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Abdurhim M. Pasic v. Commissioner of Social Security

August 31, 2012


The opinion of the court was delivered by: John M. Conroy United States Magistrate Judge


(Docs. 4, 7)

Plaintiff Abdurhim Pasic brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits. Pending before the Court are Pasic's motion to reverse the Commissioner's decision (Doc. 4), and the Commissioner's motion to affirm the same (Doc. 7). For the reasons stated below, the Court DENIES Pasic's motion, and GRANTS the Commissioner's motion.


Pasic was forty years old on his alleged disability onset date of April 3, 2007. He was born and raised in Bosnia, where he graduated from high school. He fought in the Bosnian War from 1991 to 1994, during which time he observed the destruction of his village and extensive violence. He lost multiple family members in the War, and has since suffered flashbacks and nightmares. In 1994, Pasic relocated to the United States as a refugee. He has worked as a factory worker, a truck driver/deliverer, a custodian, a sandblaster, a painter, and a taxi driver. He lives with his wife and three children.

Pasic suffers from coronary artery disease (clogged arteries), and has had three heart attacks since 2004, resulting in several surgical procedures including implantation of stints and a defibrillator. Despite his heart condition, and against his doctors' orders, Pasic smoked cigarettes for much of the alleged disability period. Also despite his heart condition, he was able to play soccer and work as a cab driver for parts of the alleged disability period. In addition to his heart problems, Pasic has had back pain since an injury at work in 2001. Although he testified at the administrative hearing that this pain prevented him from sitting for more than forty-to-sixty minutes at a time, he was not seeing a doctor for his back problems as of the date of the hearing. (AR 51-53.) Pasic also suffers from depression, anxiety, and sleep problems; and one medical provider stated that he appeared to meet the criteria for post-traumatic stress disorder ("PTSD").

On January 29, 2010, Pasic filed an application for disability insurance benefits. Therein, he alleged that, starting on April 3, 2007, he has been unable to work due to "[h]eart attacks, c[h]olesterol, [and] blood pressure." (AR 199.) He explained that these conditions caused him fatigue, weakness, and inability to tolerate stress. (Id.) Pasic's application was denied initially and upon reconsideration, and he timely requested an administrative hearing. The hearing was conducted on March 8, 2011 by Administrative Law Judge ("ALJ") Dory Sutker. (AR 31-73.) Given his inability to speak and understand English, Pasic appeared and testified through an interpreter. He was represented by an attorney. Vocational expert ("VE") Christine Spaulding also testified at the hearing. On March 21, 2011, the ALJ issued a decision finding that Pasic was not disabled under the Social Security Act at any time from his alleged onset date through the date of the decision. (AR 8-20.) The Appeals Council denied Pasic's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, on October 27, 2011, Pasic filed the Complaint in this action. (Doc. 1.)

ALJ Decision

The Commissioner uses a five-step sequential process to evaluate disability claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step requires the ALJ to determine whether the claimant is presently engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, the third step requires the ALJ to make a determination as to whether the claimant's impairment "meets or equals" an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if the impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

If the claimant is not presumptively disabled, the ALJ is required to determine the claimant's residual functional capacity ("RFC"), which means the most the claimant can still do despite his or her mental and physical limitations based on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do "any other work." 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do," Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner "need not provide additional evidence of the claimant's [RFC]").

Employing this sequential analysis, ALJ Sutker first determined that Pasic had not engaged in substantial gainful activity since his alleged disability onset date of April 3, 2007. (AR 10.) At step two, the ALJ found that Pasic had the following severe impairments: coronary artery disease, status post-myocardial infarction; cardiomyopathy; and affective disorder. (AR 11.) Conversely, the ALJ found that Pasic's back pain and PTSD were not severe impairments. (AR 12.) At step three, the ALJ found that none of Pasic's impairments, alone or in combination, met or medically equaled a listed impairment. (AR 13-14.) Next, the ALJ determined that Pasic had the RFC to perform sedentary work*fn1 , except as follows:

[Pasic] must avoid exposure to hazardous machinery and work performed at unprotected heights. He is limited to routine and repetitive tasks but can apply common sense understanding to deal with problems involving a few concrete variables in or from standardized situations. (AR 14.) The ALJ also determined that, considering Pasic's testimony at the administrative hearing that he could not read English, "he should avoid tasks that require following written instructions." (Id.) Given this RFC, the ALJ found that Pasic was unable to perform his past relevant work as a truck driver, custodian, sandblaster, or painter. (AR 19.) Finally, based on testimony from the VE, and considering Pasic's age, education, work experience, and RFC, the ALJ determined that Pasic could perform other jobs existing in significant numbers in the national economy, including document preparer, stuffer, semi-conductor assembler, eye glass frame polisher, and bit tapper. (AR 19-20.) The ALJ concluded that Pasic had not been under a disability from the alleged onset date of April 3, 2007 through the date of the decision. (AR 20.)

Standard of Review

The Social Security Act defines the term "disability" as the "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. ยง 423(d)(1)(A). A person will be found disabled only if it is determined that his "impairments are of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, ...

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