The Honorable Denny Chin of the United States District Court for the Southern District *

of New York, sitting by designation.

09-2006-cv

Gonzalez v. Commissioner of Social Security

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13 day th

of January, two thousand ten.

Present:

ROBERT D. SACK,

ROBERT A. KATZMANN,

Circuit Judges, 

DENNY CHIN,*

District Judge.

________________________________________________

JOSE GONZALEZ, Deceased, by IRENE GUZMAN, Administratrix,

Plaintiff-Appellant, 

v. No. 09-2006-cv

SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH & HUMAN

SERVICES AND COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendants-Appellees.

________________________________________________
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For Appellant: WILLIAM S. NEAL, Woodhaven, N.Y.

For Appellees: KATHLEEN A. MAHONEY, Assistant United States

Attorney for the Eastern District of New York (Varuni

Nelson, Assistant United States Attorney, of counsel),

for Benton J. Campbell, United States Attorney for the

Eastern District of New York, Brooklyn, N.Y.

Appeal from the United States District Court for the Eastern District of New York

(Sifton, J.). 

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the order of the district court be and hereby is AFFIRMED.

 By order dated March 25, 2009, the district court granted defendants’ motion for

judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) and 42 U.S.C. § 405(g), and denied

plaintiff’s claim for retroactive Social Security disability benefits. On appeal, plaintiff Irene

Guzman argues that the district court erred in granting defendants’ motion because Jose

Gonzalez should have been deemed disabled for the period in question and the district court

failed to address Gonzalez’s application for Supplemental Security Income. We assume the

parties’ familiarity with the facts, procedural history, and specification of issues on appeal.

This Court’s review of a district court’s determination to uphold a decision of the

Commissioner of the Social Security Administration (“Commissioner”) is not squarely focused

on the district court’s opinion; nor is it a de novo review of the underlying determination of the

claimant’s disability status. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam).

Rather, it entails a review of the administrative record to assess whether there is substantial

evidence to support the Commissioner’s decision. Id. Thus, the Court “may only set aside a

determination which is based upon legal error or not supported by substantial evidence.” Arnone
3

v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (internal quotation marks omitted). “Substantial

evidence,” in turn, is “more than a mere scintilla” and is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (internal quotation marks omitted). Thus, as a general matter, the reviewing court is

limited to a fairly deferential standard. See Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d

Cir. 1998); Perez v. Chater, 77 F.3d. 41, 46 (2d Cir. 1996). 

In order to receive retroactive disability benefits, plaintiff must show that Gonzalez was

disabled prior to March 31, 1996, when his insured status expired. See 42 U.S.C. §§

423(a)(1)(A), (c); see also Arnone, 882 F.2d at 37 (eligibility for benefits is dependent on

showing that the claimant was insured and disabled during the insured period). Thus to qualify

for benefits, Gonzalez was required to furnish evidence, see 42 U.S.C.§ 423(d)(5)(A),

demonstrating that he was unable to work prior to March 31, 1996 due to a physical or mental

impairment that is medically determinable and had lasted or had been expected to last for a

continuous period of at least 12 months. Id. § 423(d)(1)(A). Moreover, such impairment must

have been severe enough that Gonzalez would not have been able to continue previous work, or,

in light of his background (i.e., age, education, skill set), could not have found other gainful work

prior to March 31, 1996. Id. § 423(d)(2)(A). However, if substance abuse was a material

contributing factor to the disability, the claimant would not be considered disabled for purposes

of the provision. Id. § 423(d)(2)(C).

There is a well-worn, five-step analysis used to determine if a person is disabled. See 20

C.F.R. § 404.1520. In this Circuit, the test is described as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in
 “Residual functional capacity” is what a person is still capable of doing despite 1

limitations resulting from physical and mental impairments. 20 C.F.R. § 416.945(a).

4

substantial gainful activity. If he is not, the [Commissioner] next considers

whether the claimant has a “severe impairment” which significantly limits his

physical or mental ability to do basic work activities. If the claimant suffers such

an impairment, the third inquiry is whether, based solely on medical evidence, the

claimant has an impairment which is listed in Appendix 1 of the regulations. If

the claimant has such an impairment, the [Commissioner] will consider him

disabled without considering vocational factors such as age, education, and work

experience . . . . Assuming the claimant does not have a listed impairment, the

fourth inquiry is whether, despite the claimant’s severe impairment, he has the

residual functional capacity to perform his past work. Finally, if the claimant is

1

unable to perform his past work, the [Commissioner] then determines whether

there is other work which the claimant could perform. 

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467

(2d Cir. 1982) (per curiam)). Through the fourth step, the claimant carries the burdens of

production and persuasion, but if the analysis proceeds to the fifth step, there is a limited shift in

the burden of proof and the Commissioner is obligated to demonstrate that jobs exist in the

national or local economies that the claimant can perform given his residual functional capacity. 

See 68 Fed. Reg. 51155 (Aug. 26, 2003); see also Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.

2009) (per curiam).

Though plaintiff appears to argue that Gonzalez was per se disabled within the meaning

of the applicable Social Security provisions due to his difficulties with asthma, depression, and

musculoskeletal pain in his back and knee, we cannot conclude that the Commissioner lacked

substantial evidence to find that Gonzalez was not disabled, or that the conclusion rested on an

error of law.

As an initial matter, the record contains no relevant medical evidence prior to November

10, 1994. The earliest incidence of medical treatment in the record is for a hospitalization from
 Due to the extensive medical argot involved in these regulations, we will refrain from 2

reproducing them here and refer the reader directly to the provisions as referenced.

5

November 11, 1994 to November 14, 1994 for an asthma attack. It appears, however, that the

attack was triggered by cocaine use, and thus this incident cannot support a finding of disability

for the purposes of the Social Security Act. See 42 U.S.C. § 423(d)(2)(C). In the absence of any

medically objective evidence, there is no question that Gonzalez could not be found disabled

before November 11, 1994.

For the period from November 11, 1994 through the expiration of Gonzalez’s insured

status on March 31, 1996, we agree with the district court that the Commissioner properly

determined that Gonzalez was not disabled. Though the record contains instances of complaints

relating to asthma, depression, and back pain, at no point is there any documented medical

determination that meets all of the required criteria of any given impairment under the Listing of

Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“An impairment that manifests

only some of those criteria, no matter how severely, does not qualify.”). 

More specifically, Section 3.03 of the Listing of Impairments, 20 C.F.R. pt. 404, subpt. P,

app. 1 § 3.03, specifies the conditions that Gonzalez must meet in order to be determined

disabled on account of his asthmatic condition. The only pulmonary function test on record for 2

Gonzalez does not, however, appear to satisfy the criteria of Subsection 3.02A as required under

Subsection 3.03A. More specifically, a person with Gonzalez’s physical characteristics would

have to demonstrate that a 1-second forced expiratory volume (FEV1) was equal to or less than

1.35 – Gonzalez’s FEV1 was 1.42 after bronchodilators. Plaintiff also offers no responsive

evidence as to the nature and frequency of the attacks as required under Subsection 3.03B
6

Accordingly, we must conclude that plaintiff has not sufficiently met the requirements under

Section 3.03 to show that Gonzalez was per se disabled due to his asthmatic condition.

Plaintiff’s claim that Gonzalez suffered a medically cognizable, per se impairment due to

his depression fares no better. Section 12.04 of the Listing of Impairments, id. § 12.04, specifies

various conditions Gonzalez must meet to be determined disabled due to his depressive

condition. One such subsection, Subsection A, requires at least four of a set of nine separate

medically determinable ailments to be documented and “persist[ent], either continuous[ly] or

intermittent[ly].” Id. The record reflects that Gonzalez suffered from, at most, two of these

symptoms, namely insomnia and suicidal thoughts, which clearly falls well short of satisfying the

provision. Moreover, the record does not adequately demonstrate that either symptom persisted,

continuously or intermittently. 

In the alternative, plaintiff can seek to demonstrate that Gonzalez had a disabling

depressive condition pursuant to Subsection C under Section 12.04, which requires plaintiff to

demonstrate, inter alia, a medically documented history of chronic affective disorder that lasted

at least 2 years and that caused more than a de minimis adverse impact on Gonzalez’s ability to

work. The record does not, however, contain any evidence of a medically documented history of

depression of at least 2 years’ duration. Plaintiff cannot, therefore, demonstrate that Gonzalez

suffered a per se disabling depressive condition under any part of the applicable provisions.

Finally, with respect to Gonzalez’s musculoskeletal complaints, we cannot find that he

was per se disabled due either to back or knee pain. Section 1.04 of the List of Impairments, id.

§ 1.04, requires a highly specific, medically determinable finding of a spinal disorder, “(e.g.,

herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
 This holistic analysis belies plaintiff’s argument that the ALJ had failed to consider all 3

of the claimed impairments together pursuant to 20 C.F.R. § 404.1523.

7

disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the

cauda equina) or the spinal cord.” Id. Extensive examination of this medically complex

provision is not necessary in this case because there are no medical opinions or findings in the

record that speak meaningfully to the provision’s requirements. Though Gonzalez logged

intermittent complaints of back pain, there were no relevant diagnoses that would have supported

a finding of per se impairment due to a spinal disorder pursuant to Section 1.04.

Nor is there any medically relevant support to find that Gonzalez was per se disabled due

to knee pain. Section 1.02 of the List of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02,

requires, inter alia, a “gross anatomical deformity . . . and chronic joint pain and stiffness with

signs of limitation of motion . . . and findings on appropriate medically acceptable imaging of

joint space narrowing, bony destruction, or ankylosis of the affected joint(s).” Id. Though

Gonzalez complained of knee pain on March 27, 1996, the resulting medical evaluation did not

reveal any “gross anatomical deformities,” nor any other medically relevant condition that might

have otherwise satisfied the requirements under Subsection 1.02. 

Thus, the medical record before us offers no basis upon which to substantiate any per se

disabling condition under the List of Impairments. Indeed, in adopting a holistic perspective on

the evidence and summarizing the record, the ALJ noted that Gonzalez’s ailments, “singly or in

combination” were not “‘severe’ enough to meet . . . any of the impairments” listed under the

List of Impairments. The ALJ, therefore, properly proceeded to assess Gonzalez’s residual 3
 At various points, plaintiff complains that the ALJ failed to adequately develop 4

Gonzalez’s medical record in support of his disability claim. However, it is, in the first instance,

the claimant’s burden to provide adequate medical evidence. Moreover, plaintiff here has failed

to identify what records are missing and how they would affect Gonzalez’s case. Accordingly,

we do not find any infirmity in the ALJ’s development of the record.

 Rule 201.18 of the Medical-Vocational Guidelines directs a finding of “not disabled” 5

for 45-49 year old individuals with limited education and low skills or no work experience who

can do sedentary work.

8

functional capacity, ultimately concluding that Gonzalez was able to handle sedentary work.4

The last step in the disability analysis – and where the burden partially shifts – requires

the Commissioner to demonstrate that there were jobs available to Gonzalez, which he could

have handled in light of his residual capacity. Though it was determined that Gonzalez could no

longer work in his previous occupations as a fabric cutter or mechanic, the ALJ concluded that

“[b]ased on a residual functional capacity for a full range of sedentary work, Rules 201.18 and

201.21 [of the Medical-Vocational Guidelines], used as a framework for decisionmaking, would

direct a finding of ‘not disabled.’” Where, as here, the ALJ’s findings align with Rule 201.18, 5

she can rely on the rule to direct a finding that the claimant is not disabled. See Heckler v.

Campbell, 461 U.S. 458, 461, 462 (1983); Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984). 

Based on the availability of sedentary jobs appropriate to Gonzalez’s residual capacity, we find

that there is sufficient evidence to support the ALJ’s conclusion that Gonzalez was not disabled

before March 31, 1996. Accordingly, we have no occasion to set aside the district court’s order

affirming the Commissioner’s conclusion.

Finally, we also note that Gonzalez’s 1998 application for Supplemental Security Income

(“SSI”) was not properly before the district court (which the court duly noted) because

Gonzalez’s death on February 10, 1999 extinguished the claim before the Commissioner could
 Even if any benefit underpayment could be established, only a surviving spouse can, 6

under certain circumstances, qualify to receive the benefit. See 42 U.S.C. § 1383(b)(1)(A); 20

C.F.R. § 416.542(b). Gonzalez, however, never married.

9

issue a reviewable final determination. See 42 U.S.C. § 1383(c)(3); see also Weinberger v. Salfi,

422 U.S. 749, 757-58 (1975) (stating that 42 U.S.C. § 405(h) includes an exhaustion provision,

which “prevent[s] review of decisions of the [Commissioner] save as provided in the [Social

Security] Act, which provision is made in § 405(g)”). In order for Gonzalez to have obtained a

reviewable decision, he would have been required to procure an initial determination, a

reconsideration of that determination, a hearing decision by an ALJ, and an Appeals Council

review. See 20 C.F.R. pt. 416, subpt. N. But here, Gonzalez’s 1998 SSI claim did not even

receive an initial determination, and was therefore not the subject of a review by an ALJ or the

Appeals Council. Therefore, there is no final decision of the Commissioner subject to review

under 42 U.S.C. §§ 405(g) and 1383(c)(3).

6

We have considered plaintiff’s remaining arguments and find them to be without merit.

For the foregoing reasons, the order of the district court is AFFIRMED. 

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

By:_________________________________