On October 2, 1997, Plaintiff reported to the emergency room at St.
Barnabas Hospital complaining of severe back pain with numbness in the
left leg on and off for three days. He was not taking any medications at
the time. Plaintiff was diagnosed with a lumbar strain and was given two
medications to help alleviate his pain. Three hours later he was feeling
better and was discharged to his home.
On October 10, 1997, Plaintiff reported to the orthopedic clinic at St.
Barnabas Hospital for a follow-up visit. The parties' memoranda of law
conflict with respect to some portions of Plaintiff's diagnosis during
this hospital visit.*fn4 However, the physician's notes clearly indicate
that Plaintiff's neurological examination was normal and his x-ray
revealed only mild degenerative joint disease.
The record contains additional medical evidence conducted by various
physicians between April 30, 1998 and March 9, 1999, after the date of the
ALJ's decision. However, for the reasons later explained, we need not
consider such evidence in reviewing the ALJ's decision.
III. Procedural History
On June 11, 1996, Plaintiff filed a Title II application for Social
Security Disability Insurance benefits ("SSDI") and Supplemental Security
Income ("SSI") alleging an onset of disability on May 15, 1995. When
these requests were denied upon initial review and again upon
reconsideration, Plaintiff obtained a hearing before Administrative Law
Judge Robin J. Arzt (the "ALJ"), at which Plaintiff was represented by
On February 23, 1998, the ALJ issued a written opinion finding that
Plaintiff was not disabled from May 15, 1995 to the time of the hearing.
Specifically, the ALJ found that (1) Plaintiff was not engaged in
substantial gainful activity since May 15, 1995, (2) Plaintiff's
impairment is considered to be "severe" under the regulations, (3)
Plaintiff's impairment does not meet or equal in severity to a "listed
impairment" under Appendix 1 to the regulations, and (4) Plaintiff is
unable to perform his past relevant work as a housing caretaker for the
New York City Housing Authority, which is exertionally medium work, but
his residual functioning capacity does not preclude him from performing
his past relevant work as a security guard and as a helper for a
sprinkler system installer, both of which are exertionally light
occupations. Tr. at 31. In the alternative, the ALJ found that,
considering Plaintiff's residual functional capacity as well as other
"vocational factors of his present age of 41, and age of 38 on the date
of his application and illiteracy and inability to communicate in
English, Section 202.16 of the Medical Vocational Guidelines direct[ed] a
finding that [Plaintiff was] not disabled." Tr. at 31. Hence, the ALJ
concluded that Plaintiff was not disabled and denied his
May 15, 2000, the Appeals Council denied Plaintiff's request for review
stating that there was no basis under 20 C.F.R. § 404.970 or 416.1470
for granting Plaintiff's request for review.
I. Standard of Review
"A Court may set aside the decision of the Commissioner only if it is not
supported by substantial evidence or is based on an erroneous legal
standard." Berry v. Schweiker (2d Cir. 1982) 675 F.2d 464, 467. The issue
before us then, is whether the ALJ's decision is supported by substantial
evidence or was based on any erroneous legal standards. See Rosa v.
Callahan (2d Cir. 1999) 168 F.3d 72, 77. Hence, if this Court finds that
there is substantial evidence supporting the Commissioner's factual
determinations, those determinations must be upheld. See Schauer v.
Schweiker (2d Cir. 1982) 675 F.2d 55, 57.
II. Definition of Disability
To receive federal disability benefits, an applicant must be "disabled"
within the meaning of the Social Security Act. 42 U.S.C. § 423(a),(d).
The Code of Federal Regulations defines disability as "the 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 is expected to last for a
continuous period of not less than twelve months."
20 C.F.R. § 404.1505, 416.905.
The Commissioner has promulgated regulations which set forth a five-step
sequential test to evaluate disability claims. 20 C.F.R. § 404.1520,
416.920 (1981). The Second Circuit has summarized this test as follows:
First, the Secretary 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.
Berry, 675 F.2d at 467.
The Second Circuit has also set forth the burdens of proof at each step
of this evaluation process. The claimant bears the burden of proof as to
the first four steps, i.e., through the determination of whether he has the
residual functional capacity to perform his past relevant work. If the
claimant carries his burden at each of the first four steps, the Secretary
bears the burden as to the last step, i.e., whether there is other work
available in the national economy which the claimant has the ability to
perform. See Bowen v. Yuckert (1987) 482 U.S. 137, 146 n. 5 ("the Secretary
is required to bear this burden only if the sequential evaluation process
proceeds to the fifth step."); see also Berry 675 F.2d
at 467; Carroll v.
Secretary of Health and Human Services (2d Cir. 1983) 705 F.2d 638, 642.
Additionally, "[i]n determining whether a claimant is disabled, the
Secretary must consider (1) objective medical facts and clinical
findings, (2) diagnoses and medical opinions of examining physicians, (3)
the claimant's subjective evidence of pain and physical incapacity as
testified to by himself and others who observed him, and (4) the
claimant's age, educational background, and work history." Carroll, 705
F.2d at 642.
III. Conclusions of Law
In the case at bar, the relevant objective medical evidence supports the
ALJ's decision that Plaintiff retained residual functioning capacity to
perform his jobs as a sprinkler installer's assistant and a security guard.
None of the medical evidence supports Plaintiff's claim that he was unable
to perform his past relevant work as a helper to a sprinkler system
installer and as a security guard. Therefore, there is substantial evidence
supporting the ALJ's decision that Plaintiff was not disabled from May, 15,
1995 to the date of the ALJ's decision. Furthermore, the ALJ properly gave
controlling weight to Dr. Mancheno and Plaintiff's treating physicians at
St. Barnabas Hospital under the "treating physician rule" set forth in
20 C.F.R. § 404.1527(d)(2), which requires the ALJ to give controlling
weight to a claimant's treating physician if it is well supported by
medical findings and not inconsistent with other substantial record
evidence. See Shaw v. Chater (2d Cir. 2000) 221 F.3d 126, 134.
In challenging the finding of the ALJ and the Appeals Council,
Plaintiff argues that "the ALJ erred in pointing to no affirmative
evidence proving Plaintiff's ability to perform each of the physical
requirements of exertionally light work." Pl. Mem. at 14. However,
Plaintiff's argument fails to recognize that the burden of proof as to
whether the claimant has the residual functional capacity to perform past
work is on the claimant. See Berry 675 F.2 at 467 ("The claimant bears
the initial burden of showing that his impairment prevents him from
returning to his prior type of employment."). The cases Plaintiff cites
in support of this argument are distinguishable from the case at bar
because in the those cases the ALJ denied the claimants application at
step five of the sequential process, where the Commissioner bears the
burden to prove that the claimant has the capacity to do other work in
the national economy. See Kendall v. Apfel (E.D.N.Y. 1998)
15 F. Supp.2d 262, 267-68; LoPorta v. Bowen (N.D.N.Y. 1990)
737 F. Supp. 180, 183; Sobolewski v. Apfel (E.D.N.Y 1997) 985 F. Supp. 300,
314; Davis v. Shalala (E.D.N.Y. 1995) 883 F. Supp. 828, 836. In the
instant case, the ALJ denied Plaintiff's claim at step four of the
sequential evaluation process, where the claimant bears the burden to
proof that he is unable to perform his past relevant work. Tr. at 31.
Hence, the ALJ applied the proper legal standard in denying Plaintiff's
Plaintiff raises several other objections to the manner in which the
ALJ and Appeals Council reached their decisions. First, he asserts that
the ALJ improperly failed to consider Plaintiff's subjective complaints
of pain. The Second Circuit has held that "the subjective element of pain
is an important factor to be considered in determining disability." Mimms
v. Heckler (2d Cir. 1984) 750 F.2d 180, 185. However, the Second Circuit
has also held that "[t]he ALJ has discretion to evaluate the credibility
of a claimant and to arrive at an independent judgment, in light of
medical findings and other evidence,
regarding the true extent of the
pain alleged by the claimant." Marcus v. Califano (2d Cir. 1979)
615 F.2d 23, 27. See also Jordan v. Barnhart (2d Cir. 2002) 29 Fed.
Appx. 790, 794 (holding that an ALJ is entitled to make a credibility
determination regarding the claimant's subjective complaints after
specifically addressing these complaints and reviewing the medical
evidence in the record). "If the Secretaries findings are supported by
substantial evidence . . . the court must uphold the ALJ's decision to
discount the claimant's subjective complaints of pain." Aponte v.
Secretary of Health and Human Services (2d Cir. 1984) 728 F.2d 588, 591.
In the instant case, the ALJ properly considered Plaintiff's subjective
complaints but declined to give weight to Plaintiff's testimony because
it was not supported by the objective medical evidence and the rest of
his testimony. Plaintiff testified that he suffered from permanent and
consistent pain which was not helped by medications. Tr. at 49. However,
contrasting Plaintiff's testimony is his evaluation at St. Barnabas
Hospital, where he described his pain as "off and on for two years" and
left the hospital three hours after receiving pain medications. Tr. at
138. In addition, Plaintiff testified that he had left his last job as a
security guard on May 15, 1995 only because the job ended, and not as the
result of his alleged disability. Tr. at 42. Thus, the ALJ's decision to
discount Plaintiff's subjective complaints of pain is supported by
Secondly, Plaintiff argues that the ALJ improperly decided to give no
weight to Dr. Greenberg's medical findings. However, "[a]ccording to the
[Social Security] regulations . . . a chiropractor's opinion is not a
medical opinion." Diaz v. Shalala (2d Cir. 1995) 59 F.3d 307, 313 (emphasis
in original). In Diaz, the Second Circuit made it clear that "[u]nder the
current regulations, the ALJ has the discretion to determine the
appropriate weight to accord the chiropractor's opinion based on all the
evidence before him; under no circumstances can the regulations be read to
require the ALJ to give controlling weight to a chiropractor's opinion."
Diaz, 59 F.3d at 314. In this case, Dr. Greenberg found that Plaintiff was
"totally disabled and cannot work" (Tr. at 124). The ALJ held that this
evidence conflicted with and was not supported by the balance of medical
evidence collected by Dr. Mancheno and the physicians at St. Barnabas
Hospital. These examining physicians conducted x-rays which came back
normal. Moreover, the St. Barnabas physician concluded that Plaintiff's
exertional impairment was only moderate. Hence, there is substantial
evidence supporting the ALJ's decision that Dr. Greenberg's reports are
contradicted by the balance of the objective medical evidence and therefore
deserve no weight.
Finally, Plaintiff asserts that the Appeals Council improperly declined
to consider or even acknowledge the properly submitted medical evidence
gathered by Dr. Traugott, Dr. Escalera, and Dr. Ploski, after the ALJ's
decision. Pl. Mem. at 10. In Perez v. Chater, (2d Cir. 1996) 77 F.3d 41,
the Second Circuit held, "new evidence submitted to the Appeals Council
following the ALJ's decision becomes part of the administrative record for
judicial review when the Appeals Council denies review of the ALJ's
decision." Perez, 77 F.3d at 45. However, the Second Circuit explained that
for this rule to apply, the evidence "must relate to the period on or
before the ALJ's decision." Perez, 77 F.3d at 45. In Perez, the Second
Circuit remanded the case and ordered the District Court to consider
"medical reports made available or prepared after the ALJ's hearing, the
substance of which concerned the patient's treatment before the hearing."
Brown on Behalf of Brown v. Chater (S.D.N.Y. 1996)
932 F. Supp. 71, 75
(emphasis added). The evidence submitted to the Appeals Council in this
case concerned Plaintiff's treatment after the ALJ hearing.*fn5 Tr. at
160-177. Hence, the Appeals Council properly concluded that the additional
evidence did not provide a basis for changing the ALJ's decision.*fn6 Tr.
As a result of our decision that the ALJ's finding that Plaintiff's
residual functional capacity does not preclude him from performing his
past relevant work as a security guard and as a helper for a sprinkler
system installer is supported by substantial evidence, we need not
consider the ALJ's alternative grounds for denying Plaintiff disability
insurance under Section 202.16 of the Medical Vocational Guidelines.
In light of the foregoing considerations, Defendant's Motion for Judgment
on the Pleadings is GRANTED. The ALJ's decision that Plaintiff was not
disabled under Chapter 7, Title II of the Social Security Act from the
period of May 15, 1995 to February 23, 1998 is AFFIRMED. Plaintiff's action
is DISMISSED in its entirety.