Opinion
02 Civ. 925 (MBM)
December 2, 2003
MICHAEL w. MCCARTHY, ESQ., Center for Disability Advocacy Rights, Inc New York, NY, for Plaintiff
JAMES B. COMEY, ESQ., New York, NY, for the Southern District of New York
SUSAN D. BAIRD, ESQ., New York, NY, for Defendant
OPINION AND ORDER
Yousef Eltayyeb challenges a determination by the Commission of Social Security that he is ineligible for disability insurance benefits on the ground that he was not disabled between February 1, 1993, and June 30, 1997. He sues pursuant to 42 U.S.C. § 405 (g) and § 1383(c) (3) (2000). Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons stated below, the Commissioner's motion is granted, and the complaint is dismissed.
I.
Yousef Eltayyeb was born on May 3, 1953, in Jordan, where he attended school through the sixth grade. (Administrative Record ("R.") 24-25) He moved to the United States in 1978 and speaks some English. (R. 24) He was employed as a housekeeper by Kaiser Hospital from 1978 to 1989 and by U.C. Davis Medical Center from 1990 to early 1993. (R. 26, 76) His duties at both hospitals included cleaning patient rooms and taking out garbage. (R. 26, 76) These tasks required him to stand or walk for eight hours a day, and at times he needed to stoop, kneel, crouch, and handle large objects. (R. 76) Eltayyeb stopped working by February 1, 1993. (R. 26, 76) He claims that he has been unable to work since then because of various ailments. (R. 26, 30, 31, 36, 75) Although he met the special insured status requirements of the Social Security Act on February 1, 1993, Eltayyeb does not dispute that he continued to meet those requirements only through June 30, 1997. (R. 14)
At the hearing, Eltayyeb claimed that he stopped working in 1992, (R. 26) but his Disability Report and earnings report confirm that he worked through early 1993. (R. 69, 76)
On February 11, 1999, Eltayyeb filed an application for disability insurance benefits with the Social Security Administration ("SSA"), stating that he had been disabled since February 1, 1993, because of depression, blindness in his right eye, past drug and alcohol use, a dislocated shoulder, and foot ulcers. (R. 65, 75) At the time of that filing, Eltayyeb explained that these problems limited his ability to work because he could not walk more than a few blocks without getting tired. (R. 75) The SSA denied his application (R. 39, 43-46), and that decision was affirmed after Eltayyeb requested reconsideration. (R. 41, 48, 51-52) Eltayyeb then requested a hearing before an administrative law judge. (R. 54)
On December 28, 1999, a hearing was held before Administrative Law Judge Louis V. Zamora ("the ALJ"), and Eltayyeb appeared with a representative. (R. 21) Eltayyeb testified that he suffered from the following ailments: back pain, right eye blindness, mental health problems, a cyst on his right foot, a heart problem, knee pain, a stomach problem, a hand problem, a broken finger, daily headaches, and left eye weakness. (R. 26, 27, 29, 30, 31, 36) He stated that he was able to go for walks during the relevant period (R. 31) but was unable to work because he was "sick all the time." (R. 26) Eltayyeb further testified that he was drinking "a lot" of alcohol before June 1997 and smoking marijuana whenever he could afford it. (R. 31-33) He informed the ALJ that he had been treated for his health problems at North Central Bronx Hospital ("North Central Bronx"), Riverdale Mental Heath Center ("Riverdale"), and St. Joseph's Medical Center ("St. Joseph's"), and said that he had seen Dr. Richard Granal for his foot problems. (R. 27-29) Eltayyeb could not recall the names of any of the doctors he saw in California (R. 33-34), where he lived until mid-1994. (R. 428)
After the hearing, the ALJ subpoenaed Eltayyeb's medical records from North Central Bronx, Riverdale, and St. Joseph's. (R. 205-301; 302-461; 462-73) The ALJ could not locate Dr. Granal, but Eltayyeb reported in February 2000 that the doctor had retired and could not obtain his records. (R. 204) The North Central Bronx records show that Eltayyeb visited the hospital often between September 1994 and June 30, 1997, seeking treatment for chest pain (R. 223, 226, 237-38, 239, 242, 261), a cyst on his left hand (R. 225, 253), epigastric discomfort and dyspepsia (R. 226, 244, 247, 255, 258, 261, 263), back pain (R. 241, 242), and diarrhea. (R. 250) The Riverdale records indicate that Eltayyeb was treated for substance abuse and major depression for several months in 1995 (R. 398-450) and again from August 1996 to July 1998. (R. 358-91) The St. Joseph's records show that Eltayyeb visited that facility once in October 1996, complaining of chest pains. (R. 464)
After reviewing all of the evidence in the case, the ALJ issued a decision on May 25, 2000, finding that Eltayyeb was "not eligible for benefits due to the material factor of substance abuse during the period from February 1, 1993 to June 30, 1997." (R. 14) The ALJ first concluded that Eltayyeb's drug and alcohol addiction, right eye blindness, and mental disorder constituted severe impairments between February 1, 1993, and June 30, 1997. (R. 11) The ALJ noted that the medical evidence did not contain any complaints of knee pain, a foot cyst, or left eye weakness during the relevant period, and he found that Eltayyeb's stomach problems did not limit his ability to perform "a full range of exertional activities." (R. 11) The ALJ observed also that Eltayyeb's subjective complaints about conditions other than drug and alcohol addiction were not fully credible in light of the medical evidence and Eltayyeb's testimony at the hearing. (R. 14) After describing all "of the medical evidence in the record (R. 11-13), the ALJ found that Eltayyeb's mental disorder and right eye blindness would not have been disabling during the relevant period if Eltayyeb had not been abusing drugs and alcohol. (R. 11) The ALJ stated: "[I]f the claimant were not drug and alcohol dependent during the period at issue, he would have retained the residual functional capacity to perform simple work not requiring binocular vision." (R. 13) In addition, he found that Eltayyeb would have been able to perform his past relevant work as a cleaning person — simple work performed at the medium exertional level — if not for his substance abuse. (R. 13-14) The ALJ concluded that Eltayyeb was disabled for the entire period at issue (R. 11), but that substance abuse was a material factor in causing that disability. (R. 14) Because Section 105 of Public Law 104-121 bars benefits to those disabled by substance abuse, Eltayyeb was ineligible for disability benefits. (R. 14)
Eltayyeb does not challenge these findings.
Eltayyeb appealed the ALJ decision to the SSA Appeals Council, and his request for review was denied on December 7, 2001. (R. 4-5) He then filed the present action on January 14, 2002.
II.
An ALJ decision to deny disability benefits should be set aside only when it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted).
Under the Social Security Act, a claimant may receive disability benefits if he establishes that he has a disability. 42 U.S.C. § 423(a)(1)(D). An individual is considered disabled for the purposes of the Act if he has an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). However, a claimant shall not be considered disabled "if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C).
SSA regulations outline a five-step process that the Commissioner must use in evaluating a disability benefits claim. Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002). "In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a `severe impairment,' (3) that the impairment is not one that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." Id. The claimant bears the general burden of proving that he has a disability that prevents him from continuing his past work, and the burden then shifts to the Commissioner to show that the claimant could perform some other gainful work in the national economy. Id.
In this case, the ALJ applied the necessary analysis and made the following findings: (1) Eltayyeb had not worked since February 1, 1993; (2) Eltayyeb's drug and alcohol addiction, right eye blindness, and mental disorder constituted "severe" impairments; (3) none of Eltayyeb's impairments met or equaled the level of severity of an Appendix 1 impairment; and (4) Eltayyeb was disabled between February 1, 1993, and June 30, 1997, because of his drug and alcohol addiction but would have retained the residual functional capacity to perform simple work activities not requiring binocular vision, including his past relevant work as a cleaner, if not for his substance abuse. (R. 11-15)
Eltayyeb alleges that the ALJ made the following errors in determining that he was not entitled to disability benefits. First, Eltayyeb asserts that the ALJ improperly concluded that his mental illness was not disabling in the absence of his substance abuse. (Plaintiff's Response to Defendant's Motion for Judgment on the Pleadings and Cross Motion for Judgment on the Pleadings ("Pl. Cross Mot.") at 13-18) Second, Eltayebb claims that, when assessing his residual functional capacity, the ALJ overlooked his "severe" back, stomach, and chest pain, his anxiety, and his paranoia. (Pl. Cross Mot. at 18-19) Finally, Eltayebb asks in the alternative that the case be remanded so that newly discovered evidence about his depression may be considered. (Pl. Cross Mot. at 19-20)
III.
According to Eltayyeb, the ALJ finding that his mental disorder would not have been disabling if not for his concurrent substance abuse is based on legal error and is not supported by substantial evidence because (1) the ALJ did not determine whether his mental disorder would be disabling in the absence of substance abuse; (2) the ALJ lacked substantial evidence to find that Eltayyeb was drug and alcohol dependent; (3) the ALJ lacked substantial evidence to find that Eltayyeb's mental health problems were not disabling in the absence of substance abuse; and (4) the ALJ failed to develop the record in this case. (Pl. Cross Mot. at 13-18)
As discussed above, a claimant is not considered disabled for the purposes of the Social Security Act if alcoholism or drug addiction would be a contributing factor material to the Commissioner's determination that the claimant is disabled. 42 U.S.C. § 423(d)(2)(C). When the record contains medical evidence of substance abuse, the Commissioner should evaluate which of the claimant's "current physical and mental limitations . . . would remain if [he] stopped using drugs or alcohol and then determine whether any or all of [these] remaining limitations would be disabling." 20 C.F.R. § 404.1535 (b)(2) (2003). If the remaining limitations would not be disabling, then drug addiction or alcoholism is a contributing factor material to the determination of disability. 20 C.F.R. § 404.1535 (b)(2)(i). When the record reflects drug or alcohol abuse, the claimant bears the burden of proving that substance abuse is not a contributing factor material to the disability determination. See Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999); Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000); Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001);Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001).
Eltayyeb contends that he "need not prove that his disability would exist regardless of drug or alcohol usage; he need show only that it is not possible to determine the extent of his non-alcohol related impairments." (Pl. Cross Mot. at 17) In support of this proposition, Eltayyeb cites a 1996 Social. Security teletype and an unpublished district court opinion from Washington that, to date, has never been cited by another court. See Pratt v. Apfel, No. C99-0002L, 2000 WL 1466099, at *2 (W.D. Wash. July 5, 2000) ("[W]here it is not possible to determine the extent of the impairments that would remain if claimant were to abstain from drug abuse or alcoholism, a finding of `not material' is appropriate."). Even if this statement of the law were correct, it has no application here because, as discussedinfra, it was possible for the ALJ to determine the extent of Eltayyeb's non-alcohol related impairments.
Eltayyeb first claims that the ALJ failed to follow relevant legal standards because "the ALJ did not determine the extent to which Eltayyeb's mental impairments might exist and/or remain disabling independent of Eltayyeb's episodic marijuana and alcohol use." (Pl. Cross. Mot. at 15) However, the ALJ specifically found (1) that Eltayyeb's mental disorder constituted a severe impairment, and (2) this impairment would not have been disabling if Eltayyeb were not abusing drugs and alcohol during the relevant period. (R. 11) Accordingly, the ALJ did make the necessary findings on these issues.
Eltayyeb next argues that the ALJ's only basis for finding drug and alcohol addiction was plaintiff's own statements, which he claims are insufficient to establish substance abuse in the absence of any corroborating medical evidence. (Pl. Cross Mot. at 14-16) Assuming,arguendo, that Eltayyeb is correct about the type of proof required for a finding of substance abuse, his argument still fails because the medical evidence in the record indicates that Eltayyeb had a medically determinable substance abuse disorder. Doctors at Riverdale Mental Health Center diagnosed Eltayyeb with alcohol dependence and marijuana abuse in 1995 (R. 430) and with substance abuse in 1996. (R. 373) These diagnoses, even if informed in part by Eltayyeb's statements to doctors about his consumption of drugs and alcohol, amount to substantial medical evidence supporting the ALJ's finding of substance abuse in this case.
Eltayyeb contends also that there is no substantial evidence to support the ALJ's conclusion that Eltayyeb's depression would have subsided but for his substance abuse. (Pl. Cross Mot. at 16) However, the record contains substantial evidence adequate to support the ALJ's finding that Eltayyeb's mental health problems would not have been disabling if not for his drug and alcohol abuse.
To begin with, the record supports the conclusion that Eltayyeb's substance abuse contributed to his psychological problems by depressing his mood and increasing his social isolation and paranoia. Eltayyeb's short psychiatric hospitalization in Jordan in 1994 occurred after "[h]e had been drinking heavily and began having ideas about big and little people in his head, and hearing noises." (R. 428) During his initial interview at Riverdale in December 1994, Eltayyeb complained of severe depression and anxiety, and claimed that he spent his days "walking the streets, drinking, smoking marijuana and brooding over his life." (R. 418) He also explained that his second ex-wife would not permit him to visit their children because of his drinking (R. 419), and admitted spending up to $400 per month on marijuana, even though the drug "makes him very paranoid at times." (R. 421) In January 1995, Dr. Elman reported that Eltayyeb "has times when he feels afraid, paranoid and doesn't trust anyone, especially when he has been smoking marijuana and drinking" (R. 428), and that he was preoccupied with not seeing his children. (R. 430) In February 1995, Dr. Elman concluded that Eltayyeb "would very much benefit from treatment to address both his severe depression and alcohol abuse." (R. 459) However, these possible benefits were never realized because Eltayyeb terminated his 1995 treatment at Riverdale due to "lack of funds," (R. 370) even though he continued to drink and smoke marijuana whenever he had the money. (R. 32-33, 370) In August 1996, Riverdale staff noted that Eltayyeb's complaints included depression, loneliness, and isolation, but they identified his "problems to be treated" as: (1) using drugs and alcohol to avoid emotional distress, (2) continued use of drugs and alcohol, and (3) compliance with disability benefits procedure. (R. 372-73) This evaluation plainly shows that Eltayyeb's therapists believed that his depression and isolation stemmed in large part from his substance abuse, and it further suggests Riverdale staff expected Eltayyeb's symptoms of depression to subside absent substance abuse. In November 1996, Riverdale social worker Christine MacDonald wrote that Eltayyeb "appeared less depressed and more focused" after being sober for three weeks, although she noted that he was still smoking marijuana. (R. 384) In a 1999 report created for the State Office of Temporary and Disability Assistance, Dr. Elman explained that Eltayyeb's problems "include alcohol and marijuana abuse, which exacerbate depression." (R. 331) Taken together, these medical reports all support the ALJ's conclusion that Eltayyeb's drug and alcohol use contributed to his mental health problems.
Although Eltayyeb claims that there is no causal connection between his mental problems and his substance abuse because his depression allegedly predated his substance abuse and persisted at the same levels "in spite of a marked decline in use and prolonged periods of abstinence" (Pl. Reply Memo, at 7), this contention is not supported by the evidence in the record. Eltayyeb began drinking the same year he became overtly depressed (R. 417, 421), and he started using marijuana one year later. (R. 421) His drinking increased in 1992 or 1993 (R. 426), approximately the same time he stopped working. (R. 26, 69, 76) Eltayyeb's medical records from during and after the relevant period show that his substance abuse did not decrease over time: in September 1994, Eltayyeb drank six to 12 beers per day (R. 236); in December 1994, he smelled of alcohol during his initial interview at Riverdale and said he spent up to $400 per month on marijuana (R. 417, 421); in May 1995, he admitted to continued substance abuse (R. 435); in July 1996, he drank and used marijuana daily when he could afford it (R. 370); in February 1997, he was smoking marijuana twice per week (R. 384); in July 1997, he was using marijuana one to three times per week and, drinking alcohol once a week (R. 383); in October 1997, he was smoking marijuana three times per week (R. 382); in January 1998, he was drinking six to seven beers a day (R. 221); in April 1998, he was drinking and smoking marijuana twice a week (R. 381); in early 1999, he was drinking five to six beers a day and smoking marijuana every two to three hours (R. 219); in May 1999, he was smoking marijuana daily and drinking alcohol four to five times a day (R. 312); at the ALJ hearing in December 1999, he admitted that he had last smoked marijuana three or four weeks before (R. 32); and two weeks after the ALJ hearing on January 10, 2000, he told doctors at North Central Bronx that he had consumed six shots of liquor and three beers the day before. (R. 210) From 1996 through 1998, Eltayyeb periodically informed his therapists that he had stopped consuming drugs or alcohol, but he always began using again within a few months. (R. 380-85) Although Eltayyeb told Dr. Cicarell in April 1999 that his alcohol dependence ended in May 1998 (R. 135), his Riverdale therapists reported in July 1998 that Eltayyeb's alcohol use was ongoing (R. 358), and in May 1999 Eltayyeb informed Riverdale staff that he was drinking four to five times a day. (R. 312)
The record also supports the ALJ's conclusion that Eltayyeb's mental health problems were not disabling on their own. Eltayyeb became depressed in 1989 (R. 417) and attempted suicide that same year (R. 421), but he continued to work as a housekeeper through early 1993 (R. 69, 76), which suggests that his mental disorder did not prevent him from working. In 1995, Dr. Elman found that Eltayyeb's attention, concentration, insight, judgment, and impulse control were fair, and his memory and ability to abstract were intact. (R. 430) She also concluded then that Eltayyeb suffered from moderate impairment in most mental work-related areas, which affected but did not preclude his ability to function; only in Eltayyeb's performance of complex tasks did Dr. Elman identify a severe impairment seriously affecting his ability to function. (R. 460) In 1996, Dr. Elman again noted that Eltayyeb's attention and insight were fair, his memory was intact, and his judgment and impulse control had "improved over past in terms of decreased drinking." (R. 379) In June 1999, after the relevant period, Dr. Elman stated that Eltayyeb had "decompensated significantly" but noted that he was able to perform activities of daily living because he was able to take public transportation, shop, and cook for himself. (R. 327) At this time, Dr. Elman observed that Eltayyeb, when stable, was able to perform basic forms of social interaction and simple or detailed duties with instructions. (R. 328)
These medical reports all support the ALJ's conclusion that Eltayyeb "would have been capable of performing simple work not requiring binocular vision" during the relevant period if he were not drug and alcohol dependent prior to June 30, 1997. (R. 14) Although Dr. Elman stated in June 1999 that Eltayyeb's symptoms "at this point" were "not conducive to employment," Eltayyeb's condition had by then evolved to include auditory hallucinations (R. 327); such hallucinations were not evident during Eltayyeb's 1995-98 treatment at Riverdale (R. 379-85, 435-36), although Eltayyeb did hear noises in Jordan in 1994 after drinking heavily. (R. 428) Importantly, the June 1999 report did not express an opinion about Eltayyeb's ability to work between February 1, 1993, and June 30, 1997; Dr. Elman wrote only that Eltayyeb's symptoms were not conducive to employment "at this point" in 1999. In December 1999, Dr. Elman informed the ALJ that "[Eltayyeb's] ability to function in a work setting is quite impaired due to depression and anxiety," (R. 353) but again, there is no indication that her evaluation was retrospective. Because the ALJ obtained many Riverdale documents that evaluated Eltayyeb's mental health between February 1, 1993, and June 30, 1997, Dr. Elman's 1999 reports about Eltayyeb's condition are relevant primarily for determining Eltayyeb's capabilities in that later year. See Vitale v. Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999) ("While the existence of a pre-existing disability can be proven by a retrospective opinion, such an opinion must refer clearly to the relevant period of disability and not simply express an opinion as to the claimant's current status."). In light of all the evidence in the record, I find that the ALJ had substantial evidence to support his conclusion that Eltayyeb's mental health difficulties would not have prevented him from performing simple work between February 1, 1993, and June 30, 1997, if not for his concurrent substance abuse.
Even in her June 1999 report, Dr. Elman noted that "[i]ssues pertaining to [Eltayyeb's] marijuana and alcohol abuse are to be further addressed as these affect his recompensation." (R. 327)
I note also that this report does not contradict the ALJ's finding that Eltayyeb's mental disorder qualified as a severe impairment but was not disabling; even if Eltayyeb's ability to work had been "quite impaired," he could have nonetheless retained the residual functional capacity to perform his past work.
Finally, Eltayyeb argues that the ALJ did not develop the record fully in this case because the ALJ did not contact Dr. Elman for her opinion about whether Eltayyeb's mental health problems would have persisted at disabling levels even if he were not using drugs and alcohol. (Pl. Cross Mot. at 16-17) When evidence from a claimant's treating physician or psychologist is inadequate to support a determination of the claimant's disability status, the ALJ should obtain additional information from that medical source. 20 C.F.R. § 404.1512(e). However, in this case the ALJ obtained over 100 pages of records from Riverdale pertaining to Eltayyeb's treatment there (R. 302-461), and Dr. Elman also submitted two medical reports in late 1999 to explain Eltayyeb's then-current condition, limitations, and remaining capabilities. (R. 343-46; R. 349-53) As discussed above, the record contained substantial evidence to support the ALJ's conclusion that Eltayyeb's mental health problems would not have been disabling in the absence of substance abuse. Accordingly, the ALJ did not err by failing to solicit Dr. Elman's retrospective opinion on the specific question of whether Eltayyeb's mental health problems would have persisted between February 1, 1993, and June 30, 1997, if he stopped using drugs and alcohol during that period. See Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (finding that ALJ did not fail to develop record by not specifically requesting a retrospective assessment from treating physicians about onset of claimant's disability when the ALJ had already obtained reports from these physicians that were adequate for a determination as to disability).
IV.
Eltayyeb next argues that the ALJ determination should be reversed because the ALJ did not properly consider all of his ailments. (Pl. Cross Mot. at 18) In particular, Eltayyeb contends that the ALJ overlooked his back pain, stomach pain, chest pain, anxiety, and paranoia when determining his residual functional capacity. (Pl. Cross Mot. at 18-19) According to Eltayyeb, he was disabled as a result of these ailments, and the ALJ lacked substantial evidence for finding otherwise.
In evaluating a claim for disability benefits, an ALJ should consider those impairments that are raised either by the claimant or by the evidence. 20 C.F.R. § 404.1512(a). Although Eltayyeb did not list back pain, stomach pain, chest pain, anxiety, or paranoia in his Disability Report, the evidence in the record was sufficient to have alerted the ALJ to the presence of these alleged impairments. However, contrary to Eltayyeb's contentions, it is apparent that the ALJ did consider Eltayyeb's back pain, stomach pain, chest pain, anxiety, and paranoia in determining Eltayyeb's residual functional capacity. First, the ALJ discussed Eltayyeb's stomach problem — gastroesophogeal reflux disease — and concluded that it was not a severe impairment because "[t]he evidence does not demonstrate that this condition would limit the claimant's ability to perform a full range of exertional activities." (R. 11) Then, in describing Eltayyeb's medical history between February 1, 1993, and June 30, 1997, the ALJ referred to plaintiff's repeated visits to North Central Bronx Hospital and St. Joseph's Medical Center complaining of back pain (R. 242), epigastric discomfort (R. 245), and chest pain. (R. 226, 242, 257, 261, 465) He noted also that Eltayyeb reported feeling afraid and paranoid (R. 11) and having a history of anxiety. (R. 12) Because the ALJ accurately recounted relevant evidence of back pain, stomach pain, chest pain, anxiety, and paranoia in his decision, it is plain that; the ALJ considered this evidence in concluding that, "[b]ased on all the evidence, . . . if the claimant were not drug and alcohol dependent during the period at issue, he would have retained the residual functional capacity to perform simple work not requiring binocular vision." (R. 13)
The next question is whether there is substantial evidence, in light of Eltayyeb's reported pain, anxiety, and paranoia, to support the ALJ's determination that Eltayyeb retained the residual functional capacity to perform simple work at a medium exertional level, as would be required by his past relevant work. (R. 13-14) For the reasons stated below, I find that there was.
First, Eltayyeb's subjective complaints of back pain and chest pain, which the ALJ found not fully credible (R. 14), are insufficient to support a finding of disability because the record contains no objective medical evidence of any impairments that might have caused the pain. The subjective experience of pain can support a finding of disability, but only when medical signs and laboratory findings show that the claimant has a medical impairment that could reasonably be expected to produce the pain. Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); 20 C.F.R. § 404.1529(a); 42U.S.C. § 423(d)(5)(A). Here, none of Eltayyeb's doctors diagnosed any impairment that could reasonably be expected to produce back or chest pain. When Eltayyeb, complained of chest pain during the relevant period, doctors at North Central Bronx observed that he had musculoskeletal pain (R. 224, 226, 261), but thorough testing revealed no underlying problems with plaintiff's chest. (R. 291, 292, 293, 470) Eltayyeb identifies only two doctor visits during the relevant period where he sought treatment for back pain, both during a two-week period in the fall of 1994. (Pl. Cross Mot. at 11; R. 239-41, 242-43) Neither visit produced a diagnosis of an underlying medical impairment that could reasonably be expected to produce back pain. Because there are no medical signs or laboratory findings showing that Eltayyeb had a medical impairment that could reasonably have been expected to produce either chest or back pain, "the absence of such findings precludes a determination of disability grounded on subjective pain" for chest or back pain. Snell, 177 F.3d at 135.
The ALJ also had substantial evidence to support his finding that Eltayyeb's gastroesophageal reflux disease — the source of his stomach pains — would not limit his ability to perform "a full range of exertional activities." (R. 11) Eltayyeb has offered no subjective evidence that his stomach pain limited his residual functional capacity in any way. In his Disability Report, Eltayyeb did not list any stomach ailments or pains when asked, "What are the illnesses, injuries or conditions that limit your ability to work?" (R. 75) At the hearing, Eltayyeb mentioned his stomach ailment only once, telling the judge, "My knees hurt me. I have a stomach problem and I am taking the medicine. I have it in here." (R. 30) Notably, Eltayyeb did not mention any stomach pain, even though he alluded to knee pain in the same statement. Even now, Eltayyeb does not allege that his stomach pain had any identifiable effect on his residual functional capacity, but only that his stomach problems "continue to plague him" (Pl. Cross Mot. at 12), and that the ALJ did not assess the effect of his stomach pain on his ability to work. (Pl. Cross Mot. at 18-19) Further, none of the objective medical evidence in the record suggests that Eltayyeb's stomach problems had any effect on his residual functional capacity. Because none of the evidence in the record indicates that Eltayyeb's stomach pain limited his ability to work in any way, the ALJ had substantial evidence to support his finding that Eltayyeb's stomach problems had no effect on his residual functional capacity.
The ALJ also had substantial evidence to support his characterization of Eltayyeb's mental disorder as "major depression" without also finding the presence of an anxiety-related disorder or a paranoid disorder. (R. 16-17) Although Eltayyeb sometimes felt anxious (R. 418, 424) or paranoid (R. 421, 430), his doctors at Riverdale consistently diagnosed major depression or dysthymic disorder, not anxiety or paranoia. (R. 373, 392, 399, 430) Further, nothing in the ALJ's decision suggests that the ALJ neglected to consider all of Eltayyeb's symptoms, including his feelings of anxiety and paranoia, when he determined that Eltayyeb's mental disorder was a severe impairment but concluded that Eltayyeb retained the capacity to do simple work. As discussed in Part III, supra, the ALJ had substantial evidence to support this finding.
"The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs for most of the day more days than not for at least two years." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 376 (4th ed. 2000)
For the above reasons, I find that the ALJ did consider Eltayyeb's back pain, stomach pain, chest pain, anxiety, and paranoia in making his determination of disability. I also find that the ALJ had substantial evidence to support his conclusion that, even with these ailments, Eltayyeb retained the residual functional capacity to perform simple work at a medium exertional level.
V.
Finally, Eltayyeb asks this court to order a Sentence 6 remand to enable the ALJ to consider "new evidence" in this matter. (Pl. Cross Mot. at 19-20) Eltayyeb seeks to introduce a September 13, 2002, letter from Dr. Elman and Riverdale social worker Carmen Cuevas-Burke, in which they state:
[Eltayyeb's] current abstinence from marijuana and the presence of ongoing symptoms [of depression] indicate that the depression occurs in the absence of substance abuse (this can also be applied to alcohol use, which has been decreased to occasional use — once every couple of weeks and, at times, months). . . . Although Mr. Eltayyeb's symptoms have been alleviated with medication, therapy and abstinence from harmful substances, he is greatly susceptible to becoming symptomatic and will be dependent on medication for an indefinite period of time in order to remain somewhat stable and out of risk of harming himself.
(Letter from Lynn Elman and Carmen Cuevas-Burke, September 13, 2002) Eltayyeb contends that this letter is "highly probative" because it shows that his depression persists even when he is not abusing drugs and alcohol.
A court "may at any time order additional evidence to be taken before the Commissioner of Social Security, 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). To satisfy the requirements of this provision, Eltayyeb must show that (1) the evidence is new and not merely cumulative; (2) the evidence is material, and (3) good cause existed for his failure to present this evidence earlier. Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). To be material, the evidence must be both relevant to the claimant's condition during the time period for which benefits were denied, and probative. Id. "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."Id.
Because the Commissioner agrees that the September 13, 2002, letter is new evidence, (Defendant's Memorandum of Law in Opposition to Plaintiff's Cross-Motion at 5) I assume arguendo that this letter is new and not cumulative. However, even if new, the letter is not material. Dr. Elman and Cuevas-Burke assert only that Eltayyeb suffers from depression that is independent of his substance abuse; this conclusion is in complete accordance with the ALJ's finding that Eltayyeb's mental disorder — major depression — was a severe impairment. The letter does not contend that Eltayyeb's depression makes him unable to work, and it does not otherwise contradict any of the ALJ's findings. Accordingly, because the letter is entirely consistent with the ALJ's determination, there is no reasonable possibility that the letter would have influenced the ALJ to decide Eltayyeb's application differently. Because the letter is not material evidence, remand for consideration of this letter is not warranted.
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For the reasons stated above, I find that the ALJ decision was in accordance with the law and supported by substantial evidence. Eltayyeb's motion for judgment on the pleadings is denied, the Commissioner's motion is granted, and the complaint is dismissed.SO ORDERED.