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Leonard v. Commissioner of Social Security

August 7, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff filed an application for disability insurance benefits and supplemental security income on March 16, 2004. See Administrative Transcript ("Tr.") at 68-70, 136-39. Plaintiff's applications were initially denied. See id. at 40, 130-35. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 22, 2004, before ALJ Charles Bridges. See id. at 150-75. On November 18, 2004, the ALJ issued a decision denying Plaintiff's applications. See id. at 29-38. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on November 18, 2004. See id. at 3-5.

On August 30, 2005, Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) to review that final decision. In support of her argument that the Court should reverse Defendant's decision and award her benefits, Plaintiff asserted that (1) the ALJ failed to develop the record with regard to Plaintiff's mental impairment; (2) the Court should accept the additional medical evidence that Plaintiff included with her brief in the record; (3) Plaintiff failed to make a knowing and voluntary waiver of her right to representation and was, therefore, prejudiced; (4) the ALJ failed to meet his duty under Social Security Ruling 00-4p to ensure that the vocational expert's testimony was consistent with the Dictionary of Occupational Titles; and (5) the hypothetical question that the ALJ posed to the vocational expert was improper. See Plaintiff's Brief at 8-18; Plaintiff's Reply at 1-4.

To the contrary, Defendant contended that the Court should dismiss Plaintiff's complaint because there was substantial evidence in the record to support the ALJ's decision and the new evidence provided no basis for remand.


A. Personal history

Plaintiff was forty years old at the time of the administrative hearing. See Tr. at 155. Plaintiff had obtained her high school degree, see id., and had past relevant work experience as a bus monitor and as a cleaner, see id. at 86, 156. Plaintiff alleged disability due to the conditions of her back and her heel. See id. at 97. Plaintiff also alleged that she experienced chest pain. See id. at 161.

B. Medical Evidence in the Record

1. Ted Triana, D.O.

Plaintiff received treatment from Ted Triana, D.O., for her heel and back.*fn1 See Tr. at 108-11, 126. On April 24, 2003, Dr. Triana noted that Plaintiff "still complain[ed] of right heel pains and indicate[d] that she ha[d] seen a podiatrist on multiple occasions . . . [and] [s]he was prescribed a cushion for her shoe." See id. at 111. Dr. Triana diagnosed Plaintiff as suffering from right calcaneal spurs, noting that "[t]his was the finding of our x-rays in the past." See id. He recommended that Plaintiff continue taking Darvocet and treating with the podiatrist. See id.

On July 23, 2003, Dr. Triana noted that Plaintiff stated that the Darvocet helped. See id. at 110. Dr. Triana again prescribed Darvocet. See id.

A "Triage/Medical Transmittal Form" to Dr. Triana dated March 11, 2004, states that Plaintiff "need[ed] to be seen . . . . [She was] under a lot of pain in her back." See Tr. at 108.

On June 24, 2004, Dr. Triana stated on a prescription slip that Plaintiff was unable to perform "any activities at work which require[d] prolonged use of her legs (such as walking, standing, [and] climbing stairs) until she is evaluated by the surgeon." See Tr. at 126.

2. University Hospital

On May 5, 2004, Plaintiff was treated at the Emergency Room of University Hospital for nonspecific chest pain and dyspnea. See Tr. at 122. No specific cause for Plaintiff's chest pain was identified. See id. at 124. Plaintiff was treated with Motrin. See id. at 122.

3. Myra Shayevitz, M.D.

On March 30, 2004, Myra Shayevitz, M.D., performed an orthopedic examination of Plaintiff. See Tr. at 116-19. During the examination, Plaintiff's gait was guarded; she was limited in her ability to squat; and she arose from a chair with some difficulty. See id. at 118. In addition, Plaintiff's forward and lateral flexion of the thoracic and lumbar spine was limited; she had lumbar tenderness and right and left SI notch tenderness; her straight leg raising on the right produced back pain; she had a decreased sensation to pinprick on the right in the anterior thigh, the calf, and the big and small toes; and her right heel was tender. See id.

Dr. Shayevitz noted that an x-ray of Plaintiff's lumbar sacral spine showed disc space narrowing. See Tr. at 118, 120. In addition, an x-ray of Plaintiff's right foot and toes showed small calcaneal spur. See id.

Dr. Shayevitz diagnosed Plaintiff as suffering from low back pain and right heel pain. See id. at 118. Dr. Shayevitz noted that Plaintiff "simply did not sit square throughout the evaluation. She was on one side or the other." See id. Dr. Shayevitz opined that Plaintiff was "limited in any standing, walking, or stair climbing. She [could] pick up something very, very light, probably not repetitively if she had to bend over." See id.

4. Surgery Appointment

The record indicates that Plaintiff had an appointment with "Ortho General" at University Hospital on July 19, 2004. See Tr. at 121. This evidence corresponds with Plaintiff's assertion that she had an appointment on this date for an "operation," which apparently was for her foot. See id. at 44.


A. Disability determination

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that she "is unable 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]he applied for work. . . .

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. § 404.1520 and § 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If [s]he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits h[er] 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 h[er] 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, [s]he has the residual functional capacity to perform h[er] past work. Finally, if the claimant is unable to perform h[er] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 20 C.F.R. §§ 404.1520, 416.920.

The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. See id.

B. Scope of Review

In reviewing the Commissioner's final decision, a court must determine whether the Commissioner applied the correct legal standards and whether there is substantial evidence in the record as a whole to support the decision. See Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)) (other citations omitted). A reviewing court, however, may not affirm an ALJ's decision if it reasonably doubts that the ALJ applied the proper legal standards even if it appears that there is substantial evidence to support that decision. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports his decision. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (citation omitted). A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. See 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991) (citations omitted). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . .'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quotation omitted). "It is more than a mere scintilla or a touch of proof here and there in the record." Id.

"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Id. (citations omitted). "However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision." Lewis v. Comm'r of Soc. Sec., No. 6:00 CV 1225, 2005 WL 1899399, *1 (N.D.N.Y. Aug. 2, 2005) (citations omitted).

In the present case, the ALJ found that (1) Plaintiff had not engaged in substantial gainful activity since the alleged onset date; (2) Plaintiff's lumbar disc disorder and right foot heel spur were considered "severe" based on the regulations; (3) Plaintiff's impairments did not meet or medically equal any of the listed impairments in Appendix 1, Subpart P, Regulation No. 4; (4) Plaintiff's allegations regarding her limitations were not totally credible; (5) Plaintiff retained the RFC to perform a limited range of sedentary work;*fn2 (6) Plaintiff was unable to perform her past relevant work; (7) Plaintiff was a younger individual who had a high school education with no transferable skills from any past relevant work; and (8), based on the Medical-Vocational Guidelines, a conclusion of "not disabled" was directed. See Tr. at 37.

Plaintiff takes issue with a number of the ALJ's findings and his ultimate conclusion of non-disability. The Court will address each of Plaintiff's arguments in turn.

1. Duty to Develop the Record

"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). This duty is heightened where a claimant appears pro se. See Devora v. Barnhart, 205 F. Supp. 2d 164, 172 (S.D.N.Y. 2002) (citing Cullinane v. Secretary of Dep't of Health and Human Servs., 728 F.2d 137, 139 (2d Cir. 1984) (remand for new hearing appropriate where ALJ failed to assist pro se litigant in securing all relevant medical testimony)) (other citation omitted). Therefore, the ALJ must "'"scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts."'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria, 685 F.2d at 755 (quoting Hankerson, 636 F.2d at 895)). The ALJ is obligated to explore the facts by asking questions of, and obtaining relevant medical records from, pro se claimants in order to assist them in developing their cases. See id. at 11-12.

Similarly, "[i]n pro se cases, a reviewing court must perform a 'searching investigation' of the record to ensure that the claimant's rights were protected." Maestre v. Apfel, No. 96 Civ. 8273, 1998 WL 477950, *4 (S.D.N.Y. Aug. 13, 1998) (quoting Robinson v. Secretary of Health & Human Servs., 733 F.3d 255, 258 (2d Cir. 1984)) (other citation omitted). "Where the reviewing court finds gaps in the administrative record, the court may either remand the case to the Commissioner to further develop the evidence, or, where the record provides sufficient proof of disability, reverse the case." Maestre, 1998 WL 477950, at *4 (citing Pratts, 94 F.3d at 39; Parker, 626 F.2d at 235).

a. Possible Mental Impairment

Plaintiff argues that the ALJ erred by failing to develop the record with regard to a possible mental impairment. See Plaintiff's Brief at 9; Plaintiff's Reply at 2. Defendant argues that Plaintiff failed to allege that she suffered from a mental impairment; ...

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