Opinion
6:01-CV-608
January 27, 2003
MARK A. SCHNEIDER, ESQ., Plattsburgh, New York, Attorney for Plaintiff.
GLENN T. SUDDABY, United States Attorney for the Northern District of New York, Syracuse, New York, Attorney for Defendant.
REPORT-RECOMMENDATION
This matter was referred to the undersigned for report and recommendation by the Honorable Thomas J. McAvoy, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard.
PROCEDURAL HISTORY
Plaintiff filed an application for Supplemental Security Income (SSI) benefits on September 2, 1998. (Administrative Transcript ("T") at 79-82). The application was denied initially and upon reconsideration. (T. 47-49, 52-55, 50, 58-61).
Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on February 9, 2000. (T. 21-46). The ALJ found that plaintiff was not disabled. (T. 11-16). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 6, 2001. (T. 4-5). This case was filed on April 25, 2001.
CONTENTIONS
The plaintiff makes the following claims:
(1) The ALJ did not follow the Treating Physician Rule when he rejected the opinions of plaintiff's treating physician. (Brief, p. 10).
(2) The ALJ erred in his finding about plaintiff's credibility. (Brief, p. 14).
(3) The ALJ erred in his finding that plaintiff had the residual functional capacity to perform light work. (Brief, p. 19).
(4) The ALJ did not fully develop the record and plaintiff did not receive a full and fair hearing. (Brief, p. 22).
The defendant argues that the Commissioner's determination is supported by substantial evidence in the record and must be affirmed.
FACTS
This court adopts the facts contained in the plaintiff's brief under the heading "Statement of the Case" at pages 1 through 6. Those facts are generally accurate but contain some additions that do not appear to be in the record.
For example, plaintiff's brief claims that plaintiff plays bingo "occasionally". (Brief, p. 2). Plaintiff's testimony is that she plays bingo but she does not state how often. Plaintiff's testimony is that her medication gives her problems thinking or concentrating "at times". (T. 42). Plaintiff's brief states that "because of her medication she cannot concentrate". (Brief, p. 2).
DISCUSSION
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable 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 twelve months . . . ." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. § 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. § 404.1520, 416.920.
The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).
1. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
2. Medical Evidence
Plaintiff asserts that she is disabled due to a neck impairment, and constant pain in her right arm and leg. (T. 31, 55, 98). Plaintiff first began having neck problems in September of 1998 (T. 31), but the first report from her treating physician, Dr. Honorio T. Dispo, states that plaintiff complained of neck pain for eight months prior to that first visit on July 10, 1998. (T. 130). Plaintiff has been treated by Dr. Dispo, a specialist in physical medicine and rehabilitation. (T. 130).
The record contains five reports from Dr. Dispo starting with July 10, 1998 (T. 130) and ending with February 14, 2000. (T. 150). Plaintiff's testimony is that she visited Dr. Dispo "every three months for quite awhile" (T. 32), but did not continue seeing Dr. Dispo because of the expense. (T. 32).
The record is clear that Dr. Dispo was plaintiff's main treating physician, and even in the first examination on July 10, 1998, Dr. Dispo found "a positive right Neck Spurling test" and "diminished right triceps jerk with diminished pin prick sensation" (T. 130). Dr. Dispo stated that his examination of plaintiff's back "elicits back pain . . . ." (T. 130). Dr. Dispo believed that plaintiff had cervical spondylosis and neck and right arm pain resulting from a "right C7 radiculopathy". (T. 130). Dr. Dispo decided to treat plaintiff conservatively with a course of physical therapy. (T. 131).
Dr. Dispo next examined plaintiff on August 11, 1998. (T. 132). In his report he stated that the x-rays of plaintiff's cervical spine "did show mild narrowing of C5-C6 disc space and there is severe narrowing of the left neuroforamen at C5-C6." Dr. Dispo prescribed medication for plaintiff and requested a magnetic resonance imaging report (MRI) of plaintiff's cervical spine. (T. 132). Dr. Dispo next examined plaintiff on September 28, 1998, and commented on the MRI and nerve conduction studies. (T. 133). According to Dr. Dispo's September 28, 1998 report:
[t]he EMG and nerve conduction studies showed a right C6 radiculopathy and the MM of the cervical spine showed C5-C6 cervical degenerative spondylosis with a large calcified [sic] at the left side.
(T. 133). Dr. Dispo suggested use of cervical epidural steroids and possible surgical treatment. (T. 133).
Dr. Dispo examined plaintiff again on December 10, 1998 (T. 134), and found "persistent pain and spasms" in plaintiff's cervical spine and in other areas, "with right and left lateral tilting eliciting pain down both arms . . . ." (T. 134). Dr. Dispo renewed plaintiff's pain medications and stated that plaintiff had "persistent neck pain radiating down [her] arm with numbness . . . as well as a C6 radiculopathy and cervical spondylosis at C4-C5-C6." (T. 134). Dr. Dispo concluded that "I do not believe that she can be gainfully employed. Therefore, she is permanently and totally disabled." (T. 134).
The last report in the record from Dr. Dispo is dated February 14, 2000 and was written after an examination of the plaintiff. According to Dr. Dispo, his examination "shows persistent pains and spasms" similar to his previous findings and "diminished right brachioradialis jerk and diminished pin prick at the dorsum of the right forearm and at 3 digits of the right hand." (T. 150). Dr. Dispo stated the following:
I do not believe that she can be gainfully employed. I do not believe that physical therapy or medications can cause sufficient improvement for her to perform any work. Any narcotic pain-killers that might relieve her pain would cause her to suffer from further mental confusion and drowsiness . . . .
Based upon my clinical examination, x-rays and an MRI showing C5-C6 cervical spondylosis and a large left bone spur at the neck. [sic] Ms. Wood cannot perform any kind of occupation and therefore is permanently and totally disabled.
(T. 150).
The record contains a report of an independent medical examination by Dr. Henry K. Freedman. Plaintiff's brief points out that Dr. Freedman is an urologist. Dr. Freedman's report (T. 118-120) states that he believes plaintiff has degenerative arthritis of the cervical spine in addition to "musculoskeletal pain lumbosacral spine". Apparently, Dr. Freedman administered some test designed to measure the credibility of plaintiff's flexion of her foot, and the result of that was to "show the patient to give physiologic credible answers." (T. 120).
The record contains the result of two reviews by two non-examining physicians who found plaintiff capable of light work. (T. 121-128).
3. Treating Physician
The medical conclusions of a treating physician are controlling if well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); 416.927(d)(2). See also Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). An ALJ may not arbitrarily substitute his own judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d at 79 (citations omitted). If the treating physician's opinion is not given "controlling weight," the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician for the condition(s) in question, the medical evidence supporting the opinion, the consistency of the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2-6); 416.927(d)(2-6). Failure to follow this standard is a failure to apply the proper legal standard and is grounds for reversal. Barnett v. Apfel, 13 F. Supp.2d 312, 316 (N.D.N.Y. 1998) (citing Johnson v. Bowen, 817 F.2d at 985).
The ALJ did not accept the opinions of plaintiff's treating physician and rejected those opinions "based on the limited findings on examinations by Dr. Dispo and a consultative examination . . . ." (T. 13). The ALJ's rejection of the opinions of plaintiff's treating physician is not supported by substantial evidence in the record since Dr. Dispo's opinions are not contradicted by any significant medical evidence in the record, and are supported by specific diagnostic tests, including x-rays (T. 117), MRJ reports (T. 116), and apparently nerve conduction studies which are not in the record but are referred to in Dr. Dispo's report. (T. 133).
The ALJ's statement that "clearly the claimant does not have ongoing severe neck or back pain" (T. 13) is not supported by substantial evidence in the record and is not supported by the reasons advanced by the ALJ. (T. 113). In addition, the ALJ's statement that "there has been no evidence of spasm noted on examinations nor muscle weakness" (T. 113) is incorrect. Dr. Dispo did find spasms on December 10, 1998 (T. 134) and on February 14, 2000 (T. 150).
4. Residual Functional Capacity (RFC)
In rendering an RFC determination, the ALJ must consider objective medical facts, diagnoses and medical opinions based on such facts, as well as a plaintiff's subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R. § 404.1545; 416.945. See also Martona v. Apfel, 70 F. Supp.2d 145 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). RFC can only be established when there is substantial evidence of each physical requirement listed in the regulations. LaPorta v. Bowen, 737 F. Supp. at 183. Furthermore, an ALJ must specify the functions plaintiff is capable of performing, and may not simply make conclusory statements regarding a plaintiff's capacities. Verginio v. Apfel, 1998 WL 743706 (N.D.N.Y. Oct. 23, 1998); LaPorta v. Bowen, 737 F. Supp. at 183.
The ALJ concludes that plaintiff's activities do not preclude light work on a sustained basis. (T. 14). This finding is not supported by substantial evidence in the record. Plaintiff's testimony is that she does perform some activities around her house, but these activities are very limited and restricted. The ALJ's conclusion that these activities show that she does not experience the pain which she alleges, is not supported by substantial evidence in the record since plaintiff's testimony clearly shows that her activities are extremely limited, and the medical evidence supports her assertions. The ALJ either makes conclusory statements to support his assertion that plaintiff has the physical abilities to perform light work or has based his findings upon conclusions of non-examining physicians, whose opinions do not outweigh the opinion of the treating physician. To the extent that the ALJ appears to rely upon Dr. Dispo's reports, the ALJ's statements are not supported by the reports he cites.
Since the Commissioner's decision failed to follow the Treating Physician Rule by not specifying what evidence in the record contradicted plaintiff's treating physician's opinions, the rejection of those opinions is not supported by substantial evidence in the record. Similarly, the Commissioner's determination that plaintiff has the residual functional capacity to perform light work is also not supported by substantial evidence in the record.
It is not necessary to comment on plaintiff's other contentions since this court finds that the errors stated above are reversible error, and this court will recommend that the Commissioner's decision be REVERSED and that benefits be awarded to the plaintiff in accordance with Social Security regulations.
WHEREFORE, based on the findings in the above Report, it is hereby
RECOMMENDED, that the Commissioner's decision be REVERSED and that benefits be awarded to the plaintiff in accordance with Sentence Four of 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).