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United States District Court, S.D. New York

March 8, 2004.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


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 Page 2 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 Page 3 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 himself.

  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 testified. Page 4 (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. Page 5

 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 substantial evidence.

 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 Page 6 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) (West 2003).

  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 Page 7 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. § 404.1527(d).

 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 Medical — Page 8 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. Page 9


  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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