Opinion
00 Civ. 5767 (GEL)
January 24, 2002
Irwin M. Portnoy, Irwin M. Portnoy Associates, P.C., Newburgh, New York, for Plaintiff Frank Flors.
Lorraine S. Novinski, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney, of Counsel), for Defendant Larry G. Massanari.
OPINION AND ORDER
Plaintiff Frank Flors seeks review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits. Plaintiff has moved, and the Commissioner has cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff seeks reversal of the Commissioner's decision with remand solely for the calculation of benefits. The Commissioner seeks affirmance of his decision. For the reasons set forth below, plaintiff's motion is denied, the Commissioner's motion is granted, and the Commissioner's decision is affirmed.
BACKGROUND
Plaintiff applied for disability benefits on May 7, 1993. (Tr. 72-75.) After initial administrative denials, a hearing was held before an Administrative Law Judge ("ALJ"), who decided on July 25, 1995, that plaintiff was not disabled. (Tr. 176-82.) Following a remand from the Appeals Council to consider additional medical evidence submitted by plaintiff, and a second hearing, the ALJ once again determined that plaintiff had not been disabled at any time before December 31, 1996, when he was last insured against disability. (Tr. 14-22.) This became the final decision of the Commissioner on July 7, 2000, when the Appeals Council denied plaintiff's request for review. (Tr. 5-6.) See 42 U.S.C. § 405 (h)(2001). This action followed.
"Tr." refers to pages of the administrative record filed by the Commissioner as part of his answer. See 42 U.S.C. § 405 (g)(2001).
DISCUSSION
I. The Applicable Law
A. Determining Disability
In order for a claimant to be deemed "disabled" under the Act, he must demonstrate his "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. § 423 (d)(1)(A)(2001). Moreover, the impairment must be:
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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423 (d)(2)(A)(2001).
As promulgated in 20 C.F.R. § 404.1520 (2001), the Commissioner is required to apply a five-step procedure in evaluating disability claims. This procedure was recently articulated by the Second Circuit as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in 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 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 curium)); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
In this case, the ALJ evaluated plaintiff's claim pursuant to the procedure set forth in 20 C.F.R. § 404.1520 (2001). He found that plaintiff had not engaged in substantial gainful activity since September 3, 1991 (Tr. 21), and that his impairments "must be considered `severe,' in that they impose significant restrictions on his ability to perform some basic work-related activities." (Tr. 16.) However, the ALJ determined that plaintiff's impairment, which resulted from fatigue, dizziness, weakness, numbness and pain in his neck, back and legs, was not equal in severity to one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2001). (Tr. 21.) The ALJ further found that plaintiff had the residual capacity to perform a full range of sedentary work. (Tr. 21.) The ALJ found that due to his impairments, plaintiff could no longer perform his past relevant work as a warehouse worker. (Tr. 18, 21.) However, considering his age, education, work experience, and residual functional capacity, the ALJ concluded that plaintiff could perform other work that existed in the national economy and, thus, was not disabled as defined by the Act. (Tr. 21-22.)
B. Burden of Proof
The disability claimant bears the burden of proof on the first four issues laid out above. Once claimant's burden has been satisfied, the burden shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working") (citing Carroll v. Sec'y of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
In most cases, the Commissioner attempts to satisfy his burden in the final step by reference to the medical vocational guidelines ("the grids") laid out in 20 C.F.R. Part 404, Subpart P, Appendix 2 (2001). See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also Rosa, 168 F.3d at 78 (2d Cir. 1999) (quoting Bapp). "The grids `take into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience.' Based on these considerations, the grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy." Rosa, 168 F.3d at 78 (quoting Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996)). Generally, when the grid analysis adequately describes a particular claimant's profile, grid determinations are dispositive on the issue of disability. However, "exclusive reliance on the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations." Id. For instance, "sole reliance on the [grids] may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform." Zorilla, 915 F. Supp. at 667. When the grids do not adequately describe a particular claimant's profile the Commissioner must "introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp 802 F.2d at 603. Thus, "application of the grid guidelines and the necessity for expert testimony must be determined on a case-by-case basis." Id. at 605.
Exertional limitations are defined as those that "affect only [claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a (b)(2001). A nonexertional limitation is one that affects the claimant's "ability to meet the demands of jobs other than the strength demands" 20 C.F.R. § 404.1569a (c)(1)(2001).
C. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405 (g)(2001). Thus, a district court may remand, modify, or reverse an ALJ's decision only if the ALJ has misapplied the appropriate legal standard, or if his finding is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.") (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curium)).
The statutory standard of substantial evidence in the Social Security benefits context has been 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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to his inferences and conclusions. See Figueroa v. Apfel, 99 Civ. 3185, 2000 U.S. Dist. LEXIS 5759 at *16-*17 (S.D.N.Y. Apr. 28, 2000) (LAP) (KNF). Moreover, such inferences and conclusions must be affirmed even where the Court's own analysis may differ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) ("`[T]he court may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review'") (quoting Valente v. Sec'y of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
D. Procedural Requirements
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision.
For example, the substantial evidence standard might lead one to expect that a district court must affirm the decision of an ALJ who accepts the medical judgment of a consultative physician who unequivocally finds a claimant fit for work. Yet, the Commissioner has adopted regulations that give greater, and under some circumstances controlling, weight to the opinion of a claimant's treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion. 20 C.F.R. § 404.1527 (d)(2)(2001). These regulations will be enforced by courts. See Rosa, 168 F.3d at 78-79; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Moreover, ALJs are not ordinarily permitted to rely on their own evaluation of test results or medical histories to reject a treating physician's opinion, for a "circumstantial critique by [a] non-physician, however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990).
Nor may an ALJ rely, as factfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before him. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.") (citations omitted). "In fact, where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history `even when the claimant is represented by counsel.'" Rosa, 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Moreover, the Second Circuit has provided very specific instructions as to the type of evidence on which an ALJ can rely, in particular circumstances, in considering whether a claimant retains a capacity for productive employment: "[W]hen a claimant's nonexertional impairments significantly diminish his ability to work — over and above any incapacity caused solely from exertional limitations — so that he is unable to perform the full range of employment indicated by the medical vocational guidelines, then the [Commissioner] must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp, 802 F.2d at 603.
ALJs, unlike most factfinders, may even be precluded from relying uncritically on their subjective assessment of a claimant's credibility. Because "the subjective element of pain is an important factor to be considered in determining disability," Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted), the Commissioner is required to evaluate the credibility of subjective evidence against objective medical evidence as well as demeanor and other indicia of credibility. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). District courts have rejected ALJ findings that summarily reject claimants' assertions of subjective symptoms as not "fully credible" in light of objective evidence, Lewis v. Apfel, 62 F. Supp.2d 648, 651 (N.D.N.Y. 1999), or even as inconsistent with negative diagnostic tests, McLay v. Apfel, 99 Civ. 3505, 2001 WL 197879 at *3 (S.D.N.Y. Feb. 20, 2001) (KMW).
Finally, the ALJ may turn out to be wrong even when he was right at the time the decision was rendered; the administrative proceeding is not quite over even when it's over. Medical reports sent to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully evaluated to determine whether the Commissioner fully complied with all the relevant regulations.
II. Application to this Case
The ALJ's finding that plaintiff is able to do sedentary work is amply supported by the record. The doctors on whom plaintiff relies — a chiropractor and a general practitioner who treated plaintiff only intermittently — do not purport to opine that plaintiffs impairments meet or exceed those set forth in the listing of impairments, nor do they provide substantial evidence of inability to perform sedentary work. Moreover, three consulting examiners explicitly found that, despite significant impairments resulting from his back problems, plaintiff met the stated capabilities for performing such work. Thus, the ALJ's conclusions are supported by substantial record evidence.
Plaintiff, however, raises a series of essentially procedural objections to the Commissioner's decision, none of which have merit:
1. Plaintiff claims that the ALJ erred in failing to consider the combined effects of all of his ailments. (P. Mem. 13-14). Plaintiff is correct that the Commissioner is required to do so. Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995). But the ALJ here fully considered all functional impairments cited by plaintiff. The ALJ is not required to cite and discuss each and every symptom or illness claimed by a disability claimant, only to consider the effect of all of his impairments. Plaintiff does not mention any way that his various ailments interfered with his ability to work that was not taken into account by the ALJ.
In passing, plaintiff claims that the ALJ's finding that he is unable to do overhead work mandates a finding of disability pursuant to Social Security Ruling 85-15, 1985 WL 56857. (P. Mem. 14 n. 25.) But this ruling refers to inability to "reach" or "handle," and does not require a finding that inability to work overhead constitutes complete disability.
2. Plaintiff claims that the ALJ erred in failing to give appropriate weight to the opinion of a treating physician, Dr. Joseph Ingrassia. (P. Mem. 14-16.) As discussed above, the Commissioner is required by regulation to apply particular criteria in evaluating a treating physician's opinion as to disability. See generally Santiago v. Massanari, 00 Civ. 3847, 2001 U.S. Dist. LEXIS 9881 at *24-*25 (S.D.N.Y. July 16, 2001). Here, however, Dr. Ingrassia was not treating the back problems that were the primary basis of plaintiffs disability claim; he had not seen plaintiff for about two years when he first offered his opinion on disability in April 1996; Dr. Ingrassia is a general practitioner, not a specialist in orthopedics or spinal problems; and his opinion that plaintiff is unable to sit for a total of six hours during a normal workday — the only point on which his opinion is inconsistent with the ALJ's conclusion that plaintiff can perform sedentary work — is inconsistent with the opinions of the three examining physicians. These are precisely the factors (length and extent of treatment relationship, frequency of examination, consistency with the record as a whole, and physician's specialty) that the ALJ is required to consider in assessing a treating physician's opinion, 20 C.F.R. § 404.1527 (d), and the ALJ noted each of them. (Tr. 17-20.)
3. Plaintiff claims that the ALJ erred in rejecting the opinion of Dr. E. F. Landi, a chiropractor. (P. Mem. 17-18.) But the Second Circuit has held that a chiropractor is not a medical source whose opinion is given controlling weight under the treating physician doctrine. Diaz v. Shalala, 59 F.3d 307, 312-14 n. 8 (2d Cir. 1995). Moreover, Dr. Landi's opinions regarding plaintiffs impairments were fluctuating and internally inconsistent (Compare Tr. 124 with Tr. 274; compare Tr. 143 with Tr. 273), as well as inconsistent with Dr. Ingrassia's (Compare Tr. 147 with Tr. 198). Under these circumstances, the ALJ was fully entitled to accept the consistent views of the three consulting physicians over Dr. Landi's opinion.
4. Plaintiff claims that the ALJ erred in not explaining why he did not meet or equal the severity of the clinical criteria of any impairment or condition found in the SSA's Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, citing in particular § 1.05(C). (P. Mem. 18-19.) It is true that the ALJ did not specifically address this particular listing. But to meet this listing, a claimant must show (among other things) "radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05(C). Dr. Landi, on whom plaintiff relies to establish that he met these criteria, in fact found only one of them (sensory loss), but not the other three. (Tr. 147.) Neither Dr. Ingrassia nor any of the three consulting physicians found any of these four types of loss. (Tr. 198, 127-28, 129-30, 246-47.)
5. Plaintiff claims that the ALJ erred in failing to obtain an updated opinion from a medical expert. (P. Mem. 19.) But the regulation cited by plaintiff only applies when "additional medical evidence is received that in the opinion of the [ALJ] . . . may change the State agency medical. consultant's finding that the impairment is not equivalent in severity to any impairment in the Listing of Impairments." Soc. Sec. R. 96-6p, 1996 WL 374180. This situation did not obtain here, since, as noted immediately above, there was no new evidence, and indeed no evidence at all, that would suggest that plaintiffs impairments met or equaled the severity of those listed.
6. Plaintiff claims that the ALJ erred in finding his claims of subjective symptoms "not entirely credible." (P. Mem. 19-21, referring to Tr. 18-19 see also Tr. 21 ("not fully credible").) As noted above, some district courts have overturned ALJs' findings that were based on purely subjective assessments of credibility. Whether or not such decisions are correct, moreover, it is clear that ALJs are required to evaluate a claimant's credibility against objective medical evidence. Marcus, 615 F.2d at 27. But that is exactly what the ALJ here did, assessing plaintiffs credibility not on bare reference to his demeanor — indeed, the ALJ did not rely on his subjective impressions of plaintiff's testimony at all — but rather on a careful review of the objective medical evidence and plaintiffs prior statements to treating and examining doctors. (Tr. 18-19.)
7. Plaintiff claims that the Commissioner did not meet his burden of showing that there is work in the national economy that he can perform. (P. Mem. 21-22.) Since the ALJ found that plaintiff had met his burden of establishing that he was not performing gainful activity, that he suffered from severe impairments, and that he could not perform his past work, the burden does indeed shift to the Commissioner to establish this element. Perez, 77 F.3d at 46. Plaintiff argues that in this case, as inCurry, 209 F.3d 117, reliance on a "vague" opinion of an examining doctor (P. Mem. 21) failed to meet this burden. Here, however, three consulting physicians opined quite specifically as to plaintiffs residual capacities. (Tr. 128, 130, 247.) Moreover, these opinions fully supported the ALJ's conclusion (Tr. 21) that plaintiff was capable of performing sedentary work by reference to 20 C.F.R. § 404.1569 and 20 C.F.R. Pt. 404, Subpt. P, App. 2, R. 201.18 tbl. 1, without the need for testimony from a vocational expert. Contrary to plaintiffs argument (P. Mem. 23), such expert testimony is only required when the ALJ determines that the range of work the claimant can perform is significantly limited by a non-exertional impairment. Bapp, 802 F.2d at 603. Here, the ALJ found that the only non-exertional impairment present — inability to do overhead work — did not significantly limit the ability to perform sedentary work.
While plaintiff argues that he also suffered an additional non-exertional impairment of his ability to maintain attention and concentration (P. Mem. 23), the only evidence in the record concerning this problem is a passing reference in Dr. Ingrassia's report (TR. 201), which does not establish that this limitation significantly impairs plaintiff's ability to do sedentary work.
For these reasons, none of the arguments put forward by plaintiff justifies reversal of the Commissioner's finding of non-disability.
CONCLUSION
The plaintiff's motion for judgment on the pleadings is denied. The defendant's motion for judgment on the pleadings is granted, and the Commissioner's decision is affirmed.