Opinion
01-CV-0398-E
September 10, 2003
DAVID NELSON, ESQ., DADD NELSON, Attica, NY, for Plaintiff
MICHAEL A. BATTLE, ESQ., for Defendant
MONICA J. RICHARDS, ESQ., Buffalo, New York, for Defendant
REPORT AND RECOMMENDATION
I. JURISDICTION
This matter was referred to the undersigned on April 15, 2003, by the Honorable John T. Elfvin, United States District Judge, for Report and Recommendation of all proceedings necessary to a determination of the merits of the factual and legal issues presented herein. It is currently before the Court on Defendant's motion for judgment on the pleadings filed January 17, 2002 (Docket No. 10) and Plaintiffs cross-motion for summary judgment filed February 13, 2002 (Docket No. 12).
II. BACKGROUND
Plaintiff, Marjorie R. Flansburg, was sixty-two years old when she initially applied for disability benefits on April 15, 1999. (R. at 71-74). She has a high school education. (R. at 25). Plaintiff has relevant past work experience as a bank teller and bank customer service representative. (R. at 12).
Citations to the underlying administrative record will be designated as "R."
"Past relevant work" is work that has been performed in the last fifteen years or fifteen years prior to the date of disability. Additionally, the work must have lasted long enough for the claimant to learn to do the job and meet the definition of substantial gainful activity. 20 C.F.R. § 404.1565.
Plaintiff alleges that she has been disabled since August 2, 1998, due to a fractured left wrist, right elbow, nose and top dentures, left shoulder injury, and carpal tunnel syndrome. (R. at 85-94, 206). Her application was denied initially (R. at 45, 47-49), and upon reconsideration (R. at 46, 53-54). On November 16, 1999, Plaintiff requested an administrative hearing. (R. at 55). The request was granted and a hearing was held on August 14, 2000, before Administrative Law Judge ("ALJ") Margaret J. Quinn. (R. at 20-44). On August 23, 2000, the ALJ issued a decision finding that Plaintiff was not under a disability as defined in Title II of the Social Security Act ("the Act"),
42 U.S.C. § 401-432. (R. at 10-20). Plaintiff requested review by the Social Security Administration Appeals Council ("Appeals Council") on October 13, 2000. (R. at 6). On May 17, 2001, the Appeals Council determined that the record provided no basis for granting review, concluding that the ALJ's decision was the Commissioner's final decision on Plaintiff's claim. (R. at 4-5).
Larry G. Massanari was the Acting Commissioner of Social Security when Plaintiff filed her complaint in this action. JoAnne B. Barnhart became the Commissioner of Social Security on November 9, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, JoAnne B. Barnhart is now substituted as the defendant in this suit.
Thereafter, on June 5, 2001, Plaintiff filed this action seeking review of the administrative decision. On January 17, 2002, Defendant moved for judgment on the pleadings. (Docket No. 10). Plaintiff cross-moved for summary judgment on February 13, 2002. (Docket No. 12). Although the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, heard oral argument on February 25, 2002, and reserved decision at that time, the undersigned has reviewed a transcript of that argument and considered the argument in reaching this decision.
III. DISCUSSION A. Legal Standard
A Court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383(c)(3); Wagner v. Sec. of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983);Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
Substantial evidence is evidence that amounts to "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The term substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiffs position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and will not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled. This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have 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. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step.See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education and work experience. Second, he must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983).
B. Analysis
In this case, the ALJ found that (1) Plaintiff had not engaged in substantial gainful work activity since her alleged onset date (R. at 13, 17); (2) Plaintiff has an impairment or a combination of impairments considered "severe" (R. at 14, 17); (3) Plaintiff's impariments did not meet or equal in severity the medical criteria in Appendix 1 of the regulations (R. at 14, 17); (4) Plaintiff has the residual functional capacity to perform the requirements of work, except for carrying more than ten pounds frequently and twenty pounds occasionally (R. at 14-17) and; (5) Plaintiff is able to perform the full range of light work, including her past relevant work as a bank teller and service representative (R. at 16, 17).
"Residual Functional Capacity:" 20 C.F.R. § 404.1545(a) provides that "your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your residual functional capacity is what you can still do despite your limitations."
"Light work" is defined as "work [that] involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Plaintiff asserts that the ALJ erred in four respects: (1) substantial evidence does not support a finding that Plaintiff is able to perform a full range of light work, (2) Plaintiff's past relevant work did not qualify as light work, (3) the ALJ failed to give sufficient weight to the opinion of Plaintiff's treating physician, and (4) the ALJ failed to make credibility findings with respect to Plaintiff's testimony and therefore Plaintiff's testimony should be taken as true. The Court will address each of these arguments in turn.
1. Full Range of Light Work
Plaintiff argues that the ALJ's decision that she possesses the residual functional capacity to perform the full range of light work is not supported by substantial evidence. For the following reasons, this Court finds Plaintiff's argument unpersuasive.
Plaintiff specifically points to the opinion of her treating physician, Dr. Weisman, who stated that plaintiff was totally disabled. (R. at 137). Further, she asserts that her medications cause her to be dizzy and lightheaded and that she suffers from aching arms. Lastly, plaintiff contends that the ALJ failed to evaluate the limitations caused by her anxiety and depression.
This Court finds that the ALJ's decision reflects a complete and thorough examination of the medical evidence of record. The ALJ specifically discussed the medical evidence from Drs. Maloney, Weisman, Pincus, Mitten, Logigian, Wopperer, Borg and Phillips, and considered this evidence, along with the other medical evidence and Plaintiff's testimony in the record, in reaching the determination that Plaintiff possessed the residual functional capacity for performing the full range of light or sedentary work. (R. at 13-16). As discussed more fully below, Dr. Weisman's opinion was contradicted by the medical evidence.
"Sedentary Work" is defined as "lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools . . . [j]obs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
Plaintiff fails to cite to any medical report that establishes her complaint that her medications cause her to be dizzy and lightheaded and that she has aching arms. Further, she fails to cite to any medical report stating these allegations would prevent her from performing light work. (Plaintiff's Memorandum of Law, at p. 5).
As for Plaintiff's complaint of anxiety and depression, subjective complaints are not alone enough to support a finding of disability. They must be accorded weight only when they are accompanied by "medical signs and laboratory findings which show that a medical impairment(s) could reasonably be expected to produce the pain." 20 C.F.R. § 404.1529(a); see Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999). Plaintiff cites no medical evidence in the record documenting the existence of a medical impairment that would cause her anxiety and depression. Having considered all of the medical evidence, as well as Plaintiffs testimony and subjective complaints, the ALJ's decision that Plaintiff is capable of performing the full range of light work is supported by substantial evidence. (R. at 13-17).
2. Past Relevant Work
Plaintiff next contends that the ALJ erred in finding that she could perform her past relevant work. Plaintiff argues that her past relevant work as a bank teller and customer service representative should not be classified as light work. She contends that as a bank teller she was required to lift fifty pound bags of coins and that she often handled bags of money weighing twenty to thirty pounds. (R. at 26, 29-30). Plaintiff fails to offer any specific argument as to why her job as a customer service representative does not fall within the range of light work. She simply states that there was insufficient evidence for the ALJ to conclude that it did. This Court finds Plaintiffs arguments unpersuasive.
The United States Department of Labor, Dictionary of Occupational Titles, §§ 211.362-018 and 205.362-026 (4th ed. 1991), defines the positions of bank teller or head bank teller and customer service representative as light work. The fact that Plaintiff may not be able to perform certain tasks associated with her previous employment as a bank teller or service representative does not render her unable to work as a bank teller or service representative as defined in the national economy. Accordingly, the ALJ's finding that Plaintiff is capable of performing her past relevant work is supported by substantial evidence.
20 C.F.R. § 404.1566 (d) provides:
Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy . . . we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take Notice of —
(1) Dictionary of Occupational Titles, published by the Department of Labor
3. Weight Given to Treating Physician's Opinion
Plaintiff next argues that the ALJ failed to give sufficient weight to the opinion of her treating physician, Dr. Weisman. In a letter dated April 15, 1999, Dr. Weisman stated "I believe that [Plaintiff] remains totally disabled from all types of work available to her." (R. at 137). Plaintiff asserts that this opinion was supported by "medically acceptable clinical and laboratory diagnostic techniques and by documentation of signs and symptoms as required by regulation" and therefore should have been given controlling weight. (Plaintiff's Memorandum of Law, at p. 8). Alternatively, Plaintiff asserts that Dr. Weisman's opinion should have been given some weight.
Generally, the ALJ grants the opinion of a treating physician controlling weight when the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d). Here, the ALJ found that Dr. Weisman's opinion was contradicted by the medical evidence. The ALJ considered Dr. Weisman's opinion along with the opinions of the other physicians, such as Dr. Maloney, who examined or reviewed Plaintiffs records and found no support in the record for Dr. Weisman's opinion that she was totally disabled. Moreover, conclusory statements by a physician of disability and ability to work are administrative findings left to the ALJ or Commissioner. 20 C.F.R. § 404.1527(e)(1). Accordingly, the ALJ was not required to give Dr. Weisman's opinion controlling weight. 20 C.F.R. § 404.1527(d)(2).
When a treating physician's opinion is not given controlling weight, the ALJ considers the length of the treating relationship, the nature and extent of that relationship, supporting evidence, and other relevant factors. 20 C.F.R. § 404.1527(d)(2)(3)(6). The ALJ examined the medical evidence and reports in the record and found that they contradicted Dr. Weisman's opinion. (R. at 15-16). Specifically, the ALJ noted in her decision that Plaintiff's physical therapy records showed that she had "improved with minimal restriction of her right arm and almost normal range of motion in her left wrist despite her inconsistent attendance to physical therapy." (R. at 15-16). Also, Plaintiff's treating orthopedic surgeon, Dr. Maloney, reported markedly improved pain and increased range of motion. (R. at 186-189). Therefore, the ALJ's decision to give "little weight" to the opinion of Dr. Weisman is consistent with substantial evidence in the record.
It should be noted that Plaintiff suggests that the ALJ erred by failing to discuss the length of the treating relationship between Dr. Weisman and Plaintiff and the nature and extent of that relationship. While it is true that the ALJ did not specifically discuss the length of Plaintiff's treating relationship with Dr. Weisman, such error is harmless. Dr. Weisman's opinion was contradicted by the medical evidence. Therefore, regardless of the length of the treating relationship between Dr. Weisman and Plaintiff, his opinion deserved little weight.
4. Credibility Findings
Lastly, Plaintiff asserts that the ALJ failed to make credibility findings of the Plaintiff's testimony and therefore her testimony should be taken as true. Plaintiff argues that the ALJ stated that Plaintiff's testimony was inconsistent, but that the ALJ made no attempt to show or explain the inconsistency.
This Court finds no merit to this argument. The ALJ conducted a thorough analysis of Plaintiff's testimony and identified several inconsistencies therein. (R. at 15-16). For example, the ALJ stated "[t]he claimant testified that she can carry up to 10 pounds and that she can drive, clean, wash dishes, shop and do the laundry which is inconsistent with her allegation that she does not have the strength to turn a page." (R. at 15). This was one of the several examples given by the ALJ of Plaintiff's inconsistencies.
V. CONCLUSION
Accordingly, for the foregoing reasons, this Court finds that the ALJ's decision was supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam) (an ALJ's decision should be upheld so long as the court can fathom the ALJ's rationale to the evidence in the record).
Based on the foregoing, it is hereby recommended that Defendant's motion for judgment on the pleadings (Docket No. 10), should be GRANTED and the Commissioner's decision denying Plaintiff's social security benefits should be affirmed. Consequently, the Plaintiff's cross-motion for summary judgment (Docket No. 12) should be DENIED.