Opinion
No. 02 Civ. 7427 (TPG).
January 24, 2006
OPINION
Carmelo Preziosi brings this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination by the Commissioner of Social Security denying him Social Security disability benefits. Preziosi and the Commissioner have filed cross-motions for judgment on the pleadings. For the following reasons, the Commissioner's motion is granted and Preziosi's motion is denied.
FACTS
Medical History
Plaintiff was born in Italy on December 24, 1948. Plaintiff completed high school and some college education, and earned a certificate in electrical work after attending four years of trade school. He also received electrical training in the Navy.
Plaintiff was employed as an electrician at the American Broadcasting Company from 1973 until July 12, 1999. Plaintiff testified at his disability hearing that he was forced to leave his job on the latter date due to back pain. He did not return to that job and has not had any other. He describes this pain as constant, although chiropractic care and medication provide some degree of relief.
It is not clear from the record when plaintiff's back pain started, but on November 6, 1998, plaintiff had magnetic resonance imaging ("MRI") of his spine to investigate low back pain that he claimed had bothered him for several months. The MRI revealed spinal stenosis, or narrowing of the spinal canals. Plaintiff received treatment for his pain at the Putnam Hospital Center ("PHC") Pain Management Center, where he was attended to by Dr. J. Handzer in December 1998. Dr. Handzer recommended that plaintiff undergo a series of epidural steroid injections to manage plaintiff's pain. Plaintiff received injections on April 30, 1999 and May 24, 1999.
Plaintiff was under the care of Dr. Andrew Decker beginning February 19, 1999 to treat and manage his back pain. An EMG performed that day was "essentially normal" and suggested no nerve damage. Additional neuromotor tests showed plaintiff to have normal strength and reflexes. Dr. Decker ultimately concluded that plaintiff's lower back pain was due to spinal stenosis in the lower back and prescribed anti-inflammatory and pain medications.
Plaintiff continued to experience back pain and saw Dr. Decker through June 1999. An x-ray dated May 5, 1999 revealed degeneration of the vertebrae in his cervical and lumbar spines, but did not reveal any significant fractures or disk narrowing. It was after this — on July 12, 1999 — that plaintiff left his job. An MRI and ultrasound performed in August 1999 confirmed this diagnosis. Plaintiff saw Dr. Decker several months later, in February 2000, at which time the motion in his lower back was reduced as compared to previous visits.
Plaintiff was treated by a chiropractor, Dr. Michael Berardis, four times a week from October 14, 1999 to January 24, 2000. Dr. Berardis submitted a report to the New York State Office of Temporary and Disability Assistance (NYS-OTD) on January 27, 2000. Dr. Berardis claimed that plaintiff could only perform fifteen minutes of "light work" before experiencing "severe pain and fatigue." Dr. Berardis also claimed that plaintiff could lift and carry twenty-five pounds, could stand and/or walk up to two hours per day, and could sit up for eight hours per day.
Dr. Decker provided a report to the NYS-OTD on February 3, 2000. He reported that plaintiff could lift ten pounds and stand or walk up to two hours per day. He reported that plaintiff could sit without limitation.
Social Security Disability Application
Plaintiff applied for disability insurance benefits on December 17, 1999. His application was denied initially and again on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge and received a hearing on October 13, 2000.
Plaintiff testified at the hearing and was represented by counsel. In addition to hearing plaintiff's testimony, the ALJ received into evidence the reports of Dr. Berardis and Dr. Decker discussed above. Esperanza Stephano, a vocational expert, also testified at the hearing.
On February 12, 2001, the ALJ issued a decision finding that plaintiff was not disabled at any time through the date of the decision.
The ALJ described Dr. Berardis' finding that plaintiff could stand and/or walk up to two hours per day and sit up to eight hours per day. The ALJ also summarized Dr. Decker's assessment that plaintiff could stand and/or walk up to two hours per day but had no limitations as to sitting.
The ALJ set forth a thorough summary of plaintiff's testimony about his condition and his daily activities. The ALJ noted, among other things, plaintiff's testimony that "on a good day, he can do thirty to forty minutes on the computer and then he has to move around for ten to thirty minutes." The ALJ had this to say about plaintiff's testimony:
In summary, the Administrative Law Judge finds that the claimant's testimony is generally credible except to the extent that he alleges a need to walk around over significant distances after sitting a half hour. There is no medical opinion suggesting such a limitation, and the allegation appears to have been made for the first time at the hearing. His testimony is credible to the extent he alleges a need to stand and walk for a few steps after sitting for extended periods.
This statement of the ALJ was significant on the issue of whether plaintiff could perform sedentary work, which of course involves sitting. Dr. Berardis and Dr. Decker basically found no limitation at all as to how long plaintiff could sit during a workday. But in his decision the ALJ deferred to plaintiff on this point, and concluded from plaintiff's testimony that he could sit a half hour before needing to stand and move about to some extent. However, there was an issue regarding that moving about. Plaintiff claimed that he needed to walk some distance. The ALJ did not credit this and essentially found that all plaintiff needed was a stretch. This issue was of some importance before the ALJ and is still of significance.
The ALJ's decision also described the testimony of the vocational expert, who had been examined by the ALJ. The ALJ had posed hypothetical questions about a person of plaintiff's age, education, and past work.
The first hypothetical question was based on the views of Dr. Berardis and Dr. Decker, and asked the expert to assume that plaintiff could perform the "full range of sedentary work." The expert responded that a person with plaintiff's past relevant work would have skills that would be transferable. He described these as supervisory and clerical skills. He referred to certain specific kinds of jobs which could be performed by plaintiff given these assumptions — i.e., data examination clerk, information clerk, and telephone solicitor positions, which together represented over 1,000 jobs in plaintiff's geographical region.
In the second hypothetical question, the expert was asked to assume that plaintiff could perform sedentary work, but could sit only up to 30 minutes at a time and must then stand or walk for 10 to 30 minutes. The expert was also asked to assume that plaintiff could sit a total of 4 hours in a workday.
The vocational expert again found that the same basic skills were transferable, and that the added limitations would not prevent the worker from performing the data examination clerk, information clerk, and telephone solicitor positions. As to the periods of relaxation following the presumed half hour of sitting, the worker would be required to stay within a relatively small area, but there was no requirement that the worker remain sitting at all times.
It should be noted that, in response to questions by plaintiff's attorney, the expert stated that, if the worker needed to regularly walk away some distance from the work station during the 10 to 30 minutes, this would impair the ability to perform the jobs which the expert had suggested.
After describing the evidence, the ALJ made his ruling that plaintiff was capable of being employed and was not disabled. He reviewed plaintiff's claim of disability pursuant to the procedure set forth in 20 C.F.R. § 416.920(a)(4). In accordance with this procedure, the ALJ found that: (i) plaintiff had not engaged in any substantial gainful activity since July 12, 1999; (ii) plaintiff had severe degenerative disease in the lumbar spine, but not sufficient to constitute any impairment listed in the Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix 1; (iii) plaintiff lacked a sufficient residual functional capacity to perform his past relevant work; (iv) plaintiff had the residual functional capacity to perform sedentary work with sitting up to thirty minutes at a time and four hours a day, standing and/or walking for four hours a day, and standing and/or walking for ten to thirty minutes after sitting a half hour; (v) plaintiff had transferable skills to positions that exist in significant numbers in the national economy, and thus (vi) plaintiff was not under a disability as defined by of the Social Security Act at any time through the date of the decision.
20 C.F.R. § 404.1525(a) states: "The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity."
Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 416.967(a).
The ALJ's ruling became the final decision of the Commissioner on July 26, 2002, when the Appeals Council denied plaintiff's request for review.
Plaintiff brought suit in this Court on September 16, 2002 to challenge the Appeals Council's determination. On October 30, 2003, the Court signed a joint stipulation between the parties to vacate the Appeals Council's ruling and remand to the Appeals Council with instructions to consider a June 26, 2002 letter from plaintiff's then-counsel that the Appeals Council apparently had not considered. After considering the additional evidence, the Appeals Council again denied plaintiff's request for review of the ALJ's decision on July 30, 2004.
On February 7, 2005, plaintiff filed a motion for judgment on the pleadings. The Commissioner filed a cross-motion for judgment on the pleadings on March 7, 2005.
DISCUSSION
A district court reviewing a Social Security determination must "determine whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Plaintiff now challenges the ALJ's decision, arguing that it was not supported by substantial evidence. Plaintiff's challenge can be reduced to three separate claims: (1) that the ALJ erred in not applying the Medical-Vocational Guideline grids in the Code of Federal Regulations; (2) that the ALJ made an incorrect credibility assessment of plaintiff's testimony, leading him to misapply the vocational expert's testimony; and (3) that the ALJ mistakenly ignored plaintiff's testimony regarding work absences.
Medical-Vocational Guideline Grids
Plaintiff first challenges the ALJ's failure to use the Medical-Vocational Guideline grids (the "grids") contained in 20 C.F.R. § 404, Subpart P, Appendix 2, when making his determination under part five of the § 416.920(a)(4) analysis. The grids take a claimant's residual functional capacity and take it into account in conjunction with the claimant's age, education and work experience to indicate whether the claimant can engage in any other substantial work in the national economy. "Generally, the result listed in the grids is dispositive on the issue of disability." Garvin v. Barnhart, 254 F. Supp. 2d 404, 410 (S.D.N.Y. 2003).
Nonetheless, where an individual's residual functional capacity falls between ranges in the grids, the ALJ should not apply the grids and instead decide step five of the analysis "on the basis of the principles and definitions in the regulations, giving consideration to the rules for specific case situations" in Appendix 2. See 20 C.F.R. § 404, Subpart P, Appendix 2, § 200.00(d). Here, the ALJ properly ignored the grids, because while sedentary work per the grid requires mostly sitting, the next step up, light work, requires mostly standing and/or walking. Compare 20 C.F.R. § 404.1567(a) (sedentary work involves "walking or standing occasionally"), with 20 C.F.R. § 404.1567(b) (light work "requires a good deal of walking or standing").
The ALJ's finding — which plaintiff does not challenge — was that plaintiff could sit for four hours and stand and/or walk for four hours per eight-hour workday.
Since the guidelines assume an eight-hour workday, sitting for four hours and standing for four hours splits the workday directly in half. Plaintiff's residual functional capacity thus fulfills neither the grid criteria for sedentary work (which would require more sitting than standing) nor the grid criteria for light work (which would require more standing than sitting). Accordingly, the ALJ was entitled to ignore the grids and seek the assistance of a vocational expert.
Plaintiff's Credibility/Vocational Expert Testimony
Plaintiff contends that the ALJ erred in not accepting plaintiff's testimony that, after periods of sitting, he would need to walk some distance away from his workstation. Plaintiff further contends that the ALJ should have based his finding on the opinion of the vocational expert that if this degree of exercise were necessary, it would impair plaintiff's ability to perform the jobs which the expert was suggesting.
It should be noted that the ALJ went a long way in crediting plaintiff's testimony, even though it differed substantially from the opinions of his treating doctor. Dr. Berardis testified that plaintiff could sit up to 8 hours a day. He said nothing about any half hour limitation and any need to move about for a period of 10 to 30 minutes after that half hour. Dr. Decker found no limitations as to sitting, and again said nothing about half hour periods of sitting followed by some form of moving about.
The ALJ did not impose upon plaintiff the rather strict view of the doctors, and obviously gave plaintiff the benefit of the doubt in ruling that he needed to limit his sitting to a half hour at a time, and that the periods of sitting needed to be interspersed with periods of some degree of moving about. But the ALJ did not depart all the way from the doctors' opinions. The ALJ did not accept plaintiff's proposition that during the periods of relaxation, he needed to walk around some distance away from his workstation. This conclusion of the ALJ was supported by substantial evidence in the form of the doctors' opinions, which did not find a need for the rest period at all, much less lengthy walks.
This means that the ALJ was justified in basically accepting the opinion of the vocational expert in response to the second hypothetical question. Thus there was no error in the ALJ's conclusion regarding plaintiff's vocational ability and opportunities.
Testimony Regarding Work Absences
Finally, plaintiff argues that the ALJ wrongfully ignored testimony regarding his potential for work absences. Plaintiff testified that in his final months at his old job, he missed numerous days of work. The vocational expert confirmed that employers of those in the three identified replacement positions would likely not tolerate such a rate of absence. As such, plaintiff argues that these jobs would not be suitable replacements because he would have to miss too much work.
Plaintiff's argument is unavailing. There is no evidence — medical or otherwise — to support a finding that plaintiff would require an abnormal amount of days off if placed in a job that required only sedentary work capabilities. As described, the doctors were of the opinion that plaintiff can work an eight-hour workday at such work. Their views do not support any idea of an abnormal number of days off.
The non-medical evidence is not to the contrary. The only non-medical evidence on the subject is plaintiff's own testimony, which is at best inconclusive. Plaintiff's reported rate of absence occurred at the very end of a career in a job with a medium-to-heavy exertion level. Plaintiff's electrician job at ABC often required heavy lifting and spending much of the day standing up and walking around. These requirements were eventually beyond plaintiff's physical capabilities. The three replacement positions that the vocational expert identified require far less exertion, and thus would be expected not to aggravate plaintiff's condition, requiring multiple days off.
CONCLUSION
Defendant's motion for judgment on the pleadings is granted. Plaintiff's motion for judgment on the pleadings is denied.
SO ORDERED.