Opinion
00-CV-6328 CJS.
October 6, 2004
Patricia Green, pro se, Brockport, New York, For the Plaintiff.
Michael A. Battle, United States Attorney for the Western District of New York, By: Christopher V. Taffe, Assistant United States Attorney Rochester, New York, For the Defendant.
DECISION AND ORDER
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") who denied plaintiff's application for disability benefits. Now before the Court is defendant's motion for judgment on the pleadings (# 11), pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, the application is granted.
PROCEDURAL BACKGROUND
Plaintiff Patricia Green ("plaintiff") applied for Supplemental Security Income ("SSI") on January 24, 1994, stating that she had been disabled since January 1, 1990. R. at 60-63. The Social Security Administration ("SSA") denied her application initially on March 11, 1994, R. at 64, and again upon reconsideration in December of 1994, R. at 88. Plaintiff then requested a hearing before an administrative law judge ("ALJ"), and such hearing was held on July 25, 1995. R. at 22. On February 17, 1996, the ALJ, James E. Dombeck, issued a decision in which he found that plaintiff was not entitled to disability benefits. R. at 11-16. The ALJ made the following findings:
"R." refers to the administrative record filed by the Commissioner pursuant to 42 U.S.C. § 405(g), as part of her answer.
1. The claimant has not engaged in substantial gainful activity since January 24, 1994.
2. The medical evidence establishes that the claimant has severe back and foot pain (with some evidence of early bunions), but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
3. The claimant's alleged symptoms and related functional limitations are contradicted by her own description of her daily activities and are not supported by the medical evidence from treating or consulting physicians, and are thus not credible.
4. The claimant retains the residual functional capacity for sedentary work (standing and walking for up to one-third of the workday and lifting and carrying up to 10 pounds occasionally).
5. The claimant's impairment does not prevent her from performing her past relevant work as a secretary/clerk.
6. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision ( 20 C.F.R. § 416.920(e)).
R. at 15-16. The ALJ also found that plaintiff was not a credible witness. In his decision, he stated that he
found the claimant's responses at the hearing to be inconsistent, histrionic, and sometimes unresponsive to the questions being posed. Her testimony impressed the [ALJ] as exaggerated, vague, and evasive. Throughout the hearing, the claimant made long and obvious pauses in what appeared to be an effort to formulate "acceptable" answers to even the simplest questions. She was not a credible witness.
R. at 15. On January 7, 1998, the Appeals Council denied plaintiff's request for a review of the ALJ's decision. R. at 4-5. The ALJ's determination thus became the Commissioner's Final Decision, and plaintiff then commenced an action for judicial review under 42 U.S.C. § 405(g).
In an unpublished decision and order dated February 2, 1999, this Court reversed and remanded the case for further administrative proceedings. R. 277-88. Specifically, the Court found that because the ALJ had not explicitly followed the "treating physician rule," 20 C.F.R. § 404.1527, it was unclear whether he had applied the correct legal standard. R. at 287. The Court, therefore, ordered that upon remand, the ALJ consider the weight to assign to the treating physician's opinions, and also that he consider any new or additional evidence plaintiff might provide on the issue of residual functional capacity. R. at 287-88.
The Appeals Council entered an order on April 27, 1999 remanding the case to ALJ Dombeck. R. at 289-90. The ALJ held a hearing on January 27, 2000. R. at 253. In his decision of March 14, 2000, the ALJ again determined that plaintiff was not disabled. R. at 238-46. The ALJ made findings identical to those of the earlier decision. R. at 245. He also noted that Dr. Jeffrey Summers, formerly plaintiff's primary care physician, had expressed the opinion in May of 1994 that plaintiff could not work in any capacity. R. at 244. However, the ALJ declined to accord controlling weight to that opinion, since he found it inconsistent not only with Dr. Summers' later expressed opinions, but also with the opinions and statements of plaintiff's six other treating physicians, and with the opinions of two consulting physicians. Id. Thus the ALJ concluded that
[t]he claimant's assertions, as to the disabling nature and severity of her symptoms and functional limitations, are inconsistent with the minimal medical findings and supported by the May 1994 opinion of her treating physician only to the extent that his report is based upon her subjective self-report without any objective documentation of exertional limitations. The more recent opinions and statements of other treating physicians have been given due consideration, as well and . . . the evidence in this case warrants greater weight being placed on the opinions of those examining and reviewing physicians (SSR 96-9p).Id. After that determination became the Commissioner's final decision, plaintiff filed the instant action on July 13, 2000.
As in her previous lawsuit, plaintiff is proceeding pro se. This Court has informed plaintiff that the Social Security Act contains an attorney fee provision, and has strongly encouraged plaintiff to retain an attorney. R. at 285. Plaintiff did retain an attorney after her case was remanded, R. at 252, but prior to the second hearing, that attorney ceased to represent plaintiff, R. at 408. For whatever reason, plaintiff has not retained new counsel.
EMPLOYMENT SOCIAL BACKGROUND
At the time of her second hearing before the ALJ, plaintiff was forty years old, and living in Brockport, New York. R. at 256. Her education consisted of a high school general equivalency degree, and a few months of training in secretarial skills at the Educational Opportunity Center. R. at 27. Between 1984 and 1992, plaintiff worked in a variety of secretarial and clerical positions. R. at 26-27. She described her basic duties as "general office duties," "typing" and "filing." R. at 101. In that capacity, plaintiff was required to walk for two hours per day, sit for five hours, reach frequently, and bend occasionally. R. at 102. Evidently, she was unemployed during all of 1986, 1987 and 1991. R. at 330-32. However, there is some discrepancy regarding the dates of plaintiff's employment. On her application for SSI, she indicated that she was unemployed during 1991 but worked as a temporary employee during 1992. R. at 97, 101. At the hearing, on the other hand, she stated that she worked until November of 1991, but has been unemployed since that time. R. at 26. Yet again, she elsewhere claimed to have worked for two weeks in December of 1993. R. at 93.
The hearing transcript here contains a typographical error and so identifies plaintiff's place of residence as "Broadport." However, the street address and apartment number are identical to those which are otherwise consistently identified in the record with a residence in Brockport. See, e.g., R. at 24.
Furthermore, plaintiff told Dr. Charles J. Avallone on December 12, 1994 that she stopped working as a secretary eighteen months earlier. R. at 207. In September of 1996, she told Dr. Androniki Bili that she "had been working as a secretary but she has been out of work for two years now." R. at 361.
There is also considerable confusion as to when plaintiff's alleged disability began. In her application, plaintiff claimed it began on January 1, 1990, R. at 60, and that it caused her to stop working on June 1, 1990, R. at 97. At the first hearing, however, plaintiff stated:
As of the end of '91, I would say, going into '92, I became severely disabled. I had problems getting around, walking or standing . . . I have pains down my — arthritis, that I was told. There are pains from my back to my — all the way to my feet. It's a constant pain . . . I have problems with . . . my hands . . . I have problems opening and closing my hands. There's constant pain. There's constant — extreme burning.
R. at 29-30. This happened "all of a sudden." R. at 39. Nevertheless, plaintiff testified that she first felt she could not go to work in approximately the beginning of 1994, Id., and her witness, Ethel Brown, testified that she "wasn't in bad shape" in 1993, R. at 56.
Plaintiff does not drive and has never had a driver's license. R. at 38. For transportation, she stated that she relied upon the bus and upon rides from her sister. Id. She lives in a second-floor walk-up apartment. R. at 41. She is able to prepare meals for her two children, R. at 38, although she stated that she requires some assistance with laundry and housekeeping, R. at 38-39. "I do try to busy myself around the house. At least try and prepare meals and doing some chores, but nothing heavy, lifting or pushing a vacuum cleaner or anything like that." R. at 44. She stated that she sometimes requires assistance to get out of the bathtub. R. at 39. She also said that she gets out of the house at least twice a week to take walks, to go shopping, to go to the library, and to visit her mother in Rochester. R. at 41-43. Plaintiff testified that she could sit for only about fifteen minutes at a time, and that she could stand or walk for only about ten minutes at a time. R. at 45.
MEDICAL EVIDENCE
Plaintiff claims that her disability is caused by pain in her lower back, left leg, left foot, and hands. She has seen numerous doctors and has undergone extensive examination and testing. Nevertheless, the medical evidence in the record does not reveal any clear diagnosis as to the cause of plaintiff's pain.
At the time of the first hearing, Dr. Jeffrey Summers, M.D., an internist, had been plaintiff's primary treating physician for over four years. The record indicates that Dr. Summers saw plaintiff numerous times for office visits during that period, R. at 160-95, although she also broke a tremendous number of appointments, R. at 146, 149, 152, 153, 154, 161, 166, 167, 171, 172, 173, 176, 177, 179, 184, 186, 187, 189, 191, 192, and 195. On March 23, 1993, plaintiff complained of "[b]ack pain off and on for past 6 mo. Better sitting than standing." R. at 181. Dr. Summers' impression was "[p]rob[able] back strain[,] but long time." Id. On November 16, 1993, Dr. Summers recorded that plaintiff had "[l]ow back pain. Burning in back. No injury. Off and on for years. Bad lately. Has sx [sic] in many other joints and muscle areas through body." R. at 176. Because he was not able to determine the cause of plaintiff's pain, Dr. Summers referred her to numerous specialists.
On December 30, 1993, Dr. J.E. Lovelock of Rochester Radiology Associates, P.C., recorded that an examination of plaintiff's spine revealed a "partial sacralization of L5 on the left. The disc spaces are normal. The vertebral bodies are normal." R. at 137.
Sacralization is the anomalous fusion of the fifth lumbar vertebra with the first segment of the sacrum. Chandler v. Callahan, No. 96-CV-1790 (RSP/GJD), 1998 U.S. Dist. LEXIS 2084, 1998 WL 99384 at *3 (N.D.N.Y. Feb. 23, 1998) (quoting Dorland's Medical Dictionary 597 (Shorter Ed. 1980)).
On January 19, 1994, Dr. Louis Giordano, a podiatrist, stated in a note that was apparently intended for plaintiff's son's school, that plaintiff had been treated that day for "degenerative arthritis" and that "[d]ue to [her] foot problems she's unable to walk distances therefore is unable to walk her son to his bus stop 3 blocks away[.] [A]rrangements need to be made to provide transportation to school." R. at 197. Dr. Giordano stated neither the basis for his diagnosis of arthritis, nor the basis for his belief that the plaintiff was unable to walk distances.
On February 4, 1994, Dr. Susan A. Danahy of Rochester Radiology Associates, P.C., performed an x-ray and CT scan of plaintiff's lumbosacral spine, and concluded that it was a "normal lumbosacral spine." R. at 134.
On February 20, 1994, plaintiff visited the Rochester General Hospital Emergency Department to complain of left leg pain. Nurse Practitioner Suzanne Wall examined plaintiff, noted that she "[a]mbulate[d] easily," and concluded, in relevant part, that there was "[n]o evidence of acute neurologic or vascular disorder." R. at 132. Plaintiff was prescribed Toradol and discharged. R. at 132.
On February 23, 1994, plaintiff was examined by Dr. M.S. El Sawah, an orthopedic surgeon, apparently in connection with an application for disability benefits from the State of New York. Dr. El Sawah noted, in relevant part, that
[c]ervical spine is mildly tender but range of motion is full. Upper limbs reveal no abnormality and grasp with either hand is full. She can't stand on toes of left foot due to pain; can stand on heels. She is tender in dorso-lumbar and lubro-sacral transitions of the spine. She can bend down and reach within 2" below her knees. Extension of the trunk and side-being both ways are full range but slow. Both hips are normal. Both knees and both ankles reveal no abnormality. Has bilateral flatfeet, and hallux ridigus in both feet, with pain and tenderness in left big-toe, but no swelling or signs of inflammation or deformity. . . . Neurologic evaluation reveals normal motor and reflex functions, and no abnormal sensory findings. X-rays of left foot show small subchondral cysts in the head of the 1st meta-tarsal and small erosion in articular surface of base of proximal phalanx of big-toe, also mild periosteal reaction in interdigital surface of head of 1st meta-tarsal. X-rays of lumbo-sacral spine . . . reveal no disc space narrowing or degenerative changes. Sacro-iliac joints are normal.
Hallux rigidus is defined as "restricted mobility of the big toe due to stiffness in the metatarsophalangeal joint esp. when due to arthritic changes in the joint." Merriam Webster's Medical Desk Dictionary 280 (1993).
R. at 199-200.
On March 29, 1994, Dr. Charlene B. Varnis, M.D., of the Rochester General Hospital Rheumatology Unit, had an initial consultation with plaintiff, and while she drew no conclusions about plaintiff at that time, she noted that
[t]he diminished range of motion of her lumbar spine does suggest the possibility of an underlying spondylitis and sacroiliitis. Review of her low back films with this in mind might be helpful. If there is no suggestion of radiographic abnormalities of the sacroiliac joints, it might be worth pursuing further evaluation with a bone scan to look for evidence of underlying spondylitis and sacroiliitis.
R. at 130. After examining plaintiff on April 14, 1994, Dr. Varnis concluded, in relevant part, that:
I am quite troubled by the patient's presentation as there is really no clear dermatomal or radicular pattern to her pain and associated complaints. There is nothing definite to support possible reflex sympathetic dystrophy, and this is not the typical pattern of radiculopathy. A more peripheral neuropathy could account for some of the manifestations that she has been experiencing, and the only way to best evaluate this would be by pursuing an EMG study.
R. at 119.
On May 10, 1994, upon a referral by Dr. Varnis, Dr. R. Michael Poole, of the Rochester General Hospital Clinical Neurophysiology Laboratory, conducted an electro-myography (EMG) examination of plaintiff's foot, and concluded that it was an "[e]ssentially normal exam." R. at 117. On May 25, 1994, upon another referral by Dr. Varnis, Dr. Robert M. Spitzer, a radiologist at Rochester Diagnostic Imaging Associates, conducted an MRI of plaintiff's lumbar spine, the results of which were normal. R. at 115. On November 11, 1994, Dr. Richard M. Bernstein, M.D., reviewed an ultrasound of plaintiff's pelvis, and found it to be normal. R. at 175.
On November 22, 1994, at the request of the Social Security Administration ("SSA"), Dr. Charles J. Avallone, M.D. conducted an orthopedic examination of plaintiff, and found, in relevant part, that
Examination of her upper extremities reveals tenderness with palpation over the wrists, elbows and shoulders bilaterally. . . . There is no decrease in strength nor decrease in range of motion. . . . Examination of the lower extremities reveals normal range of motion and strength to the hips, knees and ankles. There is a tender bunion at the left first toe and some tenderness over the left third and forth toe MTP joints. . . . The claimant did complain of a burning sensation over the plantar aspects of both feet. . . . The remainder of the musculoskeletal and neurologic examination is within normal limits. . . . On today's examination, she has no evidence of arthritis; that is there is no erythema, edema or warmth, no decrease in strength, no decrease in ROM [range of motion]. . . . The claimant's symptoms are most suggestive of fibromyalgia and she would most likely benefit from an aggressive physiotherapy program as well as medications such as Amitriptyline.
R. at 208. The record does not reflect that plaintiff pursued the physiotherapy program recommended.
On December 29, 1994, Dr. Summers commented that, though plaintiff complains of pain, she "does not seem to follow through with recommendations. Her affect is flat, almost wonder about a psych overlay. She never followed through with pain clinic evaluation either." R. at 214. On January 18, 1995, the pain clinic notified Dr. Summers' office that plaintiff had failed to keep her appointments, could not be reached by telephone, and had not responded to information the clinic mailed to her. R. at 220.
Dr. Summers examined plaintiff again on July 12, 1995, and found that she "seems only 3/5 strength, but difficult to assess her degree of attempt. Ambulated out of office without difficulty, but problems moving on and off exam table." R. at 357. Moreover, he indicated that "[t]he whole process is worrisome, yet at the same time could be entirely put on. Her behavior, not following through with evaluations, etc., tends to point to the latter, but then again may be more social and may have something like MS. Very confusing picture." Id. Plaintiff missed an appointment with Dr. Varnis on October 30, 1995, and failed to schedule a bone scan as requested. Id. She was, therefore, discharged by the Rheumatology Unit for failing to "show for appointments or follow through with recommended testing." R. at 356. Dr. Summers noted that she failed to see "neurology as referred last visit as well." Id.
On July 24, 1996, Dr. Summers recorded that plaintiff "[w]ants physical therapy and `an answer to why' she has diffuse pain, but continues to be noncompliant with workups." Id. He further indicated, "[g]ait normal. Back nontender (when looking at rash and thus distracted)." Id. Dr. Summers then referred plaintiff to Dr. Androniki Bili, Instructor and Fellow in Rheumatology at the University of Rochester Medical Center. R. at 360.
On September 26, 1996, Dr. Bili recorded his initial assessment as, Chronic low back pain without evidence of radiculopathy. . . . I suspect that a strong component of this patient's chronic low back pain might be due to muscle deconditioning and paraspinal muscle spasms. This is supported by the presence of multiple muscle tender points and they raise also the possibility of fibromyalgia, although patients with fibromyalgia usually complain of pains above and below the waist.
Plaintiff, however, claims that she arranged to see Dr. Bili: "I spoke with a friend who told me she had a rheumatologist at [S]trong and suggested I try this doctor. I called and made an appointment to see Dr. Bili at Strong Hospital." Pl.'s Resp. [#19], at 3.
R. at 362. In following up on this evaluation, Dr. Bili noted that, "[r]egarding the increased muscle rigidity on physical exam, I couldn't come up with a good explanation, since all the causes of increased rigidity . . . are highly unlikely in this case." R. at 375.
In preparation for the second administrative hearing, the ALJ requested information from Dr. Bili. R. at 369. In response, he received a letter, dated September 14, 1999, from another Fellow in eumatology at the University of Rochester Medical Center who stated that she would not fill out the paperwork the ALJ sent because plaintiff was seen "only a few times in 1996 and has not been seen since." R. at 368. Instead, she enclosed "copies of information that we have from her chart." Id.
At some point, plaintiff's relationship with Dr. Summers ended and she began to see her family physician, Dr. Rajendra Mehta. On October 25, 1997, Dr. Mehta performed a lumbar spine MRI and found "some disc bulging at L3-4 and predominantly at the L4-5 level posteriorly. There is no herniation of the disc or spinal stenosis. The neural foramina allow free individual nerve root passage. The conus medullaris appears normal. The vertebral bodies and disc spaces have normal height and signal intensity." R. at 363.
Dr. Mehta referred plaintiff to Dr. Keith Pryhuber, a rheumatologist, for an evaluation of arthritis on December 22, 1997. R. at 401-02. Dr. Pryhuber found
mild tenderness in many of the PIPs without synovitis. There is slight puffiness in the middle phalanx in several of the fingers. Mild tenderness in some of the PTPs including the second and third on the right, first, fourth and fifth on the left without obvious swelling. Mild tenderness of the L4-5 vertebrae. No SI tenderness. Mild discomfort with motion of the shoulder, elbows. Hips unremarkable. No significant myofascial tenderness. Labs from 11-7-97: sed rate 13, rheumatoid factor and ANA negative.
R. at 402. He concluded plaintiff suffers from "[a]rthropathy of uncertain etiology." Id.
Dr. Pryhuber examined plaintiff again on January 16, February 13, March 6, and March 31, 1998, and each time noted that the cause of plaintiff's pain could not be determined. R. at 389, 387, 386, and 385.
After examining plaintiff again on May 18, 1998, Dr. Pryhuber noted that she has "[d]iffuse pain of unclear etiology. She has areas of degenerative change though the pain is out of proportion to findings on exam or x-ray. She's also had less than the expected response to narcotics and nonsteroidals." R. at 384.
Dr. Pryhuber's final examination of plaintiff took place on September 9, 1998. R. at 383. The cause of her pain remained unclear and he commented: "I think she would also definitely benefit from psychologic counseling to help her deal with the pain and to explore the potential non-organic etiologies for the pain." Id.
In the meantime, Dr. Mehta had also referred plaintiff to Dr. David C. Marzulo, a neurologist, who examined her on June 25, 1998. R. at 364. He found her complaints were "not highly suggestive of neurologic disease," but asked her to return for electrodiagnostic studies. R. at 365. Dr. Marzulo wrote to the ALJ on September 3, 1999, and explained that the neurologic examination of June 25 "was significant for a subjective decrease in sensation involving the left foot relative to the right which is purely subjective, with normal strength and reflexes." R. at 380. Subsequent studies had normal results. He concluded:
I thus feel she has a chronic lumbar pain syndrome with a large element of functional embellishment i.e. a large nonorganic component.
I did not feel there was any neurologic process and thus cannot determine any disability, restrictions, etc. That is, based on my 2 encounters with the patient, I cannot determine any objective disability.Id.
On November 3, 1998, the Lakeside Physical Therapy Department discharged plaintiff for "lack of progress and failure of [patient] to report." R. at 377. She had failed to show for her appointment on August 28, 1998, and reported for no visits after that date. Id.
The Court notes that in her complaint (# 1), plaintiff states that her disability is "chronic arthritis with reflex dystrophy disorder with pain syndrome." However, as Dr. Varnis noted above, she found "nothing definite to support possible reflex sympathetic dystrophy." R. at 119. Further, Dr. Avallone found "no evidence of arthritis," R. at 208, and Dr. Pryhuber could not identify an organic etiology for plaintiff's arthritic pain, R. at 383.
RESIDUAL FUNCTIONAL CAPACITY
There is conflicting evidence in the record regarding plaintiff's residual functional capacity. Dr. Summers, formerly plaintiff's treating physician, completed three medical evaluation forms for the New York State Department of Social Services ("DSS"), which stated his opinion that "[p]atient is not capable of working in any capacity at this time." On May 27, 1994, he based this conclusion on a diagnosis of "multiple joint symptoms — poss[ible] DJD [degenerative joint disease]." R. at 204. On October 25, 1994, he diagnosed "arthralgias/arthritis." R. at 206. On July 12, 1995, Dr. Summers indicated that plaintiff could not perform work that involved walking, climbing, standing, stooping, bending, sitting, lifting, carrying, pushing or pulling because of "n[onspecific] joint pain, weakness." R. at 221.
On the form, this word is essentially illegible, with only the first letter being certain.
On March 1, 1995, plaintiff's podiatrist, Dr. Giordano, also completed a form for DSS. Dr. Giordano, however, found that plaintiff was capable of working full-time, as long as such work did not involve walking, climbing, standing, stooping, bending, sitting, lifting, carrying, pushing or pulling. R. at 213.
Medical consultants working for the State of New York and for defendant have also provided opinions relating to plaintiff's residual functional capacity. In a report dated March 2, 1994, Janis L. Dale, M.D., reported to DSS, in relevant part: "RFC sedentary — can walk 2 hrs/d." R. at 202.
The Court interprets "RFC" to mean "residual functional capacity."
In a report to defendant dated December 22, 1994, Alberta Micale, M.D., opined that plaintiff could occasionally carry ten pounds, could frequently carry less than ten pounds, could stand or walk for at least two hours in an 8-hour workday, could sit for about six hours in an 8-hour workday, and could push and/or pull without limitation. R. at 72.
In a report to defendant dated March 9, 1994, Richard Eales, M.D., reached the same conclusions as Dr. Micale. R. at 81.
Both Doctors Micale and Eales appear to specialize in internal medicine, while Dr. Dale's area of expertise, if any, is unclear. It does not appear that Doctors Dale, Micale or Eales actually examined plaintiff. From the record, it appears that they reached their conclusions solely based on review of plaintiff's medical file.
More recently, Dr. Mehta provided assessments dated October 8, 1997 and December 31, 1998. In the first of these, Dr. Mehta diagnosed plaintiff's condition as "chronic lumbar pain syndrome." R. at 406. Dr. Mehta found no evidence of limitations in sitting, seeing, hearing, and speaking, but moderate limitation in walking, standing, pushing, pulling, bending, using hands, and stairs or other climbing. R. at 406. In the later assessment, Dr. Mehta diagnosed "Inflammatory Arthritis," and found plaintiff moderately limited in all functioning categories. R. at 404. On neither assessment form did Dr. Mehta complete the section entitled "Limitations on Work Activities." R. at 405, 407.
Though this appears to be the diagnosis, the handwriting is not entirely legible.
Dr. Mehta did not check any limitation category for "Lifting, Carrying." Id.
Dr. Mehta did, however, initially check "No Evidence of Limitations" for sitting, but then crossed out this indication. Id.
STANDARDS OF LAW
A. The Standard for Finding a Disability
For purposes of the Social Security Act, disability is the "inability 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); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The determination of impairment involves both objective and subjective factors, including: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability testified to by the claimant, claimant's family or others; and (4) the claimant's educational background, age, and work experience. See Riveral v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
The SSA has promulgated regulations which establish a five-step sequential analysis an ALJ must follow:
First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a "severe impairment" that significantly limits the "ability to do basic work activities." If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the "residual functional capacity" to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing "any other work."Schaal, 134 F.3d at 501(citations and internal quotation marks omitted). Plaintiff bears the burden of proof for steps one through four. The burden of proof shifts to the Commissioner for the fifth step. See DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998); Colon v. Apfel, No. 98 Civ. 4732 (HB), 2000 U.S. Dist. LEXIS 2928, 2000 WL 282898 at *3 (S.D.N.Y., Mar. 15, 2000).
B. The Standard of Review
The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal, 134 F.3d at 501. It is well settled that
it is not the function of a reviewing court to determine de novo whether the claimant is disabled. Assuming the Secretary [Commissioner] has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence; if they are supported by such evidence, they are conclusive. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
Where there are gaps in the administrative record or where the Commissioner has applied an incorrect legal standard, remand for further development of the record may be appropriate. Parker, 626 F.2d at 235. However, where the record provides persuasive proof of disability and a remand would serve no useful purpose, the Court may reverse and remand for calculation and payment of benefits. Id.
Federal courts are not empowered to review the Commissioner's denial of disability benefits de novo. See Williams v. Callahan, 30 F. Supp. 2d 588, 592 (E.D.N.Y. 1998); Fishburn v. Sullivan, 802 F. Supp. 1018, 1023 (S.D.N.Y. 1992). The scope of review involves first the determination of whether the ALJ applied the correct legal standards, and second, whether the ALJ's decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Although district court is not bound by the Commissioner's conclusions and inferences of law, the ALJ's findings and inferences of fact are entitled to judicial deference. Grubb v. Chater, 992 F. Supp. 634, 637 (S.D.N.Y. 1998). Absent legal error, the Commissioner's finding that a claimant is not disabled is conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); Filocomo v. Chater, 944 F. Supp. 165, 168 (E.D.N.Y. 1996). Substantial evidence is more than a mere scintilla. It is defined 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) (quotation omitted).
ANALYSIS
Plaintiff has not alleged, either in her complaint or in her response to defendant's motion, any specific error by the ALJ. In her form complaint (# 1), she merely indicates her belief that the ALJ's decision "was erroneous and not supported by either the substantial evidence on the record or the applicable law." In her response, she describes the medical treatment she has received and states:
the condition I suffer is a sharp shooting and burning pain that will stop you right in your tracks. I have seen numerous doctors and have been on medication for this pain synrome [sic] since 1994 to the present. Dr. Mok is my doctor and I am taking vioxx, flexeril, tylenol. I have taken the steroid injections. I believe my condition warrants my disability and I should receive my supplement income. (SSI)
Pl.'s Resp. (# 19), at 3. Defendant argues that the only issue is "whether substantial evidence supports the Commissioner's decision that plaintiff was not disabled between January 1, 1990, plaintiff's alleged date of disability onset, and March 14, 2000, the date of the ALJ's decision." Mem. of Law in Supp. of Comm'r's Mot. for J. on the Pleadings ("Def.'s Mem. in Supp.") (# 11), at 3. The Court, therefore, will consider, first, the ALJ's application of the "treating physician rule," and, second, the evidentiary support for the ALJ's conclusion that plaintiff is not disabled.
A. Treating Physician Rule
The law gives special weight to the opinion of the treating physician. The SSA's regulations provide:
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. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining the weight to give the opinion.20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2004). The various factors applied when the treating physician's opinion is not given controlling weight include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion's consistency with the record as a whole; (4) whether the opinion is from a specialist; and (5) other relevant factors. Id. The regulations further provide that the SSA "will always give good reasons" for the weight given to the treating physician's opinion. 20 C.F.R. § 404.1527(d)(2) (2004); see also, Schaal, 134 F.3d at 503-504; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Here the ALJ declined to give controlling weight to the opinion of Dr. Summers. R. at 244. The ALJ explained his reasoning as follows:
Dr. Summer's [sic] opinion is inconsistent with his later expressed opinions, and is inconsistent with the opinions and statements of other treating physicians, Dr. Varnis, Dr. Marzulo, Dr. Pryhuber, Dr. Poole, Dr. El-Sawah, Dr. Mehta, as well as the opinions of consulting physicians, Dr. Avallone, and Dr. Giordano. The medical records in this claim contain statements and opinions of eight physicians which are inconsistent with the May 1994 opinion of Dr. Summer [sic] that the claimant was unable to work in any capacity. In addition, Dr. Summer [sic], after a period of evaluation of the claimant, begins to question her credibility as well, for example, in July 1996 when he notes that her back is non-tender when examined while she is distracted by him calling attention to a rash [R. at 356].
The claimant's assertions, as to the disabling nature and severity of her symptoms and functional limitations, are inconsistent with the minimal medical findings and supported by the May 1994 opinion of her treating physician only to the extent that his report is based upon her subjective self-report without any objective documentation of exertional limitations. The more recent opinions and statements of other treating physicians, examining physicians and the State Agency review physicians have been given due consideration, as well and, as explained above, the evidence in this case warrants greater weight being placed on the opinions of those examining and reviewing physicians (SSR 96-6p).Id. The Court finds that the ALJ did present "good reasons" for declining to accord controlling weight to Dr. Summers' expressed opinion of plaintiff's residual functional capacity.
The Court also notes the need to distinguish between Dr. Summers' evaluation of plaintiff's functional capacity and his conclusion about her inability to work. The Second Circuit has explained that "some kinds of findings — including the ultimate finding of whether a claimant is disabled and cannot work — are reserved to the Commissioner. That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions as to whether those data indicate disability. A treating physician's statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (internal quotation marks and citation omitted).
Dr. Summers offered his opinion on three occasions, each time based on a different diagnosis. Clearly Dr. Summers reached no definite conclusion as to the nature of plaintiff's impairment. Moreover, as the ALJ noted, Dr. Summers came to question plaintiff's reliability. He speculated that she might feign symptoms when examined, he wondered about the possibility of a "psych overlay," and he worried that she did not follow through with treatments. R. at 214, 356, 357. The Court concludes that such a vague, inconclusive diagnosis, that the treating physician himself repeatedly calls into question, is not entitled to controlling weight under the SSA regulations.
The ALJ is also correct in determining that Dr. Summers' opinion conflicts with those of plaintiff's other treating physicians. Of particular importance are the opinions that postdate Dr. Summers'. Dr. Pryhuber, a rheumatologist, had extensive contact with plaintiff in 1997 and 1998, and found her complaints of pain out of proportion to exam or x-ray results. R. at 384. Ultimately, he concluded that psychological causes should be explored. R. at 383. Dr. Marzulo, a neurologist, examined plaintiff twice in 1998 without finding "any neurologic process" or "any objective disability." R. at 380. He too found "a large nonorganic component" to plaintiff's complaints of pain likely. Id. Furthermore, Dr. Mehta, who became plaintiff's primary care physician after Dr. Summers, without specifying their relation to work activities, indicated significantly milder limitations to plaintiff's functioning than had Dr. Summers. R. at 404, 406.
The Court therefore finds no legal error in the ALJ's refusal to accord controlling weight to Dr. Summers' assessment of plaintiff's residual functional capacity.
B. Substantial Evidence
Having determined that plaintiff is not working, has a severe impairment that is not listed in, or medically equivalent to one listed in Appendix 1, Subpart P, Regulations No. 4, the ALJ then properly turned to consideration of whether plaintiff had the "residual functional capacity" to perform her past relevant work. He found that, though plaintiff had severe back and foot pain, she was able to "stand and walk no more than one-third of the workday and lift and carry no more than ten pounds occasionally." R. at 245. Because this would permit plaintiff "to perform the full range of at least sedentary work," plaintiff retained the residual functional capacity for her past relevant work as a secretary and clerical temporary worker. Id. The Court finds that there was substantial evidence for this conclusion.
As the various evaluations in this case make clear, the functional limitations imposed by pain are difficult to assess. The SSA's regulations acknowledge this difficulty and so provide that symptoms, such as pain, will be evaluated with reference to, not only objective medical evidence, but also "statements or reports from [claimant], [claimant's] treating or examining physician or psychologist, and others about [claimant's] medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how [claimant's] impairment(s) and any related symptoms affect [his or her] ability to work." 20 C.F.R. § 404.1529(a) (2004). More specifically, the regulations list the following factors, beyond objective medical evidence, for use in considering symptoms such as pain:
(I) [claimant's] daily activities;
(ii) The location, duration, frequency, and intensity of [claimant's] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [claimant] take[s] or ha[s] taken to alleviate [claimant's] pain or other symptoms;
(v) Treatment, other than medication, [claimant] receive[s] or ha[s] received for relief of [claimant's] pain or other symptoms;
(vi) Any measures [claimant] use[s] or ha[s] used to relieve [his or her] pain or other symptoms ( e.g., lying flat on [his or her] back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [claimant's] functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3). "As a general matter, `objective' findings are not required in order to find that an applicant is disabled." Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (citations omitted). However, "symptoms, including pain, will be determined to diminish [a claimant's] capacity for basic work activities to the extent that [his or her] alleged functional limitations and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(c)(4).
The ALJ noted that the SSA "requires claimants for disability benefits to follow prescribed treatment for their medical impairments. Failure to do so may be a basis for denial of benefits ( 20 C.F.R. § 404.1530, 416.903)." R. at 243. Despite the evidence of plaintiff's failure to follow prescribed treatments and keep medical appointments, the ALJ did not indicate that he denied benefits on that basis. The ALJ, however, may have considered that evidence in assessing plaintiff's credibility. See Def.'s Mot. in Supp. (# 11), at 25-26.
In the instant case, the ALJ found that "medical evidence from treating and consultative sources fails to corroborate the claimant's subjective complaints of pain and loss of function." R. at 240. Despite years of treatment, "the rheumatologists, orthopedists, and neurologists consulted have been unable to determine the source of her symptoms. Similarly, various attempts at treatment, including medication, injections, and physical therapy have met with inconsistent compliance and reports of no improvement" R. at 241 (citation omitted). Without any clear or consistent diagnosis, and given that so many of her treating physicians questioned whether plaintiff's pain had organic origins, the ALJ concluded that "[t]he medical evidence thus provides almost no support for the claimant's allegations of debilitating back and foot pain." R. at 243. Although the record does contain objective evidence of medical problems, the Court agrees that there is substantial evidence for the conclusion that the objective evidence does not itself establish the debilitating nature of plaintiff's condition.
The ALJ then assessed plaintiff's credibility in making her subjective complaints of pain and loss of functioning. He noted that she admitted to performing various activities which are "wholly inconsistent with her allegations of disability." Id. He also found her testimony at the first hearing unreliable because it was "exaggerated, vague, and evasive," and because "the claimant made long and obvious pauses in what appeared to be an effort to formulate `acceptable' answers to even the simplest questions." R. at 243-44. He thus found plaintiff's self-assessment of her functional capacity to be unreliable. Again, the Court finds that the ALJ certainly possessed substantial evidence for discounting the subjective complaints of plaintiff as at least significantly exaggerated. This is particularly so given how inconsistent plaintiff has been about foundational facts such as the period of onset of her medical problems and the time when she ceased to work. See Def.'s Mem. in Supp. (# 11), at 26-27.
The Court, therefore, cannot conclude as a matter of law that the ALJ lacked substantial evidence for denying plaintiff supplemental security income.
CONCLUSION
Accordingly, defendant's application (# 11) is granted, and the Commissioner's decision is affirmed.
IT IS SO ORDERED.