Opinion
No. 99 Civ. 709 (LTS)(AJP)
March 3, 2003
Douglas C. J. Brigandi, Esq., Attorneys for Plaintiff.
Susan D. Baird, Esq., JAMES B. COMEY, UNITED STATES ATTORNEY, Attorney for Defendant.
OPINION AND ORDER
Plaintiff Regina Dore ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) for review of a final determination of defendant Kenneth S. Apfel, Commissioner of the Social Security Administration, ("Defendant" or "Commissioner") denying Plaintiff's application for a period of disability and disability insurance pursuant to the Social Security Act, 42 U.S.C. § 416(i) and 423, respectively. Before the Court are motions for judgment on the pleadings.
Based on the evidence in the administrative record, the Court affirms the Commissioner's decision to deny Plaintiff's application for benefits. Thus, the Commissioner's motion is granted.
PROCEDURAL HISTORY
The following procedural background information is taken from the transcript of the administrative record filed as part of the Commissioner's Answer. Plaintiff filed an application for disability insurance benefits on July 12, 1993, (Tr. 39-42), claiming that she became unable to work on June 12, 1992 due to the residuals of a head injury, poor circulation, and cramps in her legs. (Tr. 76). This application was denied initially, (Tr. 43, 52-4), and on reconsideration. (Tr. 56, 65-8). Plaintiff then requested a hearing. (Tr. 69). The hearing was held on October 12, 1995, and Plaintiff and her attorney appeared before an Administrative Law Judge ("ALJ"). (Tr. 24-38). The ALJ considered the case de novo and, on October 23, 1995, found that Plaintiff was not under a disability. (Tr. 13-20). Plaintiff's request for an Appeals Council review of the hearing decision was not granted. (Tr. 3-4, 10). Plaintiff then commenced an action in this Court, Dore v. Callahan, 96 Civ. 8926 (JGK). By stipulation of the parties and order of the Court dated August 26, 1997, that case was remanded to the Commissioner for further development of the record concerning Plaintiff's treating physician. (Tr. 240-1).
A second hearing was held before the ALJ on April 29, 1998, at which the Plaintiff and her attorney appeared. (Tr. 242-96). The ALJ again considered the case, de novo, and found, on June 19, 1998, that the Plaintiff was not disabled during the relevant time period. (Tr. 211-29). The ALJ's decision became the final decision of the Commissioner when the Appeals Council did not assume jurisdiction of the case.
The ALJ determined that Plantiff had not been disabled at any time on or before December 31, 1997. (Tr. 225).
Plaintiff commenced the instant action in February 1999. The case was thereafter transferred from Judge Koeltl to the undersigned.
FACTUAL BACKGROUND
The following facts are also taken from the transcript of the administrative record filed as part of the Answer.
According to Plaintiff's testimony, she was born on June 22, 1949. (Tr. 39). She completed high school and one year of college. (Tr. 80). Plaintiff testified before the ALJ that she worked as a child care worker and a social worker from February 1988 to June 1992 and earned more than $25,000 per year. (Tr. 251-52, see Tr. 80).
Plaintiff testified that she stopped working in 1992 because she started to have pains in her legs that resulted from a work-related injury when a steel mannequin fell and hit her on the side of the head. (Tr. 253-54). Plaintiff reported that she suffered from headaches and pains in neck, right shoulder, and lower back. (Tr. 254). Plaintiff testified that she always had some pain, and that she suffered panic attacks, confusion and depression. (Tr. 255). Plaintiff stated that she can stand and sit for about half an hour each, walk two or three blocks, lift light grocery bags weighing five to ten pounds, and take public transportation, but cannot bend or climb. (Tr. 257-58).
Medical Evidence
The administrative record indicates that various physicians, therapists and specialists treated Plaintiff and evaluated Plaintiff's claimed disability.
Various medical reports supported the conclusion that, while Plaintiff's capacity was limited as a result of her injury, she was not disabled within the meaning of the Social Security Act. Specifically, reports by Dr. Julian Ungar-Sargon, who treated Plaintiff during the period from April 1990 through July 1992 (Tr. 170-86), concluded that Plaintiff could be retrained for a different kind of job. (Tr. 172). June and July 1992 reports by Dr. Peter Brothers for the New York State Education Department concluded that, while Plaintiff was unable to work in a job requiring long hours of standing, she could work thirty-five to forty-five hours a week. (Tr. 95, 97). An August 1992 examination by Dr. Ernesto Resurreccion, a neurologist, revealed that Plaintiff had no neurologic deficits which would limit vocational opportunity. (Tr. 108, 109). A September 1993 examination by Dr. Steven Rocker concluded that Plaintiff had no objective physical impairment. (Tr. 163). A report by Dr. Teresella Godolo, a neurology specialist who examined Plaintiff on October 1997, concluded that Plaintiff had normal sensation and normal motor function and strength (Tr. 324), that Plaintiff's impairments did not affect her ability to reach, handle, feel, push, pull, see, hear, or speak, and that Plaintiff did not have any environmental restrictions. (Tr. 328). A report by Dr. Margaret Chu, a psychiatrist who evaluated Plaintiff on December 1997, indicated that Plaintiff's capacity for concentration and attention was fair, that her memory was intact for immediate, recent and remote recall, and that Plaintiff had no limitations with respect to understanding, memory, sustained concentration, persistence or social interactions. (Tr. 333).
The record also indicates that Dr. Avraham Henoch, a family practitioner who was Plaintiff's treating physician, and physical therapist Henry Heck examined Plaintiff in 1994, 1995 and 1996, and reported that Plaintiff was totally disabled — contradicting the other medical examiners' conclusion that Plaintiff was able to work. (Tr. 194-97). Dr. Henoch submitted a further report on March 30, 1998 indicating that Plaintiff was "unable to perform any minimal sedentary work," and that Plaintiff was "permanent (sic) and totally disabled from any gainful, useful employment." (Tr. 338).
DISCUSSION
Scope of Review
In an action to review a final determination denying an application for disability insurance under the Social Security Act, the Court "undertake[s] [its] own plenary review of the administrative record . . . in examining the ALJ's decision[.] `[I]t is not [, however, the Court's] function to determine de novo whether [plaintiff] is disabled.'" Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (citations omitted). "Rather, [the Court] must determine whether the Commissioner's conclusions `are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard.'" Id. (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (internal quotation marks and citation omitted)); see 42 U.S.C.A. § 405(g) (West 1991). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted)). The Court has the power "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner . . ., with or without remanding the cause for a hearing." 42 U.S.C.A. § 405(g) (West 1991).
Where "there is substantial evidence to support either position, the determination is one to be made by the fact-finder [the Commissioner]." Davila-Marrero v. Apfel, No. 00-6117, 2001 WL 138340, at *1 (2d Cir. Feb. 15, 2001), cert. denied, 534 U.S. 1071 (2001); see also DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998). However, where a court finds that an administrative record is incomplete or that an ALJ has applied an improper legal standard, the case is generally remanded for further consideration. See Schaal, 134 F.3d at 503 (remanding where unclear what legal standard was applied by ALJ in weighing opinion of plaintiff's treating physician). Where the findings are supported by adequate evidence, "the Court should not substitute its judgment for that of the Commissioner." Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).Qualifying for Disability Benefits under the Social Security Act
In order to qualify for disability benefits, "an individual must be 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.'" Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting 42 U.S.C. § 423(d)(1)(A)). The claimant is disabled "only if his physical impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C.A § 423(d)(2)(A) (West 1994).
To be eligible, a claimant bears the burden of establishing that (1) she was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to last for a continuous period of at least twelve months; and (2) the existence of such impairment was demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques. See 42 U.S.C. § 423(d)(1)(A) (West 1994); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). The Commissioner must consider the following four factors when making a determination as to whether a claimant is disabled: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown, 174 F.3d at 62 (citation omitted).
Review of Commissioner's Determination
In the instant case, the ALJ determined that Plaintiff had severe impairments, but that Plaintiff had no impairments or combination of impairments that qualified her for benefits under the Social Security Act. The ALJ found that Plaintiff retained the residual functional capacity to perform low stress, repetitive, sedentary work which does not require working with the public. (Tr. 225). The ALJ found that, with this residual functional capacity, Plaintiff could not perform her past relevant work as a child care worker. (Tr. 225). However, given Plaintiff's age, education, work experience and residual functional capacity, the ALJ found that Plaintiff could perform other jobs that exist in significant numbers in the national economy and therefore was not disabled. (Tr. 225). Based on the medical and vocational evidence in the record, the Court finds that the ALJ's determination is supported by substantial evidence.
The record demonstrates that a substantial number of the medical reports support the ALJ's determination. See supra pp. 4-5. As noted above, with respect to Plaintiff's complaints of orthopedic and neurological problems, Dr. Rocker found that Plaintiff's station [sic] and gait were normal and that her motor, sensory and reflex systems were also all normal. (Tr. 163). Dr. Rocker concluded that Plaintiff had no objective musculoskeletal impairment or neurologic deficit. (Tr. 163). Similarly, Dr. Cheng reported that Plaintiff had normal muscle strength, sensation, and gait, and had normal coordination. (Tr. 187, 346, 354). Dr. Gondolo, a neurologist, found that Plaintiff had full motor strength, and normal sensation, motor function and deep tendon reflexes. He reported that Plaintiff had no limitation with respect to lifting, carrying, standing, or walking, and that Plaintiff could frequently climb, balance, stoop, crouch, kneel and crawl. (Tr. 324-27). Dr. Gondolo also reported that Plaintiff's impairment did not affect her ability to reach, handle, feel, push, see, hear or speak. (Tr. 328). Dr. Resurreccion, another neurologist, reported that Plaintiff had no neurological deficits which would limit her vocational opportunities. (Tr. 108, 109). Dr. Brothers, for the New York State Office of Vocational Rehabilitation, concluded that Plaintiff could work thirty-five to forty-five hours a week. (Tr. 95, 97).
As to Plaintiff's mental capacity to perform low stress, repetitive work that did not involve contact with the public, Dr. Chu, a psychiatrist, concluded that Plaintiff had no limitations in understanding, memory, sustained concentration, persistence, or social interactions (Tr. 332-33). Dr. Gondolo, the neurologist, also reported that Plaintiff was alert, and oriented to time, place and person, and that her recent and remote memory and speech and language ability were intact. (Tr. 323).
Plaintiff counters by asserting that a 1992 report by Richard J. Schuster, Ph.D, for the State Office of Vocational Rehabilitation demonstrates such substandard mental functioning that Plaintiff should have been found disabled on that basis. Dr. Schuster reported that Plaintiff demonstrated "marked and pervasive patterns highly correlated with those of brain injured individuals." (Tr. 104). A review of the record indicates that the ALJ explicitly considered Dr. Schuster's report in making his decision. (See Tr. 219). The ALJ made a detailed analysis of Plaintiff's mental function issues, finding insufficient impairment to support disability on that basis. (Tr. 227-229). Here, other neurological and psychological reports provide substantial evidence to support the ALJ's decision. Moreover, even Dr. Schuster's report did not conclude that Plaintiff was unable to work. Rather, Dr. Schuster recommended vocational analysis and appropriate support and training. (Tr. 105-106).
Plaintiff argues that the various reports and conclusions of competence should be compared with the report of Plaintiff's treating physician, Dr. Henoch. Dr. Henoch concluded that Plaintiff was in need of mental and psychiatric rehabilitation and was totally disabled. (Tr. 221). The ALJ, however, concluded that Dr. Henoch's opinion could not be given controlling weight. (Tr. 221; see Tr. 338). Plaintiff further argues that she requested the right to confront and cross-examine Dr. Gondolo, but the ALJ rejected this request. Plaintiff argues that the ALJ should have subpoenaed Dr. Gondolo upon Plaintiff's request.
A treating physician's opinion can be given controlling weight only if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record. . . ." 20 C.F.R. § 404.1527(d)(2) (1997); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). When other substantial evidence in the record conflicts with the treating physician's opinion, however, that opinion will not be deemed controlling. Snell, 177 F.3d at 133. Generally, the less consistent that opinion is with the record as a whole, the less weight it will be given. Id.; see 20 C.F.R. § 404.1527(d)(4). "Moreover, some kinds of findings — including the ultimate finding of whether a claimant is disabled and cannot work — are `reserved to the Commissioner.' That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions as to whether those data indicate disability. A treating physician's statement that the claimant is disabled cannot itself be determinative." Snell, 177 F.3d at 133 (internal citations omitted).
Under the applicable regulations, the Social Security Administration is required to explain the weight it gives to the opinions of a treating physician. Id. The factors that must be considered when the treating physician's opinion is not given controlling weight include: (i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist. Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)). The regulations also require the ALJ to set forth her reasons for the weight she assigns to the treating physician's opinion. Clark, 143 F.3d at 118. Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand. Schaal v. Apfel, 134 F.3d at 505. Here, the ALJ's decision reflects a thorough review of the medical record. The ALJ rejected Dr. Henoch's conclusions based on the significant medical evidence provided by other physicians and specialists which contradicted Dr. Henoch's findings. Based on the record, the Court finds no reason to reject the ALJ's treatment of Dr. Henoch's testimony.
Here, Dr. Henoch's opinion was not consistent with the opinions and clinical findings of the other examining physicians and specialists. Moreover, Dr. Henoch's opinion is entitled to less weight than the opinions of other physicians because he is a family practitioner (Tr. 336), while other physicians who rendered opinions that support the ALJ's decision were specialists — neurologists and psychiatrists. Generally, the Commissioner gives "more weight to the opinion of a specialist upon medical issues related to his or her area of speciality than to the opinion of a source who is not a specialist." 20 C.F.R. § 404.1527(d)(5). Finally, to the extent Dr. Henoch's report and opinion were prepared for the Workers' Compensation Board, (see Tr. 194-97), they are not binding on the Commissioner. See 20 C.F.R. § 404.1504; Rosado v. Shalala, 868 F. Supp. 471, 473 (E.D.N.Y. 1994) ("[S]tandards which regulate workers' compensation relief are different from the requirements which govern the award of disability insurance benefits under the [Social Security] Act."). Thus, the ALJ properly evaluated the opinion of Dr. Henoch.
As to Plaintiff's request to cross-examine Dr. Gondolo, the ALJ has discretion as to whether to subpoena reporting physicians. See Yancey, 145 F.3d at 113 (denial of claimant's request to subpoena treating physician for social security disability hearing, so that claimant could cross-examine physician, was not abuse of discretion, where administrative law judge allowed claimant a fair and meaningful opportunity to present her case and had no indication that physician's reports were inaccurate or biased or that subpoenaing physician would have added anything of value to the proceeding). A review of the record indicates that the ALJ "allowed [Plaintiff] a fair and meaningful opportunity to present her case" and "had no indication that [Dr. Gondolo's] reports were inaccurate or biased or that subpoenaing [Dr. Gondolo] would have added anything of value to the proceedings." See Yancey, 145 F.3d at 113. From the record, the Court finds that the ALJ did not abuse its discretion by refusing to subpoena Dr. Gondolo.
Under the circumstances, the ALJ was within his discretion in denying Plaintiff's application for benefits. Here, the medical evidence indicates that, despite Plaintiff's complaints of headaches, pains, and memory loss, many physicians gave assessments indicating that Plaintiff could work. The ALJ found that Plaintiff was a younger individual (forty-nine at the time), and had a high school education. The ALJ further found that Plaintiff had a residual functional capacity. The ALJ considered Plaintiff's situation and found that she could perform other work in the national economy. The record reveals no basis for a determination that substantial evidence is lacking. The Court, accordingly, affirms the ALJ's decision.
CONCLUSION
The Commissioner's motion for judgment on the pleadings is granted and the Commissioner's decision denying benefits is affirmed. Accordingly, Plaintiff's cross-motion for judgment on the pleadings is denied. The Clerk shall enter judgment in favor of the Commissioner and this case shall be closed.