Opinion
00-CV-981 (GLS).
July 1, 2004
THOMAS C. ERWIN, ESQ., Erwin, McCane Daly, Albany, NY, for the Plaintiff.
WILLIAM H. PEASE, ESQ., Assistant U.S. Attorney, HON. GLENN T. SUDDABY, United States Attorney, Syracuse, NY, for the Defendant.
DECISION AND ORDER
I. Introduction
Paul Gahan challenges the denial of disability benefits by the Commissioner of Social Security, alleging disability due to chronic disabling back pain and ankylosing spondylitis. Having reviewed the administrative record, this court affirms the Commissioner's decision because it was based on substantial evidence.
Ankylosing spondylitis is a form of rheumatoid arthritis that affects the spine. It is a systemic illness of unknown etiology, affecting young males predominantly, and producing pain and stiffness as a result of inflammation of the sacroiliac, intervertebral, and costovertebral joints; paraspinal calcification, with ossification and ankylosis of the spinal joints, may cause complete rigidity of the spine and thorax. See Dorland's Illustrated Medical Dictionary, 1563 (28th ed. 1994).
II. Procedural History
On March 10, 1997, Gahan filed an application for Social Security disability benefits which was subsequently denied. He appealed, and on July 9, 1998, a hearing was held before Administrative Law Judge (ALJ) J. Lawson Brown. The ALJ's denial of benefits became the final decision of the Commissioner when the Appeals Council denied his request for review on May 12, 2000.
Gahan also filed a prior application for benefits on May 19, 1995 alleging disability since March 1994 due to back pain. The claim was denied by a hearing decision on April 4, 1996 and a request for review was also denied on February 27, 1997.
On June 22, 2000, Gahan brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner answered and filed an administrative transcript, Gahan then filed his brief and the Commissioner responded.
III. Contentions
Gahan asserts that the Commissioner's decision is not supported by substantial evidence, and erroneous as a matter of law. He maintains that the ALJ did not give "proper weight" to his subjective complaints of pain. Specifically, Gahan disputes the ALJ's finding that his complaints of subjective pain and disabling symptoms were overstated and not credible.
The Commissioner maintains that the ALJ's decision was based on substantial evidence and should be affirmed. The Commissioner contends that the ALJ properly evaluated Gahan's subjective complaints of pain.
IV. Facts
The evidence in this case is not in dispute and the court incorporates the parties' factual recitations. See Pl.'s Br., pp. 3-12, Dkt. No. 6; Def.'s Br., pp. 2-8, Dkt. No. 8.
V. Discussion
A. Standard and Scope of ReviewWhen reviewing the Commissioner's final decision, the court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible for determining a claimant's eligibility, the actual disability determination is made by an ALJ, and that decision is subject to judicial review on appeal. A court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's decision is limited to the determination of whether substantial evidence in the record supports the decision. 42 U.S.C. § 405(g); see Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). "To determine on appeal whether an 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, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The court has authority to reverse with or without remand. 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit claimant to produce further evidence). The Second Circuit has held that in order to "ensure that the correct legal principles are applied in evaluating disability claims, . . . th[e] circuit recognizes the appropriateness of remanding cases because of the lack of specificity of an ALJ's decision." Knapp v. Apfel, 11 F. Supp. 2d 235, 238 (N.D.N.Y. 1998). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years and remand would likely result in further lengthening the "painfully slow process" of determining disability).
B. Five-Step Disability Determination
In the Social Security Disability Insurance and Supplemental Security Income context, the definition of "disabled" is the same. A plaintiff seeking SSDI or SSI is disabled if he can establish that he 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 twelve months. . . ." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (emphasis added). The Commissioner uses a five-step process to evaluate SSDI and SSI claims. See 20 C.F.R. §§ 404.1520, 416.920.
In addition, a claimant's
physical or mental impairment or impairments [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, 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), 1382c(a)(3)(B).
Therefore, a plaintiff must not only carry a medically determinable impairment but an impairment so severe as to prevent him from engaging in any kind of substantial gainful work which exists in the national economy.
The court notes that revised versions of these sections came into effect in September 2003. See 68 Fed. Reg. 51161, 51164 (Aug. 26, 2003). In the revised versions, paragraph (e) clarifies the application of the RFC determination. New paragraphs (f) and (g), with certain modifications, correspond to the prior versions' paragraphs (e) and (f), respectively. These revisions do not affect the Five-Step Disability Determination sequence. The revised versions have no effect on the outcome of this case. For considerations of uniformity, and because the ALJ's decision came under the old versions, the court retains the old nomenclature in its analysis.
Step One requires the ALJ to determine whether the claimant is presently engaging in substantial gainful activity (SGA). 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, he is not considered disabled. However, if he is not engaged in SGA, Step Two requires that the ALJ determine whether the claimant has a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires that the ALJ determine whether the claimant's impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P., Appendix 1, §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if the impairment meets or equals a listed impairment. See Ferraris, 728 F.2d at 584. If the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's RFC precludes the performance of his past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
The claimant has the burden of showing that he cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once he has met that burden, the ALJ can deny benefits only by showing, with specific reference to medical evidence, that he can perform some less demanding work. See White v. Sec'y of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing, the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills, to determine if he can perform other work existing in the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
In this case, the ALJ found that Gahan satisfied Step One because he had not engaged in substantial gainful activity since May 30, 1998. (Tr. 31). In Step Two, the ALJ determined that Gahan's combination of impairments of back pain and ankylosing spondylitis were severe. (Tr. 29). In Step Three, the ALJ determined that Gahan's impairments failed to meet or equal a combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P., Regulation No. 4. (Tr. 29). In Step Four, the ALJ determined that Gahan retained the RFC to perform light work. (Tr. 31). In Step Five, the ALJ found that Gahan possessed the RFC to work in his previous capacity as an addiction counselor and that this type of work allowed for changes in position with no significant lifting. (Tr. 30-31). Accordingly, the ALJ found that Gahan was not disabled and denied benefits. (Tr. 31).
After his alleged onset date of December 1, 1996, Gahan returned to work twice between May 1997 and May 1998. (Tr. 31). Notwithstanding, the ALJ treated those instances as unsuccessful work attempts. (Tr. 30).
Tr.() refers to the pages of the administrative transcript.
C. Substantial Evidence
Gahan argues in his brief that the ALJ disregarded his subjective complaints of disabling pain. The court recognizes the inherent difficulty in evaluating a claimant's credibility without actual physical contact. This makes review of an ALJ's credibility assessment particularly onerous and frequently results in significant deference to the ALJ. A claimant's statements about the persistence, intensity, and limiting effects of these symptoms is evaluated in the context of all objective medical evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Pain alone may, under some circumstances, serve as the basis for establishing disability. See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir. 1983); Gallagher ex rel Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). However, some pain does not automatically translate into disabling pain. See Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983) ("disability requires more than mere inability to work without pain").
The ALJ is entitled to evaluate a claimant's credibility and reach an independent judgment regarding subjective symptoms in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms. See Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984).
A finding that a claimant suffers from disabling pain requires medical evidence of a condition that could reasonably produce pain. 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b). It does not require objective evidence of the pain itself or its degree. Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986); see §§ 404.1529(c)(2), 416.929(c)(2). The pain must be properly evaluated, considering the applicant's credibility and motivation as well as the medical evidence of impairment to reach an independent judgment concerning the true extent of the alleged pain, and the degree to which it hampers the applicant's ability to engage in substantial gainful employment. See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Where the alleged symptoms suggest that the impairment is greater than demonstrated by objective medical evidence, the ALJ will consider other factors, such as daily activities, the location, duration, frequency and intensity of symptoms, the type, effectiveness and side effects of medication, and other treatment or measures to relieve those symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Furthermore, an ALJ rejecting subjective testimony concerning pain and other symptoms "must do so explicitly and with sufficient specificity to enable the court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence." Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987).
Here, Gahan argues that the ALJ did not give proper weight to his subjective complaints of pain. The record belies this contention. The ALJ considered multiple factors in assessing Gahan's complaints. The ALJ's decision to deny disability benefits was based on the medical opinion of an examining consulting physician, Joseph Kelly, M.D. Dr. Kelly found that Gahan had a limitation on bending and could lift no more than 25 pounds and needed to refrain from activities requiring prolonged standing or sitting. (Tr. 306-308).
Gahan also argues that the ALJ improperly used his two unsuccessful work attempts in determining his RFC. Pl's Br. pp. 18, Dkt. No. 6. The record shows that Gahan had two full time jobs following his onset date of December 1, 1996. In fact, Gahan had worked as a full-time sales consultant from May 1997 to September 1997 and as a nurse from October 1997 to May 1998. (Tr. 30, 253, 268). Nevertheless, the ALJ viewed Gahan's unsuccessful work attempts in the light most favorable to him. (Tr. 30).
The ALJ noted that Gahan stopped working as sales consultant in May 1997 due to the temporary nature of his job not because of any physical impairment. (Tr. 30, 253). In addition, the ALJ's found that Gahan was capable of light work. This RFC determination was far below the exertional requirements of his previous job as a nurse and sales consultant (Tr. 30, 306-308, 315-322) and shows that the ALJ did not improperly use his two previous attempts to work to determine his RFC.
It should also be noted that there were obvious inconsistencies in the record between Gahan's description of the exertional requirements for the nurse position as stated in his vocational report versus what he told worker's compensation physician, Christopher Huyck. M.D., during his medical visits. (Tr. 30, 269-271, 334).
Moreover, the ALJ noted that the medical evidence did not support Gahan's subjective complaints of pain. (Tr. 30). Dr. Charles S. Kalman, an orthopedic surgeon, evaluated Gahan for the Worker's Compensation Board on multiple occasions beginning in 1993. (Tr. 27, 383-394). Dr. Kalman reported that Gahan only had mild restrictions as a result of the 1994 laminectomy surgery supported by unremarkable x-rays. (Tr. 363-366). The ALJ also noted both the medical and objective evidence regarding his positive HLA-B27 test did not provide a conclusive diagnosis for his ankylosing spondylitic condition. (Tr. 28). Additionally, worker's compensation physician, Dr. Huyck found Gahan to have a permanent partial disability. (Tr. 334-338). Gahan also testified that he helped with household chores and also took care of his two year old child. (Tr. 29, 49). Therefore, the ALJ properly disregarded his subjective complaints of disabling pain.
Gahan underwent a laminectomy procedure for a herniated disc at the L5-S1. (Tr. 363).
Although the treating physician, Gregory D. Riebel, M.D., found Gahan disabled, the ALJ noted that Dr. Riebel also opined that the claimant was not able to work in his previous occupation and that Gahan would be most likely be limited to sedentary work. (Tr. 27, 323, 325).
After carefully reviewing the entire record, and for the reasons stated, the Commissioner's denial of benefits was based on substantial evidence and not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that the decision denying disability benefits is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.