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Marilyn Vivian Alvarez v. Commissioner of Social Security

December 18, 2012


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


Plaintiff Marilyn Vivian Alvarez ("Alvarez") brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking to challenge a final decision of the Commissioner of the Social Security Administration (the "Commissioner"). The Commissioner found that plaintiff was not eligible for Supplemental Security Income ("SSI") disability benefits. Alvarez and the Commissioner cross-moved for judgment on the pleadings. The motions were fully submitted on September 26, 2012. For the following reasons, the Commissioner's motion is granted and the plaintiff's motion is denied.


Alvarez was born in 1962, and attended school until the 11th grade. She lives with her three children, aged 13 to 16, and previously worked as a cashier/counterperson, security guard, and waitress. On November 20, 2008, Alvarez filed an application for SSI, alleging disability beginning September 20, 2008. Specifically, Alvarez asserted that she suffers from hypertension, depression, asthma, arthritis, anxiety, suicidal thoughts, mood swings, obsessive compulsive disorder, and pain in her left knee, both elbows, lower back, and neck. Alvarez also complained of significant side effects from the various medications that she takes for her psychological and physical ailments. These medications include: Seroquel, acetoaminophen with codeine #3, mirtazapine, buspirone, Celexa, Advair, and Zolpidem. Alvarez reports that she has attempted suicide four times, two of which resulted in hospitalization. Alvarez has a son with attention deficit disorder who receives SSI benefits.

The claim was denied on February 27, 2009. Alvarez filed a request for hearing before an administrative law judge ("ALJ") on March 10, 2009. On February 19, 2010, Alvarez appeared at an administrative hearing in New York City presided over by ALJ Susan Wakshul. A vocational expert also testified at the request of the ALJ.

On March 22, 2010, ALJ Wakshul denied Alvarez's December 2008 application for benefits. Alvarez filed a request for review of the ALJ decision, and on August 23, 2011, the Appeals Council denied review, rendering the ALJ's decision the final decision of the Commissioner. This petition followed.


I. The ALJ's Decision

The Commissioner will find a claimant disabled under 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 can be expected to result in death or that 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). 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. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).

The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520 & 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. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her 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 that is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Jasinski v. Barnhart, 341 F.3d 182, 183--84 (2d Cir. 2003) (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).

When evaluating the severity of mental impairments to determine whether they constitute a per se disabling condition at step three, the regulations require that the Commissioner rate and document the extent to which those impairments limit the claimant's functioning along four broad axes: "(1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation." Kohler v. Astrue, 546 F.3d 260, 265--66 (2d Cir. 2008) (citing 20 C.F.R. ยง 404.1520a(c)(3)). In order for the Commissioner to find that a claimant is per se disabled as a result of an affective disorder or an anxiety related disorder, the regulations require, inter alia, that the condition satisfy the elements of either ...

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