Opinion
Case No. 02-CV-3647 (FB)
September 23, 2003
PAMELA THOMAS, ESQ., Fine, Olin Anderman, LLP, New York, NY, for the Plaintiff
ROSLYNN R. MAUSKOPF, ESQ. New York, ARTEMIS LEKAKIS, ESQ., Brooklyn, New York, for the Defendant
MEMORANDUM AND ORDER
Plaintiff Adrienne Gang ("Gang") seeks review of the final determination of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. As explained below, the Court determines that the ALJ erroneously failed to give controlling weight to the opinions of Gang's treating physicians and inappropriately discredited Gang's testimony regarding her pain and its effect on her ability to work. The Court reverses and remands for calculation of benefits.
I.
The following facts are gleaned from the hearing conducted by the ALJ on November 17, 1998. Gang was born on August 27, 1943, and has a masters degree in library science, with an emphasis on computers. From 1978 to 1994, Gang worked as a database and program analyst. She contends that she has been unable to work since November 10, 1994, due to carpal tunnel syndrome and pain and chronic fatigue associated with fibromyalgia, a "syndrome of chronic pain of musculoskeletal origin but uncertain cause." Green-Younger v. Barnhart, 335 F.3d 99, n. 1 (2d Cir. 2003) (quoting Stedman's Medical Dictionary 671 (27th ed. 2000)).A. Medical Records
Gang's treating physicians, Dr. Paget and Dr. Smith, both rheumatologists, rendered diagnoses of fibromyalgia, bilateral carpal tunnel syndrome, cervical sprain, inflammatory vasculitis, and osteoarthritis. See R. at 198, 200, 201, 236, 273, 306, 337, 348. In a follow-up note to Gang's visit on August 16, 1994, Dr. Paget stated that Gang "could have a mild connective tissue disease but she clearly has fibromyalgia type phenomenon with trigger points." R. at 206. In a follow-up note to a visit on November 29, 1994, Dr. Paget stated that Gang "clearly continue[d] to have fibromyalgia signs and symptoms . . . manifested by fatigue, polyarthritis, elevated sed rate and skin vasculitis." R. at 203. In a Physician's Statement to Gang's long-term disability carrier, Dr. Paget reported that Gang's impairments significantly limited her ability to work and that she was "unable to lift, type, sit for long periods of time, use a keyboard, [or] lift/carry heavy objects." R. at 226. On the Physical Capacities Evaluation section of the Physician Statement, Dr. Paget circled areas indicating that Gang was capable of sitting and walking for only two hours with rests, and standing for one hour. R. at 228.
"R." refers to the Administrative Record before the Court.
With respect to Dr. Smith's diagnoses, in a letter dated August 12, 1996, she reported that Gang "continue[d] to have multiple trigger points," and that on her last visit "eighteen trigger points of tenderness were noted." R. at 273. In addition to trigger points, Dr. Smith noted in that letter that Gang's fibromyalgia symptoms included "neck, shoulder and back pain, as well as pain in the legs, [which was] associated with chronic fatigue and poor sleep pattern." R. at 348. In a letter dated November 26, 1996, Dr. Smith stated:
Patient is able to sit for only two hours in an eight-hour day, with frequent rests. She is specifically unable to use a keyboard or type. Her attempt to do this in August of 1996 [when Gang briefly attempted to return to work] resulted not only in severe pain and prolonged symptomatology, but also in extreme anxiety and depression. I feel that the disability is total and permanent, primarily related to fibromyalgia, but with additional features of osteoarthritis and carpal tunnel syndrome. The expectation of future productivity in the usual workplace is not possible.
R. at 307. Dr. Smith also noted in that letter that Gang's low threshold for pain created "extraordinary anxiety and depression[,]" further impairing her work capabilities. Id.
From 1995 to 2000, Gang also visited the following neurologists, who each rendered treatment and reported on her condition: Dr. Arthur Farkash ("Dr. Farkash"), Dr. Richard J. Radna ("Dr. Radna"), Dr. Howard Sander ("Dr. Sander"), Dr. Jerry Kaplan ("Dr. Kaplan"), and Dr. Agnes Blau ("Dr. Blau").
Dr. Farkash reported in a letter dated March 22, 1995, that although Gang was suffering from carpal tunnel syndrome, her mental status, cranial nerves and motor skills were normal. See R. at 265-266. In a report completed for the New York State Department of Social Services dated May 18, 1995, Dr. Farkash checked boxes indicating that Gang had no limitation with regard to lifting, carrying, standing, walking, or sitting, but was limited in her ability to push or pull, and commented that she could not "perform repetitive movements" with her hands. R. at 214. In a Medical Summary dated October 11, 1995, Dr. Radna found "bilateral carpal tunnel syndrome and a cervical musculo-skeletal and radicular derangement," but noted that "[n]eurological examination including mental status, cranial nerves, motor, sensory, reflex, cerebellar, gait and Romberg examinations [was] unremarkable." R. at 230. Three years later, he rendered an opinion in a Medical Summary dated November 2, 1998, that Gang's disability was total, given the "chronicity of patient's symptoms." R. at 419.
In a letter dated April 24, 2000, Dr. Sander reported "evidence of a bilateral median neuropathy at the wrist (carpal tunnel syndrome), moderate on the right and mild on the left," but noted otherwise normal results from examination of Gang's cranial nerves, motor skills and senses. R. at 433. Although Dr. Sander stated in that letter that gait examination was "essentially normal," he recognized that "there is some limitation due to generalized pain with a slowness of gait. Ms. Gang is able to stand on her heels and toes but unable to walk on them due to pain." R. at 433. In a note dated April 12, 1995, Dr. Kaplan found "mild focal slowing" in Gang's right wrist and "minimal to mild focal slowing" in the left wrist; that Gang had "several tender trigger points in the neck and shoulder area," R. at 209, but that "mental status [was] normal [and] strength was normal throughout." Id. In a note dated August 12, 1996, Dr. Blau reported "bilateral median neuropathy" as evidence of bilateral carpal tunnel syndrome, but found no other neurological problems. R. at 293.
Gang was referred to Social Security Administration consulting orthopedist Roger Antoine ("Dr. Antoine"), who concluded that Gang had "fibromyalgia, vasculits [and] bilateral carpal tunnel syndrome." R. at 220. He nonetheless checked boxes on a Residual Functional Capacity Assessment indicating that Gang had the residual functional capacity ("RFC") to perform sedentary work, was capable of occasionally lifting ten pounds, frequently lifting less than ten pounds, standing or walking at least two hours per day, and sitting less than six hours. See R. at 161.
B. Testimonial Evidence
Gang testified that she experiences almost constant pain, often loses sense of feeling in her hands, is unable to sleep, has difficulty concentrating due to pain, and can sit only ten to fifteen minutes per day, stand a few minutes, and lift and carry up to three pounds. See R. at 455-456, 465, 476. She occasionally uses public transportation and does light cooking, but otherwise has someone help her around the house. See R. at 479.
Dr. Smith testified that while Gang's "carpal tunnel syndrome had improved" with treatment, her fibromyalgia had worsened. R. at 487. Dr. Smith opined that Gang's combination of impairments prevented her from working; she would have " difficulty sitting for even an hour," and that her capacity to sustain a job was made nearly impossible "because of her fibromyalgia, her lack of sleep, her tendency [of] carpal tunnel occurring with any activity, her depression and anxiety, [and] her osteoarthritis." R. at 490.
Based on a review of Gang's medical records, Dr. Wilier, a consulting neurologist called by the ALJ, disagreed with the fibromyalgia diagnosis, and concluded that Gang's carpal tunnel syndrome was mild and existed only in her right wrist. He testified that in his opinion Gang suffered from a "conversion disorder," R. at 459; furthermore, relying on the normal neurological findings of the treating neurologists, he stated that if Gang had fibromyalgia, it created "no physical limitations." R. at 463. When the ALJ asked Dr. Wilier his opinion as to Gang's RFC, he responded that "there's no limitation." R. at 464.
Dr. Plotz, a consulting rheumatologist called by the ALJ, testified that despite Gang's constant complaints of pain, her medical records revealed "minimal findings" of impairment. R. at 466. He emphasized that fibromyalgia "is a syndrome and not a disease[,]" R. at 467, and that it is only disabling to the extent that "anything that causes subjective complaints, can subjectively be disabling." R. at 470. Dr. Plotz did not express an opinion as to Gang's RFC.
Dr. Seigel, a vocational expert called by the ALJ, testified that if the ALJ found that Gang "can sit for six hours, and walk for two hours, [and had a] mild limitation in the use of her hands," she could perform her past work and three other sedentary jobs in the national economy: computer security coordinator, receptionist, and check cashier. R. at 479. Dr. Seigel conceded, when asked by Gang's attorney, that if Gang was "capable of sitting only two hours per day . . . stand[ing] for one hour," had limited use of her hands, and "pain and fatigue" from fibromyalgia, she would be unable to perform her past work or the other sedentary jobs he had identified. R. at 481.
II.
In a decision dated January 21, 1999, the ALJ acknowledged the familiar five-step procedure for evaluating disability claims under the SSA. As recently articulated by the Court of Appeals, "[i]n essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a `severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do.'" Green-Younger v. Barnhart, 333 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v, Barnhart, 311 F.3d 468 (2d Cir. 2002)). The claimant bears the burden of proof on the first four steps, the Commissioner bears the burden on the fifth step. See id.
In respect to the first three steps, the ALJ found that Gang had not engaged in substantial gainful activity since November 10, 1994, despite two unsuccessful work attempts (first step); that she suffered from fibromyalgia, carpal tunnel syndrome, cervical sprain, inflammatory vasculitis and osteoarthritis, which were "severe" impairments (second step); and that her impairments were not listed in Appendix 1 of the SSA regulations (third step). Consequently, the ALJ proceeded to the fourth step, which requires a claimant to establish "an inability to return to [his] previous specific job and an inability to perform [his] past relevant work generally." Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003). This inquiry "requires separate evaluations of the previous specific job and the job as it is generally performed." Id. at 184.
The ALJ determined that Gang retained the RFC to perform sedentary work, finding that Gang could "occasionally lift and carry ten pounds, frequently lift and carry five pounds, stand and walk for two hours in an eight hour day, sit for six hours in an eight hour day and has only a mild limitation of use of the upper extremity and is able to grasp and manipulate and perform repetitive movements with normal breaks and rest periods." R. at 45. Based upon his RFC assessment and the testimony of the vocational expert, the ALJ concluded that Gang could perform her prior work as a database and program analyst; therefore, she was not disabled.
The ALJ declined to give Dr. Smith and Dr. Paget's opinions as to the nature and severity of Gang's impairments controlling weight because he found that those opinions were "not supported by substantial medical signs and laboratory findings and were not consistent with the record as a whole." R. at 42. The ALJ stated that "neurological exams repeatedly revealed the presence of normal grip strength, full strength of upper and lower extremities, and normal neurological findings while Dr. Smith mainly provided cursory notes as to disability and related various symptoms." R. at 42. The ALJ credited the opinions of Dr. Farkash and the SSA consultants in making his RFC determination.
As required by 20 C.F.R. § 404.1529(a), the ALJ also considered Gang's subjective complaints of pain, but found that her testimony " [was] not consistent with substantial medical findings, particularly the negative neurological findings and laboratory tests, claimant's activities, positive response to treatment, and lack of potent pain medication, and therefore were not credible." R. at 45.
Although the ALJ found that Gang was not disabled at step four, he nonetheless considered step five. Based upon the testimony of the vocational expert and the ALJ's RFC determination, the ALJ concluded that Gang was capable of performing other jobs that existed in significant numbers in the national economy. The Appeals Council denied plaintiff's request for review on May 3, 2002, constituting the final decision of the Commissioner.
III.
The Court must evaluate whether the ALJ's findings are supported by "substantial evidence in the record as a whole or are based on an erroneous legal standard." Green-Younger, 335 F.3d at 106 (quoting Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Curry, 209 F.3d at 122)). Failure to apply the correct legal standard is ground for reversal. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
"[A] treating source's opinion on the issue (s) of the nature and severity of [a claimant's] impairments" will be given "controlling weight" if the opinion is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Green-Younger, 335 F.3d at 106 (quoting 20 C.F.R. § 404.1527(d)(2)). The ALJ cannot "arbitrarily substitute his own judgment for competent medical opinion." Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). When controlling weight is not given to a treating physician's medical opinion, the ALJ must "set forth [his] reasons for the weight [he] assigns to the treating physician's opinion." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
In Green-Younger, a claimant diagnosed with fibromyalgia was denied disability benefits. The Second Circuit reversed and remanded for calculation of benefits because the ALJ improperly rejected the opinion of the claimant's treating physician on the basis that there was a lack of objective medical findings. The court recognized that fibromyalgia can be a disabling impairment but that it "eludes measurement" through objective medical evidence because there are "no objective tests which can conclusively confirm the disease." Id. at 108. Consequently, the court held that an ALJ cannot reject a treating physician's fibromyalgia diagnosis or refuse to give the physician's opinion controlling weight based upon a lack of objective evidence, nor require "objective" evidence "beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines." Id. at 106.
The court in Green-Younger also noted that a lack of abnormal neurological findings actually "confirm[s] a diagnosis of fibromyalgia." Id. at 109. Additionally, the court noted that it was improper to reject the claimant's uncorroborated testimony of pain since the testimony was "consistent with common symptoms of fibromyalgia." Id. at 108. Finally, the court held that the ALJ improperly credited the opinion of a non-examining consultant who, based upon the normal neurological findings, concluded that the claimant was capable of performing sedentary work. The court reasoned that since normal neurological findings do not preclude a finding of disability due to fibromyalgia, the consultant's opinion " [was] not substantial evidence" outweighing the treating physician's opinion. Id. at 108.
The Court finds that, just as in Green-Younger, the ALJ similarly erred in this case. The ALJ refused to give controlling weight to the opinions of Dr. Paget and Dr. Smith based upon the purported absence of objective medical evidence. Both doctors relied upon an evaluation of tender points and other signs and symptoms required for a fibromyalgia diagnosis; thus Gang's diagnosis was "well supported by medically acceptable clinical and laboratory findings." Green-Younger, 335 F.3d at 107 (citing American College of Rhematology ("ACR") guidelines that signs and symptoms that support a diagnosis of fibromyalgia include " widespread pain in all four quadrants of the body and at least 11 of the 18 specified tender points on the body," and an SSA Memorandum explaining that "signs for fibromyalgia, according to the ACR, `are primarily the tender points.'"). Under the teaching of Green-Younger, the ALJ could not reject the treating physicians' assessments as to the disabling effect of Gang's fibromyalgia on the basis of normal neurological findings; neither could he properly discredit Gang's testimony about her pain.
Also, according to Green-Younger, the assessments of the non-examining SSA consultants did not amount to substantial evidence that outweighed the opinions of Gang's treating physicians since the consultants' disagreement with the treating physicians was incorrectly primarily based upon the absence of objective neurological evidence. See also Hidalgo v. Bowen, 822 F.2d 294 (2d Cir. 1987) ("the opinion of a non-examining doctor by itself cannot constitute the contrary substantial evidence required to override the treating physician's diagnosis.").
IV.
When the ALJ does not correctly apply the law, reversal and remand is generally appropriate. See Schaal v. Apfel, 134 F.3d at 505. The Court, however, need not remand to the ALJ where "application of the correct legal standards to the record . . .[leads] inexorably to a single conclusion." Id. When the opinions of Dr. Paget and Dr. Smith are properly considered, it is clear that Gang is not capable of performing her prior work as a database or program analyst. Dr. Seigel, the SSA's vocational expert, conceded that if the ALJ accepted the treating physicians' opinions, Gang would be unable to perform her past work and, for step five, the other sedentary jobs he had identified. See R. 475-481. Because application of the correct legal standard inexorably leads to the conclusion that Gang is disabled, remand for calculation of benefits, as in Green-Younger, is appropriate.
CONCLUSION
Plaintiff's motion is granted; the case is remanded for the calculation of benefits.
SO ORDERED.