Plaintiff was born on March 8, 1952. (Tr. 41). He obtained a high school equivalency degree (G.E.D.) in 1972, and attended Westchester Community College for one semester. (Tr. 43).
From 1977 to September, 1981, Plaintiff was employed as a tractor trailer driver at a garbage company. (Tr. 46, 104, 202). From October, 1981, to October, 1991, Plaintiff was employed as a fire fighter with the Yonkers Fire Department. (Id.). On October 7, 1991, while working as a fire fighter, Plaintiff tripped on something, fell and then something fell on him. (Tr. 47). He alleges that because of the fall his back began to "kill him". (Id.). Plaintiff now alleges that his back injury is so severe that he is unable to work at all, thus qualifying him for disability insurance.
On November 14, 1991, Plaintiff was examined by Doctor Nicholas DePalma, a neurosurgeon. Dr. DePalma concluded that Plaintiff "is totally disabled for his occupation at the present time." (Tr. 195).
On February 7, 1992, Doctor Robert E. Zickel, an orthopedist, examined Plaintiff. In a letter to Oracle Management Services ("Oracle") , Plaintiff's insurance carrier, Dr. Zickel concluded that Plaintiff was unable to work as a fire fighter. He also stated, however, that Plaintiff was able to perform "sedentary or light work". (Tr. 141). On March 2, 1992, in response to an inquiry from Oracle, Dr. Zickel stated that Plaintiff was able to operate a motor vehicle. (Tr. 139).
In March 1992, Plaintiff began medical treatment with Dr. John Mazella
for the pain in his back. (Tr. 191). On March 5, Dr. Mazella noted Plaintiff's history of psoriatic arthritis as well as a lumbar disc protrusion, recommended physical therapy, and concluded that Plaintiff was "totally disabled." (Tr. 163). After an April 14, 1992, follow-up examination of Plaintiff, Dr. Mazella stated that he observed some improvement, but that Plaintiff was still "totally disabled". (Tr. 163, 170, 192).
On May 19, 1992, Dr. Mazella again examined the Plaintiff. He noted that Plaintiff continued to have trouble heel walking, and demonstrated dorsiflexion weakness in his right foot. (Tr. 168, 192). Dr. Mazella sent a report to Plaintiff's attorney on October 23, 1992, summarizing June 24, July 29, and September 9, 1992, examinations. In that report, he concluded that Plaintiff was in good health other than the back pain and psoriasis, for which he was receiving light treatment. Dr. Mazella concluded, however, that Plaintiff was "totally disabled for his job as a fire fighter. (Tr. 193). Further, he opined that Plaintiff was unable to sit or stand for any prolonged period and was unable to do light or sedentary work. (Id.).
On January 29, 1993 Plaintiff underwent arthroscopic surgery on his left knee. Dr. Mazella performed the surgery. (Tr. 185-6).
On April 12, 1993, Dr. Mazella assessed Plaintiff's Residual Functional Capacity. (Tr. 206-07) . He found that Plaintiff could sit for 2 hours and stand/walk for 2 hours, frequently lift and carry 0-10 pounds, and occasionally lift and carry 10-20 pounds. (Tr. 206) . Plaintiff could bend occasionally and reach and climb steps frequently. (Id.) . Further, Plaintiff was capable of grasping, pushing/pulling, and fine manipulations with both hands and both legs. (Id.). Dr. Mazella stated that Plaintiff was moderately restricted from engaging in activities involving unprotected heights and moving machinery, and was moderately restricted from driving automotive equipment. (Tr. 207). He also found that Plaintiff's condition caused pain. (Id.).
During the period in which plaintiff was under the care of Dr. Mazella, he was also examined by Dr. Michael Rosen, an orthopedist. Following an April 15, 1992, examination and review of earlier records, Dr. Rosen generated a report summarizing his findings. In the report, Dr. Rosen stated that Plaintiff "may attempt to return to sedentary work where he did not have to do any bending, squatting, stooping, kneeling, straining, or pushing." (Tr. 147). In a letter to Oracle, dated May 28, 1992, Dr. Rosen stated that he saw no evidence of any orthopedic limitations which would prevent Plaintiff from participating in a functional capacity evaluation. (Tr. 142).
Additionally Dr. David C. Pulver, an internist with Industrial Medicine Associates, evaluated Plaintiff on June 22, 1992, at Oracle's request. (Tr. 154-57). He concluded that Plaintiff had a moderate physical disability, but was capable of sedentary activities and "should be encouraged to return to work on a light-duty basis to perform light clerical duties, phone work, or similar non-strenuous activities." (Tr. 157). A subsequent evaluation provided similar results, with Dr. Pulver adding that Plaintiff was capable of walking up and down stairs. (Tr. 154).
On August 12, 1992, at Oracle's request, Dr. Henry J. Magliato, an orthopedic surgeon and colleague of Dr. Pulver, examined the Plaintiff. (Tr. 158-61). Dr. Magliato concluded that plaintiff was capable of performing sedentary or limited capacity work at the fire department. Plaintiff was to avoid excessive amounts of bending, lifting, carrying, and prolonged sitting. Dr. Magliato also stated that Plaintiff should be allowed to get up and "perform other limited activities at the fire house." (Tr. 160). Dr. Magliato concluded, however, that Plaintiff was incapable of returning to his prior job as a fire fighter. (Tr. 160-161).
Dr. Allen Chodock, internist and rheumatologist, had been treating Plaintiff for his psoriatic arthritis since 1981. On March 16, 1993, he sent a letter to Plaintiff's attorney stating that Plaintiff had tears in the anterior horn of his right medial meniscus which made it unlikely that Plaintiff would ever be able to return to his work as a fire fighter. (Tr. 22, 181).
Subsequent to the issuance of the ALJ's decision, Plaintiff was examined by Dr. Howard Balensweig. Dr. Balensweig felt that considering Plaintiff's psoriatic arthritis and his back pain, Plaintiff was "unemployable since he can't hold a steady job" and is not competent "to have a semi-sedentary job since he can't concentrate on what he is doing." (Tr. 212).
A claimant is entitled to disability 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." 42 U.S.C. §§ 423 (d)(1)(a), 1382c(a)(3)(A). The impairment must be so severe that the person "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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C.§§ 423(d)(2)(A), 1382c(a)(3)(B).
The Secretary of Health and Human Services has established a five-step sequential process for evaluating disability insurance claims. 20 C.F.R.§§ 404.1520, 416.920. Essentially, a five step analysis of the claimant's alleged disability is to be made.
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary 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 impediment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The Claimant bears the burden as to the first four steps, and the Secretary bears the burden as to the last step. Bowen v. Yuckert, 482 U.S. 137, 146, 107 S. Ct. 2287, 2294, 96 L. Ed. 2d 119 (1987).
A district court reviewing a denial of benefits has a limited role. The court may not determine de novo whether the claimant is actually disabled. Rather, the court must affirm the Secretary's final determinations so long as they are supported by substantial evidence in the factual record and are not the product of legal error. 42 U.S.C. § 405(g). See also Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) Substantial evidence means evidence that "' ...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) (further citations omitted). Moreover, the Secretary's determination is afforded "considerable deference" and the reviewing court should not substitute "its own judgment for that of the Secretary, even if it might have justifiably reached a different result upon a de novo review." Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984). As the Second Circuit has stated:
Congress has instructed us that the factual findings of the Secretary, if supported by substantial evidence, shall be conclusive. We would be derelict in our duties if we simply paid lip service to this rule, while shaping our holding to conform to our own interpretation of the evidence.