SARAH NETBURN, Magistrate Judge.
Plaintiff Kim Ronnette Howe, appearing pro se, brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security (the "Commissioner") denying her disability benefits.
The following facts are taken from the administrative record. Howe was born on July 5, 1966. She completed at least two years of college, earning an associate's degree in either 1995 or 1996. From 1999 through June 2010, she worked as a secretary in a hospital, dealing with human immunodeficiency virus patients. At that job, she sat for about seven hours, stood and walked for about one hour and lifted less than ten pounds. She answered telephones and worked with a computer, making appointments, processing insurance forms, and taking care of patients. Howe alleges that she became disabled on June 3, 2010. She meets the disability insured status requirements of the Act through December, 2014.
In March, 2010, Howe experienced a sudden onset of chest pain. After an initial diagnosis of gastroesophageal reflux disease, she was hospitalized at Bellevue Hospital ("Bellevue") for "NSTEMI."
Upon discharge, Howe received an instruction sheet indicating that her principal diagnosis was "NSTEMI." The sheet advised Howe to avoid strenuous activity for two weeks and then increase her level of activity as tolerated. Home care was not required, but Howe was to follow a low fat, low sodium and low cholesterol diet. As instructed, on April 13, 2010, Howe followed—up at Bellevue, at which time her problem was listed as an acute myocardial infarction (i.e. a heart attack), and further testing was ordered.
On April 23, 2010, Howe underwent a cardiac work-up at Mobile Cardiovascular Systems, LLC. An ultrasound of Howe's carotid arteries revealed no significant stenosis. A further ultrasound of Howe's abdominal aorta was normal.
On May 4, 2010, Howe underwent a stress echocardiogram ("ECG") exercise test at Gramercy Cardiac Diagnostic Services, P.C. Her results again were considered normal. On May 25, 2010, Dr. Kavet examined Howe, noting that she had no complaints of shortness of breath or chest pain or other atypical complaints. He assessed asymptomatic CAD and anemia.
On June 3, 2010, Howe was seen at Boro Medical. Howe's blood pressure was 126/74. Dr. Kavet assessed asymptomatic CAD and a history of anemia. Howe remained on cardiac medication and also reported that she was taking fish oil.
On June 15, 2010, Howe again was seen at Boro Medical. She reported to Dr. Kavet that she had passed out on June 3, 2010. Her blood pressure was 138/88. Upon examination, Howe's heart sounds one and two could be heard. Her lungs also were clear. Dr. Kavet assessed a history of CAD, pre-syncopal episodes and anemia.
That same day, Dr. Kavet completed private disability insurance forms for Howe. He listed Howe's symptoms as including vertigo, chest pain, anxiety, weakness, tiredness, fatigue, intermittent pains, and thoughts of impending doom, and explained that Howe's treatment consisted of medical and cardiology monitoring and medication. He wrote that, as of June 3, 2010, Howe was unable to work, and that she would be able to return to work by approximately December 3, 2010. He noted, further, that Howe did not require direct personal assistance to perform her daily living activities.
On June 22, 2010, Howe returned to Boro Medical, and again was examined by Dr. Kavet. Again, Howe denied shortness of breath or chest pain. She had a blood pressure of 139/80. Dr. Kavet completed an additional insurance form, writing that from June 3, 2010, through December 3, 2010, Howe was restricted to sedentary work, which was defined as lifting or carrying up to 10 pounds occasionally, sitting over 50 percent of the time, and standing or walking occasionally. Dr. Kavet wrote, further, that Howe could not sit or stand for long periods due to swelling feet, cramps, intermittent chest pain, shortness of breath, weakness and fatigue.
In December 2010, Howe sought psychiatric care at Harlem Hospital Center. On December 7, 2010, psychiatrist Dr. Ebenezer Amofa-Boachie conducted an initial interview. Howe reported that she was depressed because she felt overwhelmed by the changes in her life. She stated that she slept poorly. She denied that she was easily distracted or had any history of panic attacks. She had reduced her smoking to five cigarettes a day, but said that she did not expect to quit fully.
Howe was given a mental status examination, which revealed that she had adequate hygiene and grooming and dressed appropriately. She made good eye contact, was cooperative and related well, had a good mood and an anxious affect, had clear and coherent speech, and a logical and fairly goal-directed thought process, was alert and oriented, and exhibited fair insight and judgment and good impulse control. Dr. Amofa-Boachie found no evidence of psychomotor agitation or retardation, and Howe denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities.
Dr. Amofa-Boachie diagnosed Howe as having depressive disorder not otherwise specified ("NOS") on Axis I; deferred diagnosis on Axis II; status post myocardial infarction, hypertension and possible mild obesity on Axis III; unemployment — with Workers' Compensation benefits expected to expire on December 8, 2010 — on Axis IV; and a GAF of 60 on Axis V.
On December 22, 2010, Howe returned to Dr. Amofa-Boachie for a mental health followup. Howe was found to be stable, but she had not filled her prescriptions from the previous examination because of insurance issues. She denied experiencing any new malady, but reported feeling depressed or sad throughout the previous two weeks, variable loss of interest in her usual activities, and poor sleep. She denied feeling any fatigue, inability to concentrate or loss of energy. Dr. Amofa-Boachie's mental status examination showed adequate hygiene and grooming, appropriate dress, and good eye contact. Howe was cooperative and related well, and her mood was good but her affect anxious. Dr. Amofa-Boachie found no psychomotor agitation or retardation. Howe's speech remained clear and coherent. She had a logical and fairly goaldirected thought process. She was conscious, alert and oriented, and had fair insight and judgment, and good impulse control. She denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities. Her GAF remained at 60. Accordingly, Dr. Amofa-Boachie prescribed Citalopram and Trazodone.
On August 4, 2010, Dr. William Lathan examined Howe as a consultative physician. At the time, Howe did not complain of chest pain or shortness of breath. She was taking Plavix, Lisinopril, aspirin, Lipitor, and Metoprolol. She denied that she smoked. She could cook and perform all activities involving personal care, but her daughter assisted with cleaning, laundry and shopping.
Dr. Lathan examined Howe, finding that her blood pressure was 110/70. He found that she appeared in no acute distress, had a normal gait and stance, could walk on heels and toes without difficulty and could fully squat. She did not use any assistive device, did not need help when changing for the examination or when mounting or descending from the examination table, and was able to rise from a chair without difficulty. Her lungs were clear to percussion and auscultation, with no significant chest wall abnormality. Her heart rhythm was regular, with no audible murmur, gallop, or rub. And her musculoskeletal examination revealed no abnormalities. Accordingly, Dr. Lathan diagnosed a history of heart attack with a stable prognosis and stated that Howe was severely restricted from strenuous exertion.
On February 3, 2011, Howe saw Dr. Alisa Koval, an occupational and environmental medicine specialist, at Mount Sinai School of Medicine. Howe complained of anxiety, depression, and feeling overwhelmed by the management of her coronary artery disease. She reported easily provocable exertional angina and shortness of breath, which was brought on by cleaning, walking, excitement and sexual activity. At this time, she still smoked five cigarettes a day. She described herself as a homebody who enjoyed cooking, reading, watching television, and using the computer, but was limited in these activities due to blurred vision of late. She denied experiencing numbness, tingling, memory loss, or suicidal or homicidal ideation.
Dr. Koval examined Howe, finding that her blood pressure was 120/80. She was alert, fully oriented, and in no acute distress. Her heart rate and rhythm were regular, her lungs were clear, she had five out of five bilateral muscle strength, and her gait was within normal limits. Dr. Koval opined that Howe could lift up to twenty pounds and carry up to ten pounds occasionally, noting the March 2010 cardiac catheterization results in support of her assessment. She further opined that in an eight hour workday, Howe could sit for seven hours, one hour at a time, stand for two hours, one hour at a time, and walk for one hour, fifteen to twenty minutes at a time. In support of this assessment, Dr. Koval reported that Howe became short of breath and experienced chest pain upon strenuous exertion, and so could perform only mild activity. She also stated that Howe could do "no work" until she completed cardiac rehabilitation.
Expanding on her evaluation, Dr. Koval indicated that Howe frequently could reach, handle, finger, feel, push, pull, and operate foot controls, and occasionally could climb stairs and ramps, but never could climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. She found that Howe had no impairments affecting her hearing or vision, but could not tolerate exposure to unprotected heights, moving mechanical parts, humidity, wetness, pulmonary irritants, extreme temperatures, or vibrations, and could not operate a motor vehicle. In addition, Howe could not walk a block at a reasonable pace on rough or uneven surfaces, use standard public transportation, climb a few steps at a reasonable pace with use of a single hand rail, or perform activities like shopping, but could travel without a companion, ambulate without assistive devices, prepare a simple meal and feed herself, care for her personal hygiene, and sort, handle, and use papers and files. In support of this assessment, Dr. Koval referred to Howe's reported angina most days of the week. She also opined that, upon return to work, Howe should avoid high stress high pressure work environments.
Dr. Koval continued to see Howe on an approximately monthly basis through May 2011. On March 3, 2011, Howe reported anxiety, depression, and feeling overwhelmed by the management of her coronary artery disease. She reported continued shortness of breath after exertion, but no episodes of chest pain since her last appointment. She described occasional blurred vision when reading or watching television, especially in the left eye, but denied numbness, tingling, memory loss, or suicidal or homicidal ideation. Dr. Koval examined Howe, finding that her blood pressure was 138/85. He found that she was was alert, fully oriented, and in no acute distress, her heart had a regular rate and rhythm and her lungs were clear, she had five out of five bilateral strength, and her gait was within normal limits.
On April 7, 2011, and May 12, 2011, Howe reported shortness of breath when walking one or two blocks, walking briskly, performing heavy cleaning activities like mopping or cleaning the bathtub, and climbing a flight of stairs. On April 7, she reported that she was able to perform her daily living activities so long as she did them slowly — yet occasionally she still felt lightheaded. She reported using Nitroglycerin about once per month, in both April and May. She continued to smoke.
At these visits, Dr. Koval again examined Howe, finding that her blood pressure was 125/80 in April and 150/90 in May. In April, Dr. Koval found Howe to be pleasant, with a depressed affect and no acute distress. In May, Howe appeared anxious, but again in no acute distress. On both occasions, Dr. Koval's examination revealed that Howe had a regular heart rate and rhythm, and that her lungs were clear. In April, she had five out of five strength and a normal gait. She was unable to complete a full six seconds of expiration on her lung function testing, but her overall results were unremarkable. Dr. Koval noted that it was worrisome that Howe continued to smoke cigarettes, and observed that her symptoms appeared disproportionate to the extent of her ischemic heart disease.
On April 28, 2011, Dr. Koval wrote a letter "To whom it may concern" stating that, due to Howe's medical condition, she had difficulty using public transportation and needed continued use of Access-A-Ride to attend her various medical appointments and tests.
Howe continued to see Dr. Amofa-Boachie for her complaints of depression and anxiety once or twice a month through June 2011 (except in April, when Howe was not seen). In February, Howe reported poor sleep, but by March, she was sleeping well. Through June, Howe denied fatigue, inability to concentrate, or any loss of energy.
Throughout this period, Dr. Amofa-Boachie's mental status examinations established that Howe had adequate hygiene and grooming, and appropriate dress. She made good eye contact, was cooperative and related well, had a good mood with a congruent affect, spoke clearly, coherently and logically, with a fairly goal-directed thought process, and was alert and oriented and had fair insight and judgment and good impulse control. Howe denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities. Dr. Amofa-Boachie found no sign of psychomotor agitation or retardation. Howe's GAF remained 60. Dr. Amofa-Boachie proscribed Wellbutrin and Trazodone.
On June 29, 2011, Dr. Amofa-Boachie wrote a letter "To whom it may concern" confirming that Howe was a patient of Harlem Hospital Center, but he was unable to provide any statement regarding her functional stability because her heart condition still was being evaluated.
Between June 29, 2011, and September 19, 2011, Howe did not keep any psychiatric appointments. But on the advice of her attorney, Howe returned to Harlem Hospital Center on September 19 and was seen by Dr. Susan Uyanna. Howe reported feeling lonely because her daughter had started college, but also acknowledged that her son kept her company. She complained of mood swings and crying for no reason but denied hearing voices. Dr. Uyanna's mental status examination showed adequate hygiene and grooming, and neat and appropriate dress. Howe made poor eye contact but was cooperative and related well, had a depressed mood but an affect that was appropriate. Dr. Uyanna found no psychomotor agitation or retardation. Howe's speech was clear and coherent, her thought process logical and fairly goal-directed, and she had fair judgment and insight, and good impulse control. She denied paranoia, delusions, suicidal or homicidal ideation, or any perceptual abnormalities. Dr. Uyanna diagnosed major recurrent depressive disorder and bipolar disorder, and assessed Howe's GAF as 55. Dr. Uyanna adjusted Howe's medications accordingly.
On September 28, 2011, Dr. Amofa-Boachie provided Howe with a referral to an eye clinic for left eye blindness, noting the lack of treatment for the previous six years since the alleged onset of the blindness. As the All later noted, the record contained few complaints of lost vision by Howe or other evidence of blindness.
On June 9, 2010, and June 18, 2010, Howe submitted applications for disability benefits. On August 10, 2010, the Social Security Administration (the "SSA") denied these applications, and on December 15, 2010, Howe appealed, requesting an All hearing.
On December 13, 2011, Howe appeared with counsel before All Paul A. Heyman. Howe described feelings of chest pain, dizziness, weakness, breathing problems, blurred vision and fatigue. She said that her chest pain occurred once a month and that she treated it with Nitroglycerin and Isosorbide. When she increased her activity her chest pain also increased.
Regarding her psychiatric symptoms, Howe testified that she had been treated for bipolar disorder and depression for the past year. She took Wellbutrin, Trazodone, Ambien, and Zoloft, which helped with those issues, but also caused her to feel dizzy and weak. She said that she did not sleep well because of nightmares and hallucinations that involved seeing or hearing persons of unidentified gender in her house.
On January 5, 2012, the All issued a decision finding that Howe was not disabled, after evaluating her claims pursuant to the sequential evaluation process. At step one, the ALJ determined that Howe had not engaged in substantial gainful activity. At step two, the ALJ found that Howe's conditions of status post myocardial infarction and cardiac derangement and affective disorder were severe. At step three, the All found that Howe's impairments did not meet or equal any of the medical criteria contained in the Commissioner's Listings, focusing especially on the Listings in Section 4.02 for chronic heart failure, and Section 12.04 for affective disorders. The All then determined that Howe had the residual functional capacity ("RFC") to perform sedentary work, but was limited to simple, routine and repetitive tasks in a low stress environment because of her mental impairment. At step four, the All found that Howe could not perform her past relevant work. Finally, at step five the ALJ determined that Howe could perform other work that existed in significant numbers in the national economy. On April 9, 2012, the ALF's decision became the final decision of the Commissioner when the Appeals Council denied Howe's request for review.
On September 13, 2012, Howe filed this pro se action. On September 24, 2012, the Honorable J. Paul Oetken referred Howe's case to a magistrate judge for a report and recommendation. On September 25, 2012, that referral was reassigned to my docket. On March 27, 2013, the Commissioner filed a motion for judgment on the pleadings with supporting memorandum of law. Howe did not oppose that motion. On May 30, 2013, I extended Howe's time to respond by two additional weeks. To date, Howe has not opposed the Commissioner's motion and thus it is fully briefed.
A party may move for judgment on the pleadings "[a]fter the pleadings are closed — but early enough not to delay trial." Fed. R. Civ. P. 12(c);
When, as here, the Court is presented with an unopposed motion, it may not find for the moving party without reviewing the record and determining whether there is sufficient basis for granting the motion.
Pro se litigants "are entitled to a liberal construction of their pleadings," and therefore their complaints "should be read to raise the strongest arguments that they suggest."
A claimant is disabled under the Act if she demonstrates an "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 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). A determinable physical or mental impairment is defined as one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). A claimant will be determined to be disabled only if the impairment(s) are "of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
Under the authority of the Act, the Social Security Administration has established a fivestep sequential evaluation process when making disability determinations.
The parties do not contest the first four steps of the sequential evaluation of disability. Reading her complaint liberally, Howe appears to test the ALF's conclusion that she was not disabled by challenging the ALF's determinations of her RFC and, at step five, that significant employment existed for her in the national economy. These arguments fail to persuade because the ALF's findings were supported by substantial evidence based on a correct application of relevant law.
Applying the sequential evaluation of disability, at step one the All found that Howe had not engaged in substantial gainful activity since her June 3, 2010, alleged onset of disability. The parties do not contest this determination, and it is consistent with Howe's credible testimony that she had no meaningful work since that date.
At step two, the All found that Howe's status post myocardial infraction and cardiac derangement and affective disorder were severe impairments. An impairment is severe if it significantly limits the claimant's physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c). Substantial evidence supports the ALF's determination — including Drs. Kavet's, Lathan's and Koval's findings of significant work limitations, and Howe's own testimony regarding her symptoms.
In contrast, the ALJ found that Howe's alleged left eye blindness was not a severe impairment because there was virtually no evidence in the medical record to support the allegation. The All attached special significant to Dr. Amofa-Boachie's statement that Howe had not seen an ophthalmologist for six years.
The Court's examination of the record shows that Howe complained of blurred vision on several occasions, testified at the hearing that she actually was blind in her left eye as a result of an instance of domestic violence, and that her psychiatrist Dr. Amofa-Boachie provided her with a referral to an eye clinic for left eye blindness. But this subjective evidence is contrasted with Drs. Koval's and Lathan's findings that Howe had no visual limitations, and the general lack of objective medical evidence in the record to support Howe's claim.
The Court of Appeals for the Second Circuit has cautioned that the step two analysis should not do more than "screen out de minimis claims."
Here, Howe's assertion of blindness lacks support in the medical record.
At step three, the ALJ determined that Howe's severe impairments did not meet the criteria for aper se disability as set forth in the applicable Social Security Regulations.
The All found that Howe's heart impairment did not meet or equal the criteria in Listing 4.02 because Howe did not present sufficient evidence that she experienced systolic or diastolic failure resulting in one of the symptoms listed in Listing 4.02(B). This finding is uncontested, applies the correct legal standard found in Appendix 1, and is supported by substantial evidence.
Alternatively, the All found that Howe's mental impairment did not meet or equal the criteria in Listing 12.04 because Howe did not satisfy the necessary "paragraph B" or "paragraph C" criteria. Paragraph B requires that the mental impairment result in at least two of the following:
20 C.F.R. Pt. 404, Subpt. P, App'x 1 at Listing 12.04(B). A marked limitation means more than moderate but less than extreme.
Applying this standard, the All first found that Howe had a moderate restriction of her activities of daily living: she was dependent on her son to assist her with basic day-to-day activities including shopping and doing laundry. Howe's limitation was not marked, however, because, as Dr. Koval stated, Howe was able to groom, bath, dress, and cook independently. Second, the All found that Howe had moderate difficulties with social functioning. Her interactions appeared somewhat limited but, as her psychiatric treatment notes indicated, Howe had a good relationship with her family that provided a strong support system. Third, with regard to concentration, persistence, or pace, again the All found that Howe had moderate difficulties: her treatment notes indicated mood swings that reasonably could be found to effect attention and concentration. Nevertheless, most of her mental status examinations indicated fair insight, judgment and impulse control, a logical goal-directed thought process, and a GAF score ranging between 55 and 60. Fourth, Howe had experienced no episodes of decompensation of any extended duration. Thus, because the All found that Howe's mental impairment did not cause at least two marked limitations or one marked limitation and repeated episodes of decompensation, he also found that the "paragraph B" criteria were unsatisfied. This finding is uncontested, applies the correct legal standard found in Appendix 1, and is supported by substantial evidence.
Continuing with the analysis, the All also found that paragraph C was not met. Howe presented insufficient evidence that she had a medically documented history of a chronic affective disorder, of at least two years' duration, causing more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
20 C.F.R. Pt. 404, Subpt. P, App'x 1 at Listing 12.04(C). Again, this finding is uncontested, applies the correct legal standard found in Appendix 1, and is supported by substantial evidence.
Before proceeding to step four, the All next determined that Howe had the residual functional capacity to perform sedentary work — as defined in 20 C.F.R. 404.1567(a), 416.967(a) — but that her mental impairments limited Howe to performing simple, routine and repetitive tasks in a low stress environment. This determination is supported by substantial evidence.
As support for his determination, the All cited the medical opinions of Howe's treating physician, Dr. Koval, and consulting physician, Dr. Lathan. As discussed, Dr. Koval opined that Howe could lift up to 20 pounds occasionally, carry up to 10 pounds occasionally, and could sit for seven hours, one hour at a time, stand two hours, for one hour at a time, walk for one hour, 15 or 20 minutes at a time, and ambulate without using an assistive device. Dr. Lathan's examination of Howe revealed, similarly, that she had a normal gait and could walk on her heels and toes, all without the need of an assistive device.
Supporting the ALF's determination, Dr. Koval also found that Howe had no real limitations in the use of her hands, she frequently could handle, finger, feel, push and pull bilaterally, and could carry out basic office work like handling and sorting paper files. Dr. Lathan similarly found that Howe had a full range of motion in her cervical and lumbar spine, shoulders, elbows, forearms, wrists, hips, knees, and ankles, bilaterally, as well as full strength in the upper and lower extremities. These assessments further supported Howe's ability to perform sedentary work, which generally requires an ability to see small objects and ordinary hazards, and have good use of both hands and fingers.
The All incorporated Dr. Koval's limitations into his determination. When Dr. Koval opined that Howe was to avoid high-stress and high-pressure work environments, the ALJ accordingly found that Howe was limited to low-stress work environments. Furthermore, where the All disagreed with Howe's doctors, his determinations were reasonable and supported by substantial evidence. For example, Dr. Koval stated that Howe could perform no "stooping," and most sedentary work requires occasional stooping.
The ALJ arguably disregarded Drs. Kavet's and Koval's assessments that Howe could not work until she completed cardiac rehabilitation. But an ALJ is not required to accept or reject a medical opinion in its entirety.
Moreover, it is not clear that the doctors' statements actually contradicted the ALF s findings. Dr. Kavet's statement was made on a June 15, 2010 "continuing disability claim form," where he first was asked "Is patient presently able to perform his/her job functions?" (Certified Administrative Record ("R.") at 190.) As a subquestion he then was asked, "What, if any, restrictions or limitations apply to this patient?" and answered "cannot work at present." (
Similarly, in the same paragraph where Dr. Koval stated that Howe could perform "
Furthermore, the ALF's determination of Howe's RFC was supported by the overall medical record, which consistently established negative diagnostic findings. As the All noted, Howe's test results did not show disability: an April 15, 2010 EKG test revealed normal sinus rhythm; an April 23, 2010 ultrasound of Howe's heart failed to show evidence of significant stenosis in either the right or left carotid system; and a May 4, 2010 stress ECG test was normal.
Turning to evidence of psychiatric impairment, the All found that Howe's condition did not preclude low stress, simple work. The All examined Howe's Harlem Hospital records, which reflected essentially benign mental status findings, and a GAF of 55 or 60, which indicated only moderate impairment. The All considered the statement by Dr. Uyanna that Howe presented with a depressed mood and that her psychiatric history indicated that she suffered from major depressive disorder and bi-polar disorder. But he found that, based on the evidence presented, such psychiatric issues would not preclude sedentary work.
In determining Howe's RFC, the All also considered Howe's subjective allegations of pain and other symptoms. According to Social Security Administration regulations, an individual's subjective complaints alone should not be conclusive evidence of disability. Rather, subjective complaints must be supported by medical signs or other findings that show the existence of a medical condition that reasonably could be expected to produce the symptoms alleged and that, considered with all the evidence, demonstrate disability. 20 C.F.R. §§ 404.1529(b), 416.929(b). If a claimant alleges symptoms of greater severity than established by the objective medical findings, the All will consider other evidence, including factors such as the claimant's daily activities, the nature, extent, and duration of her symptoms, precipitating and aggravating factors, and the treatment provided. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
A credibility finding by an ALJ is entitled to deference by the reviewing Court and will be set aside only if it is not set forth "with sufficient specificity to enable [a reviewing court] to decide whether [it] is supported by substantial evidence."
Here, the ALJ found that the totality of the objective findings did not corroborate Howe's subjective symptoms to the extent that she alleged. Accordingly, the All considered nonmedical factors and found that those other factors provided reasons to discount Howe's allegations.
In rejecting Howe's statements about her physical symptoms, the All noted that her allegations of physical disability often conflicted with her described activity level. For instance, Howe stated that she was able to perform tasks like cooking, bathing, dressing, grooming, playing video games, watching television, reading and using her computer. The medical record, moreover, provided numerous examples where Howe denied feeling fatigued, unable to concentrate, or a loss of energy. In addition, Howe's conservative treatment with checkups and medication was at odds with her characterization of the March 2010 heart attack.
In rejecting Howe's allegations of eye problems, the All observed that Howe had not seen an ophthalmologist in the previous six years (or at any time during the alleged period of disability). As previously discussed, Howe's statements about her eye were contrasted with a total lack of medical support.
In rejecting Howe's more severe allegations of mental disability, the All found that, although Howe testified that she experienced audio and visual hallucinations involving people being in her house, the medical record was replete with instances when Howe denied experiencing paranoia, delusions, or any perceptual abnormalities.
Accordingly, substantial evidence supported the ALF's credibility determination.
After determining Howe's RFC, the All found that Howe could not perform her past relevant work. Specifically, the All noted that Howe had past relevant work as a secretary and, although this job was performed at a sedentary exertional level, "pursuant to the Dictionary of Occupational Titles, it has [a Specific Vocational Preparation rating] of `8' and [was] therefore precluded by [Howe's RFC], which permits only unskilled work." (R. at 18.). The ALF's determination is uncontested; moreover, it is supported by substantial evidence.
Having found that Howe could not perform her past relevant work, the burden of proof shifted to the Commissioner to establish that suitable work in significant numbers existed, that Howe could perform. At step five, the All found that Howe retained the capacity to work at the sedentary level and could perform unskilled work, and thus was not disabled. In making this determination, the All considered Howe's RFC, age, education and work experience in conjunction with the Medical Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. 2, App'x 2. Specifically, the All found that Howe met the criteria of Medical Vocational Rule 201.28, which directs a finding of not disabled for a younger individual aged 18-44, who was a high school graduate, with non-transferable skills from skilled or semiskilled past work, and is capable of performing sedentary work.
"In the ordinary case, the Commissioner meets his burden at the fifth step by resorting to the applicable [M]edical [V]ocational guidelines."
The Commissioner met her burden to establish that suitable work in significant numbers existed that Howe could perform. The All used the Grids as a guiding "framework," finding that Howe's "additional limitations [had] little or no effect on the occupational base of unskilled sedentary work." (R. at 19 (citing
In arriving at his conclusion, the All considered the opinions of treating and consulting physicians and psychologists, along with Howe's own testimony, medical record, and education. The All applied the correct legal standard. As shown through the Court's analysis of the ALF's sequential evaluation, substantial evidence also supports the ALF's finding.
For the foregoing reasons, I recommend that the Commissioner's motion for judgment on the pleadings be GRANTED in its entirety. I further recommend that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from its order would not be taken in good faith and, therefore, that in forma pauperis status be denied for the purpose of an appeal.
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
