United States District Court, S.D. New York
March 8, 2004.
LEONARDO REYES, Plaintiff, -against- JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
MEMORANDUM OPINION AND ORDER
Pro sc plaintiff Leonardo Reyes ("Plaintiff' or "Reyes") brings this
action pursuant to § 2()5(g) of the Social Security Act ("the Act"),
42 U.S.C. § 205(g), challenging the final decision of the
Commissioner of Social Security to deny Reyes Supplemental Social
Security ("SSI" benefits. The Commissioner has moved for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). The motion, which is
unopposed, is granted for the following reasons.
Reyes was born in 1958. (Tr. 40). He is a high school graduate, and
worked as a shipping clerk until his termination in 1998. (Tr. 266, 267).
He was unemployed from then until the time of the AU hearing. (Tr. 267).
During the hearing, Reyes testified that, although he had looked for
work, he was at that time planning to return to school to study
computers. Id. Reyes
also testified that he lived alone and used public transportation
to travel. (Tr. 266). Over the summer before the hearing, Reyes's
twelve-year-old daughter had lived with him. (Tr. 271). Reyes had also
volunteered in the past at an AIDS center, and was planning to go back to
volunteering there two to three times a week. Id.
A. Medical History
Reyes was diagnosed with HIV on February 5, 1998, at the New York
University Medical Center. (Tr. 46,47). From May 1998 to December 1999,
Reyes was treated by Dr. George McKenley at St. Luke's Roosevelt Hospital
Center. (Tr. 116). Dr. McKenley reported in May 1998 that Reyes had no
skin lesions and no thrush in his mouth and pharynx. (Tr. 96). In
December 1998, Dr. McKenley reported that Reyes was "doing well on a
regimen of COMBIVIR and CRIXIVAN." (Tr. 116). In May 1999, Dr. Grace
Minamoto, who had treated Reyes since February 1999, reported that Reyes
had no opportunistic infections, AIDS-related diseases or current
symptoms. (Tr. 119-124). Dr. Minamoto further reported on the basis of
the same examination that Reyes had no limitations in sitting, standing,
walking, lifting, carrying or handling of objects, and no limitations in
social interactions and adaption. (Tr. 121-124). In another diagnostic
examination which took place in April 1999, another physician, Dr. Peter
Graham, concluded that Reyes was capable of performing activities such as
sitting, standing, walking, lifting, carrying, and handling objects,
though he may be limited by fatigue. (Tr. 131-133).
Dr. Sharff, a state agency physician, performed an assessment of
Reyes's capacity to perform work-related activities in June 1999. (Tr.
134-141). Dr. Sharff concluded that Reyes could lift up to twenty-five
pounds frequently and fifty pounds occasionally, stand and/or walk
for about six hours in an eight-hour day and sit for about six
hours in an eight-hour day. (Tr. 135).
In October 1999, Reyes was examined by Dr. Michael Polak. (Tr.
147-149). At this examination, Reyes complained of weakness, fatigue, and
intermittent fevers and chills. (Tr. 147). Dr. Polak found Reyes to be
well-developed, well-nourished, and in no acute distress, but "mildly
impaired for carrying/lifting, pushing/pulling, walking and standing."
(Tr. 148-149). However, he also found that Reyes had a normal gait and
would have no problems performing activities requiring dexterity, bending
or sitting. (Tr. 147-149). Finally, Dr. Polak noted that Reyes lived
alone in a sixth floor apartment and cleaned, cooked, and shopped for
In July 2000, Dr. Mary Theodore reported that she has been treating
Reyes for a generalized anxiety disorder since May 2000. (Tr. 255-261).
Dr. Theodore reported that Reyes was alert, oriented, and had no
psychotic symptoms. (Tr. 255). She reported that Reyes had mild
restrictions in his activities of daily living, mild difficulties in
maintaining social functioning, and some difficulty concentrating and
focusing on tasks. (Tr. 256-257). Dr. Theodore concluded, however, that
Reyes did not have difficulties following through with tasks and could
make occupational adjustments. (Tr. 257-258).
B. Procedural History
On April 19, 1999, plaintiff Reyes applied for SSI benefits, alleging
an inability to work since August 28, 1998 (Tr.40-42). was unable to work
due to HIV infection and an anxiety disorder. (Tr. 44K). Reyes's
application was denied initially and upon reconsideration. (Tr. 30-31,
33-35). At Reyes's request, a hearing was held before an administrative
law judge (`"ALJ) on July 28, 2000, at which time Reyes appeared and
(Tr. 262-278). On September 8, 2000, the ALJ issued his decision,
finding that Reyes was not' disabled. (Tr. 8-27). On March 2, 2001, the
Appeals Council of the Social Security Administration denied Reyes's
request for review, and the ALJ's denial became the Social Security
Commissioner's final decision. (Tr. 4-5).
A. Standard of Review
Under the Social Security Act, the "findings of the Commissioner as to
any fact, if supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). In reviewing the Commissioner's decision, this Court
will set aside the "decision only where it is based upon legal error or
is not supported by substantial evidence." Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence is "more than a
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 (1971). "The substantial evidence test
also applies to inferences and conclusions drawn from findings on facts."
Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966). Therefore,
"the Commissioner's findings of fact and the inferences and conclusions
drawn from such findings are conclusive, even if the reviewing court's
analysis differs from the analysis of the Commissioner." Worthy v.
Barnhart, No. 01 Civ. 7907(JSM), 2002 WL 31873463 (S.D.N.Y. Dec. 23,
2002). In reviewing the ALJ's decision in light of the record, the
district court does not" substitute its own judgment for That of the
[Commissioner], even if it might justifiably have reached a different
result upon a de novo review." Jones v. Sullivan,
949 F.2d 57 (2d Cir. 1991). Thus, this Court will grant the Commissioner's
motion for judgment if the Commission's finding was based on substantial
evidence and was not in legal error.
B. Lack of Opposition to Motion to Dismiss
In a proceeding for judicial review of a final decision of the
Commissioner denying benefits, the plaintiff bears the burden of
establishing the existence of a disability. See,
e.g.. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.
2000); Melville v. Apfel, 198 F.3d 45, 51(2d Cir. 1999).
Plaintiff Reyes, however, has not filed any brief or affidavit opposing
the Commissioner's motion for judgment on the pleadings. Thus, Reyes has
not pointed to any specific testimony or evidence which he believes the
Commissioner has overlooked, unjustly weighed, or otherwise should have
considered. The conclusory allegations of Plaintiff's complaint are
insufficient to defeat the Commissioner's motion for judgment on the
pleadings. See, e.g., Jiang v. Barnhart, No. 03 Civ.0077 LAK
AJP, 2003 WL 21526937, *9 (S.D.N.Y. July 8, 2003); Alvarcz v.
Bamhardt. No. 02 Civ.3121 JSM AJP, 2002 WL 31663570 (S.D.N.Y. Nov.
26, 2002); Morel v. Massanari, No. 01CIV0186KMWAJP, 2001 WL
776950 (S.D.N.Y. July 11, 2001).
That said, this Court reaches the same conclusion based on an
evaluation of the merits of Plaintiff's claim. Reviewing the motion on
the basis of the Commissioner's submissions alone in the absence of
Reyes's opposition, see Worthy v. Barnhart, No. 01 Div. 7907(JSM), WL
31873463 (S.D.N.Y. Dec. 23, 2002), the Court finds that the
Commissioner's decision was not in legal error and was supported by
C. The Applicable Law
To establish disability within the meaning of the Act, a claimant must
prove that he is "unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which
can be expected to result in death or which
has lasted or can be expected to last for a continuous period of
not less than 12 months," and that the existence of such impairments is
demonstrated by evidence supported by data obtained by medically
acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.A
1382c(a)(3) (West 2003); see also 42 U.S.C.A. §§ 423(d) (West 2003).
The total effect of all the impairments suffered by the person must be so
severe 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,
regardless of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work." 42 U.S.C.A. § 423(d)(2)(A)
The Commission's regulations set forth a five-step procedure for the
evaluation of disability claims. 20 C.F.R. § 404.1520, 416.920. These
five steps are as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial
gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe
impairment" which significantly limits his
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 1 of the
regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
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, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is
other work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1117, 1179-1180 (2d Cir.
1998). "The burden is on the claimant to prove that he is disabled within
the meaning of the Act." Id Once the claimant
meets his burden, the burden shifts to the Commissioner to prove
that the claimant is capable of working. Perez v. Chater,
77 F.3d 41, 46 (2d Cir. 1996).
The following factors are also considered in determining whether a
claimant is disabled: "(1) the objective medical facts; (2) diagnoses or
medical opinions based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the claimant's
education background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983).
Finally, the Commission's regulations provide that "[i]f [the
Commission finds] that a treating source's opinion on the issue(s) of the
nature and severity of [the applicant's] impairment(s) is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in your case
record, [the Commission] will give it controlling weight." 20 C.F. R.
D. The Commissioner's Findings
The ALJ used the five-step evaluation process to determine whether
Reyes is disabled for the purpose of receiving SSI benefits. (Tr. 12).
First, the ALJ found that Reyes has not engaged in substantial gainful
activity since his diagnosis with HIV. Id. Second, the ALJ
found that Reyes's impairments were severe. (Tr. 13). Third, the ALJ
found that these impairments did not fall within one of the impairments
listed in Appendix 1, Subpart P of the Reyes was unable to perform his
past relevant work of a shipping clerk. (Tr. 15). Finally, the ALJ
considered Reyes's age. education, and vocationally relevant past work
experience in conjunction with the Medical-Vocational Guidelines of
Appendix 2 of Subpart P of the Regulations. Id. Using
Vocational Rule 204.00, the ALJ determined that Reyes was "not
disabled." (Tr. 16). As a result, the ALJ concluded that Reyes was not
under a disability for the purpose of receiving SSI payments.
Id. The Commissioner accepted the ALJs decision on March 2,
2001. (Tr. 4-5).
E. Review of the Commissioner's Finding
This Court concludes that the ALJ's decision was not based on legal
error or unsupported by substantial evidence. The ALJ applied the
appropriate five-step evaluation process, and the ALJ's findings were
based on substantial evidence. Reyes's medical history supports the ALJ's
findings that he was impaired as a result of HIV and could not return to
his prior work as a shipping clerk. However, these impairments do not
fall under one of the impairments in Appendix I that would entitle Reyes
to SSI benefits without further inquiry. Various medical reports, several
of which were prepared by physicians who treated Reyes over the course of
several months, indicate that Reyes is not limited in physical movement
or in psychological adjustment. Reyes himself admits to living and
traveling on his own, and to considering going back to school and
volunteering. Thus, the ALJ's finding that Reyes could perform other jobs
existing in significant numbers in the national economy thus was
supported by substantial evidence.
For the reasons stated above, the Commissioner's motion for judgment on
the pleadings is granted. The Clerk of the Court shall close the case.
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