Opinion
01 Civ. 0186 (KMW) (AJP)
July 11, 2001
REPORT AND RECOMMENDATION
Pro se plaintiff Hector F. Morel brings this action, pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny him disability and Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 10-11.)
For the reasons set forth below, the Commissioner's motion should be granted.
PROCEDURAL BACKGROUND
On July 9, 1997, plaintiff Hector F. Morel applied for Social Security SSI and disability benefits, alleging an inability to work since June 10, 1994. (Administrative Record filed by the Commissioner ["R"] 81-83.) Morel alleged that he was unable to work due to back pain, which prevented him from lifting and bending. (E.g., R. 85.) Morel's applications were denied initially (R. 40-48) and on reconsideration (R. 52-59). At Morel's request (R. 60), a hearing was held before an administrative law judge ("ALJ") on January 8, 1999. (R. 21-36.)
On July 10, 1999, the ALJ issued his decision finding that Morel was not disabled. (R. 9-20.)
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Morel's request for review on September 29, 2000. (R. 4-5.) This action followed.
FACTS
Morel's Hearing Before the ALJ
On January 8, 1999, a hearing was held before ALJ Kenneth J. Scheer. (R. 21-36.) Morel testified through a Spanish language interpreter. (R. 23-24.) At the time of the hearing, Morel was fifty-one years old and living with his two daughters, ages ten and twelve. (R. 26-27.) Morel was born in San Marco on May 1, 1948 and arrived in the United States in August 1977. (R. 27.) Morel had an eighth grade education. (R. 28.)
Morel told the ALJ at the beginning of the hearing that he spoke "no" or "a little" English (R. 23, 27) and accepted the ALJ's suggestion that the hearing be translated into Spanish for him (R. 24), but later in the hearing Morel testified that he understands "lots of things" in spoken and written English (R. 27, 33) and can write "lots of words" in English (R. 28).
The ALJ, through the interpreter, reminded Morel of his ability to obtain an attorney, and Morel stated that he wanted to go ahead with the hearing without an attorney. (R. 24-25.)
Morel worked from 1982 until July 1997 part-time at a grocery store, where his duties included unloading merchandise, stocking shelves and occasionally helping at the cash register. (R. 29-30, 110, 122.) In the five years prior to the grocery store job, Morel worked at a laundry, a cleaners and a restaurant. (R. 30.) Morel stopped working in July 1997 (R. 30) and was on public assistance thereafter (R. 29).
Morel testified that he stopped working in July 1997 due to his back pain. (R. 30.) He told the ALJ that "both [his] legs get numb from the top to the bottom" and that sometimes he needs to scratch the soles of his feet, but he cannot feel them. (R. 31.) Morel complained of pain "twenty-four hours a day" and testified that sometimes he has to "get up and walk around the apartment because [he] cannot stand it laying [sic] down." (R. 32.) Morel reported that he "cannot sit for long," nor can he stand for long periods without a break. (R. 34.) Morel stated that he uses a heating pad and takes medication for pain relief. (R. 32.)
On an ordinary day, Morel testified that he walks his daughters to school in the morning (if it is very cold outside, he drives them), does some reading and cooks for his daughters "whenever [he] can." (R. 33-34.) He goes to church with his daughters when he feels well. (R. 34.) Morel brought a friend to the hearing and stated that "sometimes [the friend is] the one who does the shopping for me." (R. 35.) Morel told the ALJ several times that his doctors said his back problem is "very serious." (R. 31, 33.)
The Medical Evidence Before the ALJ
The medical evidence before the ALJ included records from Montefiore Medical Group for January 1997 through January 1999. (R. 161-85, 187-90, 221-23, 226-31, 233-46); a telephone report by Dr. Leonard Conger to the New York State Department of Social Services Office of Disability Determinations, transcribed August 1, 1997 (R. 191-92); a medical report by Dr. Michael Dubin dated July 6, 1998 (R. 201-07); two Physical Residual Functional Capacity Assessments dated August 17, 1997 and August 25, 1997 (R. 193-200, 208-15); a disability worksheet dated August 5, 1998 (R. 216-20); and a medical report by Dr. Mario Mancheno dated April 20, 1999 (R. 247-50).
Treating Physician's Records
In August 1997, one of Morel's treating doctors, Dr. Leonard Conger, reported that when he first saw Morel on November 16, 1993, Morel complained of "low back pain which he said prevented him from working either in a standing or sitting position, and [Morel] was therefore trying to get SSI." (R. 191.) Dr. Conger gave Morel some exercises to do, and did not see Morel again until April 6, 1994. (R. 191.) At that time Morel again told Dr. Conger that he "was still complaining of low back pain and wanted a letter for SSI." (R. 192.) Morel visited Dr. Conger a year later in April 1995, complaining of low back pain and dysuria. (R. 192.) Urinalysis, however, was negative. (R. 192.) Dr. Conger reported that he had "no idea on what basis this patient is seeking 'disability.'" (R. 192.)
Dysuria is "painful or difficult urination." Dorland's Illustrated Med. Dictionary 560 (29th ed. 2000).
Morel was treated at the Montefiore Medical Group from January 1997 through at least January 1999. (R. 161-85, 187-90, 221-23, 226-31, 233-46.) On February 20, 1997, Morel's treating physician, Dr. Jose Castellanos, provided Morel with a note excusing him from work for two weeks due to low back pain. (R. 182.) Dr. Castellanos referred Morel to Dr. Michael L. Swerdlow, a Montefiore neurologist, for evaluation. (See R. 166.) On March 26, 1997, Dr. Swerdlow described Morel as "awake, alert, [and] cooperative," and observed that motor testing was normal, straight leg raising was negative, and Morel had no weakness or loss of sensation. (R. 166.) Dr. Swerdlow concluded that "Mr. Morel's exam is normal" (R. 167), although he believed that Morel might have an L4,5 disk or spine problem and possibly an element of sponydylolisthesis (id.). Dr. Swerdlow suggested that Morel undergo an MRI and opined that Morel would be a good candidate for either physical therapy or perhaps an epidural steroid injection. (R. 167.)
Spondylolisthesis is "forward displacement . . . of one vertebra over another, usually of the fifth lumbar over the body of the sacrum or of the fourth lumbar [L4] over the fifth [L5]." Dorland's Illustrated Med. Dictionary 1684.
On May 30, 1997, Morel underwent an MRI of his lumbosacral spine. (R. 168.) The MRI revealed degenerative disc disease at L4-L5 with a "tiny" disc herniation at L5-S1 and central bulge at L4-L5. (R. 168.) Congenital spine stenosis was noted. (R. 168.) There was no evidence of compression of the nerve root or sac. (R. 168.) Dr. Castellanos reviewed the MRI results with Morel on June 3, 1997. (R. 164.) On July 3, 1997, Morel reported a decrease in back pain with the application of hot or warm water. (R. 163.) Dr. Castellanos prescribed medication and suggested that Morel return in four to six weeks for follow-up.(R. 163.)
Spinal stenosis is a narrowing of the vertebral canal caused by encroachment of bone upon the space. Dorland's Illustrated Med. Dictionary 1698.
Morel next visited Dr. Castellanos on January 6, 1998. (R. 187.) Point tenderness was noted, and Dr. Castellanos prescribed medication. (Id.) Upon his return to Montefiore Medical Group on July 6, 1998, Morel saw Dr. Michael Dubin, who concurred with Dr. Castellanos' finding of point tenderness and noted decreased range of motion, but found that Morel had no neurological deficits. (R. 201-03.) Dr. Dubin determined that Morel could stand or sit for up to six hours per day but should avoid prolonged standing or sitting for longer than six hours (R. 204), and that Morel should not lift more than five or ten pounds (R. 203-04).
Morel visited a physical therapist on August 17, 1998 and again on September 23, 1998. (R. 225-27). Both therapists noted point tenderness in the lumbosacral spine and prescribed modalities such as hot/cold packs, electric stimulation and massage, as well as various strengthening and stretching exercises. (R. 226-27.)
Morel underwent a second MRI of his lumbosacral spine on November 21, 1998. (R. 222.) The clinical indication was "questionable disc herniation" at L5-S1. (Id.) There was no evidence of significant facet disease or ligamentous hypertrophy, nor was there any evidence of spinal stenosis. (R. 222.) On December 4, 1998, Morel visited Montefiore's Neurosurgery Clinic, where point tenderness was again reported and the doctor noted that an MRI confirmed "degenerative disc changes." (R. 235.)
A facet is a small plane surface on a bone. Dorland's Illustrated Med. Dictionary 642.
Ligamentous hypertrophy is enlargement or overgrowth of the band of tissue that connects bones. Dorland's Illustrated Med. Dictionary 859, 990.
Consultative Medical Records
Morel was examined by Dr. Mario Mancheno at Kings-M.D. Medical Services on April 20, 1999. (R. 247-49.) Dr. Mancheno reported that Morel was "in no acute distress" and had "no difficulty raising from chair, dressing, undressing," nor any difficulty getting on and off the examining table or lying down. (R. 247.) Morel's gait was steady and his posture was good. (R. 247.) An x-ray revealed discogenic disorder of the lumbosacral spine, but no fracture or dislocation. (R. 248, 250.) There were no signs of asymmetry, muscle wasting or atrophy, nor any scoliosis, rigidity or spasticity. (R. 248.) Dr. Mancheno concluded that Morel had only "mild" impairment with respect to lifting and carrying; standing and walking; pushing and pulling; and sitting. (R. 248.)
The record also contains two "Residual Physical Functional Capacity Assessments" completed by state disability review doctors. (R. 193-200, 208-15.) An assessment by Dr. S. Imam dated August 25, 1997, found that Morel could frequently lift ten pounds and occasionally lift twenty pounds, stand for six hours in an eight-hour workday and sit for six hours in an eight-hour workday. (R. 194.) His ability to push and/or pull was deemed "unlimited." (R. 194.) The other assessment was completed by Dr. C. Levit on August 17, 1998. (R. 215.) Dr. Levit concluded that Morel could sit or stand about six hours (R. 209.) Dr. Levit concluded that Morel could do "medium" work. (R. 214.)
Although the signature in the record is illegible (R. 200), the Government identifies this doctor as Dr. S. Imam. (Gov't Br. at 5.)
The ALJ's Decision
ALJ Kenneth L. Scheer denied Morel's applications for SSI and disability benefits in a written decision dated July 10, 1999. (R. 9-20.) The ALJ found that Morel had not engaged in any substantial gainful activity since December 2, 1997. (R. 13, 19.) The ALJ determined that Morel had back pain, which is a "severe" impairment. (R. 14.) The ALJ found that Morel has "no impairment which meets the criteria of any of the listed impairments descri bed in Appendix I of the Regulations ( 20 C.F.R. Part 404, Subpart P Appendix I)." (R. 14.) Nor did any of Morel's treating or examining physicians mention any findings equivalent in severity to the criteria of any listed impairment. (R. 14-17.)
The ALJ next determined Morel's residual functional capacity under 20 C.F.R. § 404.1545(a), that is, the range of work activities a claimant can perform despite his impairment. (See R. 14.) After a thorough review of Morel's medical records (R. 14-17), the ALJ concluded that Morel "retains the residual functional capacity to perform the exertional demands of light work, or work which requires maximum lifting of twenty pounds and frequent lifting of ten pounds; some light jobs are performed while standing, and those performed in the seated position often require the worker to operate hand or leg controls ( 20 C.F.R. § 416.967)." (R. 17.)
Finally, the ALJ considered whether Morel retained the residual functional capacity to return to his past relevant work. (R. 17.) Morel's past employment required him to lift objects weighing more than fifty pounds, stand for prolonged periods and do frequent bending and reaching bending and reaching. (R. 17.) Because Morel can perform no more than light work, the ALJ determined that Morel is incapable of resuming his former employment. (R. 17.) However, the ALJ stated that Morel "retains the capacity to make an adjustment to work which exists in significant numbers in the national economy." (R. 18.) The ALJ therefore concluded that Morel is not disabled within the meaning of the Social Security Act. (R. 18-19.)
ANALYSIS
I. THE APPLICABLE LAW
A. The Definition of Disability
A person is considered disabled for Social Security benefits purposes 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), 1382c(a)(3)(A); see, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The combined effect of all impairments must be of such severity that the person
See also, e.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 6 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 535 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven; v. Apfel, 58 F. Supp.2d 172, 180 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *5 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 422 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Burris v. Chater, 94 Civ. 8049, 1996 WL 148345 at * 2 (S.D.N.Y. Apr. 2, 1996); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at * 4 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995); Francese v. Shalala, 897 F. Supp. 766, 769 (S.D.N.Y. 1995) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at * 6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995).
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); see, e.g., Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo v. Chater, 142 F.3d at 79.
See al so, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 6; Jones v. Apfel, 66 F. Supp.2d at 535; Craven v. Apfel, 58 F. Supp.2d at 180-81; Vega v. Commissioner, 1998 WL 255411 at * 6; Pickering v. Chater, 951 F. Supp. at 422-23; Burris v. Chater, 1996 WL 148345 at * s; DeJesus v. Shalala, 1995 WL 812857 at * 4; Walzer v. Chater, 1995 WL 791963 at *6.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see, e.g., Brown v. Apfel, 174 F.3d at 62; Carroll v. Secretary of Health Human Servs., 705 F.2d 638, 642 (2d Cir. 1983).
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 6; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Vega v. Commissioner, 1998 WL 255411 at * 6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at * 6; DeJesus v. Shalala, 1995 WL 812857 at *4.
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Shaw v. Chater, 211 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d at 1038; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983). "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345 at *3.
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 7; Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at * 5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.") (internal quotations alterations omitted); Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 97 Civ. 6936, 1998 WL 603151 at *7 (S.D.N.Y. Sept. 11, 1998) (Peck, M.J.); Vega v. Commissioner, 1998 WL 255411 at* 6; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at * 2; Walzer v. Chater, 1995 WL 791963 at *6; Francese v. Shalala, 897 F. Supp. at 770; Coleman v. Shalala, 895 F. Supp. at 54; 42 U.S.C. § 405(g).
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 7; Vega v. Commissioner, 1998 WL 255411 at* 6; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); accord, e.g., Shaw v. Chater, 221 F.3d at 131; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 61; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74; Perez v. Chater, 77 F.3d at 46.
See al so, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 7; Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 8; Vega v. Commissioner, 1998 WL 255411 at * 6; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
However, the Court will not defer to the Commissioner's determination if it is "the product of legal error." E.g., Duvergel v. Apfel, 2000 WL 328593 at * 7; see, e.g., Tejada v. Apfel, 167 F.2d at 773 (citing cases).
See also, e.g., Jones v. Apfel, 66 F. Supp.2d at 536; Craven v. Apfel, 58 F. Supp.2d at 181; Fernandez v. Apfel, 1998 WL 603151 at * 8; Vega v. Commissioner, 1998 WL 255411 at * 6; Burris v. Chater, 1996 WL 148345 at * 3; Francese v. Shalala, 897 F. Supp. at 770.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291 (1987). The Second Circuit has articulated the five steps as follows:
[1] First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. [2] 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. [3] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the 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. [4] 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. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, e.g., Shaw v. Chater, 221 F.3d at 132; Curry v. Apfel, 209 F.3d at 122; Brown v. Apfel, 174 F.3d at 62; Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; Balsamo v. Chater, 142 F.3d at 79-80; Schaal v. Apfel, 134 F.3d at 501; Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 7; Jones v. Apfel, 66 F. Supp.2d at 536-37; Craven v. Apfel, 58 F. Supp.2d at 181-82; Vega v. Commissioner, 1998 WL 255411 at * 7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at * 2; Walzer v. Chater, 1995 WL 791963 at * 6; DeJesus v. Shalala, 1995 WL 812857 at * 4; Francese v. Shalala, 897 F. Supp. at 769; Coleman v. Shalala, 895 F. Supp. at 53-54.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Curry v. Apfel, 209 F.3d at 122; Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675 F.2d at 467.
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 8; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at * 7; Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *3; Walzer v. Chater, 1995 WL 791963 at * 7; DeJesus v. Shalala, 1995 WL 812857 at * 5; Francese v. Shalala, 897 F. Supp. at 770.
B. The Treating Physician Rule
The "treating physician rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
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.20 C.F.R. § 404.1527(d)(2); see, e.g., Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998). Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well-supported" by other medical evidence), the Court should consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2); see, e.g., Shaw v. Chater, 221 F.3d at 134; Clark v. Commissioner, 143 F.3d at 118; Schaal v. Apfel, 134 F.3d at 503. The commissioner's current "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
II. THE GOVERNMENT'S MOTION SHOULD BE GRANTED, WITHOUT THE NEED TO APPLY THE FIVE-STEP SEQUENCE TO MOREL'S CLAIM, BECAUSE MOREL'S COMPLAINT IS CONCLUSORY AND HE DID NOT FILE PAPERS OPPOSING THE GOVERNMENT'S MOTION
See al so, e.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 8 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Jones v. Apfel, 66 F. Supp.2d 518, 537 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 182 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at * 7-8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Sanchez v. Chater, 964 F. Supp. 133, 138 (S.D.N.Y. 1997); Toro v. Chater, 937 F. Supp. 1083, 1091 (S.D.N.Y. 1996); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at * 7 (S.D.N.Y. Sept.26, 1995) (Kaplan, D.J. Peck, M.J.).
See al so, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 8; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at * 8; Walzer v. Chater, 1995 WL 791963 at *7.
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 8; Jones v. Apfel, 66 F. Supp.2d at 537; Craven v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at * 8; Sanchez v. Chater, 964 F. Supp. at 138; Walzer v. Chater, 1995 WL 791963 at *7.
In a proceeding to judicially review a final decision of the Commissioner, the plaintiff bears the burden of establishing the existence of a disability. See, e.g., Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981) ("It is well established that the burden of proving disability is on the claimant."); Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Adams v. Flemming, 276 F.2d 901, 903 (2d Cir. 1960) ("The controlling principles of law upon [judicial] review [of a Social Security denial] are well established . . ., namely, 'the burden of sustaining the claim for benefits is on the claimant' and 'The findings of the Social Security Agency are final and binding if there is a substantial basis for them.'"); Casiano v. Apfel, 39 F. Supp.2d 326, 327-28 (S.D.N.Y. 1999)(Stein, D.J. Peck, M.J.), aff'd mem., 205 F.3d 1322 (2d Cir. 2000); Ortiz v. Shalala, 93 Civ. 3561, 1994 WL 673630 at * 1 (S.D.N.Y. Dec. 1, 1994); Morton v. Heckler, 586 F. Supp. 110, 111 (W.D.N.Y. 1984); Harvey L. McCormick, Social Sec. Claims Proc. § 14:16 (5th ed. 1998) ("In a proceeding to review judicially a final decision of the Commissioner, the plaintiff has the burden of establishing the correctness of his or her contention. The procedure is akin to that in a regular civil appeal under the Federal Rules of Civil Procedure. . . .").
Here, Morel's pro se complaint states only that he should receive Social Security benefits because of "chronic LBP [lower back pain] due to disc herniation." (Dkt. No. 2: Compl. ¶ 4.) Morel has not filed any brief or affidavit opposing the Commissioner's motion for judgment on the pleadings. Thus, Morel does not point to any specific testimony or evidence which he believes the ALJ overlooked, unjustly weighted, or otherwise should have considered, although by submitting new evidence that he is currently disabled, as discussed at pages 17-20 below, Morel implicitly acknowledges that he must do more than state that the ALJ was wrong. Morel's complaint is overly broad and conclusory, and without more, insufficient to defeat the Commissioner's motion for judgment on the pleadings. E.g., Casiano v. Apfel, 39 F. Supp.2d at 328 n. 1 (Court rejects plaintiff's conclusory allegations of disability) ( cases cited therein); Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996) (Court rejects plaintiff's allegations that the ALJ "failed to consider [minor claimant's] parent's testimony as medical evidence, failed to consider all the medical evidence, failed to consider [child's] mother's testimony with respect to the IFA analysis, and failed to render his decision based upon the record as a whole," on the ground that they are "broad and conclusory. She offers no specific testimony or evidence which she believes that the ALJ overlooked and should have considered."); Steiner v. Dowling, 914 F. Supp. 25, 28 n. 1 (N.D.N.Y. 1995) (rejecting plaintiffs' argument that the State's social security regulations are too restrictive as "neither sufficiently explained nor seriously advanced by plaintiffs — providing only a single conclusory paragraph in their Statement of Undisputed Facts . . ., and in their Attorney's Affirmation. . . ."); aff'd, 76 F.3d 498 (2d Cir. 1996); see generally Southern District of New York Local Civil Rule 7.1 ("all motions and all oppositions thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion. . . . Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.").
The only thing Morel submitted in addition to his complaint was a cover letter submitting additional medical records, principally from 2000, i.e., after the ALJ's July 10, 1999 decision. Obviously, those documents are not part of the administrative record.
Evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner. See, e.g., 42 U.S.C. § 405(g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security. . . ."); Carneval e v. Gardner, 393 F.2d 889, 891 n. 1 (2d Cir. 1968) (district court correctly refused to consider materials not properly in administrative record); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 2 n. 6 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Casiano v. Apfel, 39 F. Supp.2d at 330.
See also, e.g., Pennerman v. Apfel, No. 99-CV-3244, 2001 WL 527398 at * 4 (E.D.N Y Apr. 18, 2001) ("It is well-established that '[e]vidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner.'") (quoting Casiano); Castro v. Acting Comm'r of Soc. Sec., 97 Civ. 5364, 1998 WL 846749 at *10 n. 11 (S.D.N.Y. Nov. 5, 1998) (new evidence not considered because "this court is limited in its review to the record before the Commissioner"); Grubb v. Chater, 992 F. Supp. 634, 637 n. 3 (S.D.N.Y. 1998) (new evidence not considered because "[a] court's review of the Commissioner's decision is to be based upon the administrative record"); Madrigal v. Callahan, 96 Civ. 7558, 1997 WL 441903 at * 7 (S.D.N.Y. Aug. 6, 1997) ("in reviewing decisions of the Commissioner, this Court cannot consider new evidence not made part of the administrative record"); Quinones v. Chater, 94 Civ. 6249, 1996 WL 39301 at * 3 (S.D.N.Y. Jan. 31, 1996) ("Evidence not contained in the administrative record may not be considered when reviewing the findings of the Commissioner."); Chiappa v. Secretary of Dep't of Health, Educ. Welfare, 497 F. Supp. 356, 362 n. 4 (S.D.N Y 1980) ("letters, not produced at the hearing, may not be considered in determining whether the record is supported by substantial evidence"). The Court therefore will not consider the newly submitted medical evidence as additional evidence of Morel's disability.
Although the Court cannot consider new evidence, this Court may remand to the Commissioner to consider new evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). The Second Circuit has summarized the three-part showing required by this provision as follows:
"[A]n appellant must show that the proffered evidence is (1) "' new' and not merely cumulative of what is already in the record," and that i t is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show (3) good cause for her failure to present the evidence earlier."
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citations omitted) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).
Accord, e.g., Lisa v. Secretary Dep't of Health Human Servs., 940 F.2d 40, 43 (2d Cir. 1991); DeJesus v. Apfel, 97 Civ. 4779, 2000 WL 1586419 at * 3 (S.D.N.Y. Oct. 24, 2000); Duvergel v. Apfel, 2000 WL 328593 at * 2 n. 6; Pantojas v. Apfel, 87 F. Supp.2d 334, 339 (S.D.N.Y. 2000); Casiano v. Apfel, 39 F. Supp.2d at 331; Hursey v. Apfel, No. 97-CV-4757, 1998 WL 812585 at * 4 (E.D.N.Y. April 27, 1998); Tracy v. Apfel, No. 97-CV-4357, 1998 WL 765137 at * 4 (E.D.N.Y. April 22, 1998); Madrigal v. Callahan, 1997 WL 441903 at * 7-8; Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N Y 1996); Quinones v. Chater, 1996 WL 39301 at * 3; Rosado v. Sullivan, 805 F. Supp. 147, 157 (S.D.N.Y. 1992); Timmons v. Sullivan, 88 Civ. 6612, 1989 WL 156300 at * 8-9 (S.D.N.Y. Dec. 19, 1989).
In this case, the new doctors' evaluations are not material to Morel's claim, because they evaluate Morel's claim as of 2000, more than a year after the ALJ's July 10, 1999 decision in this action (R. 9-20), and therefore are not relevant to Morel's condition during the time period (1997 to early 1999) for which benefits were denied. See, e.g., Pantojas v. Apfel, 87 F. Supp.2d at 339-40 (new evidence did not satisfy materiality requirement; evidence concerning the "subsequent treatment of plaintiff's previously non-disabling condition . . . is not relevant to his condition during the time period for which benefits were denied. In other words, the evidence submitted is not probative of plaintiff's condition during the period covered by the claim."); Casiano v. Apfel, 39 F. Supp.2d at 331-32; Hursey v. Apfel, 1998 WL 812585 at *4 ("To be material, [new] records must be relevant to the claimant's condition during the period for which benefits were denied and must raise a reasonable possibility that the new evidence would have influenced the decision maker to decide the claim differently."); Grubb v. Chater, 992 F. Supp. at 637 n. 3 ("The Commissioner's decision that plaintiff was not disabled covered the period up to the date when the decision was issued by the ALJ — April 26, 1995. The new evidence bears dates from June 1996 through March 1997 and these reports do not appear to relate their findings back to the period in question. Therefore, the plaintiff's new evidence cannot be considered by this Court."); Counterman v. Chater, 923 F. Supp. at 414 ("the [new] evidence submitted by plaintiff fails to meet the standards set forth in Jones" for remand to consider new evidence because, inter alia, "it does not appear relevant to [claimant's] condition during the time period for which benefits were denied"); Rosado v. Sullivan, 805 F. Supp. at 157 (standard for remand to consider new evidence not met because "plaintiff . . . has not made a sufficient showing that the proffered evidence is either 'probative' or 'relevant to [her] condition during the time periods for which benefits were denied,' i.e., on or prior to [the date of the ALJ's decision]"); Timmons v. Sullivan, 1989 WL 156300 at * 9 (plaintiff failed to meet standard for remand to consider new evidence because, inter alia, "[t]he three medical reports submitted, solicited by [plaintiff's] counsel just prior to the filing of [plaintiff's] brief, are not material to the evaluation of [plaintiff's] claim in that they are not relevant to [plaintiff's] condition during the time period for which benefits were denied. These reports evaluate [plaintiff's] condition as of the summer of 1989 a full year to year and one-half later than the [Commissioner's] final decision in this action rendered on March 19, 1988.").
Accordingly, the Court need not remand to the Commissioner to consider this additional evidence. Morel may, however, file a new application for SSI benefits with the Social Security Administration based upon the 2000 medical opinions that he is currently unable to work.
III. APPLICATION OF THE FIVE-STEP SEQUENCE TO MOREL'S CLAIM
For the reasons set forth in Point II above, the Court need not apply the five step sequence to Morel's claims. Even if the Court were to do so, however, the Court would affirm the Commissioner's decision that Morel was not disabled.
A. Morel Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Morel was engaged in substantial gainful activity after December 2, 1997. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510 (1993). The ALJ's conclusion that Morel was not engaged in substantial gainful activity during the applicable time period is not disputed.
See, e.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 9 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at * 8 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at * 7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
B. Morel Had A Severe Physical Impairment That Significantly Limited His Ability To Do Basic Work Activities
The next step of the analysis is to determine whether Morel proved that he had a severe physical impairment or combination of impairments that "significantly limit[ed] [his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out and remembering simple instruction . . . [u]se of judgment . . . [r]esponding appropriately to supervision, co-workers and usual work situations.20 C.F.R. § 404.1521(b)(1)-(5). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
See also, e.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 9 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Craven v. Apfel, 58 F. Supp.2d 172, 183 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at *9 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at * 7 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. Peck, M.J.).
Accord, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 9; Craven v. Apfel, 58 F. Supp.2d at 182; Vega v. Commissioner, 1998 WL 255411 at * 7-8; Pickering v. Chater, 951 F. Supp. at 424; see also, e.g., Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at * 5 (E.D.N.Y. Mar. 19, 1999) ("A finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than a minimal effect on an individual's ability to work.' ") (quoting Social Security Ruling 85-28, 1985 WL 56856 at * 3 (SSA 1985), quoted in Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12 (1987)).
"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosari o v. Apfel, 1999 WL 294727 at * 5 (citing 20 C.F.R. § 404.1520(c)); accord, e.g., Duvergel v. Apfel, 2000 WL 328593 at *9. On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.
See also, e.g., Duvergel v. Apfel, 2000 WL 328593 at * 9; Craven v. Apfel, 58 F. Supp.2d at 183; Vega v. Commissioner, 1998 WL 255411 at * 9; Pickering v. Chater, 951 F. Supp. at 424.
The ALJ found that the evidence supported a finding that Morel has back pain, an impairment that limits his ability to perform the duties required by his past employment. (R. 14.) This finding is not disputed.
C. Morel Does Not Have A Disability Listed in Appendix I of the Regulations
The third step of the five part test requires a determination of whether Morel had an impairment listed in Appendix I of the Regulations. 20 C.F.R. Part 404, Subpart P, Appendix I. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). The ALJ found that Morel's impairments did not meet or equal the severity of any of the listed impairments. (R. 14.) To reach the level of severity necessary for Morel to be considered disabled, his lower back impairment must persist for at least three months despite prescribed therapy and be expected to last twelve months, and must include all of the following: "pain, muscle spasm and significant limitation of motion in the spine" and "appropriate radicular [nerve-related] distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Part 404, Subpart P, Appendix I, 1.05(C).
Accord, e.g., Craven v. Apfel, 58 F. Supp.2d 172, 183-84 (S.D.N.Y. 1999) (Preska, D.J. Peck, M.J.); Vega v. Commissioner of Soc. Sec., 97 Civ. 6438, 1998 WL 255411 at * 5 (S.D.N.Y. May 20, 1998) (Peck, M.J.); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.).
Clinical findings support the ALJ's determination. Morel showed no signs of muscle spasm and demonstrated "full range of motion" in both his upper and lower extremities. (R. 248.) He had "no difficulty arising from chair, dressing, undressing," "no difficulty getting on and off the examining table" and "no difficulty lying down." (R. 247.) Morel was able to flex his spine to seventy degrees in a standing position and could bend laterally (left and right) twenty degrees left and right. (R. 247.) Morel's motor testing was normal (R. 166), and he showed no signs of muscle weakness, wasting or atrophy. (R. 166, 248). Morel's sensory perception and reflexes were normal. (Id.) No evidence of nerve root or sac compression was detected. (R. 168).
Morel also underwent two "Residual Functional Capacity Assessments" completed by state disability review doctors. An assessment by Dr. S. Imam on August 25, 1997 found that Morel could frequently lift ten pounds and occasionally lift twenty pounds, and stand and sit for six hours in an eight-hour workday. (R. 194.) Another assessment, by Dr. C. Levit on August 17, 1998 (R. 215), found that Morel could sit or stand for six hours in a workday, and could occasionally lift fifty pounds and frequently lift twenty-five pounds. (R. 209.) Dr. Levit concluded that Morel could do "medium" work. (R. 214.)
Indeed, none of Morel's treating or examining physicians found that Morel was disabled due to back pain — and the ALJ was entitled to rely on that absence of evidence of disability. See, e.g., Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the [medical] record says, but also on what it does not say"); accord, e.g., Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at * 11 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); Cruz v. Chater, 937 F. Supp. 194, 197 (E.D.N.Y. 1996).
In making his decision, the ALJ also is required to make specific findings as to the claimant's credibility. 20 C.F.R. § 416.929(c)(4); see also Donato v. Secretary of Health Human Servs., 721 F.2d 414, 418-19 (2d Cir. 1983) ("The ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability."); Montes-Ruiz v. Chater, No. 97-6013, 129 F.3d 114 (table), 1997 WL 710607 at *2 (2d Cir. Nov. 14, 1997); Dunn v. Chater, No. 95-6400, 101 F.3d 1392 (table), 1996 WL 387218 at * 2 (2d Cir. July 11, 1996). Here, the ALJ noted that "[t]he claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible." (R. 17.) Although Morel told the ALJ that he is in pain "twenty-four hours a day" (R. 32), Morel reported on more than one occasion that he is able to go shopping, prepare meals, do his own housecleaning, cook for his daughters and walk or drive them to school. (E.g., R. 33-34, 109, 247.) After weighing objective medical evidence, the ALJ, in considering conflicting evidence, was entitled to disregard Morel's subjective estimation of the degree of impairment, in light of the uncontradicted medical evidence from treating and consulting physicians. Pascariello v. Heckler, 621 F. Supp. 1032, 1035-36 (S.D.N.Y. 1985); see also, e.g., Tejada v. Apfel, 167 F.3d 770, 775-76 (2d Cir. 1999); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979); Baladi v. Halter, No. 00-CV-3240, 2001 WL 527406 at * 11 (E.D.N.Y. May 4, 2001) ("[I]t is within the discretion of the ALJ to evaluate the credibility of the claimant's allegations and render an independent judgment in light of the medical findings and other evidence regarding the true extent of such symptomatology."); Ceballos v. Apfel, 99 Civ. 4444, 2001 WL 199410 at * 7 (S.D.N.Y. Feb. 28, 2001); Rodriguez v. Apfel, 96 Civ. 8330, 1998 WL 150981 at *11 (S.D.N.Y. Mar. 31, 1998); Gibbons v. Bowen, 653 F. Supp. 1478, 1481 (S.D.N.Y. 1987).
The Court finds that the ALJ's decision that Morel did not satisfy any Appendix I listing is supported by substantial evidence.
D. Morel Did Not Have The Ability To Perform His Past Work
The fourth prong of the five part analysis is whether Morel had the residual functional capacity to perform his past relevant work. 20 C.F.R. § 404.1520(e). Because Morel's past employment required heavy lifting, prolonged standing and frequent bending and reaching, the ALJ concluded that Morel is incapable of resuming his former employment. (R. 17.) This finding is undisputed.
E. Morel Can Perform Other Work In The Economy
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); see, e.g., Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Vega v. Commissioner, 97 Civ. 6438, 1998 WL 255411 at *10 (S.D.N.Y. May 20, 1998) (Peck, M.J.).
See al so, e.g., Pickering v. Chater, 951 F. Supp. 418, 425 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.); DeJesus v. Shalala, 94 Civ. 0772, 1995 WL 812857 at * 6-7 (S.D.N Y June 14, 1995) (Peck, M.J.), report rec. adopted, 899 F. Supp. 1171 (S.D.N.Y. 1995).
In meeting his burden under the fifth step, the Commissioner ordinarily will make use of the "Grid":
In meeting [his] burden of proof on the fifth step of the sequential evaluation process descri bed above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability.
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fns. omitted); see, e.g., Heckler v. Campbell, 461 U.S. 458, 461-62, 465-68, 103 S.Ct. 1952, 1954-55, 1956-58 (1983) (upholding the promulgation of the Grid); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). "The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Zorilla v. Chater, 915 F. Supp. at 667 n. 2; see 20 C.F.R. § 404.1567(a). Taking account of the claimant's residual functional capacity, age, education and prior work experience, the Grid yields a decision of "disabled" or "not disabled." 20 C.F.R. § 404.1569, 404 Subpt. P, App. 2, 200.00(a).
See also, e.g., Vega v. Commissioner, 1998 WL 255411 at * 10; Pickering v. Chater, 951 F. Supp. at 425.
See also, e.g., Perez v. Chater, 77 F.3d at 46; Vega v. Commissioner, 1998 WL 255411 at * 10; Pickering v. Chater, 951 F. Supp. at 425.
The ALJ determined that Morel "retains the residual functional capacity to perform the exertional demands of light work." (Tr. 17.)
Light work involves a good deal of walking or standing, or, when it involves sitting most of the time, some pushing and pulling of arm or leg controls. It involves 'lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.' To be considered capable of performing a full or wide range of light work, a claimant . . . 'must have the ability to do substantially all of these activities.' [20 C.F.R.] § 416.967(b); see also 20 C.F.R. § 404.1567(b).
Vargas v. Sullivan, 898 F.2d 293, 294 (2d Cir. 1990). Social Security Ruling 83-10 further explains:
See also, e.g., Vega v. Commissioner, 1998 WL 255411 at * 10-11; Pickering v. Chater, 951 F. Supp. at 425 n. 3; Feliciano v. Chater, 931 F. Supp. 215, 220 (S.D.N.Y. 1996), aff'd mem., 108 F.3d 1369 (2d Cir. 1997); McLaughlin v. Chater, No. CV 93-3191, 1996 WL 705281 at * 1 (E.D.N.Y. Nov. 25, 1996); Kornak v. Chater, No. 94 CV 3225, 1996 WL 622187 at * 7-8 (E.D.N.Y. Oct. 22, 1996), aff'd mem., 122 F.3d 1056 (2d Cir. 1997).
Since frequent lifting or carrying requires being on one's feet up to two-thirds of a work day, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour work day. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk.
SSR 83-10, 1983 WL 31251 at * 6 (1983).
See also, e.g., Vega v. Commissioner, 1998 WL 255411 at * 11; Feliciano v. Chater, 931 F. Supp. at 220; McLaughlin v. Chater, 1996 WL 705281 at * 1; Kornak v. Chater, 1996 WL 622187 at *8.
Dr. Levit concluded that Morel could sit for six out of eight hours in a workday, stand for six hours in a workday, and could lift twenty-five pounds frequently and fifty pounds occasionally. (R. 209.) Dr. Imam also found that Morel could sit or stand for six hours a day and lift twenty pounds occasionally and ten pounds frequently. (R. 194.) Morel's treating physicians did not reach a contrary conclusion. For example, Dr. Dubin of Montefiore specifically found that Morel could sit or stand for up to six hours a day and lift five to ten pounds. (R. 203-04.) The ALJ found Morel's claimed inability to work "not entirely credible" in light of the medical evidence and Morel's own statements as to his daily activities. (See R. 17-19.)
Reference to the Grid demonstrates that a person of Morel's age (fifty-one) (R. 27), transferable skills (none, since Morel's last job involved heavy lifting, prolonged standing and frequent bending and reaching, tasks which he can no longer perform) and ability to perform light work is not disabled for purposes of Social Security benefits. See 20 C.F.R. § 404, Subpt. P, App. 2, Secs. 201.00(h), 202.16. Thus, the ALJ's decision that Morel was not disabled for purposes of Social Security benefits is supported by substantial evidence.
CONCLUSION
For the reasons set forth above, the Commissioner's determination that Morel is capable of performing light work and thus was not disabled within the meaning of the Social Security Act is supported by substantial evidence, and the Commissioner's motion for judgment on the pleadings should be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See al so Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).