Opinion
99 Civ. 4614 (AJP).
March 27, 2000.
OPINION AND ORDER
Plaintiff Rubencio Duvergel brings this action, pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny him disability and Supplemental Security Income ("SSI") benefits. The parties consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 7.) The Commissioner has moved for judgment on the pleadings pursuant to Fed R. Civ. P. 12(c) and Duvergel, represented by counsel, has cross-moved for a remand.
For the reasons set forth below, the Commissioner's motion is granted and Duvergel's motion is denied.
PROCEDURAL BACKGROUND
On June 29, 1994, plaintiff Rubencio Duvergel applied for Social Security SSI and disability benefits, alleging an inability to work since April 4, 1993. (Administrative Record filed by the Commissioner ("R.") at 72-79.) Duvergel alleged that he was unable to work due to a "problem with both knees and chest," high blood pressure and arthritis. (R. 76.) Duvergel's applications were denied initially (R. 80-97) and on reconsideration (R. 99-116). At Duvergel's request (R. 117), a hearing was held before an Administrative Law Judge ("ALJ") on January 14, 1997. (R. 39-71.) On June 25, 1997, the ALJ issued her decision finding that Duvergel was not disabled. (R. 8-16.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Duvergel's request for review on March 8, 1999. (R. 4-5.) This action followed.
FACTS
Duvergel's Hearing Before the ALJ
At an earlier hearing on February 13, 1996, an ALJ adjourned the proceedings to allow Duvergel more time to obtain an attorney. (R. 33-38.) Several other hearings were scheduled and adjourned to allow Duvergel more time to obtain counsel. (See R. 19A-22, 32, 44.)
On January 14, 1997, a hearing was held before ALJ Robin J. Arzt. (R. 39.) Duvergel testified through a Spanish language interpreter and was assisted by a volunteer third-year law student. (R. 39, 41-42.) At the start of the hearing, upon questioning Duvergel, the ALJ determined that Duvergel's medical records seemed to be incomplete and instructed Duvergel and Duvergel's law student representative to obtain any missing records from the period in question, including records from Soundview where Duvergel had participated in an alcohol treatment program "from `93 to `94." (R. 47-50.)
As discussed below, the ALJ subsequently received those medical records, except from the Soundview Alcoholism Program, which did not respond to letters from Duvergel's representative or a subpoena by the ALJ. (R. 14, 282-91.) Duvergel's alcoholism, however, is not an issue in this proceeding.
At the time of the hearing, Duvergel was almost 59 years old and living alone. (R. 51.) Duvergel was born in Cuba on February 8, 1938, arrived in the United States in 1980 and was admitted for lawful permanent residence on March 26, 1986. (R. 51, 76.) Duvergel was educated through the fourth grade and able to read and write in Spanish and understand and speak "a little" English, but unable to read or write in English. (R. 53.)
Duvergel worked from January 1986 to April 1993 as a porter in a printing factory, where his duties included cleaning the building and stocking heavy materials. (R. 53-55.) When the factory went bankrupt and closed in April 1993, Duvergel collected unemployment insurance for approximately the next eight months. (R. 56.) In the five years prior to the printing factory job, Duvergel worked as a machine operator in a plastics factory, a stapler in a kitchen cabinet factory and a truck driver in a paper-recycling plant. (R. 56-60.)
Duvergel's law student representative told the ALJ that the impairments she should consider severe were Duvergel's arthritis in both his arms, his knees and his ankle, the problems with his stomach and his hypertension, i.e., high blood pressure. (R. 51-52; see also R. 66, 195-96, 205.)
With respect to his arthritis, Duvergel testified that "all of [his] body hurts," particularly in the winter and "when taking a shower, bathing." (R. 61.) He complained that his legs and arms (and particularly his elbows) bothered him, and that it was sometimes "very hard and difficult" to stand up from a sitting position. (R. 61, 68-69.) Duvergel testified that he was able to carry a gallon of milk but only with both hands. (R. 61, 69-70.) While he found it difficult to walk up and down the fourteen steps leading to his apartment, he was able to travel by public transportation without assistance. (R. 52-53.) A neighbor assisted him with errands. (R. 69; see also R. 192-93 (Affidavit of George Caraballo).) Duvergel testified that he could stand for half an hour as long as he switched from one leg to another and could sit for an hour if he moved his legs. (R. 68.) He had not tried sitting for more than an hour. (Id.) For his arthritis, Duvergel took Apac every five hours which relieved his pain "a little." (R. 61.)
The reference to "Apac" in the transcript is probably to Apap, a brand-name for acetaminophen. See American Medical Association Encyclopedia of Medicine ("AMA Encyclopedia") at p. 1097 (Random House 1989).
As to his high blood pressure, Duvergel testified that he took Procardia which controlled his blood pressure. (R. 61.) However, when asked whether he felt he had any problems related to his blood pressure, Duvergel complained of chest pains and shortness of breath. (R. 61-62.) He told the ALJ that he had become increasingly short of breath for the past four years and that his shortness of breath made it difficult for him to perform tasks such as cleaning his room. (R. 62.) Duvergel smoked "like a pack whenever [he] can" but less than a cigarette pack a day "because [he] can't even buy a pack." (R. 62.)
Procardia is a brand-name for nifedipine, a calcium channel blocker used mainly to prevent and treat angina pectoris, hypertension and circulation disorders. See AMA Encyclopedia at pp. 727, 1109, 1112.
Duvergel testified that he had been diagnosed as having ulcers, which "bother[ed] [him] . . . [v]ery frequently . . . [n]ot every day, but very constantly" and at times caused him pain in his back as well as his stomach. (R. 62-64.) In addition to Mylanta, he took Cimetedine which helped "a little." (R. 64.)
Mylanta is a brand-name antacid drug used to relieve symptoms of indigestion, heartburn, esophagitis, acid reflux and peptic ulcer. See AMA Encyclopedia at 113, 1109.
Cimetedine is a generic ulcer healing drug. See AMA Encyclopedia at 280, 1018.
At the time of the hearing, Duvergel had not drunk alcohol in approximately two weeks. (R. 65.) The ALJ tried to elicit testimony as to how much Duvergel drank prior to the two weeks before the hearing, but was unable to obtain a clear answer. (R. 64-66.) The ALJ left the record open at the end of the hearing in order for Duvergel and his law student assistant to submit the additional medical records, which they did. (See R. 70-71.) The ALJ also received two summation letters from Duvergel's law student advisor. (R. 194-99, 203-10.)
The Medical Evidence Before the ALJ
The medical evidence in the record includes records from Ponce DeLeon Health Center covering the period from February 1994 through August 1994 (R. 264-80), records from Jacobi Hospital from August 1994 through January 21, 1997 (R. 212-63), and a report of a consultative examiner dated November 4, 1994 (R. 152-57.).
Attached to Duvergel's pro se complaint are two sets of documents not contained in the administrative record: 9 pages of records from Jacobi Hospital from March 19, 1998 through April 14, 1999 (Cplt. at 7-15), and 4 pages containing the results of electrocardiograms and a stress test performed in May 1997 (Cplt. at 25-28).
Because evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner, see, e.g., 42 U.S.C. § 405(g); Carnevale v. Gardner, 393 F.2d 889, 891 n. 1 (2d Cir. 1968); Casiano v. Apfel, 39 F. Supp.2d 326, 330 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.) ( cases cited therein), aff'd mem., No. 99-6058, 2000 WL 225436 (2d Cir. Jan. 14, 2000), this Court will not consider the additional documents in reviewing the Commissioner's decision.
Although not permitted to consider new evidence, this Court may remand to the Commissioner to consider new evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see, e.g., Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991); Carnevale v. Gardner, 393 F.2d at 891 n. 1; Casiano v. Apfel, 39 F. Supp.2d at 331 ( cases cited therein). Duvergel has not attempted to make any such showing. Indeed the motion papers filed by his counsel do not even refer to the additional evidence.
On February 24, 1994, Duvergel received a physical examination at Ponce DeLeon Health Center and was diagnosed with hypertension, an enlarged liver and gastritis. (R. 272-74.) Duvergel was treated with Procardia and Maalox and advised to follow a low sodium diet. (R. 274.)
Maalox is a brand-name antacid drug. See AMA Encyclopedia at pp. 113, 1107.
On March 3, 1994, Duvergel reacted positively to a tuberculin test but a chest x-ray was negative. (R. 269-70.) Prophylactic treatment with Isoniazid was begun. (R. 269.)
Isoniazid is a generic drug used to treat tuberculosis. See AMA Encyclopedia at p. 1106.
Treatment notes from Ponce DeLeon for July 14, 1994 state that: Duvergel has a history of alcohol abuse and was in a rehabilitation program; he complained of epigastric pain; and he was a heavy smoker and noncompliant with the tuberculosis treatment. (R. 266.) The doctor diagnosed hypertension, continued Duvergel on Procardia and advised Duvergel to stop smoking. (Id.) The doctor ruled out peptic ulcer disease and ordered an upper gastrointestinal series. (Id.) When the gastrointestinal series was performed four days later, it revealed "duodenitis," but "no distinct ulceration." (R. 277.)
Duodenitis is inflammation of the portion of the small intestine called the duodenum. See AMA Encyclopedia at p. 380.
Duvergel's last recorded visit to the Ponce DeLeon Health Center was on August 12, 1994, when he returned for his laboratory results. (R. 265.) He was continued on Procardia and again advised to stop smoking. (R. 265.) On a form completed that day, a physician reported that Duvergel was a heavy smoker with mild to moderate hypertension and that his prognosis was uncertain but "probably good." (R. 276.) The physician reported that Duvergel was able to "work without any limitations at this point." (R. 276.)
On August 16, 1994, Duvergel visited Jacobi Hospital, complaining of arthritis and stomach pain; he was diagnosed with duodenitis and prescribed Tagamet. (R. 255-56.)
Tagamet is a brand-name for Cimetidine, an ulcer healing drug. See AMA Encyclopedia at p. 280; see fn. 5 above.
On October 3, 1994, Duvergel reported partial relief of his epigastric pain from the Tagamet; he was continued on Tagamet for his duodenitis and Procardia for his hypertension.
On November 4, 1994, Duvergel was examined by a consulting physician, Dr. Sankoh. (R. 152-57.) According to Dr. Sankoh, Duvergel had a full range of motion of the spine with no tenderness or spasm, he was able bend down and touch the floor and straight leg raising was negative. (R. 153.) Duvergel's lungs were "resonant to percussion" with no wheezes, rales or rhonchi, and the expiratory phase was not prolonged. (R. 153.) There was some tenderness in the knees, but Duvergel was able to flex them to 120 degrees accompanied by "coarse crepitations" and pain. (R. 153.) Throughout the extremities, muscle strength was normal and there was no evidence of muscle wasting. (R. 153.) An EKG demonstrated a regular sinus rhythm with evidence of early polarization and nonspecific T-wave changes. (R. 154.) A chest X-ray revealed no acute infiltrates and an x-ray of the right knee showed the joint to be grossly intact with a possibility of a small suprapatellar effusion. (R. 155.) Dr. Sankoh's diagnoses were "arthritis probably secondary to degenerative joint disease" and hypertension. (R. 154.) In Dr. Sankoh's opinion, Duvergel's ability to sit or stand was not limited but Duvergel was mildly limited with respect to long distance walking, climbing, lifting, pulling, pushing and carrying. (R. 154.)
A crepitation is the "grating sound elicited by friction of the ends of a broken bone or the motion of arthritic joints." Attorney's Illustrated Medical Dictionary at p. C 85 (West 1997).
On January 5, 1995, Duvergel returned to Jacobi Hospital. (R. 249.) His symptoms of duodenitis persisted, "maybe due to alcohol." (R. 250.) An endoscopy performed on January 26, 1995 revealed a normal esophagus and duodenum but that Duvergel had probable gastritis in the stomach and a "healing, linear gastric ulcer." (R. 240.) He was continued on Tagamet. (R. 240.)
On February 1, 1995, Duvergel reported that he was feeling better and that he had no pain at that time. (R. 234.) He was continued on Tagamet, Procardia and Mylanta. (R. 235.) Duvergel's next recorded visit to Jacoby Hospital was ten months later, on November 13, 1995, when he complained that for several weeks he had pain in his lower back and "waist area" which radiated down his leg. (R. 231.) Examination revealed a normal range of movement with no point tenderness; however, there was diffuse paraspinal muscle spasm and mild pain on straight leg raising on the right. (R. 232.) The physician concluded that the back pain was "prob[ably] muscular" and prescribed back strengthening exercises, Tylenol and application of moist heat. (R. 232.)
When Duvergel returned for a refill of Tylenol on January 30, 1996, he reported that he was "feeling well." (R. 230.) He also reported that he was not using any blood pressure medications at that time. (R. 230.)
On his next visit to Jacobi Hospital on February 23, 1996, Duvergel had no epigastric pain or dyspepsia (indigestion). (R. 227.) He reported occasional pain in the elbows, knees and ankles but denied any chest pain or shortness of breath. (Id.) Duvergel also reported that he had stopped taking Procardia. (Id.) The doctor noted that Duvergel experienced pain on forced supination of the left elbow. (R. 227.) The doctor believed that Duvergel's joint pain was due to either degenerative joint disease or musculoskeletal pain. (R. 228.) Duvergel had no gastrointestinal symptoms at that time. (R. 228.) The doctor prescribed Procardia and Tylenol. (Id.)
Supination in this context is "turning . . . the hand to a palm forward position." AMA Encyclopedia at p. 956.
On May 8, 1996, Duvergel complained that he had been suffering from dyspepsia for a few weeks and complained of pain in the left forearm and elbow. (R. 223.) The doctor noted that Duvergel had a full range of motion of the left forearm and elbow with no tenderness or swelling and that his blood pressure was 140/84. (Id.) Duvergel was advised to continue on Procardia, Tylenol and Tagamet. (Id.) When he returned to refill his medications on August 26, 1996, Duvergel was "feeling well" and had no complaints. (R. 222.).
An undated record (which appears to be from his next visit because of its position in the administrative record), indicates that Duvergel had no complaints, that his blood pressure was "well-controlled" at 130/80 and that he had no gastrointestinal disturbances. (R. 220-21.)
On the most recent recorded visit in the records, on January 21, 1997, Duvergel reported that he was "doing well," with his only complaint being occasional pain in the left hip, apparently related to cold weather. (R. 217.) Duvergel continued to smoke heavily and to drink alcohol occasionally. (R. 217.) Duvergel's hypertension was well-controlled. (R. 218.) Duvergel reported occasional heartburn at night and was advised not to eat close to bedtime. (Id.)
The record also contains two "Disability Determination and Transmittal" forms completed by doctors affiliated with the Social Security Administration. (R. 85-93, 104-12.) The first, dated November 30, 1994, diagnosed Duvergel with arthritis and hypertension. (R. 86.) The doctor found that Duvergel could frequently lift twenty-five pounds and occasionally lift fifty pounds, stand for six hours in an eight-hour workday and sit for six hours in an eight-hour workday. (R. 87.) The doctor concluded that Duvergel had the residual functional capacity for medium work. (R. 92.) The second SSA Disability Determination report is dated May 10, 1995. (R. 104-12.) Dr. Levitt diagnosed Duvergel as having hypertension and arthritis. (R. 105.) He reached the same conclusion as to Duvergel's ability to lift, sit and stand. (R. 106.)
The ALJ's Decision
ALJ Robin J. Arzt denied Duvergel's applications for SSI and disability benefits in a written decision dated June 25, 1997. (R. 8-19.) The ALJ found that Duvergel had not engaged in substantial gainful activity since April 4, 1993. (R. 12, 15.) She found that Duvergel had "(1) hypertension, (2) duodenitis and (3) alcoholism, in partial remission" but that none of these impairments was severe "either singly or in combination." (R. 15.) She further found that Duvergel's "subjective complaints of a lung disorder, and ulcer, and arthritis of the knees, ankles and arms are not medically determinable impairments" and that "statements of disabling, or even significant, symptoms and limitations are not supported by the objective medical findings." (Id.)
As to Duvergel's joint pain, the ALJ stated that Duvergel had a history of joint pain and had been diagnosed as having degenerative joint disease, but that there was no documentation in the record of a medically determinable musculoskeletal impairment. (R. 12.) She noted that "[m]edical records covering the period from November, 1995, to January, 1997, from Jacobi Hospital establish that [Duvergel]'s complaints are of episodic or occasional pain in different joints and that [he] has reported that he was feeling well." (Id.) The ALJ found that Duvergel "had tenderness of the knee joints with crepitation[, h]owever, the examination also revealed that he had full range of motion of the knees and that he had normal muscle strength of the lower extremities. . . . Subsequently, in January, 1997, [Duvergel] stated that he did not have any complaints except for occasional left hip pain." (Id.)
As to Duvergel's alleged shortness of breath, the ALJ concluded that "there is no documentation in the record of a medically determinable respiratory impairment," noting that "numerous examinations of the claimant between August, 1994 and January, 1997, have revealed that he had clear lungs." (R. 13.)
Regarding Duvergel's hypertension, the ALJ stated that "examinations . . . have revealed mildly to moderately elevated blood pressure levels . . . [but] there is no evidence of any end organ damage secondary to hypertension or of typical symptoms of hypertension including headaches or dizziness." (Id.) The ALJ noted that Duvergel's "treating physician . . . concluded in August, 1994, that despite [Duvergel]'s mild to moderate hypertension, [Duvergel] was able to work without limitations"; that "[r]ecent medical records reveal that [Duvergel]'s hypertension is well controlled with medication"; and that "[a]t the hearing, [Duvergel] testified that his hypertension is controlled with medication and that he is not experiencing any symptoms secondary to his hypertension." (Id.)
As to Duvergel's gastrointestinal complaints, the ALJ stated that "[t]he record establishes that [Duvergel]'s complaints regarding duodenitis are sporadic . . . and that [Duvergel]'s duodenitis is being exacerbated by his alcohol consumption." (R. 13-14.) She further stated that there was "no documentation of an ulcer in the record," noting that "[a]n upper gastrointestinal series performed in July, 1994, revealed that [Duvergel] had duodenitis without any distinct ulceration." (R. 14.)
Finally, the ALJ stated that Duvergel had "a history of alcohol abuse since age 16," but that his alcoholism was "in partial remission, and there is no evidence of a severe impairment especially in view of [Duvergel]'s fairly steady employment during the period of time that he testified he was drinking a pint of Bacardi daily." (R. 14.) The ALJ noted that Duvergel informed the consulting physician in November 1994 that he had stopped drinking; that at his hearing, Duvergel "testified that he continues to drink, but he has decreased his alcohol consumption and drinks only in small amounts"; and that "[m]edical records . . . indicate that, as of January 21, 1997, the claimant engaged in alcohol consumption on an occasional basis." (Id.)
The ALJ concluded that Duvergel's "impairments, singly or in combination, do not have more than a minimal effect on his ability to perform basic work activities," and Duvergel "does not have a severe impairment." (R. 14; see also R. 15.)
ANALYSIS
I. THE APPLICABLE LAW
A. The Definition of Disability
A person is considered disabled for Social Security benefits purposes when she 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 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Jones v. Apfel, 66 F. Supp.2d 518, 535 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.). The combined effect of all impairments must be of such severity that the person
See also, e.g., Craven; v. Apfel, 58 F. Supp.2d 172, 180 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 422 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Burris v. Chater, 94 Civ. 8049, 1996 WL 148345 at *2 (S.D.N.Y. April 2, 1996); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at *4 (S.D.N Y June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995); Francese v. Shalala, 897 F. Supp. 766, 769 (S.D.N.Y. 1995) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995).
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. § 423(d)(2)(A); see, e.g., Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79; Jones v. Apfel, 66 F. Supp.2d at 535.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 180-81; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 422-23; Burris v. Chater, 1996 WL 148345 at *2; DeJesus v. Shalala, 1995 WL 812857 at *4; Walzer v. Chater, 1995 WL 791963 at *6.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Jones v. Apfel, 66 F. Supp.2d at 536.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 181; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6; DeJesus v. Shalala, 1995 WL 812857 at *4.
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Rosa v. Callahan, 168 F.3d at 77; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d at 1038; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Jones v. Apfel, 66 F. Supp.2d at 536. "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345 at *3; accord, e.g., Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N Y Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 1998 WL 255411 at*6; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *2; Walzer v. Chater, 1995 WL 791963 at *6; Francese v. Shalala, 897 F. Supp. at 770; Coleman v. Shalala, 895 F. Supp. at 54; 42 U.S.C. § 405(g).
See also, e.g., Fernandez v. Apfel, 1998 WL 603151 at *7; Vega v. Commissioner, 1998 WL 255411 at*6; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999); Perez v. Chater, 77 F.3d at 46; Jones v. Apfel, 66 F. Supp.2d at 536.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at *8; Vega v. Commissioner, 1998 WL 255411 at *6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
However, the Court will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Fernandez v. Apfel, 1998 WL 603151 at *8; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Vega v. Commissioner, 1998 WL 255411 at *6; Burris v. Chater, 1996 WL 148345 at *3; Francese v. Shalala, 897 F. Supp. at 770.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:
[1] First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. [3] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. [4] Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, e.g., Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); Jones v. Apfel, 66 F. Supp.2d at 536-37.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 181-82; Vega v. Commissioner, 1998 WL 255411 at *7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *2; Walzer v. Chater, 1995 WL 791963 at *6; DeJesus v. Shalala, 1995 WL 812857 at *4; Francese v. Shalala, 897 F. Supp. at 769; Coleman v. Shalala, 895 F. Supp. at 53-54.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467; Jones v. Apfel, 66 F. Supp.2d at 537.
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at *7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *3; Walzer v. Chater, 1995 WL 791963 at *7; DeJesus v. Shalala, 1995 WL 812857 at *5; Francese v. Shalala, 897 F. Supp. at 770.
Where a claimant has multiple impairments, as the Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995); see also, e.g., DeLeon v. Secretary of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984); Miles v. Apfel, 51 F. Supp.2d 266, 269 (E.D.N.Y. 1999); Nivar v. Apfel, 98 Civ. 3930, 1999 WL 163397 at (*4-5 n. 8 (S.D.N.Y. March 23, 1999); Vitale v. Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999); Irvin v. Heckler, 592 F. Supp. 531, 540 (S.D.N.Y. 1984).
B. The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2); see, e.g., Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); Jones v. Apfel, 66 F. Supp. 2d 518, 537 (S.D.N Y 1999) (Pauley, D.J. Peck, M.J.). Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see also, e.g., Schaal v. Apfel, 134 F.3d at 503; Jones v. Apfel, 66 F. Supp.2d at 537. The Commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
See also, e.g., Craven v. Apfel, 58 F. Supp.2d 172, 182 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *7-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Sanchez v. Chater, 964 F. Supp. 133, 138 (S.D.N.Y. 1997); Toro v. Chater, 937 F. Supp. 1083, 1091 (S.D.N.Y. 1996); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
See also, e.g., Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at *8; Walzer v. Chater, 1995 WL 791963 at *7; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 182.
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at *8; Sanchez v. Chater, 964 F. Supp. at 138; Walzer v. Chater, 1995 WL 791963 at *7.
II. APPLICATION OF THE FIVE-STEP SEQUENCE TO DUVERGEL'S CLAIM
A. Duvergel Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Duvergel was engaged in substantial gainful activity after April 4, 1993. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510 (1993); see, e.g., Craven v. Apfel, 58 F. Supp.2d 172, 183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.). The ALJ's conclusion that Duvergel was not engaged in substantial gainful activity during the applicable time period is not disputed.
See also, e.g., Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
B. The Commissioner's Decision That Duvergel Did Not Have A Severe Physical Impairment or Combination of Impairments That Significantly Limited His Ability To Do Basic Work Activities Is Supported by Substantial Evidence
The next step of the analysis is to determine whether Duvergel had a severe physical impairment or combination of impairments that "significantly limit[ed] his physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out and remembering simple instruction . . . [u]se of judgment . . . [r]esponding appropriately to supervision, co-workers and usual work situations.20 C.F.R. § 404.1521(b)(1)-(5); see, e.g., Craven v. Apfel, 58 F. Supp.2d 172, 183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); accord, e.g., Craven v. Apfel, 58 F. Supp.2d at 183, Vega v. Commissioner, 1998 WL 255411 at *9; Pickering v. Chater, 951 F. Supp. at 424.; see also, e.g., Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. March 19, 1999) ("A finding of `not severe' should be made only if the medical evidence establishes only a `slight abnormality' which would have `no more than a minimal effect on an individual's ability to work.'") (quoting Social Security Ruling 85-28, 1985 WL 56856 at *3 (SSA 1985), quoted in Bowen v. Yuckert, 482 U.S. 137, 154, 107 S.Ct. 2287, 2298 n. 12, (1987)).
See also, e.g., Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *9 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, 1999 WL 294727 at *5 (citing 20 C.F.R. § 404.1520(c)). On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030; Craven; v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at *9; Pickering v. Chater, 951 F. Supp. at 424.
The ALJ here found that Duvergel had "(1) hypertension, (2) duodenitis and (3) alcoholism, in partial remission" but that none of these impairments, "either singly or in combination," was severe. (R. 15.) She also found that Duvergel's "subjective complaints of a lung disorder, an ulcer, and arthritis" were not medically determinable impairments. (Id.) Based on her finding that none of Duvergel's impairments, standing alone or considered together, significantly limited his basic work-related functions, the ALJ determined that Duvergel was not disabled. (Id.)
In this action, Duvergel's challenge to the ALJ's decision is limited to the issue of Duvergel's arthritis and ulcer. (Duvergel Br. at 3-4.)
1. Arthritis
Duvergel argues that the case should be remanded because the ALJ's determination that Duvergel's arthritis was not medically determinable was not supported by substantial evidence and constituted reversible error. (Duvergel Br. at 3-4.) This argument is without merit. While a consulting physician who examined Duvergel in November 1994 included arthritis as one of his diagnoses based, in part, on objective medical evidence (i.e., the presence of "coarse crepitation") (R. 153-54), there is substantial evidence in the record to support the ALJ's finding that Duvergel was not disabled by joint pain or stiffness.
It should be noted that the ALJ's opinion considered the consultative physician's report of tenderness of the knee with crepitation. (R. 12.) It is worth quoting that portion of the ALJ's opinion dealing with arthritis:
The claimant informed a consulting physician in November 1994, that he was experiencing bilateral knee stiffness. He underwent an examination which revealed that he had tenderness of the knee joints with crepitation. However, the examination also revealed that he had full range of motion of the knees and that he had normal muscle strength of the lower extremities without any muscle wasting. An x-ray of his right knee was negative. The consultant concluded that the claimant had a mild limitation in his ability to walking [sic] long distances, lift, carry, push, and pull. Subsequently, in January 1997, the claimant stated that he did not have any complaints except for occasional left hip pain.
Medical records covering the period from November 1995 to January 1997 from Jacobi Hospital establish that the claimant's complaints are of episodic or occasional pain in different joints and that the claimant has reported that he was feeling well. On January 30, 1996, the claimant reported that he was feeling well. On February 23, 1996, the claimant reported that he was experiencing occasional pain in the elbows, knees and ankles and underwent an examination which revealed that he had pain on forced supination of the elbows without any tenderness or effusion and that he had a full range of motion of the ankles and knees without any effusion. On August 26, 1996, the claimant reported that he was feeling well and did not have any complaints. On January 21, 1997, the claimant did not have any complaints except for occasional left hip pain.
(R. 12-13, ALJ's record cites omitted.)
Thus, as the ALJ noted in her decision, the record shows that Duvergel's complaints of joint pain "were of episodic or occasional pain in different joints and that [he] has reported that he was feeling well." (R. 12.)
(See, e.g., R. 227 (2/23/96: occasional pain in elbows, knees and ankles); R. 217 (1/21/97: occasional pain in hip probably related to cold weather); see also, e.g., R. 234 (2/1/95: feels better. "No pain at present"); R. 230 (1/30/96: "feeling well"); R. 222 (8/26/96: "feeling well," no complaints).)
The same consulting physician who diagnosed arthritis concluded that Duvergel's ability to sit or stand was not limited and that Duvergel was only mildly limited with respect to long-distance walking, climbing, lifting, pulling, pushing and carrying. (R. 154.) Two SSA doctors who completed "disability determinations on Duvergel found that he could stand for six hours and sit for six hours of an eight-hour workday, concluded that Duvergel could do medium work. (R. 87, 92, 106.) Moreover, Duvergel's own physician at Ponce DeLeon Hospital reported on August 12, 1994 that Duvergel was able to "work without any limitations." (R. 276.) Indeed, no physician found that Duvergel was disabled due to arthritis (or any other condition, for that matter) — and the ALJ was entitled to rely on that absence of evidence of disability. See, e.g., Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the [medical] record says, but also on what it does not say"); accord, e.g., Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Cruz v. Chater, 937 F. Supp. 194, 197 (E.D.N Y 1996).
Duvergel refers to Dr. Sankoh's findings of mild limitations in support of his argument for a remand. (Duvergel Br. at 3.) Findings of mild limitation, however, generally weigh in favor of the Commissioner, not the claimant. See, e.g., Hajaistron v. Apfel, No. 97-CV-6144, 1998 WL 813410 at *3 (E.D.N.Y. July 22, 1998) (consulting physician's findings of "a mild partial limitation of work-related activity involving standing, sitting, running, climbing and heavy lifting" supported ALJ's determination of no disability); Minix v. Chater, 95 Civ. 8410, 1996 WL 435164 at *5 (S.D.N.Y. Aug. 1, 1996) (mild limitations on sitting, standing and walking and moderate limitations on lifting, carrying, pushing and pulling, but Court upholds ALJ's finding that plaintiff could perform prior work); Cruz v. Chater, 937 F. Supp. at 197 (back problems caused mild limitations on walking, climbing, carrying, pushing and pulling and no limitations on sitting but ALJ finding that plaintiff could perform past work upheld). Indeed, it would seem that a "mild" limitation as to a basic work activity is necessarily not "significant." Cf., e.g., N Y PJI 2:88:E (pattern jury instruction providing, in context of New York no fault automobile insurance law, that "[a] minor, mild or slight limitation of use [of a body function or system] is not significant.").
2. Ulcer
Duvergel also argues that the case should be remanded because the ALJ's conclusion that Duvergel's ulcer was not medically determinable was not supported by substantial evidence. (Duvergel Br. at 4.) The endoscopy report dated January 26, 1995 which notes the presence of a "healing, linear gastric ulcer" (R. 240) would appear to refute the ALJ's determination that "there is no documentation of an ulcer in the record" (R. 14), but there is no indication in either the medical records or Duvergel's testimony that Duvergel's gastrointestinal problems were severe or disabling. As noted above, there is no evidence that any doctor concluded that Duvergel was disabled due to any condition. While the ALJ found no medical evidence of an ulcer, she did fully consider Duvergel's related diagnosis of duodenitis and gastrointestinal complaints generally. (R. 13-14.) The evidence shows that Duvergel's gastrointestinal complaints were, as the ALJ described them, "sporadic." (R. 13.) Also, as the ALJ noted in her decision, there is evidence that Duvergel's gastrointestinal problems may have been exacerbated by his alcohol consumption. (R. 13-14, 250.) See, e.g. Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) ("Of course, a remediable impairment is not disabling."); Rodriguez v. Chater, 1996 WL 34358 at *4 (S.D.N.Y. Jan. 30, 1996) (quoting Dumas). Accordingly, because there is no evidence that Duvergel's gastrointestinal problems were disabling, any oversight on the ALJ's part was harmless error not warranting a remand. See, e.g., Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1996) (harmless error rule applies to review of denial of disability benefits); Allison v. Chater, No. 96 C 3007, 1997 WL 211216 at *12 (N.D.Ill. April 21, 1997) ("Since it has been determined . . that [plaintiff] can still perform work activities, the ALJ's misunderstanding of the evidence resulted in harmless error which does not warrant reversal."); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *9 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.) (ALJ's failure to discuss a treating physician's report was harmless error where consideration of report would not have changed outcome); Hughes v. Chater, 895 F. Supp. 985, 995 (N.D.Ill. 1995) ("If it is plain that the overlooked evidence could not have altered the result, the factfinder's error in failing to consider it would of course be harmless, and a remand would be pointless.").
(See, e.g., R. 227 (2/23/96: "no epigastric pain or dyspepsia"); R. 221 (undated: "no GI [gastrointestinal] disturbances"); R. 216 (1/21/97: heartburn at night at times); see also, e.g., R. 222, 230, 234.)
It would perhaps have been better, or at least easier for the reviewing court, if the ALJ had completed the five-step analysis. A remand, however, would not change the result. Duvergel's counsel concedes that "[b]ased on his age of 59 at the hearing and unskilled work experience, Mr. Duvergel is considered disabled by the grids if he cannot perform the full range of `light work.'" (Duvergel Br. at 4 n. 2.) The record reflects that one of Duvergel's treating physicians concluded that, on August 12, 1994, Duvergel was able to "work without any limitations." (R. 276.) The consulting physician found that Duvergel could sit and stand without any limit (R. 154), and the November 30, 1994 SSA doctor's "Disability Determination" found that Duvergel had the residual functional capacity for medium work. (R. 92.) Thus, the ALJ's finding of no disability also is supported when considered further in the five-step analysis.
CONCLUSION
For the reasons set forth above, the Commissioner's determination that Duvergel was not disabled within the meaning of the Social Security Act is supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings is granted and Duvergel's cross-motion for a remand is denied.SO ORDERED.