Paulino v. Colvin
| Decision Date | 13 May 2014 |
| Docket Number | 13 Civ. 3718 (AT) (AJP) |
| Parties | MARTHA PAULINO, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Pro se plaintiff Martha Paulino brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying her Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. (Dkt. No. 2: Compl.) Presently before the Court is the Commissioner's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 23: Notice of Motion.) Paulino has not filed any brief or affidavit opposing the Commissioner's motion, and the time to do so has passed. (See Dkt. No. 19: 3/5/14 Order.)
For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 23) should be GRANTED.
In December 2009 Paulino applied for DIB and SSI benefits, alleging that she was disabled since August 1, 2009. Paulino alleged disability due to arthritis in her knees, hypertension, leg and foot pain, anemia, high cholesterol, depression and a thyroid condition. (R. 38-40, 133, 137-39.) At the administrative hearing, she stressed that what affects her the most was her depression. (R. 39-40.) The Social Security Administration ("SSA") found that Paulino was not disabled, and denied the applications. (R. 54-61.) Paulino requested an administrative hearing. (R. 62-64.)
Administrative Law Judge ("ALJ") Selwyn S. C. Walters conducted an administrative hearing on May 12, 2011. (R. 32-53.) On October 5, 2011, ALJ Walters issued a written decision finding that Paulino was not disabled. (R. 7-19.) ALJ Walters' decision became the Commissioner's final decision when the Appeals Council denied Paulino's request for review on April 17, 2013. (R. 1-3, 6.)
The issue before the Court is whether the Commissioner's decision finding that Paulino is not disabled is supported by substantial evidence.
Paulino, born in February 1958, was fifty-one years old at the alleged onset of her disability and fifty-three at the time of the ALJ hearing. (R. 36.) She attended school through the third grade in the Dominican Republic, her native country. (R. 47, 134.) She was unable to read, write or count in English. (R. 47.)
From May through December 2002, Paulino worked performing seasonal park maintenance as part of a "Welfare" program. (R. 50-51, 154.) Her job involved cleaning the parks and doing housekeeping in the offices. (R. 155.) Paulino performed her work in a standing or walking position, and she lifted no more than ten pounds. (R. 155.) She worked forty hours over five days a week. (R. 155.) From 2002 to 2009, Paulino worked selling pasteles, a type of taco, and as a babysitter, housekeeper and machine operator. (R. 48-49, 154-58.) In 2009, she worked packing perfumes and making pasteles. (R. 48-49.) Paulino served meals to the elderly as a volunteer in 2010. (R. 48.)
Paulino stated that she could no longer work because she could not remain standing due to weakness in her legs, and that she could not bend her knees. (R. 38, 40.) She believed that she could sit "for some time" but could stand for no more than fifteen minutes, and could not walk "much." (R. 46.) She stated that she had high blood pressure, high cholesterol, anemia and abnormal thyroid levels. (R. 38.) Paulino explained that she was most significantly affected by depression, and specifically by crying spells that caused her to be sent home from work. (R. 38-41.) She stated that she was forgetful, had trouble sleeping and experienced moments where her mind "goes away." (R. 40, 51.) She said that her medications, Seroquel and Wellbutrin, help her sleep and reduce her crying spells. (R. 40-41.)
Paulino never was hospitalized and had no cardiac impairments resulting from her high blood pressure. (R. 45.) Paulino's doctor recommended treatment for her anemia, but Paulino lost her referral and did not keep her appointment. (R. 45-46.) She did not receive treatment for hypothyroidism. (R. 46.)
Paulino lived with her sixteen year old daughter and baby granddaughter. (R. 37-38.) Paulino got along well with her children. (R. 41.) Her daughter and son helped with various household chores, and Paulino cooked, washed the dishes, made her bed, swept the floor, dressed, attended to her personal hygiene and handled the mail. (R. 41-43, 144-46.) She took public transportation by herself. (R. 43, 146.) She grocery shopped approximately twice a month for an hour and a half at a time. (R. 147.) She spoke on the phone with family and friends and attended church every Sunday for three hours. (R. 44, 148.) She also spent time watching TV. (R. 147.)
Paulino spent the day attending to household needs, such as cooking, cleaning, laundry and ironing. (R. 144, 146.) The variety of foods she prepared decreased, but Paulino still cooked two to three hours every day. (R. 145.) Paulino took care of her granddaughter on weekends. (R. 144.)
2009
On October 29, 2009, Paulino presented to the Montefiore Hospital emergency room with complaints of pain and swelling in her right ankle and leg for the past six months. (R. 185-86.) She rated her pain a four out of ten on a ten-point scale. (R. 185.) She described the pain as mild and reported minimal dysfunction. (R. 186.) Upon examination, Paulino did not appear to be in acute distress. (R. 187.) There was tenderness and swelling of the lateral part of the right foot. (R. 187.) Paulino had pain with plantar flexion of the right foot. (R. 187.) Neurological examination of the right leg was normal. (R. 187.) The attending physician diagnosed arthralgia and discharged Paulino in good condition, with prescriptions for Percocet and Naprosyn. (R. 188-89.)
On December 8, 2009, Paulino was evaluated at the Bronx-Lebanon Hospital in connection with her FEGS Health and Human Services System ("FEGS") case. (R. 227-37.)1 Daylin Rosado, whose expertise is unidentified, reported that Paulino's blood pressure was 140/101. (R. 227.) Dr. Charles Pastor took Paulino's medical history and conducted a physical examination.(R. 229-31.) Paulino reported a history of bilateral leg pain, thyroid disease, thrombocytopenia, and "chol" (presumably a reference to high cholesterol). (R. 229.) She stated that her current medications were Percocet, Zocor and Naproxen. (R. 229.) She complained of pain in her knees and feet. (R. 231.) Paulino rated her current level of pain as a one and her worst pain as a three. (R. 245.) A level of zero was tolerable for her. (R. 245.) The report does not indicate whether this was a ten-point rating scale. (R. 245.)
Dr. Pastor indicated that there was peripheral edema, joint swelling, diminished ranges of motion, contractures and mild swelling of the feet. (R. 245.) He diagnosed bilateral leg pain, thyroid disease, thrombocytopenia, high cholesterol, high blood pressure, possible coronary artery disease and poor vision. (R. 232, 235, 237.) Dr. Pastor assessed that Paulino needed an accommodation for employment for limited walking, indicated that Paulino was "functional," and that she could participate in twenty-five hours of vocational services, and noted that in an eight-hour workday, Paulino could walk four to five hours and would have pain climbing. (R. 232, 246.) Dr. Pastor referred Paulino for a cardiology evaluation. (R. 232, 238.)
On December 22, 2009, Paulino was seen for a cardiology evaluation. (R. 238-43.)2 The report indicates that chest, respiratory, cardiovascular and musculoskeletal examinations were normal. (R. 239-40.) Paulino's pulses were normal. (R. 240.) The report diagnosed "ACP," "HPN," dyslipidemia and an abnormal EKG. (R. 241.) The report indicated that Paulino's condition was unstable and required a treatment plan before a functional assessment could be made. (R. 241.)It recommended an "ETT" (a possible reference to an exercise tolerance test or an exercise treadmill test) and an echocardiogram. (R. 241.)
At some point during the FEGS evaluation, an undated depression inventory was taken. (R. 251-52.) Paulino reported a history of depression, but she was not currently receiving any mental health services. (R. 251.) She denied suicidal and homicidal ideation, plan or intent, or current or a history of auditory or visual hallucinations. (R. 251.) Paulino scored an eleven on the PHQ-9 (a series of questions regarding recent depressive symptoms), indicating moderate depression. (R. 252.) She reported lack of interest, trouble sleeping, fatigue, poor appetite, low self-esteem and family issues. (R. 252-53.) She reported that she was caring for her fifteen-year-old daughter who had an unspecified illness. (R. 252-53.)
Fordham-Tremont
On January 29, 2010, Paulino went to the Fordham-Tremont Community Health Center where social worker Julia Checo interviewed her. (R. 263-70.) Paulino reported a depressed mood, insomnia and feeling lonely. (R. 263, 264.) Paulino reported "no psychiatric history." (R. 263-64, 270.) Upon mental status evaluation, Paulino was well-dressed and groomed, and cooperative, alert and fully oriented. (R. 263.) She was forgetful. (R. 263.) Her speech and movements were normal. (R. 263.) Paulino denied suicidal or homicidal ideations or auditory or visual hallucinations. (R. 263.) Checo diagnosed depressive disorder not otherwise specified on Axis I; deferred diagnosis on Axis II; hypertension, hyperthyroid and hypercholesterol on Axis III; unemployment on Axis IV; and a global assessment of functioning ("GAF"...
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