Opinion
Civil Action No. 98-371 (NHP).
July 19, 1999
Malcolm Spector, Esq., Jill Ann Boskey, Esq., CENTER FOR DISABILITY ADVOCACY RIGHTS, INC., New York, NY, Attorneys for Plaintiff.
Peter G. O'Malley, Assistant, U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, NJ, Attorneys for Defendant.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
Plaintiff Anthony DiSalvo brings this action before the Court, pursuant to §§ 205(g) and 1631(c) of the Social Security Act, and 42 U.S.C. §§ 405(g) and 1383(c), seeking to overturn the final determination of Commissioner of Social Security denying plaintiff's claim for disability insurance benefits and Supplemental Security Income under the Social Security Act for the period from October 4, 1991 through January 31, 1993. For the reasons stated herein, the Commissioner's decision is AFFIRMED.
The plaintiff has been found disabled, and eligible for SSI benefits for the period commencing February 1, 1993. His eligibility for benefits since February 1, 1993 is not an issue in this action.
STATEMENT OF FACTS PROCEDURAL HISTORY
Prior to 1990, plaintiff Anthony DiSalvo (hereinafter "plaintiff") worked as a computer programmer for twelve years for the New York Stock Exchange, and later for the City of New York and the State of New York. See Statement of Stipulated and Disputed Facts, dated August 21, 1998 at page 4. Sometime thereafter, plaintiff lost his job, became divorced, lost touch with his family, and became homeless. See Transcript of Proceedings, dated May 18, 1998 at page 175. Plaintiff occasionally worked jobs as a day laborer, washing dishes or digging ditches. (Stip. 4).
Hereinafter, this Court will refer to the Statement of Stipulated and Disputed Facts as "Stip."
Hereinafter, this Court will refer to the Transcript of Proceedings as "Tr."
On October 4, 1991, plaintiff, now forty-one years old, was found at the Port Authority Bus Terminal, and was transported to a shelter for the mentally disabled on Ward's Island. (Stip. 4). Plaintiff claims that he has little memory of what happened to him that led him to become homeless. (Stip. 4).
On August 31, 1992, plaintiff filed applications for Social Security disability insurance benefits and Supplemental Security Income (hereinafter "SSI"), alleging that his mental impairments became "disabling" as of October 4, 1991. Plaintiff's claim for benefits was initially denied, and then denied upon reconsideration. Next, plaintiff requested a hearing before an Administrative Law Judge. A hearing before the Honorable Rafael Lugo-Vilanova, Administrative Law Judge (hereinafter "ALJ") was then scheduled for November 3, 1993. On December 22, 1993, Judge Lugo-Vilanova issued an opinion finding plaintiff disabled as of February 1, 1993. Judge Lugo-Vilanova found that plaintiff's mental impairments satisfied the requirements of the Commissioner's "Listing of Impairments" as of that date. See 20 C.F.R. § 404, Subpt. P, App. 1 (1995).
Plaintiff requested review by the Appeals Council arguing that Judge Lugo-Vilanova failed to address plaintiff's disability for the period prior to February 1, 1993. By notice dated July 22, 1994, the Appeals Council affirmed Judge Lugo-Vilanova's finding that plaintiff was disabled beginning February 1, 1993, but vacated Judge Lugo-Vilanova's decision with respect to the issue of whether plaintiff was disabled during the period October 4, 1991 through February 1, 1993.
On June 13, 1995, plaintiff appeared at a remanded hearing before the Honorable Stephen A. Jones, ALJ. On September 28, 1995, Judge Jones issued a decision finding that plaintiff was not disabled prior to February 1, 1993. Plaintiff again sought Appeals Council review of this finding, and submitted argument in support of the request for review. Subsequently, on November 18, 1997, the Appeals Council concluded that there were no grounds for review, and therefore, Judge Jones' findings contained in the September 28, 1995 decision became the final decision of the Commissioner. The present appeal followed.
On appeal, plaintiff contends that the Commissioner's determination that plaintiff was not disabled between October 4, 1991 and February 3, 1993 is not supported by substantial evidence. Further, plaintiff asserts that the government ignored controlling law concerning the weight and authority of treating physician reports in finalizing its determination. Finally, plaintiff claims that the Commissioner erred as a matter of law by failing to apply S.S.R. 83-20 (Cum. Ed. 1992).
DISCUSSION
Jurisdiction over this appeal is conferred upon this Court pursuant to 42 U.S.C. §§ 405(g), which is made applicable to SSI cases by 42 U.S.C. § 1383(c)(3).
A. Standard of Review
Title 42 U.S.C. § 405(g) establishes the limitations that this Court must adhere to in reviewing said appeals. In accordance with the statute, a court may review the factual findings of the Commissioner only to determine whether the administrative record contains substantial evidence for such findings. This Court must affirm the Commissioner's findings of fact if supported by substantial evidence. If there is substantial evidence in the record to maintain the Commissioner's findings, they are conclusive; and as a result, the court is not empowered, pursuant to 42 U.S.C. § 405(g) to conduct a de novo review. Instead, the court's role must be viewed as narrowly tailored, with considerable deference to the Commissioner's fact-finding. See 42 U.S.C. § 405(g). This Court's inquiry must be directed to finding whether the decision was supported by substantial evidence.
The United States Supreme Court has defined substantial evidence in a Social Security case as "more than a mere scintilla" and as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. National Relations Bd., 305 U.S. 197, 229 (1938)). The fact that the record contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for the decision in the record. See Blalock v. Richardson, 483 F.2d 639, 642 (9th Cir. 1992). Consequently, this Court must review the record and the ALJ's findings and conclusion within the narrow confines of its limited scope of review.
B. Substantial Evidence
In reaching the findings in a disability benefits proceeding, the ALJ is entitled to draw inferences logically flowing from the evidence, and where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusions that must be upheld. See 42 U.S.C. § 423(d)(5); see also Miranda v. Secretary of Health, Educ. Welfare, 514 F.2d 996 (1st Cir. 1975). However, the ALJ's ruling should clearly explain the foundation upon which it rests. See Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The ALJ is charged with the responsibility of analyzing all the relevant evidence and explaining why certain evidence was considered relevant while other evidence was dismissed. See Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although administrative decisions are accorded a certain level of deference, it is the responsibility of this Court to closely sift through the record in order to determine whether the ALJ's ruling is supported by substantial evidence.
In order for a claimant to be deemed disabled, and thus entitled to benefits under the Act, he must comply with all relevant statutory requirements. To comply, the claimant must first meet the insured status requirements listed in 42 U.S.C. § 423(c) and the resource and income restrictions set forth in 42 U.S.C. §§ 1382(a) and (b) in order for SSI to be paid. Secondly, the claimant must establish that he is not "engage[d] in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or impairment which has lasted or can be expected to last for a continuous period of not less than twelve months" as defined by 42 U.S.C. §§ 423(d)(1)(A) and 1382(c)(3)(A). Finally, the claimant must show that he is disabled within the meaning of the statute.
An individual is determined to be under a disability "only if his physical or mental impairment(s) are 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(c)(2)(B)(d) and § 1382(c)(3)(B). Thus, a claimant must have a medically determinable impairment and this impairment must cause a functional limitation which negates the claimant's ability to do any kind of work which exists in the national economy.
In this matter, plaintiff has satisfied the first two requirements in that plaintiff is insured and is not "engaged in substantial gainful activity." The issue before this Court is whether the ALJ's ruling denying the plaintiff "disabled" status is supported by substantial evidence.
The Social Security Act prescribes a five-step sequential analysis that must be satisfied in order for a claimant to be entitled to benefits. See 20 C.F.R. § 404.1520 (1995). First, the plaintiff has the burden of establishing that he is not currently employed or engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a) (1995); see also Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5 (1987). Second, the plaintiff must also prove that he is inflicted with a severe medical impairment.See 20 C.F.R. § 404.1520(c) (1995); see also Bowen, 482 U.S. at 146-47 n. 5. Third, the ALJ must determine whether the severe impairment is listed in 20 C.F.R. § 404, Subpt. P., App. 1 (1995). Fourth, the claimant is under obligation to prove that he cannot return to the particular type of work the claimant has previously performed if the claimant's impairment does not meet the criteria set forth in the list of impairment. See 20 C.F.R. § 404.1520(e) (1995); see also Bowen, 482 U.S. at 146-47 n. 5. Failure to prove this requisite will result in a denial of benefits. See 20 C.F.R. § 404.1520(e) (1995). Fifth, if the claimant has proven that he is unable to perform prior occupational duties, the burden shifts to the Commissioner to establish that the claimant is able to work in some other occupation in the national economy. See 20 C.F.R. § 404.1520(f) (1995). If the Commissioner is unable to carry this burden, the claimant is entitled to benefits. Id.
The type of physical or mental impairment necessary to prove the existence of a disability has been defined as "[a]n impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3) and 1382(a)(3)(c). Although Congress requires the Commissioner to develop a complete medical record and make every reasonable effort to obtain all medical evidence, Congress nonetheless places the burden upon a plaintiff to show his entitlement to disability benefits. See 42 U.S.C. § 423(d)(5)(A), incorporated by 42 U.S.C. § 1382(a)(3)(H) ("An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the [Commissioner] may require.").
In the present matter, this Court must look to the factual record developed at the June 13, 1995 hearing. At that time, plaintiff asserted that, in October 1991, he was found at the Port Authority Bus Station by an outreach team and was taken to a program for the mentally ill. (Tr. 36-37). Plaintiff stated that he made various attempts to work after that, and still desired to return to work. (Tr. 42-44). However, he claimed that his mental condition deteriorated so completely before October 1991, that he was unable to do so. (Tr. 46). Plaintiff further asserted that although the prior hearing decision was correct in finding him disabled, it gave no indication why February 1, 1993 was chosen as the onset date for disability benefits rather than October 4, 1991, the date claimed by him.
Judge Jones employed the sequential evaluation set forth in 20 C.F.R. § 404.1520 in order to conclude that plaintiff was not disabled under § 1614(a)(3)(A) of the Act. The ALJ made the following findings:
1. The claimant was insured under Title II of the Social Security Act on October 4, 1991, the date disability was alleged to have begun, and has been insured at all times pertinent to this decision.
2. There is no evidence of substantial gainful activity after the October 4, 1991.
3. By previous Administrative Law Judge decision dated December 22, 1993, the claimant was determined to be disabled commencing February 1, 1993.
4. Prior to February 1, 1993, the claimant has the following severe impairments based upon the medical evidence: (1) arthritis in the hands and (2) arthralgias.
5. Prior to February 1, 1993, none of the claimant's impairments is attended by clinical or laboratory findings, either singly or in combination, which are the same as, or medically equivalent to, the criteria for any impairment described in Appendix 1, Subpart P, Regulations No. 4.
6. The claimant's allegations of pain and functional limitation prior to February 1, 1993, are not credible with respect to severity.
7. Prior to February 1, 1993, the claimant had a residual functional capacity to perform sedentary work.
8. Prior to February 1, 1993, the claimant was unable to perform his past relevant work.
9. The claimant is 44 years old which is defined as a younger individual, and completed college.
10. The claimant does not have skills acquired from past work which are readily transferable to other work existing in the national economy.
11. Prior to February 1, 1993, the claimant's medical-vocational profile corresponds to Rule 201.27 of Appendix 2, Subpart P, Regulations No. 4, which directs a conclusion that he was not disabled prior to February 1, 1993.
The ALJ determined that commencing February 1, 1993, plaintiff suffered a disability and was awarded disability and social security benefits. However, in this September 28, 1995 decision, Judge Jones also concluded, based on the lack of any medical evidence provided for the period from October 4, 1991 through January 31, 1993, that although plaintiff was disabled as defined in the Act, he did not become disabled until February 1, 1993. While the ALJ found that the medical evidence established that plaintiff had a severe mental condition, medical evidence indicated that the plaintiff's mental condition did not exist prior to February 1, 1993. Further, plaintiff was found to be able to perform substantial gainful activity. See 20 C.F.R. § 404.1594(a). Consequently, plaintiff was not disabled within the meaning of the Act, given his age, education, and work experience.
On appeal, plaintiff asserts that the ALJ's decision to deny disability benefits under §§ 216(i) and 223 of the Act was not supported by substantial evidence. Plaintiff asserts that the onset date selected by the Commissioner, February 1, 1993, is based only on the erroneous belief by Judge Lugo-Vilanova that plaintiff had selected this date as his alleged onset date. Further, plaintiff asserts that the Commissioner erred in rejecting the retrospective opinions of the treating sources and failed to give them controlling weight. Finally, plaintiff contends that the basis for this error is that neither of the two ALJ decisions mention or refer to S.S.R. 83-20 (Cum. Ed. 1992), and that these omissions are evidence that the Commissioner failed in his duty to follow S.S.R. 83-20 (Cum. Ed. 1992) in establishing an onset date.
Plaintiff cites Third Circuit cases for the proposition that an ALJ's own observation of the evidence regarding whether the claimant was disabled at the time is not substantial evidence.See Daring v. Hecker, 727 F.2d 64, 70 (3d Cir. 1984). See also Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983);Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981); Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). However, even if the ALJ's own observation is set aside, there is plenty of other evidence shown on the record as a whole to substantiate the ALJ's decision to refuse plaintiff's disability benefits.
In refuting plaintiff's alleged onset date, the ALJ found the most critical factor to be the lack of medical evidence submitted by the plaintiff for the period after October 4, 1991 through January 31, 1993. The record indicates that on April 23, 1993, plaintiff was seen at St. Mark's Place Institute For Mental Health, at which time he was psychologically evaluated, and was eventually diagnosed with a schizoaffective disorder. (Tr. 148). However, prior to April 23, 1993, there is no evidence that the plaintiff sought or received any medical care for a mental impairment. Plaintiff also received intermittent outpatient care at St. Vincent's Medical Center for the latter part of 1991 through September, 1992 for arthritis. (Tr. 96-117). However, no one documented any treatment or diagnosis for a mental condition at this time. Because there is a gap in the medical evidence and lack of any proof that plaintiff sought treatment for his mental condition prior to April 23, 1993, the Commissioner could properly attach significance to the plaintiff's failure to seek any medical attention during the crucial alleged disability period. See Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989).
Further, none of the medical evidence existing prior to April 23, 1993, supports plaintiff's basis that the onset date should commence on October 4, 1991. In November 1992, plaintiff saw Dr. DeLeon for a consultative physical examination. (Tr. 126). At that time, Dr. DeLeon opined that plaintiff suffered from arthralgias. (Tr. 126). Dr. DeLeon also noted his belief that plaintiff was slightly limited with regard to walking, standing, carrying, lifting, pushing and pulling, but he did not believe plaintiff to be limited with regard to sitting. (Tr. 126). Dr. DeLeon found no evidence of mental impairment. Plaintiff also saw doctors at St. Vincent's and the Charles Gay Shelter. On October 3, 1991, he was treated only for jaw pain. (Tr. 116). In November 1991, he was treated for a cold and bronchitis, (Tr. 116-116A), and in January 1992, he was assessed at St. Vincent's as healthy with no significant past medical history and no present complaints. (Tr. 107). There was no mention of mental impairment in any of these records. In fact, in August and September, 1992, Dr. Lutas's sole diagnosis of plaintiff is having arthritis in his hands. (Tr. 100, 102, 104). The Court finds that Drs. DeLeon and Lutas's assessments are consistent with the demands of sedentary work. 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 83-10 (Cum. Ed. 1992). Both Drs. DeLeon and Lutas's opinions were supported by the objective medical evidence of the record.
In order to refute Drs. DeLeon and Lutas's findings, plaintiff's representative submitted a statement from a treating source at St. Mark's which states that plaintiff provided a history indicating that he was unable to function from at least October 1991, which was consistent with his mental status at the time he was observed in April of 1993. (Tr. 253). While plaintiff's history may support this consistency, Judge Jones decided that his history alone cannot provide a basis for a finding of disability retroactive to October 1991.
As further evidence of the ALJ's error, plaintiff asserts that the Commissioner erred in rejecting the retrospective opinions of the treating sources and failed to give them controlling weight. Plaintiff argues that pursuant to 20 C.F.R. § 404.1527(d)(2), the opinions of treating sources are entitled to "controlling weight" when they are "well supported" and "not inconsistent with other substantial evidence" in the record. 20 C.F.R. § 404.1527(d)(2). The Commissioner's regulations do provide for this in evaluating a treating source's opinion on the issues of the nature and severity of an individual's impairment. However, when a treating source's opinion is not afforded controlling weight, factors including length, nature and extent of a treatment relationship, relevant evidence to support an opinion and the consistency of the opinion with the record as a whole, are considered in determining what weight to afford the opinion. 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6).
The ALJ found that the statement from St. Mark's was not supported by substantial evidence. Based upon the evidence of record, it was previously decided that the plaintiff's schizophrenia met a listing as of February 1, 1993. Prior to that time, there is evidence only of arthritis in his hands and arthralgias. Moreover, the plaintiff's treating sources did not support his own contention that he suffered from a disabling mental impairment prior to February 1, 1993. On October 3, 1991, St. Vincent's records indicate that the plaintiff had no past psychiatric history, (Tr. 116), and in January 1992 he was diagnosed as healthy, with no significant past medical history nor current problems. (Tr. 107). Additionally, in August 1992, Dr. Lutas did not find any signs or symptoms of a mental disorder. (Tr. 100, 102, 104). In fact, when Dr. Lutas was asked to describe any chronic illnesses, whether "physical or mental," Dr. Lutas stated that Mr. DiSalvo only had arthritis. (Tr. 100).
It is within the sole province of the ALJ, as trier of fact, to weigh all evidence, including medical evidence, and resolve material conflicts in evidence. Pearles, 402 U.S. at 399. See also Aponte v. Secretary of Dep't of Health and Human Serv., 728 F.2d 588, 591 (2d Cir. 1984); Weber v. Harris, 640 F.2d 176, 178 (8th Cir. 1981). Where medical reports are inconclusive in disability benefits proceedings, questions of credibility and resolution of conflicts in testimony are solely the function of the ALJ. See Sample, 694 F.2d 639.
In reviewing the evidence, the ALJ properly evaluated all of the medical evidence in the record. The ALJ does have discretion to accord less weight to particular reports by doctors who prepare many disability claims reports which are very similar in each case. Williams v. Sullivan, 970 F.2d 1178, 1185 n. 5 (3d Cir. 1992), cert. denied, Williams v. Shalala, 507 U.S. 924 (1993). Further, the ALJ's inferences based upon his fact-finding must be affirmed if they are supported by substantial evidence on the record. Winston v. Heckler, 585 F. Supp. 363, 366 (D.N.J. 1984).
In the present case, the ALJ properly noted that the plaintiff's mental impairment was not supported by medical records for the period from October 4, 1991 through January 31, 1993. Similarly, the ALJ recognized that the plaintiff's statement from St. Mark's was not supported by other evidence. Furthermore, the ALJ appropriately weighed and noted the retrospective treating sources in determining whether disability benefits are appropriate during the critical period.
Plaintiff's final contention is that neither ALJ utilized S.S.R. 83-20 (Cum. Ed. 1992) in order to determined the onset date of his disability. S.S.R. 83-20 (Cum. Ed. 1992) provides:
In determining the date of onset of disability, the date alleged by the individual should be used if it is consistent with all the evidence available. When the medical or work evidence is not consistent with the allegation, additional development may be needed to reconcile the discrepancy. However, the established onset date must be fixed based on the facts and can never be inconsistent with the medical evidence of record. S.S.R. 83-20 (Cum. Ed. 1992).
Both Dr. DeLeon and Dr. Lutas establish that their records are not indicative of mental impairment prior to April 23, 1993. Again, Dr. DeLeon opined after the November 1992 examination of the plaintiff that he suffered from arthralgias, (Tr. 126); there was no evidence of any mental impairment. Additionally, in August and September, 1992, Dr. Lutas's sole diagnosis of plaintiff is having arthritis in his hands. (Tr. 100, 102, 104). According to the above-mentioned ruling, the established onset date cannot be inconsistent with the medical evidence of record. S.S.R. 83-20 (Cum. Ed. 1992). However, the alleged onset date by plaintiff is clearly inconsistent with both Dr. DeLeon and Dr. Lutas's medical opinions. There is no medical evidence of a mental impairment from October 4, 1991 through February 1, 1993 that is consistent with plaintiff's argument. Assuming arguendo, that the ALJs utilized S.S.R. 83-20 (Cum. Ed. 1992) in their rationales, they still would be unable to find for the plaintiff in that regard.
Contrary to plaintiff's arguments, there is no basis for reversal in this case. The ALJ considered the plaintiff's age of forty-four, his college education, as well as, his various work experience as factors which impact on plaintiff's ability to perform other work in the national economy. See 20 C.F.R. §§ 404.1560, 404.1563-404.1565. The decision by the ALJ concluded that prior to February 1, 1993, his impairments limit his residual functional capacity to sedentary work. Consequently, the Court finds that the ALJ's decision that plaintiff was not disabled for the period from October 4, 1991 through January 31, 1993 is supported by substantial evidence.
CONCLUSION
For the forgoing reasons it is the determination of this Court that the Commissioner's decision that plaintiff is not entitled to disability insurance benefits under the Social Security Act for the period of October 4, 1991 through January 31, 1993, be and hereby is AFFIRMED.
An appropriate Order accompanies this Letter Opinion.