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Rosado v. Astrue

May 20, 2010


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


Pro se plaintiff Eli E. Rosado brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("the Commissioner") denying Rosado Disability Insurance benefits and Supplemental Security Income benefits. (Dkt. No. 2: Compl.) The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 13: Am. Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 20.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is GRANTED.


Procedural Background

On May 16, 1997, Rosado applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits alleging that he was disabled since April 16, 1997. (See Dkt. No. 10: Administrative Record filed by the Commissioner ["R."] 13, 86.) In his application (R. 94-106), Rosado claimed to suffer from "lower back pain" and "high blood pressure." (R. 95.) An initial determination by the Social Security Administration ("SSA"), however, found that Rosado was not disabled. (R. 52.) On July 7, 1997, the SSA reconsidered Rosado's application, but again denied his claim. (R. 53, 60-63.) On April 29, 1998, Rosado requested an administrative hearing, asserting that he had a "new illness that prevent [him] from working." (R. 64-66.)

Administrative Law Judge ("ALJ") Dennis G. Katzconducted hearings on November 13, 1998 and January 7, 1999. (R. 13, 33-51, 188-204.) Rosado appeared at both hearings without an attorney. (R. 40, 190-91.) On January 29, 1999, ALJ Katz issued a written decision finding that Rosado was not disabled between April 16, 1997 and January 29, 1999. (R. 10-31.) ALJ Katz's decision became the Commissioner's final decision when the Appeals Council denied Rosado's request for review on December 14, 1999. (R. 5-6.)

On June 26, 2000, Rosado filed this action against the Commissioner claiming that the ALJ's decision was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law." (Dkt. No. 2: Compl. ¶ 9.) On October 18, 2000, Judge Swain remanded the action to the Commissioner "for further administrative proceedings including locating or reconstructing plaintiff's claims file." (Dkt. No. 6: Stip. & Order.) Certified administrative records were created on January 26, 2001 and March 15, 2001. (See Dkt. No. 10: Commissioner Ans. ¶ 11; Dkt. No. 22: Commissioner Br. at 2.) Due to an error by the Government, however, those records were not filed with the Court as required pursuant to sentence six of 42 U.S.C. § 405(g) until December 17, 2009, when the Government submitted the records along with its answer to Rosado's complaint. (See Commissioner Ans. ¶ 11; Commisioner Br. at 2; see also1/7/2010 Ltr. from AUSA James Peck to Judge Swain.)

The issue before the Court is whether the Commissioner's decision, that Rosado was not disabled from April 16, 1997 to January 29, 1999, is supported by substantial evidence. The Court finds that it was.

Non-Medical Evidence

Rosado was born on September 5, 1954 and has an adult son. (R. 86, 200-01.) Rosado received his GED in 1973 and attended hair-dressing school in 1980. (R. 104-05.) Between 1993 and 1997, Rosado worked as a customer service representative, interviewing customers, taking orders and entering data into computers. (R. 44-45, 126, 201-02.) Rosado found this work stressful because of "[t]he nastiness of people that [he had to] deal with" caused "[e]motional pressure" and sometimes made him "snappy." (R. 39.) Rosado last worked as a customer service representative for Cablevision in April 1997, when, after taking "off a whole bunch of days" because the pain in his back "got to the point where [he] couldn't even sit," his position was terminated. (R. 44, 126, 196, 201-02.)

Rosado testified that his ailments included "lower back pain," "high blood pressure," "degenerative [joint] disease" in his left ankle, "depression and anxiety." (R. 38, 193, 196-99, 202-03.) Rosado described his lower back pain as a "shooting pain" that occurred when he slept, leaned forward or tried to stand up. (R. 196-98.) He could sit comfortably for just thirty minutes at a time before having to lay down. (R. 202.) To manage his back pain, Rosado had "an injection in [his] spinal cord" and underwent "physical therapy and... pool therapy." (R. 196-97.) Although the treatments initially improved his condition, the pain returned when the injection wore off. (R. 197-98.) Rosado felt "excruciating pain inside" his left ankle because of his degenerative joint disease.

(R. 198.) "[A]t nighttime or when it's real cold," Rosado's "whole foot hurt[]." (R. 199.) Rosado was prescribed a back brace and also an ankle brace and arch supports to stop the pain and keep his foot properly aligned. (R. 37-38.) Finally, Rosado's anxiety made him "feel like somebody [was] just sitting on [his] chest and [he] just want[ed] to... burst out and scream." (R. 203.) The only person Rosado felt he could talk to was his therapist, and he joined a church group to keep his "mind off it." (R. 200-01.) The anti-depressants he was prescribed caused "constant diarrhea," but when he tried to cut-down on his medications, it felt like "war in my brain." (R. 202.)

At the time of the hearings, Rosado rented a room from "a married couple and their three children." (R. 199.) Rosado got along with the couple but had difficulty with the children's "screaming... hollering and... running around." (R. 200.) Rosado took care of himself and did his own shopping and cooking. (R.199-200.) To keep himself busy, Rosado "read magazines," used the computer, and visited with his son and sister. (R. 200.)

Prior to the hearing, Rosado "ha[d] been looking for employment," but stopped after his "ankle started acting up and... [he] got tired of being told no." (R. 50, 195-96.) Rosado candidly admitted that he could work if he did not "have to deal with the public, [and] could just sit... in a computer situation just with data entry." (R. 50.) Rosado also estimated that he could "stand four to six hours during the course of a day, and two hours without interruption." (R. 37-38.)

Vocational Expert Testimony

Bala Carr, a board certified Vocational Expert who worked for the Social Security Administration since 1983, was called by ALJ Katz to testify as to the "availability of jobs and suitability of jobs" for someone of Rosado's "age, education and work experience," but with his physical and mental limitations. (R. 39-40, 45.) After reviewing Rosado's age, education, work experience and physical and stress-related limitations, Carr testified that there were a variety of light exertional level suitable jobs available in the national and regional economies, including "garment sorter," "marker," "duplicating machine operator," "library page" and "evening jobs" requiring data to be input into computers but without interaction with people. (R. 45-49.)

Medical Evidence

Dr. Hui Lin began treating Rosado on March 6, 1997 for "hypertension" and "mild degenerative [disc] disease of [the lumbar] spine." (R. 135, 137, 142.) On June 2, 1997, Dr. Lin completed a disability questionnaire for the New York State Department of Social Services. (R. 141-47.) He noted that Rosado had "questionable tenderness at [the] paraspinal area" (R. 143), but found no point tenderness or atrophy in Rosado's spine. (R. 146-47.) Review of a spinal x-ray taken on February 27, 1997 revealed "minimal degenerative disc [disease]... mild retrolisthesis of L5 on S1... [and] no spondylolysis." (R. 144.) A "Range of Motion Chart" prepared by Dr. Lin indicated that Rosado had full motion in the extremities, spine and ankles, while the range of motion in his hips was just short of full. (R. 146-47.) Rosado had "lower back pain on motion" and Dr. Lin referred him to physical therapy. (R. 142-43.) Dr. Lin stated that Rosado did not require an assistive device for walking. (R. 144.) Dr. Lin concluded that Rosado could occasionally "[l]ift and [c]arry" up to twenty pounds, "[s]tand and/or [w]alk" up to six hours per day and sit for up to six hours per day. (R. 145.) To control Rosado's high blood pressure, Dr. Lin prescribed Cardizen, Acupril and Ternomin. (R. 138-39, 143.)

On June 5, 1997, Dr. Wei Kao performed a consultative examination of Rosado. (R. 148-51.) Rosado told Dr. Kao that he had been having "back pains for 8 months," and explained that a "hot bath" relieved the pain but Tylenol #3 did not. (R. 148.) Rosado complained of "numbness and paraesthesia [sic] in [his] lower extremities, and significant weakness in [his] legs." (R. 148.) Upon examination, Dr. Kao determined that Rosado's "[g]ait and station [were] normal," and Rosado had no difficulty "getting on and off the examining table." (R. 149.) Dr. Kao reported that Rosado's "[l]umbar lordosis [was] normal with no scoliosis... or paraspinal muscles spasm." (R. 149.) Dr. Kao indicated that Rosado had tenderness over the lower spine, his range of motion was limited to 90° and that "[s]traight-leg-raising test is tender at 60° in left." (R. 149.) X-rays revealed "moderate intervertebral disc degeneration" of the lumbosacral spine. (R. 150, 152.) Dr. Kao determined that Rosado's hypertension was "[p]oorly controlled [and] needs additional medications," and that his back pain was "likely due to muscle spasm[s]." (R. 151.) Dr. Kao concluded that Rosado should avoid frequent bending, but was otherwise "stable." (R. 151.) Dr. Kao did not make a psychiatric referral because Rosado did not complain of "previous []or current psychiatric history." (R. 151.)

On June 27, 1997, Dr. Knoble, a state agency medical examiner, reviewed Rosado's medical records and completed an assessment of his capacity to perform work-related activities. (R. 155-62.) Dr. Knoble determined that Rosado could "lift and/or carry" up to twenty pounds occasionally and ten pounds frequently, "[s]tand and/or walk" (with normak breaks) for about six hours in an eight-hour work day, sit (with normal breaks) for about six hours in an eight-hour work day and occasionally climb, balance, stoop, kneel, crouch and crawl. (R. 156-57.) As a result, Dr. Knoble concluded that Rosado was not disabled. (R. 52.) On October 10, 1997, Dr. Whiting, also a state agency medical examiner, reviewed Dr. Knoble's assessment and concurred with its findings. (R. 53, 162.)

On January 12, 1998, Dr. Marcia Lucas, Ps.D., wrote a letter to the Department of Social Services indicating that she had been treating Rosado "for approximately two months on a weekly basis." (R. 133, 167.) Dr. Lucas stated that Rosado "suffers from severe anxiety and depression symptoms" that could "interfere with his work relationships." (R. 133, 167.) On November 23, 1998, Dr. Lucas completed a disability questionnaire at the request of ALJ Katz. (R. 176-79, 180.) Dr. Lucas diagnosed Rosado with "Generalized Anxiety Disorder with MAJOR [] [d]epressive [f]eatures" and "BIPOLAR I Disorder." (R. 176.) Dr. Lucas felt that Rosado's activities of daily living were restricted, but believed he was an "independent man who can be effective when his current anxiety/depression is managed...." (R. 177.) Dr. Lucas determined that Rosado had a "problem with maintaining a consistent... pattern of normal social interaction"; although he is a "highly intelligent individual, his severe mood swings" and "explosive" anger "interfere with his ability to interact" with the public. (R. 176-77.) Dr. Lucas noted that Rosado performs better when in a one-on-one environment "in comfortable, familiar surroundings where he does not experience external pressure or control," and concluded that the prognosis was good for Rosado "to be reintegrated in the work force with contin[ued] mental health and physical rehabilitation." (R. 178-79.)

On November 17, 1998, Dr. Luis Rodriguez-Betancourt completed a disability questionnaire at the request of ALJ Katz. (R. 180, 181-83.) Dr. Rodriguez-Betancourt began treating Rosado in June 1997 for anxiety disorder, hypertension, degenerative disc disease and "[c]hronic [left] [a]nkle [p]ain." (R. 181.) Dr. Rodriguez-Betancourt reported that Rosado could lift fifteen to twenty pounds, but that repetitive lifting would "aggravate [his] back pain." (R. 182.) Rosado could stand and/or walk for four to six hours in an eight-hour day and sit for six to eight hours in an eight-hour day, but standing for more than two hours at a time, or sitting for longer than three hours at a time, would "probably aggravate [Rosado]'s back pain." (R. 182.) Dr. Rodriguez-Betancourt concluded that despite Rosado's mental and physical impairments, he could "perform a clerical type job" provided he had the "physical freedom to sit [and] stand and change position [without] heavy lifting." (R. 183.)

On November 28, 1998, Dr. Rodriguez-Betancourt ordered an MRI of Rosado's left foot and ankle. (R. 128-29.) The MRI revealed "synostosis[] with associated talar breaking," but no abnormalities in the muscle, tendons or ligaments. (R. 129.) On December 18, 1998, Dr. Rodriguez-Betancourt prescribed a "V-Lock" back brace and arch supports to relieve pain in Rosado's back and ankles. (R. 130-32.)

The ALJ's Decision

In a decision dated January 29, 1999, ALJ Katz denied Rosado's application for Disability Insurance benefits and Supplemental Security Income benefits for the period from April 16, 1997 to January 29, 1999. (R. 10-31.)

ALJ Katz reviewed Rosado's claim of disability resulting from back pain, left ankle impairment, hypertension and mental illness, considering both his testimony and medical records.

(R. 14-24.) The medical records reviewed included an X-Ray taken on June 5, 1997, an MRI taken on November 28, 1998, and reports from Rosado's treating physicians, consultative physician and the state agency medical examiners. (R. 15-23.) ALJ Katz noted Rosado's testimony that "he experiences back and ankle pain," but stated that Rosado's testimony was "not given conclusive weight" because it was not consistent with his "demeanor while testifying" or "in proportion to the impairments established by the medical findings in the record." (R. 19, 21-22.) ALJ Katz afforded "great weight" to treating physician Dr. Rodriguez-Betancourt's opinion that Rosado was "capable of standing/walking 4-6 hours per day, remaining in a seated position for 6-8 hours per day and lifting objects weighing between 15-20 pounds," and to Dr. Lucas' opinion that Rosado had "difficulties interacting with strangers." (R. 20-21.) Although the reports of the state medical examiners were "entitled to less weight than that given to the report of an examining physician" because the medical examiner's reports were not "based on an actual, physical examination," ALJ Katz noted that the state medical examiners' opinions were "roughly equivalent" to the opinions expressed by Rosado's treating physicians. (R. 21.)

ALJ Katz applied the appropriate five step legal analysis as follows: At the first step, ALJ Katz found that Rosado had not "engaged in any work activity from April 16, 1997 through the present time." (R. 15.) At the second step, ALJ Katz found that Rosado's "back impairments, left ankle impairment and hypertension - in combination - are 'severe' within the meaning of the Act."

(R. 16.) He also found that Rosado's "emotional impairment is 'severe' in that it results in some limitation in [Rosado's] mental ability to do basic work activities." (R. 18.) At the third step, ALJ Katz found that Rosado's impairments did not "meet or equal in severity the clinic[al] criteria.... set forth in" the Social Security regulations. (R. 19.) At the fourth step, ALJ Katz determined that Rosado was:

... able to sit for a total of up to and including 7 hours and stand/walk a total of up to and including 6 hours during the course of an 8-hour work day. He has the ability frequently and occasionally to lift and carry objects weighing up to and including 20 pounds. Additionally, due to his mental impairment, he is limited to performing tasks which require minimal stress and minimal interactions with the public. Because of his tendency towards high blood pressure, the claimant cannot perform aerobic activities.

(R. 22.) Because his "past relevant work" required "a great deal of interaction with members of the public," Rosado could no longer perform it. (R. 22-23.) At the fifth and final step, ALJ Katz concluded that "there are jobs existing in significant numbers in the national and regional economies that [Rosado] is capable of preforming." (R. 23-24.) As a result, ALJ Katz found that Rosado "is not disabled and is not entitled to receive disability benefits." (R. 24.)

ALJ Katz's decision became the final decision of the Commissioner when the Appeals Council denied review on December 14, 1999. (R. 5-6.)

Medical Evidence Not Before the ALJ

On January 30, 2001, Rosado mailed to the United States Attorney's Office various medical records relating to his injuries. (Dkt. No. 22: Commissioner Br. Exs. 1-3.)*fn1 In addition to documents already included in the record (Ex. 1), Rosado submitted records from Dr. Hui Lin covering the period from February 25, 1997 to June 17, 1997 and a September 24, 1998 letter from Dr. Marcia Lucas. (Ex. 2.) According to Dr. Lin's records, on April 1, 1997, Rosado complained of "severe back pain radiating down his legs." (Ex. 2 at 13.) X-Rays of Rosado's lumbosacral spine taken on February 27, 1997 revealed "1. Minimal Degenerative Disc Disease at L5-S1[,] 2. Mild Retrolisthesis of L5 on S1 [and] 3. No Spondylolysis." (Ex. 2 at 8.) On May 20, 1997, Dr. Lin gave Rosado a letter for "welfare" stating that he was unfit for work. (Ex. 2 at 16.) Dr. Lucas' letter, addressed to the Family Court of the State of New York, mentioned Rosado's "notable improvement" in his mental health symptoms but reasoned that his "mental health impairments" prevented him from being as "functional" as he once had been. (Ex. 2 at 1.) Dr. Lucas remarked that Rosado was "actively seek[ing] employment," but had yet to find a job. (Ex. 2 at 1.) Other records submitted by Rosado, including those from Drs. Rodriguez-Betancourt, Menegus and Valdes, do not relate to the period in question, i.e., April 16, 1997 to January 29, 1999, and, accordingly, are not germane to the present action. (Ex. 3.) These records indicate, however, that Rosado suffered heart attacks sometime in April and May 2000. (Ex. 3; see page 28 n.16 below.)



A. Definition of Disability

A person is considered disabled for Social Security benefits purposes when 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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 379 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002); Salmini v. Comm'r of Soc. Sec., No. 09-3642-cv, 2010 WL 1170133 at *1 (2d Cir. Mar. 25, 2010); Betances v. Comm'r of Soc. Sec., 206 Fed. Appx. 25, 26 (2d Cir. 2006); Surgeon v. Comm'r of Soc. Sec., 190 Fed. Appx. 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 Fed. Appx. 15, 16 (2d Cir. 2005); Malone v. Barnhart, 132 Fed. Appx. 940, 941 (2d Cir. 2005); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005).*fn2

An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. §§ 423(d)(2)(A)(B), 1382c(a)(3)(B)(G); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Salmini v. Comm'r of Soc. Sec., 2010 WL 1170133 at *1; Betances v. Comm'r of Soc. Sec., 206 Fed. Appx. at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.*fn3

In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(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." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).*fn4

B. Standard of Review

A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Salmini v. Comm'r of Soc. Sec., 2010 WL 1170133 at *1; Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir.), cert. denied, 127 S.Ct. 2981 (2007); Halloran v. Barnhart 362 F.3d 28, 31 (2d Cir. 2004), Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); 42 U.S.C. § 405(g).*fn5 "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhardt, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y. July 26, 2002).*fn6

The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Comins v. Astrue, No. 09-2221-cv, 2010 WL 1490067 at *1 (2d Cir. Apr. 15, 2010); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74.*fn7 "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).*fn8 However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).

The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:

Acting pursuant to its statutory rulemaking authority, 42 U.S.C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 CFR § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." §§ 404.1520(b), 416.920(b). [2] At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If ...

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