Opinion
Docket No. 98-CV-0790E(F)
August 8, 2000
ATTORNEYS FOR THE PLAINTIFF: John A. Galeziowski, Esq., do Godinho Galeziowski
ATTORNEYS FOR THE DEFENDANT: Mary K. Roach, Esq., Asst. United States Attorney,
MEMORANDUM and ORDER
Plaintiff initiated this action under Title II of the Social Security Act, 42 U.S.C. § 401-432, seeking review of the decision of the Commissioner of Social Security ("the Commissioner") denying her application for Security Disability Income ("disability benefits"). This matter was referred to Magistrate Judge Leslie G. Foschio by Order dated December 11, 1998. Presently before the undersigned is Judge Foschio's March 31, 2000 Report and Recommendation ("RR") that this Court grant the Commissioner's motion for judgment on the pleadings and on plaintiff's objections filed in response thereto. As provided by Rule 72(b) of the Federal Rules of Civil Procedure, the undersigned has made a de nova determination upon the record of those portions of Judge Foschio's disposition to which plaintiff has objected. Such objections will be overruled and the RR adopted in its entirety.
The pertinent facts are thoroughly set forth in the RR and will be summarized only briefly herein. Plaintiff filed her application for disability benefits November 8, 1995 claiming that she was unable to work due to debilitating pain in her hands, wrists, arms, shoulders and neck. RR at 2. Under the Social Security Act, an individual may be entitled to disability benefits of the individual cannot engage in "substantial gainful activity by reason any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). Plaintiff's application was denied initially and upon reconsideration. RR at 2. Plaintiff then requested a hearing before an Administrative Law Judge ("the ALJ") of the Office of Hearings and Appeals of the Social Security Administration ("SSA") who denied disability benefits to plaintiff by decision dated December 5, 1997. Decision at 2-3. The decision was finalized October 23, 1998 when the SSA Appeals Council concluded that the decision of the ALJ was the Commissioner's final ruling regarding plaintiff's claim. Id. at 3. The ALJ had denied plaintiff disability benefits because, while plaintiff did suffer from impairments causing some degree of limitation in her ability to perform basic work activities, she nonetheless retained a "residual functional capacity" to perform a range of light work for which "there are a significant number of jobs in the national economy which she could perform. Decision at 21-22.
Pursuant to 42 U.S.C. § 405(g), the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." See also Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might as adequate to support a conclusion." Tejada, at 773-774. In determining whether substantial evidence supports the decision, this Court is instructed to carefully consider the entire record and examine "evidence from both sides because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Id. at 774.
Citations and internal quotation marks omitted.
Citations and internal quotations marks omitted.
In issuing his decision, the ALJ was required to follow the five-step sequence set forth by the Social Security regulations for the evaluation of an individual's disability claims. See 20 C.F.R. § 404.1520. The first step determines whether plaintiff is presently engaged in "substantial gainful activity. 20 C.F.R. § 404.1520(b). If plaintiff is so engaged, she cannot be found disabled. It is next determined whether plaintiff suffers from a severe impairment *** which significantly limits [her] physical or mental ability to basic work activities." 20 C.F.R. § 404.1520(c). If plaintiff does not suffer such impairment, she cannot be found disabled. The third step requires determination whether plaintiff's condition "meets or equals a listed impairment in appendix 1 [of the regulations]" presumed to be a disability. 20 C.F.R. § 404.1520 (d). If it corresponds thereto, she will be found disabled. If not, the fourth step requires analysis whether plaintiff's condition prevents her "from doing past relevant work." 20 C.F.R. § 404.1520(e). A current capacity to perform work done in the past forecloses a finding that plaintiff is disabled. If plaintiff cannot perform work done in the past, it must be determined whether plaintiff's condition prevents her "from doing any other [type of] work." 20 C.F.R. § 404.1520(f). If it does, plaintiff will be considered disabled. It is well established that plaintiff bore the burden of proof as to the first four steps in this analysis, while the Commissioner bore the burden of proving the fifth step. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
Plaintiff makes three objections to the RR, all of which are interrelated. Firstly, plaintiff asserts that the RR failed to consider medical evidence which disputed the ALJ's determination that "the opinions of total disability expressed by [her] treating physicians were "unsupported by significant objective finding."' Objections at 3(quoting Decision at 21). She contends that consideration of such evidence would demonstrate that her subjective allegations are supported by objective medical evidence. Id. Secondly, plaintiff contends that this failure to properly consider "all of the relevant evidence" resulted in her physicians opinions not being accorded their proper weight under the treating physician regulation. Id. at 4. Finally, plaintiff argues that the RR erroneously discounted "the subjective complaints of the plaintiff" which are "strongly supported" by the unevaluated objective medical findings and "entitled to great weight." Id. at 5. Simply put, plaintiff argues that substantial evidence does not support the decision and the subsequently issued RR.
As set forth under 20 C.F.R. § 404.1627(d)(2), the treating physician regulation states, in relevant part, that, "[i]f *** a treating source's opinion on the issue(s) of the nature and severity of [plaintiff's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [plaintiff's] case record, [the Commissioner] will give it controlling weight. When [the Commissioner] do[es] not give the treating source's opinion controlling weight, [the Commissioner] [will] apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion."
Upon reviewing the record, the undersigned finds that there is substantial evidence supporting the determination in the decision. As the Commissioner indicates in his reply brief and as indicated above, the test to be applied by this Court "is not whether there is evidence in the record which supports plaintiff's claim" but "whether substantial evidence supports the conclusions reached by the Commissioner." Reply at 1 (citing 42 U.S.C. § 4059(g) and Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998)). While plaintiff has been particularly adroit in pointing out a number of "objective [medical] findings" not explicitly referred to in the decision — such allegedly undermining the ALJ's conclusions — , such findings are inconclusive and oftentimes contradictory when viewed as part of the entire record. For example, plaintiff argues that the ALJ ignored evidence that plaintiff suffered from reduced grip strength. Objections at 2. The record, on the other hand, contains evidence that plaintiff was capable of lifting up to twenty pounds. See Tr. 136. Indeed, it is worthwhile to mention here that the undersigned has had some difficulty deciding whether many of these "overlooked" findings are medical opinions, medical opinions requiring further diagnosis or merely the memorialization of plaintiff's comments. See, e.g., Tr. 138 (noting that the cause of her "upper extremity polyarthralgia is not clear *** [and she may want] to get another opinion with respect to the cause of her discomfort"); see also 42 U.S.C. § 423(d)(3) ("a "physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques"). In addition, many of the medical findings in the record were actually prompted by plaintiff's previous Workers' Compensation claim and such findings are "not really relevant on the issue of whether [plaintiff] [is] entitled to disability benefits, as [they] [were] submitted to a Workers Compensation Board for the purpose of determining whether [plaintiff] could continue [her] present employment *** [and] did not determine or analyze or even consider whether [plaintiff] retained the residual functional capacity to perform light work." Elias v. Apfel, 54 F. Supp.2d 172, 179 (E.D.N.Y 1999). Succinctly stated, the Commissioner's conclusions are supported by substantial evidence and the ALJ's failure to mention "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" is not fatal inasmuch as the "evidence of record permits [the undersigned] to glean the rationale of [the] ALJ's decision." Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Furthermore, inasmuch as plaintiff's subjective complaints regarding her limitations alone are not conclusive evidence of disability, especially where such is not supported by the record, it is entirely within the ALJ's discretion to afford plaintiff's complaints less weight than objective medical findings. See 20 C.F.R. § 404.1529(a) (indicating that the Commissioner will "determine the extent to which *** alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence"); see also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) ("[w]here there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings").
Emphasis added.
Accordingly, it is hereby ORDERED that plaintiff's objections overruled, that the RR is adopted in its entirety and that this case shall be closed.