ALJ found that plaintiff was not under a "disability" as defined in the Act (T. at 24).
Plaintiff requested a review of the hearing decision, arguing that the ALJ had failed to consider plaintiffs back injury and that she had erroneously concluded that plaintiff was not an alcoholic (T. at 7-8). On October 27, 1995, the Appeals Council denied plaintiff's request for review, and ALJ Baker's findings became the final determination of the Commissioner (T. at 3-4).
On January 14, 1993, plaintiff commenced this action seeking reversal or remand of the Commissioner's final determination (Item 1). He continues to claim that he suffers from a substance abuse disorder and multiple injuries and alleges that the Commissioner's determination that he was not disabled is not supported by substantial evidence or the applicable law. The government filed its motion for judgment on the pleadings on December 9, 1996. In a letter to the court dated January 9, 1997, plaintiff declined to submit a reply, stating that "in light of the enactment of Pub. L. 104-121," he would rest on the existing record.
I. PLAINTIFF'S ALLEGED BACK IMPAIRMENT.
The Social Security Act states that "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g) (1991). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion . . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under this standard, judicial review of the Commissioner's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
In assessing plaintiff's claim that the Commissioner disregarded his back injury, the court must consider the evidence before the Commissioner at the time of the determination. At the administrative hearing, plaintiff testified that he had experienced pain in his back every day since he fell in 1978 (T. at 50, 61). According to plaintiff, a lower disk in his back sometimes "kicks out" when he squats or stoops over the wrong way, and that he must press it back into place (T. at 50).
Plaintiff was treated monthly from November of 1991 through June of 1993 by Dr. Brezing (T. at 185). In a report to the New York State Department of Social Services dated June 11, 1993, Dr. Brezing diagnosed defendant as suffering from severe trauma, alcohol abuse, fracture of the right wrist, and right forearm pain due to heavy lifting (Id.). Dr. Brezing's report did not include any diagnosis of a back injury. According to Dr. Brezing, plaintiff displayed normal ranges of hip and lumbar motion and had no limitation in standing, walking, sitting, pushing or pulling (T. at 189, 191, 192).
Dr. Brezing limited plaintiff to occasional lifting and carrying of up to twenty pounds.
Plaintiff was also examined by consultant Dr. Paul Akman on March 11, 1994 (T. at 212-21). At that time, plaintiff reported a history of lumbar spine injury in 1979, but stated that it doesn't bother him anymore (T. at 212-13). Dr. Akman stated that plaintiff could occasionally lift up to 20 pounds, and that his ability to sit, stand and walk was unaffected (T. at 217).
Dr. Hee Choi is plaintiffs current treating physician (T. at 42). He completed a medical report on April 11, 1994, in which he diagnosed plaintiff with a new onset of arterial fibrillation, possible alcoholic cardiomegaly, and lumbar sprain (T. at 231-32). Though Dr. Choi referred to a disk herniation (T. at 234), there are no diagnostic or clinical findings in the record which support such a finding. Dr. Choi stated that plaintiff was limited to lifting and carrying eight pounds, and that his ability to sit, stand and walk were not affected (T. at 233-34). According to Dr. Choi, plaintiff was partially disabled due to right arm pain and back pain (T. at 235).
In sum, although plaintiff testified to suffering from daily back pain, he apparently did not mention his discomfort to Dr. Brezing during his monthly visits over the course of a year and a half. There are no diagnostic or clinical findings to support his claims of a back injury, and none of the doctors who examined plaintiff noted any limitations in his ability to stand, sit or walk. Furthermore, plaintiff testified that his discomfort had not worsened since his alleged injury in 1978. As defendant notes, plaintiff continued to work, despite this alleged impairment, through October of 1991. In fact, from 1984 to 1991, plaintiff worked as a dump truck driver and testified that he was required to unload blacktop and stone into a wheelbarrow by hand and lift and push loads weighing up to 400 pounds (T. at 45-46, 147-148).
In order to be eligible for benefits under the Social Security Act, a plaintiff must demonstrate an inability:
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 twelve months.
42 U.S.C. §§ 423(d)(1)(A).
[A] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.