4. Assignment of Different ALJ :
Plaintiff claims she was denied due process because the Appeals Council did not assign a different ALJ to the second hearing.
A claimant who objects to the ALJ who is to conduct her hearing is directed to notify the ALJ at her earliest opportunity. 20 C.F.R. § 416.1440. If, after considering the claimant's objections, the ALJ does not withdraw, the claimant may, after the hearing, present her objections to the Appeals Council and request that the hearing be revised or a new hearing held before another ALJ. § 416.1440.
The plaintiff did not follow this procedure, but appeared with her attorney at the second hearing before the same ALJ. Therefore, plaintiff is deemed to have waived this objection. See United States v. Tucker Truck Lines, 344 U.S. 33, 35-37, 97 L. Ed. 54, 73 S. Ct. 67 (1952).
5. Pain and Residual Functional Capacity :
The plaintiff claims that the ALJ did not properly apply Social Security Ruling ("SSR") 88-13 in evaluating her testimony concerning the extent of her pain and other symptoms. 20 C.F.R. § 416.929 essentially codified SSR 88-13 for claimants seeking SSI disability benefits.
This court recognizes that subjective pain may serve as the basis for establishing disability, as long as there are "medical signs and laboratory findings which show that [the claimant has] a medical impairments [sic] which could reasonably be expected to produce the pain or other symptoms alleged." 20 C.F.R. § 416.929(a). See also Gallagher on behalf of Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). If a claimant has a medically determinable severe impairment, but the impairment does not meet or equal a listed impairment, the ALJ must consider the impact of the claimant's impairment and any related symptoms, including pain, on the claimant's residual functional capacity. 20 C.F.R. § 416.929(d)(4).
In the present case, the ALJ found that the plaintiff's medical records showed she had varicose veins, chronic obstructive pulmonary disease related to cigarette smoking, and was "significantly overweight." (T. 43). The ALJ considered the plaintiff's impairments to be "severe" as defined by 20 C.F.R. § 416.921, but found that the plaintiff's impairments did not meet or equal any listed impairment. (T. 43). The ALJ properly proceeded to review the medical evidence and consider the impact of the plaintiff's impairments on her residual functional capacity. As noted above, the ALJ found the plaintiff's testimony of her symptoms and limitations to be exaggerated. Nonetheless, the ALJ gave the plaintiff "the benefit of doubt" and concluded that she should be restricted to sedentary work. (T. 46).
Apparently at the heart of the plaintiff's claim is her assertion that, when he found that the medical signs and laboratory findings did not substantiate a physical impairment capable of producing the alleged pain, the ALJ should have investigated the possibility of a mental impairment. (Pltf's Brief, App. A, P 3). However, 20 C.F.R. § 416.929(b) directs the development of evidence regarding the possibility of a medically determinable mental impairment only "when [the ALJ has] information to suggest that such an impairment exists." As noted above, the ALJ had no such information before him. Therefore, the plaintiff's claim is without merit.
6. Treating Physician :
The plaintiff argues that the ALJ failed to evaluate the medical evidence from her treating physicians in accordance with 20 C.F.R. § 416.927. (Pltf's Brief at 14-15, App. A). The plaintiff apparently objects to the ALJ's rejection of a questionnaire completed by G. Mark Jobson, M.D., the plaintiff's most recent treating physician.
Dr. Jobson diagnosed asthma and symptomatic varicose veins in the plaintiff's right leg. His answers to the questionnaire indicated, among other things, that the plaintiff was disabled, would have trouble working continuously six hours per day without breaks, would need to alternate standing and sitting to complete an eight-hour work day, and that her symptoms would result in frequent absences from work. (T. 239-41).
Prior to 1991, the Second Circuit's "treating physician rule" directed that the opinions of treating physicians were "binding on the fact-finder unless contradicted by substantial evidence." Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988). In 1991, the Social Security Administration promulgated new regulations which change the way that the agency and the courts review the opinion of a treating physician. See 20 C.F.R. § 416.927(d). The Second Circuit has held that the new regulations are valid and supplant the treating physician rule used by the Second Circuit prior to the new regulations. Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993).
In the present case, the ALJ set forth the old treating physician rule and cited Schisler v. Bowen. (T. 45). Further, in rejecting the questionnaire completed by Dr. Jobson, the ALJ stated that it was "not a statement of the treating physician that is binding on me." (T. 46). Nonetheless, the ALJ provided sufficient information in his decision which allows this court to determine whether he accorded Dr. Jobson's opinions the proper weight. See Sharieff v. Shalala, 877 F. Supp. 104, 108 (E.D.N.Y. 1995).
A treating physician's expert opinion as to the existence of a disability includes both the diagnosis, and the nature and degree of disability. Brandon v. Bowen, 666 F. Supp. 604, 606 (S.D.N.Y. 1987) (quoting Hidalgo v. Bowen, 822 F.2d 294, 296-97 (2d Cir. 1987)) (citation omitted). The opinion of a treating physician is entitled to controlling weight if "'it is well-supported by medically acceptable clinical and diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.'" Odorizzi v. Sullivan, 841 F. Supp. 72, 76 (E.D.N.Y. 1993) (quoting 20 C.F.R. § 404.1527(d)(2), which is identical to 20 C.F.R. § 416.927(d)(2)). If the treating physician's opinion is not given "controlling weight," its weight will depend upon the length of the treatment relationship, the frequency of examination by the treating physician for the condition(s) in question, the medical evidence supporting the opinion, the consistency of the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. § 416.927(d)(2-6); see Odorizzi, 841 F. Supp. at 76.
Here, the ALJ rejected Dr. Jobson's questionnaire, thus giving his opinion no controlling weight, based on the "lack of clinical findings to support [the doctor's] conclusions." (T. 47). The only other submission from Dr. Jobson, submitted to the Appeals Council on review of the ALJ's decision, is a cryptic handwritten note which reads as follows:
This is to state that in my opinion, based upon current exam and my review of previous medical records, Rita Schaal is totally disabled and has been disabled for the past 3 years, since 1990.
(T. 9). Dr. Jobson's opinion was based upon the hospital records which the ALJ had already considered. (T. 7).
In his decision, the ALJ discussed the length of Dr. Jobson's treatment relationship with the plaintiff and the frequency of examination. The ALJ noted that the plaintiff had been under the care of Dr. Jobson, a family physician, since October 29, 1992. (T. 44). The ALJ further pointed out the lack of evidence in the record regarding the frequency of follow up visits to Dr. Jobson. (T. 47).
The ALJ expressed criticism of the questionnaire itself. Although the origin of the questionnaire is unclear, the ALJ surmised that it was probably sent to Dr. Jobson by the plaintiff's attorney. (T. 46). The ALJ expressed his view that the form was designed to elicit positive responses to questions relating to the basis for the diagnosis and symptoms. (T. 46). Review of the form reveals that it consists of a series of questions, most of which are to be answered either "yes" or "no." At the top of the form is the statement: "This form is is [sic] designed to provide important statutory information with a minimal time commitment on your part." (T. 239). The final question asks for the "approximate date from which claimant has continuously been unable to work."
Based upon the above findings, the ALJ properly rejected Dr. Jobson's opinion that the plaintiff is disabled. Although the ALJ set forth the inappropriate legal standard in evaluating Dr. Jobson's opinion, it would serve no purpose for the court to remand the matter to the Commissioner. The ALJ provided sufficient information as to the basis of his decision to allow the court to determine that he accorded Dr. Jobson's opinion the weight to which it was properly entitled. It is clear that the outcome would have been the same if the appropriate law had been applied.
7. Physical Impairments :
The plaintiff claims the ALJ did not properly apply SSRs 83-10, 83-11, and 83-12 to evaluate the plaintiff's physical impairments.
(Pltf's Brief at 15, App. A). These rulings supply the guidelines for determining a claimant's capability to do work other than his or her past relevant work.
The plaintiff apparently contends that she does not meet the requirements for sedentary work: sitting for six hours a day, standing and walking for two hours a day, occasionally lifting 10 pounds, and frequently lifting five pounds. According to the plaintiff, "an individual unable to do this cannot be said to be able to perform a full range of sedentary work on a sustained basis." (Pltf's Brief, App. A, P 4).
There is no evidence in the record supporting the plaintiff's claim that she cannot meet the requirements for sedentary work. The ALJ did note the plaintiff's need to avoid extremes of temperature and severe atmospheric pollutants caused by her asthmatic condition, but determined that it would not significantly interfere with her ability to perform sedentary work. (T. 47, 48). This part of the plaintiff's claim is therefore without merit.
8. Mental Impairments :
The plaintiff claims the ALJ did not properly apply SSR 85-15 to evaluate the plaintiff's mental capacity. (Pltf's Brief at 15, App. A). SSR 85-15 provides guidelines for using the medical vocational rules (20 C.F.R. Pt. 404, Subpt. P, App. 2) as a framework for evaluating solely nonexertional impairments. SSR 85-15 is applicable only when the claimant has "no medically determinable impairment which limits exertion." (SSR 85-15, April 1985 Rulings pamphlet at 31, 32). Here, the ALJ considered the plaintiff's history of varicose veins and surgical procedures undertaken to correct the problem, and concluded that she was restricted to sedentary work. (T. 46). Thus the plaintiff was determined to have a medically determinable impairment which limited exertion and SSR 85-15 is not applicable.
9. Vocational Expert :
The plaintiff claims that the ALJ should have called a vocational expert to testify as to the plaintiff's alternative vocational capacities. The plaintiff puts forth two arguments in support of this claim.
a. Mental Illness
Plaintiff argues that, where a claimant is subject to a significant nonexertional impairment the Commissioner must elicit vocational testimony. (Pltf's Brief at 15). Plaintiff cites Bapp v. Bowen, 802 F.2d 601 (2d Cir. 1986), which held that
. . . where the claimant's work capacity is significantly diminished beyond that caused by his exertional impairment the application of the [medical vocational guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2] is inappropriate. By the use of 'significantly diminish' we mean the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.