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BETHGE v. SHALALA

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


April 17, 1995

EUGENE BETHGE, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

The opinion of the court was delivered by: LESLIE G. FOSCHIO

REPORT AND RECOMMENDATION

 JURISDICTION

 This matter was referred to the undersigned for report and recommendation on April 29, 1994 by the Honorable Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1)(B). The matter is presently before the court on Defendant's motion for judgment on the pleadings, filed July 13, 1994, and Plaintiff's cross-motion for judgment on the pleadings, filed November 3, 1994.

 BACKGROUND

 Plaintiff, Eugene Bethge, seeks review of the Defendant's decision denying him Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403 (1988). In denying Bethge's application for benefits, Defendant determined that Bethge had the capability to perform sedentary work-related activities, including his past work, except for work involving prolonged sitting or standing and repetitive bending, and was, therefore, not disabled as defined by the Social Security Act. (R. 17-19). *fn1"

 On January 18, 1994, Bethge filed an action seeking a determination that he was entitled to disability benefits. Bethge contends that the Defendant's decision was not supported by substantial evidence, and that it should be reversed. On July 13, 1994, Defendant filed a motion for judgment on the pleadings, seeking dismissal of the action. Plaintiff filed a cross-motion for judgment on the pleadings on November 3, 1994.

 No oral argument was held on the matter.

 PROCEDURAL HISTORY

 Bethge initially filed for disability benefits on November 21, 1991. The application was denied on May 11, 1992. A request for reconsideration was filed on October 14, 1992, and the claim for benefits was again denied on November 4, 1992. Bethge appealed the determination.

 On May 18, 1993, a hearing was held in Buffalo, New York before an administrative law judge ("ALJ"), Office of Hearings and Appeals of the Social Security Administration, Department of Health and Human Services, regarding the denial of disability benefits. On June 15, 1993, the ALJ denied disability benefits to Bethge. Bethge then requested a review of the hearing decision by the Secretary. On November 23, 1993, the Appeals Council concluded that there was no basis for granting the request for review, and determined that the decision of the ALJ was the final decision of the Social Security Administration.

 Thereafter, on January 18, 1994, Bethge filed this action seeking review of the administrative decision. The matter was referred to the undersigned on April 29, 1994. On July 13, 1994, Defendant filed a motion for judgment on the pleadings, and on November 3, 1994, Plaintiff filed a cross-motion for judgment on the pleadings. No oral argument was deemed necessary.

 For the reasons as set forth below, the Defendant's motion should be GRANTED, and the Plaintiff's cross-motion should be DENIED.

 FACTS

 As of May 18, 1993, the date of the hearing before the ALJ, Eugene Bethge was fifty-three years old. (R. 13, 255). Bethge completed the eleventh grade and obtained a general equivalency diploma while serving in the United States Army and the Air Force. (R. 13, 256). At the time of the hearing, Bethge lived with his wife in a one-story house in Cheektowaga, New York. (R. 286). His daily activities included cooking, setting the dinner table, washing the dishes, and doing laundry once a week. (R. 48). Bethge could drive a car, and often drove himself to his doctors appointments. (R. 48, 285). Bethge asserts that as a result of his back condition, he was forced to give up cross-country skiing, bowling, fishing, gardening, and walks through the woods with his wife, but admits he watches television, reads, and occasionally visits with friends and relatives. (R. 48, 275-276, 286-288).

 Bethge worked for Westinghouse Electric from 1967 through 1970 as an electrical draftsman. (R. 49, 256). From September of 1972 through September of 1985, Bethge worked for E.G.W. Associates as a design draftsman. (R. 49, 256). Bethge subsequently formed his own company, Buffalo Services Group, Inc., and worked under contract as a field design draftsman at General Mills until November 4, 1986. (R. 49). The position of draftsman required Bethge to take field measurements, design new equipment and make related drawings, work with other contractors, coordinate jobs and write up job progress reports. (R. 49). In performing his duties as a draftsman, Bethge, on a daily basis, walked for up to two hours, stood for three to four hours, sat for an hour, and was constantly reaching and bending. (R. 50).

 On December 10, 1985, while Bethge was taking measurements to design a safety catwalk system for General Mills, he fell from a safety ladder to the floor, injuring his back. (R. 256-258). As the result of this accident, Bethge was taken by ambulance to the hospital; he was released the same day. *fn2" (R. 259).

 A physician at the hospital suggested that Bethge obtain some elastic back supports to wear. (R. 272). Bethge did not feel he could continue working at that time, as he was having headaches, and pain in his neck, lower back, and legs. (R. 259). Bethge returned to work on December 16, 1985, and continued to work until November 4, 1986. (R. 260). During the period from December 16, 1985 through November 4, 1986, Bethge indicated that he was having trouble bending to take measurements, and his pain ranged from mild to severe. (R. 260).

 Bethge sought medical treatment while he was working from Dr. Thomas F. McClenathan, a general practitioner. (R. 260-261) Dr. McClenathan, prescribed Soma, a muscle relaxant, and Valium, a sedative, after Bethge's accident. (R. 261).

 On May 19, 1986, Dr. Kailash C. Lall, a general practitioner, performed a needle electromyography, a method of recording the electrical currents generated in an active muscle, and nerve study on Bethge's left lower extremity. (R. 103). The test was normal. (R. 103-105). Bethge was later examined by Dr. Lall, on August 8, 1986. (R. 101). Dr. Lall indicated that Bethge had normal strength bilaterally in both upper and lower extremities, his muscle tone was normal, straight leg raising was normal, no reflex or sensory deficit was present, and there was no tenderness in the lumbosacral area, however, minimal muscle spasms were located along the vertebral column. (R. 101-102). Dr. Lall's diagnosis was that Bethge had a lumbar sprain, however, the prognosis was guarded as Bethge's condition did not seem to improve since the accident eight months earlier. (R. 102).

 On November 4, 1986, Bethge went to work, however, he began to have sharp pains in his back which radiated down his left leg. (R. 262). Dr. McClenathan indicated that Bethge was to stop working until he could figure out what was causing the pain. (R. 262). Bethge continued to visit Dr. McClenathan every other week until late 1986, when he was referred to Dr. H. Roy Silvers and his associate, Dr. Ikram U. Hague, both neurological surgeons. (R. 64, 264-265).

 Dr. Hague reviewed Bethge's lumbosacral x-rays and a computerized tomography scan ("CAT scan") on November 18, 1986. (R. 74). Although the official reports from these tests stated that both studies were normal, Dr. Hague believed that there might be disc herniation at the L5 to S1 level. (R. 74). Dr. Hague subsequently examined Bethge and found a mild muscle spasm next to the vertebral column which prevented full flexion of the spine. (R. 74). Dr. Hague established, however, that there was no tenderness in the lumbosacral region, straight leg raising was normal bilaterally to ninety degrees, deep tendon reflexes were normal, Bethge had no motor or sensory deficit, and gait was normal. (R. 74-75). Dr. Hague opined that Bethge's complaints were suggestive of lumbar disc herniation, however, the physical findings were "unimpressive." (R. 75). Dr. Hague recommended that Bethge have a myelogram, an x-ray visualization or photography of the spinal cord after a radiopaque substance is injected into the spinal area, to determine whether a disc problem was present. (R. 64, 75, 265).

 Dr. Hague subsequently examined Bethge on December 18, 1986, and found a mild spasm next to the vertebral column which prevented full flexion of the spine, and some mild tenderness in the lumbar region. (R. 64). Straight leg raising was to seventy degrees on the left, and almost ninety degrees on the right. (R. 64). New x-rays of both hips taken by Dr. Hague were normal, and no motor or sensory deficit was found. (R. 64).

 On January 7, 1987, Bethge was admitted to Mercy Hospital for a myelogram. (R. 61, 69). The attending physician examined Bethge and found that Bethge's straight leg raising was to seventy degrees on the left, and ninety degrees on the right. (R. 62). Bethge's strength was fair, his gait was slow, but normal, and he had no sensory deficit. (R. 62). The attending physician's impression was that Bethge's lower back pain was probably the result of the slipping of a lumbar disc from its usual location. (R. 62). Dr. Silvers also examined Bethge on January 7, 1987. (R. 59-60). An electromyography and nerve conduction study were normal, and lumbosacral spine films and a neurological examination were essentially unremarkable. (R. 60). A CAT scan was also performed by Dr. Silvers, which was found to be normal. (R. 60). Dr. Noel M. Chiantella, a roentgenologist, subsequently performed a lumbar myelogram which showed a small external defect of questionable significance on the left side at the L3 to L4 and L5 to S1 levels. (R. 60, 69). A second CAT scan was performed post-myelography in order to more closely evaluate the anomaly. (R. 60, 69). Dr. Chiantella's impression was that the L3 to L4 and L4 to L5 levels were unremarkable, but there appeared to be L5 to S1 central disc herniation. (R. 69).

 A bone flow study was also performed on Bethge on January 7, 1987. (R. 70). The lumbosacral spine appeared to be normal, however, there were abnormalities in both knee joints as well as ankle joints, which were attributed to degenerative arthritic changes. (R. 70).

 Dr. Silvers examined Bethge on January 19, 1987, R. 96, finding Bethge's myelogram was unremarkable; however, the post-myelogram CAT scan showed a central disc herniation at the L5 to S1 level. (R. 96). Dr. Silvers explained the microdiscectomy, the surgical procedure he recommended, and its risks to Bethge, who indicated that he understood the risks and accepted them. (R. 96).

 X-rays were again taken of Bethge's lumbosacral spine on March 4, 1987, by Dr. Henry Young S. Oh, a roentgenologist, R. 97, which showed normal alignment of the spine, with disc spaces preserved. (R. 97). There was no evidence of any degenerative abnormalities, and Dr. Oh's impression was that Bethge had a normal lumbosacral spine. (R. 97).

 Notwithstanding Dr. Oh's findings, on March 22, 1987, Bethge was admitted to the hospital for a microdiscectomy at the L5 to S1 level which was scheduled for March 23, 1987. (R. 76, 266). The surgery was performed by Dr. Hague, R. 79-81, 90, 266, and Bethge was discharged from the hospital on March 28, 1987. (R. 77).

 After the surgery, on April 15, 1987, Dr. Silvers indicated that Bethge's condition had improved, though he still complained of pain in his left leg. (R. 77, 83, 118). Dr. Silvers watched Bethge walk into the medical building carrying the cane, yet when he walked to the examining room with the cane, Bethge acted as if he could barely walk. (R. 118). Dr. Silvers found that Bethge had zero mobility of his spine when he was asked to bend forward from a standing position, however, when Bethge sat down, he could flex his spine to ninety degrees. (R. 118). The doctor indicated that these findings were "incongruous." (R. 118). Dr. Silvers found no lumbar muscle spasm present, however when he touched Bethge's back, Bethge would jump in pain. (R. 118). Further, Dr. Silvers stated that although Bethge complained of swelling in his legs, the doctor could not find any edema, an accumulation of an excessive amount of watery fluid in the cells or tissue, or swelling. (R. 118). When Bethge performed the straight leg raising, he complained of pain immediately when Dr. Silvers lifted his leg, however, when Dr. Silvers lifted either leg slowly, the test was normal (R. 118). Additionally, when Bethge performed the straight leg raising in a seated position, he did not complain at all. (R. 118). Further tests indicated that Bethge's knee and ankle jerks were normal, however, he had weakness in both hip flexors, and the muscles in his feet. (R. 118). Dr. Silvers indicated that these tests were fairly subjective and the results did not truly indicate weakness. (R. 118). Dr. Silvers also noted that Bethge had sensory loss to pinprick in his entire left leg. (R. 118). Dr. Silvers' impression was that Bethge's complaints were functional, an ailment not caused by a structural defect, but rather a function of the mental processes, and he requested a CAT scan of the lumbar spine. (R. 119). Dr. Silvers also prescribed Equagesic, a muscle relaxant. (R. 119).

 On May 11, 1987, a CAT scan was performed on the L4 to S1 levels of Bethge's back. (R. 117). Dr. Silvers indicated that he could identify post-surgical changes, however, a recurrent disc could not be diagnosed based on the study. (R. 117). Dr. Silvers examined Bethge again on May 13, 1987. (R. 116). At that time, Bethge was experiencing lower back pain, but no leg pain. (R. 116). Bethge's neurological examination was unchanged from previous examinations, and was unremarkable. (R. 116). Dr. Silvers prescribed Motrin, an analgesic drug, to help relieve Bethge's back pain. (R. 116).

 On June 10, 1987, Bethge was reexamined by Dr. Silvers. (R. 115). Dr. Silvers indicated that Bethge's neurological examination was unremarkable, and that Bethge stated he was experiencing only forty to fifty percent of the pain he experienced before the surgery. (R. 115). Dr. Silvers noted that if Bethge did not improve on his own within one month, the doctor would admit for a myelography. (R. 115).

 Dr. Silvers examined Bethge on July 22, 1987. (R. 114). Although Bethge continued to complain of back and left leg pain, he stated that the pain was only about forty to fifty percent of the pain he experienced before the surgery. (R. 114). Bethge's neurological examination was unremarkable, however, Dr. Silvers indicated that he believed Bethge to be partially disabled, specifically, thirty to forty percent disabled. (R. 114).

 A neurological evaluation of Bethge was performed by Dr. Patrick J. Hughes, a neurologist, on September 11, 1987. (R. 108). Dr. Hughes found that Bethge had extreme tenderness of the lower back, and all movements of the lower back were limited to a few degrees. (R. 108-109). Straight leg raising produced complaints of severe low back pain at about twenty degrees. (R. 109). Dr. Hughes indicated that Bethge had weakness in the muscles on the left side of his left foot, however, ankle jerk was normal, and sensation was intact. (R. 109). Based on this examination, Dr. Hughes indicated that Bethge had a herniated disc, but no objective findings substantiated his complaints of pain. (R. 109). Dr. Hughes believed that Bethge was no longer disabled and that he was not in need of any further medical treatment. (R. 109).

 On September 15, 1987, Bethge was examined by Dr. Lall. (R. 100). At that time, Bethge indicated that he was experiencing pain in his back, and was using a cane to walk. (R. 100). Dr. Lall found that his straight leg raising test was abnormal, and told Bethge that he should have a myelogram done. (R. 100).

 Dr. Silvers again examined Bethge on October 12, 1987. (R. 112). He indicated that Bethge originally claimed that his pain was only about forty to fifty percent of the pain before his surgery, however, Bethge felt, at the time of examination, that the back pain was as severe as it had been prior to the surgery. (R. 112). Bethge also claimed that he experienced pain in his right hip, tingling, numbness, and weakness in both legs. (R. 112). On examination, Dr. Silvers found that despite a marked limitation in the range of motion of Bethge's lumbosacral spine, no muscle spasm was present, and reflexes and straight leg raising were normal. (R. 112). Dr. Silvers recommended a myelogram, and indicated that Bethge's pain could be the result of a recurrent disc problem. (R. 113).

 On November 12, 1987, Dr. McClenathan sent a progress report to the Workers Compensation Board based on an examination on November 10, 1987, indicating that Bethge was totally disabled, and continued to have lower back pain and muscle spasms. (R. 132). Dr. McClenathan recommended that Bethge have a myelogram. (R. 132).

 Dr. Hughes performed a second neurological evaluation of Bethge on November 21, 1987. (R. 107). Dr. Hughes noted that Bethge walked with his cane, and stood about ten degrees in the forward flexed position. (R. 107). Dr. Hughes also found that Bethge had an exaggerated curvature of the lumbar spine. (R. 107). Although Dr. Hughes found no muscle spasm, Bethge complained that all movements of his lower back were limited as the result of severe pain. (R. 107). Straight leg raising also produced complaints of severe pain. (R. 107). Bethge's reflexes were normal, and there was no weakness in the muscles of his feet. (R. 107). As Dr. Hughes found that the weakness and sensory abnormalities that Bethge previously complained of had all disappeared, and Bethge's neurological examination had changed, he opposed the recommendation that Bethge have a myelogram. (R. 107). Dr. Hughes indicated that he believed his impression of September 11, 1987, that Bethge had a herniated disc but was no longer disabled, to be correct. (R. 107).

 Dr. Francis Fernandez, a roentgenologist, took x-rays of Bethge's chest and lumbosacral spine on February 1, 1988. (R. 147). Dr. Fernandez found that Bethge had no active cardiopulmonary disease, and that there was mild disc space narrowing at the L5 to S1 level with minimal degenerative changes in the lower lumbar region. (R. 147). Two days later, on February 3, 1988, Bethge was admitted to the hospital for a myelogram. (R. 139-140). Dr. Silvers examined Bethge, and found that he had a limited range of motion of the lumbosacral spine, but no muscle spasm was present. (R. 140). The examination was normal except for depressed left ankle jerks, which were present before the operation. (R. 140). The myelogram and a CAT scan of the lumbar spine were performed by Dr. Fernandez. (R. 143). The results of these tests indicated that there was mild bulging at the L4 to L5 and L5 to S1 levels, but no disc herniation was identified. (R. 143).

 Dr. Silvers examined Bethge on February 9, 1988. (R. 111). Bethge had recently had both a myelogram and a CAT scan, both of which were normal, and showed no evidence of a disc recurrence. (R. 111). However, as Bethge continued to complain of back pain radiating into his left leg, Dr. Silvers recommended trying a nerve block to see if Bethge could be a candidate for percutaneous facet rhizotomy, the sectioning off of a spinal nerve root to relieve pain. (R. 111).

 Dr. McClenathan referred Bethge to Dr. James J. White, an orthopedic surgeon, (R. 164, 270). Dr. White examined Bethge on April 28, 1988, and found that he had difficulty with toe and alternate heel walking, and hypersensitivity of his lumbar spine. (R. 161-163). Bethge had difficulty standing in an erect position, and weakness in both extensor hallucis longus muscles, the muscles located on the top of each foot. (R. 162). Dr. White also found slight depression of the left ankle reflex, although Bethge's knee reflexes were normal. (R. 162). Bethge's straight leg raising was also normal. (R. 162). Dr. White took an x-ray of Bethge's lumbar spine which showed some disc space narrowing at the L4 to L5 and L5 to S1 levels. (R. 162). After examining Bethge and reviewing his CAT scans and myelograms, Dr. White opined that Bethge had degenerative lumbar disc disease at both the L4 to L5 and L5 to S1 levels, with some instability at the L4 to L5 level. (R. 162-163). Dr. White also found evidence of spinal stenosis, a narrowing of the spinal nerve canal, which he believed was a complicating factor. (R. 163). However, Dr. White indicated that he believed there to be "evidence of a significant functional overlay," *fn3" and Bethge's subjective complaints and functional findings were "well out of proportion to his lumbar pathology." (R. 163). Dr. White recommended that Bethge wear a lumbosacral corset and receive psychological help. (R. 163).

 On June 3, 1988, Dr. White reexamined Bethge. (R. 160). Bethge continued to complain of lower back pain, although he indicated that the corset did give him some relief. (R. 160). Dr. White stated that Bethge had a moderate degree of permanent partial disability, and that he could be employed in a sedentary job with the restriction that he stand or sit for only an hour at a time. (R. 160).

 Dr. White reexamined Bethge on October 31, 1988. (R. 159). Bethge continued to complain of lower back pain radiating into his left leg. (R. 159). On examination, Dr. White found slightly depressed ankle jerk, which was consistent with his previous surgery, and some anomalous sensation in his left leg. (R. 159). The doctor indicated that Bethge had a partial permanent disability, however, he was not totally disabled from employment. (R. 159). Dr. White noted that Bethge should limit his lifting and bending activities to no more than fifty pounds, and the doctor reiterated that Bethge's subjective complaints were out of proportion with his lumbar pathology. (R. 159). In view of Bethge's continuing complaints, Dr. White recommended that a magnetic resonance imaging scan ("MRI") be taken. (R. 159).

 An MRI was performed on Bethge by Dr. Jerald P. Kuhn on January 10, 1989. (R. 158). The MRI indicated that Bethge had marked lateral bulging at the L3 to L4 level, diffuse disc degeneration and herniation associated with bulging at the L4 to L5 level. (R. 158). Dr. Kuhn noted that there appeared to be compression of the L5 root and the L4 root could also be involved. (R. 158). At the L5 to S1 level, the doctor found disc degeneration, bulging, and disc protrusion, as well as bilateral narrowing of the nerve canals. (R. 158).

 Dr. White again examined Bethge on January 23, 1989. (R. 156). He indicated that Bethge had a normal neurological evaluation except for the depression of his left ankle reflex, and it was the doctor's belief that Bethge's major complaint and problem was secondary to degenerative lumbar disc disease and associated narrowing of the nerve canals. (R. 156).

 On February 20, 1989, Dr. McClenathan sent a progress report to the Workers Compensation Board indicating that Bethge continued to have lower back spasms, and was totally disabled. (R. 131). Dr. McClenathan prescribed Flexeril, a muscle relaxant, to help ease Bethge's back pain and muscle spasms. (R. 131). Dr. McClenathan submitted another progress report to the Workers Compensation Board on June 1, 1989 indicating that Bethge continued to have significant complaints of lower back pain which radiated down his left leg. (R. 130). Dr. McClenathan stated that Bethge had significant lumbar disc disease and narrowing of the nerve canals, and was totally disabled. (R. 130). Bethge continued to take muscle relaxants to ease his back pain. (R. 130).

 Dr. White examined Bethge again on June 12, 1990. (R. 155). Dr. White indicated that Bethge's neurological examination was normal except for the depression of his left ankle reflex. (R. 155). The doctor believed that Bethge could tolerate his symptoms, and that there was nothing more he could do to provide Bethge with relief. (R. 155).

 On February 26, 1991, Dr. McClenathan submitted a final progress report to the Workers Compensation board indicating that Bethge was totally disabled. (R. 129). On examination, Dr. McClenathan found that Bethge was capable of thirty degree elevation on straight leg raising of both the right and left leg, and that there continued to be restricted forward body flexion. (R. 129). Dr. McClenathan prescribed Flexeril and Meprobamate, both muscle relaxants. (R. 129).

 Dr. Chiantella took x-rays of Bethge's pelvis and lumbosacral spine, and a CAT scan of his lumbosacral spine on June 17, 1991. (R. 134). Dr. Chiantella's impressions were mild degenerative disc disease at the L5 to S1 level, no evidence of herniated disc at any level, however, there was bulging at the L3 to L4, L4 to L5 and L5 to S1 levels, and the suggestion of mild disc degeneration at the L3 to L4 level. (R. 134-135).

 Dr. White sent a letter to Bethge's counsel on September 13, 1991 regarding his examination of Bethge on the same day. (R. 153-154 ). Dr. White told Bethge that he felt Bethge "copped out." (R. 153). The doctor found straight leg raising to be normal, although there was slight weakness in the muscles on top of both feet, and a depression of Bethge's left ankle reflex. (R. 153). Dr. White indicated that Bethge's condition was permanent as Bethge did not want any further surgery. (R. 153). However, Dr. White felt that much could be done to improve Bethge's back problems, and that there would be an eighty to ninety percent chance of success with surgery. (R. 153-154).

 On June 29, 1992, Dr. Edward D. Simmons, an orthopedic and spinal surgeon, examined Bethge regarding his lower back pain. (R. 178-180). Dr. Simmons found that Bethge walked with a slow gait and stood with normal posture. (R. 179). Bethge did have tenderness over the L4 to S1 area, and his ranges of motion were somewhat limited. (R. 179). Bethge also had slightly decreased sensation to pinprick and light touch over the left foot and calf. (R. 179). Dr. Simmons found Bethge's strength in all muscle groups and his deep tendon reflexes to be normal. (R. 179). Straight leg raising aggravated Bethge's lower back pain and produced pain in his thigh at fifty degrees, however, Bethge maintained a full range of motion in both hips, but experienced increased lower back pain on full internal or external rotation. (R. 179).

 Dr. Simmons also found tenderness over the C2 to C4 area, with limited ranges of motion associated with stiffness and pain in the back of Bethge's neck. (R. 179). A neurological examination of the upper extremities was normal, and Bethge had a full range of motion in both shoulders. (R. 179). X-rays were taken of Bethge's lumbar spine which revealed slight loss of disc height at the L4 to L5 and L5 to S1 levels. (R. 179). Dr. Simmons also reviewed the MRI performed one year before and found disc herniation and degeneration at the L4 to L5 level. (R. 179). Dr. Simmons' impression was that Bethge had ongoing problems with back pain radiating to his legs. (R. 180). Dr. Simmons felt that Bethge should be examined by a rehabilitation specialist to determine whether further conservative or non-operative treatment would help him. (R. 180). Ultimately, Dr. Simmons believed that if Bethge continued to be severely symptomatic, that an L4 to L5 discectomy with L4 to S1 fusion should be performed. (R. 180).

 On October 7, 1992, Dr. Simmons reexamined Bethge. (R. 177). Dr. Simmons noted that Bethge's back was tender over the L4 to S1 area, and he could only bend forward to thirty degrees. (R. 177). Dr. Simmons indicated that Bethge was totally disabled, and invited suggestions from Dr. McClenathan as to possibilities for alternative conservative care. (R. 177). Dr. Simmons then referred Bethge to Dr. Andrew C. Matteliano, a physical medicine and rehabilitation specialist, for an evaluation on November 12, 1992. (R. 175-176).

 Dr. Matteliano noted that Bethge complained of pain radiating down both legs, constant lower back pain, a limited range of motion in his back, and numbness over the top of his left foot. (R. 175). On examination, Dr. Matteliano found Bethge's forward flexion to be limited to thirty or forty degrees, extension was painful, and Bethge stood in a stooped position as a result of his pain. (R. 175). Straight leg raising was to about forty degrees on each side, his knee reflexes were normal, there was some weakness in the muscle on top of the left foot, and sensory loss over the left L5 dermatome, the area of skin supplied by branches of a single spinal nerve. (R. 175). Dr. Matteliano suggested that a needle electrode examination be performed to look for any acute findings, and sent Bethge to a spine rehabilitation program. (R. 176). Dr. Matteliano also indicated that Bethge was totally disabled from working at that time. (R. 176).

 An electrodiagnostic consultation study was performed on Bethge on December 16, 1992. (R. 173-174). Dr. Matteliano found that the results of this study showed no evidence of acute disease of the spinal nerve roots, and moderate to severe back pain. (R. 174).

 Dr. Matteliano sent an update to Dr. Simmons regarding Bethge on January 14, 1993. (R. 171). Dr. Matteliano indicated that Bethge was not doing very well and could only move fifteen pounds during the time he spent at the spine center. (R. 171). Dr. Matteliano stated that this was "not very good and certainly not compatible with his size," and that Bethge had back pain the entire time he was in therapy. (R. 171). Dr. Matteliano then stated that Bethge remained disabled, and he would examine Bethge again after another month of therapy. (R. 171).

 On March 1, 1993, Dr. Simmons reexamined Bethge, and found that Bethge had difficulty rising from a seated position, and fifty percent forward flexion and extension of his back. (R. 170, 184). Bethge was continuing physical therapy, which he believed gave Bethge slight improvement with his back problems, however, Dr. Simmons indicated that Bethge was unable to return to work at that time. (R. 170, 184).

 On May 14, 1993, Dr. Matteliano sent a letter to Bethge's counsel indicating that based on a review of Bethge's file, he believed that Bethge's condition totally precluded him from returning to any sort of work, and his disability was total and permanent. (R. 189-191).

 DISCUSSION

 A person is entitled to disability insurance benefits under the Social Security Act if he is unable:

 

. . . to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.... An individual shall be determined to be under a disability only 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)(1)(2).

 Once the claimant proves that he is severely impaired and is unable to perform any past relevant work, the burden shifts to the Secretary to prove that there is alternative employment in the national economy suitable to the claimant. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

 I. Standard and Scope of Judicial Review

 The standard of review for courts reviewing administrative findings regarding disability insurance benefits, 42 U.S.C. §§ 401-433 (1988), is whether the administrative law judge's findings are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Substantial evidence requires enough evidence that a reasonable person would "accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938).

 When the Secretary is evaluating a claim, she must consider "objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability (testified to by the claimant and others), and . . . educational background, age and work experience." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris, 645 F.2d 122 (2d Cir. 1981)). If the opinion of the treating physician is supported by medically acceptable techniques and results from frequent examinations, and the opinion supports the administrative record, the treating physician's opinion will be given controlling weight. *fn4" Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d).

 The Secretary's final determination will be affirmed, absent legal error, if it is supported by substantial evidence. Dumas v. Schweiker, supra, at 1550; 42 U.S.C. § 405(g) (1988). "Congress has instructed us that the factual findings of the Secretary, if supported by substantial evidence, shall be conclusive." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

 The applicable regulations establish a five-step analysis that the Secretary must follow in determining eligibility for disability insurance benefits. 20 C.F.R. §§ 404.1520, 416.920 (1994). See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982). The first step is to determine whether the applicant is engaged in substantial gainful activity. 20 C.F.R. § § 404.1520(b), 416.920(b). If the individual is engaged in such activity the inquiry ceases and the individual cannot be eligible for disability benefits. Id. The next step is to determine whether the applicant has a severe impairment which significantly limits his or her physical or mental ability to do basic work activities, as defined in the regulations. 20 C.F.R. § § 404.1520(c), 416.920(c). Absent an impairment, the applicant is not eligible for disability benefits. Id. Third, if there is an impairment and the impairment, or an equivalent, is listed in Appendix 1 of the regulations and meets the duration requirement, the individual is deemed disabled, regardless of the applicant's age, education or work experience, 20 C.F.R. §§ 404.1520(d), 416.920(d), as, in such a case, there is a presumption that an applicant with such an impairment is unable to perform substantial gainful activity. *fn5" 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1520. See also Cosme v. Bowen, 1986 WL 12118, at *2 (S.D.N.Y. 1986); Clemente v. Bowen, 646 F. Supp. 1265, 1270 (S.D.N.Y. 1986).

 However, as a fourth step, if the impairment or its equivalent is not listed in Appendix 1, the Secretary must then consider the applicant's "residual functional capacity" and the demands of any past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the applicant can still perform work he has done in the past, the applicant will be denied disability benefits. Id. Finally, if the applicant is unable to perform any past work, the Secretary will consider the individual's "residual functional capacity," age, education and past work experience in order to determine whether the applicant can perform any alternative employment. 20 C.F.R. §§ 404.1520(f), 416.920(f). See also Berry v. Schweiker, supra, at 467 (where impairment(s) are not among those listed, claimant must show that he is without "the residual functional capacity to perform [his] past work"). If the Secretary finds that the applicant cannot perform any other work, the applicant is considered disabled and eligible for disability benefits. Id. The applicant bears the burden of proof as to the first four steps, while the Secretary bears the burden of proof on the final step relating to other employment. Berry, supra, at 467. In reviewing the administrative decision, the court must follow this five-step analysis to determine whether there was substantial evidence on which the Secretary based her decision. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).

 1. Substantial Gainful Activity

 The first inquiry is to determine whether the applicant is engaged in substantial gainful activity. "Substantial gainful activity" is defined as "work that involves doing significant and productive physical or mental duties and is done for pay or profit." 20 C.F.R. § 404.1510 (1994).

 In this case, the ALJ found that Bethge had not been engaged in substantial gainful employment since November 4, 1986. (R. 18). There is no dispute that Bethge has not been gainfully employed since that time.

 2. Severe Physical or Mental Impairment

 The next step of the analysis is to determine whether Bethge had a severe physical or mental impairment significantly limiting his ability to do "basic work activities."

 "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:

 

. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking, understanding, carrying out, remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting.

 20 C.F.R. § 404.1521(b)(1)(2)(3)(4)(5)(6).

 Further, a physical or mental impairment is severe if it "significantly limit(s)" the applicant's physical and mental ability to do such basic work activities. 20 C.F.R. § 404.1521(a).

 The ALJ concluded that Bethge had back problems which caused lower back pain, limiting his ability to perform basic work activities. (R. 13, 15, 18). There is substantial evidence in the record demonstrating that Bethge has suffered significant pain because of his back condition, and he has been diagnosed and treated by several doctors for back problems and the resulting pain. (R. 60-62, 64, 69, 74-76, 96-97, 100-102, 107-109, 112-118, 130-132, 140, 143, 147, 158-164, 175-177, 179-180, 189-191).

 The ALJ concluded that Bethge suffered from this back impairment and pain resulting from the condition, and continued on to the next step, a finding of whether Bethge's condition was severe enough to be set forth in the Listing of Impairments at Appendix 1, 20 C.F.R. Pt. 404, Subpt. P.

 3. Listing of Impairment, Appendix 1

 The third step is to determine whether a claimant's impairment or impairments are listed in the regulations at Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P. If the impairments are listed in the Appendix, they are considered severe enough to prevent an individual from performing any gainful activity. 20 C.F.R. § 404.1525(a). As noted, the ALJ determined that Bethge suffered from a back problem which caused him pain. (R. 15, 18-19). The ALJ concluded, however, that Bethge's problems were not of the severity specified in the Listing of Impairments at Appendix 1, 20 C.F.R. Pt. 404, Subpt. P. (R. 15, 18-19). There is no dispute that Bethge did not meet the requirements of Section 1.05, and therefore, he was not disabled under that section.

 Bethge maintains that he is totally disabled as a result of his back problems and the pain associated with these problems. Pain itself may be so great as to merit a conclusion of a disability where a medically ascertained impairment is found, even if the pain is not corroborated by objective medical findings. Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). However, for pain to be considered a disability, an impairment must first be diagnosed, and then the pain caused by the impairment may be found to be disabling even though the impairment ordinarily does not cause severe, disabling pain. Gallagher, supra, at 84. See, e.g., Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir. 1981) (pain caused by Marie-Strumpell type spondylitis); Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980) (pain caused by heart disease); Marcus v. Califano, 615 F.2d 23 (2d Cir. 1979) (pain caused by osteoporosis). While subjective complaints of pain are not alone sufficient to support a finding of disability, such complaints must be accorded weight when they are accompanied by "evidence of underlying medical condition" and an "objectively determined medical condition [which is] of a severity which can reasonably be expected to give rise to the alleged pain." Cameron v. Bowen, 683 F. Supp. 73, 77 n.4 (S.D.N.Y. 1984). See, e.g., Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989) (where plaintiff's claim of disabling back pain was supported by objective clinical findings, such as narrowing of the discs, loss of ankle jerk, and paraspinal muscle spasm, claim was entitled to great weight).

 In the instant case, the subjective evidence of Bethge's pain, based on his own testimony and the medical reports of examining physicians, indicated that Bethge was experiencing severe pain. (R. 60-61, 63, 74-75, 84, 107-109, 111-116, 118, 123, 125-126, 130-132, 141-142, 153-157, 159-163, 170, 172, 175-180, 184, 189-191). However, it is clear that the ALJ is not required to "accept without question the credibility of such subjective evidence." Marcus, supra, at 27. "The ALJ has discretion to evaluate the credibility of the claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." Marcus, supra, at 27. Where, as here, an ALJ chooses to discredit claims of severe and disabling pain after weighing the objective medical evidence in the record, claimant's demeanor, and other indicia of credibility, the rejection of such claims is supported by substantial evidence. Marcus, supra, at 27. In this case, the court finds that the ALJ's decision to place greater weight on the objective medical evidence and opinions was justified.

 Clinical medical evidence showed that Bethge suffered from back injuries, including mild bulging at the L3 to L4, L4 to L5 and L5 to S1 levels, mild disc space narrowing at the L4 to L5 and L5 to S1 levels, and minimal degenerative changes in the lower lumbar region. (R. 134-135, 143, 147, 158, 162-163, 179). While it appears clear that Bethge suffers from some degree of back pain which can be mild at times and severe at other times, there is substantial evidence on the record to support the ALJ's findings that the objective medical evidence presented at the hearing did not establish an impairment relating to Bethge's pain severe enough to constitute a finding of disability. Absent such an impairment, Bethge's subjective claims of pain are not sufficient to support a finding of a disability. See Manning v. Secretary of Health and Human Services, 904 F.2d 707 (6th Cir. 1990) (objective medical evidence did not confirm that alleged severity of the pain which plaintiff claimed to be experiencing). Thus, the ALJ expressly found that Bethge suffered from back injuries and pain as a result thereof, however, based on the objective medical evidence presented in the record and the ALJ's conclusion that Bethge was not a credible witness, *fn6" the ALJ decided that Bethge was not disabled. (R. 19).

 Bethge contends that the ALJ misapplied the treating physician rule in reaching her decision as on May 14, 1993, one of Bethge's treating physicians, Dr. Matteliano, reported that Bethge was completely disabled from any work. (R. 189-191). Further, Bethge argues that the opinions of some of his other physicians, including Drs. McClenathan, White, and Simmons also indicated that Bethge was disabled, and the ALJ did not give these opinions proper consideration. (R. 114, 129-132, 170-171, 176-177, 189-191).

 Generally, the Secretary grants the opinion of a treating physician controlling weight only if the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence. *fn7" Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. § 404.1527(d). The Social Security Administration regulations specify the following factors as relevant "in determining the weight to give the [treating physician's] opinion," (1) the frequency of examination and the length, nature, and extent of the treatment relationship, (2) the evidence in support of the opinion, for example, the more evidence Presented to support a medical opinion, particularly laboratory findings and other medical signs, the more weight the opinion is entitled to, (3) the opinion's consistency with the record as a whole, (4) whether a specialist formed the opinion, as specialists are entitled to more weight, and (5) other factors which are unspecified, but may contribute to the amount of weight to which a medical opinion is entitled. Schisler v. Sullivan, supra, at 567; 20 C.F.R. § 404.1527(d).

 In this case, the ALJ's apparent rejection of the medical opinions of Drs. McClenathan, White, Simmons, and Matteliano must be evaluated under these criteria to determine whether their opinions were inconsistent with other substantial evidence in the record. See Schisler v. Sullivan, supra, at 567. The ALJ reviewed the findings of several physicians who examined Bethge, including two treating general practitioners, Drs. McClenathan and Lall, and ten specialists, Drs. Silvers, Hague, Chiantella, Oh, Hughes, Fernandez, White, Kuhn, Simmons, and Matteliano, in making her decision.

 Dr. McClenathan began treating Bethge shortly after his injury. (R. 260-261). On November 4, 1986, Dr. McClenathan told Bethge that he should stop working until the doctor could determine the cause of his pain. (R. 262). At that time, Dr. McClenathan referred Bethge to neurological specialists. (R. 64, 264-265). Bethge was not examined again by Dr. McClenathan until November 10, 1987, nearly seven months after his surgery. (R. 132). At that time, Dr. McClenathan reiterated Bethge's complaints of pain in his progress report to the Workers Compensation Board, and indicated that Bethge was totally disabled. (R. 132). However, Dr. McClenathan presented no records or other objective evidence to substantiate his opinion that Bethge was totally disabled from work at that time. (R. 132).

 One month before Bethge was examined by Dr. McClenathan, Dr. Silvers found no muscle spasm present, normal reflexes and a normal straight leg raising test. (R. 112). Additionally, eleven days after Dr. McClenathan examined Bethge, Dr. Hughes found no evidence of muscle spasm, normal reflexes, and no weakness or sensory abnormalities. (R. 107). Further, Dr. Hughes reiterated his opinion that Bethge had a herniated disc, but no objective findings substantiated his claims of pain. (R. 107, 109). Dr. Hughes believed that Bethge was no longer disabled and he no longer required any medical treatment. (R. 107, 109).

 Bethge was examined by Dr. McClenathan again on February 14, 1989, and the doctor submitted another Workers Compensation progress report indicating that Bethge was totally disabled, but failed to support this finding with any objective medical evidence. (R. 131). On January 10, 1989, Bethge had an MRI which indicated that there was disc bulging at the L3 to L4 level, diffuse disc degeneration and herniation associated with the bulging at the L4 to L5 level, and disc degeneration, bulging, and protrusion at the L5 to S1 level. (R. 158). Dr. White examined Bethge on January 23, 1989 and found that Bethge had a normal neurological evaluation, with the exception of the depression of his left ankle reflex, which was the result of his prior surgery. (R. 156). At that time, Dr. White stated that Bethge probably had a "moderate degree of permanent partial disability," however, as Dr. White explained in his examination of October 31, 1988, "[Bethge] has learned to live with his present degree of pain . . . he certainly is not totally disabled for employment, [however] he should limit his lifting and bending activities to no more than 50 pounds." (R. 159). These reports of Dr. White's were submitted to Dr. McClenathan for Bethge's medical file. (R. 156-159).

 Dr. McClenathan examined Bethge on March 13, 1989, April 24, 1989, and May 30, 1989. (R. 130). At the time Dr. McClenathan submitted his progress report to the Workers Compensation Board regarding these appointments, he indicated that Bethge continued complain of lower back pain with pain radiating down his left leg, and that Bethge had significant lumbar disc disease and narrowing of the lateral recesses. (R. 130). Once again, Dr. McClenathan did not present any objective medical evidence or reports to explain why he found Bethge's condition to be totally disabling, further, his conclusions were not consistent with the reports that he received from the specialists who were also treating Bethge. (R. 130). Almost two years later, on February 25, 1991, Dr. McClenathan submitted a final progress report to the Workers Compensation Board. (R. 129). This report indicated that Bethge stated he was having spasms in his lower back, and Dr. McClenathan indicated that Bethge's range of motion was limited to thirty degrees on each leg on straight leg raising, and his forward body flexion was "restricted." (R. 129). Dr. McClenathan then found that Bethge continued to be totally disabled. (R. 129).

 During the time period from 1989 through 1991, x-rays were taken of Bethge's pelvis and lumbosacral spine, and a CAT scan was performed. (R. 134). These test indicated mild degenerative disc disease at the L3 to L4 and L5 to S1 levels, and bulging at the L3 to L4, L4 to L5, and L5 to S1 levels. (R. 134-135). However, there was no evidence of herniated disc at any level. (R. 134-135). Further, on September 13, 1991, Dr. White found Bethge's straight leg test to be normal. (R. 153). Dr. White believed that Bethge's subjective complaints were largely functional and "well out of proportion to his lumbar pathology," further, Dr. White thought that Bethge "copped out," as he felt there was a great deal which could be done to improve Bethge's back condition. (R. 153, 163).

  Therefore, despite Dr. McClenathan's opinion that Bethge was totally disabled, there was substantial evidence presented in the administrative record supporting the ALJ's decision to disregard, consistent with the treating physician rule, Dr. McClenathan's opinion as to Bethge's total disability.

  The Social Security Administration also received reports from Dr. White, a treating orthopedic surgeon, from April 1988 to September 1991. (R. 150-163). Although Dr. White indicated that Bethge had a "moderate degree of permanent partial disability," he also stated that Bethge was not totally disabled for employment, but that he should limit his lifting and bending to less than fifty pounds. (R. 157, 159). Dr. White's opinion was based on several examinations, as well as the CAT scans, myelograms, and x-rays taken from 1986 through 1989. (R. 158, 162). Moreover, Dr. White indicated that Bethge's subjective and functional findings were "well out of proportion to his lumbar pathology," and that Bethge would benefit from psychological help. (R. 163). Despite the fact that Dr. White found a partial permanent disability, this finding is not inconsistent with the ALJ's decision that Bethge was capable of performing his past work, with some adjustments. Therefore, as Dr. White's opinion is not contrary to that of the ALJ, it is supported by substantial evidence in the record.

  Bethge also asserts that the ALJ wrongfully ignored the medical opinions of Drs. Simmons and Matteliano. See Defendant's Cross-Motion for Judgment on the Pleadings, filed November 3, 1994, Memorandum of Law, at pp. 5-7.

  Bethge became a patient of Dr. Simmons' on June 29, 1992. (R. 178-180). At that time, Dr. Simmons determined that Bethge had slight loss of disc height at the L4 to L5 and L5 to S1 levels, and disc herniation and degeneration at the L4 to L5 level, as well as ongoing problems with back pain radiating into his leg. (R. 179-180). Despite this diagnosis, Dr. Simmons found that Bethge stood with a normal posture, had good strength in all muscle groups, his deep tendon reflexes were normal, neurological examination of the upper extremities was normal, and Bethge had a full range of motion in both shoulders. (R. 178-180). Dr. Simmons examined Bethge again on October 7, 1992, at which time he found that Bethge's back continued to be tender, and he could only bend forward to thirty degrees. (R. 177). Based on these two examinations, Dr. Simmons indicated that Bethge was totally disabled, and referred him to a rehabilitation specialist, Dr. Matteliano. (R. 177).

  Dr. Matteliano examined Bethge on November 12, 1992. (R. 175). Bethge complained that he experienced constant lower back pain which radiated down both legs, a limited range of motion in his back, and numbness on top of his left foot. (R. 175). On examination, Dr. Matteliano found Bethge's forward flexion to be limited to thirty or forty degrees, straight leg raising to be limited to forty degrees, extension to be painful, weakness in the top of Bethge's left foot, and a slight loss of sensation over the L5 dermatome, the doctor also noted that Bethge stood in a stooped position. (R. 175). Based on these findings, Dr. Matteliano declared that Bethge was totally disabled. (R. 176). On December 16, 1992, Dr. Matteliano received the results from an electrodiagnostic study he ordered. (R. 173-174). The study showed no evidence of acute disease of the spinal nerve roots. (R. 174). After Bethge attended therapy at the Amherst General Spine Center, Dr. Matteliano told Dr. Simmons that Bethge was not doing very well and that he experienced pain throughout his therapy. (R. 171). Dr. Matteliano still stated that Bethge was disabled. (R. 171). Dr. Matteliano wrote a letter to Bethge's counsel on May 14, 1993 indicating that He believed Bethge's condition totally precluded him from returning to any sort of work due to his "moderate to severe back pain which [was] not improving." (R. 190). Dr. Matteliano continued stating that Bethge would experience lower back pain for the rest of his life, and would continue to have limited functioning and "certainly would not be able to return back to any sort of construction type or on sight work." (R. 190).

  Dr. Simmons examined Bethge for the last time on March 1, 1993. (R. 170, 184). At that time, Dr. Simmons noted that Bethge had trouble rising from a seated position, and had fifty percent flexion of his back. (R. 170, 184). Once again, Dr. Simmons' conclusion was that Bethge was unable to return to work. (R. 170, 184).

  Although both of these doctors indicated that they believed Bethge to be totally disabled, Dr. Simmons examined Bethge only three times, and Dr. Matteliano saw him only five times. (R. 170-171, 175-180, 189-191). Further, both of their diagnoses of total disability appear to be based on Bethge's subjective complaints of pain, rather than clinical diagnostic and laboratory findings, as no x-rays, myelograms, CAT scans, or MRI's were performed during this period. (R. 170-171, 174-180, 189-191). Further, the needle electrode examination performed on December 16, 1992, did not substantiate Bethge's complaints of severe back pain as it showed no evidence of acute disease of the spinal nerve roots. (R. 173-174 ). Drs. Simmons and Matteliano used the x-rays of the cervical and lumbar spine and MRI, all of which were over a year old. (R. 179). Based on these same x-rays, MRI, CAT scans, and myelograms, Bethge's other doctors concluded that Bethge had some mild degenerative disc disease and degeneration, as well as disc bulging in the lower lumbar region, however, none of the other physicians, with the exception of Dr. McClenathan, concluded that Bethge was totally disabled from working. (R. 134-138, 143-149).

  Dr. Hughes indicated that he was opposed to Bethge having another myelogram done because "there [was] so much functional overlay in [the] case." (R. 107). Dr. Hughes found that Bethge's neurological examination had changed and his abnormalities disappeared. (R. 107). After both of the examinations in 1987, Dr. Hughes indicated that there was no question that Bethge had a herniated disc related to his injury in 1985, however, there were no objective findings to account for his continued complaints, and his symptoms were "characteristic of malingering." *fn8" (R. 109). Dr. Hughes further stated that Bethge was no longer disabled, and was capable of resuming work. (R. 109).

  Dr. Silvers also repeatedly indicated that Bethge exhibited functional overlay, in that the results of many of his tests were "incongruous" and that his symptoms had to be questioned. (R. 112-113, 116, 118-119, 140-142). Further, Dr. Silvers noted in one of his reports that Bethge's weakness in the muscles of the hips and feet was subjective, as was Bethge's sensory loss, indicating a functional component to Bethge's symptomology. (R. 118-119). Dr. Silvers stated that three weeks after the microdiscectomy, he watched Bethge enter the medical building carrying his cane, yet when Bethge entered his office, he walked as if he would fall without the support of the cane. (R. 118).

  As several of Bethge's physicians have believed, initially, that Bethge was disabled from working, after finding inconsistent test results and being unable to substantiate his complaints of pain with objective medical evidence, they have changed their diagnoses. (R. 107-109, 111-122, 140-142, 153-163). In considering the opinions of all of these doctors, it is evident that Bethge has a back problem and experiences pain as a result, however, based on Bethge's medical history, there is substantial evidence in the record to indicate that Bethge's complaints are functional, therefore, Drs. Simmons and Matteliano's opinions that Bethge is totally disabled from all work is not supported by substantial evidence. Thus, substantial evidence exists to support the ALJ's decision to disregard, consistent with the treating physician rule, Drs. Simmons and Matteliano's opinions as to Bethge's disability.

  In sum, the ALJ found that Bethge's impairment, or any equivalent, was not so severe as to be encompassed by the Listing of Impairments as identified in Appendix 1 of the regulations. 20 C.F.R. Pt. 404, Subpt. P, Appendix 1; (R. 18-19), and that Bethge's claims of disability based on severe pain were without objective support. This court finds that substantial evidence supports this determination.

  4. "Residual Functional Capacity" to Perform Past Work

  The fourth inquiry in this five-step analysis is whether the applicant has the "residual functional capacity" to perform past relevant work. "Residual functional capacity" is defined as the capability to perform work comparable to the applicant's past substantial gainful activity. Cosme, supra, at *3.

  The ALJ found that, as a result of Bethge's back condition, he would not be able to perform his past relevant work taking measurements in the field, however, he would be able to perform drafting work in an office environment by adjusting his drafting table, and avoiding prolonged standing or sitting. (R. 17-19). Although the ALJ determined that Bethge's back problems did limit the range of activities he was capable of performing, a vocational expert, Edgar J. Schiller, testified that Bethge remained capable of performing drafting work in an office environment, so long as he could move around, stand or sit at reasonable intervals. (R. 289-293 ). These recommendations were based on Mr. Schiller's review of the record, and a hypothetical posed by the judge involving a person who had training and multiple years of experience as a draftsman, who must be allowed to sit or stand at reasonable intervals, and who can lift up to ten pounds. (R. 289-293).

  The hypothetical presented to the vocational expert properly identified Bethge's past experience, as well as his physical limitations. Bethge's restrictions, the inability to lift much weight and being able to sit or stand at reasonable intervals, were also consistent with the opinions of his doctors. Therefore, as there was a substantial evidentiary basis for the hypothetical presented to the expert, the ALJ was entitled to rely on the vocational expert's testimony. See Dumas, supra, at 1553-1554.

  As the ALJ's determination that Bethge was capable of performing his past relevant work is supported by substantial evidence on the record, there is no need to address the final step, whether suitable alternative employment exists in the national economy. Parker, supra, at 230.

  Accordingly, as substantial evidence supports the ALJ's finding that Bethge is not disabled within the meaning of the law, he is not entitled to the benefits claimed.

  CONCLUSION

  Based on the foregoing, Defendant's motion should be GRANTED, and Plaintiff's cross-motion should be DENIED.

  Respectfully submitted,

  LESLIE G. FOSCHIO

  UNITED STATES MAGISTRATE JUDGE

  DATED: April 17th, 1995

  Buffalo, New York

  Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

  ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

  ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).

  Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary, of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

  Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.

  SO ORDERED.

  LESLIE G. FOSCHIO

  UNITED STATES MAGISTRATE JUDGE

  DATED: April 17th, 1995

  Buffalo, New York


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