Opinion
01 Civ. 7905 (AKH)
December 4, 2002.
MEMORANDUM AND ORDER AFFIRMING DECISION OF SOCIAL SECURITY ADMINISTRATION AND DISMISSING PETITIONER'S COMPLAINT
Plaintiff Elson Soto brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security (the "Commissioner") that plaintiff was not disabled at any time through December 31, 1998 and therefore was not entitled to Title II disability insurance. The defendant in this case has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, I grant defendant's motion and affirm the decision of the Commissioner.
I. Administrative Proceedings
On October 16, 1997, plaintiff filed an application for supplemental security income benefits. The application was denied both initially and on reconsideration. After a hearing before an administrative law judge ("ALJ") at which plaintiff was represented by counsel and at which he testified, the ALJ issued a decision on February 19, 1999, finding that plaintiff had not been disabled within the meaning of the Social Security Act at any time prior to December 31, 1998, the date by which plaintiff's insured status expired. On July 3, 2001, the Appeals Council denied plaintiff's request for review. Plaintiff then filed this action seeking review of the decision of the Social Security Administration.
II. Background
A. Facts
Plaintiff, who was 50 years old when he filed his application for Social Security benefits, has an eleventh-grade education, and worked as a parking attendant and then as a chauffeur and porter for a sign-making company. As a parking attendant, plaintiff parked cars, issued claim tickets, managed the garage, and supervised about three other employees. The job required numerous hours of sitting, some standing, and minimal driving. As a chauffeur and porter, plaintiff swept floors, worked heavy machinery, and drove a truck. (R. at 53-54; R. at 101.) In this position, plaintiff spent approximately six hours walking and standing, was constantly bending and reaching, and was required to carry, with the help of others, signs made of sheet metal. (R. at 102; R. at 54.) Plaintiff left this position in 1993, when the law changed to require all truck drivers to have a commercial license, which plaintiff did not have.
In his October 16, 1997 application for disability insurance benefits, plaintiff alleged that he could not return to work due to his disabling conditions. He listed these conditions as "liver condition, bruised left side of body, legs, and knees," pain in his legs, swelling in his feet from walking, back problems, faulty memory, and his attendance in a drug treatment program five days a week. (R. at 97) In his Complaint filed in this action, plaintiff alleges that he is unable to work because he has hepatitis C, diabetes, arthritis, and is being treated for depression.
At the hearing before the ALJ, plaintiff testified that he experiences back pain when sitting for lengthy periods (R. at 59), that he gets painful leg swelling (R. at 60), and that he also has chest pain once or twice a month and cramping of his left shoulder. (R. at 59.) Plaintiff testified that he can walk for about one block (R. at 62), stand for about fifteen to twenty minutes, sit for about half an hour before getting pain in his legs (R. at 63), and is unable to drive because of the pain in his legs (R. at 52). Plaintiff testified that he takes the bus and sometimes the train, but that he often has to get off because it causes him back pain. (R. at 52; R. at 100.) He indicated in his application for benefits that he eats out and spends time at the library and attending a drug rehabilitation program. (R. at 100.) Plaintiff indicated on his reconsideration disability report that he can take care of his personal needs, but must do everything slowly. (R. at 105.)
B. Plaintiff's Medical Treatment
Plaintiff has consulted with numerous doctors starting as far back as June 1995, regarding his various ailments. However, chest x-rays taken in June 1995 revealed no abnormalities (R. at 121, 124), and in Feburary 1996, an electrocardiogram ("EKG") revealed only normal sinus rhythm ("NSR") and gastritis and peptic ulcer disease were ruled out. (R. at 323).
A May 1996 check-up revealed that plaintiff's back had a normal range of motion without signs of tenderness. No edema (swelling) was observed. X-rays and a sonogram of plaintiff's abdomen revealed normal liver, kidneys, and spleen (R. at 125, 128, 132-33, 135, 309, 312, 317), and x-rays of plaintiff's cervical spine and chest were normal. (R. at 136, 137). However, plaintiff's upper gastrointestinal area showed a mild deformity and spasticity of the duodenal bulb, possibly consistent with duodenitus. (R. at 128.) An ulcer could not be ruled out. Id.
Two examinations in June 1996 revealed that plaintiff had abnormal liver function tests secondary to alcoholism. (R. at 289.) Although plaintiff complained of left shoulder pain, an x-ray of plaintiff's shoulder was normal, (R. at 144) and no upper extremity weakness was noted (R. at 146).
On July 16, 1996 and on July 17, 1996 plaintiff was again examined for complaints of pain on his left side. (R. at 159, 160.) On examination, plaintiff was described as an obese male with normal range of motion and manual muscle movement. (R. at 159.) A magnetic resonance imaging ("MRI") test of the cervical spine was normal, and a neurologic consult revealed that plaintiff had no significant symptoms (R. at 162), but that there was electrical evidence of a herniated disk. Id.
An examination of plaintiff in June 1997 revealed an abdominal wall hernia and pitting edema of plaintiff's ankles with no signs of ulcers. (R. at 187.) A cardiac stress test was deemed inconclusive; plaintiff's chest pain was described as "atypical." Id. Upper gastrointestinal x-rays were negative (R. at 168, 187), but tests showed that plaintiff had an elevated level of a bacteria that causes gastritis and ulcers. (R. at 187). Upon examination in August 1997, plaintiff's left knee showed minimal tenderness, but plaintiff continued to have pitting edema and tenderness of both ankles. (R. at 188.)
As part of plaintiff's application for benefits, on November 19, 1997, Dr. Seung Gi Kim, of Hunts Point Multi-Service ("Hunts Point"), provided a report concerning plaintiff's condition and functioning. (R. at 191-99.) Dr. Kim noted that plaintiff experienced joint pain and weakness (R. at 192.) and suffered from neck cramping, numbness of the left arm, and decreased gripping power of both arms. (R. at 194.) Dr. Kim reported that plaintiff was functional in his activities of daily living (R. at 196.) and in his ability to perform in a work setting, so long as he did not work with dangerous machinery. (R. at 196, 198.) Dr. Kim opined that plaintiff could lift and carry objects weighing up to ten pounds, could not stand or walk for more than two hours, sit for more than six hours, and was limited in his ability to use foot and hand controls. (R. at 196-97.)
On December 12, 1997, Dr. Alain de La Chapelle, a consulting psychiatrist, examined plaintiff. Dr. de La Chapelle's report indicates that plaintiff came to the examination by public transportation, that plaintiff lived by himself, that he was able to take care of his own needs. (R. at 201.) Dr. de La Chapelle described plaintiff's intellectual functioning as average, and noted that plaintiff's memory was intact. Based on his examination, Dr. de La Chapelle opined that plaintiff had a satisfactory ability to understand, carry out, and remember instructions, and could satisfactorily deal with supervision, coworkers, and work pressures. Id.
On December 22, 1997, Dr. Joseph Grossman, a consulting physician, examined plaintiff. The physical examination revealed no significant findings. Plaintiff's neck was supple with a full range of motion and no evidence of masses (R. at 205), his lumbar spine was not tender, and he could flex forward at ninety degrees. Id. Plaintiff's joints had a full range of motion with no swelling, deformity, redness, or heat. Id. Plaintiff's shoulder also had a full range of motion, although with pain, and his muscle strength was adequate with no evidence of muscle wasting. Id. Dr. Grossman opined that plaintiff was minimally impaired for prolonged and repeated vigorous bending, stooping, crouching, pushing, pulling, and lifting and carrying objects weighing over twenty pounds. (R. at 207.) Dr. Grossman also opined that plaintiff had no impairment of standing, sitting, climbing, walking, using hand and foot controls, hearing, speech, or travel. Id.
On January 28, 1998, Dr. C. Khalil, a State agency physician, reviewed evidence of the record and completed a physical residual functional capacity assessment. Dr. Khalil opined that plaintiff retained the ability to perform light work: plaintiff could occasionally lift and/or carry up to twenty pounds, frequently carry ten pounds, and sit, stand and/or walk for up to six hours each in an eight hour day. (R. at 236.)
On April 13, 1998, Dr. Kim, of Hunts Point, provided a second report concerning plaintiff, repeating most of the findings of his November 1997 assessment, including his conclusion that plaintiff was "functional" in his ability to work, but needed to avoid dangerous machinery. (R. at 248.) Dr. Kim's assessment of plaintiff in terms of his ability to carry, sit, and stand remained unchanged.
Examinations of the plaintiff at Montefiore Medical Center Hospital ("Montefiore") in March and May of 1998 revealed that plaintiff's shoulders and knees had a normal range of motion with no tenderness or swelling and that plaintiff's abdomen was normal, with no tenderness.
On February 24, 2000, fourteen months after plaintiff's insured status expired, Dr. Hui Lin, a treating physician from Montefiore, wrote a note indicating that plaintiff had diabetes mellitus, hepatitis C, osteoarthritis of his upper and lower extremities, a ventral hernia, and swelling of his lower extremities. (R. at 17.) Dr. Lin opined that "plaintiff is unable to work at present due to his conditions." Id.
An examination in December 2000 by Gwen McKenzie, a case social worker at Sound View-Throgs Neck Community Mental Health Center ("Sound View"), revealed that plaintiff's neck was normal, but that plaintiff had trace edema in his calves, a ventral hernia, and an enlarged liver. (R. at 10.) Knee pain and swelling were also observed. Id. Ms. McKenzie opined that plaintiff had a permanent disability and limitations in his ability to walk, stand, stoop, or kneel. Id. She also indicated that plaintiff was to avoid lifting, reaching, and pushing. Id.
On January 9, 2001, Ms. Yolanda Cruz, a counselor at Hunts Point, wrote a note indicating that plaintiff's medical condition was fair, but that he walked with a cane due to back pain and leg problems. Id. Ms. Cruz opined that plaintiff needed to improve his medical and mental health condition in order to function in a work setting. Id.
III. Discussion
A. Legal Standards
The Social Security Act provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A reviewing court should not decide a Social Security disability case de novo. Id. Cf. Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). Instead, if the Court finds that there is substantial evidence for the determination, the Commissioner's decision must be upheld, even if there is substantial evidence for the plaintiff's position as well. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); Gonzalez v. Apfel, No. 00 Civ. 5551, 2001 U.S. Dist. LEXIS 2903, at *7-*8 (S.D.N.Y. Mar. 16, 2001); DeJesus v. Apfel, No. 97 Civ. 4779, 2000 U.S. Dist. LEXIS 15527, at *2 (S.D.N.Y. Oct. 24, 2000). Substantial evidence in this context is "more than a mere scintilla" of evidence; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977).
The Social Security Act provides that "an individual shall be determined to be under a disability . . . if his physical or mental impairment or impairments are 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). The Commissioner has established a five-step sequential evaluation for adjudication of disability claims, which the Second Circuit Court of Appeals has articulated as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental abilities to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). The claimant has the burden of proof as to the first four steps. If he proves that he cannot return to his prior form of work, the Commissioner then considers whether work exists that he could perform. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). In making these determinations, the Commissioner considers objective medical evidence, diagnoses and medical opinions of qualified examining physicians, subjective evidence of pain and disability, and a claimant's age, educational background, and work history. Mongeur v. Hackler, 722 F.2d 1033, 1037 (2d Cir. 1983).
B. Review of the Findings of the ALJ
In order to claim disability benefits under Title II, plaintiff must establish that he became disabled at a time when he met the insured status requirements under the Social Security Act, 42 U.S.C. § 423(d), that is, prior to December 31, 1998. See Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989). The ALJ found that plaintiff did not meet this burden.
Following the five-step sequential evaluation summarized in DeChirico, the ALJ determined that claimant had satisfied the first two inquiries, but not the third or fourth. Plaintiff, as the ALJ found, had not been engaged in substantial gainful activity since March 15, 1994, fulfilling the first criterion of the evaluation. The ALJ further found that plaintiff's lower back disorder and arthralgias of the shoulders were a medically severe combination of impairments, fulfilling the second criterion. With respect to the third criterion, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Because plaintiff did not fulfill the third criterion, the ALJ then went on to consider the fourth inquiry, whether plaintiff had the residual functional capacity to perform his past work. At this step, the ALJ relied on the objective medical evidence from plaintiff's medical history, including the results of objective medical tests, to find that plaintiff did not satisfy the criterion. The ALJ gave little weight to plaintiff's treating physician Dr. Kim, who had prescribed that plaintiff should limit his activities to less than a sedentary range of work, on the grounds that Dr. Kim's evaluation was inconsistent with the credible medical evidence and was not based upon objective findings. The ALJ also gave little credit to plaintiff's subjective complaints, finding them not to be supported by the objective medical evidence and to be inconsistent with plaintiff's other statements. Instead, the ALJ found the most credible evaluation to be that of Dr. Grossman, a consulting physician, and determined that plaintiff retained the residual functional capacity to do light work, meaning he could stand for six hours, sit for six hours, and lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently. Given this level of residual functional capacity, the ALJ found that plaintiff had the capacity to do his past relevant work as a parking attendant.
I hold that the ALJ's findings with respect to this fourth factor are substantially supported by the evidence presented in plaintiff's medical records. Plaintiff's former job as a parking attendant constitutes past relevant work, see 20 C.F.R. § 1565(a); Moad v. Massanari, 260 F.3d 887, (8th Cir. 2001) (a job is past relevant work if it was "done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity"), and plaintiff testified that in this position, he spent numerous hours sitting and a few hours standing, and did minimal driving. The record contains substantial evidence that plaintiff was not so impaired during the time period in issue as to be unable to perform these activities. Medical test after medical test, including x-rays, MRIs, and EKGs, showed plaintiff had no abnormalities of the chest, heart, neck, or shoulders. Objective tests for tenderness and pain showed plaintiff's knees and lower legs to be normal. Some objective evidence showed that plaintiff may have had a herniated disc and some edema around the ankles. However, Dr. Grossman found that, even given these problems, plaintiff was only minimally impaired for prolonged and repeated vigorous bending, stooping, crouching, pushing, pulling, and lifting and carrying objects weighing over twenty pounds, and was capable of standing, sitting, climbing, walking, and using hand and foot controls. (R. at 207.) Dr. Khalil also opined that plaintiff could occasionally lift and/or carry up to twenty pounds, frequently carry ten pounds, and sit, stand and/or walk for up to six hours each in an eight hour day. (R. at 236.) These evaluations are supported by other evidence in the record that plaintiff was able to care for himself, that he ate out, and that he went out frequently, whether to his treatment program or to the library.
Moreover, Dr. Kim's evaluations are susceptible to an interpretation that supports both Dr. Grossman's and Dr. Khalil's findings. Indeed, Dr. Kim found plaintiff capable of carrying up to 10 pounds of weight and sitting for up to six hours. His overall evaluation deemed plaintiff functional in his ability to perform in a work setting, so long as plaintiff did not have to operate heavy machinery. And, to the extent that Dr. Kim's evaluations contradict the conclusions of the other doctors, the ALJ's decision to give lesser weight to Dr. Kim's evaluation is proper. Testimony even from a treating physician may be given less weight if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with other substantial evidence in the case record. See 20 C.F.R. § 404.1527(d)(2); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
The ALJ's determinations with respect to plaintiff's credibility are also proper. The ALJ has the capacity and the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of pain alleged by the claimant. See Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984). Where a claimant's subjective testimony as to pain is not fully supported by the available medical evidence, the ALJ must make specific findings with respect to the claimant's credibility. Donato v. Secretary of Health and Human Servs., 721 F.2d 414, 418-19 (2d Cir. 1983). The ALJ in the instant case did so, finding that "an examination of plaintiff's course of treatment, daily activities, testimony, course of medication, pain, and work history reveals inconsistencies between the symptoms as alleged and the objective evidence" (R. at 36). The ALJ's analysis of the record was therefore proper and it is clear that her findings are supported by the substantial weight of that evidence.
C. New Evidence
Since his hearing before the ALJ, plaintiff has produced additional evidence indicating that he has diabetes mellitus, hepatitis C, osteoarthritis of his upper and lower extremities, and a ventral hernia. Such evidence cannot form the basis of a decision that plaintiff was disabled at and before the time in issue, December 31, 1998. Dr. Lin opined that "plaintiff is unable to work at present due to his conditions," id. (emphasis added), not that he was unable to work between two and six years earlier. See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991). Thus, the evidence of plaintiff's condition from after the relevant time period does not override the ALJ's conclusion that plaintiff was not disabled before December 31, 1998. Moreover, the evaluations from plaintiff's counselor and case social worker cannot be a basis for finding plaintiff disabled during the period in question because neither a counselor nor a social worker is considered an acceptable medical expert with respect to determining disability. See 20 C.F.R. § 404.1513.
IV. Conclusion
Since the ALJ's decision is supported by substantial evidence, I am required to uphold it. Accordingly, I affirm the decision of the Social Security Administration that plaintiff was not disabled at any point during the critical period before December 31, 1998. The complaint is dismissed and the Clerk of the Court shall mark this case as closed.
SO ORDERED.