 The ALJ's conclusion that Jiang was not engaged in substantial gainful activity during the applicable time period is not disputed.

B. Jiang Had Severe Physical Impairments That Significantly Limited Her Ability To Do Basic Work Activities
The next step of the analysis is to determine whether Jiang proved that she had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] [her] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521 (b). "Basic work activities" include:

. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking. . . . [u]nderstanding, carrying out, and remembering simple instructions. . . . [u]se of judgment. . . . [r]esponding appropriately to supervision, co-workers and usual work situations.
20 C.F.R. § 404.1521 (b)(1)-(5).*fn36 The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).*fn37

"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, 1999 WL 294727 at *5 (citing 20 C.F.R. § 404.1520(c)); accord, e.g., Morel v. Massanari, 2001 WL 776950 at *9; Duvergel v. Apfel, 2000 WL 328593 at *9. On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.*fn38

"A finding of `not severe' should be made if the medical evidence establishes only a `slight abnormality' which would have `no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 13, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12 (1987)).

The ALJ found that the medical evidence indicated that Jiang's history of headaches, hepatitis B and joint pain were "severe." (R. 14, 17.) This finding is not disputed.

C. Jiang Did Not Have A Disability Listed in Appendix 1 of the Regulations
The third step of the five-part test requires a determination of whether Jiang had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).*fn39

The ALJ found that Jiang's history of headaches, hepatitis B, and joint pain were "severe . . ., but not severe enough to meet or medically equal one of the impairments listed in Appendix 1. . . ." (R. 14; see also R. 17.)*fn40

Jiang's joint pain constitutes her strongest claim that her ailments were severe enough to meet or medically equal one of the impairments listed in Appendix 1.*fn41 Appendix 1 provides a categorization of musculoskeletal impairments. 20 C.F.R. Pt. 404, Subpart. P. App. 1, §§ 1.01-.08. Among these impairments is a major joint dysfunction "[c]haracterized by gross anatomical deformity." § 1.02. Dr. Seidman, in his consultative examination, found that Jiang had only a "very slight deformity" of a finger. (R. 93.) Jiang's slightly deformed finger therefore would not qualify as an Appendix 1 impairment.

Another category of musculoskeletal impairment is spinal disorders:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
or

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
§ 1.04 (emphasis added).

Jiang was diagnosed with osteoporosis of the spine. (R. 117-20.) But even if Jiang's osteoporosis qualified as a disorder of the spine, there is no evidence that it was accompanied by the conditions listed in subsections A, B, or C of § 1.04. As to subsection A, Jiang's osteoporosis involved her "lumbar spine" (lower back) (R. 117), and Dr. Seidman determined that straight leg raising was negative, i.e., was not impaired. (R. 93.) As to subsections B and C, there is no evidence in the record of Jiang being diagnosed with spinal arachnoiditis or lumbar spinal stenosis resulting in pseudoclaudication; Dr. Seidman only determined that Jiang displayed a reduced range of lumbar spine motion. (R. 92.) As a result, Jiang's osteoporosis would not qualify as an Appendix 1 ailment.

In making his decision, the ALJ also is required to make specific findings as to the claimant's credibility. 20 C.F.R. § 416.929(c)(4); see, e.g., Jordan v. Barnhart, No. 01-6181, 29 Fed.Appx. 790, 794, 2002 WL 448643 at *4 (2d Cir. Mar. 22, 2002) ("The ALJ . . . was entitled to make a credibility determination regarding [claimant's] allegations of disabling pain."); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) ("Where there is conflicting evidence about a claimant's pain [i.e., subjective complaints of pain not verified by objective medical evidence], the ALJ must make credibility findings."); Montes-Ruiz v. Chater, No. 97-6013, 129 F.3d 1 14 (table), 1997 WL 710607 at *2 (2d Cir. Nov. 14, 1997); Dunn v. Chater, No. 95-6400, 101 F.3d 1392 (table), 1996 WL 387218 at *2 (2d Cir. July 11, 1996); Donato v. Secretary of Health & Human Servs., 721 F.2d 414, 418-19 (2d Cir. 1983) ("The ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability."); Stanton v. Barnhart, 01 Civ. 3486, 2003 WL 1900855 at *7 (S.D.N.Y. Apr. 17, 2003) ("The ALJ must resolve conflicts in the record and make determinations of credibility."); Brown v. Barnhart, 02 Civ. 4523, 2003 WL 1888727 at *10 (S.D.N.Y. Apr. 15, 2003) ("Upon remand, the ALJ should make specific findings regarding [claimant's] credibility with respect to his symptoms, pain, and functional limitations.").

Here, the ALJ found that Jiang's statements concerning her impairments and their impact on her ability to work "were not fully credible in light of the degree of medical treatment required and the findings made on examination, as well as the other relevant factors, pursuant to SSR 96-7p . . ." (R. 15-16.) SSR 96-7p provides in pertinent part:

4. In determining the credibility of the individual's statements, the adjudicator must consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. An individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.
5. It is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
SSR 96-7p, 1996 WL 37416 at *1-2 (1996).

In determining the credibility of Jiang's statements, the AU considered the entire case record, including the medical records of both the treating and consultative physicians, as well as Jiang's own testimony. (R. 15-16.) The ALJ did not make a single, conclusory statement regarding Jiang's statements, but rather made clear that he based his determination that Jiang's statements "were not fully credible in light of the degree of medical treatment required and the findings made on examination. . . ." (R. 15-16.)

The only medical evidence in support of Jiang's statements of disability was Dr. Chiu's report that, in an eight-hour work day, Jiang could only stand or walk for three hours because of leg pain, and could only sit for one to two hours because of dizziness. Where there are inconsistent medical assessments, the ALJ must resolve those conflicts. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to resolve.").

Here, the ALJ correctly applied the treating physician rule (see Point I.C above) and was therefore justified in de-emphasizing the weight he accorded to Dr. Chiu's assessment. The ALJ explained that he did not give significant weight to Dr. Chiu's report because Dr. Chiu had not seen Jiang for two years prior to the assessment. (R. 16.) Further, the evidence in support of Dr. Chiu's findings was based on Jiang's own statements instead of an independent medical examination (R. 16), and his opinion was inconsistent with the findings of Dr. Chan, who was Jiang's regular doctor (R. 16). Moreover, even Dr. Chiu found that Jiang had no restrictions on lifting and carrying, could occasionally perform postural activities, and had no problems with her physical functions. (R. 125-27.)

Since Dr. Chiu's report was discounted, and since none of Jiang's other treating or examining physicians found that Jiang was disabled due to hepatitis B, headaches, dizziness, or joint pain, the ALJ was entitled to rely on that absence of evidence of disability. See, e.g., Salvaggio v. Apfel, No. 01-6062, 23 Fed.Appx. 49, 51, 2001 WL 1388521 at *1 (2d Cir. Nov. 6, 2001) (lack of medical evidence supports the ALJ's determination that plaintiff was not disabled); O'Connor v. Shalala, No. 96-6215, 111 F.3d 123 (table), 1997 WL 165381 at *1 (2d Cir. Mar. 31, 1997) ("the Commissioner is also entitled to rely on the absence of contemporaneous evidence of the disability"); Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Dumas v. Schweiker, 712 F.2d 1545,1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the [medical] record says, but also on what it does not say"); De Roman v. Barnhart, 2003 WL 21511160 at * 13; Alvarez v. Barnhardt, 2002 WL 31663570 at *10; Morel v. Massanari, 2001 WL 776950 at *10; Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 11 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); De La Cruz v. Chater, 937 F. Supp. 194, 197 (E.D.N.Y. 1996).

The Court finds that the ALJ's decision that Jiang did not satisfy any Appendix 1 listing is supported by substantial evidence.

D. Jiang Had The Ability To Perform Her Past Work

The fourth prong of the five part analysis is whether Jiang had the residual functional capacity to perform her past relevant work, that is, her work as a seamstress from March 1995 to March 1999. (See page 17 above.) Given both the medical evidence of Jiang's ability to do workrelated activities, and the exertional requirements of Jiang's relevant past work as a seamstress, the ALJ correctly concluded that Jiang was capable of resuming her former employment. (R. 16, 17.)

The ALJ found that Jiang "has the residual functional capacity to perform the full range of light work, as defined by the Commissioner." (R. 14; see also R. 17.) He noted that "she can lift twenty pounds occasionally and ten pounds frequently. She can sit for 6 hours, and stand and[/]or walk for six hours." (R. 14.) This finding is supported by the record. Dr. Seidman concluded that he "could not confirm limitations [on] lifting, carrying, standing, walking, sitting, handling of objects, hearing, speaking or traveling." (R. 94.) Dr. Danza determined that Jiang could occasionally lift and carry twenty pounds; could frequently lift and carry ten pounds; could stand, walk, and sit for about six hours in an eight-hour work day; and had unlimited ability to operate hand and foot controls. (R. 97.) Dr. Cordice reviewed Dr. Danza's assessment and concurred with his findings and conclusions. (R. 103.) In Dr. Chan's first assessment, which was the only one the ALJ considered, Dr. Chan reported that Jiang's ability to lift, carry, stand, walk, and sit were unaffected by any impairment. (R. 129-30.) Dr. Chan also indicated that Jiang could occasionally perform postural activities, that her physical functions were not impaired, and that Jiang suffered from no environmental restrictions. (R. 130-31.)

The only evidence contradicting the ALJ's finding that Jiang could resume her work as a seamstress was Jiang's testimony and Dr. Chiu's report, which relied on Jiang's own statements. Jiang testified that she was limited to walking and sitting for fifteen to twenty minutes, and to standing for fifteen minutes. (R. 27-28.) The ALJ was justified in determining that Jiang's testimony was not "fully credible" in light of the objective medical evidence. (See pages 5-11 above.) The ALJ also was justified in discounting Dr. Chiu's finding that, in an eight-hour work day, Jiang could only stand or walk for three hours because of leg pain, and could only sit for one to two hours because of dizziness, since it was based solely on Jiang's statements and was contradicted by other medical evidence. (See pages 5-11 above.)

Appendix 2 of the Regulations lists a number of publications that classify occupations according to the various functional levels (sedentary, light, medium, heavy, and very heavy). 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00 ("Appendix 2"). Among these is the Dictionary of Occupational Titles, which classifies "sewing machine operator" as an occupation requiring a light functional capacity. Dictionary of Occupational Titles at 824 (4th ed. 1991). In view of the medical evidence on the record, the ALJ properly found that Jiang had failed to meet her burden of proof by establishing that she could no longer perform her past light work as a seamstress. See, e.g., Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).

Because Jiang did not meet her burden of proof on the fourth step of the analysis, the Court is not required to advance to the fifth step. See 20 C.F.R. § 404.1520(a) ("If we can find that you are disabled or not disabled at any point in the review, we do not review your claim further."); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *11 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. & Peck, M.J.) (citing Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); & Velk v. Shalala, 93 Civ. 3111, 1995 WL 217516 at *5 (S.D.N.Y. April 11, 1995)).

CONCLUSION

For the reasons set forth above, the Commissioner's determination that Jiang was not disabled within the meaning of the Social Security Act is supported by substantial evidence, and the Commissioner's motion for judgment on the pleadings should be granted.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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