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finding the ALJ appropriately relied on the VE's testimony to determine how positions were actually performed in the national economy, despite conflicting evidence in the DOT
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05 Civ. 10568 (SHS).
January 22, 2007
OPINION AND ORDER
Plaintiff Nelson Mendez brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge the final decision of defendant Jo Anne B. Barnhart, Commissioner of Social Security (the "Commissioner"), denying him Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. Plaintiff requests that this Court reverse the Commissioner's decision and grant him SSDI benefits. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and Mendez has cross-moved for an order reversing the Commissioner's decision and remanding the matter for further proceedings. For the reasons set forth below, the Commissioner's motion is granted and Mendez's motion is denied.
I. BACKGROUND
A. Administrative Proceedings
Mendez applied for Social Security disability benefits on May 2, 2003, alleging an inability to work since December 31, 2002. (R. 83-85.) The claim was initially denied, and Mendez requested a hearing before an Administrative Law Judge ("ALJ"). (R. 62-67, 68.) On April 20, 2004, ALJ William E. Kenworthy held a de novo hearing to determine whether Mendez was entitled to benefits. (R. 34.) Mendez appeared with counsel at the hearing and testified as to the nature and severity of his medical impairments. (R. 34-49.) Following the hearing, the ALJ held the record open for one month in order to receive additional medical information, which the ALJ later subpoenaed at Mendez's request. (R. 15, 59-60.) The ALJ issued a decision on January 21, 2005 finding Mendez not disabled as defined by the Act and thus not entitled to receive either SSDI or SSI payments. (R. 25.) On November 10, 2005, the Appeals Council denied Mendez's request for review of the ALJ's decision, rendering it the final decision of the Commissioner. (R. 6-8.)
References to "(R. ___)" are to pages of the certified copy of the administrative record of proceedings filed by the Commissioner as part of her answer.
B. Factual History
Nelson Mendez was born on May 28, 1961. (R. 83.) He completed two years of college, served for four years in the U.S. Air Force and worked as a cable installation technician for approximately fifteen years. (R. 37, 47, 100.) As a cable technician, Mendez was required to lift heavy cables, reach, climb and handle large objects. (R. 88, 109). Mendez claims that on July 2, 2002 while installing cable equipment, he began to fall off a ladder and attempted to regain his balance by grabbing onto an I-beam for support, but in the process, injured his right shoulder. (R. 177, 400, 403.) Six months later, Mendez stopped working as a cable installation technician allegedly because his injury prevented him from performing the lifting and carrying that his occupation required. (R. 45, 83, 99.)
1. Medical Evidence
At the time of his application — which was four months after he had stopped working — Mendez complained of multiple physical and mental impairments, including a rotator cuff tear, bilateral carpal tunnel syndrome, hepatitis C, personality disorder, impulse control disorder, substance abuse disorders, and alcoholism. (R. 18.) Mendez received treatment for these conditions at the Bronx VA Medical Center and Hunt's Point Multi-Service Center. (R. 17-18.) Records compiled by these facilities and evaluations conducted by consultative physicians constitute the bulk of the medical evidence pertaining to Mendez's claim.
a. Physical Impairments
On July 3, 2002, one day after injuring his shoulder at work, Mendez received medical treatment at the Bronx VA Medical Center. (R. 400.) He complained of "persistent pain" in his right shoulder and neck and "difficulty raising his arm." (Id.) An MRI of plaintiff's shoulder revealed tendinosis and a "partial thickness tear" of the supraspinatus and possibly infraspinatus tendons. (R. 394-95.) Mendez was prescribed Oxycodone to reduce his pain and referred to physical and occupational therapists for treatment. (Id.) Mendez's condition fluctuated over the ensuing months, as he participated in physical therapy and returned to the VA Medical Center for periodic examinations. (R. 383-400). He received a steroid injection in September 2002, but reported that it failed to produce "any benefit." (R. 354.)
By March 2003, physicians at the VA Medical Center concluded that Mendez had developed rotator cuff tears and adhesive capsulitis in his right shoulder. (R. 369.) In addition, X-rays of Mendez's upper spine revealed mild cervical kyphosis. (R. 140, 260.) Doctors at the VA Medical Center prescribed at first a cervical collar and then a contour pillow to reduce the discomfort arising from this condition. (R. 140, 256, 355.) Acupuncture was also prescribed, but it failed to achieve any lasting results. (R. 339, 342-43, 346, 350, 368.) In April, Mendez had a magnetic resonance imaging ("MRI") and an electromyogram ("EMG") of the cervical region of the spine. (R. 256-57, 260.) These tests indicated a mild reversal of the normal cervical spinal curvature, but were otherwise unremarkable. (Id.) By July 2003, Mendez's neck pain appears to have abated; however, the pain in his shoulder persisted. (R. 308.)
Mendez also complained of numbness and "decreased sensation" in both hands and a "hand-in-glove" sensation in the right hand. (R. 368.) An EMG taken in February 2003 revealed mild carpal tunnel syndrome in Mendez's left wrist. (R. 263-64.) Subsequently performed nerve conduction studies of the upper extremities were within normal limits. (R. 253-55.) The medical records indicate that wrist splints provided some relief for this condition, particularly on the left side. (R. 355, 369.)
A physical therapist at the VA Medical Center found Mendez's description of his symptoms "very puzzling." (R. 380.) After undergoing a "brace test," Mendez reported reduced numbness; however, the test was not designed to produce that result. (Id.) After the therapist described "what the test is supposed to do" and administered it again, Mendez then reported heightened numbness. (Id.) This therapist subsequently reported that he suspected the severity of Mendez's symptoms to be "mildly exaggerated" and referred Mendez back to a "rehab MD" for "re-assessment/examination." (R. 375.)
Mendez also sought treatment for chest pains that he experienced when engaged in strenuous activity, such as running. (R. 364). He was advised to engage in regular physical exercise for half an hour, three times per week. (R. 141, 366.)
In May 2003, Mendez was diagnosed with hepatitis C, which he may have contracted as a young child from IDU needles discarded near his home. (R. 241, 282, 327.) Based on this diagnosis, a liver biopsy was performed, and it showed mild to moderate inflammation and early fibrosis. (R. 232, 281-82.) The medical records indicate that Mendez's hepatitis C could progress to cirrhosis of the liver in a matter of "years" and "observation without HCV treatment" was the recommended course of action as of September 2003. (R. 280-82.)
A physician from the Bronx VA Medical Center completed an evaluation of Mendez's physical ability to perform work-related activities on April 12, 2004. (R. 412-13.) The doctor's signature on this two-page form is illegible. (R. 413.) The form itself contains eleven questions, with pre-printed answers next to boxes for the doctor to select. The doctor checked boxes indicating that Mendez can lift and carry no more than ten pounds on a frequent or occasional basis and that his ability to reach and feel is limited, but can be performed on an occasional basis. (R. 412-13.) Aside from these checkmarks, the only handwritten information on the form is a notation indicating that the undersigned doctor is an orthopedist. (Id.)
On May 20, 2003, Dr. Antero Sarreal performed a consultative physical examination of Mendez. (R. 177-79.) In his report, Dr. Sarreal documented a limitation on the "active range of motion" for the right shoulder and a "diminished sensation to touch" in the right arm, forearm and hand. (R. 178.) He also recorded a "weakness of right hand grasp," rating it a four out of five. (Id.) While Dr. Sarreal found "no sensation impairment" in the left arm and gave Mendez's left hand grasp a perfect rating, he did note a "diminished" left biceps and triceps reflex. (Id.) The report further noted that both hands "have good control and coordination" notwithstanding the presence of "slow bilateral hand dexterity and manipulation." (Id.) With respect to the cervical region of Mendez's spine, Dr. Sarreal observed "posterior neck tenderness." (Id.)
Dr. Sarreal's diagnosis included right shoulder derangement, a history of bilateral carpal tunnel syndrome, neck pain with radiculopathy, and a history of depression. (R. 178.) Based on the physical ailments listed in the report, Dr. Sarreal concluded that Mendez had "moderate limitation in lifting, carrying heavy objects, and pushing and pulling" as well as "minimal limitation in prolonged standing and long distance ambulation" and "minimal limitation in crouching, squatting, bending, sitting, climbing, and balancing." (Id.)
b. Mental Impairments
In March 2003, while being treated at the VA Medical Center for his shoulder injury, Mendez reported that he felt depressed and had experienced visual hallucinations. (R. 363-64.) Suspecting that Mendez may suffer from a major depressive disorder, his doctor referred him to the mental health clinic for evaluation. (R. 365.) A psychiatric intake form dated April 4, 2003 indicates that Mendez reported fighting frequently with his wife, feeling "financial strapped," having difficulty sleeping, and becoming annoyed by "little things." (R. 360.) Mendez reported that he "battled depression" for most of his life and that he had made two suicide attempts. (R. 360, 362.) In addition, he explained that he periodically received "premonitions" of future events, such as car accidents, and has seen dead people. (R. 360-61.) Mendez discussed a long history of substance abuse, observing "you name it I tried it," but explained that he had not used "hard drugs" in twenty years. (R. 361.) Subsequently, Mendez was classified as a "polysubstance abuser." (R. 333.)
In a subsequent psychiatric session, Mendez discussed four suicide attempts. (R. 347.)
Mendez was diagnosed as having a major depressive episode and borderline personality disorder in April 2003. (R. 363.) A contemporaneous progress note indicated that Mendez had a "constricted" affect and an "irritable" mood, but his thought processes were "linear," his gross memory was "intact" and his insight and judgment were "good." (R. 358.) Mendez was prescribed Olanzapine, an antipsychotic, and Celexa, an antidepressant. (R. 323, 349.) His outpatient treatment plan included therapy and abstinence from drugs and alcohol. (R. 353.) Nevertheless, Mendez's use of drugs and alcohol continued. (R. 297, 313, 327, 329, 347.) His depression deepened following his diagnosis with hepatitis C in May 2003 and the "tremendous upheaval" it caused in his personal relationships. (R. 292, 328, 335.) Subsequent financial, family and housing problems further exacerbated Mendez's depression, as did his son's arrest for selling drugs. (R. 284, 292, 358.)
Over the following months, Mendez was treated primarily for polysubstance dependence/abuse, substance-induced mood disorder and borderline personality disorder. (R. 284, 305, 310, 322-23, 330.) Major depressive disorder and intermittent explosive disorder were also suspected. (Id.) Mendez attended group therapy sessions for substance abuse and continued to take Olanzapine and Celexa for his mental condition. (R. 292-93, 296.) In July 2003, Judith Tax, a social worker at the VA Medical Center, reported that Mendez remained agitated, anxious and depressed and that his appetite and sleep were poor. (R. 209.) Her report noted that Mendez suffered from auditory hallucinations, but no longer experienced visual hallucinations. (Id.) She considered his affect to be "full and appropriate," his thought process to be "goal-directed" and his insight and judgment to be "intact." (Id.) She noted that Mendez had just begun treatment for his "addiction and psychiatric problems" and would need "3-6 months to establish full abstinence and to stabilize on his psychiatric medication, before he will be ready to tolerate the stresses involved in working." (Id.)
Six months later — in January 2004 — Mendez began to receive psychiatric treatment from Dr. Margaret Chu at the Hunt's Point Multi-Service Center Mental Health Clinic. (R. 421.) Dr. Chu's initial diagnosis included impulse control disorder, substance-induced psychosis, substance abuse, and borderline personality disorder. (R. 420.) In particular, she noted that Mendez appeared to be on a "short fuse" and had recently used marijuana and cocaine. (R. 416, 419.)
On March 17, 2004, Dr. Chu completed a questionnaire describing Mendez's mental impairments. (R. 406-11.) In the questionnaire, she reiterated her initial diagnosis and reported that the "patient is responding to treatment." (R. 406.) Evaluating Mendez's ability and aptitude to perform work, Dr. Chu indicated that Mendez's ability to maintain attention, sustain an ordinary routine without special supervision, work in coordination or proximity to others without being unduly distracted, set realistic goals, and interact appropriately with the general public were "limited but satisfactory." (R. 408-09.) She further noted that Mendez's ability to deal with normal work stress and the stress of semiskilled and skilled work was "seriously limited, but not precluded." (Id.) Dr. Chu stated that Mendez had moderate limitations in activities of daily living and marked limitations in social functioning and in maintaining concentration, persistence or pace. (R. 410.) She estimated that treatment for Mendez's medical impairments would cause him to miss more than four days of work per month. (Id.) Significantly, Dr. Chu was unable to state whether Mendez had experienced "episodes of decompensation" within a twelve month period, because of her "short treatment experience at this moment." (Id.)
Episodes of decompensation are "exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." 20 C.F.R. pt. 404 subpt. P app. 1.
Mendez submitted to a consultative psychiatric evaluation conducted by Dr. Herbert Meadow on June 10, 2003. (R. 180-81.) Dr. Meadow reported that Mendez "was depressed over his lack of income and his problem with his right shoulder" and had been receiving psychiatric treatment for the past three months. (R. 180.) Dr. Meadow observed that Mendez was "neatly groomed," his speech was "coherent and goal directed," and his thinking demonstrated "no loosening of association." (Id.) However, the doctor found his mood to be "mild to moderately depressed." (Id.) Dr. Meadow concluded that his findings were consistent with "a psychiatric diagnosis," namely moderate dysthymia, however he concluded that Mendez's mental ailment would not necessarily interfere with his ability to function in a "low pressured" setting. (R. 181.)
2. Mendez's Testimony
In his application for Social Security disability benefits, Mendez described how his ailments had affected his daily activities. (R. 114-121.) He noted that he was "liv[ing] with pain" and could not lift his tools or carry "any weight" on his right arm. (R. 115.) Mendez stated that he could not lie down without experiencing pain such that he would be "tossing and turning all night." (Id.) According to his application, the injury to his shoulder prevented him from fishing and eliminated many of his social activities. (R. 118-19.) Nevertheless, Mendez remained able to walk for three miles without stopping, take care of his pet birds, prepare his own meals, sweep the floor, go shopping for food and clothes, pay bills, maintain his checking and savings accounts, read newspapers, and play dominos or cards. (R. 115-19.) Mendez also reported that he had no problems paying attention, was able to finish what he started, could follow written and spoken instructions, and had no trouble getting along with people in authority. (R. 120.)
At the hearing before ALJ Kenworthy, Mendez was represented by counsel. Mendez testified that he felt "excruciating pain" in his right shoulder and neck area and that he could hardly lift anything with his right arm. However, he conceded that he could use his right arm to perform light activities, such as writing, and that he had no difficulty using his left arm for lifting and carrying up to fifty pounds. (R. 39, 47A.) Mendez explained that he was being treated for drug addiction and mental ailments at Hunt's Point Multi-Service Center and that he had not used drugs for three months. (R. 40.) He testified that he spent his days updating his resume, working on the computer, looking at job listings, and reading a wide range of books at the library. (R. 42-43.) He also described spending time with his thirteen grandchildren, including walks in the park and trips to the zoo. (R. 43.)
In response to an inquiry from the ALJ regarding carpal tunnel syndrome, Mendez testified that he wore wrist splints on both wrists at night because of this condition. (R. 48.) He explained that he had to wait twenty to twenty-five minutes each morning to get the feeling back in his arms, at which point he would be able to hold objects. (Id.) ALJ Kenworthy also asked Mendez whether he had been involved in any recent altercations, and Mendez reported that he had started a fight with another passenger while riding on the train at some point during the prior six months. (R. 44.)
When asked by his attorney whether his drug use and drinking had ever interfered with his work, Mendez responded that it did not, explaining that he "would wake up the next day and go right to work." (R. 49.)
3. Vocational Evidence
Edna Clark, a vocational expert, testified at the administrative hearing and was examined by Mendez's counsel. (R. 49-59.) She testified that Mendez's prior work as a cable technician is classified at a "medium" to "heavy exertional level," and that Mendez retained no skills from that occupation that would be transferable to sedentary work. (R. 50.) The ALJ then asked Clark to consider what occupations a hypothetical individual with Mendez's age, education, and work experience could perform, taking into account that he could not use his right arm for any lifting, carrying, pushing, or pulling; should avoid repetitious or forceful use of either upper extremity; could perform only simple work not involving high levels of stress or conflict; and was able to lift and carry no more than fifty pounds with his non-dominant hand. (R. 51.)
Clark responded that two jobs could be performed by this hypothetical person: Machine Tender and Surveillance System Monitor. (R. 51-52.) Clark explained that she had refined the definition of Machine Tender to include only those jobs where the individual does nothing more than monitor the machine to ensure that it is working properly. (R. 51.) Taking into account her modified definition, Clark described the job as "light" and "unskilled" and estimated that there were 14,000 such jobs in the national economy and 800 in the local economy. (R. 51-52.) As for Surveillance System Monitor, Clark observed that it is "sedentary" and "unskilled" and that 18, 000 such jobs exist in the national economy and 1,800 in the local economy. (R. 52.)
Machine Tender corresponds to Listing 616.685-054 ("Riveter") and Surveillance System Monitor is classified as 379.367-010 in the Department of Labor's Dictionary of Occupational Titles. (R. 51-52.) See U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. 1991).
Mendez's counsel asked Clark whether her definition of Machine Tender corresponded to the definition contained in the Department of Labor's Dictionary of Occupational Titles ("DOT"). (R. 52.) Clark responded that she used a different definition, which unlike the DOT entry, did not require any reaching. (R. 53.) She further explained that adding this criterion resulted in a "reduced number of jobs" compared to those available under the DOT definition. (Id.) Mendez's counsel also asked Clark whether an individual could be absent for four days a month and remain employed as a Surveillance System Monitor; Clark responded in the negative. (R. 55.)
II. DISCUSSION
A. Standard of Review
This Court may reverse the Commissioner's decision "only if the factual findings are not supported by 'substantial evidence' or if the decision is based on legal error." Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. § 405(g)). Substantial evidence is "'more than a mere scintilla' and is 'such relevant evidence as [a] reasonable mind might accept as adequate to support a conclusion.'" Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). In addition, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, 42 U.S.C. § 405(g), and the reviewing court does not decide the case de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).
Therefore, this 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.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). If this Court finds substantial evidence supporting the Commissioner's decision, the decision will be upheld even if there is also substantial evidence supporting plaintiff's claim.See DeChirico v. Callahan, 134 F.3d 1177 (2d Cir. 1998).
B. The Definition of Disability
To establish disability pursuant to the Act, a claimant must demonstrate an "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). This impairment must be demonstrated "by medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and must be "of such severity that [the claimant] 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. § 423(d)(2)(A).
The Commissioner has established a five-step sequential analysis for considering disability claims, see 20 C.F.R. §§ 404.1520, 416.920, which the U.S. Court of Appeals for the Second Circuit has articulated as follows:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a 'severe impairment' which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a 'severe impairment,' the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not 'listed' in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.Shaw, 221 F.3d at 132 (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)).
Under the five-step sequential analysis, the claimant bears the burden of proof for the first four steps. However, if the claimant can show that he cannot perform his past work, the burden shifts to the Commissioner on the fifth step to demonstrate that substantial work that the claimant can perform exists in the national economy. Id. at 1179. In addition, when a claimant has multiple impairments, the Commissioner "must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).
C. The Administrative Law Judge's Decision
Applying the above five-step evaluation process to Mendez's claim, ALJ Kenworthy determined that Mendez was not disabled. (R. 15-25.)
First, the ALJ found that Mendez had not worked since the alleged onset of disability. (R. 16.) Proceeding to the second step, ALJ Kenworthy described the ailments documented in Mendez's medical records, including a rotator cuff tear, adhesive capsulitis, bilateral carpal tunnel syndrome, moderate dysthymia, hepatitis C, substance abuse, borderline personality disorder, impulse control disorder, and substance-induced psychosis. (R. 17-18). After reviewing these conditions and their severity, the ALJ concluded that the "body of medical evidence" indicated that Mendez suffered from a "severe" combination of medically determinable impairments, namely personality disorder, impulse control disorder, substance abuse disorder, alcoholism, hepatitis C, and a rotator cuff tear in the right shoulder. (R. 18.)
Next, the ALJ determined that Mendez's severe combination of impairments were not "severe enough" to meet or equal the enumerated impairments listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and thus did not trigger an automatic finding of disability at step three. (Id.) ALJ Kenworthy explained that Mendez's hepatitis C was in "its early stages," showed no evidence of ascites, and failed to reach the level of severity described in Listing 5.05. (Id.) Furthermore, none of Mendez's mental impairments imposed an adequately severe functional limitation to fall within the relevant mental disorders, in particular Listing 12.04 ("Affective Disorders"), 12.08 ("Personality Disorders") or 12.09 ("Substance Addiction Disorders"). (Id.)
The ALJ explained that he must evaluate four "broad functional areas" and rate the degree of limitation in order to determine whether Mendez's ailments fall under Listings 12.04 or 12.08. (R. 18-19.) Those four areas are: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. (R. 19.) The first three criteria are measured on a five-point scale (none, mild, moderate, marked and extreme), while decompensation is evaluated on a four-point scale (none, one or two, three and four or more). (Id.) See also 20 C.F.R. § 404.1520a.
Listing 12.09 is not analyzed separately from Listings 12.04 and 12.08 because it is "structured as a reference listing . . . [which] only serve[s] to indicate which of the other listed mental or physical impairments must be used to evaluate the behavioral or physical changes resulting from regular use of addictive substances." 20 C.F.R. pt. 404 subpt. P app. 1. Applied to Mendez's case, Listing 12.09 references Listings 12.04 and 12.08.
Mendez's consistently well-groomed appearance, appropriate hygiene and ability to cope with the numerous sources of stress in his life led the ALJ to find a "mild to moderate limitation of activities of daily living." (R. 19.) Regarding Mendez's social functioning, the ALJ pointed to Mendez's frequent outings with his grandchildren and the absence of recent altercations as evidence of "no more than mild impairment of social functioning." (Id.) Turning to Mendez's ability to maintain concentration, persistence and pace, ALJ Kenworthy observed that Mendez regularly went to the library, looked at job listings at one-hour intervals, and read a wide variety of books. (R. 20.) In addition, the ALJ interpreted Mendez's job search and his complaint that "no one is hiring in the computer field" as evidence of Mendez's subjective belief that he was capable of working, and therefore found "no limitation of the ability to maintain attention, concentration and pace." (Id.) Finally, ALJ Kenworthy noted two episodes of decompensation, which were associated with excessive consumption of alcohol and drugs. (Id.) Based on his evaluation of the evidence as it pertained to these four areas, the ALJ concluded that Mendez's mental aliments were not sufficiently severe to meet or exceed the standards established in Listings 12.04 or 12.08. (Id.)
In order to complete steps four and five of the sequential analysis, ALJ Kenworthy assessed Mendez's Residual Functional Capacity ("RFC"), which is "the most an individual can do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks." (R. 20.) While performing this analysis, the ALJ credited Mendez's testimony, remarking that "[t]he claimant's allegations regarding his limitations are generally credible. . . ." (R. 24.)
Evaluating Mendez's physical condition, the ALJ assigned little weight to a two-page medical questionnaire which stated that Mendez could lift no more than ten pounds, because the form lacked an "explanation of the basis upon which the expressed opinions were reached," contained an illegible signature and was contradicted by both Mendez's testimony and Dr. Sarreal's consultative opinion. (R. 21.) Instead, the ALJ credited Mendez's testimony that he could lift up to sixty pounds with his left hand and accepted Dr. Sarreal's belief that Mendez had moderate limitation in lifting and carrying heavy objects, minimal limitation in prolonged standing or long-distance walking, and no limitation in bilateral hand dexterity. (Id.) The ALJ also assigned "substantial weight" to the opinion of Dr. Putcha, a physician at the state Disability Determination Service ("DDS"), who reviewed the medical evidence and concluded that Mendez was capable of lifting up to fifty pounds on occasion and could stand, walk or sit for up to six hours out of an eight-hour day. (R. 22.)
Turning to Mendez's mental capacity, the ALJ again assigned little weight to a questionnaire submitted by Mendez. Completed by Dr. Chu, a staff psychiatrist at Hunt's Point Multi-Service Center, this questionnaire indicated that Mendez's ability to deal with normal work stress and the stress of semiskilled or skilled work was "seriously limited, but not precluded." (R. 21.) The questionnaire also noted "marked difficulties" in maintaining social functioning, "marked deficiencies" of concentration, persistence, and pace, and a history of one or more years' "inability to function outside of a highly supportive living arrangement." (Id.) The ALJ observed that if this form were taken at face value, Mendez's mental ailments would meet Listing 12.04. However, the ALJ declined to afford it much weight, noting that "the underlying records from Hunt's Point indicate that the claimant had limited personal contact with Dr. Chu." (Id.) He also found the questionnaire inconsistent with Mendez's testimony and particularly unhelpful for its failure to distinguish between the limitations resulting from "polysubstance abuse and substance induced psychosis on the one hand, and his personality disorder on the other." (Id.) Instead, the ALJ relied on the analysis of B.L. Perkus, Ph.D., a psychologist at DDS, who reviewed the medical evidence and determined that Mendez's disorder resulted in "no more than mild limitation upon [his] ability to carry out work-related activities." (R. 22.)
Based on this analysis, the ALJ found that Mendez's RFC prevented him from using his right hand for lifting, pushing, or pulling, but it presented "no limitation upon the ability to stand, walk or sit" or on Mendez's ability to lift and carry up to fifty pounds with his left hand. (R. 22.) Based on Mendez's RFC, the ALJ concluded that Mendez should "avoid repetitive or forceful use of either extremity" but was "capable of performing simple repetitive tasks that do not involve high levels of stress such as dealing with the general public, frequent changes in job assignments or independent decisionmaking." (Id.)
As required by the fourth step, the ALJ considered whether Mendez could return to his prior work. (R. 22.) In light of Mendez's RFC and the heavy "exertional demand" entailed in the job of cable technician, ALJ Kenworthy concluded that Mendez could no longer perform his prior duties. (Id.)
Arriving at step five of the sequential analysis, the ALJ observed that the burden of proof had shifted to the Social Security Administration to show the availability of other jobs in the national economy that Mendez could perform. (R. 22.) Based on Mendez's age, educational background, work experience and RFC, the ALJ determined that Mendez could perform "a significant range of medium work." (R. 23.) Had Mendez been capable of performing the full range of medium work, the ALJ explained, a finding of "not disabled" would be required under the Medical-Vocational Guidelines. (Id.) However, given Mendez's "additional" limitations, ALJ Kenworthy turned to the vocational expert's testimony to determine whether Mendez could perform a significant number of jobs existing in the national economy. (Id.) Reviewing the vocational expert's testimony, the ALJ emphasized that Mendez's exertional and non-exertional limitations had been considered by the expert, who adjusted her analysis to reflect his particular condition. (Id.) The expert had testified that Mendez could perform the jobs of Machine Tender and Surveillance System Monitor, which together constituted 2,600 jobs in the local economy and 32,000 jobs in the national economy. (R. 23, 51-52.) Based on this testimony, the ALJ concluded that Mendez could make a "successful adjustment" to work that exists in significant numbers in the national economy, and therefore found Mendez "not disabled" as defined by the Act. (R. 23-24.)
As noted above, the Appeals Council subsequently denied Mendez's request for review, thereby rendering the ALJ's decision final. Mendez then brought this action.
D. Mendez's Challenges to the Commissioner's Decision
In this action, Mendez disputes the Commissioner's determination that he is not disabled on the grounds that the ALJ failed to (1) accord appropriate weight to the opinion of the treating psychiatrist, (2) consider the combined impact of all Mendez's ailments, (3) resolve an inconsistency in the vocational expert's testimony and (4) properly evaluate Mendez's drug and alcohol abuse. None of these grounds provide an adequate basis to disturb the Commissioner's decision. We address each in turn.
1. The ALJ Gave Appropriate Weight to Dr. Chu's Opinion.
Mendez argues that the ALJ committed legal error by rejecting the opinion of Dr. Chu, the treating psychiatrist, which indicated that Mendez's impairments caused him to be disabled under the Act. As discussed above, the ALJ conceded that Dr. Chu's opinion, if taken at face value, would establish that Mendez's ailments meet Listing 12.04; however, he accorded the opinion little weight because of the "limited personal contact" between Dr. Chu and Mendez. (R. 21.) Mendez contends that the record does not support the ALJ's finding of limited contacts, showing instead twice-monthly hour-long sessions.
Under regulations promulgated by the Commissioner, the opinion of a treating physician is assigned "controlling weight" provided that the opinion is "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); see Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). While a treating physician's opinion is often accorded great weight, standing alone it does not establish that an applicant is disabled. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("A treating physician's statement that the claimant is disabled cannot itself be determinative."). In many cases, the weight assigned to a treating physician's opinion will depend on the circumstances of the case. The Second Circuit has explained the procedure for determining how much weight to afford the opinions of treating physicians when controlling weight is not warranted:
An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various "factors" to determine how much weight to give to the opinion. Among those factors are: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.Halloran, 362 F.3d, 32 (citation omitted); see 20 C.F.R. § 404.1527(d)(2). The regulations further require that the claimant receive "good reasons in our notice of determination or decision for the weight" given to the treating source's opinion. 20 C.F.R. § 404.1527(d)(2). The Second Circuit has concluded that the "[f]ailure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell, 177 F.3d at 133 (internal quotations omitted).
ALJ Kenworthy's decision complied with Halloran and 20 C.F.R. § 404.1527(d)(2). First, the ALJ observed that Dr. Chu's opinion was inconsistent with the evidence presented at the hearing, in particular Mendez's own testimony. He then explained his reasons for assigning the opinion little weight, focusing on the short length and limited extent of the treatment relationship, a factor articulated in the regulations. The ALJ's finding of limited contact between Dr. Chu and Mendez is amply supported by the underlying medical records. Mendez was first evaluated by Dr. Chu on January 7, 2004. (R. 416-20.) When she completed the questionnaire on March 17, 2004, Dr. Chu had been treating Mendez for two months and eleven days. (R. 406-11.) Based on Mendez's twice-monthly treatment plan, there would have been only five one-hour sessions in that time period. Indeed, Dr. Chu wrote that she was unable to complete portions of the questionnaire due to the "short treatment experience at this moment." (R. 410.)
This factor is particularly important, because the value of treating sources' opinions derives from their ability "to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)." 20 C.F.R. § 404.1527(d)(2).
The ALJ was equally unimpressed with the evidence supporting Dr. Chu's opinion, noting that she failed to distinguish limitations resulting from substance abuse from those produced by Mendez's personality disorder. Mendez contends that this shortcoming triggered the ALJ's duty to contact Dr. Chu to obtain clarification of her position, as required by Social Security Ruling 96-5p ("SSR 96-5p"), 1996 SSR LEXIS 2 (S.S.A.). While SSR 96-5p requires an ALJ to make "every reasonable effort" to re-contact a treating physician to clarify opinions not supported by the evidence, this obligation only arises when the ALJ "cannot ascertain the basis of the opinion from the case record." SSR 96-5p at *16-17.
Here, ALJ Kenworthy was not confused as to the basis for Dr. Chu's opinion, but rather found the basis inadequate due to the doctor's limited contact with Mendez. The further criticism that Dr. Chu's opinion failed to parse the effects of Mendez's substance abuse from his personality disorder does not indicate that the ALJ could not ascertain the basis of Dr. Chu's opinion, only that he found it inadequately detailed and therefore unhelpful. Moreover, the ALJ issued a subpoena in order to obtain the underlying records documenting Dr. Chu's treatment of Mendez at Hunt's Point Multi-Service Center, which were admitted into evidence prior to the ALJ's ruling. (R. 15.) Thus, the record reflects that the ALJ sought out — and obtained — the full basis of Dr. Chu's evaluation of Mendez before issuing his opinion.
2. The ALJ Considered the Combined Impact of All of Mendez's Ailments.
Mendez criticizes the ALJ's decision for failing to consider the combined effects of all his ailments. Pursuant to 42 U.S.C. § 423(d)(2)(B), the "combined effect of all of the individual's impairments" must be considered when determining whether an applicant has a severe injury "without regard to whether any such impairment, if considered separately, would be of such severity."See also Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995). Mendez asserts that the absence of any specific findings on carpal tunnel syndrome proves that this impairment was not considered in combination with his other impairments to determine whether he was disabled under the Act.
Despite the absence of specific findings on carpal tunnel syndrome, the ALJ's decision indicates that all of Mendez's ailments were considered when determining whether he suffered from a severe combination of impairments. As noted above, the ALJ conducted a through review of the medical records and summarized the evidence, including Mendez's diagnosis with mild carpal tunnel syndrome, in the body of his decision. (R. 17-18.) After reviewing all of Mendez's ailments, the ALJ concluded that certain of them constituted a "severe" combination of impairments, namely personality disorder, impulse control disorder, substance abuse disorder, alcoholism, hepatitis C, and a rotator cuff tear in the right shoulder. (R. 18.) Based on its omission from that list, it can be inferred that the ALJ did not consider carpal tunnel syndrome to be among the combination of impairments that was "severe" under the Act.
Indeed, in a letter to ALJ Kenworthy dated April 1, 2004, Mendez's attorney himself failed to include carpal tunnel syndrome in a list of Mendez's ailments that included "impairments of the right shoulder, neck and depression" in addition to hepatitis C. (R. 405.)
Mendez does not dispute the ALJ's finding that his carpal tunnel syndrome was "mild." (R. 17.) Rather, he presses that the ALJ was required to make "specific findings with respect to plaintiff's bilateral carpal syndrome." (Pl. Mem. in Support of Motion for Remand at 8.) Mendez does not cite any authority for the proposition that an ALJ must produce "specific findings" for each and every ailment noted in a claimant's medical records. In fact, another court in this district has ruled that no such obligation exists. See Flors v. Massanari, No. 00-cv-5767, 2002 U.S. Dist. LEXIS 1144, at *15 (S.D.N.Y. Jan. 25, 2002) ("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."); see also Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) ("the absence of an express rationale does not prevent us from upholding the ALJ's determination regarding appellant's claimed listed impairments").
Furthermore, the evidence shows that ALJ Kenworthy was fully aware of Mendez's carpal tunnel syndrome and factored it into his analysis of Mendez's claim. In addition to having been discussed in the ALJ's decision, Mendez's carpal tunnel syndrome was the subject of an exchange between the ALJ and Mendez at the administrative hearing. (R. 48.) In fact, the finding that Mendez must avoid "repetitive" use of either extremity suggests that the ALJ considered it when determining Mendez's RFC. In the absence of evidence showing that the ALJ failed to consider Mendez's carpal tunnel syndrome, the mere lack of a specific finding on that single impairment does not warrant remand.
3. The Vocational Expert's Testimony Was Not Inconsistent with the Dictionary of Occupational Titles.
Mendez challenges the ALJ's determination that he could perform a significant number of jobs in the national economy, claiming that the finding relied on flawed expert testimony. Pursuant to Social Security Ruling 00-4p ("SSR 00-4p"), 2000 SSR LEXIS 8 (S.S.A.), an ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs [vocational experts] or VSs [vocational specialists] and information in the Dictionary of Occupational Titles (DOT)." When such conflicts arise, the ALJ must "[e]xplain in the determination or decision how any conflict that has been identified was resolved." Id. Mendez claims that the vocational expert's description of the job Machine Tender conflicted with the definition in the DOT and the ALJ failed to address or attempt to resolve this inconsistency.
In fact, this conflict is more apparent than real. As described above, the vocational expert's testimony at the administrative hearing included an explanation that her definition of Machine Tender was modified from the broader DOT listing so that it included only the sub-set of Machine Tender jobs where the individual simply monitors the machine to ensure that it is working properly. (R. 51.) Her estimate of the number of available jobs corresponding to this modified definition was "adjusted . . . to account for the limitation." (Id.) At the hearing, the ALJ confirmed that the expert's estimates were "reduced" to correspond to her refinement of the DOT definition (R. 51-52.) The expert reiterated these points when she was examined by Mendez's counsel (R. 52-53.) Thus, any apparent conflict between the vocational expert's testimony and the DOT was resolved at the hearing.
The ALJ's handling of this matter was appropriate. At the hearing, he inquired into the apparent conflict, as required by SSR 00-4p, and determined that the expert's definition presented a sub-set of the DOT Listing rather than a contradiction of it. This finding is specifically referenced in the ALJ's decision, which notes that the "cited numbers [of available jobs] were adjusted" to take into account Mendez's particular RFC. (R. 23.) Having determined that the expert testimony did not actually conflict with the DOT, the ALJ fully discharged his duties under SSR 00-4p and was permitted to rely on the expert's testimony.See 20 C.F.R. § 404.1566(e) (authorizing the use of "a vocational expert or other specialist" to determine whether appropriate work exists in the national economy).
4. The ALJ Did Not Improperly Consider Mendez's History of Drug and Alcohol Abuse.
Finally, Mendez contends that he was denied SSDI benefits due to an erroneous finding that substance abuse was the cause of his mental disability. Under the Act, no claimant can receive disability benefits if alcoholism or drug addiction is a "contributing factor to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C); see Veino v. Barnhart, 312 F.3d 578, 580 (2d Cir. 2002). In making this determination, the regulations establish that the "key factor" is whether the claimant would be considered disabled even if he stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b)(1). Thus, the Commissioner must determine which physical and mental limitations would remain if an applicant stopped using alcohol and drugs, and then determine whether those remaining limitations would be disabling. If the claimant's remaining limitations would not constitute a disability, then his "drug addiction or alcoholism is a contributing factor material to the determination of disability." 20 C.F.R. § 404.1535(b)(2)(i). Mendez claims that the ALJ failed to determine which limitations would remain if Mendez stopped using drugs or alcohol as required by the regulations, and this omission justifies remand for further development of the record.
Mendez's argument lacks merit because he was not denied disability benefits due to his polysubstance abuse, but rather because his RFC permitted him to perform "a significant range of medium work." (R. 24.) The ALJ's findings do not include a determination that alcoholism or drugs were a "factor material" to the determination of disability. (R. 23-24.) Instead, they focus on Mendez's physical and mental ailments, the limitations they impose and his remaining capacity to do work. (Id.)
The only discussion of this issue in the ALJ's decision occurs in the context of evaluating Dr. Chu's psychiatric questionnaire. (R. 21.) After assigning "little weight" to the questionnaire based on Dr. Chu's concededly limited contact with Mendez, ALJ Kenworthy noted an additional difficulty: the "opinions expressed upon this assessment form do not distinguish between the limitations resulting from the claimant's polysubstance abuse and substance induced psychosis on the one hand, and his personality disorder on the other." (Id.) Explaining that Dr. Chu's evaluation indicated "that substance abuse was a very significant factor in the patient's diagnoses," the ALJ opined: "[t]o the extent that the form . . . is accorded any weight at all, the abuse of alcohol and drugs becomes a factor material to the determination of disability." (Id.) In other words, had the ALJ afforded Dr. Chu's opinion greater weight, Mendez would not necessarily have been found disabled, because the impact of his substance abuse would then come into focus and the record indicated that it would constitute a "factor material" to the determination of disability. This passage simply highlights a further difficulty that would arise had the questionnaire been afforded greater weight.
However, the questionnaire was not afforded greater weight, and it was not necessary for the ALJ to analyze the relative impact of Mendez's alcohol and drug abuse and his personality disorder. It would be a misreading of the ALJ's decision to conclude that this passage contained a finding that it was Mendez's polysubstance abuse that led to the determination that he was not disabled under the Act. Such a reading would conflict with the ALJ's decision as a whole and the detailed, enumerated findings which contain no indication that substance abuse was a factor in finding Mendez not disabled.
III. CONCLUSION
This Court concludes that (1) the Commissioner's findings are supported by substantial evidence and (2) none of plaintiff's allegations of legal error have merit. Accordingly, plaintiff's motion is denied and defendant's motion is granted. The Clerk of Court shall enter judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) in defendant's favor.
SO ORDERED: