Opinion
01 Civ. 8943 (LBS)
August 21, 2002
MEMORANDUM ORDER
Plaintiff commenced this action, pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the Commissioner of Social Security's denial of his disability insurance benefits. Plaintiff seeks to have the Commissioner's order reversed or to have the case remanded for a new hearing. Defendant's cross-motion seeks to have the Commissioner's decision affirmed. For the following reasons, we grant defendant's cross-motion and dismiss plaintiffs motion.
A. Procedural Background
On April 22, 1998, plaintiff Joseph Mongelli ("plaintiff' or "applicant") filed an application for disability benefits. Tr. 53-55. His application was initially denied and he requested a hearing before an administrative law judge ("ALJ"). Tr. 30; 41. This hearing was held on August 2, 1999, and plaintiff was represented by counsel. Tr. 263; 265-90. On September 11, 1999, the ALJ found that the plaintiff had not been disabled at any relevant time through the date of the decision. Tr. 16-24. On August 8, 2001, the Appeals Council denied plaintiffs request for review, and the ALJ's opinion became the final decision of the Commission. Tr. 5-6.
B. Factual Background
Plaintiff, born on December 1, 1955, worked as a heavy equipment operator from October 1984 to March 1998. On March 14, 1998, plaintiff suffered a heart attack and has since not returned to work. Tr. 261. He was diagnosed with coronary artery disease, status post angioplasty for placement of a stent, and status post anterial wall myocardial infarction. Tr. 205.
Beginning on March 27, 1998, Dr. Erica Jones ("Dr. Jones"), a cardiologist at the New York Hospital-Cornell Medical Center, has followed up with plaintiff's medical care. Tr. 140-42. On that date, Dr. Jones noted his past medical history and heart problems, and she stated that plaintiff should continue with his medication and follow-up tests.Id. On subsequent visits in April and May, plaintiff began to complain of increasing fatigue, particularly as a result of exertion and exposure to heat. Tr. 144.
On May 6, 1998, Dr. Jones determined that he was able to carry a maximum often pounds at a time, walk or stand for up to two hours a day, and sit all day. Tr. 82. She found no signs of significant psychological disorder. Tr. 79-80. On June 24, 1998, she determined that plaintiff should not return to work as a heavy equipment operator until his symptoms had resolved. Tr. 145. On July 15, 1998, Dr. Jones made an evaluation similar to the June 24, 1998 report. Tr. 84-87. Dr. Jones examined and tested plaintiff several more times from September to December of 1998, and plaintiff continued to complain of chest pain, fatigue, and dizziness. Tr. 148.
On January 24, 1999, Dr. Jones reported that plaintiff complained of infrequent chest pain, shortness of breath, fatigue, and anxiety over having another heart attack. Tr. 158. Dr. Jones' amended her evaluation of plaintiff's ability to work to include being capable of only low stress jobs. Tr. 1. 58. Further tests were performed for Dr. Jones on March 2, 1999 that showed trace mitral regurgitation, trace tricuspid regurgitation, and trace pulmonic regurgitation with no aortic regurgitation. Tr. 245.
Another physician, Dr. Jeffrey Levy, examined plaintiff several times between October 1997 and September 1998. Tr. 168-79. In April 1998, plaintiff reported chest discomfort, and in August 1998, he reported brief periods of chest pain. Tr. 175, 176.
On June 20, 1999, in connection with his social security claim, Dr. Bernardo Scheimberg examined plaintiff and completed a mental impairment questionnaire. Tr. 214-21. The diagnosis was adjustment disorder/panic disorder with agoraphobia and stated that plaintiffs highest GAF score in the past year was 40. He assessed as "poor" plaintiffs ability to meet some basic work criteria, such as his ability to maintain regular attendance and be punctual. Tr. 218-20.
The GAF scale is a 100-point scale used to reflect an individual's psychological, social, and occupational functioning. See Defendant's Memo at 6. A score of 40 indicates some impairment in reality testing or communication or major impairment in several areas such as work, school, family, judgment, thinking, or mood. Id.
After the ALJ's September 11, 1999 decision, plaintiff submitted to the Appeals Council some additional medical evidence. Tr. 247-59. This includes a May 18, 2000 report from Dr. Lawrence Baruch; a July 14, 2000 report of an exercise stress test; and two reports dated October 14, 2000 and October 18, 2000 from Dr. Jones. Dr. Baruch's diagnostic impression was of hyperholesterolemia with coronary artery disease, an old anterior wall myocardial infarction, presumed significant systolic dysfunction with New York Heart Association Class III heart failure, and atypical chest pain. Tr. 248. In Dr. Jones' October 18, 2000 report, she indicated that plaintiff could not tolerate employment with even low levels of stress. Tr. 258.
The Appeals Council, in rendering its August 8, 2001 decision, found that the plaintiff's evidence submitted after September 11, 1999 was irrelevant to the question of whether plaintiff was disabled on or before September 11, 1999. Tr. 5. The Appeals Council noted that if plaintiff filed a new application within the next six months of its decision, that application would be assigned a protective filing date of September 28, 1999, the date of plaintiff's request for review of the ALJ's decision. Tr. 6. After oral argument, this Court was advised by the parties that plaintiff did a file a subsequent application "that was denied on March 5, 2002, and plaintiff's request for a hearing is currently pending." Defendant's August 13, 2002 Letter to Judge Leonard B. Sand.
For the purposes of this motion, plaintiff argues that (1) the ALJ's findings are not supported by substantial evidence, and (2) the Commissioner failed to grant due weight to "treating source evidence" timely submitted to the Appeals Council. Plaintiff's Memo 15; 17.
C. Analysis
1. Standard of Review
The Social Security Act provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). See also Richardson v. Perales. 402 U.S. 389, 401 (1971). Substantial evidence, in the context of reviewing decisions of the Commissioner, is defined as" "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' Id. (citations omitted).
To be eligible for benefits, an applicant is disabled when 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 12 months." 42 U.S.C. § 423(d)(1)(A). An individual's physical or mental impairment is not disabling under the Act unless it is "of such severity that he is not only unable to do his previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The applicant bears the burden of showing that his impairment prevents him from returning to his prior type of employment. If that burden is met, the burden shifts to the Secretary to prove the existence of alternate substantial gainful work which the applicant could perform considering physical and mental capabilities, age, education, experience, and training. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). In making a determination as to an applicant's ability to engage in substantial gainful activity, the Commissioner considers objective medical facts and clinical findings; diagnoses and medical opinions of qualified physicians; subjective evidence of pain and disability; and the claimant's age, education, and work history. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983). The Secretary has promulgated a five step sequence to be utilized in evaluating disability claims.
There is a five step process in considering whether an applicant is disabled:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a severe impairment" which significantly limits his physical or mental ability to do basic work activities. 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 I of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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 Secretary then determines whether there is other work which claimant could perform.Barry v. Schweiker 675 F.2d at 467.
2. ALJ'S Finding Is Supported by Substantial Evidence
The Commissioner's September 11, 1999 decision found that plaintiff had a severe impairment that made him unable to return to his past relevant work as a heavy equipment operator, but that he retained the ability to perform sedentary work in a low stress environment. Tr. 23-24. We find that this decision is supported by substantial evidence and we affirm the decision of the Commissioner.
Plaintiff's primary treating cardiologist, Dr. Jones, found on three separate occasions that plaintiff was able to perform all the physical requirements of sedentary work. A vocational expert at the hearing identified three jobs in the economy — dispatcher, surveillance monitor, and document preparer — that plaintiff could perform. Tr. 284-85.
In the January 24, 1999 report, the most recent report before the ALJ's September 11, 1999 decision, Dr. Jones reported for the first time that plaintiff should be limited to low stress work. Tr. 158.
Defendant argues that the ALJ improperly did not grant any credibility to Dr. Scheimberg's report, which found that plaintiff could not engage in sedentary work. Defendant's Memo 18-19. The ALJ found that plaintiff did not have a Global Assessment of 40, nor did he have the limitations suggested by Dr. Scheimberg. Tr. 20. The ALJ wrote that "there are no clinical objective findings supporting [Dr. Scheimberg's] conclusions," and the opinion notes that "claimant has never received psychiatric treatment or medication, and that Dr. Scheimberg has examined the claimant only once at the behest of the claimant's attorney." Tr. 20. Defendant argues that the ALJ is not permitted "to substitute his opinion for a trained, board certified physician." Plaintiff's Memo at 19.
We find no merit to the argument that the ALJ did not properly credit Dr. Scheimberg's report. The weight to be accorded to medical opinions depends on such factors as the nature and duration of the physician-patient relationship, the frequency of the examinations, the supportability of the opinion, and its consistency with other evidence in the record. See 20 C.F.R. § 404.1527(d). In this case, Dr. Jones had been plaintiff's treating physician and examined him numerous times during the relevant period, and she provided detailed reports on plaintiff's condition. The ALJ reviewed the reports of Dr. Jones which found that plaintiff did not show any signs of significant psychiatric impairment. Tr. 80, 85. Dr. Jones found that plaintiff could engage in sedentary work. Tr. 158. On the other hand, Dr. Scheimberg's medical opinion was sought with this litigation in mind, and he only saw plaintiff on one occasion. Faced with these contradictory reports and Dr. Jones' more thorough and long-term evaluation of the plaintiff, we find that the ALJ was justified in crediting Dr. Jones' medical reports.
Plaintiff also argues that the ALJ improperly dismissed plaintiff's subjective complaints of disabling shortness of breath, chest pain, fatigue, and dizziness. Plaintiff's Memo at 17. Plaintiff states that the ALJ selectively cited only that portion of the objective evidence that contradicted claimant's subjective complaints. Plaintiff's Memo at 17-18. While the ALJ noted aspects of the objective medical evidence that contradicted some of plaintiff's subjective complaints and alleged limitations, the ALJ did not state that all of plaintiff's subjective complaints were contrived. Moreover, the ALJ did not dismiss plaintiff's subjective complaints by selectively citing only objective medical evidence. The ALJ also took into account the medical evaluation performed by Dr. Jones — plaintiff's primary treating physician for his heart problems. In its opinion, the ALJ stated that "Dr. Jones also notes that, while the claimant becomes "extremely anxious' whenever he has any symptoms suggestive of "heart' pain, he can perform low stress jobs." Tr. 21 (ALJ's Report). Thus, Dr. Jones did not believe that plaintiff's subjective complaints indicated a condition that prevented him from performing low stress, sedentary work.
In particular, the ALJ took issue with plaintiff's suggestion that he could not perform even a low stress job. Tr. 21. Plaintiff's statements alone cannot establish disability. See Reynoso v. Apfel, 1998 WL 61002, *10 (S.D.N.Y. 1998).
While we make no determination about whether the ALJ was selective in citing the evidence, we note that the ALJ acknowledges medical reports that both support and discredit some of plaintiff's subjective complaints. Tr. 18-23.
For these reasons, we find no merit in plaintiff's argument that the ALJ's findings were not supported by substantial evidence.
3. Evidence Submitted After ALJ Decision
The Second Circuit has found that additional evidence submitted for the first time to the Appeals Council following the ALJ's decision "becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). However, the new evidence to be considered by the Appeals Council must "relate to the period on or before the ALJ's decision." 20 C.F.R. § 404.970(b).
In this case, plaintiff argues that the Appeals Council should have considered plaintiff's July 14, 2000 EKG, and the October 14, 2000 and October 18, 2000 reports of Dr. Jones. Plaintiff's Memo at 15-16. While it may be accurate to say that these reports support plaintiff's argument that he was disabled in 2000, this evidence has no bearing on whether plaintiff was disabled on or before September 11, 1999, nor does plaintiff attempt to make a connection between the 2000 reports and the relevant timeframe. Because this evidence was not relevant to the question before the ALJ, we find no merit to plaintiff's argument that this additional evidence should have been considered by the Appeals Council.
In its August 8, 2001 notice, the Appeals Council advised plaintiff that he should file a new application in order to obtain a determination as to whether he was disabled at any time after September 11, 1999. Tr. 5-6. After oral argument, this Court learned that plaintiff filed such application and that it is currently pending. See Plaintiff's August 13, 2002 Letter to Judge Leonard B. Sand.
D. Conclusion
For the aforementioned reasons, we find that ALJ's findings were supported by substantial evidence and that the ALJ was correct in not considering the medical examinations that took place after September 11, 1999 and were related to the subsequent time period. The decision of the Commissioner is affirmed and plaintiff's complaint is dismissed. The Clerk of the Court is directed to close this case.