Blair v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------X

KAREN BLAIR,

Plaintiff,

MEMORANDUM AND ORDER

v.

18-cv-4445(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

----------------------------------X

MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Karen Blair

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant”), which found that plaintiff was

not eligible for disability insurance benefits under Title II of

the Social Security Act (“the Act”), on the basis that plaintiff

is not disabled within the meaning of the Act. Plaintiff

alleges that she is disabled under the Act and is thus entitled

to receive the aforementioned benefits.

Presently before the court is defendant’s motion for

judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c) (“Rule 12(c)”) (ECF No. 23, Memorandum of Law in

Support of Defendant’s Motion for Judgment on the Pleadings

(“Def. Mem.”) and plaintiff’s affirmation in opposition to

defendant’s motion. (ECF No. 24, Plaintiff’s

Affidavit/Affirmation in Opposition to Defendant’s Motion (“Pl.

Aff.”).) For the reasons stated below, defendant’s motion is

GRANTED.

BACKGROUND

I. Procedural History

On June 16, 2016, plaintiff Karen Blair filed an

application for Title II disability insurance benefits. (Id.)

The date of alleged onset of plaintiff’s disability is May 1,

2014, and plaintiff claims that she was disabled as a result of

an eye condition, foot condition, back condition, and arthritis

in the hand. (ECF No. 25, Administrative Transcript (“Tr.”)

132.) On August 5, 2016, plaintiff’s claim was denied. (Tr.

61-66.) On August 12, 2016, plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”). (see Tr. 67-68.)

On November 9, 2016, plaintiff appeared and testified before ALJ

Martha Reeves. (ECF No. 1, Complaint.) Although informed of

the right to representation, plaintiff chose to appear and

testify without the assistance of an attorney. (Tr. 10, 100.)

By a decision dated December 22, 2017, the ALJ determined that

plaintiff was not disabled within the meaning of the Act and was

thereby not entitled to benefits. (Tr. 7-21.)

Plaintiff appealed the ALJ’s decision to the Appeals

Council and, on June 5, 2018, the Appeals Council denied review

of the decision, thereby rendering the ALJ decision the final

decision in the case. (Tr. 1-6.) On August 6, 2018, plaintiff,

proceeding pro se, commenced the instant action in federal court

and filed a motion for leave to proceed in forma pauperis. (ECF

Nos. 1 and 2.) On August 7, 2018, the court granted plaintiff’s

motion to proceed in forma pauperis. (ECF No. 4, Order.) On

December 28, 2018, defendant filed a motion to stay proceedings

due to lapse in appropriations and on that same day the court

granted defendant’s motion. (ECF No. 9, Letter Motion to Stay

Proceedings; Dkt. Order dated 12/28/2018.) On January 29, 2019,

defendant filed a letter advising the court of the end of lapse

in appropriations and sought approval of a proposed amended

briefing schedule. (ECF No. 11, Letter Advising Court of End of

Lapse of Appropriations.) On that same day, the court granted

defendant’s motion and lifted the stay. (Dkt. Order dated

1/29/2019.)

On June 17, 2019, plaintiff filed a motion for an

extension of time to file an order to try to obtain legal

representation. (ECF No. 14, Letter Motion for Extension of

time to File.) The court directed defendant to provide its view

on plaintiff’s motion for an extension of time by July 1, 2019.

(Dkt. Order dated 6/27/2019.) On July 2, 2019, defendant filed

its letter in response to the court’s order, and on that same

day, the court extended plaintiff’s deadline to file her

opposition until September 2, 2019. (ECF No. 15, Letter in

Response to Court’s June 27, 2019 Order; Dkt. Order dated

7/2/2019.)

On September 23, 2019, defendant filed a request for

leave to file Commissioner’s motion for judgment on the

pleadings. (ECF No. 18, Letter Motion for Leave to File

Document.) On September 30, 2019, plaintiff filed a motion for

an extension of time to file an opposition to defendant’s motion

in order to obtain free legal counsel to assist in the

completion of her brief. (ECF No. 19, Letter Motion for

Extension of Time to File.) On October 8, 2019, the court

denied defendant’s motion for leave to file and granted

plaintiff an extension of time, until November 11, 2019, to file

her opposition. (Dkt. Order dated 10/8/2019.)

On December 4, 2019, defendant filed a notice of

motion and a memorandum of law in support of its motion for

judgment on the pleadings, (ECF Nos. 22 and 23, Notice of Motion

and Def. Mem.), and plaintiff filed an affidavit and affirmation

in opposition to defendant’s motion (ECF No. 24, Pl. Aff.). In

plaintiff’s affirmation, plaintiff asserts that defendant’s

motion should be denied because “according to [the] letter from

Social Security dated April 11, 2015, [she] was denied benefit

because they claimed that [she[ did not furnish documents listed

[.]”1 (Id.) However, plaintiff asserts that she resubmitted

those documents to the Social Security Office on July 26, 2018.

(Id.) Although plaintiff’s factual allegations were submitted

in an affirmation rather than a brief, courts in this circuit

have treated affirmations in opposition as a motion for judgment

on the pleadings.2

II. Medical and Non-Medical Evidence

On December 4, 2019, defendant submitted a statement

of Joint Stipulated Facts, which was not signed by plaintiff.

(ECF No. 23-3, Joint Stipulated Facts.) Nevertheless, because

the Joint Stipulated Facts are generally supported by evidence

in the administrative record, the court has reviewed the record

and hereby incorporates the facts contained therein.

a. Relevant Medical Evidence

On July 2, 2014, plaintiff received a general physical

examination by Harold Kerolle, M.D., at the Kings County

Hospital Center emergency room. (Tr. 184.) Plaintiff

complained of low back pain, ear pain, and a headache for the

1 Plaintiff presently appeals from an unfavorable decision regarding her

application for disability and disability insurance benefits, submitted on

June 16, 2016. (Tr. 10.) The court notes that it is unclear whether the

SSA’s letter dated April 11, 2015, which plaintiff attached to her

Affirmation, relates to plaintiff’s June 2016 application. (ECF No. 24, Pl.

Aff. at 1, 5.)

2 See, e.g., Armstrong v. Colvin, No. 12-CV-8126 VB, 2013 WL 6246491, at *1

(S.D.N.Y. Dec. 3, 2013); Verdaguer v. Colvin, No. 12-CV-6858 (VB), 2013 WL

6426931, at *2 (S.D.N.Y. Dec. 9, 2013). Cf. Rose, 202 F. Supp. 3d 231

(E.D.N.Y. 2016) (considering affidavit in the context of a motion for

judgment on the pleadings).

past day. (Id.) Dr. Kerolle noted that plaintiff’s

constitutional, neurological, respiratory, cardiovascular, and

gastrointestinal systems were within normal limits, and

plaintiff was in “no apparent distress.” (Id.) Dr. Kerolle

diagnosed plaintiff with otalgia (ear pain) and headache and

prescribed an analgesic. (Id.)

On April 29, 2015, plaintiff was evaluated by Anuja

Reddy, M.D., to determine if she was precluded from working.

(Tr. 190.) Dr. Reddy completed a biopsychosocial summary report

and determined that plaintiff’s back pain, left leg and left

foot pain, and plaintiff’s hyperlipidemia and anemia did not

preclude employment. (Id.) Specifically, Dr. Reddy noted that

plaintiff could work light jobs with flexible hours. (Id.)

On May 19 and June 13, 2015, plaintiff went to the

Lincoln Medical and Mental Health Center emergency room

complaining of pain in her foot. (Tr. 187-88.) On both visits,

plaintiff was examined and discharged with instructions to

follow up with her primary care doctor or return to the

emergency room if the pain worsened. (Id.)

On July 23, 2015, plaintiff went to the Kings County

emergency room complaining of pain in her left foot. (Tr. 185.)

Plaintiff was examined and found to have a stable gait, full

range of motion in all extremities and a non-tender cyst on her

foot. (Id.) Plaintiff was diagnosed with a ganglionic cyst and

was advised to see a podiatrist; an examination of plaintiff’s

systems revealed otherwise normal findings. (Id.)

On July 27, 2015, plaintiff was treated by Tanya

Jackson-Soufiane, D.P.M., at the Kings County Podiatry Clinic

for her left foot complaints. (Tr. 169.) Plaintiff stated that

the pain had been present since December 2014 and it worsens

when she walks or wears shoes that press on a raised bump on her

foot. (Id.) Dr. Jackson-Soufiane ordered x-rays of the left

foot, which displayed intact structures, preserved joint spaces,

heel spurs, and mild soft tissue swelling over the mid-foot.

(Tr. 167, 172.) Dr. Jackson-Soufiane instructed plaintiff to

take over-the-counter nonsteroidal anti-inflammatory drugs

(NSAIDS) and rest her foot as needed. (Tr. 169.)

On September 29, 2015, plaintiff returned to Dr.

Jackson-Soufiane for a follow-up visit. (Tr. 167.) Plaintiff

stated that her foot pain “comes and goes.” (Id.) Dr. Jackson-

Soufiane found that plaintiff had no pain on palpation over the

mid-foot, and no edema or erythema. (Id.) The x-rays showed

degenerative joint disease of the mid-foot. (Id.) Plaintiff

was advised to follow up in three months. (Id.)

On July 29, 2016, at the request of the defendant,

plaintiff underwent an internal medicine examination by Vinod

Thukral, M.D. (Tr. 199-202.) Plaintiff stated that she had a

history of back pain since an injury in 2001, bilateral foot

pain since 2010, anemia since October 2014, and decreased visual

acuity since 2008. (Tr. 199.) Additionally, plaintiff stated

that despite these conditions, she was still able to work as a

real estate agent and manage property that she owned 24 hours a

day, seven days per week. (Id.) Dr. Thukral noted “[s]he does

all these activities without any limitations.” (Id.) Dr.

Thukral examined plaintiff and observed that she was in no acute

distress, had a normal gait and stance, and could walk on her

heels and toes without difficulty. (Tr. 200.) Plaintiff did

not need help changing for the examination or getting on and off

the examination table; she was able to rise from the chair but

complained of pain in the lower back and both feet. (Id.)

Plaintiff declined to squat due to pain. (Id.) She had full

range of motion of the lumbar spine, shoulders, elbows,

forearms, wrists, hips, knees, ankles, and feet. (Tr. 201.)

Dr. Thukral opined that plaintiff had “no limitations for

sitting, standing, bending, pulling, pushing, lifting, carrying,

or any other such related activities.” (Tr. 202.)

On September 19, 2016, plaintiff was treated by Harold

Kerolle, M.D., at the Kings County emergency room for right-

sided sciatica and bilateral foot pain. (Tr. 252.) She was

given an analgesic and muscle relaxant. (Id.) She was

discharged that same day and was instructed to follow up in the

spine clinic. (Id.)

On October 29, 2016, plaintiff was treated by Joseph

Kozhimala, M.D., at the Kings County emergency room for

complaints of right-sided sciatica. (Tr. 253.) She was

discharged that same day and was instructed to apply heating

pads and use pillows for propping while she sleeps. (Id.)

On November 28, 2016, plaintiff again was seen by Dr.

Kozhimala at the Kings County emergency room for complaints of

damage to her teeth. (Tr. 254.) She was discharged that same

day and was instructed to follow up in the dental clinic. (Id.)

On December 28, 2016, plaintiff was seen by Emilia

Rebello, M.D., at the Kings County emergency room for complaints

of tooth pain. (Tr. 255.) Dr. Rebello noted that during the

last visit, plaintiff was told that she would need a tooth

extraction, but she never had it done. (Id.) Dr. Rebello

examined plaintiff and noted that her right premolars had

disappeared and only the roots were visualized. (Id.) Dr.

Rebello instructed plaintiff to apply triamcinolone twice a day

and to follow up in the dental clinic. (Id.)

On March 28, 2017, plaintiff again was seen by Dr.

Kerolle at the Kings County emergency room for complaints of

back pain for that past week. (Tr. 257, 263.) Plaintiff

requested x-rays of her lower back and legs, but Dr. Kerolle

explained that x-rays were not indicated. (Tr. 263.) Plaintiff

“became upset, refusing to be examined and requesting to see

another Doctor; finally she asked to be given her discharge

paper.” (Id.)

On April 4, 2017, plaintiff was treated by Marcel

Bayol, M.D., a physical medicine and rehabilitation specialist,

at Kings County Hospital Center. (Tr. 236-37.) Plaintiff

stated that she had pain in her lower back that radiated down

her right leg, and the pain was the worst when getting out of

bed but alleviated by walking. (Tr. 236.) While examining

plaintiff, Dr. Bayol noted that plaintiff had an antalgic gait

and reduced range of motion of the lumbar spine. (Tr. 237.)

Dr. Bayol also noted that plaintiff had no tenderness to

palpation, negative straight leg raising, full motor strength,

and intact sensation. (Id.) Dr. Bayol diagnosed plaintiff with

lumbago and recommended a course of physical therapy. (Id.) On

that same day, Dr. Bayol completed a form indicating that

plaintiff was temporarily unemployable until she completed her

physical therapy. (Id.) On April 28, 2017, Dr. Bayol wrote a

letter on plaintiff’s behalf, stating: “Ms. Blair was seen in

the rehabilitation medicine at Kings County Hospital on 4-4-17

and she was referred to Physical Therapy for conservative

management of low back pain. She is temporarily disabled from

working for the next eight weeks.” (Tr. 221.)

On April 20, 2017, plaintiff was treated by Nicole

Kennedy-Pauls, M.D., at the Kingsbrook Jewish Medical Center

emergency room for complaints of right sided back and buttocks

pain. (Tr. 206-08.) Dr. Kennedy-Pauls diagnosed plaintiff with

intervertebral disc disorder and prescribed her with

cyclobenzaprine and ibuprofen. (Tr. 206.) Dr. Kennedy-Pauls

also recommended that plaintiff obtain a lumbar MRI and

discharged her that same day. (Id.)

On May 9, 2017, plaintiff was treated by Debra

Anderson, M.D., at the Kings County emergency room for

complaints of back and right hip pain. (Tr. 203.) Right hip x-

rays were performed, and they showed no acute findings. (Tr.

203, 241.) The attending radiologist noted that there was mild

right hip degenerative arthrosis with associated subchondral

sclerosis and small acetabular and femoral osteophytes. (Tr.

241.) Dr. Anderson diagnosed plaintiff with sciatica and hip

pain and prescribed ibuprofen, cyclobenzaprine, and warm

compresses and discharged her that same day. (Tr. 203.)

b. Relevant Non-Medical Evidence

Plaintiff was born in 1972 and was 45 years old at the

time of the ALJ’s decision. (see Tr. 7, 121.) She completed

college on November 15, 2015. (Tr. 133.) Plaintiff has worked

as a real estate agent from 2004 through 2016. (Tr. 123.)

While working as a real estate agent from 2010 to 2012,

plaintiff was required to walk and stand for eight hours a day,

frequently lift and carry items weighing less than ten pounds,

reach for 30 minutes a day, and write, type or handle small

objects for one hour per day. (Tr. 127.)

Plaintiff’s real estate job from 2014 to 2016 required

her to lift less than ten pounds frequently, sit for three

hours, stand for one hour, and walk for two hours. (Tr. 128.)

As a property owner and manager from 2008 to the present,

plaintiff was required to walk one hour, stand for eight hours,

sit for four hours, handle, grab or grasp for two hours and

reach for 45 minutes per day. (Tr. 129.) Additionally, she had

to ensure that the property’s hallway and basement were kept

clean and the garage area was maintained in proper, sanitary

condition. (Id.) Plaintiff stated that she had to stop working

on December 18, 2015, because “[m]y insurance does not cover

implants, so that [was] one of the major set back in my

employment. [A]s a result I am unable to find an employer that

will accommodate my current medical situation.” (Tr. 132.)

On June 29, 2016, plaintiff completed a Function

Report. (Tr. 138-146.) Plaintiff stated that she was living in

a shelter with family at the time and she was able to perform

household chores, but she needed to “carefully gain [her]

composure before” doing so. (Tr. 139.) She stated she was able

to dress and groom herself, but it took longer than usual

because of pain in her hand and legs. (Tr. 140.) She reported

she was able to walk for twenty minutes before stopping to rest,

ride in a car and travel by public transportation independently.

(Tr. 142, 145.) Plaintiff reported that her hobbies included

swimming, playing volleyball, walking, reading, and listening to

music; however she did not engage in these hobbies often, and

when she did, she engaged in them “gently” out of concern that

they would cause pain in her back. (Tr. 143.) Plaintiff also

stated she drastically reduced her participation in social

activities to avoid a recurrence of her symptoms. (Tr. 144.)

She also stated that she was unable to lift heavy equipment,

could not stand, sit, or walk for too long, and could not kneel.

(Id.) She must wear orthotics to reduce pain in her feet. (Tr.

145.) Plaintiff stated that she was able to follow spoken and

written instructions and had no problems getting along with

people in authority or with her memory. (Tr. 146.)

c. Plaintiff’s Administrative Hearing

On November 9, 2017, plaintiff testified at her

administrative hearing that she had intermittent back pain,

which radiated to her foot and had pain in her mouth due to

broken and missing teeth. (Tr. 32-33, 35-36.) She testified

that the pain interfered with her concentration for 40 percent

of the workday. (Tr. 35-36.) She testified that she could

stand for about 30 minutes at a time, sit for about 20 minutes,

and lift five to ten pounds. (Tr. 34-35.) Additionally, she

testified that she was able to work through the pain, but she

felt that her dental appearance was an impediment to obtaining

work and working around others. (Tr. 47-51.) She testified

that she had worked in real estate and managed a three-family

property that she owned up until the year before the hearing.

(Tr. 36-38.) She stated that she earned $7,037.00 in 2014,

$8,034.00 in 2015, and $10,384.00 in 2016. (Tr. 38-39.)

At the hearing, Christina Boardman, a vocational

expert (“VE”) testified as well. (Tr. 43-51; see Tr. 162-64.)

The ALJ asked the VE whether a hypothetical individual who had

the following restriction to a range of light work could do

plaintiff’s past work or any other work: the hypothetical

individual could stand for 30 minutes at a time, sit for 20

minutes at a time, lift five to ten pounds, and was required to

be off-task five to ten percent of the day due to interference

with concentration. (Tr. 43-44.) The VE testified that the

hypothetical individual would be able to do plaintiff’s past

work as a real estate agent, DOT 250.357-018. (Id.) Further,

the VE testified that the hypothetical individual would also be

able to do the sedentary jobs of a charge account clerk, DOT

Code 209.587-014, with 32,000 such jobs existing in the national

economy, and an order clerk, DOT Code 209.567-014, with 17,000

jobs existing in the national economy. (Tr. 46-47.)

d. Evidence Submitted to the Appeals Council

Following the ALJ’s December 22, 2017 decision,

plaintiff submitted additional evidence to the Appeals Council.

(Tr. 23-27.) Plaintiff submitted a December 26, 2017 letter

from Otis Jones, M.D., from Brightpoint Health, stating: “The

results of the test that you had done recently were abnormal.

Please call the office at your earliest convenience in order to

schedule further evaluation.” (Tr. 27.) However, the letter

did not indicate which test was performed or what the results

were. (Id.) Further, plaintiff submitted a February 20, 2018

note from ModernMD Urgent Care Center, stating that she was seen

on that date for complaints of right hip pain. (Tr. 25.)

Plaintiff was prescribed Naprosyn, a non-steroid anti-

inflammatory drug, and cyclobenzaprine, and advised to see an

orthopedist. (Id.) Plaintiff also submitted notices confirming

that she had appointments at the Kings County Rehabilitation

Clinic on February 26, 2017 and March 23, 2017. (Tr. 23-24.)

LEGAL STANDARD

a. Substantial Evidence or Legal Error

Under Rule 12(c), “a movant is entitled to judgment on

the pleadings only if the movant establishes ‘that no material

issue of fact remains to be resolved and that [she] is entitled

to judgment as a matter of law.’” Rose v. Comm’r, 202 F. Supp.

3d 231, 238 (E.D.N.Y. 2016) (quoting Guzman v. Astrue, No. 09-

CV-3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011).

Due to plaintiff’s pro se status, the court holds her pleadings

to “less stringent standards than formal pleadings drafted by

lawyers,” and the court liberally construes plaintiff’s

pleadings “to raise the strongest arguments that they suggest.”

Rose, 202 F. Supp. 3d at 239 (internal quotation marks and

citation omitted).

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). When an

ALJ does not fully develop the factual record, the ALJ commits

legal error. Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999).

“A remand by the court for further proceedings is appropriate

when the Commissioner has failed to provide a full and fair

hearing, to make explicit findings, or to have correctly applied

the . . . regulations.” Rose, 202 F. Supp. 3d at 239.

“[E]specially in a pro se case, remand for further

administrative proceedings is appropriate ‘where there are gaps

in the administrative record,’ because it is the court’s duty to

determine whether the ‘ALJ adequately protected the rights of a

pro se litigant by ensuring that all of the relevant facts are

sufficiently developed and considered.’” Id. (quoting Rosa, 168

F.3d at 82.

Before determining whether the Commissioner’s final

decision is supported by substantial evidence under 42 U.S.C. §

405(g), “the court must first be satisfied that the ALJ provided

plaintiff with ‘a full hearing under the Secretary’s

regulations’ and also fully and completely developed the

administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM),

2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting

Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755

(2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782

(FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov 7, 2003). The

spirit of the administrative review process is beneficent, not

adversarial. See 20 C.F.R. § 405.1(c)(1) (“In making a

determination or decision on your claim, we conduct the

administrative review process in a non-adversarial manner.”);

Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (“The model is

investigatory, or inquisitorial, rather than adversarial”).

In social security appeals, the court must base its

review “upon the pleadings and transcript of the record.” 42

U.S.C. § 405(g). The court “may at any time order additional

evidence to be taken before the Commissioner of Social Security,

but only upon a showing that there is new evidence which is

material and that there is good cause for the failure to

incorporate such evidence into the record in a prior

proceeding.” Id. “[R]emand based on the need to review new

evidence requires ‘(1) a showing that there is new and material

evidence and (2) good cause for the failure to incorporate that

evidence into the record in a prior proceeding.’” Rose, 202 F.

Supp. 3d at 241 (quoting Skrodzki v. Comm’r, No. 11-CV-5173

(MKB) 2013 WL 55800, at *4 (E.D.N.Y. Jan. 3, 2013)).

New evidence is considered material if “(1) it is

relevant to the claimant’s condition during the time period for

which benefits were denied, (2) it is probative, and (3) there

is a reasonable possibility that the new evidence would have

influenced the [Commissioner] to decide claimant’s application

differently.” Williams v. Comm’r, 236 F. App’x 641, 644 (2d

Cir. 2007) (internal quotation marks and citation omitted). For

example, “subsequent evidence of the severity of a condition

suggest[ing] that the condition may have been more severe in the

past than previously thought” could be material. Id.

“Substantial evidence is ‘more than a mere

scintilla,’” and must be relevant evidence that a reasonable

mind would accept as adequate to support a conclusion. Halloran

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson

v. Perales, 420 U.S. 389, 401 (1971)). If there is substantial

evidence in the record to support the Commissioner’s factual

findings, those findings must be upheld. 42 U.S.C § 405(g).

Inquiry into legal error “requires the court to ask whether ‘the

claimant has had a full hearing under the [Commissioner’s]

regulations and in accordance with the beneficent purposes of

the [Social Security] Act.’” Moran v Astrue, 569 F.3d 108, 112

(2d Cir. 2009). The reviewing court does not have the authority

to conduct a de novo review and may not substitute its own

judgment for that of the ALJ, even when it might have

justifiably reached a different result. Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012).

b. Five Step Sequential Evaluation

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant meets this requirement 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.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131-32. The

impairment must be of “such severity” that the claimant is

unable to do her previous work or engage in any other kind of

substantial gainful work. 42 U.S.C. § 423(d)(2)(A).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s conditions meet the Act’s

definition of disability. See 20 C.F.R. § 404.1520. During

this five-step process, the Commissioner must consider whether

“the combined effect of any such impairment . . . would be of

sufficient severity to establish eligibility for Social Security

benefits.” 20 C.F.R. § 4040.1523. Further, if the Commissioner

does not find a combination of impairments, the combined impact

of the impairments, including those that are not severe (as

defined by the regulations), will be considered in the

determination process. 20 C.F.R. § 416.945(a)(2).

At steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving . .

. disability.” Burgess, 537 F.3d at 128. At step five, the

burden shifts from the claimant to the Commissioner, requiring

that the Commissioner show that, in light of the claimant’s

residual functional capacity, age, education, and work

experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

985 F. Supp 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

DISCUSSION

In the Commissioner’s Rule 12(c) motion for judgment

on the pleadings, defendant contends that ALJ Martha Reeves’

residual functional capacity (“RFC”) finding was supported by

substantial evidence and appropriately concluded that plaintiff

could perform light work. (ECF No. 23, Def. Mem.) Further,

defendant asserts that substantial evidence supports the

Commissioner’s decision that plaintiff can perform her relevant

past work and other jobs in the national economy, and thus is

not disabled under the Act. Rather than submitting a

memorandum, plaintiff submitted an affidavit3 opposing the

3 As noted in the Commissioner’s Notice Pursuant to Local Rules 12.1 and 56.2,

plaintiff is entitled to file sworn affidavits based on personal knowledge,

should the court treat the Commissioner’s motion as a motion for summary

Commissioner’s motion, dated November 11, 2019, asserting that

the Administration “did not originally denied [sic] me benefit

under Title II of the Act because I was not disabled at the time

of application.” (Pl. Aff. at 1.) Plaintiff asserts that her

application was denied “because they claimed that I did not

furnish documents listed on the abovementioned correspondence,”

though she does not attach copies of the missing documents –

i.e. her birth certificate, I551 Card, and evidence of self

employment - or explain why those documents would have affected

the Administration’s disability finding. (Id.) Plaintiff

apparently asserts that she has resubmitted the outstanding

documents and that she had previously submitted them, but they

became detached from the rest of her application. (Id. ¶ 4.)

Defendant did not file a reply memorandum.

The allegations raised in plaintiff’s affidavit

generally consist of background information, including her work

experience and the alleged reasons for her back pain, as well as

conclusory allegations that she “was unlawfully denied benefit

from the Social Security Administration.” (See generally ECF

No. 24.) Because plaintiff has not shown that there is any “new

and material evidence” that was not considered by the ALJ, the

judgment. (ECF No. 23-1, Notice Pursuant to Local Rules 12.1 and 56.2.) The

court has considered the affidavit, finds that it does not raise material

factual allegations, and thus decides the instant motion as seeking judgment

on the pleadings pursuant to Rule 12(c). Rose, 202 F. Supp. 3d 231 (E.D.N.Y.

2016).

court respectfully declines to order additional evidence to be

taken before the Commissioner, pursuant to 42 U.S.C. § 405(g).

Rose, 202 F. Supp. 3d at 241; Williams, 236 F. App’x at 644.

For the reasons set forth below, the court finds that

the ALJ’s decision was supported by substantial evidence and,

accordingly, the court grants the Commissioner’s motion.

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled is mandated by 20 C.F.R. §

416.971, the ALJ determined at step one that plaintiff had not

engaged in substantial gainful activity since May 1, 2014, the

alleged onset date. (Tr. 12.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of intervertebral lumbar disc disorder

and degenerative joint disease. (Tr. 13.)

At step three, the ALJ determined that plaintiff did

not have an impairment or combination of impairments that meets

or medically equals the severity of one of the listed

impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 (20

C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.)

At step four, the ALJ found that plaintiff had the RFC

to perform light exertional work. (Id.) In arriving at this

RFC, the ALJ states that plaintiff “can stand at one time for a

half hour, sit at one time for twenty minutes, lift 5 to 10

pounds, sit stand option, and will be off task for 5 to 10

percent of the day due to interference with concentration.”

(Id.) The ALJ found that plaintiff’s “medically determinable

impairments could reasonably be expected to produce the above-

alleged symptoms; however, the claimant’s statements concerning

the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence

and other evidence in the record for the reasons explained in

this decision.” (Tr. 14.)

At step five, the ALJ found that plaintiff was capable

of performing work that was available in the national economy,

specifically, the past relevant work as a real estate agent, and

as a supervisor janitorial. (Tr. 17.) Thus, the ALJ concluded

that plaintiff was not disabled within the meaning of the Act,

as defined in 20 C.F.R. § 416.920(g), since May 1, 2014 through

the date of the hearing. (Id.)

II. Following a Fair Hearing and Adequate Development of the

Record, the ALJ Rendered a Decision That Was Supported by

Substantial Evidence.

Based on the record before the court, there is no

reason to doubt that the ALJ provided plaintiff with a fair

hearing and adequately developed the record. For example, ALJ

Reeves specifically asked plaintiff at the hearing whether she

was sure she did not want to have counsel assist her. (Tr. 33.)

Plaintiff responded, “Yeah, because I know my situation. I

don’t have to have counsel to represent my medical situation.

Whether the decision is in my favor or not, I have my medical

situation. All right?” (Id.)

Further, at the administrative hearing, the ALJ posed

numerous questions to plaintiff to explore her functional

limitations and the severity of her impairments. At various

points during the hearing, plaintiff’s testimony detracted from

the severity of her impairments. See Salmini v. Comm’r of Soc.

Sec., 371 F. App’x 109, 112-23 (2d Cir. 2010) (summary order)

(citing plaintiff’s testimony as substantial evidence supporting

ALJ’s findings); Suarez v. Comm’r of Soc. Sec., No. 09 Civ.

2868, 2009 WL 874041, at *9 (S.D.N.Y. Mar. 26, 2009) (the

plaintiff’s testimony can constitute substantial evidence

supporting ALJ’s findings). For example, plaintiff testified

that her pain “comes and goes” and she “push[es] through the

pain.” (Tr. 33.) Plaintiff further stated that she was told to

go to therapy, but instead decided to “d[o] my own stuff . . . I

did my own physical therapy.” (Id.) Plaintiff testified that

she could stand for half an hour at a time and sit for 20

minutes at a time. (Tr. 34.) Plaintiff also testified that she

could lift a gallon of milk, or between five and ten pounds.

(Tr. 35.)

Additionally, non-medical evidence, such as activities

of daily living, can satisfy the substantial evidence test. In

plaintiff’s June 2016 Function Report, she indicated several

activities that she could engage in. (Tr. 15, see Tr. 143.)

She stated that she could travel independently by walking and

taking public transportation, shop at stores for food and

clothes, and attend church weekly. (Tr. 142-43.) Additionally,

she also engaged in activities such as swimming, playing

volleyball, and walking from time to time. (Tr. 143.) The

Second Circuit has found that light work includes the activities

that plaintiff stated. See Cichocki v. Astrue, 729 F.3d 172,

178 (2d Cir. 2013) (finding that claimant’s activities, such as

walking her dogs and cleaning her house, equated to a residual

capacity to perform light work). Further, as noted above,

plaintiff testified that her pain “comes and goes,” (Tr. 34.)

and she “will work through the pain.” (Tr. 49.) She also

stated that one of her biggest impediments to working is her

dental issues and the physical appearance of her teeth. (Tr.

35-36, 47-48.)

Plaintiff also testified that she worked in real

estate and owned a three-family property. (Tr. 35, 37.) She

testified that she earned $7,037.00 in 2014, $8,034.00 in 2015,

and $10,284.00 in 2016, from working in real estate along with

income from her property. (Tr. 38-39.) Although plaintiff

stated in her June 21, 2016 Disability Report that she stopped

working on December 18, 2015, (Tr. 132), this statement is

contradicted by her Work History Report, in which she reported

managing her property, from 2008 through the present, (Tr. 123,

129), as well as her statement to consultative examiner Dr.

Thukral that she worked 24 hours a day, seven days per week at

her property. (Tr. 199.) Although plaintiff asserts that she

could not work beginning December 18, 2015, evidence in the

record shows that she was able to work enough to report

significant earnings. (Tr. 14, 123, 129.)

Although the ALJ found that plaintiff’s work was not

substantial gainful activity, she still properly considered it

in determining that plaintiff had the ability to work. 20

C.F.R. § 404.1571 (“Even if the work you have done was not

substantial gainful activity, it may show that you are able to

do more work than you actually did.”) See also Rivers v.

Astrue, 280 F. App’x 20, 23 (2d Cir. 2008) (summary order) (the

claimant’s work did not meet the threshold for substantial

gainful activity, but he worked at levels consistent with light

work).

The ALJ also relied on medical evidence in the record

to formulate her RFC finding. (Tr. 16.) The ALJ assigned great

weight to the opinion of consultative examiner Dr. Thukral,

which was supported with an explanation and consistent with the

medical evidence of record. (Tr. 16; 20 C.F.R. § 404.1527(c)(3)

(“[t]he better an explanation a source provides for the opinion,

the more weight [the ALJ] will give that opinion”).) Dr.

Thukral opined that plaintiff had “no limitations for sitting,

standing, bending, pulling, pushing, lifting, carrying, or any

other such related activities.” (Id.) Dr. Thukral found that

plaintiff was in no acute distress, had a normal gait and stand,

and could walk on her heels and toes without difficulty. (Tr.

15, 200-02.) Dr. Thukral also noted that plaintiff did not use

an assistive device, and she did not need help in changing for

the examination or getting on and off the examination table.

(Tr. 15, 200.)

In addition, the ALJ found that Dr. Thukral’s opinion

was consistent with the other evidence from the record. (Tr.

16; 167 (treatment records stating that plaintiff’s “pain comes

and goes,” x-ray of left foot showed bone structures were

intact, mild soft tissue swelling, and heel spurs).) See 20

C.F.R. § 404.1527(c)(4) (“[g]enerally, the more consistent an

opinion is with the record as a whole, the more weight we will

give to that opinion”). Not only was Dr. Thukral’s opinion

consistent with plaintiff’s daily activities, it was also

consistent with the other examinations in the record.

Specifically, a July 2014 emergency room examination for back

and head pain indicated that plaintiff was within normal limits.

(Tr. 14; see Tr. 124.) A July 2015 emergency room examination

for foot pain showed a stable gait, full range of motion in all

extremities, and a non-tender cyst on her foot. (Tr. 15; see

Tr. 185.) An April 2017 examination showed negative straight

leg raising, full motor strength, and intact sensation. (Tr.

237.) When plaintiff was seen at the Kings County Hospital in

July 2015 for left foot pain, and in April and May 2017 for

sciatica pain, on every occasion, no surgical procedures were

performed, and she was treated with cyclobenzaprine and

ibuprofen and discharged. (Tr. 180-185, 199-202, 203-223.)

Based on the foregoing, the court finds that the ALJ’s

RFC finding, that plaintiff can perform a range of light work,

was supported by substantial evidence in the record.

III. The ALJ Correctly Concluded that Plaintiff Could Perform

Her Past Relevant Work or Other Work in the Economy

After determining that plaintiff could perform a range

of light work, the ALJ proceeded to determine whether plaintiff

could perform her past relevant work. (Tr. 17.) If a claimant

is found to be able to perform past relevant work, then the

claimant may be found not disabled. SSR 82-61, 1982 WL 31387

(Jan. 1, 1982). The ALJ appropriately relied on the testimony

of the VE to find that plaintiff could perform her past work as

a real estate agent as it was generally performed in the

national economy. (Tr. 17; see Tr. 43-44.) A VE may be used to

ascertain how a job is performed in the national economy. SSR

82-61, 1982 WL 31387 at *2. The ALJ also concluded that

plaintiff could perform her past work, which was supported by

evidence including plaintiff’s description of her real estate

job, and plaintiff’s self-described ability to lift less than

ten pounds, sit for three hours, stand for one hour and walk for

two hours. (Tr. 128.)

Further, the ALJ made an alternative finding that

plaintiff could perform other work in the national economy.

(Tr. 18.) An ALJ may rely on the opinion of the VE when the RFC

in the hypothetical posed to the VE is supported by substantial

evidence. See Salmini, 371 F. App’x at 114 (holding that the

ALJ correctly posed the hypothetical question to the VE when

that hypothetical was based on the ALJ’s correct RFC

evaluation). Here, where the ALJ’s RFC finding was supported by

substantial evidence, the ALJ correctly relied on the VE’s

testimony that a hypothetical individual with that RFC and

plaintiff’s vocational factors could work as a charge account

clerk and order clerk. (Tr. 18; see Tr. 46-47.) Therefore, the

court finds that the ALJ correctly concluded that plaintiff

could perform past relevant work or other work in the economy

and, thus, was not disabled under the Act.

CONCLUSION

For the foregoing reasons, the court finds that the

Commissioner’s conclusion that plaintiff was not disabled,

within the meaning of the Act, since May 1, 2014, was supported

by substantial evidence in the record. Accordingly, defendant’s

Motion for Judgment on the Pleadings is GRANTED. The Clerk of

Court is respectfully directed to enter judgment for the

defendant and close this case. The court certifies pursuant to

28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and

Order would not be taken in good faith and, therefore, in forma

pauperis status is denied for the purpose of any appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Defendant is respectfully directed to mail a copy of this

Memorandum and Order and the judgment to the pro se plaintiff,

and to note service on the docket.

SO ORDERED.

DATED: July 7, 2020

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge