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United States District Court, S.D. New York

December 15, 2004.

RUTH DAVILA, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge


On July 19, 2004, Ruth Davila ("Davila") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability benefits. The Commissioner moved for a judgment on the pleadings to affirm the Commissioner's decision. The plaintiff cross moved for judgment on the pleadings. For the reasons that follow, Davila's motion for a judgment on the pleadings is denied, and the Government's cross-motion for judgment on the pleadings is granted. BACKGROUND

  The following facts are taken from the administrative record.

  Application and Hearing History

  On December 15, 1994, Davila filed an application for SSI benefits. An administrative hearing was held on September 13, 1996, where Davila personally appeared without counsel and without an interpreter. At that hearing, Davila stated that she had difficulty understanding English. Through the course of the hearing, Davila expressed difficulty understanding the Administrative Law Judge's ("ALJ") questions approximately nine times, although each time the ALJ was able to re-phrase the question in such a way that Davila could reply with a responsive answer. For the most part, Davila was able to give responsive answers without repetition, re-phrasing, or explanation of the question. She testified that she graduated from high school in Puerto Rico, and that she could read and write English "a little bit." She also testified that she last worked as a cashier in a supermarket in 1989. On December 18 an Administrative Law Judge ("ALJ") determined that Davila was not disabled. The Appeals Council denied Davila's request for a review of the decision. Davila then commenced a civil action in district court; with consent of the parties, this case was remanded to the Commissioner for further proceedings on June 24, 1998 in order to develop the record more fully. See Davila v. Apfel, 97 Civ. 7686 (JES) (S.D.N.Y. June 24, 1998). Subsequently, the Appeals Council vacated the Commissioner's December 18 decision and remanded the case to the same ALJ, Robin J. Arzt.

  The ALJ held a hearing on June 9, 1999. At that hearing, Davila was represented by counsel, and brought a Spanish-language interpreter. The ALJ attempted to excuse the interpreter, leading to the following colloquy:

ALJ: . . . I was excusing Ms. Chaparro because on the last occasion when we had the initial hearing Ms. Davila spoke fluently in English and testified she graduated from high school and that she is also literate in English. She both reads and writes English. I'm not really clear on why we need to use the interpreter today. Now if Ms. Davila feels more comfortable using the interpreter I will allow her to do that. However, that will not change the findings I'm going to be making regarding her vocational background. . . . I mean, I just thought, you know, Ms. Chaparro could just go on her way since the woman can speak English. Ms. Davila, can you tell me why you requested an interpreter today?
CLMT: Because I did not understand English, I only understand some things.
ALJ: Okay, well we managed to get through the entire hearing last time and she was perfectly fine. Okay —
. . .
ATTY: I've met with Ms. Davila several times and . . . I have had a terrible time getting through to her in English. There's very often misunderstanding. She tries to answer in English, it sometimes appears as if she's, if she's able to hold a conversation in English, but there's a lot of confusion.
ALJ: Well, that's interesting —
ATTY: And well —
ALJ: The reason I'm saying that is there was no interpreter present at the last hearing and she got through the entire hearing and believe me, if she was having a hard time we would have had an interpreter present. Okay, well fine, the interpreter can stay, fine, so we'll use the interpreter.
  On February 25, 2000, the ALJ determined that Davila was not disabled. After considering Davila's objections, the Appeals Council let the ALJ's decision stand in a decision dated December 28. Davila once again sought judicial review of the ALJ's decision in the district court; with consent of the parties, this case was remanded to the Commissioner for further proceedings on September 4, 2001. See Davila v. Massanari, 01 Civ. 1639 (JES) (S.D.N.Y. Sept. 4, 2001). The Appeals Council vacated the Commissioner's February 25 decision and remanded the case to a different ALJ pursuant to its policy of remanding to the same ALJ only once.

  On August 29, 2002, a new hearing was held by ALJ Paul A. Heyman. Davila was represented by counsel, and again brought a Spanish language interpreter. In addition, one of Davila's friends was present at the hearing and gave testimony. At that hearing, Davila testified that she was unable to work because a thyroid condition caused her to feel tired, she had an enlarged heart that also caused her to feel tired, she sometimes had a rapid heartbeat, diabetes caused her to experience leg pain, she suffered anxiety and panic in crowded, enclosed spaces, often felt sad, and sometimes heard voices and saw shadows of people who were not there. She testified that her fear of enclosed places possibly could be attributed to the fact that her apartment burned down eight years ago. Davila also stated that she sometimes walks approximately three blocks to her local supermarket. The ALJ, in a decision of December 11, 2002, determined that Davila was disabled as of September 26, 2001, but not before. The ALJ found, inter alia, that while Davila's statements "of disabling symptoms and limitations are generally credible," they do not "rise to a level of disability until September 26, 2001."*fn1 The ALJ found that Davila retains residual functional capacity for a "wide range of light work," that she is capable of "lifting twenty pounds occasionally with frequent lifting of ten pounds and for standing and sitting for six hours a day," and that "the claimant's job base of light work, which includes sedentary jobs was not severely eroded."

  Davila subsequently commenced this action, seeking review of the ALJ's determination that she was not disabled prior to September 26, 2001.

  Medical History

  Because applicants for social security benefits only become eligible for such benefits after they have applied, see 20 C.F.R. § 416.335, Davila's relevant medical history begins in December 1994, when she filed an application for SSI benefits. There is no evidence in the record of treatment of Davila from December 1994 to March 1995.

  On March 27, 1995, Dr. Michael Polak conducted a consultive evaluation. Dr. Polak diagnosed Davila with asthma (by history), hypertension, diabetes mellitus and hyperthyroidism. Dr. Polak determined that Davila had the functional capacity to do work related activities but should not be required to walk excessively long distances and should be limited in exposure to extreme temperatures or excessive dust. Dr. Polak found that Davila had no problem with activities requiring dexterity, walking a short-moderate distance, a limited amount of stairs and no difficulty lifting, carrying, pushing or pulling heavy loads.

  In April, Davila was treated at the outpatient clinic at Bronx Municipal Hospital. On April 24, 1995, Davila said she felt tired but had no major specific complaints. Davila was again seen at Bronx Municipal on August 6, 1995. She reported feeling "ok" and the treating physician determined that Davila's blood pressure was adequately controlled.

  On August 30, 1996, Davila walked into the Emergency Department of Jacobi Hospital complaining of coughing green and yellow sputum and wheezing. The hospital prescribed medication and discharged Davila with no shortness of breath or wheezing.

  On September 30, 1996, Davila underwent an initial psychiatric evaluation at Sound View Throgs Neck Community Health Center. Davila was described as well-groomed, attentive and cooperative, and her behavior was described as appropriate. Her mood was depressed and somber. Davila claimed she heard her name being called out and saw someone at her side, and explained that she had passive thoughts of death. Her immediate memory was described as impaired at times. Pursuant to the Diagnostic and Statistical Manual of Mental Disorders, the examiner's diagnosis was: Axis I — major depression (severe) with psychosis, recurrent, with anxious features; Axis II — deferred; Axis III — asthma, diabetes, anemia, and hypothyroidism; Axis IV — moderate; Axis V — 60.*fn2

  Davila returned to Sound View on October 28, 1996 and underwent another psychiatric evaluation. She was non-delusional and her memory was intact. Davila was cooperative and well oriented to time and place, and her mood was described as neutral. Davila reported moderate high profile behavior. She reported having poor impulse control, especially when in an argument or under the influence of alcohol. Davila was diagnosed with dysthymia by history, rule out major depression, alcohol abuse in remission (since 1991). The evaluating psychiatrist assessed Davila's GAF as being "in the 70s"*fn3 and Paxil was prescribed.

  On November 10, 1996, Davila entered the Emergency Department of Jacobi Hospital complaining of heart palpitations, dizziness and chest pain. She was diagnosed with atrial tachycardia.*fn4 After treatment with Adenosine, Davila had no further complaints of chest pain. On November 17, Davila was transferred to Montefiore Hospital, where she underwent a cardiac catheterization. Davila was diagnosed with hypertrophic cardiomyopathy, atrial tachycardia, diabetes and asthma, and medication was prescribed.

  Davila was transported by ambulance to the Emergency Department of Westchester Square Medical Center on January 11, 1997. She complained of rapid heartbeat but had no chest pain or shortness of breath. The hospital diagnosed Davila with palpitations and discharged her. The next day, Davila went to the Emergency Department of Montefiore complaining of a fast heart beat while sedentary. The electrocardiogram was normal and Davila was discharged.

  After a consultation with Dr. Jay Gross at the Montefiore Cardiology Department's Arrhythmia Center, Davila was admitted and treated at Montefiore Hospital from January 27-29, 1997. Davila underwent an electrophysiology study and ablation procedure.*fn5 The procedure was considered successful and Davila was asymptomatic. The discharge diagnosis was supra ventricular tachycardia AV nodal re-entry type.

  On March 11, 1997, Davila was seen for a follow-up evaluation and was doing well, with no palpitations. In March of 1997, Sound View Health Center terminated Davila's treatment because she had not been seen in three months and was considered non-compliant with treatment. On November 20, 1997, Davila returned to Sound View for treatment. Davila's mood was described as depressed and anxious, but her activity and behavior were appropriate, she had a full range of affect, and her thoughts were goal-directed. Davila was seen again at Sound View on December 29, 1997. Davila complained of nervousness, insomnia, sadness, and crying spells. She had normal speech and a well-organized thought process. Davila was referred for psychotherapy.

  Davila continued to receive treatment at Sound View approximately once a month. Her treating psychiatrist indicated that Davila appeared calmer and less depressed, and that she experienced less anxiety, elevated mood, and increased socialization. Davila reported no side effects from her medication.

  On March 15, 1999, a psychiatric assessment was conducted on Davila by a social worker and a psychiatrist named Dr. Esther Bailliet. In this assessment, Davila reported having made twenty-two visits to Sound View since 1997. She reported symptoms of depression, crying spells, mood swings, panic attacks, poor appetite, weight loss, insomnia, hallucinations, and paranoia in large crowds of people. Davila was disgnosed as suffering from major depression with severe psychosis and her psychiatric condition manifested in shortness of breath and asthma from the panic attacks. The report indicated that Davila had moderate restrictions of daily living activities, difficulty in maintaining social functioning, severe deficiency of concentration, severe decompensation in work, marked limits on her ability to carry out instructions and respond appropriately to supervision, coworkers, and work pressures, and difficulty performing simple tasks in a full time work setting. The evaluation determined that Davila had a severe limitation on her ability to satisfy an employer's normal standards for attendance and work quality, as well as to perform complex tasks.

  Throughout 1999, Davila continued treatment at Sound View with a psychiatrist and social worker; notes from this treatment period describe her as "stable." On May 5, 1999, Davila stated that she "felt great" and "had to take advantage of the good days." On June 2, Davila had no complaints and said she "hadn't felt so good as she did today in a long time." The social worker added that such comments did not necessarily mean that Davila was not ill.

  In August, Davila reported she had not felt anxiety for about three weeks. Throughout September, she continued to be stable but complained about the Welfare Board requiring her to work. Notes from October through December continue to reflect Davila's unhappiness at work, and Ambien was prescribed as a sleep aid. Davila added that the SSI benefits application process was stressful to her.

  Davila continued treatment at Sound View throughout 2000. Davila continued to report depression and insomnia. She indicated that caring for her ill sister was stressful. In the spring, however, Davila traveled to Puerto Rico for five weeks to visit a number of family members and reportedly enjoyed herself. Upon return, Davila appeared tan and relaxed but was angry that her SSI benefits were denied. Davila was evaluated again on September 27, 2000. She was attentive and cooperative. Her mood was described as somber, "euthymic,"*fn6 depressed, frustrated, angry, irritable, and guilty. Her affect was appropriate and her thought process was goal-directed. Davila reported having hallucinations when alone. She was preoccupied with her health conditions and her immediate cognition was impaired. Davila was prescribed Paxil and subsequently reported no depression or anxiety.

  Davila was treated at the Jacobi Hospital's outpatient clinic from 2000-2001. In June and September, 2000, Davila had follow-up examinations. At both, her appetite was good and she reported no problem sleeping. Her lungs were clear. On December 13, 2000, the physician noted her diabetes was under poor control due to poor compliance with treatment for her thyroid disorder. Her lungs, appetite, and sleep remained normal.

  Throughout 2001, Davila was seen regularly at Sound View. She was intermittently somber and depressed. This was primarily attributed to her sister's health and financial concerns. In May and August 2001, progress notes indicate Davila had little depression and felt euthymic. In April 2001, Davila was seen at the Jacobi Hospital Emergency Department for an exacerbation of asthma. She reported palpitations and difficulty breathing. She was treated with Albuterol and discharged. She continued treatment for palpitations at Jacobi from April 28 — May 1, 2001. Davila's echocardiogram was borderline for hypertrophic cardiomyopathy. She was not in distress and had no wheezing or palpitations throughout her stay. Davila was discharged in an improved condition. Davila saw a doctor at the cardiac clinic at Jacobi Hospital in May and June 2001, and on both occasions indicated she felt well, and had no shortness of breath, chest pain or palpitations.

  On September 11, 2002, a psychiatrist at Sound View, Dr. Lewis Fox, submitted a report summarizing his experience with her based on monthly treatments over the course of approximately three years. He stated that Davila's "symptoms fluctuate over time" and that "she is capable of feeling well for months at a time, but is always subject to recurring bouts of anxiety or depression, often precipitated by personal or medical problems." He stated that she "has not been able to sustain a year-long remission in the three years I have known her." The report also described her as "alert, well-related," and with an affect that is "always appropriate" according to her mood. Dr. Fox found no psychotic features, suicidal ideation, or thought disorders. He stated that at this point, her symptoms are chronic, and that he expects her to continue to be symptomatic "at some level" in the future. He also assessed her GAF to be in the range of 50-60, indicating moderate overall deficiencies in functioning. Dr. Fox's report also indicated a belief that Davila would have a good ability to follow work rules, and that her other occupational abilities would range from good to poor, depending on "how severe her anxiety and/or depression are at the time." He suggested that her ability to perform simple job instructions ranged from good to fair, that she had a good ability to maintain her personal appearance, and a good to fair ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability.


  In reviewing a decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). A court must uphold the Commissioner's decision unless it is not supported by substantial evidence or is based on an error of law, Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000), "keeping in mind that it is up to the agency, and not this court, to weigh the conflicting evidence in the record." Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). Substantial evidence in this context means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d Cir. 2004) (citation omitted). It is not the function of the reviewing court to determine de novo whether a claimant was disabled. Curry, 209 F.3d at 122.

  To be considered disabled under the Social Security Act, a claimant must demonstrate the "[i]nability 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." 42 U.S.C § 423(d)(1)(A). Further, the claimant's impairment must be "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." 42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 432(d)(3).

  The Social Security Administration employs a five-step process in making a disability determination. See 20 C.F.R. §§ 404.1520. The Second Circuit has summarized the procedure 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" [that] 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 . . . 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. . . . 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 [that] the claimant could perform.
Apfel, 209 F.3d at 122 (citation omitted).

  In determining in connection with the fifth step whether the claimant can perform other work, the ALJ first determines whether the applicant retains the functional capacity for work-related activities. If the applicant is subject only to exertional,*fn7 or strength limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, Appendix 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.2d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

  A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). In employing this five-step process, the ALJ must consider four factors: "(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 educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citation omitted).

  The ALJ first determined that Davila had not engaged in substantial, gainful activity at all relevant times. The ALJ next determined that Davila had medically severe impairments of asthma, depression, intermittently high blood pressure, well-controlled diabetes, intermittently controlled hyperthyroidism and well-controlled anemia. At the third step of the five-step sequential evaluation, the ALJ found that Davila had no impairment or combination of impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. At the fourth step, the ALJ found that Davila could perform light work that did not require her to deal with crowds and allowed her to work in a clean-air environment, but not her past work as a cashier. The ALJ then proceeded to the final step to determine what, if any, other work Davila could undertake. Considering Davila's age, education, work experience, and residual functional capacity, the ALJ determined that there was other work Davila could perform in the national economy during the relevant time period.

  The Commissioner's decision denying Davila disability benefits and Supplemental Security Income during the relevant time period was supported by substantial evidence and did not contain legal error. Davila makes two main arguments in favor of reversal. First, Davila claims the ALJ failed to provide a rational basis for his finding that the claimant was literate and able to communicate in English as contemplated by Medical-Vocational Rule 202.10. Medical-Vocational Rule 202.10 requires a substantial showing that Davila was "at least literate and able to communicate in English."

  The ALJ observed that Davila testified in English at the initial hearing and had been capable of handling several supermarket cashier jobs in New York City. The ALJ also noted that Davila graduated from high school in Puerto Rico and "seemed quite intelligent." As such, the ALJ determined that Davila was basically literate and able to communicate in English. After reviewing the transcript of the hearing in which Davila testified, the subsequent comments of the ALJ at the June 9, 1999 hearing, and considering the fact that Davila is a high school graduate, the record provides substantial support for the ALJ's conclusion that Davila was "at least literate" and "able to communicate in English."

  Davila's second argument is that the ALJ failed to address evidence that her psychiatric and heart conditions were disabling during the relevant time period. In particular, Davila points to the somewhat conflicting psychiatric reports of Dr. Bailliet and Dr. Fox. The ALJ gave significant weight to the treatment notes from Sound View Health Center. After extensive review of the record and consideration of relevant testimony, the ALJ determined that Dr. Fox's report and the treatment notes from Sound View were more consistent with Davila's functional level than Dr. Bailliet's March 1999 report. The treatment notes indicated that Davila had little, if any interference in her daily activities. She traveled. The ALJ reviewed, in detail, Davila's testimony regarding the myriad of activities she performs on a regular basis. Her depressive symptoms were mild and intermittent and well-controlled with medication that caused no side effects. Davila's sadness and anxiety were related to normal stress factors: caring for her ill sister, financial problems, her own physical condition and complaints about the work the State Welfare Board required her to do.

  Davila's argument that the ALJ's failure to produce a vocational expert constituted a lack of substantial basis for his conclusion that Davila was capable of other gainful employment, is unavailing. "[T]he mere existence of a non-exertional impairment does not automatically require the production of a vocational expert nor preclude reliance on the guidelines." Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). Sole reliance on the grids may be precluded, however, "where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform." Rosa, 168 F.2d at 78; see also Pratts, 94 F.3d at 39 ("where the claimant's work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate"). A claimant's work capacity is "significantly diminished if there is an additional loss of work capacity that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Pratts, 94 F.3d at 39 (citation omitted). When a claimant's non-exertional impairments significantly diminish her ability to work, "the Commissioner must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Id. (citation omitted).

  In this case, the ALJ relied on extensive mental health progress notes prepared by a treating physician and, while concluding that Davila should not work in crowds of people, the ALJ considered the relevant vocational factors, see 20 C.F.R. §§ 416.920, 416.961, 416.963-416.965, and reasonably determined that there was a sufficient job base available to her given her determined capacity for light work. See Bapp v. Bowen, 802, F.2d 601, 605 (2d Cir. 1986) (vocational expert testimony is unnecessary where plaintiff's nonexertional impairments do not significantly diminish her capacity to work).

  With respect to his evaluation of Davila's heart condition, the ALJ again reasonably relied on the medical evidence in the record. As the ALJ noted, the palpitations Davila suffered were, for all purposes, resolved after the elective ablation procedure, and the plaintiff documented only one incident in 2001 (over four years later). In both follow-up visits post-ablation, Davila said she felt well and had no palpitations, chest pain, or shortness of breath. While the ALJ chose not to credit Davila's ultimate self-assessment, he found her testimony generally credible. An ALJ's failure expressly to outline all the evidence regarding Davila's health is not relevant. It is well-settled that the ALJ is not required to "reconcile explicitly every conflicting shred of medical testimony." Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983); see also Clark, 143 F.3d at 118 ("it is up to the agency, and not this court, to weigh the conflicting evidence in the record"); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (the ALJ's credibility determination is subject to deference).


  Davila's motion for a judgment on the pleadings is denied. The Government's cross-motion for judgment on the pleadings is granted. The Clerk of Court shall close the case.


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