United States District Court, S.D. New York
January 12, 2005.
RALPH ALVAREZ, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Jo Anne Barnhart, Commissioner of Social Security
(the "Commissioner") has moved under Rule 12(c), Fed.R.Civ.P.,
to dismiss the complaint of plaintiff Ralph Alvarez ("Alvarez" or
the "Plaintiff") seeking disability benefits. For the reasons set
forth below, the motion is granted.
On October 12, 2001, Alvarez filed concurrent applications for
disability insurance benefits ("DIB") under Title II of the
Social Security Act (the "Act"), and SSI benefits under Title XVI
of the Act. Tr. 84-86, 97, 184-86.*fn1 His applications were
denied initially and upon reconsideration. Tr. 51-56, 187-92.
Plaintiff then requested a hearing which was held on December 16,
2002. Tr. 27-50, 57. The administrative law judge ("ALJ"), before
whom Plaintiff appeared, considered the case de novo and, on
January 26, 2003, found that Plaintiff was not disabled. Tr.
8-13. The ALJ's decision became the final decision of the
Commissioner on August 16, 2003, when the Appeals Council denied
Plaintiff's request for review. Tr. 4-5. Alvarez filed his complaint pro se on October 28, 2003
seeking disability benefits resulting from diabetes, heart
problems, a mental condition, and visual impairment.
The instant motion to dismiss, which was unopposed, was marked
fully submitted on September 8, 2004.
The Commissioner's memorandum of law is unchallenged in its
characterization of the administrative record, the medical
record, the evidence presented by treating sources, and by
consulting and non-examining physicians. The presentation of the
Commissioner accurately reflects the record.
The Standard of Review
This Court reviews the Commissioner's decision that plaintiff
was not "disabled" as that term is defined in the Act for the
period for which he seeks benefits, see 42 U.S.C. § 423(d),
1382c(a)(3) (defining disability), in order to determine whether
it is based upon correct legal standards and is supported by
substantial evidence in the record as a whole.*fn2 Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted). If there is
substantial evidence in the record to support the Commissioner's
factual findings, they are conclusive and must be upheld.
42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996). In deciding whether substantial evidence exists, the Court
should defer to the Commissioner's resolution of conflicting
evidence. Clark v. Commissioner of Social Sec., 143 F.3d 115,
118 (2d Cir. 1998).
The Court is mindful that Alvarez is proceeding pro se. It
is well established that any papers submitted by a pro se
litigant should be held to a less stringent standard than those
drafted by attorneys, that they should be read liberally, and
that they should be interpreted to raise the strongest argument
that they suggest. See Olle v. Columbia Univ.,
332 F. Supp. 2d 599, 607 (S.D.N.Y. 2004) (collecting cases).
Standard For SSI And Disability Insurance Benefits And The
Burden Of Proof
In order to establish disability under the Act, Alvarez has the
burden of establishing: (1) that he 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), 423(d)(2)(A), 1382c(3)(B);
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). It is the
inability to engage in substantial gainful activity, not merely
the medical condition, that must last for a continuous period of
at least twelve months for the individual to be found disabled.
See Barnhart v. Walton, 535 U.S. 212, 214 (2002); see
also 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
For a person to be found disabled within the meaning of the
Act, it is not sufficient that he establish the presence of a
disease or impairment. The claimant bears the burden of
persuasion to show that the disease or impairment has caused
functional limitations that preclude him from engaging in any
substantial gainful activity and thus that he is entitled to
benefits. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983); Carroll v. Secretary of Health and Human Services,
705 F.2d 638, 641-42 (2d Cir. 1983).
Further, a plaintiff's medically determinable impairments must
have been "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), 1382c(a)(3)(B). The Commissioner uses a five-step
sequential analysis in making this determination. 20 C.F.R. §§ 404.1520(4), 416.920(4); see Williams v. Apfel, 204 F.3d 48,
49 (2d Cir. 1999); Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir.
The sequential analysis first requires the Commissioner to
determine if the claimant is engaging in substantial gainful
activity; if he is working, the claim will be denied without
consideration of the medical evidence. 20 C.F.R. § 416.920(b). If
the claimant is not working, the Commissioner must determine
whether he has any "severe impairment"; i.e., an impairment
that significantly limits his ability to do physical or mental
work-related activities. 20 C.F.R. § 416.920(c), 416.921(a);
see Bowen v. Yuckeret, 482 U.S. 137, 148 (1987). If not, the
claim will be denied. If, as in this case, there is a severe
impairment, the Commissioner next considers the objective medical
evidence to determine if the impairment meets or equals the
criteria of a "per se disabling" impairment listed in Appendix 1
to 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("Listing of
Impairments"); 20 C.F.R. §§ 404.1520(d), 404.1525(a), 404.1526,
416.920(d), 416.925, and 416.926.
If a claimant has a severe impairment that does not meet or
equal the criteria of the Listing of Impairments, the
Commissioner proceeds to determine the claimant's residual
functional capacity. Residual functional capacity is what the
claimant can still do despite the limitations imposed by his impairments. 20 C.F.R. §§ 404.1545, 416.945; see Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
At the fourth step of the sequential analysis, the Commissioner
considers whether the claimant's residual functional capacity
permits him to return to his past relevant work.
20 C.F.R. §§ 404.1520(e), 404.1560(b), 416.920(e), 416.960(b). The claimant
bears the burden of proving that he cannot return to his former
type of work. Melville, 198 F.3d at 51; Diaz v. Shalala,
59 F.3d 307, 315 (2d Cir. 1995) (citing Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982)). If the claimant cannot do his past
relevant work, the Commissioner then determines whether, based on
his residual functional capacity and vocational factors, the
claimant can do other work. 20 C.F.R. § 416.920(g). The
Commissioner bears the burden of showing that the claimant can do
other work existing in the national economy. Curry v. Apfel,
209 F.3d 117, 122-23 (2d Cir. 2000); Perez, 77 F.3d at 46
(citation omitted); Berry, 675 F.2d at 467.
The Commissioner's Determination Is Supported By Substantial
The ALJ's Decision
The ALJ evaluated Plaintiff's claim pursuant to the sequential
evaluation regulations. 20 C.F.R. §§ 404.1520, 416.920. The ALJ
first determined that Plaintiff had earnings from self-employment or wages after his alleged onset of disability. Tr. 14, 25. The
Commissioner's regulations provide that an individual with
earnings over a certain level will be presumed to have engaged in
substantial gainful activity ("SGA"), and is therefore not
disabled. 20 C.F.R. §§ 404.1574(a), 404.1574(b)(2).*fn3
Plaintiff earned $8,443.93 for 199, $7,571.05 in 2000, and
$6,315.25 through September 2001. Although Plaintiff's monthly
earnings for 2000 ($631) were below the level at which SGA is
presumed, the ALJ noted that in 2000 and 2001, Plaintiff did odd
jobs working six hours a day, five days a week. Tr. 14, 34.
Accordingly, the ALJ found that Plaintiff had performed
substantial gainful activity and was not disabled during that
time. Tr. 16, 20; 20 C.F.R. § 404.1574(b)(iii). Even though the
record show that Plaintiff had worked after alleging that he was
totally disabled, the ALJ continued with the sequential
evaluation to further analyze Plaintiff's claim for benefits.
At the second step, the ALJ found that Plaintiff's eye
impairment, depression, diabetes mellitus, peripheral neuropathy
were severe impairments as defined by the regulations. Tr. 25.
Thus, the ALJ proceeded to the third step of the evaluation and
determined that Plaintiff did not have an impairment which was equal in severity to a listed impairment. See 20 CFR Pt. 404,
Subpt. P, App. 1.
At step four, the ALJ found that Plaintiff had the residual
functional capacity to perform light work that did not involve
bilateral visual acuity, hazards such as working at heights, or
moving machinery. Tr. 23.*fn4 The ALJ further determined
that because of Plaintiff's mental impairment, he was limited to
low stress, simple repetitive tasks. Id. Because Plaintiff's
residual functional capacity exceeded the physical and mental
demands of his past work, the ALJ proceeded to the fifth step and
introduced evidence to show that Plaintiff could perform other
work in the national economy. Tr. 24. Using vocational expert
testimony and relying on the Commissioner's medical vocational
guidelines, 20 CFR Pt. 404, Subpt. P, App. 2, the ALJ concluded
that Plaintiff could perform other work in the national economy.
Tr. 24-25. Therefore, he found that Plaintiff was not disabled.
The Plaintiff's Proof
As an initial matter, the fact that Plaintiff had diabetes or
depression does not result in a finding that he is disabled. He must show that the disease or impairment caused
functional limitations that preclude him from engaging in any
substantial gainful activity. Rivera v. Harris, 623 F.2d 212,
215-16 (2d Cir. 1980); Massimino v. Shalala, 927 F. Supp. 139,
142 (S.D.N.Y. 1996).
Plaintiff's treating physician noted that Plaintiff's diabetes
condition was "well-controlled." Tr. 140. There is no indication
in the record that Plaintiff experienced any complications or
significant symptoms due to diabetes. Likewise, the record fails
to support Plaintiff's claim that he is disabled due to a cardiac
impairment. Notably, no examining physician diagnosed a cardiac
condition, nor did any physician report any limitations due to
this type of a condition.
Although Alvarez has alleged disability due to a mental
impairment, the record shows that his condition improved with
treatment. Dr. Bathija, Plaintiff's treating psychiatrist,
reported that Plaintiff's thoughts were logical and ordered, and
his concentration and attention were fair. Tr. 177. He further
described Plaintiff as "mild to moderately depressed." Id.
Joseph Jurbala ("Jurbala"), a treating clinical social worker,
rated Plaintiff's symptoms as mild, and found that he had a fair
ability to handle the mental demands of work. Tr. 178-79. Alvarez's visual impairment was also not disabling. Plaintiff
indicated that his condition was limited to his right eye. Tr.
44-45. Notably, he stated that one of his activities was watching
television. Tr. 43. In addition, Plaintiff's treating sources
reported that Plaintiff's vision was stable with the use of
contact lenses. Tr. 140.
The ALJ Finding
The Commissioner denied Plaintiff's applications for disability
insurance and SSI benefits at step five. For the period covered
by Plaintiff's applications, the ALJ found that Plaintiff was
unable to perform his past work, but that he retained the ability
to perform a wide range of light work and the jobs identified by
the vocational expert. Because Plaintiff was able to perform jobs
that existed in significant numbers in the national economy, the
ALJ concluded that Plaintiff could not be found disabled.
It is beyond dispute that Plaintiff does not have any
exertional impairment. His treating physician, Dr. Lin, expressly
stated in July 2002 that Plaintiff had no limitations with
respect to lifting, carrying, standing, walking, sitting, pushing
or pulling. Tr. 171-74. The only limitation identified by Dr. Lin
was that Plaintiff was limited by a visual impairment. Tr. 174.
In addition, Dr. Bortuzzo, an examining consulting physician,
also opined that Plaintiff was capable of performing light work. Tr.
With respect to mental functioning, Dr. Bathija, Plaintiff's
treating psychiatrist, reported that Plaintiff's only limitations
were an inability to handle complex or detailed job instructions
or be near moving machinery. Tr. 177. Dr. Bathija further
reported that Plaintiff had a good ability to carry out simple
instructions, and had a fair ability to demonstrate reliability
and handle social situations. Tr. 176. Jurbala opined that
Plaintiff had a good ability to follow work rules and relate to
co-workers, and a fair ability to deal with supervisors, use
judgment, deal with work stresses, function independently, and
maintain. Tr. 178.
The ALJ correctly found that Plaintiff's non-exertional
impairments would not prevent him from performing a wide range of
light work. Tr. 24-25. The Commissioner's guidelines show that
only a substantial loss in the ability to handle work stresses,
or carry out, understand, and remember simple instructions would
severely limit the potential occupational base. See Social
Security Ruling ("SSR") 85-15, 1985 WL 56857 at *4 (1985).
Likewise, where a claimant retains sufficient visual acuity to be
able to handle and work with large objects, there would be a
substantial number of jobs he or she could perform. Id. at *8. Considering Plaintiff's residual functional capacity for light
work with restrictions regarding bilateral visual acuity and
following or carrying out complex instructions, the ALJ
determined whether Plaintiff was able to perform other work
existing in significant numbers in the national economy. Tr.
23-24. See 20 C.F.R. §§ 404.1560, 404.1563-404.1565, 416.960,
416.963-416.965. The ALJ concluded that Plaintiff could indeed
perform other types of work.
The ALJ determined that Plaintiff was a younger individual, a
high school graduate, and that his past work was unskilled. Tr.
24-25. These factors, coupled with Plaintiff's residual
functional capacity for light work, corresponds to Rule 202.20 of
the medical-vocational guidelines. 20 C.F.R. Pt. 404, Subpt. P,
App. 2. Rule 202.20 directs a finding that an individual with
this profile is not disabled. Tr. 25. 20 C.F.R. §§ 404.1569,
416.969; see Heckler v. Campbell, 461 U.S. 458, 467 (1983)
(upholding reliance on medical-vocational guidelines).
The ALJ concluded that Plaintiff had certain non-exertional
limitations, including a visual impairment, an inability to
handle complex work tasks, and an inability to work near
machinery. Tr. 23-25. These limitations, however, did not
preclude the performance of a wide range of light work. See SSR
85-15, 1985 WL 56857. When the limitations imposed by an
individual's impairments affect his ability to meet both the strength requirements of a job and non-exertional demands of a
job, the medical-vocational guidelines are used as a framework
for decision-making. 20 C.F.R. §§ 404.1568a(d), 416.969a(d); SSR
85-15 at *1. In this case, the ALJ used Rule 202.20 as a
framework when he found Plaintiff was not disabled. Tr. 24-25.
In addition to applying the medical vocational guidelines, the
ALJ also relied on the testimony of Raymond Cestar, a vocational
expert, to find that there was other work that Plaintiff could
perform. Tr. 24-25, 45-50. The hypothetical question that the ALJ
posed to the vocational expert assumed a lack of acute vision in
the right eye; work involving only low stress, and simple and
repetitive tasks; and work involving only simple job
instructions. Tr. 23, 27. Even assuming these restrictions, the
vocational expert identified three jobs that such an individual
would be able to perform. With respect to the job of house
cleaner the expert indicated that there are 257,246 such jobs in
the national economy and 6,186 in the Metropolitan New York area.
Tr. 24, 48. With respect to the job of packager, the expert
testified that there are 201,310 such jobs nationally and 5,102
locally. Id. With respect to the job of cafeteria attendant,
the expert testified that there are 108,480 such jobs nationally
and 2,892 locally. Id. The ALJ's finding that Plaintiff would
be able to perform the jobs identified by the vocational expert
is also supported by the opinions and findings of the two
treating physicians who examined Plaintiff within the period of
time covered by his disability applications. Because Plaintiff retained the
ability to perform jobs that exist in the national economy, the
ALJ concluded that he could not be found disabled.
The ALJ Properly Evaluated Plaintiff's Subjective Complaints
In assessing Plaintiff's residual functional capacity, the ALJ
also evaluated the credibility of Plaintiff's statements
regarding his symptoms, but found that Plaintiff's claims were
generally unsupported by the evidence. Tr. 21-22, 25; see
20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). It is within the
Commissioner's discretion to evaluate the credibility of
Plaintiff's complaints and render an independent judgment in
light of the medical findings and other evidence regarding the
true extent of such symptoms. Mimms v. Sec'y of Health and Human
Servs., 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v.
Shalala, 882 F. Supp. 1413, 1419 n. 6 (S.D.N.Y. 1995) (stating
that deference should be accorded ALJ's credibility determination
because he heard Plaintiff's testimony and observed his
When an individual has a medically determinable impairment that
could reasonably be expected to produce the symptoms alleged, but
the objective evidence does not substantiate the alleged
intensity and persistence of the symptoms, the ALJ considers
other factors in assessing subjective symptoms. These factors
include (1) the extent to which plaintiff can perform daily activities, (2) the nature, intensity, and frequency of
treatment, and (3) any medication or other methods used to
alleviate pain. 20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, the ALJ noted that despite claiming that he had been
unable to work since 1999, Plaintiff continued to work until
September 2001. Tr. 14, 16, 21, 91. The Plaintiff's demonstrated
capacity for work undermines his allegations that his conditions
were disabling. Further, no physician, treating or otherwise,
opined that Plaintiff was unable to work. Alvarez's activities
also contradicted his claims of disabling symptoms. He testified
that despite his conditions he occasionally did volunteer work at
hospitals. Tr. 43. In a written report he submitted to the Social
Security Administration, Alvarez indicated that he occasionally
shopped, cooked, and did laundry. Tr. 120-22. Although the ALJ
found that Alvarez's subjective complaints were not fully
credible, he did not discount Plaintiff's allegations altogether.
The ALJ did find that Plaintiff's impairments "could reasonably
be expected to produce mild to moderate pain and discomfort, mild
limitations in activities of daily living and social functioning,
and moderate limitations in concentration and attention." Tr. 21.
Despite these restrictions, the ALJ reasonably concluded that
Plaintiff retained the ability to perform light work activity. In
sum, the ALJ's assessment of Plaintiff's subjective symptoms is
supported by substantial evidence. After evaluating the evidence in the record, the Commissioner
determined that Plaintiff was not under a disability within the
meaning of the Act. This decision is reasonable and is affirmed
by this Court under the substantial evidence rule.
42 U.S.C. § 405(g); Richardson, 402 U.S. at 390.
For the foregoing reasons, the defendant's motion for judgment
on the pleadings is granted and the complaint dismissed.
It is so ordered.