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United States District Court, Northern District of New York

March 28, 2003


The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.



On March 28, 2001, Darline Halloran, acting through counsel, filed an appeal of her denial of disability insurance benefits by the Commissioner of Social Security. On October 7, 1999, a hearing was held before Administrative Law Judge Lawson Brown. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied her request for review.

Halloran has brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner filed an answer and a certified administrative transcript on June 18, 2001.


Halloran makes the following claims: (1) the ALJ's decision is not supported by substantial evidence; (2) the ALJ failed to properly apply the treating source rule; (3) the ALJ did not properly assess her allegations of pain and resulting limitations; and, (4) the case should be remanded for the calculation of benefits.

The Commissioner argues that the ALJ's determination was supported by substantial evidence and must be affirmed. Specifically, the Commissioner maintains that the ALJ properly evaluated the medical evidence which showed that Halloran could perform her past relevant work. The Commissioner also argues that the ALJ properly evaluated her subjective complaints of pain.


The facts contained in Halloran's brief (Dkt. No. 6) are adopted as supplemented in the defendant's brief (Dkt. No. 7).


A. Standard of Review

I. Scope of Review

A court's review of the Commissioner's final decision is limited to determining whether the correct legal standards were applied and whether substantial evidence supports the decision. Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible for determining a claimant's eligibility, the actual disability determination is made by an ALJ. The ALJ's decision is reviewed by a court after an appeal is filed. A court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); see Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also, Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

The court has authority to reverse with or without remand. 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit claimant to produce further evidence). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Retirement Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Secretary of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years and remand would likely result in further lengthening the "painfully slow process" of determining disability).

B. Five-Step Disability Determination

The definition of "disabled" is the same for purposes of receiving Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits. To be considered disabled, a plaintiff seeking SSDI or SSI disability benefits must establish that 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 twelve months. . . ." 42 U.S.C. § 423(d)(1)(A) and 1382c(a)(3)(A).*fn2 The Commissioner uses a five-step process to determine whether an individual is disabled. See 20 C.F.R. § 404.1520, 416.920. Step One requires the ALJ to determine whether the claimant is presently engaging in substantial gainful activity (hereinafter "SGA"). §§ 404.1520(b), 416.920(b). If a claimant is engaged in SGA, she will not be considered disabled. If the claimant is not engaged in SGA, Step Two requires the ALJ to determine whether the claimant has a severe impairment. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires the ALJ to determine whether the claimant's impairment meets or equals an impairment listed in Appendix 1, Subpart P, §§ 404.1520(d), 416.920(d). If the impairment meets or equals a listed impairment, the claimant is presumptively disabled. Ferraris, 728 F.2d at 584. If the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's Residual Functional Capacity ("RFC") precludes the performance of her past relevant work. §§ 404.1520(e), 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. §§ 404.1520(f), 416.920(f).

The claimant has the burden of showing that she cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once the claimant meets that burden, benefits can only be denied by showing, with specific reference to medical evidence, that the claimant can perform some less demanding work. See White v. Secretary of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing, the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills, to determine if the claimant can perform other work existing in the national economy. §§ 404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

In this case, the ALJ found that Halloran satisfied Step One because she had not worked since March 20, 1996. In Step Two, the ALJ determined that Halloran had a severe back impairment. In Step Three, the ALJ determined that she did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P of Social Security Regulation No. 4. In Steps Four and Five, the ALJ found that she had the RFC to perform work-related activities except work involving lifting in excess of ten pounds occasionally and five pounds frequently. She also had the ability to sit without restriction. However, she required the option to move on a per needed basis. Halloran had the ability to stand and walk for up to two hours in an eight hour day. The ALJ also noted that her past relevant work as a computer operator did not require the performance of work-related activities which were precluded by her limitations.

C. Treating Physician Rule

Halloran argues that the ALJ improperly disregarded the treating doctor's opinion. Generally, the opinions of treating physicians are given controlling weight, under certain circumstances, in the belief that an ongoing relationship between doctor and patient yields a better evaluation than a one-time physical. Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). In weighing the treating physician's opinion, "[t]he duration of a patient-physician relationship, the reasoning accompanying the opinion, the opinion's consistency with other evidence, and the physician's specialization or lack thereof" are considerations. Id. at 568; §§ 404.1527(d)(1)-(6), 416.927(d)(1)-(6).

The medical reports should include a statement about what an individual can do despite their impairments and the report should be based on the medical source's findings. See 20 C.F.R. § 404.1513(b)(6). Furthermore, the medical opinion of a treating physician must be based upon well-supported, medically acceptable clinical and laboratory diagnostic techniques. Id; 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). When the Commissioner does not give the treating physician's diagnosis controlling weight, reasons are to be provided. §§ 404.1527(d)(2), 416.927(d)(2).

Moreover, the "ultimate finding of whether a claimant is disabled and cannot work is `reserved to the Commissioner.'" Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted). "That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions." Id. at 133. Thus, a treating physician's disability assessment is not determinative. Id. at 133. Furthermore, where the medical evidence of record includes medical source opinions that are inconsistent with other evidence or are internally inconsistent, the ALJ will weigh all of the evidence and see whether he can make a determination on whether the person is disabled based on the evidence. 20 C.F.R. § 404.1527(c)(2).

In this case, Halloran claims that the ALJ's determination was not supported by the medical evidence. In March of 1999, Dr. Elliot, Halloran's treating physician, opined that she could lift and carry up to ten pounds, and stand and walk for up to two hours per day. However, Dr. Elliot found that Halloran could sit for less than six hours.*fn3 On October 18, 1999, Dr. Elliot provided a statement where she opined that Halloran could not do her past relevant work as a computer operator.

Dr. Elliot referred Halloran to Dr. Paul Moberg. Dr. Moberg found that Halloran had a partially marked permanent disability. Dr. Joseph Rudnick, another treating physician, opined that Halloran could lift and carry no more than five pounds, stand and walk for less than two hours per day, and sit for less than six hours per day. Dr. Amelita Balagtos, a consulting physician, opined that Halloran was limited in her ability to sit, stand and walk.

Halloran maintains that the opinion of non-treating physician Dr. Rogers should not have been relied on by the ALJ. Since his opinion was prepared at the behest of a party with a vested interest in minimizing her impairment, it should not have been given controlling weight. Halloran maintains that when the ALJ found that she was capable of performing her past relevant work, he substituted his own opinion for that of a vocational expert. Her former job required that she sit for up to eight hours, and the record does not show that her former job would allow her to change positions.

In contrast, the Commissioner maintains that the ALJ's determination was supported by substantial evidence. The ALJ noted that the record contained numerous medical assessments from various medical sources in reference to her ability to do work-related functions which were inconsistent. Two non-examining consulting physicians opined that Halloran was capable of performing a full-range of light work. Dr. Rogers opined that she was capable of working in a clerical or secretarial position with no recommended lifting over fifteen pounds, with the option to get up and move about on an as-needed basis. The ALJ also found that Dr. Balagtos, an examining consulting physician, opined that she had some limitations on bending, lifting, prolonged sitting and prolonged standing. However, Dr. Balagtos did find Halloran totally disabled.

The ALJ observed that Dr. Rogers, an orthopedic specialist, had the best supported assessment because his opinion was supported by other medical source opinions. The ALJ based this determination on several factors. First, Dr. Rogers was a specialist. Second, the majority of the physicians of record, except Dr. Rudnick, found that Halloran was capable of lifting and carrying a minimum of ten pounds on an occasional basis. Lastly, the ALJ noted a lack of objective medical evidence. The ALJ gave little weight to Dr. Rudnick's opinion since the restrictions he imposed were not supported by the medical record or the nature of the treatment rendered. Specifically, he noted that the treatment was conservative since the one-time surgical procedure in 1986. The ALJ found that the medical record had mostly subjective findings. The ALJ also noted that Dr. Hauser, D.O., who was an associate of Dr. Elliot's, opined that Halloran was limited in bending and lifting of more than fifteen to twenty pounds. However, he opined that she should look for employment.

After reviewing the record, this court finds that the ALJ's determination was supported by substantial evidence. The ALJ properly noted that Dr. Elliot's opinion was not supported by the objective medical evidence. Dr. Rogers, while acknowledging that Halloran was limited in her ability to sit, opined that she could work if given the option to move about as needed. The ALJ noted with appropriate breaks, Halloran would be able to work. Moreover, Dr. Elliot's opinion was consistent with sedentary work with the exception of limiting her sitting to less than six hours. The ALJ properly noted that there was no evidence of consistent or persistent neurological problems. Moreover, Dr. Balagtos found that her prognosis was fair despite having "some limitations." Also, Dr. Moberg did not find her totally disabled.*fn4

As the regulations make clear, Halloran's medical source cannot determine whether she was disabled, it is up to the ALJ. "The Second Circuit has similarly acknowledged that it is in the hands of the Commissioner, and not the court, to weigh conflicting evidence in the record." Shin v. Apfel, 97 CIV. 8003, 1998 WL 788780 (S.D.N.Y. November 12, 1998) (citation omitted). Furthermore, her RFC was properly determined. Dr. Elliot's opinion was consistent with sedentary work with the exception of limiting her ability to sit for less than six hours. Moreover, Dr. Hauser opined that she was only limited in repetitive bending and lifting of no more than fifteen to twenty pounds. Dr. Hauser opined that she should look for work. As previously mentioned, Dr. Balagtos found that Halloran was limited but did not find that she was completely disabled. The ALJ, in exercising his discretion to weigh the numerous medical opinions, did not err in reaching the determination that Halloran was not disabled and that she was capable of performing sedentary work. Accordingly, the ALJ's determination should be affirmed.

D. Subjective Complaints of Pain

Halloran argues that the ALJ failed to properly credit her subjective testimony concerning pain. The court recognizes the inherent difficulty in evaluating a claimant's credibility without actual physical contact. This makes review of an ALJ's credibility assessment particularly onerous and frequently results in significant deference to the ALJ. However, it is clear that the Commissioner is obligated to evaluate all of a claimant's symptoms, including pain, §§ 404.1529(a), 416.929(a). A claimant's statements about the persistence, intensity, and limiting effects of these symptoms is evaluated in the context of all objective medical evidence, which includes, medical signs and laboratory findings, §§ 404.1529(c)(4), 416.929(c)(4). Pain alone may, under some circumstances, serve as the basis for establishing disability. See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir. 1983); Gallagher ex rel Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). A plaintiff may suffer some degree of pain as a result of a condition, however, some pain does not automatically translate into disabling pain; see Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983) ("disability requires more than mere inability to work without pain").

A finding that a claimant suffers from disabling pain requires medical evidence of a condition that could reasonably produce pain; see §§ 404.1529(a)-(b), 416.929(a)-(b), but does not require objective evidence of the pain itself or its degree. Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986); see §§ 404.1529(c)(2), 416.929(c)(2). The pain must be properly evaluated, considering the applicant's credibility and motivation as well as the medical evidence of impairment to reach an independent judgment concerning the true extent of the alleged pain, and the degree to which it hampers the applicant's ability to engage in substantial gainful employment; see Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). In evaluating a claimant's complaints of pain, an ALJ must consider several factors set forth in the regulations which essentially codify Social Security Ruling 96-7p:

(i) [The claimant's] daily activities;

(ii) The location, duration, frequency, and intensity of [the claimant's] pain or other symptoms;
(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate . . . pain or other symptoms;
(v) Treatment, other than medication, [the claimant] receive[s] or ha[s] received for relief of . . . pain or other symptoms;
(vi) Any measures [the claimant] use[s] or ha[s] used to relieve . . . pain or other symptoms (e.g., lying flat on her back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and,
(vii) Other factors concerning [the claimant's] functional limitations and restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3), 416.929(c)(3). Furthermore, an ALJ rejecting subjective testimony concerning pain and other symptoms "must do so explicitly and with sufficient specificity to enable the court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence." Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987).

In this case, Halloran testified that she had pain in her left lower back which went down her left leg to her knee, and sometimes to her foot. She stated that her pain was sometimes sharp and dull with the rain. Halloran claims that the medication made her tired and sleepy. Furthermore, she used a heating pad to relieve the pain. She stated that vacuuming and grocery shopping caused her condition to worsen. Halloran maintains that the ALJ failed to take into consideration her obvious devotion to the labor market prior to becoming disabled. She points to Dr. Moberg's September 22, 1999, report which shows that a recent MRI showed degenerative changes at multiple levels.

The Commissioner maintains that Halloran's back condition had been treated conservatively. Furthermore, the record shows that her treatment did alleviate some of the pain. She recently failed to recommence physical therapy as recommended by Dr. Moberg. Also, the ALJ noted that Halloran declined further intervention such as steroid epidural injections or spinal cord stimulation which were also suggested by Dr. Moberg. Halloran testified that her time was spent reading, watching television or listening to the radio. She grocery shopped and performed household chores, including vacuuming occasionally, which she tried to avoid, and washed floors. She also visits with her elderly mother and occasionally went for walks in nice weather. She was independent in her grooming and drove short distances. The Commissioner maintains that there are factors which show that she was not suffering from disabling pain.

This court finds that Halloran's alleged complaints concerning pain are not supported by the objective evidence in the record. Although Halloran may have suffered some pain due to her back condition, the record does not indicate that she was precluded from work because of the pain. As mentioned, Halloran cooked and cleaned. She also looked after her elderly mother and drove some distances. She also took walks in nice weather. She spent some of her time watching television, reading and listening to the radio. These factors show that her subjective allegations of pain were inconsistent with the objective medical evidence. Accordingly, this court finds that the ALJ's determination was supported by substantial evidence.

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that the decision denying disability benefits be affirmed; and it is further

ORDERED that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.

*fn2 In addition, a claimant's

"Physical or mental impairment or impairments [must be] of such severity that she is not only unable to do her previous work but cannot, considering her 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 she lives, or whether a specific job vacancy exists for her, or whether she would be hired if she applied for work."
42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B)

Therefore, a plaintiff must not only carry a medically determinable impairment but an impairment so severe as to prevent her from engaging in any kind of substantial gainful work which exists in the national economy.

*fn3 The full-range of sedentary work requires the ability to lift up to ten pounds, sit for a total of six hours in an eight-hour workday, and stand and walk for up to two hours. 20 C.F.R. § 1567(a). The majority of sedentary jobs require good use of the hand and fingers. Social Security Ruling ("SSR") 83-10. Also, at all exertional levels, a person must have certain use of the arms and head to grasp, hold, turn, raise and lower objects. SSR 83-14.

*fn4 He found Halloran's disability was "partial marked-permanent."

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