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
OPINION AND ORDER
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
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
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.
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
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
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
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
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
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
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
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.
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
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.
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.