she "had made little improvement obtaining relief of symptoms" and that "she is subject to episodes of remission and exacerbations caused by various aggravations." R 134.
Following plaintiff's application for SSI benefits on September 5, 1991, a consultative examination was performed by Dr. Mario Mancheno on November 25, 1991. In his report Dr. Mancheno noted that plaintiff complained that she had difficulty bending down and could not lift, push or pull heavy objects and that she said that she was taking no medications. R 103. He found that plaintiff walked normally and had no difficulty getting onto the examination table or lying down. She had full range of motion with normal grip in both hands and no impairment in fine manipulation. Both hips had full range of motion with negative straight leg raising bilaterally. Knee and ankle joints and jerks were normal, and there were no signs of asymmetry, muscle wasting or atrophy in plaintiff's lower extremities. R 103. Dr. Mancheno found some tenderness in the lumbosacral region, from L2 to S1, and "minimal paraspinal spasms noted bilaterally, but no gross deformity." R 104. Plaintiff could flex to 90 degrees in the sitting and standing positions and could extend each side to 30 degrees. Lateral bending was 20 degrees on each side, and rotation was 30 degrees for each. There were no sensory, motor or reflex abnormalities. R 104. His diagnosis was "status post injury of the lumbosacral spine." R 104. In his residual functional capacity evaluation, Dr. Mancheno determined that plaintiff could frequently lift or carry up to 25 pounds, stand or sit about six hours during an eight-hour workday, and had an unlimited capacity to push or pull. R 106.
Although, following her examination there by Dr. Asaro on March 19, 1990, plaintiff continued to visit the Bronx Municipal Hospital Center for unrelated gynecological and dermatological matters, see R 185-95,
she was not again examined there regarding her lower back until over 19 months later (two months after she applied for SSI benefits), on November 7, 1991 and on November 20, 1991. The Rehabilitation Medicine physician who examined her noted that she could forward flex her spine to 90 degrees and extend it to 10 degrees and that there was paraspinal tenderness at L4 and L5 on palpation. Her motor strength was full in all muscle groups, except for her left iliopsoas and quadriceps, which were graded 4 out of 5. Straight leg raising was positive on the left at 45 degrees and negative on the right. Nerve conduction studies and an electromyogram were negative for lumbosacral radiculopathy and polyneuropathy. R 180-81, 184; see R 178. The physician recommended that she take nonsteroidal anti-inflammatory medication, do extension exercises and be fitted for a lumbosacral corset at an orthotic clinic. R 181. Plaintiff was referred to the Jacobi Hospital orthotic clinic and examined on December 12, 1991 by Drs. Holding, Murthy and Casino. According to Dr. Holding's report, plaintiff complained of pain in her back, leg and knee and said it was worse upon sitting and better upon standing. Dr. Holding noted that "she flexes aprox 30 degrees and extension is aprox 5 degrees" and that she had normal reflexes in her lower extremities, full motor strength and intact sensation. Dr. Holding concluded: "As this assessment implies at this point in time a [lumbosacral] corset is not indicated. The patient will be given a referral for physical therapy to teach her home exercises for abdominal strengthening and... will be advised to buy a girdle with support to see if this helps her back during stressful activities when she is doing heavy lifting or walking." R 178. Dr. Holding also noted that plaintiff "will follow up in clinic 2 mos after physical therapy is initiated." Id. Plaintiff, however, did not return to the clinic. Two months later on February 13, 1992, plaintiff visited the orthopedic clinic at North General Hospital, where she was examined by Dr. Emmanuel.
Plaintiff complained about lower back pain and indicated that she had occasional weakness and numbness over the right lower extremity. She was able to toe and heel walk and she stated that she was being seen by a chiropractor. There was tenderness in the lumbosacral area. Dr. Emmanuel prescribed Feldene, a nonsteroidal anti-inflammatory drug used for pain in the joints. R 150. X-rays of the lumbosacral spine taken on February 26, 1992 showed "minimal osteoarthritic changes of the vertebral bodies of L3 to L4," and that "intervertebral disc spaces" were "well preserved," "posterior elements" were "intact," and sacroiliac joints were "normal." R 152. At a follow-up examination March 5, 1992, Dr. Emmanuel again noted that the lumbar area was "tender on palpation." R 147. Because it gave her indigestion, he discontinued the prescription for Feldene and prescribed Tylenol. Then or sometime after the examination -- the form is undated -- Dr. Emmanuel referred plaintiff to the hospital's Department of Rehabilitation Medicine for "evaluation for heat ultrasound strengthening exercise of [abdominal] and back muscles." R 144. Some time after her March 5, 1992 examination, plaintiff apparently began to receive physical therapy, although there is no reference to her having done so until the notes by Dr. S.A. Hill of the North General rehabilitation clinic of his examination of plaintiff on May 20, 1992. Plaintiff was prescribed another nonsteroidal anti-inflammatory drug, Tricosal (trilisate), for her back pain on April 16, 1992 and Cyotec for her indigestion on May 18, 1992. R 138, 139, 173.
Plaintiff also returned to the Bronx Municipal Hospital clinic on April 24, 1992 for a general examination at which her motor strength was graded 5 out of 5, and her reflexes were determined to be normal.
According to the notes of her general examination at North General on May 18, 1992, plaintiff was then "asymptomatic." R 139. Plaintiff was referred to Dr. Hill for fitting for an orthotic brace. R 138. At his examination of her on May 20, 1992, Dr. Hill noted that plaintiff "has received partial disability compensation [from the New York Workers' Compensation Board] [and is] now requesting SSI disability. Patient states she has significant relief when she gets physical therapy. In addition the nerve root injections have [decreased] her lower back pain. She, then, attempts to do her house chores & pain reappears." R 138. Dr. Hill noted that her gait was not antalgic and she was able to heel and toe walk normally. She could flex forward to the middle of the tibia and extend back 20 degrees. Her hips could flex 130 degrees, and her knee and ankle flexions were full. Straight leg raising was positive on the right at 65 degrees with pain in the right lower back. On the left, plaintiff was able to raise her leg to 70 degrees without pain. Febere tests on the right and left were negative. Deep tendon reflexes were graded 2 throughout. Dr. Hill's diagnosis was L5-S1 radiculopathy. He scheduled a fitting for an orthotic brace on May 26, 1992, and prescribed that plaintiff continue her physical therapy and continue to take Tricosal along with Maalox and Cyotec. R 138. At plaintiff's May 26, 1992 fitting for an orthotic brace, Dr. Hill noted that plaintiff was using physical therapy and Tricosal "to help [decrease] lower back pain" and that she stated "nerve root injection helped [decrease] lower back pain very much." R 137.
At the first examination on May 20, 1992, Dr. Hill also completed a residual functional capacity evaluation. R 131-32. According to Dr. Hill's assessment, plaintiff could sit and stand three hours each and walk two hours during an eight-hour workday. She could frequently lift up to five pounds, occasionally lift up to ten pounds, and occasionally carry up to five pounds. She could not bend, but could occasionally climb steps and reach. She could push and pull with her hands, but not with her legs. According to Dr. Hill, the medications he prescribed caused no side effects. R 131-32.
The ALJ's Decision
The ALJ's decision was made at step five of the requisite five-step analysis. At steps two and three, he found that plaintiff had two "severe impairments" -- lumbosacral spine sprain-strain and sacroiliac joint pain tenderness -- but that the evidence did not show that, either singly or in combination, they were listed in Appendix 1 or medically equivalent to a listed impairment. At step four, the ALJ found that plaintiff did not have the residual functional capacity to perform her past work as a home attendant, food wrapper or assembler. The ALJ further found, however, that plaintiff's allegations of disabling health problems were not supported to the degree alleged and were inconsistent with the medical record and with the treatment she had been prescribed. His step five finding was that plaintiff had the residual functional capacity to perform "a full range of light work." Under Rule 202.16 of the medical-vocational profiles set forth in the Commissioner's residual functional capacity tables at 20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 2, plaintiff therefore was "not disabled," because, notwithstanding her inability to communicate in English and her unskilled background, she was a "younger individual" (i.e., under 50), see id. § 201.00(h), 202.00(g), with the capacity to perform "light work." The regulations define "light work" as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b).
Plaintiff contends that her motion should be granted because the ALJ failed to accord proper weight to the opinions of her treating physicians, Dr. Izquierdo and Dr. Hill. Plaintiff, conceding that she turned to the physicians at North General Hospital only after "extensive treatment" by her chiropractor, Dr. Izquierdo, "had failed to result in any improvement of her lower back pain," Plaintiff's Reply Memorandum of Law at 6, in effect, acknowledges the problem with her SSI application: for over two years after her accident the only treatment she sought or received for her lower back pain was "spinal manipulations" from chiropractors, despite being prescribed physical therapy as early as her first examination in March 1990. Shortly after the motions in this case became fully submitted, the Second Circuit upheld Social Security regulations under which, for purposes of construing the "controlling weight" rule applicable to the "medical opinions" of treating sources, see 20 C.F.R. §§ 404.1527(d), 416.927(d), a chiropractor is not an "acceptable medical source," and "chiropractors cannot provide medical opinions." Diaz v. Shalala, 59 F.3d at 313 (emphasis in original); see also id. at 314 n.8. The Second Circuit explained that 20 C.F.R. §§ 404.1527(d), 416.927(d) is entitled "How we weigh medical opinions, " and that "a treating source's opinion thus must be a medical opinion under this provision's 'controlling weight' rule." Id. (emphasis in original).
According to the regulations, however, a chiropractor's opinion is not a medical opinion. The regulations provide that "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairments(s)...." 20 C.F.R. § 404.1527(a)(2) (emphasis added). Section 404.1513(a) lists five categories of "acceptable medical sources," none of which mentions chiropractors. Instead, chiropractors are expressly listed in a different section, under "other sources" whose "information...may also help us to understand how your impairment affects your ability to work." 20 C.F.R. § 404.1513(e) (1994). Because the regulations do not classify chiropractors as either physicians or "other acceptable medical sources," chiropractors cannot provide medical opinions.