Opinion
00-CV-6565 CJS
December 27, 2001
Sherwood M. Snyder, Esq., Rochester, NY, for Plaintiff.
Kathleen M. Mehltretter, United States Attorney, Christopher V. Taffe, Assistant U.S. Attorney, Rochester, NY, for Defendant.
DECISION and ORDER
I. Introduction
Petitioner brought this action pursuant to 42 U.S. Code § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") who denied petitioner's application for disability benefits. Before the Court is the Commissioner's motion for judgment on the pleadings (docket # 14) affirming the Commissioner's denial of benefits and petitioner's motion for summary judgment(docket # 13) seeking an order reversing the Commissioner's decision and granting benefits. For the reasons stated below, the Court grants the Commissioner's motion for judgment on the pleadings and denies petitioner's motion.
II. Background
Petitioner was born on April 3, 1954. Record of Proceedings ("R.") at 53. She claims she has been unable to work since May 1, 1994, due to chronic back pain, a heart condition, arthritis in both knees, carpel tunnel syndrome and depression. R. at 13 61.
Petitioner filed an application for supplemental security income on March 4, 1998. The application was denied on December 14, 1998. R. at 38. Petitioner filed a request for reconsideration and that request was denied on April 14, 1999. R. at 39. Petitioner filed a request for a hearing before an administrative law judge and a hearing took place before John P. Costello, Administrative Law Judge ("ALJ"), on August 3, 1999. R. at 12. The ALJ issued a decision on October 27, 1999, denying Petitioner's application for benefits. R. at 12-32. On October 7, 2000, the Appeals Counsel denied Petitioner's request for a review, thereby making the ALJ's decision the Commissioner's final decision on Petitioner's application for Social Security benefits. R. at 5-7.
Petitioner commenced this action on November 17, 2000. She moved for summary judgment on September 24, 2001; on September 26, 2001, the Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Oral argument was held before the Court on December 13, 2001.
In considering the Commissioner's motion for judgment on the pleadings and petitioner's motion for summary judgment, the Court has carefully reviewed the pleadings and the entire administrative record, as well as the comments of counsel made during oral argument.
III. Discussion
A. Medical History
1. Physical Symptoms
Petitioner is an obese woman of sixty inches in height and weighing from 161 pounds in May 1994 to 196 pounds in April 1999. R. at 20. Petitioner's first physical impairment occurred as the result of a work-related injury when she was employed as a nursing aide. In her attempt to catch a patient, she heard something in her back snap. R. at 245. On May 11, 1994, approximately one and one-half weeks after her injury, a physical examination showed that petitioner had decreased range of motion in all directions and had a diffuse muscle spasm through her mid-to-lower back on the left side. R. at 161. She received treatment from Jeff Harp, M.D. R. at 124. He treated her with medication (Flexeril) and rest, and referred her to physical therapy. R. at 124, 161. She was unable to participate in physical therapy on May 31, 1994. R. at 124. A June 6, 1994, computer tomography ("CT") scan showed a left lateral disc herniation. R. at 159. Dr. Kenneth Pearson read the CT scan and opined that the herniation was "most likely not of clinical significance." R. at 159.
The ALJ found that no additional limitations were warranted by petitioner's obesity. R. at 20.
Petitioner continued to express feelings of pain and her range of motion continued to be severely decreased in all directions due to pain. R. at 157. The examining doctor, Michael G. Dunn, M.D., in his July 13, 1994 report, opined that after attempting to examine petitioner, he did not think that she was putting forth any effort to follow his instructions during the examination. For example, when he asked petitioner to try walking on her heels or toes, he reported that she responded, "I can't" and that she did not make much of an effort. R. at 154. He also attempted to examine her back for tenderness or muscle spasm and she jumped at his slightest touch; however, Dr. Dunn was unable to find any trigger points or muscle spasms. R. at 153. He recommended continuing with pain medication and recommended that she return to physical therapy. R. at 154.
Petitioner was seen at Highland Hospital emergency room on July 23, 1994. She was complaining of back pain and was discharged with a prescription for pain medication (Tylenol #3) and advised to rest.
On July 25, 1994, she was seen at the Family Medicine Center and was found to be experiencing tenderness over her entire spinal region. Her sensory was intact and her strength was found to be 5 out of 5. She received a refill of Tylenol #3 and a sedative. R. at 147. A notation in the record states, "pt. promised to make PT appt." R. at 147. In subsequent visits on July 29, 1994; August 5, 1994; August 16, 1994; and August 29, 1994, she continued to complain of lower back pain. R. at 145, 146, 133, 144, 143. She received a blood test for rheumatoid disorder, and the results were normal. R. at 144. She was encouraged on at least three visits to resume physical therapy, apparently without effect. R. at 133, 145.
In a report dated November 25, 1994, Dr. Jeff Harp wrote, "[i]t is imperative that [petitioner] becomes involved in a physical therapy/rehabilitation program as soon as possible." R. at 132. He also noted that the Workers Compensation carrier's independent medical examiner had denied physical therapy to petitioner. R. at 132. Despite that, she apparently reported to a nurse that she had an appointment for physical therapy on October 17, 1994. See R. at 136.
Several medical entries in the record show that petitioner continued to experience lower back pain throughout 1994 and into 1995. R. at 127, 128, 123-26. On January 17, 1995, Dr. Robert Wills attempted to perform a second orthopedic examination. R. at 123-26. Dr. Wills was unable to completely assess reflexes or muscle strength because of her complaints of pain. He stated, "[m]y experience examining Ms. Lilly is similar to the previous examiners, Dr. Wilson and Dr. Diaz, in that she would not allow herself to be adequately examined." R. at 125. His impression was that, "[h]er subjective complaints far outweighed her objective findings." R. at 125. He found she was not disabled. R. at 125.
On October 30, 1995, Dr. J. Simpson-Manse, in a letter to the New York State Department of Social Services, Office of Disability Determinations, wrote that he continued to see petitioner for chronic lower back pain and that she continued to have "subjective worsening of her pain." R. at 121. He stated that she was planning to have magnetic resonance imaging ("MRI") and that he would reserve further assessment until the result of that study was available. R. at 121.
On February 23, 1996, petitioner underwent an MRI. Evidently, petitioner, though sedated with Valium and making her third MRI attempt, was unable to hold still enough for a good result. R. at 118. The radiologist, Kenneth D. Pearson, M.D., wrote in his report that,
Disc space levels grossly within normal limits without evidence for a focal disc herniation or spinal stenosis. Although the limitation of the study [due to petitioner's movement] might obscure a small paracentral disc extrusion, such an abnormality would not account for patient's diffuse low back pain with bilateral leg pain. These symptoms are usually associated with a large central disc herniation or spinal stenosis, neither of which [is] evident on this examination.
A stenosis is a narrowing or constriction of the diameter of a bodily passage or orifice. Merriam Webster's Medical Desk Dictionary (1993) at 675.
Paracentral means lying near a center or central part. Merriam Webster's Medical Desk Dictionary (1993) at 514.
R. at 118.
On March 28, 1997, she was admitted to a local hospital complaining of chest pains, but was discharged the following day "pain free" with a prescriptions for Isordil, NTG SL, ASA, Tylenol #3, Elavil, Soma, Prevacid and Atenolol. R. at 114. She was instructed to resume her normal activities, maintain a low cholesterol diet, and follow-up with the treating physician, B. Naumburg, M.D., in one week. R. at 114. Michael E. Libowitz, M.D., opined in his report of March 28, 1997, that petitioner had "[n]o active cardiopulmonary disease." R. at 117.
On April 22, 1997, at 11:10 p.m., she was admitted to the same hospital and diagnosed with atypical chest pain, noncardiac. R. at 111. She was diagnosed with atypical chest pain, most likely Muscoloskeletal or GI, and chonic pain. R. at 112. She was instructed to continue taking Prevacit, stop Isordil, continue Atenolol and Elavil, Tylenol #3 and Soma; continue ASA; take Mylanta or Maalox prn, start Clinoril and ice her shoulder as needed. R. at 112. An electro cardiogram on April 23, 1997, showed no change from the one administered on April 22, 1997. R. at 109.
PRN, an abbreviation for the Latin phrase, "pro re nata," means "as needed." It is used in writing prescriptions. Merriam Webster's Medical Desk Dictionary (1993) at 575.
Petitioner continued to be seen at the Family Medicine Center in 1997 and 1998 with no changes in her physical symptoms. R. at 93-107, 163-64, 170-76. On May 28, 1997, she was diagnosed with carpel tunnel syndrome and prescribed wrist splints. R. at 106. She was again advised to begin physical therapy. R. at 106. She was seen in a follow-up visit on June 24, 1997, and again advised to begin physical therapy, and continue using the wrist splints. R. at 105. In a follow-up visit on July 25, 1997, Dr. Kious advised her to have her shoulder x-rayed and return in one month to discuss management of her chronic back pain. R. at 104. In a follow-up visit with Dr. Pious on August 26, 1997, petitioner stated that she did not have her shoulder x-rayed, because she prayed about it and felt that God would help her pain. R. at 103. Dr. Kious tried to discuss the subject of low demand jobs with her, but she changed the subject each time he brought up the issue. R. at 103. He continued her medications for pain and made a follow-up appointment with her in one month for a PAP smear and physical examination. R. at 103.
On October 30, 1997, she saw a nurse for what were diagnosed as flea bites. R. at 102. She was able to transfer independently with ease and ambulate normally, received medication refills, and was treated for the flea bites.
2. Psychological Symptoms
On December 9, 1997, petitioner saw Dr. Kious to "discuss her long standing feelings of depression which are currently worse than they have been in the past." R. at 101. She described a loss of appetite, insomnia, anhedonia, guilt, dispair and thoughts of hopelessness. R. at 101. She also stated she had never before told anyone of these symptoms. Dr. Kious started her on Paxil and referred her to Cedrick Alexander, M.D., for psychotherapy.
A psychological condition characterized by an inability to experience pleasure in normally pleasurable acts. Merriam Webster's Medical Desk Dictionary (1993) at 34.
Dr. Alexander, in a report dated September 1, 1998, stated that he had been treating petitioner once per week from January 7, 1998 until approximately April 1, 1998.
He diagnosed her as having an adjustment disorder with mixed anxiety and depressed moods. R. at 191. He found petitioner's speech, thought and perception within normal range of limits. He also found that her insight and judgment were good. R. at 194. In answering questions concerning potential mental disabilities, he listed no limitation on understanding and memory, no limitation on sustained concentration and persistence, no limitation on social interaction. R. at 196. The only limitation he did list was, "may have problems with back injuries." R. at 196. Petitioner recognized in her memorandum of law, at 9, that Cedric Alexander is a medical doctor, "not just an ordinary therapist." Although Dr. Alexander noted petitioner's symptoms of restlessness, fatigue, irritability and depressed movements, he nevertheless concluded only that she, "may have problems with depression and back injuries as reported to her physician." R. at 196.
Melvin Zax, Ph.D., evaluated petitioner one time on May 18, 1998. He diagnosed petitioner on axis 1 with 295.30 schizophrenia, paranoid type. In his suggested therapy and prognosis, he wrote, "I think this claimant should be on antipsychotic medication. She also needs to be followed fairly closely in some kind of psychotherapy. . . . In any case, I think she badly needs help this time. Her prognosis would be very guarded. I don't believe she should be managing her own funds." R. at 183.
B. The ALJ's Decision
The ALJ found that petitioner has not worked since approximately May 1, 1994, due to a back disorder, arthritis in her knees, carpal tunnel syndrome, a heart condition and depression. The ALJ determined, at the first step, that petitioner had not engaged in substantial gainful activity during the period under consideration. R. at 13. The ALJ also determined that because the record demonstrated the presence of a medically determinable condition that significantly limited petitioner's ability to perform basic work activity, she suffered from a severe impairment.
The ALJ reached the third step of the sequential evaluation process and determined petitioner's impairment did not fit those listed in Appendix 1, Subpart P of Regulation No. 4. The ALJ noted that petitioner's CT scan showed a small left lateral disc herniation at L4-5, but did not show that the condition was accompanied by the, "appropriate radicular neurological deficits specified in section 1.05(c)." R. at 13. The ALJ also noted that except for one report in May 1997, treating sources reported no neurological deficits to petitioner's lower extremities on repeated examinations in 1997, 1998 and through March 1999. Last, the ALJ found that a consultive examination in April 1999 found no sensory or reflex deficits in petitioner's lower extremities. Thus, he found that section 1.05(c) was not met. R. at 14.
Of, relating to, or involving a nerve root. Merriam Webster's Medical Desk Dictionary (1993) at 599.
The ALJ found evidence of petitioner's depression and anxiety, but found that, "the evidence does not reflect the deterioration in functioning specified by the `B' criteria." R. at 14. Even considering petitioner's physical and mental impairments together, the ALJ found that "the level of severity does not equal that contemplated for any of the Appendix 1 impairments." R. at 14. He carefully considered the May 18, 1998, examination and findings of Dr. Zax, referred to above, but gave them little weight since they were contradicted by the findings of Dr. Alexander; a treating physician. In stark contrast to Dr. Zax's conclusion, for example, Dr. Alexander noted that petitioner was capable of handling her own money. See R. at 195.
Next the ALJ considered petitioner's functional capacity. He first considered objective medical evidence, then "other" evidence. R. at 14-15; See 20 C.F.R. § 404.1529(c)(2) (3).
After examining the medical evidence in some detail, R. 15-21, the ALJ determined that the objective medical evidence did not provide a basis for finding limitations greater than the following: lifting more than 10 pounds; and understanding, remembering, and/or carrying out detailed and complex work tasks. R. at 21, 25; see 20 C.F.R. § 404.1565 416.965.
The ALJ then examined the "other" evidence consisting of petitioner's claims of disabling pain and found that the evidence in the record did not support a finding that she did not possess the residual functional capacity to perform her past relevant work as a machine operator. R. at 26. As a machine operator at Kodak, plaintiff "was required to push a button every few minutes to cut fabricated material. She alternated between sitting and standing and was not required to lift or carry anything." R. at 26. The ALJ therefore concluded that petitioner was not suffering under a disability for purposes of the Social Security Act, Title II or Title XVI. R. at 26.
C. The Standard for Finding a Disability
For purposes of the Social Security Act, disability is 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. § 423(d)(1)(A); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The Social Security Administration ("SSA") has promulgated regulations which establish a five-step sequential analysis an ALJ must follow:
First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities." If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work.
Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."
Schaal, 134 F.3d at 501 (citations and internal quotation marks omitted). Plaintiff bears the burden of proof for steps one through four. The burden of proof shifts to the Commissioner for the fifth step. See DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998); Colon v. Apfel, 2000 WL 282898, *3 (S.D.N.Y., Mar. 15, 2000).
D. The Standard of Review
The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal, 134 F.3d at 501. It is well settled that
it is not the function of a reviewing court to determine de novo whether the claimant is disabled. Assuming the Secretary [Commissioner] has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence; if they are supported by such evidence, they are conclusive.
Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
Where there are gaps in the administrative record or where the Commissioner has applied an incorrect legal standard, remand for further development of the record may be appropriate. Id. at 235. However, where the record provides persuasive proof of disability and a remand would serve no useful purpose, the Court may reverse and remand for calculation and payment of benefits. Id.
Federal courts are not empowered to review the Commissioner's denial of disability benefits de novo. See Williams v. Callahan, 30 F. Supp.2d 588, 592 (E.D.N.Y. 1998); Fishburn v. Sullivan, 802 F. Supp. 1018, 1023 (S.D.N.Y. 1992). The scope of review involves first the determination of whether the ALJ applied the correct legal standards, and second, whether the ALJ's decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Although district court is not bound by the Commissioner's conclusions and inferences of law, the ALJ's findings and inferences of fact are entitled to judicial deference. Grubb v. Chater, 992 F. Supp. 634, 637 (S.D.N.Y. 1998). Absent legal error, the Commissioner's finding that a claimant is not disabled is conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); Filocomo v. Chater, 944 F. Supp. 165, 168 (E.D.N.Y. 1996). Substantial evidence is more than a mere scintilla. It is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401(1971) (quotation omitted).
If the ALJ's findings are supported by substantial evidence and the correct legal principles were applied, the findings will be sustained even where substantial evidence may support the claimant's position and despite the fact that the Court, had it heard the evidence de novo, might have found otherwise. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Campbell v. Barnhart, ___ F. Supp.2d ___, 2001 WL 1547939, *3 (D.Conn., Nov 30, 2001).
E. Analysis
At the outset, it should be noted that during oral argument, plaintiff's counsel clarified that his client was not claiming legal error as a basis for reversing the decision of the Commissioner, but rather argues that the ALJ's decision is not supported by substantial evidence. Regarding petitioner's physical complaints, the ALJ found that the objective medical evidence did not support petitioner's claim of disability. See R. at 21. The rules required the ALJ to "consider all [petitioner's] symptoms, including pain, and the extent to which [her] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(a). The rules required the ALJ to assess petitioner's symptoms "such as pain, fatigue, shortness of breath, weakness, or nervousness," and determine whether "medical signs or laboratory findings show that a medically determinable impairment(s) is present." Id. at (b). The ALJ also considered factors such as:
This regulation, like most by the SSA, is written in plain language. "Your" and "you" refers to petitioner.
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(3)(i)-(vii). The ALJ wrote that petitioner testified her energy level was low, but that she cooks, does the dishes and makes her bed. She used a heavy floor shampooer to vacuum her new apartment and petitioner told a consultative source in April 1998 that she and her daughter share the domestic chores. R. at 24. Particularly revealing is the ALJ's finding that, "while the claimant told one examining source [John Thomassen, Ph.D] in April 1999 that she did no more than the cooking (Exhibit 10F/3 [R. at 217]); she told another source [David Batt, M.D.] in that same month that she not only cooked meals but she and her daughter did the cleaning, laundry, shopping and caring for the children (her daughter has two very young children) (Exhibit 10F/6 [R. at 220])." R. at 24. The Court finds that the ALJ correctly considered the relevant factors pertaining to petitioner's complaints of pain and her activities of daily living as contrasted with the lack of objective clinical findings to support her claims and the inconsistences prevalent throughout the record.
Turning to the psychological evidence, petitioner writes in her memorandum of law, at 11, that the "most important facts that should have been taken into consideration is [sic.]substantiated evidence, showing the [petitioner] has mental impairments that prevent her from engaging in a substantial, gainful activity." Petitioner argues that her mental impairments meet the requirements of 20 C.F.R. Part 404, Subpart P, Appendix 1, section 12.03, "because the substantial evidence is that [petitioner] is schizophrenic; that she has a blunted affect; that she has marked difficulties in maintaining social functioning as she has no friends." Petitioner's Memorandum of Law at 11. The Commissioner argues that the ALJ properly assessed petitioner's mental impairments. See Reply Memorandum of Law at 2.
Although petitioner points out small items of evidence not recorded in the ALJ's decision, as the Second Circuit has held, "when, as here, the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability." Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
Dr. Zax's report is the only supportive one of petitioner's position that she has a disability based on a diagnosis of schizophrenia. However, as discussed above, the ALJ carefully analyzed Dr. Zax's report in contrast with the report of petitioner's treating psychologist, Dr. Alexander, and discounted Dr. Zax's conclusions. In order to find that petitioner's mental impairments meet the definition of section 12.03, the ALJ was required to find not only a blunt affect, but that it resulted in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Loss of compensation; especially an inability of the heart to maintain adequate circulation. Merriam Webster's Medical Desk Disctionary (1993) at 165.
Section 12.03, Appendix 1, Subpart P, 20 C.F.R. Part 404. Substantial evidence in the record supports the ALJ's determination that petitioner did not meet this requirement. As mentioned above, her activities of daily living were not markedly restricted and substantial evidence in the record supports the ALJ's finding that she did not experience marked difficulties in maintaining social functioning, concentration, persistence, or pace, nor did she experience repeated episodes of decompensation. Petitioner testified that she sees her family members frequently and a friend, Melanie, "once in a while." R. at 277-78. The ALJ found that petitioner's only mental limitation was her ability to understand, remember and/or carry out detailed and complex work tasks. R. at 27. Further, the ALJ noted that petitioner has not sought any treatment for mental symptoms since 1998 and stopped using the Paxil, thus revealing an inconsistency with her testimony of continued depression. R. at 24. Petitioner listed as her two worst health problems her back and her knees. R. at 249. Next she listed her heart, and her hands. R. at 256, 259-60. Finally, she listed as her least serious health concern her depression. R. at 262.
As the Court pointed out at oral argument, although one may find support in the record for petitioner's position, since the ALJ correctly applied the law and his decision was based on substantial evidence, it must be affirmed.
IV. Conclusion
Accordingly, the Court denies petitioner's motion (docket # 13) and grants the Commissioner's motion (docket # 14) affirming the ALJ's decision.
IT IS SO ORDERED.