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Selvi Tankisi v. Commissioner of Social Security

March 14, 2012


The opinion of the court was delivered by: David G. Larimer United States District Judge


In this action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner"), plaintiff Selvi Tankisi ("plaintiff") appeals from the Commissioner's denial of disability insurance benefits.

On January 30, 2007, plaintiff, then thirty-seven years old, filed an application for disability insurance benefits and supplemental security income benefits under Title II of the Social Security Act. Plaintiff alleged an inability to work since March 9, 2006, due to dizzy spells, arm weakness, and inability to sit, stand or walk for extended periods of time. (T.145-155, 164). Her application was initially denied. (T. 63-38). Plaintiff requested a hearing, which was held via videoconference on June 16, 2009 before Administrative Law Judge ("ALJ") David Ettinger. (T. 161). Plaintiff, whose first and primary language is Turkish, was represented by counsel and provided with Turkish translation services by an interpreter at the hearing. The ALJ issued a decision on July 20, 2009, concluding that plaintiff was not disabled under the Social Security Act. (T. 11-18). That decision became the final decision of the Commissioner when the Appeals Council denied review on May 21, 2010 (T. 1-3). Plaintiff now appeals.

The Commissioner has moved (Dkt. #12), and the plaintiff has cross moved (Dkt. #13), for summary judgment. For the reasons discussed below, the Commissioner's motion for summary judgment is granted, plaintiff's motion is denied, and the complaint is dismissed.


I. Analysis of Disability Claims

Determination of whether a claimant is disabled within the meaning of the Social Security Act requires an ALJ to follow a five-step sequential evaluation. See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful work activity. See 20 CFR §404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, e.g., that imposes significant restrictions on the claimant's ability to perform basic work activities. 20 CFR §404.1520(c). If not, the analysis concludes with a finding of "not disabled." If so, the ALJ continues to step three.

At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR §404.1509), the claimant is disabled. If not, analysis proceeds to step four, and the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or metal work activities on a sustained basis, notwithstanding limitations for the collective impairments. See 20 CFR §404.1520(e), (f). Then, the ALJ determines whether the claimant's RFC permits her to perform the requirements of her past relevant work. If so, the claimant is not disabled. If not, analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled, by presenting evidence demonstrating that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). See 20 CFR §404.1560(c).

The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "The Court carefully considers the whole record, examining evidence from both sides 'because an analysis of the substantiality of the evidence must also include that which detracts from its weight.'" Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, "it is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

II. The ALJ's Decision

ALJ Ettinger's decision contains substantial analysis of the medical evidence of record, and explicitly applies the "special technique" prescribed for claims of physical and mental impairments." 20 C.F.R. §§404.1520a(c)(3), 416.920a(c)(3).

The ALJ first considered plaintiff's claims of physical impairment caused by a bulging disc and annular tear in plaintiff's lumbar spine, and degenerative joint disease, together with the mental impairment of adjustment disorder, which the ALJ determined together constituted a severe impairment not meeting or equaling a listed impairment.

In analyzing the pertinent evidence of plaintiff's exertional limitations, the ALJ found that plaintiff could perform light work with certain additional limitations: no more than occasional climbing, balancing, stooping, kneeling, crouching, crawling, and work that does not require complex or detailed instructions. (T. 15). Plaintiff makes no objection to the ALJ's determination of her RFC as it relates to the exertional limitations posed by the impairments identified by the ALJ, and I find that that determination is supported by substantial evidence in the record.

With respect to non-exertional limitations, the ALJ concluded that plaintiff had failed to show that she was markedly restricted in two or more of the four designated areas: activities of daily living, maintaining social functioning, maintaining concentration, persistence or pace, and repeated episodes of extended decompensation. Rather, the ALJ found that plaintiff was only "moderately" restricted with respect to daily living, social ...

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