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Tavarez v. Barnhart


April 17, 2006


The opinion of the court was delivered by: Denise Cote, District Judge


On June 12, 2000, plaintiff Carmen Tavarez ("Tavarez") filed an action pursuant to the Social Security Act seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. In a previous Opinion, this Court remanded the action for further administrative proceedings. Tavarez v. Comm'r, Soc. Sec. Admin., No. 00 Civ. 4317 (DLC), 2001 WL 238225 (S.D.N.Y. Mar. 9, 2001). Following a second denial of her SSI application, Tavarez filed this action on March 10, 2005. Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P., reversing the Commissioner's determination, or, in the alternative, remand. The Commissioner cross-moves for judgment on the pleadings affirming the denial. For the reasons set forth below, defendant's motion is granted, and plaintiff's motion is denied.


The following facts are undisputed except where otherwise noted. Tavarez is an American citizen, who was born on October 15, 1961, in the Dominican Republic. She has a GED, which she obtained in Spanish, but she cannot read, speak, or understand English. Tavarez is a single mother of two children, one of whom has cerebral palsy and cannot walk. Tavarez worked until 1986, when a difficult pregnancy required her to stop. On August 19, 1996, Tavarez fell down a flight of stairs, sustaining various injuries, including a fracture in her leg.

On March 12, 1997, Tavarez filed an application for SSI benefits, claiming a disability beginning at the time of her fall. The Social Security Administration ("SSA") denied her application on April 16, 1997. Tavarez subsequently requested a hearing before an administrative law judge (the "ALJ").

At the ALJ hearing on July 26, 1998, Tavarez, who was represented by pro bono counsel, claimed disability based not only on physical ailments, but also depression.*fn1 In an opinion of September 16, 1998 (the "first opinion"), the ALJ affirmed the SSA's denial of benefits. After the Appeals Council of the SSA denied her request for review, Tavarez filed a claim in this Court, seeking reversal of the ALJ's opinion. Tavarez moved for judgment on the pleadings, or, in the alternative, remand. The Government cross-moved for reversal and remand. In an Opinion dated March 9, 2001, the Court granted the Government's motion, remanding on the grounds that the ALJ (1) did not adequately explain why he failed to give controlling weight to Dr. Alba's assessment of the limitations on Tavarez's activities imposed by her depression; and (2) did not adequately consider Tavarez's subjective testimony concerning her pain and other symptoms. Tavarez, 2001 WL 238225, at *3-5.

On remand, the ALJ subpoenaed medical records, treatment notes, charts, emergency room records, and test results from Dr. Alba. Dr. Alba did not respond. The ALJ also scheduled two orthopaedic examinations and two psychiatric examinations, but Tavarez did not appear for any of the appointments. At the second hearing in front of the ALJ on April 1, 2002, counsel for plaintiff indicated that Tavarez had not attended the medical examinations because she believed she would have to pay for them. Tavarez's attorney also represented that her client had stopped seeing Dr. Alba approximately one year earlier, and that she was claiming disability only for the "closed period" ending with her last psychiatric visit. The ALJ asked plaintiff's counsel to submit a letter providing the precise dates during which Tavarez claims to have been disabled. It does not appear that such a letter was ever submitted. Although neither party defines the period in its motion papers,*fn2 for the purposes of this Opinion, the Court will treat the closed period as running from August 1996, the date of Tavarez's physical injury, through March 2001, the approximate date of her last visit to Dr. Alba.

On July 26, 2002, the ALJ issued an opinion once again affirming the denial of SSI benefits (the "second opinion"). He stated that he had not given Dr. Alba's assessment of Tavarez's limitations controlling weight because it was inconsistent with a previous psychiatric evaluation. The ALJ also said that he considered plaintiff's subjective complaints, but that, "based on the overall medical evidence provided, ... claimant's impairments were not as severe as to the extent alleged by the claimant."

The SSA Appeals Council denied plaintiff's request for review on January 5, 2005. Tavarez then commenced this action, filing a complaint on March 10, 2005, in which she requests that the Court reverse the SSA decision and "grant maximum monthly insurance and/or Supplemental Social Security Income benefits to the plaintiff, retroactive to the date of initial disability."


In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court may set aside a determination of the ALJ only if it based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jaskinski v. Barhhart, 341 F.3d 182, 184 (2d Cir. 2003) (citation omitted). Furthermore, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995), and thus, the reviewing court does not decide the case de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)(citation omitted).

The Commissioner will find a claimant disabled under the Social Security Act (the "Act") if the claimant demonstrates the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted ... for a continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). 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." Id. § 432(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 432(d)(3).

The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520 and 416.920. The Second Circuit has described the process as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education and work experience . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Rosa, 168 F.3d at 77 (citation omitted). 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).

Here, the ALJ found that: (1) Tavarez had not engaged in substantial gainful activity since prior to the filing of her SSI application; (2) she had severe impairments; (3) the impairments were not of the type listed in Appendix 1 of the relevant regulation; (4) she had no relevant past work experience, since she had been unemployed for such a long period; and (5) she had sufficient residual functional capacity to perform sedentary work, and therefore is not disabled. At issue here are the ALJ's conclusions at step 3 and step 5. First, Tavarez argues that the ALJ improperly discounted Dr. Alba's assessment of the symptoms of her depression. According to Dr. Alba's evaluation, Tavarez should have been classified as disabled at step 3, as she suffered from depressive syndrome, as defined by 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04 ("Section 12.04"). Second, plaintiff contends that the ALJ once again gave inadequate consideration to Tavarez's subjective complaints when, at step 5, he evaluated her residual functional capacity to perform work.

A. Dr. Alba's Opinion

A claimant is automatically entitled to disability benefits if she meets the criteria set forth in Appendix 1 of the Social Security Act under the Listing of Impairments. 20 C.F.R. §§ 404.1520(d), 416.920(d); Encarnacion ex rel. George v. Barnhart, 331 F.3d 78, 81 (2d Cir. 2003)(citation omitted). Tavarez claims that she suffers from an affective disorder, as defined in Section 12.04. In order to qualify for the irreubutable presumption of disability under the Section, a claimant must exhibit at least four of the conditions listed in Section 12.04A and at least two of the conditions listed in Section 12.04B.*fn3 In a questionnaire completed on June 30, 1998, Dr. Alba indicated that Tavarez exhibited four of the Section 12.04A symptoms (appetite disturbance with change in weight, sleep disturbance, decreased energy, and difficulty concentrating or thinking) and two of the Section 12.04B symptoms (marked restriction of activities of daily living and deficiencies of concentration, persistence, or pace) with "medically documented persistence."

In his first opinion, the ALJ contradicted Dr. Alba's diagnosis, describing Tavarez as suffering from "moderate" restrictions in her activities of daily living. His only explanation for disregarding Dr. Alba's opinion was that the "conclusions are not supported by objective clinical findings and are inconsistent with the other medical evidence of record," including Dr. Alba's 1997 evaluation, which assigned Tavarez a Global Assessment of Functioning ("GAF") score that corresponded to "slight impairment" in social and occupational functioning. The GAF score indicates the clinician's judgment of the individual's overall functioning along a continuum of mental health and mental illness. Pollard v. Halter, 377 F.3d 183, 186 at n.1 (2d Cir. 2004) (citing American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (1994) at 32). This Court found that Dr. Alba's 1998 diagnosis was "too conclusory to establish disability," as it consists entirely of circled answers on a questionnaire and lacks any description of Tavarez's limitations. Tavarez, 2001 WL 238225, at *3. The Court held that the ALJ should have requested supplemental medical records supporting Dr. Alba's responses before dismissing them as too conclusory, and that he was required to provide a more substantial explanation of his reasons for discounting the opinion. Id. at *4.

Plaintiff argues that the ALJ's second opinion is no better, as it provides essentially the same explanation as the first regarding the weight given to Dr. Alba's evaluation. Tavarez also contends that, regardless of the quality of the explanation, the ALJ was wrong to dismiss Dr. Alba's evaluation, since "the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)(citation omitted).

The ALJ's second consideration of Dr. Alba's evaluation, however, was sufficient. Plaintiff's reliance on Balsamo is inapposite for two reasons. First, in that case, an ALJ disregarded treating physicians' conclusions that were uncontradicted by any other medical evidence. Balsamo, 142 F.3d at 81. Here, Dr. Alba's 1998 questionnaire responses were at least arguably inconsistent with her 1997 assessment. Second, the Balsamo court was addressing an ALJ's determination at step 5, rather than step 3. At step 3, an ALJ can deem a claimant disabled because of a mental disorder only on the basis of "[m]edical evidence" that is "sufficiently complete and detailed as to symptoms, signs, and laboratory findings to permit an independent determination." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(D). As noted above, the ALJ could find that Dr. Alba's responses to the questionnaire lacked the specificity necessary to support a finding of disability at step 3. The ALJ attempted to gather more information by (1) subpoenaing additional records from Dr. Alba, (2) asking plaintiff's attorney to request the same records, and (3) setting up consultative exams for Tavarez. The psychiatrist did not respond to the requests, and Tavarez did not appear for her appointments.

"[W]hen despite efforts to obtain additional evidence the evidence is not complete," the ALJ is required to "make a determination or decision based on the evidence [he has]." 20 C.F.R. § 404.1527(c)(4). That is precisely what the ALJ did here. And because the record did not contain any information about the "symptoms, signs, and laboratory findings" supporting Dr. Alba's 1998 assessment, it would not be reasonable to require the ALJ to engage in a more substantial discussion of his reasons for discounting the psychiatrist's opinion.*fn4

B. Subjective Complaints

In determining whether a claimant is disabled, an ALJ must consider the claimant's subjective complaints of pain and other symptoms. See 20 C.F.R. § 416.929(c)(3) ("Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms."). This Court previously found the ALJ's consideration of Tavarez's subjective complaints in the first opinion to be insufficient because he based his dismissal solely on the lack of clinical findings to support them. Tavarez at *5. As the Court noted, under the regulations, "evaluation of symptoms must extend beyond the objective clinical findings," id., and must include consideration of such factors as: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and adverse side-effects of any medication; (5) treatment, other than medication, for relief of pain or other symptoms; (6) measures the claimant has used to relieve pain or other symptoms; and (7) functional limitations. 20 C.F.R. § 416.929(c)(3).

Tavarez argues that in the second opinion, the ALJ once again failed sufficiently to consider her subjective complaints in determining that she could perform sedentary work. The ALJ listed some of Tavarez's subjective complaints and recited the factors that must be considered in assessing the credibility of a claimant's subjective allegations. He then stated that, "based on the overall medical evidence provided," the impairments were not as severe as Tavarez alleged.*fn5

In support of his determination, the ALJ pointed to: (1) Tavarez's failure to attend the follow-up examinations he had arranged; (2) the lack of supplemental records from Dr. Alba; (3) Tavarez's use of only over-the-counter medication for pain relief; and (4) Tavarez's discontinuation of psychiatric treatment with Dr. Alba "in 1997."

Where a claimant's subjective complaints are inconsistent with the overall medical evidence, the adjudicator is not required to accept them as true. 20 C.F.R. § 416.929(c)(4). As the Second Circuit has noted, determinations of witness credibility must be made by the Secretary, not the reviewing court. Aponte v. Sec'y of Health and Human Serv., 728 F.2d 588, 591 (2d Cir. 1988). Therefore, as with any factual determination, "[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints." Id. (citation omitted). The ALJ's determination, then, will only be vacated if it is not set forth "with sufficient specificity to enable [the reviewing court] to decide whether [it] is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). See, e.g., Carroll v. Sec'y of Health and Human Serv., 705 F.2d 638, 643 (2d Cir. 1983)(reversing and remanding an ALJ's decision because he failed even to "note his rejection" of the credibility of claimant's testimony).

Here, although the ALJ's explanation of his evaluation of Tavarez's subjective complaints is sparse, it provides enough information for the Court to determine that it was supported by substantial evidence. As noted above, the ALJ highlighted Tavarez's failure to attend follow-up consultations; the lack of supplementary documentation of her psychiatric treatment; and her use of only over-the-counter medication to treat her pain. These considerations, all of which are legitimate factors in evaluating the credibility of a claimant's subjective complaints, are supported by the record. Furthermore, in other portions of the ruling, as well as in the first opinion, the ALJ discussed medical evidence suggesting that Tavarez's physical disabilities were not as extreme as she claimed. Therefore, the ALJ's evaluation of Tavarez's subjective testimony is backed by substantial evidence and does not warrant reversal.*fn6 Defendant's motion for judgment on the pleadings is granted.


For the reasons explained above, defendant's cross-motion for judgment on the pleadings is granted. Plaintiff's motion for judgment on the pleadings is denied. The Clerk of the Court shall enter judgment for the defendant and close the case.


DENISE COTE United States District Judge

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