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Stevenson-Tota v. Colvin

United States District Court, E.D. New York

March 6, 2015

KIM. J. STEVENSON-TOTA, pro se, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

On October 28, 2002, Plaintiff Kim J. Stevenson-Tota ("Plaintiff") filed an application, pro se, [2] for Social Security disability insurance benefits ("DIB") and for Supplemental Security Income ("SSI") under the Social Security Act (the "Act"), alleging that she became disabled on November 1, 2001. ( See Certified Administrative Record ("R."), Dkt. Entry No. 23 at 24-26.) Her application was denied and Plaintiff requested a hearing. On January 20, 2004, Plaintiff appeared pro se and testified at a hearing before Administrative Law Judge Peter F. Crispino ("ALJ Crispino"). (R. 90-107.) By a decision dated January 30, 2004, the ALJ concluded Plaintiff was not disabled within the meaning of the Act. (R. 12-15.) On April 30, 2004, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 4-7.)

Plaintiff filed an appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. ยง 405(g), which was captioned Tota v. Comm'r, 04-CV-2785(FB). In that action, the parties stipulated to remand to the Appeals Council for further administrative proceedings. (R. 137-40.) On May 1, 2006, Plaintiff appeared pro se and testified at a hearing before ALJ Crispino. (R. 147-66.) On February 1, 2007, the ALJ found Plaintiff not disabled through the date of the decision. (R. 117-28.) Plaintiff filed exceptions (R. 111-16), which the Appeals Council declined to review. Plaintiff then filed a second appeal in this District, which was captioned Tota v. Comm'r, 07-CV-5169 (ARR). In that action, the parties stipulated to remand.[3] (R. 472-75.) On July 10, 2009, ALJ Mark Solomon ("ALJ Solomon") conducted a supplemental hearing, at which Plaintiff appeared pro se. (R. 565-83.) On September 4, 2009, ALJ Solomon issued a decision concluding that Plaintiff was not disabled during the period November 1, 2001, to December 31, 2007. (R. 430-40.) Plaintiff filed exceptions (R. 428-29), which the Appeals Council declined to review (R. 425-27), thereby making ALJ Solomon's decision the final decision.

Plaintiff filed the instant appeal on June 12, 2013, seeking judicial review of the denial of benefits for the closed period November 1, 2001 through December 31, 2007. ( See Complaint ("Compl."), Dkt. Entry No. 1.) The Commissioner moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking affirmance of the denial of benefits. ( See Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings ("Def. Mem."), Dkt. Entry No. 20.) The Court construes pro se Plaintiff's submission in response as a cross-motion for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. ( See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl. Mem."), Dkt. Entry No. 21.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is granted. Plaintiff's motion for judgment on the pleadings is denied and this appeal is dismissed.

BACKGROUND

A. Non-Medical and Self-Reported Evidence

Plaintiff was born in 1957. (R. 47.) She obtained a GED and attended approximately one year of college. (R. 38, 82, 94, 150.) From 1995 to 1996, Plaintiff worked as a recruiter. (R. 33.) From 1996 to 1998, Plaintiff worked in mortgage sales. (Id. ) From 1997 to 1998, she worked as a cashier in a bakery and at Dunkin Donuts. (Id. ) For a few months in 2000 and 2001, she worked as a customer service representative for E-Z pass. (R. 33, 97-98.) From 2002 to 2003, she worked as a salesperson in department stores. (R. 77, 97, 153, 162-63.) Plaintiff worked as a cashier at Western Beef from October 2003 to February 25, 2004, at which point she was terminated due to tardiness, absenteeism, and poor attendance. (R. 86.)

On November 5, 2002, Plaintiff filed a disability report indicating that she could not walk due to pressure in her legs from cysts and liquid sacks in her abdomen. (R. 32.) She claimed that she experienced vertigo and nausea. (Id. ) She indicated that these symptoms began in 1996, but she stopped working on November 11, 2001. (Id. ) She was unable to seek medical treatment due to her lack of medical insurance. (R. 39.)

On January 20, 2004, Plaintiff appeared pro se and testified at a hearing before ALJ Crispino. (R. 88-107.) At the time of the hearing, Plaintiff was 46 years old[4] and testified that she worked twenty hours per week as a cashier. (R. 93-94.) Plaintiff testified that she lived alone and performed all household chores. (R. 93, 106.) She took public transportation to the hearing. (R. 94.) She stated that, although she was working part time, she would be unable to work full time because she could not stand for long periods of time and she regularly fainted. (R. 98-99.) A doctor prescribed estrogen and she attended physical therapy for her knees. (R. 99-100.) In March 2003, she had cysts removed from her abdomen. (R. 100-01.) She indicated that she had the ability to walk twelve blocks, sit for up to twenty minutes, stand for up to two hours, and lift objects no heavier than fifteen pounds (although she lifted items weighing twenty pounds at her current position). (R. 103-05.)

On March 2, 2004, Plaintiff filed a disability report indicating that several conditions impaired her ability to work, including thoracic and abdominal pressure, a mal-rotated right kidney, an enlarged torso, dizziness, nosebleeds, constipation, nausea, and mild strokes. (R. 76.) She indicated that she lost her position at Western Beef due to strokes. (Id. )

On May 1, 2006, Plaintiff appeared pro se and testified at a hearing before ALJ Crispino. (R. 146-66.) Plaintiff testified that she could not work because she suffered from an irregular heartbeat, as well as asthma, emphysema, obesity, bipolar disorder, and anxiety. (R. 154.) She last saw her treating physician in January 2006, but had not seen him since then due to her lack of medical insurance. (R. 155, 157.) She indicated that she experienced mild strokes and seizures every day. (R. 163-65.) She indicated that she had the ability to stand for half an hour, walk a block or two, and sit for an unlimited amount of time. (R. 159-60.) She could lift no more than a gallon of milk before experiencing pain. (R. 161.)

On July 10, 2009, Plaintiff appeared pro se and testified at a hearing before ALJ Solomon. (R. 566-93.) Plaintiff indicated that she began receiving SSI in December 2007, due to a stroke that occurred in October 2007. (R. 567, 572.) Prior to March 31, 2005, Plaintiff suffered from vertigo, seizures, and severe depression. (R. 574-75.) She took Prozac. (R. 576.) She also suffered from emphysema and chronic obstructive pulmonary disease ("COPD"), for which she used a nebulizer. (R. 571, 577.) She had the ability to shop and take care of her personal needs. (R. 574.) She walked daily for exercise and performed her household chores, although her chores took longer. (R. 578.) She indicated that, from March 31, 2005 to 2007, her COPD became worse. (R. 580.)

B. Medical Evidence

1. Medical Evidence from November 1, 2001 (Alleged Onset Date) to March 31, 2005 (Date Last Insured for DIB)

On November 15, 2002, Kyung Yoo, M.D., an internist at Staten Island Medical Group ("SIMG"), examined Plaintiff. (R. 345.) Dr. Yoo noted that Plaintiff's blood pressure was 140/80 and that Plaintiff weighed 182 pounds.[5] (Id. )

On December 4, 2002, Elsa Canton, M.D., a gynecologist at SIMG, examined Plaintiff. (R. 386.) Plaintiff complained of feeling movement in her abdomen. (Id. ) On December 9, 2002, Plaintiff underwent an abdominal ultrasound, which revealed an enlarged liver. (R. 43.) Additionally, Plaintiff underwent a pelvic sonogram, which revealed an anteverted fibroid uterus with multiple myomas, and a complex cystic lesion in the right adnexal area. (Id. )

In a report dated December 18, 2002, Plaintiff's hypercholesterolemia was described as controlled. (R. 366.)

On December 19, 2002, Dr. Canton ordered an abdominal CT-scan. (R. 310.) On January 13, 2003, Plaintiff underwent pelvic and abdominal CT-scans, which revealed a slightly mal-rotated kidney. (R. 59-60.) Her bladder and uterus were within normal limits. (R. 59.) In the right adnexa, there was an ovoid hypodensity, possibly representing a right ovarian cyst. (R. 59-60.) Plaintiff discussed the results of her CT-scans with Dr. Yoo on January 17, 2003. (R. 346.) Dr. Yoo noted that Plaintiff's blood pressure was 140/80 and that she weighed 190 pounds. (Id. )

On February 27, 2003, Eli Serur, M.D., a gynecological oncologist at SIMG, examined Plaintiff. (R. 321.) Plaintiff complained of chronic pelvic pain, but was in no acute distress. (Id. ) Dr. Serur diagnosed ...


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