she had pain "constantly," including at the hearing. (R. 213-14, 224-25.) She kept her legs elevated 2-3 hours a day to relieve the swelling and cramps in her legs. (R. 227.) She further kept her legs in water for one hour for the daily pain in her knees and feet and took pain relievers that afforded no relief. (R. 225-27.) She also suffered from headaches and dizzy spells about four to five times per week and would lie down for several hours when this happened. (R. 227.) Additionally, she slept approximately one hour at night and not at all during the day, because of her pain. (R. 222, 228.)
Tejada testified that she could no longer work at the assembly job because she was "very tired" and lacked the strength. (R. 223.) She said she could no longer stand for a period of eight hours, nor frequently bend. (R. 223-24.) While she first stated that she could lift up to ten pounds (R. 218), she later asserted that she was unable to do so. (R. 224.) She could walk two blocks prior to experiencing fatigue, stand for 10-20 minutes in one spot, and could remain seated for a half hour. (R. 215-16.) She needed to hold on to something when bending. (R. 216.) She could not open and close the fingers of either hand. (R. 216-17.)
Tejada's fourteen year old niece was living with her and taking care of the apartment. (R. 220.) Tejada's daughter took care of the food shopping and sent Tejada all her meals. (R. 220-22.)
The Medical Evidence
Tejada was first seen at the William Ryan Community Health Center on February 12, 1991, and was diagnosed as having diabetes which was "poorly managed." (R. 121; see also Tejada Br. at 3.) Medical records show that from February 1991 through November 1994, the Ryan Center increased and adjusted the dosage of Tejada's insulin. (See Tejada Br. at 3.) In November 1993, the Ryan Center diagnosed Tejada as having diabetes mellitus with peripheral neuropathy. (R. 159; see Tejada Br. at 4).
On January 5, 1994, Tejada was seen at the Ryan Center because she had run out of insulin and hypertension medication twelve days earlier. (R. 160.) Plaintiff was advised of the "importance of medication compliance DAILY." (R. 160.)
On May 5, 1994, plaintiff walked into the Ryan Center, complaining of abdominal pain. (R. 166.) She was given orange juice and was taken to the emergency room for evaluation of low blood sugar. (R. 166, 215.) Tejada returned to the Ryan Center several times during the next two weeks for further evaluation of her low blood sugar. (R. 167-68.) Insulin treatment was discontinued, replaced by Micronase.
Tejada saw a podiatrist in October 1994, who diagnosed diabetes mellitus and prescribed Oxford shoes. (R. 120, 176.)
In July 1993, Tejada was given a general eye exam. Her vision was 20/30 in one eye and 20/25 in the other. (R. 103, 155.) On September 16, 1993, plaintiff underwent a consultative ophthalmologic examination by Dr. Doro. (R. 115-16.) Dr. Doro found that Tejada's uncorrected vision was 20/400 in each eye and her corrected vision was 20/100 in the right eye and 20/200 in the left eye. (R. 115.) The doctor opined that Tejada's vision was worse than could be explained by the examination findings. (R. 116.)
On December 7, 1993, Tejada underwent a second consultative ophthalmologic examination. (R. 106-07.) Dr. Irwin Schwade found that Tejada's visual acuity and near vision were 20/400 in each eye with and without corrective lenses. (R. 106.) Tejada claimed that she was unable to see the fixation target with either eye, although she entered and exited the doctor's office without bumping into equipment or furniture. (R. 106.) Dr. Schwade diagnosed hyperopia (farsightedness), presbyopia,
and functional amblyopia. (R. 107.)
On September 2, 1992, Tejada visited the Ryan Center and complained of shoulder pain, but there were no positive clinical findings. (R. 139-40.) She was prescribed acetaminophen for arthritis. (R. 139-40.) In July and August 1993, she had edema
in her legs of uncertain etiology which was described as being "trace" in July. (R. 153, 157.) She was advised to elevate her legs and wear support stockings. (R. 157.)
On September 4, 1993, Tejada saw Dr. DeLeon, an internal medicine specialist, for a consultative examination. (R. 109-10.) Tejada told Dr. DeLeon that abdominal pain was occasional, that she came to the examination by train, and that she did her own shopping and cooking. (R. 109.) There was no leg edema in her extremities. (R. 110.) Tejada was able to bend forward to sixty degrees and she got on to the examining table without difficulty. (R. 110.) She had no back tenderness or muscle spasm, and the straight leg raising test was negative. (R. 110.) Examination of her neck, shoulders, elbows, and wrists was also negative, as was examination of her hips, knees, and ankles. (R. 110.) Tejada's grip strength was five out of five. (R. 110.) Neurological examination was normal. (R. 110.) There was no evidence of motor, cerebellar, or sensory dysfunction. (R. 110.)
Dr. DeLeon diagnosed controlled hypertension, diabetes mellitus type two, and arthralgia involving the back, knee, and shoulder. (R. 110.) Dr. DeLeon felt that Tejada's prognosis was fair. (R. 110.) She was able to sit with no limitation. (R. 110.) Her abilities to walk, stand, carry, lift, and push and pull were "slightly" limited because of arthralgia. (R. 110.)
On May 3, 1994, Tejada saw a podiatrist, complaining of pain and swelling in her ankles. (R. 165.) There was no erythema on examination. (R. 165.) The podiatrist diagnosed osteoarthritis. (R. 165.)
In 1991 Tejada was diagnosed with abdominal tenderness and pain. (R. 130.) An ultrasound performed on April 24, 1991, revealed a prominent gallbladder, without evidence of cholelithiasis.
(R. 99.) An April 1991 upper G.I. series demonstrated mild gastroesophageal reflux. (R. 128-29.) Although plaintiff continued to complain of abdominal pain, abdominal examination was repeatedly within normal limits. (R. 123, 127-28, 132, 133, 135.)
On September 2, 1992, Tejada complained of abdominal pain, but again there were no positive clinical findings pertaining to her abdomen. (R. 139-40.) She was prescribed Tagamet for gastrointestinal upset. (R. 139-40.)
At her January, March and May 1993 appointments, Tejada complained of abdominal discomfort, but examination of her abdomen was normal on each occasion. (R. 146-48, 152.) She was prescribed Mylanta and Tylenol in May 1993. (R. 152.)
On June 21, 1994, Tejada went to the Ryan Center with various complaints. (R. 169.) Although there was mild distension and diffuse tenderness on palpation of Tejada's abdomen, there were no focal findings or peritoneal signs. (R. 169.) The doctor suspected that some of Tejada's complaints might be non-organic, i.e., a result of mental health problems. (R. 169.)
On July 26, 1994, Tejada was seen at the Ryan Center for various complaints. (R. 171.) Although Tejada had epigastric tenderness, her abdomen was soft, with no organomegaly. (R. 171.) The doctor diagnosed chronic abdominal pain, with no signs of ulcer, prescribed Tylenol and Zantac, and advised Tejada to avoid alcohol, caffeine, cigarettes and spicy foods. (R. 170-71.)
Tejada returned to the Ryan Center on August 3, 1994, with various complaints of pain, which appeared partially "related to [a] stressful home situation." (R. 172.) Tejada complained of significant abdominal pain and tenderness over her intercostal nerves. (R. 172.) The doctor diagnosed diabetes mellitus, an increased right lobe thyroid, and chest pain. (R. 172.) The doctor continued Tejada's Micronase, Xanthic and Tylenol, and also gave her samples of Daypro, a non-steroidal anti-inflammatory medication. (R. 173.)
Tejada missed or canceled her next three appointments at the Ryan Center. (R. 174.) On September 7, 1994, she underwent a sigmoidoscopy, which revealed internal hemorrhoids. (R. 175.) A September 9, 1994 ultrasound of Tejada's liver and gallbladder revealed no abnormalities and an ultrasound of the thyroid revealed slight asymmetry in the size of the lobe of the thyroid, without any abnormality. (R. 182, 183.)
On November 2, 1994, Tejada was seen by Dr. Marie Cadet at the Ryan Center for complaints of joint, chest and abdominal pain. (R. 177.) Her abdomen was tender to mild pressure on the right side, which the doctor diagnosed as diabetic neuropathy. (R. 177.)
The ALJ's Decision
On February 11, 1995, the ALJ issued his written decision. (R. 19-27.) The ALJ found that Tejada had "not engaged in substantial gainful activity since August 5, 1993." (R. 23, 26.) The ALJ found that Tejada has "severe hypertension, diabetes mellitus, incipient cataracts, internal hemorrhoids and arthralgia." (R. 26.) The ALJ determined, however, that Tejada "does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4" (impairments arising from cardiovascular disease). (R. 26.) From a review of the medical records, the ALJ found that Tejada's hypertension and diabetes are "controlled" and that there "is no evidence of complications nor end-organ involvement or damage secondary to such conditions." (R. 23.) The ALJ noted that "no significant abnormal clinical findings are reported by her treating source during each and every examination." (R. 25.)
As to Tejada's vision, the ALJ found that her best corrected vision was 20/100 and 20/200 in the right and left eyes, and noted the consultative ophthalmologist's opinion "that visual acuity findings and field results were not supported by objective visible findings on examination." (R. 25.)
The ALJ also found that a comprehensive internal medicine examination conducted in 1993 was "unrevealing" and that the doctor "assessed no restriction in [Tejada's] ability to sit, with walking, standing, carrying and pushing slightly limited because of arthralgia." (R. 24.) As to Tejada's arthritis, the ALJ noted that "a definite diagnosis of arthritis is not established in the record" and that the level of pain "alleged as totally disabling is not found to be supported by objective clinical findings and not found credible (Social Security Ruling 88-13)." (R. 24-25.)
The ALJ based this conclusion on the fact that Tejada's "treating source has apparently not deemed it necessary to order x-rays or other objective diagnostic studies to further evaluate her complaint of generalized joint and low back pain." (R. 24.)
The ALJ concluded that Tejada "has a severe impairment which does not meet or equal any listed in Appendix 1 of Subpart P." (R. 24.) The ALJ found that the medical evidence indicates that Tejada "retains the exertional capacity for work-related functions that do not require lifting or carrying more than 20 pounds." (R. 25; see also R. 26.) The ALJ further found that Tejada "retains the residual functional capacity to perform her past relevant work as an assembly line worker making hubcaps and cleaning metal." (R. 25.) The ALJ concluded that Tejada "is 'not disabled' within the meaning of the Social Security Act." (R. 25; see also R. 26.)
Evidence Submitted to the Appeals Council
On April 11, 1995, Dr. Cadet, an internist at the Ryan Center, reported that plaintiff had last been treated at the Center on November 2, 1994. (R. 196.) Dr. Cadet diagnosed diabetes mellitus, hypertension, pain on the right side of the abdomen due to diabetic neuropathy, and arthritis. (R. 196.) Dr. Cadet opined that Tejada could walk for a total of five minutes in an eight-hour workday, stand for thirty minutes continuously and two hours in an eight-hour workday, and lift and carry five pounds frequently and ten pounds occasionally in an eight-hour workday. (R. 196.)
On March 1, 1996, the Appeals Council affirmed the ALJ's decision. (R. 3-9.) The Appeals Council determined that Dr. Cadet's April 11, 1995 Report added nothing to the record that the ALJ had considered:
The report from Dr. Cadet indicated that she had last treated you on November 2, 1994, and the notes of this treatment are already in the record (Exhibit 18, page 57). Dr. Cadet's report, therefore, did not provide any new evidence that your impairments have worsened and her assessment of functional limitations are not supported by any objective clinical findings. Therefore, neither your representative's contentions nor the additional evidence from Dr. Cadet provides a basis for changing the Administrative Law Judge's decision.
I. THE APPLICABLE LAW
A person is considered disabled for Social Security SSI benefits purposes when 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); see, e.g., Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Pickering v. Chater, 951 F. Supp. 418, 422 (S.D.N.Y. 1996) (Batts, D.J. & Peck, M.J.); Burris v. Chater, 1996 U.S. Dist. LEXIS 3937, 94 Civ. 8049, 1996 WL 148345 at *2 (S.D.N.Y. April 2, 1996) (Stein, D.J.); DeJesus v. Chater, 1995 U.S. Dist. LEXIS 21837, 94 Civ. 0772, 1995 WL 812857 at *4 (S.D.N.Y. June 14, 1995) (Peck, M.J.), report & rec. adopted by 899 F. Supp. 1171 (S.D.N.Y. 1995); Francese v. Shalala, 897 F. Supp. 766, 769 (S.D.N.Y. 1995); Walzer v. Chater, 93 Civ. 6240, 1995 WL 791963 at *6 (S.D.N.Y. Sept. 26, 1995) (Kaplan, D.J. & Peck, M.J.); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995). The combined effect of all impairments 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); see, e.g., Pickering v. Chater, 951 F. Supp. at 422-23; Burris v. Chater, 1996 WL 148345 at *2; DeJesus v. Shalala, 1995 WL 812857 at *4; Walzer v. Chater, 1995 WL 791963 at *6.
In determining whether an individual is disabled for SSI purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam); see also, e.g., Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6; DeJesus v. Shalala, 1995 WL 812857 at *4.
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record to support such determination. E.g., Perez v. Chater, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v. Heckler, 722 F.2d at 1038; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Pickering v. Chater, 951 F. Supp. at 423; Burris v. Chater, 1996 WL 148345 at *2; Walzer v. Chater, 1995 WL 791963 at *6; Francese v. Shalala, 897 F. Supp. at 770; Coleman v. Shalala, 895 F. Supp. at 54; 42 U.S.C. § 405(g). "Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Burris v. Chater, 1996 WL 148345 at *3; see also, e.g., Francese v. Shalala, 897 F. Supp. at 770. However, the Court will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Burris v. Chater, 1996 WL 148345 at *3; Francese v. Shalala, 897 F. Supp. at 770.
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); accord, e.g., Perez v. Chater, 77 F.3d at 46; Pickering v. Chater, 951 F. Supp. at 423; Walzer v. Chater, 1995 WL 791963 at *6.
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987). The Second Circuit has articulated the five steps as follows:
 First, the Secretary [now, Commissioner] considers whether the claimant is currently engaged in substantial gainful activity.  If he is not, the Secretary 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary 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 Secretary then determines whether there is other work which the claimant could perform.