United States District Court, S.D. New York
March 3, 2004.
MARIA M. GURIDI, Plaintiff, -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff pro se Maria Guridi ("Guridi") brought this
action pursuant to Section 205(g) of the Social Security Act (the "Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of
defendant Jo Anne B. Barnhart, the Commissioner of the Social Security
Administration (the "Commissioner"), denying Guridi's request for
disability insurance benefits and Supplemental Security Income ("SSI").
The Commissioner has moved for judgment on the pleadings, seeking an
affirmance of the Commissioner's decision.
For the reasons discussed below, the Commissioner's motion is granted.
On June 6, 2001, Guridi filed an application for disability insurance
benefits under Title II of the Social Security Act (the "Act"). Guridi
also filed an application for SSI benefits under Title XVI of the Act on
April 18, 2001. Both applications, alleging that she became disabled as
of January 1, 2001, were denied by the Commissioner on September 6, 2001.
Record ("R.") at 51.
Guridi filed a timely request for a hearing before an Administrative
Law Judge ("ALJ") which was held on October 3, 2002. On October 11, 2002,
the ALJ denied Guridi's claim due to a finding that her allegations
regarding her limitations were not entirely credible and that her
medically determinable asthma did not prevent her from performing
her past relevant work. (R. 19-20). On February 5, 2003, the Appeals
Council denied Guridi's request for review and the ALJ's decision became
the final decision of the Commissioner on February 10, 2003 when Guridi
received the letter indicating the decision.
Guridi filed suit before this Court on April 16, 2003. The
Commissioner's motion for judgment on the pleadings was submitted on
October 30, 2003, and no opposition was presented by Guridi. The motion
was deemed fully submitted to this Court on November 26, 2003.
Testimony and Non Medical Evidence
Guridi was denied SSI benefits from her application date of April 18,
2001, through October 11, 2002, the date of the ALJ's decision. SSI
benefits are not payable for any month before the month in which the
application is filed. 20 C.F.R. § 416.335. She was also denied
disability insurance benefits from the alleged onset of her disability on
January l, 2001 through the date of the ALJ's decision.
Guridi testified at her administrative hearing through an interpreter
that she was 52 years old and that she last worked on April 14, 2000,
cleaning automobile parts at a job she had for 13 years. Her job involved
cleaning the parts with a cloth wetted with a "gas oil" where she would
work either seated or standing, depending on the work. (R. 41). The parts
were set aside for someone to carry away. Id. At the
administrative hearing, a vocational expert, Dr. Feinstein, testified
that Guridi's work was a sedentary job and that an individual performing
her past work would use an oil based solution to lubricate the
car parts and that he did not believe that volafile chemicals were used
in performing Guridi's past work. (R. 50, 51). Guridi also stated that
her work bothered her asthma condition and that she had suffered from
asthma for about eight years. She left her job because of a reduction in
personnel. She stated that in addition to her asthma, she had arthritis
in her right leg with pains in her knee, which had existed for about a
year. (R. 44). Guridi stated that she felt she could not breathe after
walking for about two blocks and that when she stands for about an hour
she gets tired. She also stated that she could only lift and carry
objects weighing two pounds because when she carries something she has
trouble breathing. Her family members assisted her with household chores
such as cooking, cleaning, and shopping. Although Guridi was able to
travel by bus and subway she rarely did so. Her regular activities
included attending weekly church services and sewing.
A review of Guridi's medical records show that during the relevant
time, Guridi's primary source of medical care was from her treating
physician, Dr. Theodore Docu ("Dr. Docu"), an internal medicine
physician, and the New York Presbyterian Hospital ("NYPH").
On February 14, 2001, Dr. Docu wrote a note that stated that Guridi
suffered from severe asthma with associated bronchial spasm and shortness
of breath. (R. 115). On March 28, 2001, Dr. Docu wrote another note that
stated that Guridi had been his patient for eight years and that she was
treated on January 21, 2001 for an asthmatic attack. (R. 114, 120).
On April 23, 2001, Dr. Docu examined Guridi who complained of wheezing
and shortness of breath. (R. 121). Dr. Docu's diagnosis was asthma and he
prescribed prednisone, Singulair, and the use of a nebulizer. (R.
On June 13, 2001, Dr. B. Fajardo ("Dr. Fajardo"), a welfare claim
consulting physician, examined Guridi and found she was in no acute
distress. (R. 99). He heard scattered bilateral wheezing and found that
Guridi's lungs were clear during auscultation
and percussion and there were no rhonchi or rales.*fn1 Dr. Fajardo
reported that a pulmonary function test showed her to be within normal
limits. Id. He also examined Guridi on her claim of arthritis
and opined that Guridi had a mild to moderate limitation in walking due
to shortness of breath, wheezing, and coughing. Id. Dr. Fajardo
also opined that Guridi could sit, stand, lift, carry, handle objects,
hear, speak, and travel. Id. He also opined that Guridi could
perform sedentary, light and moderate work activities. Id.
Five days later on June 18, 2001, Guridi was examined by another
consulting physician, Dr. Steven Rocker ("Dr. Rocker"). Dr. Rocker noted
minimal scattered end expiratory wheezes and no other clinical
abnormality after an examination of Guridi's extremities and gait. Dr.
Rocker thought Guridi could do sedentary, light and "moderate" work
activity and gave her a fair prognosis. (R. 105-106).
On June 22, 2001, Guridi returned to Dr. Docu for a follow up
examination. Guridi complained of frequent episodes of
wheezing. Dr. Docu's impression was chronic asthma and he referred
Guridi to the pulmonary clinic at NYPH. (R. 122).
On July 12, 2001, Dr. Docu repeated his earlier findings and completed
a "Condition Status Report" that indicated a diagnosis of asthma and
arthritis. (R. 127). Dr. Docu indicated that physical activity or
exposure to environmental allergens would induce bronchospasm in Guridi
and that she could not perform any work. Id.
On July 16, 2001, Guridi was examined at NYPH for an initial pulmonary
consultation. (R. 126, 132). The examining physician noted wheezing and
that Guridi was in no distress. Guridi was noted for "not taking her
inhaler correctly," instructed to undergo pulmonary function testing and
was advised on the proper use of her inhaler. (R. 132). The physician
also recommended that Guridi gradually stop using the prednisone
medication prescribed by Dr. Docu. (R. 121-122).
On August 2, 2001, Guridi underwent pulmonary testing at NYPH
and the tests used to diagnose or assess a lung disorder showed her to
have "not a very major respiratory problem." (R. 48, 134).
On August 13, 2001, Guridi returned to NYPH. The examining physician
noted that Guridi denied ever having been
hospitalized or intubated for asthma. Occasional expiratory wheezes
were noted and the physician recommended to continue removing Guridi from
the medication prescribed by Dr. Docu and prescribed Advair. (R. 139).
Guridi again returned to NYPH on August 21, 2001. The
examining physician noted that she was "doing better," was in no acute
distress and found her lungs to be clear to auscultation. (R. 41).
Guridi visited NYPH on October l, 2001 complaining of a cough and
stuffy nose. Occasional expiratory wheezing was heard and the examining
physician assessed an allergy induced asthma. (R. 150).
On February 11, 2002, Guridi told her physician at NYPH that she was
"doing better" on Advair/Singulair. (R. 152). She was regarded as "well
appearing" although Guridi had run out of medication three weeks prior.
The examining physician gave an assessment of poorly controlled asthma,
gave Guridi prescriptions, and instructed her to call if she ran out of
Six weeks later, on March 25, 2002 Guridi was seen at NYPH where she
was described as "well," in no acute distress, and her lungs were clear
to auscultation. The examining physician gave an assessment of asthma
with symptoms primarily at night. (R. 153).
On April 15, 2002, Guridi was seen at NYPH where she complained of
continued wheezing and indicated that her symptoms were less at night.
Her lungs were clear to auscultation on examination. (R. 154).
On May 10, 2002, Dr. Docu wrote another note repeating that Guridi had
been under his care for eight years and that she suffered from chronic
asthma and arthritis. He stated that she had frequent episodes of
bronchial spasms, "which disables her" and that she also has chronic
arthritic pain. (R. 116).
On July 1, 2002 Guridi was seen at NYPH and complained of chest
tightness due to heat and humidity. The examining physician noted that
Guridi was "generally well appearing" and had occasional expiratory
wheezing. The physician's assessment was moderate asthma. (R. 154).
An examination on August 10, 2001 indicated that Guridi's chest was
clear and an examination on August 21, 2001 revealed her chest was clear
to auscultation. (R. 138, 140).
At the administrative hearing a medical expert testified who had
reviewed all the medical evidence. Dr. Wagman stated that the record
showed that Guridi had asthma but it was "not [a] very major respiratory
problem." (R. 48). Dr. Wagman noted that three pulmonary function tests
revealed only minimal to borderline
obstructive disease. (R. 103, 107, 134). Dr. Wagman noted that
there was no record of emergency room treatment for her asthma and no
evidence in the record of treatment for arthritis. (R. 48). Dr. Wagman
concluded that Guridi should avoid temperature extremes, dust, dirt, and
should not lift more than fifty pounds and that it was doubtful Guridi
would need to avoid the type of oil based cleaner used in her
The issue in this case is whether there is substantial evidence to
support the Commissioner's finding that Guridi is not disabled, as that
term is defined in the Act, for the period for which she seeks benefits.
42 U.S.C. § 423(d), 1382c(a)(3) (defining disability).
I. Standard of Review
In deciding a motion for judgment on the pleadings, the court is
generally limited to considering the factual allegations set forth in the
complaint and corresponding answer. Fed.R.Civ.P. 12(c). A party is
entitled to judgment on the pleadings only if it is clear that no
material issues of fact remain to be resolved and that it is entitled to
judgment as a matter of law. Juster Assocs. v. Rutland,
901 F.2d 266 (2d Cir. 1990); Adames v. Chater,
No. 95 Civ. 9384, 1996 WL 306549 (S.D.N.Y. 1996); Madonna v.
United States, 783 F. Supp. 165 (S.D.N.Y. 1992).
The Act provides that the "findings of the Commissioner as to any fact,
if supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 So.
Ct. 1420, 28 L.Ed.2d 842 (1971); Perez v. Chater, 77 F.3d 41,
47 (2d Cir. 1996). Thus, the Commissioner's determination must be upheld
if the Court finds there is substantial evidence supporting it, even if
there is also substantial evidence for the plaintiff's position.
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990);
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see
DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998)
(Commissioner's decision affirmed where substantial evidence for both
Substantial evidence in this context 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. at 401, 91 S.Ct, at 1427 (quoting
Consolidated Edison co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206,
83 L.Ed. 126 (1938)); schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.
In addressing the present motion, the Court is mindful that the
plaintiff is proceeding pro se and that her submissions
should be held, "`to less stringent standards than formal pleadings
drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9,
101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652
(1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d
Cir. 1993). Indeed, district courts should "read the pleadings of a
pro se plaintiff liberally and interpret them to raise the
strongest arguments they suggest.'" McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that
pro se status "`does not exempt a party from compliance with relevant
rules of procedural and substantive law." Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Burden of Proof
In order to establish disability under the Act, a plaintiff has the
burden of establishing: (1) that she was unable to engage in substantial
gainful activity by reason of a physical or mental impairment that could
have been expected to last for a continuous period of at least twelve
months, and (2) that the existence of such impairment was demonstrated by
evidence supported by data obtained by medically acceptable clinical and
laboratory techniques. 42 U.S.C. § 423 (d)(1)(A); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998).
The Commissioner has established a five step sequential
evaluation for adjudication of disability claims,
20 C.F.R. § 416.920, which the Second Circuit Court of Appeals has
articulated as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial
gainful activity. If she is not, the
[Commissioner] next considers whether the claimant
has a "severe impairment" which significantly
limits her physical or mental ability to do basic
work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an
impairment which is listed in Appendix l of the
regulations. If the claimant has such an
impairment, the [Commissioner] will consider her
disabled without considering vocational factors
such as age, education and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to
perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, she has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform her past work, the
[Commissioner] then determines whether there is
other work which the claimant could perform . . .,
[T] he claimant bears the burden of proof as to
the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464
, 467 (2d Cir. 1982);
accord DeChirico, 134 F.3d at 1179-80.
If a finding of disability or non disability can be made at any
point in the sequential analysis, the Commissioner will not review the
claim further. 20 C.F.R. § 404.1520(a) and 416.920(a).
III. Guidi Has Failed to Demonstrate that She Had a
Disabling Condition Because She Has the Residual
Capacity to Perform Her Past Relevant Work
Following the five step sequential evaluation, the ALJ first determined
that Guridi had not engaged in substantial gainful activity since her
alleged onset of disability. (R. 19). The ALJ next found that
Guridi's asthma was "severe," but that her arthritis was
Guridi failed to demonstrate the existence of a severe
arthritis condition, in part, because there is no record of her making
complaints to her treating physicians or any other consulting physicians
about it. Although Dr. Docu indicated that Guridi had arthritis in his
note dated on May 10, 2002 and the "Condition Status Report" form he
filled out on July 12, 2001, there is no record of any treatment. (R.
116, 127). Neither of the consulting physicians who examined her after
she filed her complaint noted that she complained of arthritis and both
examined her and found no evidence of muskoskeletal disease. (R. 100,
105). In short, there is substantial evidence to support the
Commissioner's determination that there was no severe arthritic
Although the analysis for the arthritis claim was dismissed at this
point, the ALJ determined that the asthma was "severe" and next set out
to determine if it was a listed impairment as required by step three.
Berry, 675 F.2d at 467. The ALJ
found that the impairment was not one that was equal in severity to
the ones listed in Appendix l of 20 C.F.R. Part 404, Subpart P. The ALJ
noted in his opinion that the medical expert, Dr. Wagman, testified that
Guridi had no listings level impairment. (R. 18, 49-50).
In the fourth step in the analysis, the ALJ found that despite Guridi's
severe impairment, she has the residual functional capacity to perform
her past work: Dr. Wagman testified that Guridi was capable of performing
medium work activity that did not include exposure to temperature
extremes, dust, and dirt. (R. 19, 50). The medical record upon which he
could draw this conclusion included an examination from Dr. Rocker who
opined that she could perform "sedentary, light, and moderate work
activities." (R. 105). Dr. Fajardo examined Guridi and assessed mild to
moderate limitations in walking but that Guridi could sit, stand, lift,
carry, handle objects, hear, speak, and travel. (R. 100). The vocational
expert, Dr. Feinstein, testified that an automobile parts cleaner
performs sedentary work or "bench work" (R. 50). Dr. Feinstein also
stated that the solution used to clean the automobile parts would be oil
based (R. 18, 51) and Dr. Wagman expressed that it was doubtful
that Guridi would need to avoid it due to her condition. (R. 51).
For the reasons set forth above, there was substantial evidence for the
ALJ to conclude that Guridi failed to sustain her
burden of proving inability to perform her past relevant work as it
was less demanding than her residual functional capacity. See
Berry, 675 F.2d at 467 ("the claimant bears the burden as to the
first four steps [of the sequential evaluation"]. It was therefore proper
for the ALJ to find that Guridi was "not disabled" at Step 4 of the
sequential evaluation process. (R. 19).
IV. The Weight Given to the Treating Physician's
The Commissioner's regulations require that greater weight be given to
the opinion of a treating physician than a non treating
physician, especially where the non treating physicians's
examination is for the purposes of the disability proceeding itself.
Schisler v. Sullivan, 3 F.3d 563
, 567-68 (2d Cir. 1993). These
regulations state, in pertinent part:
Generally we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most able
to provide a detailed, longitudinal picture of
your medical impairment (s) and may bring a unique
perspective to the medical evidence that cannot be
obtained from the objective medical findings
alone, or from reports of individual examinations,
such as consultative examinations. [A] treating
source's opinion on the. . . . nature and severity
of [the] impairment (s) [that] is well
supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not
inconsistent with the other substantial
evidence . . . will [be given] controlling weight.
When we do not give the treating source's opinion
controlling weight, we apply [various]
factors . . . in determining the weight to give
the opinion. We will always give good
reasons . . . for the weight [given to the]
treating source's opinion.
20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).
The factors used to determine the weight of a treating source's opinion
when it is not given controlling weight include:
(i) the frequency of examination and the length,
nature, and extent of the treatment relationship;
(ii) the evidence in support of the opinion, i.e.
"[t]he more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the more
weight" that opinion is given; (iii) the opinion's
consistency with the record as a whole; (iv)
whether the opinion is from a specialist; if it
is, it will be accorded greater weight; and (v)
other relevant but unspecified factors.
Schisler, 3 F.3d at 567; 20 C.F.R. § 404.1527(d)
Here the ALJ did not give controlling weight to Dr. Docu, the main
treating physician's opinion, but relied more on the assessment of the
specialists to whom Dr. Docu referred Guridi at NYPH and the consulting
physicians who examined her pursuant to her disability application. The
ALJ concluded, "Dr. Docu's actual records only partially support his
notes." (R. 17). There was a noted absence of any reference to art for
it. (R. 17). The ALJ also noted that Guridi's visits to Dr. Docu were
infrequent and ceased altogether in the summer of 2001. In fact, the only
visit subsequent to July 2001 was ten months later in May 2002, when Dr.
Docu wrote the note that stated Guridi had "frequent episodes of
bronchospasm" and "chronic arthritic pain." Although
the doctor wrote this note, no documentation of a visit or
treatment was made for that day. (R. 17).
Under the regulations, the ALJ was required to give some weight to
these conclusions of the plaintiff's regular treating doctor, even if
they were not given controlling weight in view of other medical evidence
in the record. The ALJ was also required to articulate the weight that he
gave to the treating doctor's conclusions and to give good reasons for
that weight. Schisler, 3 F.3d at 567. The ALJ in this case did
so and therefore performed the detailed analysis required under
Schisler. The ALJ referred to the tests or reports submitted by
the examining physicians from NYPH and also indicated why the State
agency doctor's reports were more complete that those of Dr. Docu. (R.
17-19). The ALJ noted that the doctors at NYPH instructed Guridi on how
to properly use her inhaler and that an improvement in her condition was
made. Under the Commissioner's regulations, Dr. Docu's opinions were
entitled to substantial weight, even if not controlling weight, but the
ALJ gave "good reasons" for giving more weight to the other doctor's
opinions. 20 C.F.R. § 404.1527(d)(2).
Substantial evidence supports the Commissioner's determination that
Guridi failed to sustain the burden of proof that she was under a
disability within the meaning of the Act. As
a result, the motion for judgment on the pleadings is granted and
the Commissioner's decision is affirmed.
It is so ordered.