to apply proper legal standards or to provide a full and fair hearing are grounds for judicial review. Berry, 675 F.2d at 467.
Thus, the Secretary's decision is afforded considerable deference; the reviewing court should not "substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
C. The Secretary's Determination
The ALJ complied with each of the five steps enunciated in Berry. Ultimately, the ALJ concluded that, although Jones could not return to his past work, he had the residual functional capacity to perform sedentary work. Based on this finding and Jones's age, education, and work experience, the ALJ determined that regulations promulgated by the Secretary directed a conclusion that Jones was not disabled within the meaning of the Act. (Tr. 15). Jones's principal arguments in this appeal are that the ALJ committed legal error by (1) misapplying the treating physician rule and (2) finding that Jones had a residual functional capacity for sedentary work.
1. Treating Physician Rule
Under the treating physician rule, more weight is accorded a treating physician's opinion than a consulting physician's opinion as long as the treating physician's opinion is supported by medical evidence and is not inconsistent with substantial other evidence in the record. 20 C.F.R. § 404.1527(d)(2); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). In determining whether a doctor is a treating physician, consideration will be given to the nature of the doctor-patient relationship, including the length of that relationship. Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995); Schisler, 3 F.3d at 568. Opinions of consultative physicians may override those of treating sources only if supported by substantial evidence in the record. Diaz, 59 F.3d at 313 n.5.
Here, the ALJ found that the objective medical evidence and the opinions of three consulting physicians provided substantial evidence to override Dr. Joseph Polifrone's opinion that Jones was permanently disabled. Based on my review of the record, this decision is supported by the record. First, it is important to note that the ALJ applied the appropriate legal standard, stating that Dr. Joseph Polifrone's opinion would be accorded binding weight "in the absence of substantial contradictory medical evidence." (Tr. 14).
Second, there is ample objective medical evidence in the record to support the ALJ's conclusion that Dr. Joseph Polifrone's opinion was not persuasive. Dr. Karam reported that there was no evidence of spasm, muscle atrophy, loss of sensory modality, or loss of muscle power in Jones's upper or lower extremities. (Tr. 106-07). Dr. Karam also noted that Jones could walk and stand up from a chair without any difficulty. (Tr. 106). Similarly, after multiple examinations, Dr. Swearingen was not able to find any objective symptoms supporting Jones's subjective complaints of pain. (Tr. 101). Dr. Swearingen concluded that Jones was not disabled and could be expected to return to his prior work. (Tr. 104). Finally, Dr. Wolchonok found that Jones's neck motion was unrestricted and cranial nerves were intact and concluded that Jones was permanently, but only partially, disabled. (Tr. 114).
These reports from other doctors constitute substantial evidence that is inconsistent with Dr. Joseph Polifrone's conclusion that Jones is permanently disabled. See 20 C.F.R. § 404.1527(d)(2); Schisler, 3 F.3d at 567. Given this evidence, the ALJ was entitled to reject Dr. Joseph Polifrone's opinion. Accordingly, the ALJ committed no legal error in applying the treating physician rule.
2. Residual Functional Capacity
It is the responsibility of the Secretary to determine a claimant's residual functional capacity. 20 C.F.R. § 404.1527(e)(2). In making this determination, the Secretary refers to physical exertion requirements of various types of employment available in the national economy. 20 C.F.R. § 404.1567. Here, the ALJ found that Jones had a residual functional capacity to do sedentary work. Under regulations promulgated by the Secretary, sedentary work requires
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Although the ALJ could have made a more specific finding in support of his conclusion that Jones could perform sedentary work, such as stating how many hours in a day Jones could sit, the record contains substantial evidence supporting that conclusion. Specifically, Dr. Swearingen found no objective evidence of a potentially disabling low-back or other musculoskeletal disorder. (Tr. 100-01). Further, Dr. Swearingen's concluded that Jones could resume his prior work as a bus operator plainly supports the ALJ's finding that Jones could perform sedentary work. (Tr. 104). Similarly, with respect to Jones's ability to do work-related activities, Dr. Karam found that Jones was limited only in "lifting or carrying heavy objects, pushing and pulling and bending." (Tr. 107). Dr. Karam also found that Jones had no trouble walking without a cane. (Tr. 106). Also, as noted above, Dr. Wolchonok found that Jones was permanently, but only partially, disabled and that Jones could walk on his toes and heels. (Tr. 114). Finally, Jones testified at the hearing that he could lift up to ten pounds without aggravating his condition. (Tr. 44). In sum, the record contains substantial evidence supporting the ALJ's conclusion that Jones retains the residual functional capacity to perform sedentary work.
For the reasons set forth above, Jones's motion for judgment on the pleadings is denied and defendant's cross-motion for judgment on the pleadings is granted. The final determination of the Secretary is affirmed. The Clerk of the Court is directed to enter judgment accordingly.
Dated: New York, New York
September 29, 1995
United States District Judge