seeing plaintiff on June 17, 1980, for complaints of severe anxiety and
depression. Although she offered a diagnosis of severe anxiety and
depression related to chronic back pain, there is no evidence of a
clinical examination or that she provided or prescribed ongoing therapy.
Significantly, there is no other evidence of treatment for alleged mental
impairment until October 1994, more than 14 years later, when plaintiff
began treatment with a psychologist, Dr. Kramer. Although Dr. Kramer
opined that plaintiff is psychologically disabled and that the disability
is causally related to the March 1979 accident, his opinion on causation
does not clearly indicate the existence of a disability during the
relevant period, i.e., prior to December 31, 1985, and was not based on
any medical findings during that period. Moreover, Dr Schneider, who
examined plaintiff in June 1994, reported that plaintiff had no history
of psychiatric treatment and provided no indication that any impairment
existed during the relevant period. Indeed, although Dr. Schneider opined
that plaintiff might have difficulty dealing with work pressures in a
work setting, he concluded that plaintiff could follow work instructions
and deal with, coworkers and work supervisors. Bases in the record as a
whole, the evidence was not sufficient to show that plaintiff has a
psychiatric impairment which prevented him from performing his past
relevant work on or before December 31, 1985.
As for plaintiff's alleged physical impairment, the ALJ considered the
statements from Dr. Barbier and Dr. Shapiro that plaintiff could not work
because he had been disabled since March 1979. As the Commissioner
argues, these retrospective opinions are contradicted by the fact that
plaintiff did work until November 14, 1980. Furthermore, plaintiff had
advised Dr. Barbier on his initial visit in 1992, that he had a long
history of back and neck pain which had recently recurred. As the
Commissioner argues, a relapse or exacerbation of an impairment does not
establish plaintiff's disability prior to December 31, 1985. See Arnone
882 F.2d at 41. Furthermore, the ALJ was entitled to discount Dr.
Barbier's opinion of disability because he is a chiropractor. See Diaz
v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995).
The ALJ properly evaluated the retrospective opinion of Dr. Shapiro.
The ALJ, in rejecting that opinion, reasoned that Dr. Shapiro did not
begin treating plaintiff until August 1994, more than 13 years after
plaintiff's injury and two years after plaintiff commenced chiropractic
treatment Additionally, Dr. Shapiro did not base his retroactive opinion
of disability on any medical findings from the period between November
14, 1980 to December 31, 1985. Although he found limited range of motion
and tenderness, there was no evidence of atrophy or spasm indicative of
earlier injury. While diagnostic tests showed lumbosacral radiculopath,
there was no evidence as to when the condition a arose. Moreover, Dr.
Dutta found that neurological signs were normal, giving no indication of
a back impairment on or before December 31, 1985. Although, Dr. Shapiro
found positive clinical signs regarding the median nerve on the right
side, plaintiff did, not allege disability based on medical problems
related to his arm.
2. Subjective Evidence
Notwithstanding plaintiff's testimony that between November 14, 1980
and December 31, 1985, he experienced pain and depression which severely
limited his daily activities, the existence of a disability prior to the
expiration of insured status must be established by adequate medical
evidence. Absent objective medical evidence, plaintiff cannot sustain his
burden of proof solely by conclusory statements that he was disabled at
the crucial time. Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990);
Gonzalez v. Schweiker; 540 F. Supp. 1256, 1258 (E.D.N.Y. 1982). As the
Commissioner argues, subjective symptomatology cannot, by itself,
disability; rather, plaintiff must demonstrate by medical and laboratory
findings the existence of an underlying condition that can reasonably be
expected to produce the symptomatology alleged. See
20 C.F.R. § 404.1529 (b). If a medically determinable impairment
exists, objective medical evidence, such as evidence of reduction of
joint motion, muscle spasm, or sensory and motor disruption, must be
considered in determining whether disability exists. Id. § 404.1529
(c)(2). Where a claim of pain is not fully supported by the record,
consideration is given to such factors as the frequency and duration of
pain, precipitating and aggravating factors, the effect of medication,
pain treatment, functional restrictions, and the claimant's daily
activities. Id. § 404.1529(c)(3).
The ALJ properly discounted plaintiff's contention that he was disabled
during the relevant period, based on plaintiff's failure to seek medical
care for his back between November 14, 1980 and April 1992. Plaintiff's
failure to seek medical treatment during the period at issue undercuts a
finding of disability. See Arnone, 882 F.2d at 39. Moreover, plaintiff's
activities (as described in his disability reports) and occasional work
as a limousine driver somewhat undercut the alleged severity of his
symptoms or at least suggested he could do some level of work activity
despite his impairments. See 20 C.F.R. § 404.1529 (c).
3. Evidence Submitted to the Appeals Council
The matter submitted by plaintiff to the Appeals Council did not
contain medical records for the relevant period and were not sufficient
to change the ALJ's decision. Accordingly, they were properly considered
by the Commisioner. See 20 C.F.R. § 404.970(b);
Accordingly, the Court finds substantial evidence to support the
Commissioner's decision that plaintiff is not disabled under the Act.
For the above reasons, this Court finds that the Commissioner's
decision is supported substantial evidence. Accordingly, the
Commissioner's motion is granted. The Clerk of the Court is directed to
enter judgment against plaintiff and to close the file in this matter.
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