United States District Court, E.D. New York
December 31, 2003.
LINDA MATTEI, Plaintiff; -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
OPINION & ORDER
Linda Mattel ("Mattei" or "plaintiff") commenced this action pursuant
to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of
Social Security's ("the Commissioner") decision that plaintiff is not
entitled to Supplemental Security Income ("SSI") as provided in Title XVI
of the Social Security Act ("the Act"). The Commissioner has moved for a
judgment on the pleadings pursuant to Federal Rule of Civil Procedure
Plaintiff alleges that she has been unable to work since December 1,
1997 due to a psychological disorder and lower back pain. The issue is
whether plaintiff's alleged disabilities precluded her from performing
any substantial gainful activity between September 1, 1998*fn1 and
August 11, 2000, the date of the Administrative Law Judge's ("ALJ")
decision. II. Background
A. Procedural History
Plaintiff filed an application for SSI benefits with the Social
Security Administration ("Administration" or "SSA") on September 1, 1998.
(Tr. 173-75, 177). The application was denied on April 17, 1999, (Tr.
50-55), and again upon reconsideration on September 21, 1999. (Tr.
58-61). At plaintiff's request, a hearing was held before an ALJ on May
11, 2000. (Tr. 17-49). At the hearing plaintiff was represented by
counsel and testified. (Tr. 19-42). ALJ Burlison issued a five
page decision on August 11, 2000 denying the claim and finding that
plaintiff was not disabled within the meaning of the Social Security Act
(Tr, 9-16). Specifically, the ALJ ruled that Mattei's residual functional
capacity ("RFC") to perform light work was only minimally limited by
certain non exertional factors, and that in light of her age,
education, and RFC, she could perform substantial gainful employment
available in significant quantities in the national economy. (Tr. 14-16).
On August 25, 2000, plaintiff timely requested a review the ALJ's
decision, which was denied by the Appeals Council on February 10, 2001.
1. Mattei's Testimony
Plaintiff was born in Puerto Rico. on December 25, 1962, and was thirty
seven years old on the date of the ALJ's decision. (Tr. 24, 173).
She has lived in the continental United States since approximately 1985,
and reads and speaks Spanish. (Tr. 24-26). While plaintiff has never
worked outside the home nor looked for a job since moving from Puerto
Rico, where she attended school through the ninth grade, (Tr. 24-27), she
has had a work fare assignment serving meals to the elderly. (Tr.
41). Plaintiff testified that anxiety and side effects from medication
render her disabled. (Tr. 177). Mattei also testified that she has
diabetes for which she does not take any medication. (Tr. 28).
She also socializes with a neighbor and visits her mother and sister
every two weeks. (Tr. 22-25, 28, 197, 201). Although she rarely uses
public transportation due to her anxiety, she attends church services,
cleans her apartment, and goes shopping. (Tr. 22-23, 31, 197-98, 201-02).
While she complained of back aches after sitting, bending, and lifting,
she uses the stairs to reach her fifth floor apartment in an elevator
building. (Tr. 24, 29, 33). Her disability report notes that she spends
about two hours per day walking, three hours standing, and eight hours
sitting. (Tr. 182).
2. Medical Evidence
a. Treating Physicians
Plaintiff was first examined by her treating psychiatrist, Dr. Ofelia
Fule, on April 24, 1998 and diagnosed with schizoaffective disorder,
depressive type. (Tr. 242, 247). On August 13, 1999, plaintiff told the
doctor that her symptoms did not interfere with her daily functions. (Tr.
242). Dr. Fule reported that Mattei was dressed appropriately, well
groomed, and cooperative. (Tr. 248). Mattei's speech was clear,
and she calmly answered the doctor's questions. (Tr. 248).
There were no delusions elicited during the visit, and no presence of
formal thought disorder or suicidal features. (Tr. 242, 249). Moreover,
Mattei's memory, judgment, fund of information, attention, and
concentration were labeled as fair. (Tr. 248). Although her capacity to
maintain concentration and persistence could possibly be restricted in
stressful settings, according to Dr. Fule, as of August 13, 1999, plaintiff had the
ability to do work related mental activities and perform her
daily activities and no limitations with respect to social interaction
and adaptation. (Tr. 249-50).
Subsequent to August 13, 1999, Dr. Fule noted that plaintiff still had
an appropriate affect, no formal thought disorder, and no suicidal or
homicidal ideation. (Tr. 103-107). Of Dr. Fule's eighteen (18) Patient
Progress notes, Mattei complained of minor side effects from her
medication in only four (4), (Tr. 103-07, 111-120).
b. Consultative Examinations
i. Mental Health
Plaintiff was examined on December 1, 1998 by Dr. Carlo Filiaci. (Tr.
216-18). Dr. Filiaci observed that plaintiff arrived at the appointment
via mass transportation, was appropriately dressed, and had a pleasant
yet evasive attitude. (Tr. 216)* Mattei made some mistakes on a "draw the
clock" test, but none of her errors were consistent with constructional
apraxia.*fn2 According to Dr. Filiaci, plaintiff has normal psychomotor
activity, a euthymic (normal) mood, an appropriate affect, normal memory
and orientation, and no formal thought disorder. (Tr.217).
When Dr. Filiaci conducted a serial seven test, in which the
patient is asked to start with the number 100 and count down by 7s,
plaintiff answered "95" and refused to continue. (Tr. 217). Notably, Dr.
Filiaci stated in his report that he thought Mattei was intentionally
trying to impress him with her confusion. (Tr. 217). On other digit
based tests, plaintiff performed fairly well (Tr. 217).
Dr. Filiaci concluded that plaintiff can provide for her own daily
needs, read and write, follow simple instructions, perform leisure
activities, and relate to family and friends. (Tr. 217). The doctor also
found Mattei's intellect is adequate, her judgment fair, and her
sensorium clear. (Tr. 217). He observed that plaintiff could comprehend
and carry out simple to moderately complex instructions, is able to
respond to supervisors, cooperate with co. workers, and bear
pressures normally found in a work setting. (Tr. 217). Dr. Filiaci
diagnosed plaintiff with mild depression, but found no personality
disorder. (Tr. 217).
A second consultative mental examination was conducted on August 11,
1999 by psychiatrist Dr. Harvey Barash. (Tr. 237-40). Mattei told Dr.
Barash that she can take care of her personal needs and hygiene without
assistance, performs the majority of household chores including shopping,
cooking, and cleaning, gets along with people fairly well, and socializes
with a few neighbors and family members. (Tr. 237). Plaintiff informed
the doctor that she takes buses and trains by herself. (Tr. 238).
According to Dr. Barash, plaintiff was pleasant and cooperative, and
interviewed in English without trouble. (Tr. 238), Dr. Barash reported
that plaintiff has a full and appropriate affect, a mood without
significant depressive themes or trends, and a coherent thought process.
(Tr. 238). The doctor found that the plaintiff's memory was fair, her
concentration adequate, and no pathological or clinically delusional
basis for Mattei's reports of hallucinations, which he labeled as
"illusionary." (Tr. 238-39). There were no homicidal or suicidal
ideations elicited during the evaluation. (Tr. 239).
Although Dr. Barash found that Mattei was not significantly limited
with respect to her memory, comprehension, concentration, persistency, and pace, he
also found that plaintiff had a reduced tolerance for stress, and
diagnosed her with a personality disorder with histrionic features.
Consultative psychiatrist Dr. A. Stockton conducted a mental RFC
assessment dated April 12, 1999 based upon the findings of the
consultative examinations. (Tr. 221-24), With the exception of moderate
limitations in her ability to react appropriately to changes in the work
environment and to set realistic goals or make plans independently of
others, Dr. Stockton opined that plaintiff has no significant limitations
in her ability to conduct mental work related activities. (Tr.
ii. Physical Health
On December 1, 1998, consultative internist Dr. Lee Mescon examined
plaintiff. (Tr. 218-20). Mattei told Dr. Mescon that she can walk ten
blocks, sit for four hours, stand for an hour, shop, cook, clean, and
travel alone on public transportation. (Tr. 218). Upon examination, Dr.
Mescon observed that plaintiff walked with a normal gait and could flex
the lumbosacral spine 90 degrees and both knees 150 degrees, (Tr. 219).
Mattei climbed on and off the examining table, undressed and dressed, and
ambulated without assistance. (Tr. 219). Dr. Mescon also reported full
range of motion in plaintiff's extremities, and no sign of muscle
atrophy. (Tr. 219).
There was no evidence of sensory deficits, tremors, or abnormal
movements. (Tr. 219). Dr. Mescon found Mattei able to sit, stand, climb,
pull, push, and carry heavy objects. (Tr. 220). According to Dr. Mescon,
plaintiffs reported back pain could be treated with over the
counter medication. (Tr. 220). A second consultative physical examination was conducted by Dr. Thomas
Silverberg on April 11, 1999. (Tr, 234-36). Dr. Silverberg's findings
were consistent with those of Dr. Mescon, and concluded that Mattei's
activities did not demand any physical limitations. (Tr. 234-36).
Although an x ray of the lumbar spine revealed a "suspected"
spondylolysis*fn3 over the L5 vertebra, it was negative for
spondylolisthesis.*fn4 (Tr. 235).
c. Vocational Evidence
Edna Clark, a vocational expert, who testified at the May 11, 2000
hearing, was asked to assume a person with Mattei's traits: thirty
seven years old, ninth grade education, no past work
experience, an ability to speak Spanish fluently, and some English verbal
communication skills. (Tr. 42-49). Ms. Clark was further asked to assume
that the individual would be limited to performing simple and routine
work in uncrowded settings with only brief and superficial contact with
the general public and supervisors. (Tr. 43). The ALJ inquired as to
whether work was available in significant numbers in the national economy
that this hypothetical person could perform with light exertion. (Tr.
Ms. Clark identified positions of final assembler/thread cutter, of
which 12,000 local and 40,000 national positions were available; riveter,
of which there are 30,000 and 3,000 such positions available nationally
and locally, respectively; and small parts assembler, of which 100,000
and 7,000 such positions are available nationally and locally,
respectively. (Tr. 44). According to Ms. Clark, plaintiff's background and lack of work
experience would not hamper her ability to perform the aforementioned
unskilled jobs. (Tr. 48-49).
A. Standard of Review
A district court's review of the denial of social security benefits is
confined to a determination whether there is "substantial evidence" to
support the Commissioner's decision. 42 U.S.C. § 405(g) ("The
findings of the Commissioner . . . as to any fact, if supported by
substantial evidence, shall be conclusive. . . ."): see also
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) ("[W]e conduct
a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the
Commissioner's decision and if the correct legal standards have been
applied."). Therefore, even if the district court might have ruled
differently were it to have made the initial determination, the court
must affirm the Commissioner's decision if it is supported by substantial
evidence. See Rutherford v. Schweiker, 685 F.2d 60,62 (2d Cir.
1982). It is important to note that "the Social Security Act is a
remedial statute which must be liberally applied; its intent is inclusion
rather than exclusion.'" Id. (quoting Marcus v.
Califano, 615 F.2d 23, 29 (2d Cir. 1979)); see also
Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988).
In the disability benefits context, substantial evidence has been
defined as `"more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'"
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). "In determining whether substantial evidence supports a finding of the
[Commissioner], the court must not look at the supporting evidence in
isolation, but must view it in light of the other evidence in the record
that might detract from such finding, including, any contradictory
evidence and evidence from which conflicting inferences may be drawn."
Rivera v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991).
However, the "substantial evidence" test applies only to review of the
Commissioner's factual determinations. This standard is irrelevant to the
Commissioner's legal conclusions, as well as its compliance with
applicable procedures mandated by statute or regulation, see Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), which are reviewed de
novo. As noted in Jones v. Barnhart:
administrative decisions regarding claimants'
eligibility for disability benefits have proven
surprisingly vulnerable to judicial reversal. This
vulnerability results primarily from the creation
by the Commissioner, and the enforcement by the
courts, of a variety of procedural obligations to
which ALJs must scrupulously adhere. Failure to do
so is treated as "legal error" permitting reversal
of the ALJ's decision. . . . [A] district court
reviewing a benefits denial may not simply accept
the administrative determination because a cursory
review of the record reveals plausible testimony or
documentary evidence or expert opinion that
supports the administrative determination. Rather,
the record must be carefully developed and
evaluated to determine whether the Commissioner
fully complied with all the relevant regulations.
2002 U.S. Dist LEXIS 7073, at *9, *14 (S.D.N.Y. Apr. 22, 2002)
Lastly, regardless of whether the ALJ renders a decision on the merits
and adheres to all procedures, the district court may still remand if new
and material medical evidence surfaces that was not presented at the ALJ
hearing. See Santiago v. Massanari, No. 00-3847, 2001 U.S.
Dist, LEXIS 9881, at *27 (S.D.N.Y. July 16, 2001) ("[T]he ALJ may turn
out to be wrong even when he was right at the time the decision was
rendered; the administrative proceeding is not quite over even when it's over.").
B. Determining Disability
Title XVI of the Social Security Act (SSA) defines disability as the
inability "to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment. *. which has lasted
or can be expected to last for a continuous period of not less than
twelve months. . . ." 42 U.S.C. § 1382c(a)(3)(A) (2000). An
individual may be determined to be under a disability "only if his
physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy. . . ."
Id. § 1382c(a)(3)(B).
SSA regulations establish a five step sequential analysis by
which the Commissioner is required to evaluate a claim for disability
benefits. See Christian v. Apfel, No. 01-6045, 2002 U.S. App.
LEXIS 2817, at **2-3 (2d Cir. Feb. 21, 2002); 20 C.F.R. § 416.920
(2003). First, the Commissioner must determine whether the claimant is
doing substantial gainful work. See 20 C.F.R. § 416.920(b).
Second, if the claimant is not doing substantial gainful work, the
Commissioner must then determine whether he or she has a "severe
impairment." See id. § 416.920(c). Third, if a severe
impairment exists, the Commissioner must next consider medical evidence
to determine if the impairment meets or equals a listed impairment in
appendix 1. See id. § 416.920(d). Fourth, if the condition
does not qualify as a listed impairment, the Commissioner must analyze
whether the impairment prevents the claimant from doing his or her past
work, See id. § 4 16.920(e). Finally, if the
claimant cannot perform past work, the Commissioner must determine
whether the impairment prevents him or her from doing any other work. See id § 416.920(f). If so, the Commissioner must find
the claimant disabled. See, e.g., Shaw v. Chater, 221 F.3d 126,
132 (2d Cir. 2000); Williams v. Apfel, 204 F.3d 48, 49 (2d Cir.
1999). The claimant bears the burden of proof on the first four steps of
the aforementioned analysis. However, once the claimant has met his or
her burden, the burden on the last step shifts to the SSA. See
Shaw. 221 F.3d at 132.
When assessing an applicant's claim, the SSA must consider: (1) the
objective medical facts; (2) diagnoses or medical opinions based on such
fasts; (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. See Mongeur v. Heckler, 722 F.2d 1033,
1037 (2d Cir. 1983) (per curiam).
C. Treating Physician Rule
The "treating physician rule" is a standard for evaluating the
substantiality of the evidence that gives enhanced weight to the findings
and opinions of treating physicians. According to the Federal Code of
Generally, we give more weight to opinions from
your treating sources. . . . If we find that a
treating source's opinion on the issue(s) of the
nature and severity of your impairments) 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
20 C.RR. § 416.927(d)(2); see also Kamerling v.
Massanari, 295 F.3d 206
, 209 n.5 (2d Cir. 2002).
IV. Mattei Was Not Engaged in Substantial Gainful Activity
The first step of the analysis is to determine whether plaintiff was
engaged in substantial gainful activity during the relevant period. See
20 C.F.R. § 416.910(b). Substantial gainful activity is defined as work
that "(a) Involves doing significant and productive physical or mental
duties; and (b) Is done (or intended) for pay or profit," Id. §
416.910. The ALFs ruling that plaintiff was not engaged in substantial
gainful activity during the relevant period is undisputed. (Tr. 13).
V. Mattei Had a Severe Impairment
The second step is to determine whether plaintiff 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.RR, § 416.920(c). The ability to do basic work activities means
the ability and aptitude "to do most jobs." Id. §
416.921(b). Basic work activities include:
. . . walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or
handling . . . seeing, hearing, and speaking . . .
understanding, carry out, and remembering simple
instructions . . . use of judgment . . .
responding appropriately to supervision, co.
workers and usual work situations; and dealing with
changes in a routine work setting."
Id. § 416.921(b)(1).(6), Notably, the analysis at this step may
not accomplish more than screening out de minimis claims. See Dixon
v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If, however, the
disability claim rises above the de minimis level, then the analysis must
proceed to step three. See id. The ALJ's ruling that plaintiff
had a severe impairment of schizoaffective disorder, depressive type,
(Tr. 15), advances the analysis to step three.
VI. Mattei's Condition Did Not Meet or Equal in Severity the Criteria
for Any Listed Impairment in Appendix I
Impairments listed in Appendix I of the Regulations "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. 54 F.3d at 1022;
see also 20 C.F.R. Pt 404, Subpt. P, App. 1.
The ALJ found that plaintiff's psychological disorder neither meets nor
equals in severity the criteria any of impairments listed in Appendix 1,
Subpart P. (Tr, 13). Plaintiff alleges that her psychological disorder
meets or equals the conditions outlined in section 12.03 of the Listings
of Impairments, (Tr. 81); (Compl para. 5).*fn5 Plaintiff's burden of
proving the existence of the disability listed in Section 12.03,
Schizophrenic, Paranoid and Other Psychotic Disorders, is met if the
requirements in both subpart A and B are satisfied, or the requirements
of subpart C are satisfied.
A. Subpart 12.03(A)
Subpart A requires medically documented persistence, either continuous
or intermittent, of a depressive syndrome characterized by one or more of
1. Delusions or hallucinations; or
2. Catatonic or other grossly disorganized
3. Incoherence, loosening of associations,
illogical thinking, or poverty of content of speech if associated with one of the following:
a. Blunt affect;
b. Flat affect;
c. Inappropriate affect; or
4. Emotional withdrawal and/or isolation
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.03(A) (2000).
1. Delusions or hallucinations
Dr. Fule did not elicit any delusions during Mattei's examination, and
noted that there was no formal thought disorder. (Tr. 242). Although Dr.
Filiaci diagnosed plaintiff with mild depression, he did not find a
personality or formal thought disorder. (Tr. 217). According to Dr.
Barash, there was no pathological or clinical basis for Mattei's
descriptions of hallucinations. In fact, Dr. Barash opined that such
possible hallucinations were likely histrionic and illusionary. (Tr.
238-39). Dr. Barash further found that Mattei had a fairly solid grasp of
reality. (Tr. 239). 12.03(A)(1), delusions or hallucinations, is not
2. Catatonic or other grossly disorganized behavior
At her August 13, 1999 appointment, plaintiff notified her treating
physician, Dr. Fule, that her symptoms did not interfere with her daily
functions. (Tr. 242). Additionally, Dr. Filiaci noted that plaintiff
engages in leisure activities and interacts with family and friends. (Tr.
217), Plaintiff also told Dr. Barash that she takes care of her personal
needs and hygiene without assistance, and performs the majority of
household chores including shopping, cooking, and cleaning. (Tr. 237).
Thus, 12.03(A)(2) is not satisfied.
3. Incoherence, loosening of associations, illogical thinking, etc.
Dr. Fule described plaintiff's memory, judgment, fund of information,
attention, and concentration as "fair." (Tr. 248). Mattei also spoke
coherently and clearly, and no looseness of association was noted. (Tr. 248). Dr. Filiaci opined that Mattel
was not a reliable historian but that she had no formal thought disorder
and expressed herself logically and coherently. (Tr. 217). Dr. Barash
found plaintiff's thought processes coherent and goal directed,
without flight of ideas or loosening of associations. (Tr. 238). Drs.
Filiaci, Barash, and Fule all reported that plaintiff had a full and
appropriate affect. (Tr. 217, 238, 248). Based upon this evidence,
12.03(A)(3) is not satisfied.
4. Emotional withdrawal and/or isolation
Mattei testified that she sometimes goes to church, visits her mother
every two weeks, socializes with a neighbor, and hosts family members.
(Tr. 22-25, 197, 201). In December 1999, plaintiff traveled to Puerto
Rico. to visit her aunt and grandfather. (Tr. 38). Dr. Fule's September
6, 1999 report specified that plaintiff's mood was neutral. (Tr. 248). In
his report, Dr. Filiaci described Mattei's mood as euthymic, but
diagnosed her with mild depression. (Tr. 217). According to Dr. Barash,
plaintiff's mood was without significant depressive themes or trends,
(Tr. 238). Mattei also told Dr. Barash that she gets along with people
fairly well, and socializes with a few neighbors and family members. (Tr.
237). There is no evidence that Mattei suffers from emotional withdrawal
and/or isolation on a continuous or intermittent basis, and 12.03(A)(4)
is not satisfied.
B. Subpart 12.03(B)
Plaintiff must satisfy both subpart A and B to sustain her claim.
Subpart 12.03(B) requires that the depressive syndrome identified in
subpart A result in at least two of the following:
1. Marked restriction of activities of daily living;
or 2. Marked difficulties in maintaining social
3. Deficiencies of concentration, persistence, or pace
resulting in frequent failure to complete tasks in
a timely manner (in work settings or elsewhere);
4. Repeated episodes of deterioration or
decompensation in work or work like
settings which cause the individual to withdraw
from that situation or to experience exacerbation
of signs and symptoms (which may include
deterioration of adaptive behaviors).
20 C.RR. Pt. 404, Subpt. P, App. 1, 12.03(B). Since plaintiff has
not met the criteria for any subsection under subpart A, it is not
necessary to examine the criteria of subpart B.
C. Subpart 12,03(C)
Having failed to satisfy subparts A and B, Listing 12.03 may be
satisfied by meeting the requirements of subpart C, which requires:
Medically documented history of one or more
episodes of acute symptoms, signs, and functional
limitation which at the time met the requirement in
A and B of this listing, although these symptoms or
signs are currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of deterioration or
decompensation in situations which cause the
individual to withdraw from that situation or
to experience exacerbation of signs or
symptoms (which may include deterioration of
adaptive behaviors); or
2. Documented current history of two or more
years of inability to function outside of a
highly supportive living situation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.03(C).*fn6
In other words,
Mattei may prevail by showing that at one time in the past, she satisfied
the criteria of paragraphs A and B, that her symptoms are currently
attenuated by treatment, and that she either has a history of repeated
episodes of deterioration or a recent, extended period of inability to
function. As noted above, the applicant bears the burden of proof on the first
four steps of the disability analysis. It is clear that Mattel suffers
from a mental disorder. (Tr. 217, 239, 242). However, despite Mattei's
subjective complaints, the evidence does not reveal a past history of:
(1) hallucinations or delusions; (2) catatonic or grossly disorganized
behavior; (3) incoherence, loosening of associations, illogical thinking,
or poverty of content of speech accompanied with a less than appropriate
affect; or (4) emotional withdrawal and/or isolation. See
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.03(A).
Nor is there any indication that Mattei's daily activities have ever
been markedly restricted or that she has had difficulties functioning
socially. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.03(B)(l-2). As plaintiff has failed to establish a medically
documented history which meets the requirements of subpart A and B, it is
unnecessary to examine the evidence vis a vis subpart
12.03(C) 1 or 2. It is, however, noted that there is no evidence which
would qualify plaintiff as disabled under either of these subsubparts.
Hence, this Court concludes that the ALJ's finding that Mattei's
condition does not meet or equal the impairments listed in Appendix 1 is
supported by substantial evidence.
VII. Mattei Has No Past Relevant Work
The fourth inquiry is whether the applicant has the "residual
functional capacity" ("RFC") to perform past relevant work. See
20 C.F.R. § 416.920(e). "Residual functional capacity" is the
applicant's "maximum remaining ability to do sustained work activities in
an ordinary work setting on a regular and continuing basis . . .,"
SSR 96-8p, 1996 WL 374184, at *2; see also Melville v. Apfel,
198 F.2d 45, 52 (2d Cir. 1999). Since Mattei has no past relevant work,
step four is inapplicable.
VIII. Work within Mattei's RFC Exists in Significant Numbers in the
The fifth and last inquiry is whether or not the SSA has introduced
substantial evidence upon which to conclude that work within the
applicant's RFC exists in significant numbers in the national economy.
See 20 C.RR. § 416.920(f). To satisfy this burden, the SSA
must address two issues: (1) what is the applicant capable of doing; and
(2) what employment opportunities exist for someone who only possesses
the applicant's abilities. See Decker v. Harris, 647 F.2d 291,
294 (2d Cir. 1981).
After considering Mattei's testimony, her subjective complaints, and
the medical evidence on the record, the ALJ found that Mattei retained
the capacity to perform light work. (Tr, 14). Light work involves:
lifting no more than twenty pounds at a time, with
frequent lifting or carrying of objects weighing up
to ten 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 range of
light work, a claimant must have the ability to do
substantially all of these activities.
20 C.F.R. § 416.967(b). An ALJ must examine both exertional and
non exertional capabilities when making such a determination.
A. Exertional Limitations
Plaintiff alleges that lower back pain renders her disabled. (Tr. 287).
However, Mattei's subjective evidence must be supported by medical signs
or conditions that reasonably could be expected to produce the symptoms
of which she complains. See Taylor v. Barnhart, No, 03-6072, 2003 U.S. App. LEXIS 23805, at *5 (2d Cir. Nov. 21, 2003);
20 C.F.R. § 416.929(b), The ALJ was not persuaded that Mattei's back pain was
disabling, and neither is this Court.
In December 1998, Dr. Mescon noted that plaintiff had never been
hospitalized for back pain, never wore a brace, and never had physical
therapy. (Tr. 218). Mattei told the doctor that she can walk ten blocks,
sit for four hours, stand for an hour, carry two gallons of milk, shop,
cook, clean, and travel on public transportation. (Tr. 218). Dr. Mescon
reported that plaintiff walked with a normal gait and could flex the
lumbosacral spine 90 degrees and both knees 150 degrees. (Tr. 219).
Mattei climbed on and off the examining table, undressed and dressed, and
ambulated without assistance. (Tr. 219). Additionally, there was no
evidence of muscle atrophy, sensory deficits, tremors, or abnormal
movements. (Tr. 219). In sum, Dr. Mescon found that Mattei is able to
sit, stand, climb, pull, push, and carry heavy objects. (Tr. 220).
Dr. Silverberg found that plaintiff's lumbar lordosis was normal, and
no paraspinal muscle spasms or tenderness was present. (Tr. 235).
Although Dr. Silverberg noted that spondylolysis in the lumbar spine was
suspected, he concluded that Mattei's activities did not demand any
physical limitations. (Tr. 235-36).
Other than Mattei's subjective complaints, there is very little
objective medical evidence to support her claims for lower back pain. It
is the ALJs duty to resolve conflicts in the record and make credibility
determinations. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.
1998). In light of the diagnoses of Drs. Mescon and Silverberg, there is
substantial evidence to support the ALJ's conclusion that Mattei does not
suffer from any exertional impairment that would hamper her ability to
perform light work.
B. Non Exertional Limitations The ALJ also considered Mattei's non exertional limitations and
properly concluded that her psychological condition did not significantly
affect her ability to perform light work. (Tr, 14-15). Although Dr. Fule
found Mattei's concentration and persistence could possibly be limited in
stressful situations, he noted that plaintiff was capable of social
interaction and adoption, and his September 6, 1999 report bluntly stated
that Mattei "is capable at this time to do work related mental
activities. . . ." (Tr. 249).
Dr. Filiaci diagnosed plaintiff with mild depression but no personality
disorder. (Tr. 217). The doctor opined that Mattei "is able to understand
and carry out simple and moderately complex instructions" and "would be
able to respond appropriately to supervisors, cooperate with co.
workers and withstand work pressures in a work setting." (Tr. 217). While
Dr. Barash diagnosed plaintiff with personality disorder with histrionic
features, he also noted that Mattei's adaptability was limited only by a
"reduced tolerance for stress." (Tr. 239).
After considering both Mattei's subjective psychological complaints and
the medical evidence, the ALT properly concluded that plaintiffs symptoms
"are not of such intensity, frequency and duration as to preclude all
substantial gainful activitiy." (Tr. 14). The ALJ ruled that Mattei has
the RFC to perform light work, except for employment involving more than
brief and superficial interaction with the general public and work having
high production goals. (Tr. 14). In accordance with Social Security
Ruling 85-15,*fn7 the ALJ correctly determined that Mattei's non
exertional limitations only minimally impacts her potential occupational
base. (Tr. 14). Thereafter, the ALJ determined that in light of Mattei's
educational background, age, work history, and RFC, she was eligible for
other jobs existing in significant numbers in the national economy. (Tr.
C. Testimony of Vocational Expert
An ALJ may utilize a vocational expert if an applicant is unable to
perform the full range of a particular category of work. See
20 C.F.R. § 416.966. A vocational expert may testify regarding the
existence of jobs in the national economy and whether based on a
hypothetical person with the applicant's abilities can perform those jobs
in light of his or her functional limitations. See Dumas v.
Schweiker. 712 F.2d 1545, 1553-54 (2d Cir. 1983). The hypothetical
question must present the full extent of an applicant's abilities based
on all of the evidence. See De Leon v. Sec'y of Health and Human
Servs., 734 F.2d 930, 936 (2d Cir. 1984). In other words, there must
be "substantial record evidence to support the assumption upon which the
vocational expert based [her] opinion." Dumas, 712 F.2d at
The ALJ asked Ms. Clark to assume a Spanish speaking person who was
thirty seven years old with a ninth grade education, illiterate
in English, and no past relevant work experience. (Tr. 42-43). Further,
Ms. Clark was told to only consider positions involving: (1) simple and
routine work; (2) brief and superficial contact with the general public
and supervisors; and (3) an uncrowded environment. (Tr. 43). This Court
finds that the ALJ properly and accurately articulated Matteu's
restrictions and limitations to the vocational expert.
Citing to the Dictionary of Occupational Titles ("DOT"), in which the
descriptions of the relevant jobs are found, Ms. Clark identified several
jobs suitable for Mattel based on the hypothetical limitations set forth
by the ALJ. (Tr. 44). First, Ms. Clark stated that there were 40,000 and 12, 000 final assembler and thread cutter positions
available nationally and locally, respectively. (Tr. 44). Second, Ms.
Clark identified a machine tender position, such as riveter, and
testified that there are 30,000 national and 3,000 local positions
available. (Tr. 44). Lastly, Ms. Clark noted that there were 100,000 and
7,000 small parts assembler positions available nationally and locally,
respectively. (Tr. 44). Given the ALJ's RFC, the vocational expert's job
recommendations, and the record as a whole, any contention that Mattei
cannot perform these jobs is without merit. The ALJ's finding that
plaintiff was capable of performing substantial gainful employment
available in significant quantities was supported by substantial
IX. New Evidence
Plaintiff claims that at the time her case was reviewed by the SSA, she
had "medical conditions that were not yet disclosed to her and were not
reviewed by the commission." (Pl."s Opp'n to Mot. for J. on the Pleadings
at 1.). According to the Act, the Commissioner must consider additional
evidence submitted by an applicant, "but only upon a showing that there
is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding." 42 U.S.C. § 405(g)(2000). For new evidence to be
material, it must be "both relevant to the claimant's condition during
the time period for which benefits were denied and probative. . . ."
Bradley v. Barnhart, No. 03-6029, 2003 U.S. App. LEXIS 25124,
at *6 (2d Cir. Dec. 12, 2003). In addition, there must exist "a
reasonable possibility that the new evidence would have influenced the
Secretary to decide claimant's application differently." Id.
The Appeals Council denied Mattei's request for review on February 10,
2001, an action rendering the Commissioner's decision final. (Tr. 4-6). Plaintiff
has good cause for her failure to submit such evidence to the Commission
since all of the documents to which she refers were prepared after the
date on which Appeals Council denied review. (Pl's Opp'n to Mot. for J.
on the Pleadings). Nevertheless, the documents offer no insight regarding
Mattei's condition during the relevant time period, September 1, 1998 to
August 11, 2000.
More importantly, there is no reasonable possibility that the new
documents would have changed the outcome of the Commissioner's review. A
letter from the NYC Human Resources Administration simply states "you
were too ill to participate in an HRA Approved Work Activity that
prepares you for employment." (Id. at exh. 1). The NYC HRA
letter does not specify the nature of Mattei's illness. Even if Mattei's
illness was psychiatric, the requirements to participate in an HRA
Approved Work Activity differ from the statutory disability standards.
Although a letter from Dr. Silvia Sierra notes that Mattei has type n
diabetes, hypertension, hyperdipidemia, and psychiatric disease,
(Id. at exh. 3), this information does not satisfy Listing
12.03 or establish an inability to perform substantial gainful
The first letter from Sunset Park Mental Health Center ("Sunset Park")
notes that plaintiff's symptoms include acute anxiety, mental confusion,
and dysphemic mood. (Id. at exh. 4). Yet the same letter
comments that Mattei "is complying well with her treatment at this
clinic," (Id.). The second letter from Sunset Park states that Mattei's
psychiatric problems, including symptoms of emotional instability,
depression, and anxiety, render her unable to serve as a juror. (Id. at
exh. 5). The third letter from Sunset Park notes that Mattei suffers from
psychiatric problems of anxiety and depression. All of this information
was found in the reports of Drs. Fule, Filiaci, and Barash, and fails to
provide any further insight into Mattei's satisfaction of Listing 12.03 or her ability to perform substantial gainful
employment. For these reasons, Mattei's new evidence is not probative.
There is no reasonable possibility that documents would have influenced
the Secretary to decide plaintiff's application differently.
For the foregoing reasons, this Court finds that there was substantial
evidence supporting the SSA's determination that Mattei was not disabled
and that she could perform light work. Accordingly, the Commissioner's
motion for judgment on the pleadings is GRANTED and the Commissioner's
final determination is AFFIRMED. The Clerk of Court is directed to close
IT IS SO ORDERED