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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.

 Prior Proceedings

  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. Page 2

  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. Page 3

  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. Page 4

 Medical Evidence

  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. 121-22).

  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 Page 5 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 Page 6 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 Page 7 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 medicine.

  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). Page 8

  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 Page 9 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 previous job.


  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, Page 10 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 sides).

  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. 1998).

  In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that her submissions Page 11 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). Page 12

  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). Page 13


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 not.*fn2 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 condition.

  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 Page 14 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 Page 15 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 Evidence
  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. Page 16

 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) (2)-(6), 416.927(d)(2)-(6).

  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 Page 17 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 Page 18 a result, the motion for judgment on the pleadings is granted and the Commissioner's decision is affirmed.

  It is so ordered.

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