that his ability to reach, handle, push, and pull was unaffected.
Dr. Massoff noted, however, that plaintiff suffered from a
cardiac condition which Dr. Massoff recommended be assessed by a
Dr. Massoff opined that the slight asymmetrical bulge revealed
by the MRI was not a significant discogenic pathology in view of
the absence of clinical or radiological evidence of spinal
stenosis or nerve root impingement. He explained that a bulging
disc is one which extends slightly beyond its normal confines,
but which does not impinge upon a nerve. Overall, Dr. Massoff
concluded that plaintiff's complaints of mid to low back muscle
pain were "subjective." Based on his medical findings, Dr.
Massoff placed no physical restrictions on plaintiff's ability to
do work-related activities.
In contrast, plaintiff testified that he is able to sit for
approximately five to ten minutes at a time before experiencing
pain in his back and legs. He stated that he is able to walk
"partially around a supermarket" before feeling pain, can drive
locally, can stand without pain for five to ten minutes, and can,
at present, lift from three to five pounds. Plaintiff's daily
activities include helping his wife care for their children, and
giving automotive advice to friends. Plaintiff currently takes
Soma to relieve pain.
Although plaintiff contends that his past heart condition is
one of the disabilities supporting his current claim for
benefits, no documentation to this effect has been provided, and
plaintiff concedes that his back difficulties, and not his heart
impairment, are what prevent him from returning to work as a
sheet metal worker. The ALJ determined if plaintiff retains the
residual functional capacity to do light or sedentary work, he is
not disabled within the meaning of Title II of the Act.
As indicated, the Secretary determined that plaintiff was not
disabled for purposes of the Act. The primary issue to be
resolved on review by this Court is whether the record, as a
whole, reveals substantial evidence in support of that decision,
and the scope of the Court's review of factual findings is
limited to this inquiry. 42 U.S.C. § 405(g), 1383(c)(3). Absent
legal error, the Secretary's decision, if supported by
substantial evidence, is conclusive. 42 U.S.C. § 405(g); Dumas
v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (citation
The Supreme Court has defined "substantial evidence," in the
context of a Social Security case, as being "`more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Richardson
v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). In
determining whether substantial evidence exists, a district court
should look to the entire record, including both contradictory
evidence, as well as evidence from which conflicting inferences
can be drawn. Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983). Simply stated, the evidence is to be viewed "in light of
other evidence that detracts from it." New York ex rel. Bodnar
v. Secretary of Health & Human Services, 903 F.2d 122 (2d Cir.
1990) (citations omitted).
This Court notes, as well, that the "`treating physician rule'
governs the consideration afforded the medical opinion of a
claimant's treating physician relative to other medical evidence
presented at a disability proceeding." Murdaugh v. Secretary of
Health & Human Services, 837 F.2d 99, 101 (2d Cir. 1988). The
rule provides that a treating physician's opinion as to
disability is generally given greater weight than that of a
non-examining or consulting physician. Id. More specifically,
the "treating physician's opinion on the subject of medical
disability, [including the] nature and degree of impairment, is:
(i) binding on the fact-finder unless contradicted by substantial
evidence; and (ii) entitled to some extra weight because the
treating physician is usually more familiar with a claimant's
medical condition than are other physicians. . . ." Schisler v.
461 F.2d 76, 81 (2d Cir. 1986). The Second Circuit has recognized,
however, that the treating physician's rule is not intended to
denigrate the role of the trier of fact; where genuine
disparities exist between, or substantial evidence conflicts
with, the opinions of treating physicians, the trier of fact is
responsible for resolution of such inconsistencies. Id.
In the present case, plaintiff was treated by at least three
physicians: Dr. Edward Yambo, the family practitioner, who
treated plaintiff for approximately 5 months; Dr. Blum, an
orthopedic surgeon, who cared for plaintiff for approximately one
year; and Dr. Gold, who treated plaintiff for approximately one
year. The Court determines that Drs. Blum and Gold are entitled
to treating physician status.
As previously stated, Dr. Gold specified on a Workers'
Compensation report that plaintiff is totally disabled. In this
context, however, "total" disability indicates only the inability
to perform past relevant work, which, as the ALJ noted, and
plaintiff concedes, is inadequate for purposes of the Act. In
addition, Dr. Gold's opinion of disability was rendered merely by
his marking an appropriate box on the Workers' Compensation form.
Absent further explanation for this conclusion than what is
presently provided on the form, Dr. Gold's cursory indication of
total disability is insufficient to allow this Court to properly
rule on plaintiff's entitlement, if any, to benefits under the
The ALJ concedes that plaintiff is incapable of performing past
relevant work requiring lifting and carrying in excess of twenty
pounds. 20 C.F.R. § 404.1520(e), 416.920(e). After a claimant has
demonstrated the inability to perform past relevant work, the
burden shifts to the Secretary to establish that alternative
substantial gainful activity exists in the national economy that
claimant can perform. 20 C.F.R. § 404.1520, 416.920. See also
Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66
The ALJ determined that, despite plaintiff's testimony
regarding pain, the "minimal clinical and diagnostic findings"
demonstrate that "the claimant retains sufficient spinal mobility
and upper and lower body strength to perform sedentary work and
light work. . . ."*fn1 In reaching the conclusion that plaintiff
is capable of performing light and sedentary work, the ALJ
explained that "the claimant's complaints of pain and numbness
are not substantiated by the multiple examinations performed by
treating and examining physicians."
It is significant, with regard to the evidence presented by
plaintiff, that in 1990 Congress enacted § 3(a)(1) of the Reform
Act. 42 U.S.C. § 423(d)(5)(A) (1990) ("§ 423(d)(5)(A)"). Under
that section, subjective complaints of pain alone are not
"conclusive evidence of disability." Instead, for an individual
to be considered disabled, complaints of pain must be accompanied
by "medical signs and findings, established by medically accepted
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment. . . ." § 423(d)(5)(A); accord
Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990). But
see Bluvband v. Heckler, 730 F.2d 886, 893 (2d Cir. 1984)
(citations omitted) (called into doubt by § 423(d)(5)(A)).
The present case clearly involves a medically documented
impairment. As noted, objective tests confirm the existence of a
bulging disc. Drs. Blum and Gold, both of whom enjoy treating
physician status, concluded that plaintiff exhibits decreased
range of motion in the lumbosacral spine, and restricted straight
leg raising. Dr. Blum noted, in addition, that plaintiff
experienced tenderness of the sacroiliac joints and paraspinals,
and mild bilateral spasm in his spine.
Dr. Massoff testified that a bulging disc is not a significant
finding, and that some of plaintiff's complaints were
"unphysiologic." However, as Dr. Massoff examined plaintiff on
only one occasion, the force of his opinion is diminished because
a "treating physician's determination is generally `entitled to
more weight than that of a doctor who has only seen the claimant
once. . . .'" Bluvband, at 730 F.2d at 893 (quoting Rosa v.
Weinberger, 381 F. Supp. 377, 380 (E.D.N.Y. 1974)). For this same
reason, Dr. Massoff's opinion regarding plaintiff's current
residual functional capacity is of questionable significance.
The present record does not evince substantial contradictory
evidence to overcome Dr. Gold's determination of plaintiff's
disability. There is no disparity among the opinions of the
physicians that plaintiff suffers from a bulging disc, and only
Dr. Massoff, a consulting physician, has asserted that this
condition is an insignificant pathology. Viewed in light of the
evidence produced by the treating physicians, and given
plaintiff's continued complaints of pain, Dr. Massoff's opinion
is of minimal significance. Since, however, Dr. Gold's cursory
conclusion of total disability was rendered in the context of a
Workers' Compensation report, and given the further obstacle that
neither treating physician has submitted evidence with regard to
plaintiff's current residual functional capacity, the record
supports the conclusion only that plaintiff is unable to perform
his past relevant work, which, as indicated, is insufficient
under the present Act. A question remains as to whether plaintiff
retains the residual functional capacity to perform sedentary or
light work as defined by the Act.
For the above reasons, the Court concludes that in the present
record, the treating physician's opinion is not contradicted by
substantial evidence, but that further information is required
regarding plaintiff's current residual functional capacity before
a proper determination of plaintiff's entitlement to benefits may
be made. Therefore, this Court remands the case to the Secretary
for further proceedings consistent with the resolution of this