Opinion
02 CV 1900 (JG)
June 16, 2003
KRISTINEKWON ROGER WILLIAMS, Binder Binder, New York, for Plaintiff
ROSYLNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York Artemis Lekakis, Assistant United States Attorney, for Defendant
MEMORANDUM AND ORDER
Michael DeStefano brings this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Commissioner of the Social Security Administration ("the Commissioner") denying him disability insurance benefits under the Social Security Act. The Commissioner has moved for judgment on the pleadings affirming the denial of benefits. DeStefano has cross-moved for an award of benefits or, in the alternative, for a remand for a new hearing. Because substantial evidence supports the Commissioner's decision, the defendant's motion for judgment on the pleadings is granted, and plaintiff's motion is denied.
BACKGROUND
A. DeStefano and his Disability Application
Michael DeStefano was born in 1939, served in the armed forces, and worked as a police officer in New York for more than twenty years. While a police officer, he sustained numerous injuries from car accidents, including a fractured vertebra in 1967. He was also shot in the elbow in 1969. On December 28, 1981, after a car accident while on duty, DeStefano was admitted to the hospital with neck and back injuries and was placed in traction for a few days. DeStefano was unable to return to his regular duties as an officer, and after working light duty behind a desk, he retired from the police department on a service-connected disability in July 1982.
In August 1982, DeStefano filed an application for disability benefits alleging a disability from the December 1981 car accident. The Social Security Administration ("the SSA") denied that claim initially, and DeStefano did not pursue any appeal. In June 1983, DeStefano filed another claim for disability benefits, again alleging an onset date of December 1981. That application was also denied on initial review, and DeStefano again did not request any further action.
After those applications, DeStefano was employed for short periods of time. In 1984, he worked as a porter in a friend's bar, but only for very brief periods and a few days each week. From 1985 to 1986, DeStefano worked as a limousine driver for five-to-seven hours per day, three or four days each week. His neck and back still bothered him, but he was able to relax and lie down in the car between calls. However, he eventually stopped working as a driver because of the pain.
In April 1993, DeStefano filed another application for disability benefits based on the December 1981 accident. That 1993 application is the subject of this case. It listed DeStefano's disabling condition as: "neck and back, car accident, slipped on pier, hit by truck, thrown over truck and shot," (R. 70.) The SSA denied that application on initial review and upon reconsideration. In 1995, an Administrative Law Judge ("ALJ") conducted a hearing and found that DeStefano was not disabled. DeStefano timely appealed that decision, but his administrative file was lost. In July of 1999, almost four years after DeStefano appealed the ALJs decision, the SSA vacated the 1995 decision and remanded his application for a new hearing because of the lost record.
In June 2000, the ALJ held a new hearing on DeStefano's 1993 application. In August 2000, the ALJ again found that DeStefano was not disabled prior to December 31, 1990, the date he was last insured. That decision became the final decision of the Commissioner when the Appeals Council denied DeStefano's request for review.
B. Medical Evidence
DeStefano's 1993 application claimed that he became disabled as of December 1981. Prior to 1981, DeStefano had visited several doctors for various injuries. For example, in 1967, after a car accident while on the job as a police officer, DeStefano suffered a fractured vertebra. (R. 30-31.) Two years later, he was attempting to arrest someone and was shot in the left elbow. (R. 31-32.) In 1975 and 1977, DeStefano visited Dr. Jimmy Lint, an orthopedic surgeon, for discomfort related to the left elbow and for injuries related to a fall down a flight of steps, for which Dr. Lim prescribed heat therapy. (R. 120, 127.) In 1976, DeStefano sought treatment from Dr. Berkowitz, a neurologist, for headaches after yet another car accident. (R. 121, 129.) In 1977, he sought treatment from various doctors, including Drs. Lim and Berkowitz, following another car accident which resulted in a sprained neck. In 1978, he visited doctors again for pain in his left hand and arm, and they prescribed physical and heat therapy.
On December 28, 1981, the date that DeStefano claims he became disabled, he was in a rear-end collision car accident while on police duty. He hit his head and lost consciousness for twenty seconds, and was taken to the emergency room at North Shore University Hospital with complaints of severe neck pain, muscle spasms, and pain and numbness in his right arm. He was admitted for tests and observation, but x-rays showed that none of his vertebra were out of position. DeStefano was diagnosed as suffering a neck sprain, head trauma, and loss of consciousness and was discharged from the hospital on December 30, 1991. (R. 132.) The attending doctor noted that DeStefano was in "good condition with minimal pain and no n[e]urologic dysfunction." Id.
The week after he was released from the hospital, DeStefano visited Dr. Lim for continued pain in his back, neck, and arm. Dr. Lim diagnosed DeStefano with a neck and low back injury and recommended that DeStefano wear a collar and use heat therapy, and he asked for him to return for a follow-up. (R. 122.) DeStefano returned to Dr. Lim two weeks later and continued to complain about neck pain and pain in both hands. Dr. Lim prescribed a more supportive neck collar and suggested physiotherapy and a consultation with a neurologist. (R. 123.)
On February 5, 1982, DeStefano visited Dr. Dhruva Sulibhavi, a neurologist in practice with Dr. Lim. (R. 123-24.) Dr. Sulibhavi noted that DeStefano had been in a car accident but that his initial pain and headaches "have improved at present" and that he "only has neck pain, usually not severe enough for him to take any medication." (R. 124.) Dr. Sulibhavi examined him and found that any neck movements were painful to DeStefano, but Dr. Sulibhavi "reassured" DeStefano and concluded that there was no evidence that the nerves in his neck had been compressed and that he should "continue symptomatic treatment." (R. 123.)
DeStefano returned to Dr. Lim in May 1982, Dr. Lim noted that DeStefano had "intermittent low back problems," including pain and spasms, (R. 124.) Dr. Lim examined a new x-ray of DeStefano's spine and noted some irregularities but found that DeStefano's neurological status was intact. Id. Dr. Lim recommended that DeStefano should be retired from the police department because of his present condition and urged him to lose weight and exercise. He also prescribed general anti-inflammatory medication.
DeStefano apparently did not return to Dr. Lim until 1984, but in 1982 and 1983 he was examined by two doctors in connection with his earlier disability applications. In September 1982, Dr. Kenneth Boese found no muscle spasms or tenderness in DeStefano's back or neck and stated that an x-ray and Romberg test were both negative. (R. 162-64.) Dr. Boese concluded that DeStefano suffered from degenerative osteoarthritis of the neck and back, a possible left sciatic radiculopathy, and chronic back sprain.
In July 1983, Dr. V. Rao examined DeStefano and noted that he was still complaining of pain in his neck and lower back. Dr. Rao found that, while DeStefano's movement of his neck was limited, there was no muscle spasm and that, when unobserved, DeStefano could "rotate his neck fully to either side." (R. 166.) Dr. Rao also found that there was no evidence of scoliosis or kyphosis in DeStefano's back and that, while DeStefano showed signs of limited movement, there were no muscle spasms and DeStefano could make more extended movements when not being observed. (R. 167.) He diagnosed DeStefano as suffering from a "mild chronic degenerative disease" of the back and possibly the neck. Id.
Ten years later, in May of 1993, Dr. Lim referred DeStefano to Dr. C. Badlani. (R. 136.) Dr. Badlani noted that DeStefano was suffering from a long history of back pain. After examining DeStefano, Dr. Badlani found that his range of motion in his neck, back, and upper extremities was limited. Dr. Badlani did not find any tenderness in his spine, however, and prescribed physical exercises and anti-inflammatory medications.
Later that same year, in October 1993, Dr. Lim wrote a comprehensive letter to DeStefano's current counsel in connection with his present disability application in order to provide a narrative of all of Dr. Lim's interactions with DeStefano. (R. 173-75.) The letter contained some minor inconsistencies with Dr. Lim's other records, but it generally recounted DeStefano's history of car accidents and injuries. For instance, it stated that DeStefano was in a car accident in 1977 that resulted in severe degenerative changes to DeStefano's back and neck that led Dr. Lim to recommend that DeStefano retire from the police department The letter also noted a 1982 car accident that led to DeStefano's admission to North Shore Hospital, where he was diagnosed with a fractured vertebra that resulted in intermittent back discomfort for the next few months.
Dr. Lim's 1993 letter also referenced other medical examinations by him between 1982 and 1990 that were not separately part of DeStefano's administrative record. It stated that Dr. Lim had seen DeStefano in 1984 for lower back pain and again in 1987 following another car accident, for which Dr. Lim prescribed conservative management techniques, including a neck collar, lower back exercises, and medication. (R. 174.) In 1988, Dr. Lim saw DeStefano for an injury to his left knee that happened when DeStefano was playing volleyball (At his hearing before the ALJ, DeStefano said that he had not been playing volleyball but had just been, walking past the volleyball court. (R. 43.)) In 1989, Dr. Lim noted continued swelling in the left knee, for which he again recommended conservative management techniques. Finally, in 1990, Dr.
Lim ordered an MRI on the knee, and upon finding a partially torn ligament, performed arthroscopic surgery. Dr. Lim noted that following this knee surgery DeStefano continued to have pain in his lower back.
The letter also referenced events that happened that year. It stated that Dr. Lim had seen DeStefano in April 1993, at which time DeStefano complained of exacerbated and daily pain, for which Dr. Lim prescribed more powerful medication and physical therapy. X-rays at the time showed considerable osteoarthritis throughout DeStefano's back. The letter noted the referral to Dr. Badlani and stated that DeStefano had severe degenerative changes in his neck and back with extensive limitations to his movement and that the clinical diagnosis for DeStefano was "severe cervical spondylosis post traumatic and also disc degeneration." (R. 175.) The letter concluded that, according to Dr. Lim, DeStefano's condition was "permanent in nature" with "no likelihood of improvement" and that DeStefano was "totally disabled from any work including [a] sedentary type of work due to the nature of his severe changes in the neck and low back area." Id.
In addition to the letter, Dr. Lim also completed a residual functional capacity form and returned it to DeStefano's counsel in November 1993. (R. 171-72.) Dr. Lim stated that DeStefano could sit and stand/walk up to only an hour per day, that he could occasionally lift and carry no more than 5 pounds, and that DeStefano could never bend, climb steps, or reach. He concluded that DeStefano was totally restricted from engaging in activities that involved being exposed to heights and moving machinery and was moderately restricted from being exposed to changes in temperature and humidity and driving automotive equipment. Finally, Dr. Lim noted that the medication that DeStefano was taking included side effects like drowsiness, nausea, and impaired concentration.
In June 1994, Dr. Lim wrote a one-sentence letter that stated that DeStefano was his patient and was "totally disabled and has been since July 31, 1982." (R. 170.)
In November 1994, DeStefano was admitted to North Shore University Hospital with numbness on the left side of his body. (R. 137-41, 151-57.) A CT scan and MRI were performed and were normal. DeStefano was discharged after a few days and diagnosed with having suffered a brief stroke.
C. The ALJ's Decision
As noted above, an ALJ issued a formal decision on DeStefano's 1993 application in 1995, but the administrative record was lost and that decision was vacated and his application remanded for a new hearing. In June 2000, the same ALJ conducted a new hearing at which DeStefano testified and was represented by counsel. The ALJ opened that hearing by stating that, based on the Appeals Council decision to remand, he was adopting his prior decision in "full with the exception of the findings of fact and the conclusions of law," which would "remain open and will be determined after this hearing." (R. 29.) The ALJ offered DeStefano's attorney an opportunity to be heard and "`to comment, add, or amend any part of [that prior] decision," after which DeStefano's counsel elicited from DeStefano the history of DeStefano's medical impairments. Id.
The ALJ issued a formal decision on DeStefano's application in August 2000. (R. 12-19.) The ALJ described (he five-step evaluation process for determining a disability under 20 C.F.R. § 404.1520 and first sought to determine whether DeStefano was able to perform substantial gainful activity. The ALJ observed that DeStefano had alleged that he had become disabled in December 1981 but that his past work experience included being a bartender and limousine driver after his alleged onset date. The ALJ further observed that because DeStefano had established significant earnings in 1984, 1985, and 1986 in connection with those jobs, he had engaged in substantial gainful employment and therefore was not disabled. (R. 14.) Nevertheless, the ALJ went on to consider the other steps in the five-part analysis.
At step two in the process, the ALJ noted that the combination of DeStefano's impairments, including the injuries following the 1981 car accident, his stroke in 1994, and his injury to his left knee, affected his ability to work and should therefore be considered, and that his hospital reports and statements from treating and examining physicians established that he was somewhat impaired in his ability to perform work-related activities. At step three, the ALJ observed that these impairments did not equal any of the listed impairments in the Administration's regulations that would lead to an automatic finding of disability. The ALJ therefore proceeded to determine at step four whether DeStefano was able to return to his previous employment or to do other jobs.
At this point, the ALJ examined DeStefano's medical record in detail and particularly DeStefano's subjective complaints and Dr. Lim's medical evaluations. The ALJ specifically rejected DeStefano's subjective complaints as not credible because he found that they were not consistent with the medical findings in the record, particularly the negative neurological findings and the pattern of intermittent medical treatment. The ALJ also noted that DeStefano had not sought treatment for his alleged pain and did not require any assistive devices before December 1990. Furthermore, the ALJ noted that DeStefano had been able to work as a bartender and limousine driver, play volleyball, and drive a car. (R. 17.)
The ALJ specifically rejected Dr. Lim's medical evaluation of total disability. The ALJ found, just as with DeStefano's own subjective complaints, that Dr. Lim's conclusions were specifically contradicted by the medical findings in the record, including the negative neurological findings, the lack of consistent medical treatment and DeStefano's own physical activities, which included "working, playing volleyball, and driving." Id. Based on the medical record, the ALJ determined that DeStefano still maintained the ability to perform light work and that since his prior occupation as a limo driver qualified as light work, DeStefano could return to gainful work activity. Based on all these factors, the ALJ concluded that DeStefano was not disabled,
DISCUSSION
A. The Standard of Review
The role of a district court in reviewing the Commissioner's final decision on a claimant's disability application is limited. "A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by `substantial evidence' or if the decision is based on legal error," Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); see also 42 U.S.C. § 405(g). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal quotations omitted). If substantial evidence supports the ALJ's findings, the decision is binding, Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), and the district court cannot "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) (internal quotations and citations omitted).
B. Establishing a Disability
"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Act" Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423(a), (d). A claimant is "disabled" within the meaning of the Act when he or she can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A). The impairment 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." 42 U.S.C. § 423(d)(2)(A).
As stated above, the Commissioner uses a five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132 (citing the five steps with approval); Curry, 209 F.3d at 122 (same). First, the claimant must not be engaged in substantial gainful activity, 20 C.F.R. § 404.1520(b). Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third, the claimant must establish either that the impairment is listed in Appendix 1 of the regulations or that the impairment is equivalent to a listed impairment 20 C.F.R. § 404.1520(d). Fourth, if the impairment is neither listed in the Appendix nor the equivalent of an impairment listed in the Appendix, the claimant must show that he or she has no residual functional capacity to perform his or her past work. 20 C.F.R. § 404.1520(e). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy which the claimant can perform. 20 C.F.R. § 404.1520(f). The claimant has the burden of proving the first four steps; the Commissioner bears the burden of proof on the last step, Shaw, 221 F.3d at 132.
In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health and Human Servs., 705 f.2d 638, 642 (2d Cir. 1983). Further, the ALJ conducting the administrative hearing has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. 20 C.F.R. § 404.900(b) (1999) (expressly providing that the SSA "conduct the administrative review process in an informal, nonadversary manner"); Sims v. Apfel, 530 U.S. 103, 110-11 (2000); Shaw, 221 F.3d at 134. If "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," it is appropriate for a court to reverse an ALJ's decision and order the payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
DeStefano complains that the ALJ improperly evaluated the medical evidence in his case by ignoring the treating physician rule and by inappropriately concluding that he had the residual functional capacity to perform light work. DeStefano also claims that the ALJ improperly considered DeStefano's job as a limousine driver as past relevant work and was subjected to unreasonable delay and a biased ALJ. I conclude that the ALJ properly evaluated the medical evidence in DeStefano's case and that the evidence supports the Commissioner's determination that DeStefano was not disabled as of December 1990.
At step one of the inquiry, the ALJ determined that it was unlikely DeStefano could even be considered to have suffered from a disability because he had engaged in substantial gainful work activity well after his alleged onset date. (R. 14.) The ALJ noted that DeStefano's records stated that (in addition to the disability benefits he received from the police force) he had made more than $4,000 per year in 1984, 1985, and 1986, even though DeStefano claimed that he was able to work only intermittently during these years and for a limited period of time. In accordance with 20 C.F.R. § 404.1574, the ALJ determined that this earnings history showed (hat DeStefano was indeed capable of engaging in substantial gainful activity. The ALJ found unpersuasive DeStefano's attempt to explain away these three years of earnings as a brief and unsuccessful attempt at work, see Andler v. Chater, 100 F.3d 1389, 1392-93 (8th Cir. 1996) (noting that under certain circumstances short periods of work might not qualify as gainful work activity), and the facts cited in the ALJ's opinion support that conclusion. (R. 14.) In short, DeStefano was not disabled as of 1981 because he was capable of gainful work activity following the onset of his alleged disability.
Despite this adverse finding at the first step, the ALJ proceeded further in the analysis. At step two, the ALJ found that the combination of DeStefano's impairments — the injuries from the 1981 car accident, the knee injury, and his stroke — limited his ability to work but were not the equivalent of any of the listed impairments. At step four, the ALJ found that the impairments did not prevent DeStefano from returning to his past work as a limousine driver.
In the process of rejecting DeStefano's claim, the ALJ specifically rejected the medical opinion of DeStefano's treating physician, Dr. Lim. The law "gives special evidentiary weight to the opinion of the treating physician/' Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998). However, an opinion of a treating physician must be given controlling weight only if it is well-supported by medically acceptable clinical and laboratory diagnostic examinations and is not inconsistent with other substantial evidence in the record, 20 C.F.R. § 404.1527(d)(2); See Schaal v. Apfel 134 F.3d 496, 503-04 (2d Cir. 1998), and "the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Here, the ALJ acknowledged the extent of Dr. Lim's treatment history of DeStefano and the doctor's opinion regarding the extent of DeStefano's injuries. (R. 15-16.) However, the ALJ's reasons for not giving controlling weight to Dr. Lim's opinion are set forth in the ALJ's opinion (R. 17) and are supported by DeStefano's medical record as a whole. First, Dr. Lim's conclusions were not consistent with his own neurological findings or those of DeStefano's other examining doctors, including Drs. Badlani, Rao, and Sulibhavi. See 20 C.F.R. § 404.1527(d)(4). Second, DeStefano had only occasionally sought medical attention from Dr. Lim over the long history of his alleged disability. 20 C.F.R. § 404.1527(d)(2)(i); Arnone v. Secretary of Health and Human Services, 882 F.2d 34, 39-41 (2d Cir. 1989). Third, Dr. Lim's conclusions were flatly contradicted by DeStefano's history of work-related and recreational activities. 20 C.F.R. § 404.1527(d)(4). I conclude that there was sufficient evidence in the record to support the ALJ's decision to reject Dr. Lim's medical opinions in assessing the extent of DeStefano's disability and his residual functional capacity.
When a treating physician's opinion is not given controlling weight, the Commissioner must consider various factors in determining what weight to give the opinion. See 20 C.F.R. § 404.1527(d)(2). These factors include: the frequency of examinations and the extent of the relationship between the physician and patient, the other evidence in the record, the opinion's consistency with that evidence, and whether the opinion is from a specialist. Schaal 134 F.3d at 503: see Brown v. Barnhardt, No. 01-CV-2962 (JG), 2002 WL 603044, at *3 n. 3 (ED.N.Y. Apr. 15, 2002). In this case, the ALJ rejected Dr. Lim's opinion in its entirety, stating simply it was "not accepted." (R. 17.) In deciding to give Dr. Lim's opinion no weight at all, the ALJ adequately addressed the above factors, specifically noting the infrequency of Dr. Lim's treatment of DeStefano over the years and the lack of corroborating medical evidence.
After rejecting Dr. Lim's opinion, the ALJ went on to find that DeStefano retained the ability to perform light work. DeStefano contends that the ALJ failed to adequately set forth on the record any support for this residual functional capacity finding. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). I disagree. The records of Dr. Lim's own physical examinations and the consultative examinations performed by the other doctors provide substantial evidence for the ALJ's findings, as does the fact that DeStefano was gainfully employed as a limousine driver and porter in a bar in the years following his alleged disability onset date. In fact, nothing in DeStefano's record (apart from Dr. Lim's residual functional capacity form) supports a contrary conclusion, and the ALJ's rejection of Dr. Lim's assessment is adequately supported by the record. See Shaw, 221 F.3d at 132,
CONCLUSION
For the foregoing reasons, the defendant's motion for judgment on the pleadings is granted, and the plaintiffs cross-motion is denied. The Clerk is directed to close the case.
So ordered. JUDGMENT
A Memorandum and Order of Honorable John Gleeson, United States District Judge, having been filed on June 18, 2003, granting the defendant's motion for judgment on the pleadings; and denying plaintiff's cross-motion for judgment on the pleadings; it is
ORDERED and ADJUDGED that plaintiff take nothing of the defendant; that the defendant's motion for judgment on the pleadings is granted; and that plaintiffs cross-motion for judgment on the pleadings is denied.