Opinion
No. 03 Civ. 6448 (SAS).
August 2, 2004
William Gottlieb, Esq., Axelrod and Gottlieb, New York, NY, for Plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, New York, NY. for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Daisy Velasquez brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB"). The Commissioner has moved, and Velasquez has cross-moved, for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
II. BACKGROUND
A. Procedural History
Velasquez, originally proceeding pro se, filed an application for DIB on March 25, 2002. In her application, she alleged that she had been disabled and unable to work since January 2002, due to multiple sclerosis ("MS"), incontinence, mitral valve prolapse, and optic neuritis. After her application was denied, Velasquez requested a hearing before an administrative law judge ("ALJ"). That hearing took place on January 22, 2003. On February 11, 2003, the ALJ issued a decision denying Velasquez's application for benefits. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Velasquez's request for review. She obtained counsel in March 2003, prior to filing this appeal.
See Transcript of the Administrative Record ("Tr."), filed by the Commissioner as part of her Answer, at 58, 66. Although Velasquez initially indicated that she became unable to work due to disability on October 12, 2001, she later amended her date of disability to January 2002. See id. at 28-29, 58.
See id. at 43-45.
See id. at 23.
See id. at 10-18.
See id. at 3-5.
B. Plaintiff's Personal History
Velasquez was born in New York City on June 4, 1961, and was forty-one years old at the time of her administrative hearing. She has two years of college and can read and write English. She lives with her ten-year-old son, Charles, and her mother, Monserrate; Velasquez and her mother share responsibility for taking care of the house.
See id. at 29.
See id. at 36, 57.
See id. at 83-93.
From 1990 to 1995, and again from 1997 to 1999, Velasquez worked as a secretary. In that capacity, she answered phones, assisted at functions, trained new personnel, and performed computer work. In the summers of 1999 and 2001, she was a a recreational leader, often lifting between twenty and fifty pounds in the course of setting up picnic tables and moving recreational equipment. In 1999, Velasquez began work as a paraprofessional, performing clerical work and developing kindergarten lesson plans. On October 12, 2001, she left her job as a paraprofessional "by choice," "not disability." After being denied entry into a public assistance work-study program because of her medical needs, she took the advice of the work-study personnel and applied for DIB.
See id. at 71-75.
Id. at 28.
See id. at 40.
C. Medical Evidence
a. Plaintiff's Symptoms
1. Multiple Sclerosis
Velasquez first experienced a tingling sensation in her legs and hands in December 1982. Since then, she has experienced a number of other symptoms, including fatigue, headaches, back pain, partial blindness, double vision, decreased mobility in her right leg, insomnia, and exhaustion. Velasquez reports difficulty sitting or standing for more than an hour, bathing, and putting on shoes and socks.
See id. at 27, 32, 58.
See id. at 34-35, 38, 79.
See id. at 39, 84.
b. Treating Physician
An MRI of Velasquez's brain taken in December 2000 revealed possible signs of MS. In March 2002, she was hospitalized for a period of seven days under the care of Dr. Andrew Sylvester, a neurologist at St. Luke's-Roosevelt Hospital. Following her hospitalization, Velasquez saw Dr. Sylvester regularly, beginning on April 23, 2002. At her first visit, Dr. Sylvester diagnosed her with MS with symptoms of "impaired balance" and "impaired vision." Her vision was 20/100 in her right eye and 20/20 in her left. In a later report, dated January 13, 2003, Dr. Sylvester conducted a "physical examination, which is, for all practical purposes, normal." He described her condition as "relapsing-remitting multiple sclerosis," concluding that she was "functionally as good as I am" and that "this patient is not disabled."
See id. at 101 (Velasquez's MRI revealed "two ill-defined and rounded white matter hyperintensities which may represent demyelinating plaques."); Encyclopedia of Medicine at 340 (Charles B. Clayman, M.D., et al. eds., Random House 1989) ("Patches of demyelination are the prime feature of multiple sclerosis, a disease with symptoms that include blurred vision, muscle weakness, and loss of coordination.") (italics in original).
See id. at 79, 91, 109.
See id. at 114, 136. Dr. Sylvester indicated in his January 13, 2003, report, that the "frequency of [Velasquez's] visits" was "l x every 3 months," and that she had first visited him "about 1 year" before that report. Id. at 136. Elsewhere, Velasquez described her visits with Dr. Sylvester as "monthly." See id. at 79.
"20/20 vision is a term used to express normal visual acuity (the clarity or sharpness of vision) measured at a distance of 20 feet. If you have 20/20 vision, you can see clearly at 20 feet what should normally be seen at that distance. If you have 20/100 vision, it means that you must be as close as 20 feet to see what a person with normal vision can see at 100 feet." American Optometric Association, 20/20 Vision, at http://www.aoa.org/eweb/DynamicPage.aspx?site=A OastageWebCode=2020Vision (last visited July 27, 2004).
Id. at 136-37.
c. Consulting Physicians
Dr. Jasjit Parwha of K-M.D. Medical Services examined Velasquez on May 7, 2002, on behalf of the Social Security Administration ("SSA"). In his report, Dr. Parwha found Velasquez to be in "no acute distress," noting she "had no difficulty getting on and off of the examination table." He described Velasquez as suffering from a "loss of vision in the left eye off and on and is unable to read because of blurred vision." He found that her vision was 20/50 in the right eye and 20/25 in the left. He also diagnosed her as "not restricted for sitting," but having a "mild restriction for standing and walking" and a "moderate restriction for lifting, carrying, pushing and pulling."
See id. at 122 ("referred by the DDD"); New York State Office of Temporary and Disability Assistance, Division of Disability Determinations ("DDD"), About the Division of Disability Determinations, at http://www.otda. state.ny.us/ddd/ddd_about.htm (last visited July 27, 2004) ("When a person files a disability claim at the Social Security Administration offices for disability benefits, the medical part of the record file is sent to the N.Y.S. Division of Disability Determinations. At DDD, disability analysts and medical consultants review the file to determine if the evidence needed exists to support a disability claim. . . . At times, . . . the disability analyst/medical consultant schedules a further medical examination.").
Id. at 122-24.
In a letter dated May 16, 2003, and addressed "To Whomever It May Concern," Dr. Maureen Cafferty, a physician at the MS Research and Treatment Center at St. Luke's-Roosevelt Hospital, wrote that Velasquez experienced "visual blurriness" as well as "intermittent right leg and arm numbness affecting her balance and gait for a good part of the year." The letter concluded that Velasquez "should be considered for disability long term." The letter is unaccompanied by diagnostic records and makes no reference to specific examinations, tests, or dates of visits.
5/6/03 Letter from Dr. Maureen Cafferty, St. Luke's-Roosevelt Hospital ("Cafferty Let."), Ex. A to Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings ("Pl. Mem."), at 1.
2. Incontinence, Mitral Valve Prolapse, Optic Neuritis
Although the record indicates that Dr. Sylvester prescribed medication for Velasquez's incontinence, there is no objective evidence regarding how her incontinence affected her ability to work. Concerning her mitral valve prolapse, Dr. Jeffrey B. Doskow described Velasquez's condition as "mild" and he expressed "doubt [that] any of her symptoms are related" to that condition. Velasquez's optic neuritis is a visual complication associated with MS, and will be addressed as an aspect of her MS, rather than as a distinct disabling condition.
See Tr. at 63, 79-80. Velasquez does make a subjective allegation that her incontinence interfered with her work. In a questionnaire that asked "how do your . . . conditions limit your ability to work?" Velasquez responded "constantly in the bathroom." Id. at 58.
Dr. Jeffrey B. Doskow, a consulting physician, saw Velasquez on May 4, 2001, apparently on referral from the SSA. His analysis of the test results revealed that "her cardiac work-up was totally negative," and that she was "without any evidence of significant cardiac disease." Id. at 103-04.
Id. at 104.
See id. at 34-35, 94; Encyclopedia of Medicine at 746 ("The cause of optic neuritis often remains uncertain, but most cases are thought to be due to demyelination . . . of the optic nerve fibers, which occurs in multiple sclerosis.") (italics in original).
III. LEGAL STANDARD
A. The Standard of Review
In reviewing a denial of disability benefits, 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." Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." A court may only set aside a Commissioner's determination when it is "based upon legal error or not supported by substantial evidence." As such, this Court's task is limited to determining whether the ALJ's decision is based upon substantial evidence in the record and the correct application of governing legal principles.
42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003) (applying the "substantial evidence" standard to a review of the administrative record).
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks and citations omitted).
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)).
See Rosa, 168 F.3d at 77.
In deciding disability claims, the ALJ must follow a five step process. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if she is not so engaged, the ALJ must determine whether the claimant has a "severe" impairment that significantly limits her physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the Code of Federal Regulations ("Regulations"). If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the claimant has the residual capacity to perform her past relevant work despite her severe impairment. Fifth, if the claimant satisfies her burden of showing that she has a severe impairment that prevents her from performing her past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy.
See 20 C.F.R. § 404.1520.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("the Listings") (Among the fourteen categories of per se disabilities is "Neurological" disorders, which includes MS. However, MS only qualifies as a per se disability under the Listings when accompanied by certain symptoms that have reached a specified level of severity.). The ALJ found that Velasquez's condition was "not severe enough" to meet this criteria. See infra Part IV.
The ALJ determined that Velasquez did not qualify for benefits at the fourth stage. "[T]he claimant is able to do her past relevant work." Tr. at 17.
See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
IV. DISCUSSION
Here, the ALJ determined that Velasquez had "not engaged in substantial gainful activity since her alleged onset [of disability] date." The ALJ concluded that Velasquez had "multiple sclerosis, an impairment considered severe within the meaning of the Regulations but not severe enough to meet or medically equal one of the impairments listed in Appendix 1." The ALJ found that Velasquez retained the residual functional capacity to perform her past relevant work as a paraprofessional and executive secretary, and concluded that Velasquez was not disabled.
Tr. at 14.
Id. at 15.
The term "residual functional capacity" is defined as follows: "Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your residual functional capacity is the most you can still do despite your limitations." 20 C.F.R. § 404.1545(a).
See Tr. at 17.
Velasquez argues that "she was not afforded . . . a full and fair hearing" by the ALJ. In support of this claim, she argues, first, that the ALJ failed to address two of her alleged disabilities, incontinence and impaired balance, second, that the ALJ failed to seek out certain evidence that was necessary to complete the record, and, third, that Dr. Sylvester's January 13, 2003 report, which the ALJ relied upon in reaching his decision, was inaccurate.
Pl. Mem. at 1.
See id. at 4 ("Problems of incontinence and poor balance, mentioned by Velasquez . . . were not discussed" by the ALJ.).
The missing evidence, according to Velasquez, includes her occupational and physical therapy records, additional hospital records, and records from Dr. Cafferty. See id. at 4, 6.
See id. at 13-14.
A. Development of the Record
The Regulations require the SSA to develop a claimant's medical history fully before making a determination that the claimant is not disabled. The ALJ assumes this affirmative duty to develop the record when making a disability determination. In doing so, the ALJ must consider all of the relevant evidence in the record and "may not selectively choose evidence in the record that supports his conclusions."
See, e.g., Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
Castillo v. Apfel, No. 98 Civ. 792, 1999 WL 147748, at *8 (S.D.N.Y. Mar. 18, 1999) (internal quotation marks and citation omitted).
Although the ALJ did not explicitly address Velasquez's incontinence and balance problems, his decision relied extensively on the reports of Dr. Sylvester, who had treated Velasquez for both problems. Evidence of her incontinence and impaired balance therefore was indirectly considered by the ALJ when weighing the findings made by Dr. Sylvester. The fact that the ALJ did not expressly address these conditions in his written opinion was not a failure to accord Velasquez a full and fair hearing.
Velasquez acknowledges that the ALJ relied "especially" upon Dr. Sylvester's reports. See Pl. Mem. at 13.
Nor was any additional evidence necessary for the development of a full record. Occupational and physical therapy records, which Velasquez deems "absent" from the record, are not acceptable medical sources under the Regulations. With respect to Velasquez's hospitalization records, the Commissioner had already learned that no such medical records, beyond what the hospital had already provided, were available. Finally, the failure of the ALJ to consider Dr. Cafferty's letter cannot be considered legal error as the letter falls outside of the time period relevant to this claim. In sum, because the ALJ sufficiently developed the record, Velasquez's first and second claims are dismissed.
Pl. Mem. at 6.
See 20 C.F.R. § 404.1513(d). Therapists' opinions are not "acceptable medical sources" that can be used "to establish whether you have a medically determinable impairment." Id. The Regulations allow a lower level of consideration to be given to these "other sources," but "under no circumstances can the regulations be read to require the ALJ to give controlling weight" to such sources. Id.; see also Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995). In the instant case it is unclear whether Velasquez had been to physical or occupational therapy since the alleged onset of her disability. See Tr. at 39 (ALJ: "Do you still go for physical therapy?" Velasquez: "Well I haven't gone yet because I'm going to change, but I used to go once a week.").
See Tr. at 96.
For this Court to consider evidence that was not available at the time the ALJ made his decision, that evidence must pertain to the period before, not after, the ALJ's decision. See Brown on Behalf of Brown v. Chater, 932 F. Supp. 71, 75 (S.D.N.Y. 1996). The ALJ issued his decision on February 11, 2003, and Dr. Cafferty's letter is dated May 6, 2003. The letter does not purport to address Velasquez's condition prior to February 11, 2003. See Tr. at 13; Cafferty Let. at 1. Accordingly, Dr. Cafferty's letter is not part of the record of this claim.
B. The Treating Physician Rule
An ALJ must give controlling weight to a treating physician's opinion on the nature and severity of a claimant's impairments when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." When a treating physician's opinion is not given controlling weight, the ALJ must apply a series of factors in determining the weight to give such an opinion. These factors include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the opinion's consistency with the record as a whole; and (3) whether the opinion is from a specialist. Under the same Regulations, the ALJ must explain the weight it gives to a treating physician's opinion. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand"
See id.
See 20 C.F.R. § 404.1527(d)(2) ("Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s). . . . We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.").
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).
Although Velasquez disagrees with the opinion of her treating physician, Dr. Sylvester, his opinion was given controlling weight by the ALJ and is entitled to that weight because his findings are well-supported and consistent with other evidence in the record. The support for Dr. Sylvester's findings appear in both his January 13, 2003 report, which relied on MRI data and physical examinations of reflexes, balance, and strength, and his April 2002 report, which provided test results concerning Velasquez's vision, reflexes, motor strength, station/gait, manipulation, sensory status, and mental, communicative, and physical abilities. Dr. Sylvester's opinion is consistent with other evidence in the record, including Dr. Parwha's report. Both Dr. Sylvester's and Dr. Parwha made consistent findings regarding Velasquez's ability to sit, and her restricted abilities to lift and carry, push and pull. While not identical, the two doctors' findings are consistent with one another.
Velasquez described Dr. Sylvester's January 13, 2003 report as "not an accurate description of Ms. Velasquez's ongoing condition." She alleges that Dr. Sylvester examined her when she was unusually healthy: "[I]t may be inferred that Ms. Velasquez's good functional status reflected only a short-term remission of symptoms in an unstable medical course." Pl. Mem. at 13-14.
See Tr. at 136-39.
See id. at 114-21.
See id. at 120, 124.
See, e.g., id. (Dr. Sylvester found that Velasquez was not restricted in her ability to stand and walk, while Dr. Parwha found that her restriction in this area was "mild."). Dr. Parwha and Dr. Sylvester, who both diagnosed Velasquez with visual complications, differed somewhat in the extent of their diagnoses. See supra Part C.l.b-c. Their ultimate conclusions, however, were rather similar: Dr. Sylvester noted "impaired vision," while Dr. Parwha noted "vision has been impaired off and on." Tr. at 114, 124. In her own words, Velasquez answered the ALJ's question about her alleged temporary loss of vision by saying: "I didn't notice I was blind in my eye because . . . the other eye carries your eyesight." Id. at 34.
To the extent that Dr. Sylvester's report conflicts with other evidence in the record, his opinion must control. The bulk of the non-medical evidence in the record consists of Velasquez's subjective statements, which paint a more severe picture of Velasquez's illness than that found in the medical reports. Under the Regulations, such subjective complaints must factor into the Commissioner's ultimate findings: "In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." The ALJ, however, found Velasquez's subjective account to be "not fully credible." Because "it is the function of the Secretary, not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant," and because the ALJ's determination of no disability is supported by substantial evidence, that determination must stand
Tr. at 16.
Aponte v. Secretary, Dep't of Health and Human Servs. of the United States, 728 F.2d 588, 591 (2d Cir. 1984) (quotation marks and citations omitted).
V. CONCLUSION
For the foregoing reasons, defendant's motion for judgment on the pleadings is granted and plaintiff's cross-motion is denied. If Velasquez's condition has indeed worsened since the ALJ issued his opinion on February 11, 2003, as Dr. Cafferty's letter suggests, she is encouraged to reapply for benefits. The Clerk of the Court is directed to close this motion [docket # 6] and this case.
SO ORDERED.