Opinion
6:00-CV-0706 (GLS).
July 1, 2004
LAWRENCE D. HASSELER, ESQ., Conboy, McKay Law Firm, Watertown, NY, for Plaintiff.
WILLIAM H. PEASE, ESQ., Assistant U.S. Attorney, HON. GLENN T. SUDDABY, United States Attorney, Syracuse, NY, for Defendant.
DECISION AND ORDER
I. Introduction
Mary Hunt alleges that osteoarthritis and obesity have disabled her, and challenges the Commissioner's denial of disability insurance and supplemental security income benefits prior to her fifty-fifth birthday. Having reviewed the administrative record, the court concludes that the Commissioner's decision was based on substantial evidence, and affirms.
The ALJ determined that Hunt, whose insured status expired in December 1997, was not disabled and not entitled to Disability Insurance benefits. He also determined that Hunt was not entitled to Supplemental Security Income benefits prior to her fifty-fifth birthday, but met the Supplemental Income disability requirements thereafter. Hunt is appealing the part of the determination denying benefits.
II. Procedural History
After Hunt filed for disability benefits in June 1998, her application was denied, and a hearing was conducted by Administrative Law Judge Thomas Zolezzi (ALJ). In February 1999, the ALJ issued a decision partially denying benefits, which became the Commissioner's final determination when the Appeals Council denied review on April 15, 2000.
See supra note 1.
On May 8, 2000, Hunt brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner then filed an answer and a certified administrative transcript, Hunt filed a brief, and the Commissioner responded.
On October 4, 2000, the court, pursuant to a stipulation between the parties, remanded the case for further rehearing in order to give the Commissioner additional time to search for the missing transcript in this case. The transcript has since been found and filed with the court.
III. Contentions
Hunt contends that the Commissioner's decision is not supported by substantial evidence. She claims that the ALJ: (1) reached a determination unsupported by the medical evidence; (2) disregarded the opinions of her treating physicians; (3) failed to set specific factors in assessing her Residual Functional Capacity (RFC); and (4) improperly evaluated her subjective complaints and symptoms. The Commissioner counters that substantial evidence supports the ALJ's decision that Hunt was not disabled.
Throughout her brief, Hunt mistakenly refers to the Commissioner as "Secretary."
In a fifth "point," Hunt claims that she has been denied due process by the Commissioner's alleged failure to properly analyze evidence and follow the law and regulations. Her single-sentence, conclusory statement lacks merit. Her opportunity to appear and be heard before the ALJ, her appeal to the Appeals Council, and the review of her case by this court are ample proof to the contrary.
IV. Facts
The evidence in this case is not in dispute and the court incorporates the parties' factual recitations. See Pl.'s Br., pp. 2-6, Dkt. No. 10; Def.'s Br., pp. 4-6, Dkt. No. 11.
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). In order to "ensure that the correct legal principles are applied in evaluating disability claims . . . th[e Second C]ircuit 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) (citing Johnson, 817 F.2d at 985). 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 she can establish that 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 twelve months. . . ." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (emphasis added).
In addition, a claimant's
physical or mental impairment or impairments [must be] of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] 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 [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]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 her from engaging in any kind of substantial gainful work which exists in the national economy.
The Commissioner uses a five-step process to evaluate SSDI and SSI disability claims. See 20 C.F.R. § 404.1520, 416.920. 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, she is not considered disabled. However, if she 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 her 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 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.
The claimant has the burden of showing that she cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once she has met that burden, the ALJ can deny benefits only by showing, with specific reference to medical evidence, that she 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 she 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 Hunt satisfied Step One because she had not worked since April 1992. (Tr. 14, 20). In Step Two, the ALJ determined that she suffered from a severe impairment, osteoarthritis. (Tr. 15, 20). In Step Three, the ALJ determined that this impairment failed to meet or equal an impairment listed in, or medically equal to one listed in Appendix 1, Subpart P., Regulation No. 4. (Tr. 15, 20). In Step Four, the ALJ determined that Hunt did not have the RFC to perform her past relevant work as department store clerk/cashier. (Tr. 18, 21). In Step Five, the ALJ found that Hunt possessed the RFC to perform light work which was only limited by her non-exertional limitations with respect to stooping and crouching. (Tr. 19, 21). Consequently, he found Hunt not disabled and denied benefits. (Tr. 21). C. Substantial Evidence — Treating Physician Rule
"Tr.()" refers to the page of the Administrative Transcript in this case.
The ALJ found Hunt not disabled only with respect to her SSDI and her SSI claim prior to her fifty-fifth birthday. He did find her disabled after that date with respect to SSI. (Tr. 22). Hunt does not appeal the latter part of the decision.
Hunt argues that the ALJ's decision is unsupported by substantial evidence. Her contention that the ALJ disregarded the opinion of her treating physician lacks merit and has no support in the record. Generally, the opinion of a treating physician is given controlling weight if it is based upon well-supported, medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); see Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998). When the Commissioner fails to give the treating physician's opinion controlling weight, he must consider several factors, including the duration of the patient-physician relationship, the reasoning accompanying the opinion, and the opinion's consistency with other evidence. See 20 C.F.R. § 404.1527(d)(1)-(6), 416.927(d)(1)-(6).
While Hunt uses "physicians" in her heading, her argument refers to a single physician, Dr. Rush.
Moreover, the "ultimate finding of whether a claimant is disabled and cannot work is 'reserved to the Commissioner.'" Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted). "That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions." Id. at 133. Thus, a treating physician's disability assessment is not determinative. Id. Furthermore, where the evidence of record includes medical source opinions that are inconsistent with other evidence or are internally inconsistent, the ALJ must weigh all of the evidence and make a disability determination based on the totality of that evidence. 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2).
Hunt claims that the ALJ failed to give reasons for disregarding her treating physician's opinion. She seeks to invoke the "treating physician" rule by claiming that the ALJ "refused to give controlling weight to Dr. Rush's observations that [she] is totally and permanently disabled." Pl.'s Br. at 15, Dkt. No. 10 (emphasis added). The record is devoid of any evidence that Dr. Rush ever made such observations. A careful review of Dr. Rush's treatment notes reveals that he never opined that Hunt was suffering from total or permanent disability. (Tr. 149-57, 173-79). Moreover, he never prepared a written report to the effect that Hunt was disabled. Thus, since Dr. Rush never opined that Hunt was disabled, the ALJ could not have disregarded a non-existing opinion (or give reasons for disregarding it). Moreover, as discussed below, the ALJ also gave consideration to the doctor's objective findings in assessing Hunt's condition and functional capacity. Therefore, Hunt's reliance on the treating physician rule is misplaced.
Parenthetically, the only instance the word "disability" is mentioned in Dr. Rush's treatment notes is when he describes Hunt's stated intention to file for benefits. (Tr. 153).
Hunt also argues that the ALJ's decision is unsupported by the medical record. There is no support for this contention. The ALJ's determination is supported by the findings of Hunt's treating physicians.
In August 1995, Dr. Rush noted that Hunt had osteoarthritis, demonstrated on facets of her lumbar spine and knees, which was chronic and stable. She had a full range of motion (ROM). (Tr. 149).
In April 1996, he noted full ROM of the neck, with no palpable abnormalities. (Tr. 150). In July, Hunt complained of low-back and knee pain. Dr. Rush found no edema or venous distention, full ROM in the knees, no pain with hip rotation, and negative straight leg raising. (Tr. 151). In August, he noted that her arthritic pain had improved with medication. X-rays showed moderate arthritic changes in her left knee with no evidence of fracture, and her right knee was normal. (Tr. 156). She had full ROM in the knees, and no effusions were noted. (Tr. 151).
In June 1997, Hunt complained of pain in her joints and neck and swollen feet. Dr. Rush noted full ROM in the shoulders, elbows, knees, and ankles, with no reflex abnormalities. (Tr. 153). He also found no inflammatory signs that might suggest rheumatism. (Tr. 154). Cervical spine X-rays revealed minimal degenerative disc disease with mild osteoarthritic changes. X-rays of the right elbow and left foot were negative. (Tr. 157).
In July, Dr. Rush noted that Hunt "walk[ed] with an obvious antalgic gait but demonstrate[d] full ROM in her knees." (Tr. 155). In December, straight left leg raising produced posterior thigh discomfort, but reflexes were normal. There was no joint swelling and neck ROM was normal. Dr. Rush assessed degenerative joint disease and possible mild diffuse gouty arthritis. (Tr. 176). In February 1998, Hunt showed no active joint inflammation, and her gout had improved. (Tr. 177). In April, she had full ROM of the left knee, with no heat, swelling, or deformity. While she had some tenderness in her lower back, it was chronic and stable. (Tr. 176).
Hunt appears to argue that the ALJ's decision is erroneous because he failed to include Dr. Rush's notation that she walked with an antalgic gait. The term "antalgic" merely indicates that Hunt had assumed a gait intended to lessen her pain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 90 (28th ed. 1994). It does not constitute substantial evidence of disability. Moreover, as the Commissioner points out, the doctor qualified this observation by stating that Hunt had full ROM in her knees.
In June 1997, Hunt complained of diminished strength and tingling in her right hand, as well as diminished sensation in her fifth and part of her fourth finger. After a nerve conduction study in August, Dr. VanEenenaam (orthopedic surgeon) indicated some slowing of the ulnar nerves across the elbow and entrapment of the median nerve at the wrist. (Tr. 184-86). However, neck motion did not affect the symptoms, and ulnar nerves at the elbow were stable. (Tr. 186). Although the doctor indicated that surgical decompression might be warranted if the condition worsened, he decided to "watch" the symptoms for six months. In February 1998, the symptoms had not changed, and the doctor's plan to "watch" Hunt's status did not change, and he recommended postural exercises. (Tr. 186).
The ALJ's determination is also supported by the consulting physician's findings. In August 1997, Dr. Kasulke reported normal motor, sensory, and reflex functions in both upper and lower extremities, except for slightly decreased sensation in the fifth right finger. (Tr. 159). There was no evidence of muscle atrophy or anatomical deformity. ROM was only slightly limited in the lumbosacral and hip areas. Hunt had no difficulty moving around the examination room, and had a normal gait. Moreover, X-rays of her lumbar spine and left hip were normal. (Tr. 159-60).
The ALJ's determination is also supported by Hunt's RFC assessment, which is consistent with the findings of the treating and consulting physicians. In September 1997, Dr. Bostic, a consulting physician, found that Hunt could occasionally lift twenty pounds, frequently lift ten pounds, could stand, walk, and sit for six hours each, and push or pull without limitation. (Tr. 166). She found that Hunt could occasionally climb, balance, and stoop, but could not kneel, crouch, or crawl. There were no other visual, communicative, environmental, or manipulative limitations. (Tr. 167-69). She based this assessment on the diagnosis of obesity and osteoarthritis of the lumbosacral and cervical spine, left hip, and knee; Hunt's essentially negative X-rays; her normal gait and ability to move around the exam room without difficulty; and the absence of neurological abnormalities or severe motor limitations. (Tr. 170). In December, Dr. Siddiqi, a second consulting physician, concurred with those findings. Therefore, based on the above record, the ALJ's determination is supported by substantial evidence.
Hunt's contention that there was no basis for the RFC assessment is misplaced. See Pl.'s Br. at 9.
Hunt's last two arguments overlap, in part. She argues that the ALJ's RFC determination is deficient because he failed to make specific findings. In this context, she contends that the ALJ failed to give proper weight to her testimony about her pain and physical limitations. First, the record shows that the ALJ's findings are clearly present in the decision. The ALJ considered the objective medical evidence from Drs. Rush, VanEenenaam, and Kasulke. (Tr. 15-17). The decision also included the RFC assessment by Drs. Bostic and Siddiqi. (Tr. 18). Based on the above, the ALJ found that Hunt was able to carry twenty pounds occasionally and ten pounds frequently; sit, stand and walk for six hours; and was unable to stoop and crouch. (Tr. 18).
Hunt argues as part of this point that the ALJ erred by classifying her as a "person approaching advanced age." Instead, she claims that this is a borderline situation where the ALJ should have considered her a "person of advanced age" under 20 C.F.R. § 404.1565(b) and found her disabled on that basis. This argument lacks merit. As the quoted section indicates, the Commissioner will not mechanically apply the age categories in borderline cases where the claimant is within a few days to a few months from reaching an older age category. § 404.1565(b). However, when Hunt's insured status expired, she was more than eight months away from reaching "advanced age," and as the Commissioner points out, this period is not considered "borderline." Compare Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (seven months not borderline); Russel v. Bowen, 856 F.2d 81, 84 (9th Cir. 1988) (seven months not borderline); Barrett v. Apfel, 40 F. Supp.2d 31, 39 (D.Mass. 1999) (nine months not borderline) with Kane v. Heckler, 776 F.2d 1130, 1132-33 (3d Cir. 1985) (forty-eight days borderline); Davis v. Shalala, 883 F. Supp. 828 (E.D.N.Y. 1995) (three months borderline); Hill v. Sullivan, 769 F. Supp. 467, 471 (W.D.N.Y. 1991) (three months borderline). One court has noted an "Appeals Council Interpretation" defining "borderline" as six months. Russell v. Comm'r Soc. Sec., 20 F. Supp.2d 1133, 1134-35 (W.D.Mich. 1998).
The ALJ also properly considered Hunt's allegations of pain and functional limitations. 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).
In this case, the ALJ considered multiple factors in assessing Hunt's complaints. Hunt testified that she read, went shopping, vacuumed, and did light cleaning, dishes, and laundry. (Tr. 17, 39-43). The ALJ also noted that Hunt had not stopped working in 1992 due to any impairment, but in order to care for her husband Moreover, he indicated that Hunt had reported some of her current complaints several years before the alleged onset of her disability. The ALJ also noted that the medical evidence did not support Hunt's complaints of pain and limitations. As already discussed, the objective medical evidence supported the ALJ's RFC determination. As such, it did not corroborate Hunt's subjective symptoms. Based on the above, the ALJ did not err in his evaluation of Hunt's subjective symptoms.
After careful review of the entire record, and for the reasons stated, this court finds that the Commissioner's denial of benefits was based on substantial evidence. 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.