Tankisi v. Comm'r of Soc. Sec., 10–CV–6412L.

847 F.Supp.2d 513

Selvi TANKISI, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 10–CV–6412L.

United States District Court, W.D. New York.

March 14, 2012.

Howard D. Olinsky, Olinsky & Shurtliff, LLP, Syracuse, NY, for Plaintiff.

John J. Field, U.S. Attorney's Office, Rochester, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

In this action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“the Commissioner”), plaintiff Selvi Tankisi (“plaintiff”) appeals from the Commissioner's denial of disability insurance benefits.

On January 30, 2007, plaintiff, then thirty-seven years old, filed an application for disability insurance benefits and supplemental security income benefits under Title II of the Social Security Act. Plaintiff alleged an inability to work since March 9, 2006, due to dizzy spells, arm weakness, and inability to sit, stand or walk for extended periods of time. (T. 145–155, 164). Her application was initially denied. (T. 63–38). Plaintiff requested a hearing, which was held via videoconference on June 16, 2009 before Administrative Law Judge (“ALJ”) David Ettinger. (T. 161). Plaintiff, whose first and primary language is Turkish, was represented by counsel and provided with Turkish translation services by an interpreter at the hearing. The ALJ issued a decision on July 20, 2009, concluding that plaintiff was not disabled under the Social Security Act. (T. 11–18). That decision became the final decision of the Commissioner when the Appeals Council denied review on May 21, 2010 (T. 1–3). Plaintiff now appeals.

The Commissioner has moved (Dkt. # 12), and the plaintiff has cross moved (Dkt. # 13), for summary judgment. For the reasons discussed below, the Commissioner's motion for summary judgment is granted, plaintiff's motion is denied, and the complaint is dismissed.

DISCUSSION

I. Analysis of Disability Claims

Determination of whether a claimant is disabled within the meaning of the Social Security Act requires an ALJ to follow a five-step sequential evaluation. See Bowen v. City of New York, 476 U.S. 467, 470–71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful work activity. See20 CFR § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination of impairments, that is “severe” within the meaning of the Act, e.g., that imposes significant restrictions on the claimant's ability to perform basic work activities. 20 CFR § 404.1520(c). If not, the analysis concludes with a finding of “not disabled.” If so, the ALJ continues to step three.

At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR § 404.1509), the claimant is disabled. If not, analysis proceeds to step four, and the ALJ determines the claimant's residual functional capacity (“RFC”), which is the ability to perform physical or metal work activities on a sustained basis, notwithstanding limitations for the collective impairments. See20 CFR § 404.1520(e), (f). Then, the ALJ determines whether the claimant's RFC permits her to perform the requirements of her past relevant work. If so, the claimant is not disabled. If not, analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled, by presenting evidence demonstrating that the claimant “retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy”in light of her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). See20 CFR § 404.1560(c).

The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “The Court carefully considers the whole record, examining evidence from both sides ‘because an analysis of the substantiality of the evidence must also include that which detracts from its weight.’ ” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999)quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, “it is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

II. The ALJ's Decision

ALJ Ettinger's decision contains substantial analysis of the medical evidence of record, and explicitly applies the “special technique” prescribed for claims of physical and mental impairments.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3).

The ALJ first considered plaintiff's claims of physical impairment caused by a bulging disc and annular tear in plaintiff's lumbar spine, and degenerative joint disease, together with the mental impairment of adjustment disorder, which the ALJ determined together constituted a severe impairment not meeting or equaling a listed impairment.

In analyzing the pertinent evidence of plaintiff's exertional limitations, the ALJ found that plaintiff could perform light work with certain additional limitations: no more than occasional climbing, balancing, stooping, kneeling, crouching, crawling, and work that does not require complex or detailed instructions. (T. 15). Plaintiff makes no objection to the ALJ's determination of her RFC as it relates to the exertional limitations posed by the impairments identified by the ALJ, and I find that that determination is supported by substantial evidence in the record.

With respect to non-exertional limitations, the ALJ concluded that plaintiff had failed to show that she was markedly restricted in two or more of the four designated areas: activities of daily living, maintaining social functioning, maintaining concentration, persistence or pace, and repeated episodes of extended decompensation. Rather, the ALJ found that plaintiff was only “moderately” restricted with respect to daily living, social functioning, and maintaining concentration, and that she had experienced no extended episodes of decompensation.

Given the RFC determined by the ALJ, vocational expert Miriam Green testified that plaintiff was able to perform her past relevant work as a sewing machine operator, as well as a sedentary assembly job. (T. 56).

III. Plaintiff's Grounds for Appeal

Plaintiff initially claims that the ALJ failed to provide her with an adequatelyqualified interpreter at the hearing. See generally Di Paolo v. Barnhart, 2002 WL 257676 at *8, 2002 U.S. Dist. LEXIS 2707 at *24 (E.D.N.Y.2002) (“[t]o ensure that claimants with limited English proficiency ... are properly served, [SSA] must have a qualified interpreter to facilitate the processing of their claims”); Taveras v. Apfel, 1998 WL 557587 at *3, 1998 U.S. Dist. LEXIS 13580 at *10 (S.D.N.Y.1998) (remanding for further proceedings where, “[d]espite the presence of an interpreter, it is also clear that the plaintiff had difficulty understanding the proceedings and the role of counsel”).

Plaintiff states that during the hearing, there were multiple occasions where the interpreter could not understand what she was saying, failed to accurately translate her words, or did not understand the question posed by the ALJ or attorney.

It is clear from a thorough review of the transcript that each of the hearing videoconference participants, including the interpreter, who participated telephonically, sometimes had difficulty hearing one another and had to repeat themselves on a few occasions. It is also apparent that the interpreter, in some cases, had to translate questions or answers in a non–literal manner in order to account for differences in the conventions of the two languages, or to account for plaintiff's combining English and Turkish verbiage in her answers. See e.g., T.49 (Int: “[y]our Honor, we're still not clear whether there was only one taxi or several. That's something in Turkish unless you say very specifically not clear”); T.31 (Int: “[i]t's a double challenge in the sense, Your Honor, because she's saying it in the Turkey pronunciation and English word, which is making it more difficult”).

Nonetheless, I am not convinced that plaintiff was denied a “qualified” interpreter, and/or that as a result, the record was not fully developed. Plaintiff makes no allegation that the interpreter lacked sufficient training or education. Moreover, despite the challenges identified by plaintiff, the exchange of questions and answers reflected in the bulk of the transcript is smooth and coherent, with only one instance of apparent mistranslation—the interpreter's description of a previous pattern-making job having been performed by plaintiff “at home” instead of in a factory—a mistake which plaintiff herself heard and understood in English, and immediately corrected. (T. 34). At all times, plaintiff appears to have understood the reason for the hearing and the respective roles of the ALJ, interpreter, and her counsel. Plain...