Opinion
No. 97 Civ. 0210 (MGC).
January 4, 2001.
RUBY ROGERS, plaintiff Pro Se, 408 West 150th Street, Apt. 36, New York, N.Y. 10031
MARY JO WHITE, United States Attorney, Southern District of New York, 100 Church Street, 19th Floor, New York, N.Y. 10007, Attorney for Defendant, BY, Susan D. Baird, Assistant United States Attorney
OPINION
Ruby Rogers brings this action pursuant to 42 U.S.C. § 405 (g), seeking review of a final determination by the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Security Income ("SSI") Rogers alleges an inability to work since September 1, 1985 due to non-insulin dependent diabetes, hypertension, shortness of breath and weakness of the legs. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). After Rogers initially failed to respond to defendant's motion, I notified her that if she failed to respond by August 14, 2000, the motion would be decided based on the administrative record and defendant's motion papers. Rogers still has not filed any response to defendant's motion. For the reasons discussed below, defendant's motion for judgment on the pleadings is denied and plaintiff is granted judgment on her claim.
While Rogers' complaint alleges an inability to work since September 1, 1995, her application for SSI is dated October 12, 1994 and in her application, Rogers claims that her disability began on September 1, 1985. Accordingly, I treat the 1995 date as a typographical error.
A. Procedural History
Plaintiff filed an application for SSI benefits on October 12, 1994. The application was denied initially, and on reconsideration. Plaintiff then requested a hearing which was held on October 31, 1995. Plaintiff attended that hearing with a representative from Harlem Legal Services. On February 14, 1996, the Administrative Law Judge ("ALJ") issued a decision in which he concluded that plaintiff had not engaged in substantial gainful activity since October 12, 1994 and had severe non-insulin dependent diabetes mellitus, hypertension and a heart murmur. However, the ALJ found that these impairments did not constitute an impairment or combination of impairments listed in, or medically equal to one listed in, 20 C.F.R. Part 404, Subpart P, Appendix 1. Additionally, the ALJ determined that Rogers had the residual functional capacity to perform a full-range of light work pursuant to 20 C.F.R. § 416.967. Turning to Grid Rule 201.28 (20 C.F.R. Part 404, Subpart P, Appendix 2), the ALJ determined that there were jobs available for a person of plaintiff's age, education and work experience. The ALJ thus concluded that Rogers was not disabled at any time through February 14, 1996. This became a final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on October 22, 1996.
B. Statement of Facts
1. Plaintiff's Testimony
At the hearing, Rogers testified that she was born on June 26, 1944, and had completed the tenth grade. Plaintiff had no past relevant work history. She reported that she worked for a year before she had children, but stopped working in order to care for her children. (Tr. 26-28).
Plaintiff stated that she was unable to work because of diabetes, hypertension, chest pains, shortness of breath, fatigue, dizziness, and weakness and pain in her knees and legs. (Tr. 28-29). Plaintiff also reported numbness and stiffness in her hands, and she complained of headaches. (Tr. 34-35)
In an October 1994 report, plaintiff stated that she was taking Micronase for diabetes and Meclizine for dizziness. (Tr. 65). In an undated form filed when plaintiff requested a hearing, she reported taking Prinivil and Glyburide. (Tr. 80). In an October 30, 1995 report, plaintiff stated that she was taking Glynase for diabetes, aspirin for her heart and Prinivil for her high blood pressure. (Tr. 100). At the hearing on October 31, 1995, plaintiff testified that her blood pressure and diabetes had been stabilized by her medications and that she was not taking any special medication for her dizziness. (Tr. 29). She also stated that she had been taking Advil for the pain in her legs and knees and for the numbness and stiffness in her hands. (Tr. 29-30, 34).
Plaintiff testified that during the day she took care of her two children, occasionally walking them to and from school and helping them with their homework. (Tr. 31). She also spent time reading books and watching television. (Tr. 68). She testified that she had no restrictions on sitting, that she was able to take public transportation, that she could walk or stand up to an hour a day and that she could lift up to ten pounds. (Tr. 27-28, 33-34)
2. Medical Evidence
Plaintiff's treating physician, Dr. Stephanie de Jesus submitted a medical report on July 6, 1995. Dr. de Jesus reported treating plaintiff from June 20, 1990 through July 6, 1995, every four to eight weeks. (Tr. 95). Plaintiff complained of dizziness, lightheadedness, shortness of breath, wheezing, headaches, heat flashes, menopausal symptoms, frequent fatigue and weakness, and left anterior chest pain at rest or during activity. (Tr. 95). Dr. de Jesus also reported that Rogers had to lie down during the day in order to relieve her headaches and dizziness. (Tr. 97). Dr. de Jesus noted that plaintiff had taken a variety of antihypertensive medications, but was currently taking Cardizem SR, and that she took Micronase for her diabetes. (Tr. 97)
Dr. de Jesus diagnosed Rogers as suffering from Type II diabetes mellitus, with early peripheral diabetic neuropathy, hypertension, cardiac murmur, dizziness, chronic headaches, menopausal symptoms and chest pains. (Tr. 95, 97). Dr. de Jesus stated that plaintiff could: (1) sit for up to two hours continuously, and for a total of six hours in an eight-hour workday, (2) stand and walk continuously for up to 15 minutes, for a total of two hours in an eight-hour workday, (3) occasionally lift and carry up to five pounds, (4) never squat or climb, and (5) occasionally bend or reach. (Tr. 96). Additionally, Dr. de Jesus opined that plaintiff could use her hands, but not her legs and feet, for repetitive actions, such as simple grasping, pushing and pulling of arm controls. (Tr. 98). Dr. de Jesus determined that working on a regular and continuous basis would not cause plaintiff's condition to deteriorate, and that plaintiff was physically able to travel to and from work on a daily basis by bus. (Tr. 99).
Dr. Peter Graham, the Commissioner's medical consultant, performed an examination of plaintiff on November 10, 1994. He concluded that plaintiff had diabetes mellitus, with no evidence of diabetic retinopathy; mild hypertension; and a heart murmur, but he ruled-out valvular heart disease. Dr. Graham stated that Rogers was able to perform physical activities such as sitting, standing, lifting, carrying and handling of objects, speaking, hearing and traveling. (Tr. 84). However, he did not state any opinion regarding how much weight plaintiff could lift or carry. He also did not specifically express a view with respect to time limitations for sitting or standing.
Dr. Graham noted that gait and station were normal and that Rogers had no trouble undressing or dressing, or getting on and off the examination table. (Tr. 82). Additionally, plaintiff made full fists bilaterally. Hand grasp was normal, and plaintiff stood on her toes normally. She was also able to perform a full squat. Her deep tendon reflexes were 2+ and equal with no pathological reflexes, sensory was grossly preserved to touch and vibration, and no tremor of musculature was detected. (Tr. 83).
The diameter and excursion of plaintiff's chest wall were within normal limits. (Tr. 82). A pulmonary function test showed no respiratory distress and no wheezing. (tr. 83). A chest x-ray showed no focal abnormalities. (Tr. 85) However, plaintiff had a grade 2/5 systolic heart murmur and left ventricular hypertrophy by voltage criteria, but her EKG was normal. (Tr. 83).
3. The ALJ's Decision
The Commissioner's regulations prescribe a five-step procedure for evaluating whether a claimant is disabled. 20 C.F.R. § 404.1520;Balsamo v. Chater, 142 F.3d 75 (2d Cir. 1998). First, the Commissioner considers whether the claimant is currently engaged in "substantial gainful activity." The ALJ found that Rogers was not so engaged. (Tr. 16) . The Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. The ALJ concluded that the medical evidence established that Rogers suffered from severe non-insulin dependent diabetes mellitus, hypertension and a heart murmur and that these qualify as a severe impairment. (Tr. 16). The third inquiry is whether, based solely on medical evidence, the claimant has an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (a "Listed Impairment") or a combination of impairments equivalent to a Listed Impairment. The ALJ found that Rogers had neither a Listed Impairment nor an equivalent combination of impairments. (Tr. 16, 18). If a claimant has a Listed Impairment or the equivalent thereof, the Commissioner considers her disabled. If a claimant does not have a Listed Impairment or a combination of impairments equal to a Listed Impairment, the fourth inquiry is whether, despite her severe impairment, the claimant has the residual functional capacity to perform her past work. At the hearing before the ALJ, Rogers testified that she worked "approximately one year" before starting to raise her family. She stopped working as a result of the responsibilities of child rearing, not as a result of any disability. (Tr. 29). Rogers had two children aged 15 and 9. (Tr. 28). Thus, the ALJ concluded that Rogers had no past relevant work history. (Tr. 17). Accordingly, the ALJ moved to step five under which the burden shifts to the Commissioner to identify jobs within the national economy which the claimant could perform. The ALJ concluded that the medical findings reflect that the claimant retains the residual functional capacity to perform the physical exertion requirements of work, except for lifting more than twenty pounds, and that Rogers had the residual functional capacity to perform the full-range of light work, as defined in § 416.967(b). (Tr. 18). Finally, considering the claimant's residual functional capacity for light work, her closely approaching advancing age, limited education, and her lack of past relevant work history, the ALJ concluded, pursuant to the grid guidelines, that Rogers was not disabled. 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 2, Rule 202.10.
Under 20 C.F.R. § 404.1565 states that commissioner considers "work experience . . . when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity."
C. Standard of Review
A claimant seeking SSI disability benefits is considered disabled if he or she is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423 (d)(1) (A). The plaintiff's physical or mental impairment must be "of such severity that he 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. . . ." 42 U.S.C. § 423 (d)(2)(A).
Judicial review of the Commissioner's final decision as to a claimant's disability is limited. The Act provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) . Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson, 402 U.S. at 401. The rule that the Commissioner's findings of fact, as well as the inferences and conclusions to be drawn from those findings are conclusive applies even in those instances in which a reviewing court's independent analysis of the evidence may differ from the Commissioner's analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) . In essence, the reviewing court is not to decide the case de novo. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). However, the court has the power to "enter . . . a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security with or without remanding the case for rehearing." 42 U.S.C. § 405 (g).
D. Discussion
The critical issue in this case is whether there is substantial evidence to support the ALJ's conclusion that Rogers had the residual capacity to engage in a full-range of light work.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.20 C.F.R. § 416.967.
If Rogers were capable only of engaging in sedentary work, rather than light work, Rogers would be considered disabled pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 2, Rule 201.09.
Dr. de Jesus restricted Rogers' physical activities in a variety of ways. Two of those restrictions, limiting Rogers to standing and walking for a total of two hours in an eight-hour workday and preventing Rogers from more than occasionally lifting and carrying up to five pounds, are important in an analysis of whether Rogers was capable of performing the full-range of light work. The "full-range" of light work requires the ability to perform "substantially all" of the activities listed in 20 C.F.R. § 416.967 (b), including the ability to lift and carry up to twenty pounds, and up to ten pounds on a frequent basis, and standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. 20 C.F.R. § 416.967 (b); Social Security Ruling 83-10, 1983 WL 31251, at *6 (1983).
The ALJ concluded that "the claimant has the residual functional capacity to perform the physical exertion requirements of work except for lifting more than twenty pounds. . . . The claimant has the residual functional capacity to perform the full-range of light work." (Tr. 18). Although the ALJ acknowledged that Rogers could not lift more than twenty pounds, this implies that the ALJ believed that Rogers could lift up to twenty pounds. Thus, seemingly the ALJ concluded that Rogers was not restricted in any manner from performing all the aspects of "light work." 20 C.F.R. § 416.967. ("Light work involves lifting no more than 20 pounds at a time." 20 C.F.R. § 416.967 (emphasis added). Light work thus requires the ability to lift up to twenty pounds at a time.)
The Regulations provide that the Commissioner should afford controlling weight to a treating physician's opinion on the issues of the nature and severity of a claimant's impairments, but only if that opinion is well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with other substantial evidence of record. 20 C.F.R. § 416.927 (d)(2).
The ALJ stated that "aside from blood and chemistry studies, no other objective diagnostic studies or procedures have been performed by [Rogers'] treating source." (Tr. 16). This statement is not supported by the record. In another paragraph of his decision, the ALJ noted that Dr. de Jesus performed a "clinical examination" and found that "bilateral lower extremity vibratory sensation [was] decreased." (Tr. 15, 97). Similarly, the ALJ's statement that "no clinical findings were reported to support her treating doctor's statement with regard to the claimant experiencing weakness and pain of both legs" is inaccurate. (Tr. 16)
Although the performance of a single clinical test may not make Dr. de Jesus' opinion "well-supported" by medically acceptable clinical and laboratory techniques and thus requiring controlling weight, the ALJ failed to provide "good reasons" for not according Dr. de Jesus' opinion any weight as required by 20 C.F.R. § 416.927 (d)(2). If the treating physician's opinion is not given controlling weight, a variety of factors are used to help determine the weight to give the opinion.Id. The Second Circuit, in applying these regulations, has recently stated:
The factors that must be considered when the treating physician's opinion is not given controlling weight include: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist.Clark v. Comm'r of Social Security, 143 F.3d 115, 118 (2d Cir. 1998) (paraphrasing 20 C.F.R. § 416.927 (2)(i)-(6)) In this case, the ALJ misapplied the required factors in determining the appropriate weight to give to the treating physician' s opinion.
Although the ALJ stated that "treatment received is not frequent, " (Tr. 16) the record reflects that Dr. de Jesus treated Rogers every four to eight weeks for a period of five years. (Tr. 95). Thus, Dr. de Jesus had observed Rogers' condition and abilities on a regular and continuous basis. See 20 C.F.R. § 416.927 (d)(2)(i) (requiring consideration of "length of the treatment relationship and the frequency of examination"). Additionally, Dr. de Jesus treated Rogers for the specific impairments which are the subject of this complaint, and thus was intimately familiar with Rogers' condition. See 20 C.F.R. § 416.927 (d)(2) (ii) (requiring consideration of the "nature and extent of the treatment relationship"). Furthermore, Dr. de Jesus, whose specialty was internal medicine, should have been treated as a specialist with respect to those aspects of the complaint that fall into her area of expertise.See 20 C.F.R. § 416.927 (d)(5) (requiring consideration of physician's "specialization")
The ALJ stated that Dr. de Jesus' conclusions "are contradicted by other medical evidence, as well as the claimant's own testimony." (Tr. 16-17). See 20 C.F.R. § 416.927 (d)(4) (considering "consistency" of the opinion with the record as a whole). However, that assertion is not completely accurate.
While Dr. Graham did conclude that "muscle strength is adequate, symmetrical and commensurate with body build," these findings do not appear to be supported by any specific clinical or laboratory techniques. (Tr. 83). Additionally, although Dr. Graham performed an EKG, a pulmonary function and a chest x-ray, it is unclear how these tests reflect Rogers' ability to walk or stand for six hours in an eigth-hour workday without experiencing severe pain or weakness or her ability to lift up to twenty pounds and ten pounds on a frequent basis. (Tr. 83-84). Furthermore, although Dr. Graham did find "deep tendon reflexes 2+ and equal with no pathological reflexes" and that "sensory is grossly preserved to touch and vibration, " these tests do not specifically support the ALJ's conclusion that Rogers could lift up to twenty pounds or ten pounds on a frequent basis. (Tr. 83)
Additionally, the conclusion that Rogers' sensory was "grossly preserved" to touch and vibration, is not necessarily inconsistent with Dr. de Jesus' findings that there was some abnormality in the results of this test.
Moreover, Dr. Graham's findings were based solely on a single examination. "[A] consulting physician's opinion or report should be given limited weight" because "they are often brief, are generally performed without benefit or review of the claimant's medical history and at best, only give a glimpse of the claimant on a single day." Crespo v. Apfel, 1999 WL 144483, at *7 (S.D.N.Y. Mar. 17, 1999) (citations omitted). Similarly, Dr. Graham's observations that, on a single occasion in 1994, Rogers was capable of dressing and undressing, getting on and off the examination table and performing a full squat do support the ALJ's conclusion that Rogers can lift and carry ten pounds on a frequent basis and twenty pound occasionally. The opinions expressed by Dr. R.B. Reynolds and Dr. Anthony Danza, each non-examining sources who merely reviewed the medical evidence (Tr. 42-50, 56-57), are entitled to even less weight than those of Dr. Graham. Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990) (stating that a doctor's assessment of other doctors' findings merits "little weight" in a disability determination.) Dr. Reynolds and Dr. Danza each reached their conclusions before Dr. de Jesus' report was even submitted.
Thus, the other medical evidence in the record does not contradict Dr. de Jesus' opinion. Moreover, it also fails to provide the requisite "substantial evidence" to affirmatively support the ALJ's conclusion that Rogers could walk or stand for six hours in an eight-hour workday, as well as lift up to twenty pounds and ten pounds on a frequent basis.
Additionally, there is no non-medical evidence to contradict Dr. de Jesus's report or to support the ALJ's conclusions. Although Rogers testified that she had no restrictions in sitting, she stated that she had significant pains in her legs and knees, she often became fatigued, and she approximated that she could walk or stand for only one hour in an eight-hour workday. (Tr. 28-29, 33). Although plaintiff testified that she occasionally walks her children to and from school and helps them with their homework, she also reported that she must "stop and rest for about 15 minutes" after walking only four blocks. (Tr. 67). She testified that because of her pain and weakness, her daughter must do the cooking, cleaning and shopping for the household. (Tr. 31). Finally, the ALJ seemingly gave significant weight to Rogers' statement that she believed that she can lift "up to ten pounds." (Tr. 16) . However, it is not enough for the claimant merely to be capable of lifting up to ten pounds, but the claimant must be capable of lifting and carrying up to ten pounds on a frequent basis. 20 C.F.R. § 416.967 (b). Furthermore, Rogers' statement that she could lift up to ten pounds does not permit an inference that she was capable of lifting up to twenty pounds as decided by the ALJ.
See supra note 4.
E. Conclusion
For the foregoing reasons, the ALJ's finding that Rogers was capable of performing a full-range of light work is not supported by substantial evidence. Additionally, the ALJ committed legal error by failing to give proper weight to Rogers' treating physician. It has now been over six years since Rogers applied for disability benefits. The burden rests upon the Commissioner to show good cause for a remand for further proceedings, and none has been shown. Carrol v. Secretary of Health Human Servs., 705 F.2d 638, 643-44 (2d Cir. 1983); see e.g., Rivera v. Sullivan, 923 F.2d 964 970 (2d Cir. 1991) (reversing and remanding solely for the calculation and allowance of benefits); Crespo, 1999 WL 1444483, at *8. "A remand, potentially followed by another appeal, could well delay the payment of benefits to which [the plaintiff] appears to be entitled for still further years." Balsamo, 142 F.3d at 82 (citations omitted)
For the foregoing reasons, this case is reversed and remanded to the Commissioner solely for the purpose of calculating benefits.
SO ORDERED.