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April 26, 1996

CARMEN TORO, Plaintiff, against SHIRLEY S. CHATER,1 Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: GRUBIN


 SHARON E. GRUBIN, United States Magistrate Judge:

 Applicable Principles of Law

 For purposes of the Act, a person is considered disabled when he or she 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). *fn2" That impairment must be of such severity 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 evidence that must be considered in determining whether an individual is disabled includes: (1) objective medical facts; (2) diagnoses and medical opinions based on such facts; and (3) subjective evidence of disability, including any pain experienced by the individual and his or her educational background, age and work history. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988); Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); Carroll v. Secretary, 705 F.2d 638, 642 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The Commissioner shall consider "all evidence available in such individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability," and "shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis." 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(G). The Commissioner is to give a treating physician's opinion on the nature and severity of the applicant's impairments "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the Commissioner determines that a treating physician's opinion is not entitled to controlling weight, she must nevertheless determine what weight to give it by considering five enumerated factors -- (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion, i.e., the extent to which the source presents relevant evidence, particularly medical signs and laboratory findings, to support the opinion; (4) consistency of the opinion with the record as a whole; and (5) the specialization of the physician -- and must "give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion." 20 C.F.R. §§ 404.1527(d), 416.927(d). See Schisler v. Sullivan, 3 F.3d 563, 567-69 (2d Cir. 1993) (explaining and upholding regulations superseding what was known in the Second Circuit as the "treating physician rule"); see also Diaz v. Shalala, 59 F.3d 307, 312-13 (2d Cir. 1995).

 With respect to a claimant's subjective complaints of pain, 42 U.S.C. § 423(d)(5)(A) provides, in pertinent part:

 See also 20 C.F.R. §§ 404.1529, 416.929. When a medically determinable impairment exists that reasonably could be expected to produce the pain alleged, objective medical evidence must be considered in determining whether a disability exists, whenever such evidence is available. 20 C.F.R. §§ 404.1529(b), 416.929(b). If symptoms suggest a greater impairment than can be shown by objective evidence alone, consideration will also be given to such factors as: (1) the claimant's daily activities; (2) the nature, location, onset, duration, frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and adverse side-effects of medication that claimant has taken to alleviate the symptoms; (5) treatment, other than medication, for relief of pain or other symptoms; and (6) any measures which claimant uses or has used to relieve the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). An Administrative Law Judge may reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, see Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979), but must set forth his or her reasons "with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

 The Commissioner has established a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920. See Sullivan v. Zebley, 493 U.S. at 525; Bowen v. Yuckert, 482 U.S. 137, 140, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987); Bowen v. City of New York, 476 U.S. 467, 470, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986). As explained by the Court of Appeals in Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982) (per curiam), the five steps are as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] 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 [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] 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 impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

 Id. at 467. The claimant bears the burden of proof as to the first four steps, the Commissioner as to the fifth. Id.; see also Diaz v. Shalala, 59 F.3d at 311 n.2.

 In reviewing a denial of disability benefits, the court is not empowered to make a de novo determination of whether the claimant is disabled. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Wagner v. Secretary, 906 F.2d 856, 860 (2d Cir. 1990); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). Rather, it is the function of the Commissioner, and not the reviewing court, to pass on the credibility of witnesses, including the claimant, and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 399, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Aponte v. Secretary, 728 F.2d 588, 591 (2d Cir. 1984); Carroll v. Secretary, 705 F.2d at 642; Marcus v. Califano, 615 F.2d at 27. The court's function is limited to assessing whether the Commissioner applied the proper legal standards in making a determination and whether that determination is supported by substantial evidence on the record as a whole. 42 U.S.C. §§ 405(g), 1383(c)(3); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

 In that regard, the Supreme Court has defined "substantial evidence" as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See also Diaz v. Shalala, 59 F.3d at 314; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d at 258. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). However, the Commissioner's finding will be sustained if supported by substantial evidence even where substantial evidence may support the plaintiff's position and despite that the court's independent conclusion based on the evidence may differ from the Commissioner's. Alston v. Sullivan, 904 F.2d at 126; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 75 L. Ed. 2d 447, 103 S. Ct. 1207 (1983); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

 Procedural Background

 Plaintiff applied for SSI benefits on September 5, 1991, alleging disability as of November 10, 1989 due to "back problems." R 36. *fn3" The application was denied on January 9, 1992 and denied on reconsideration on April 13, 1992. R 40-51. At plaintiff's request a hearing was held, before Administrative Law Judge Joseph R. Faraguna ("the ALJ") on July 7, 1992, at which plaintiff was represented by an attorney and testified through a Spanish language interpreter. R 22-35. On February 26, 1993 the ALJ issued a decision denying plaintiff benefits. R 13-19. On June 28, 1993 the Appeals Council denied plaintiff's request for review of the ALJ's decision. R 2-4. Proceeding pro se and in forma pauperis, plaintiff timely commenced this action, claiming in a form complaint that she is entitled to ...

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