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United States District Court, S.D. New York

January 12, 2005.

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.

Prior Proceedings

  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 Record

  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. 1996).

  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 Evidence

  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. 144.

  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 demeanor).

  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.

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