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JIANG v. BARNHART

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, ...


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