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COTY v. SULLIVAN

June 19, 1992

VICTOR COTY, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.


Sprizzo


The opinion of the court was delivered by: JOHN E. SPRIZZO

SPRIZZO, D.J.:

 Plaintiff brings this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, ("the Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3)(1988), seeking review of a final decision of the Secretary of Health and Human Services ("the Secretary"). Both parties cross-move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons that follow, defendant's motion is granted and plaintiff's motion is denied.

 BACKGROUND

 Plaintiff, a 46 year-old Hispanic male, worked as a file clerk at Boricua College until October 1983, when he was dismissed. See Record ("Rec.") at 204, 209-10. Subsequently, alleging disability due to a spinal injury, plaintiff filed a claim for disability benefits under Title II of the Act and a claim for supplemental security income benefits under Title XVI of the Act. See id. at 32, 85-94. Both claims were denied initially and upon reconsideration. Id. at 36-46. *fn1"

 Following these denials, plaintiff requested a hearing to review both applications. The hearing was held on July 30, 1985 before an Administrative Law Judge (the "ALJ"). The ALJ found that plaintiff was not under a disability, id. at 8-12, and the Appeals Council denied review. Id. at 3-4. On December 23, 1987, this Court remanded the case to the Secretary on the ground that the ALJ had "failed to fully develop the record as required by the decisions of the Circuit." Coty v. Bowen, No. 86-2573, slip op. at 1 (S.D.N.Y. Oct. 23, 1987).

 On March 14, 1989, a supplemental hearing was held before an ALJ. See Rec. at 189-295. Evidence regarding plaintiff's physical impairments was submitted by various doctors who had examined him. In addition, at this hearing plaintiff alleged for the first time that he suffers from a severe psychiatric impairment. In support of this allegation, plaintiff submitted a report from a psychiatrist, Dr. Robert Davis, who examined him on February 21, 1989. Id. at 337-341. Dr. Davis diagnosed a generalized anxiety disorder and opined that plaintiff's emotional state contributed to his inability to perform at a sustained level in a working environment. *fn2" Id. at 341.

 In order to obtain additional evidence concerning plaintiff's alleged psychiatric condition, the ALJ remanded to the Office of Disability Determinations (the "ODD") for a consultative psychiatric examination. Id. at 178, 360. Plaintiff, through his attorney, requested the ALJ to amend its remand and instead seek additional psychiatric reports and records from Dr. Davis. Id. at 370. The ALJ, however, instructed the ODD to proceed with the examination and, accordingly, the ODD informed plaintiff's attorney that the ALJ's request for a consultative examination would be held open for two weeks. Id. at 364, 367. Plaintiff never appeared and the examination was canceled.

 The ALJ found that plaintiff had the residual functional capacity *fn3" to perform his past work and consequently, denied plaintiff's claim for physical impairment. Id. at 181-82. In addition, the ALJ, relying in part on plaintiff's failure to attend the consultative psychiatric examination and in part on the paucity of other evidence, denied the psychiatric impairment claim. Id. at 179. The Appeals Council also found that plaintiff was not under a disability. *fn4" Id. at 99-107.

 DISCUSSION

 Plaintiff first contends that the ALJ's finding that he is able to do sedentary work, which entails sitting approximately six hours out of an eight hour work day, is not supported by substantial evidence because Dr. Burton Sheryll found that he is incapable of prolonged sitting. However, Dr. Sheryll did not find that plaintiff is incapable of prolonged sitting, but stated only that plaintiff should avoid prolonged sitting or walking until he could be re-evaluated. Id. at 73. In addition, although plaintiff has subjective complaints of pain which support his contention that he suffers from a physical impairment, and which the ALJ expressly considered, id. at 180-82, the Social Security Act provides that an "individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability," and that there must be "medical signs and Qfindings . . . which show the existence of a medical impairment." 42 U.S.C. § 423(d)(5)(A)(1988).

 Moreover, the balance of the record supports the ALJ's conclusion. According to Dr. Abdul Malah, a treating physician, plaintiff is capable of sitting continuously for two hours at a time with frequent standing for up to three hours in an eight hour work day. Id. at 181, 355. In addition, a medical expert testified that plaintiff's pain does not appear to be a significantly limiting factor and that he is capable of alternately sitting or standing for an eight hour work day. *fn5" Id. at 181. Furthermore, sedentary work involves lifting no more than ten pounds on occasion, which plaintiff testified he is capable of doing and which Dr. Malah concluded plaintiff was able to do. Id. at 227, 355. Based on the foregoing, this Court concludes that the ALJ's finding that plaintiff was capable of performing his past relevant work, which was sedentary in nature, is supported by substantial evidence.

 Next, plaintiff contends that the ALJ erroneously sought medical evidence from a consultative physician without first obtaining additional evidence from Dr. Davis, a physician who had examined plaintiff on one prior occasion. Id. at 337. Specifically, plaintiff argues that the ...


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