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United States District Court, Southern District of New York

April 9, 2003


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Martin Nelson brings this action under 42 U.S.C. § 405(g) challenging a final determination by the Commissioner of Social Security denying his application for Supplemental Security Income ("SSI") disability benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c), F.R.Civ.P.


Martin Nelson was born on November 5, 1938. (Tr. at 37)*fn1 For over thirty years, from 1966 to 1997, he was a teacher for the New York School for the Deaf. (Tr. at 81.) Starting out as a history teacher, plaintiff was a horticulture/industrial arts teacher for the last thirteen years of his employment, except for his last six months of work, when the school decided to place him in a one-on-one tutoring position. (Tr. at 43, 57, 58.) He had also been a track and field coach for the school, training students in shot and discus. (Tr. at 161.) At the time Nelson was last insured under the Social Security Act he was 60 years old. (Tr. at 84.)

Nelson filed an application for disability insurance benefits on November 28, 1997. (Def.'s Mem. at 1.) This application was denied initially and upon reconsideration. (Id. at 1-2.) He then requested an administrative hearing, which was held on January 5, 1999. (Id. at 2.) Administrative Law Judge ("ALJ") James B. Reap considered the case and found that plaintiff was not disabled. (Id.) On March 9, 2001, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (Id.)

I. Administrative Hearing

A. Medical Evidence

On December 11, 1995, Nelson, who is right-arm dominant, injured his right elbow at work attempting to pull down a window that was frozen open. (Tr. at 160.) On December 20, 1995, he underwent surgery to repair a ruptured bicep tendon in his right arm. (Tr. at 161.) The surgery was performed by Dr. Louis F. McIntyre, an orthopedic surgeon. (Pl.'s Mem. at 3.)

After his surgery, Nelson was seen by McIntyre once every two weeks through January, 1996, and then approximately once every month into the spring of 1996. (Tr. at 161-62.) Dr. McIntyre also sent Nelson for physical therapy to improve his range of motion. (Id.) According Dr. McIntryre's records, by June, 1996, Nelson had regained full strength in his elbow. (Tr. at 163.) In September of 1996, however, the doctor estimated Nelson's disability at 15%, noting that he lacked 20 degrees of terminal extension and experienced numbness over the volar radial aspect of his arm. (Id.)

On September 30 1996, Dr. Richard Freeman, an orthopedic surgeon, examined Nelson in connection with Nelson's worker's compensation claim. (Tr. at 165.) Dr. Freeman noted that Nelson's range of motion in his right arm was less than that of his left arm, and that his grip strength was 160 pounds on the right, compared with 360 pounds on the left. (Id.) The doctor estimated a 30% loss of use of Nelson's right arm. (Id.)

In February of 1997, Nelson saw Dr. McIntyre again, this time due to right shoulder pain. (Pl.'s Mem. at 4; Tr. at 164.) He was diagnosed as having a rotator cuff tear, which required surgery in September of 1997. (Tr. at 167.) Six weeks after the surgery, Dr. McIntyre wrote a note stating that Nelson could return to work but could not perform "vigorous" activities. (Tr. at 172.) In subsequent doctor's visits, Nelson complained of weakness and shoulder pain. (Tr. at 169-70.) Dr. McIntyre diagnosed him as having a recurrent rotator cuff tear, and plaintiff underwent a third operation in October, 1998, to revise his rotator cuff repair and resect his acromiclavicular ("AC") joint.*fn2

In addition to Nelson's right arm and shoulder problems, he also had a long history of hypertension and had suffered two heart attacks in the late 1980's. (Tr. at 123.) On May 15, 1997, plaintiff was brought by ambulance to Westchester County Medical Center Emergency Department after he was found lying unconscious on the floor of the New York School for the Deaf hallway. (Tr. at 122-35.) Plaintiff stated that he had fainted after experiencing dizziness and chest pains. (Tr. at 122.) After an examination which included an electrocardiogram ("EKG"), Nelson was discharged with a diagnosis of stable angina. (Tr. 122, 125.)

Following this incident, plaintiff was seen by a cardiologist, Dr. Anthony Morano, once every three months from May 19, 1997, through September 15, 1998. (Tr. at 184-87.) Dr. Morano diagnosed plaintiff with essential hypertension and variant angina, requiring several different medications. (Id.) In an undated report, Dr. Morano stated that plaintiff's prognosis was good, but noted that his medications cause fatigue and that moderate exertion or heavy lifting could precipitate a variant angina attack, although nitroglycerine administered during such an attack would help control the variant angina. (Id.)

Dr. Morano also examined Nelson prior to his third surgery on October 21, 1998. (Tr. at 189-90.) He noted that Nelson had a long history of essential hypertension and a possibility of variant angina, but stated that both of these conditions were well controlled and stable, presenting no contraindication to the shoulder surgery. (Id.)

On February 4, 1998, the Government sent plaintiff for a consultation with Dr. William Lathan, a board certified physician. (Pl.'s Mem. at 10.) Dr. Lathan's relevant findings were as follows: "Fine manipulation and grasp strength are normal bilaterally. At the right shoulder the patient complains of pain when the joint is maneuvered through forward elevation to 100 degrees and abduction to 90 degrees. The right elbow flexion strength is 3/5, extension strength is 3/5. The left elbow extension and flexion strengths are 5/5 respectively." (Tr. at 137.) Plaintiff was found to have an increased cardiac diameter; his EKG was normal. (Id.) Dr. Lathan's impression was that Nelson had a derangement of the right shoulder, hypertension, obesity, and history of heart attack. (Id.) He advised that plaintiff was impaired for lifting and for elevation above the horizontal with the right upper extremity. (Tr. 137-38.)

In addition to the above evaluations of treating and consulting physicians, the ALJ also considered assessments made by two non-examining state agency physicians, Dr. C. Levit and Dr. Ford.*fn3 Based on a review of Nelson's medical records on February 20, 1998, Dr. Levit concluded that Nelson was able to frequently lift ten pounds, occasionally lift up to twenty pounds, and could sit, stand, and/or walk for up to six hours each in an eight-hour workday. (Tr. at 107-114.) Dr. Levit also stated that plaintiff was unlimited in terms of pushing or pulling, including operation of hand controls. (Tr. at 108.) The following month, Dr. Ford reviewed plaintiff's medical records and concurred with Dr. Levit's assessment. (Tr. at 114.)

Significantly, it does not appear that the state agency physicians considered plaintiff's right elbow and shoulder problems. Dr. Levit listed plaintiff's primary diagnosis as hypertension, his secondary diagnosis as obesity, and left blank a category entitled "other alleged impairments." (Tr. at 107.) Nelson's right elbow and shoulder are not mentioned anywhere in the agency's report.

B. Plaintiff's Testimony

Nelson testified that that he was prevented from working due to his right arm problems and his heart problems. (Tr. 39-40.) He stated that he was still in pain despite his surgeries and had to perform tasks left handed. (Tr. 38, 51, 58-60.) He couldn't work because it became too difficult to use his right hand to sign constantly. (Tr. at 57.) He also had problems writing on the blackboard, as this involved lifting his arm. (Id.) When he was assigned to tutoring during his last six months at the school, he testified that he still had difficulty because part of the time he would use his arm to illustrate on a map, draw diagrams, or write on the board, but that if he kept his elbow on the desk it relieved the pain. (Tr. at 60.) Nelson also testified that the pain medication he takes for his arm (Hydrocodone) causes sleepiness, as does his heart medications. (Tr. at 48.) He usually takes two naps a day. (Tr. at 53, 208.) Plaintiff stated that he tries to avoid taking Nitroglycerine because it causes him to get "headaches that are beyond belief," but that he typically takes it once or twice a week, depending on what he's doing. (Tr. at 48-49.)

Plaintiff's testimony regarding his ability to teach at a school where signing is not required is somewhat contradictory. At first he indicated that he couldn't work because "who would want to risk hiring me knowing that I could probably faint or pass out and I'm tired." (Tr. at 40-41.) Then he indicated that, although he could not teach at a school for the deaf, he would "take [a regular teaching job] tomorrow" if it were offered, and claimed the problem was that a school system would rather hire a younger teacher rather than someone who was older and higher paid like himself. (Tr. at 43.)

Later, in response to questions posed by his attorney, Nelson testified that he would not be able to perform the job of a teacher.

Q: You testified . . . that you thought you could possibly teach [in] another setting other than for the blind without signing. Is that accurate?
A: You mean for the deaf?

Q: Yeah, I'm sorry. Is that accurate?

A: Yeah, I think I could. I would try it.

Q: Do you think you could work the whole school day?
A: No.

Q: I'm not really understanding.

A: Well, there's two parts. One, can you do it? No. Mentally would you like to do it? Yes. I need to do something.
(Tr. at 54.)

II. Appeals Council

After the ALJ issued an unfavorable decision on his claim, plaintiff submitted two pieces of supplementary medical evidence to the Appeals Council. First, he submitted a letter and report written by Dr. McIntyre on April 13, 1999, in which the doctor stated that he continued to see plaintiff and that plaintiff still complained about his shoulder.*fn4 (Tr. at 237.) The doctor evaluated Nelson's shoulder as having forward elevation to 160 degrees; coronal elevation to 165 degrees; abduction and external rotation to 90 degrees; abduction and internal rotation to 90 degrees; and internal rotation to L3. (Id.) The doctor noted good strength of the rotator cuff on abduction and external rotation. (Id.)

Dr. McIntyre described Nelson's pain as moderate, increased with activity. (Tr. at 239.) He wrote that Nelson was not able to perform any overhead activity, that he was able to lift and carry up to ten pounds occasionally, and that he was able to use his right hand for fine manipulations, but not to reach, twist, or grasp objects. (Tr. at 239-40.)

Based on the above, Dr. McIntyre concluded, "I have estimated plaintiff's disability at 40% of his upper extremity. This condition will remain constant and will not improve over time. It will exceed twelve months' duration. There is little chance of recovery. He currently requires narcotic medications for the pain on a regular basis." (Tr. at 238.) The doctor also stated that plaintiff would have good days and bad days, and that if plaintiff were to work, he would be absent an estimated 30% of the time. (Tr. at 240.)

In addition to Dr. McIntyre's letter, plaintiff submitted a report written by Dr. Freeman, who evaluated plaintiff a second time on June 4, 1999. Dr. Freeman's clinical examination revealed a limited range of motion of the right shoulder with abduction of 135 degrees compared with 180 degrees on the left, forward flexion of 145 degrees compared with 180 degrees on the left, with the abducted arm, external rotation 80 degrees compared with 90 degrees on the left, internal rotation 70 degrees compared with 90 degrees on the left, and posterior reach was to the sacroiliac joint on the right, compared to T6 on the left. (Tr. at 235.)

Based upon his examination, Dr. Freeman concluded that plaintiff had a mild, partial disability. (Id.) Though he recommended waiting an additional four months before assigning a schedule loss of use, he predicted that a final schedule loss of use for the right arm would be in the vicinity of 50 percent. (Id.)


"Judicial review of the Commissioner's denial of benefits is strictly limited." Richardson v. Apfel, 44 F. Supp.2d 556, 560 (S.D.N.Y. 1999) (Carter, J.). The court may not determine de novo whether a claimant is disabled; rather, it may only set aside the Commissioner's decision if it is based on legal error or is not supported by substantial evidence in the record as a whole. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted)).

The Social Security Administration has promulgated a five-step sequential procedure for evaluating disability claims. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Id. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits his ability to do basic work activities. Id. If the claimant is severely impaired, the third inquiry is whether the claimant has an impairment listed in Appendix 1 of the regulations. Id. Fourth, if the claimant does not have a listed impairment, the claimant must show that he does not have the residual functional capacity to perform his past work. Id. Fifth and finally, if the claimant shows he is unable to perform his past work, the burden then shifts to the Commissioner to show that the claimant still retains a functional capacity to perform alternative substantial gainful work that exists in the national economy, taking into account the claimant's age, education, and work experience. Id. (citation and internal quotation marks omitted).

Utilizing this procedure, the ALJ concluded that: 1) plaintiff had not engaged in substantial gainful activity since August 16, 1997; 2) plaintiff's impairment was severe; 3) plaintiff's impairment did not meet or equal the level of severity of any impairment contained in 20 C.F.R. Part 404, Subpart P, Appendix 1; and 4) plaintiff was ineligible for benefits because, although he was unable to return to his work as a teacher for the deaf because he could not constantly use his right hand for sign language, he could perform his past relevant work as a teacher in general as that job is performed in the national economy. (Tr. at 21-25 (citing Dictionary of Occupational Titles ("DOT") § 091.221-010).)

A. Past Relevant Work

Plaintiff argues that the ALJ erred as a matter of law by misinterpreting his past relevant work as that of a teacher rather than a teacher for the deaf. Plaintiff is correct. The Dictionary of Occupational Titles makes a distinction between these occupations, and lists a separate classification for a teacher of the hearing impaired. See DOT § 094.224-010. Therefore, plaintiff was only required to show that he could not perform his former work as a teacher for the hearing impaired, not a teacher in general. Plaintiff met this burden, as was conceded by the ALJ, and thereby established all of the elements of his case. (Tr. at 25.)

In order to properly deny benefits, it then became the burden of the Commissioner to show that plaintiff still retained a functional capacity to perform alternative substantial gainful work that exists in the national economy. As the Commissioner denied benefits without meeting this burden, a legal error was committed.

B. Medical Evidence

Plaintiff also claims that the Commissioner erred by giving insufficient weight to the opinions of his treating physicians in determining that he could perform the work of a teacher. The ALJ assigned "minimal evidentiary weight" to Dr. McIntyre's opinions in a November 28, 1998 disability report for several reasons. (Tr. at 24.) First, the ALJ stated that the doctor's "limited opinion," formulated in the immediate post-operative period, was "without consideration of the therapeutic benefits of ensuing physical therapy." (Id.) Second, the ALJ found that the doctor's treatment notes showed improvement in plaintiff's condition as time passed. (Id.) Third, "the probative value of the treating orthopedist opinion [was] further diminished by the advisory opinion submitted" by Dr.'s Ford and Levit, who had "access to all the medical evidence" and concurred that plaintiff had the ability to lift and carry up to ten pounds frequently and twenty pounds occasionally; sit, stand and walk up to six hours, with no established postural limitations. (Id.)

According to the "treating physician rule," the medical opinions of a claimant's treating sources are given "special evidentiary weight" in disability benefits cases. Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998); Gonzalez v. Apfel, 113 F. Supp.2d 580, 588 (S.D.N.Y. 2000) (Carter, J.). The SSA regulations specifically state:

Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
20 C.F.R. § 416.927(d)(2). If such an opinion is not given controlling weight, the Commissioner applies the following factors in deciding how much weight to assign it: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinions consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Clark, 143 F.3d at 118 (citing 20 C.F.R. § 416.927(d)(2)); Gonzalez, 113 F. Supp.2d at 588. These factors are also applied in assessing the weight to be given the opinions of other medical sources. See 20 C.F.R. § 416.927(d), (f).

Since Dr. McIntyre is properly regarded as one of plaintiff's treating physicians, the ALJ erred by not assigning his opinion controlling or at least greater weight. Dr. McIntyre's opinion was consistent with those offered by Dr. Freeman and Dr. Lathan, both of whom examined plaintiff. The only physicians who had arguably inconsistent diagnoses were the state agency doctors, who never examined plaintiff and completely failed to account for any elbow or shoulder problem in their report. Based on the above-cited SSA regulations, the opinions of these state agency doctors were entitled to much less weight than that of Dr. McIntyre, a specialist who had a significant treatment relationship with plaintiff, and whose opinion was supported by substantial evidence in the record.

In addition to the ALJ's error, the Appeals Council erred in denying plaintiff's request for reconsideration, particularly in light of the new and material evidence contained both in Dr. McIntyre's April 1999 letter, which estimated a permanent disability of 40% in plaintiff's right arm, and in Dr. Freeman's June, 1999 letter, which estimated that plaintiff would suffer from a 50% scheduled loss of use of that arm.

C. Plaintiff's Credibility

Finally, plaintiff claims that the ALJ failed to properly evaluate his credibility. A claimant's subjective pain, when supported by other facts in the record showing that the claimant has a medical impairment that could reasonably be expected to produce the pain, may establish that a claimant has a disability. See Woodford v. Apfel, 93 F. Supp.2d 521 (S.D.N.Y. 2000) (Carter, J.) (citing 20 C.F.R. § 404.1529(a)). The ALJ concluded that plaintiff's complaints of pain and functional restrictions were contradicted by plaintiff's activities,*fn5 the medical record, and plaintiff's statement that he would "take a teaching job tomorrow if it were offered." (Tr. at 25-26.)

The record indicates that the Commissioner improperly weighed the evidence corroborating plaintiff's subjective pain testimony. Plaintiff testified that he has a condition causing debilitating pain that prevents him not only from working, but from engaging in most of his former recreational activities. (Tr. at 42-43, 51-53.) This testimony has support in the administrative record. Plaintiff repeatedly complained to his doctors of pain (Tr. 160-65, 169-70, 234), his treating physician has stated that plaintiff's symptoms are consistent with his impairment (Tr. at 242), and plaintiff took the drug Hydrocodone regularly to relieve his pain (Tr. at 209, 238). Finally, it should be noted that plaintiff had a long work history, over thirty years with a single employer, and "a claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability." Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983); see also Woodford, 93 F. Supp.2d at 530, n. 14.


For the aforementioned reasons, the Commissioner's decision denying plaintiff SSDI benefits is reversed. As the question remains whether plaintiff could engage in gainful activity less strenuous than his prior employment as a teacher for the deaf, the case is remanded for reconsideration in accordance with this opinion. The Commissioner is directed to 1) consider all of the treating doctors' reports when making a determination as to plaintiff's residual functional capacity; and 2) reexamine plaintiff's testimony in light of the evidence discussed above.


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