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United States District Court, N.D. New York

February 11, 2004.

LINDA G. MATICE, Plaintiff

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2



Linda G. Matice brings this action to contest the denial of benefits by the Commissioner of Social Security. Her brief consists of a short note informing the court of additional impairments which affect her ability to work. She included reports from two different doctors with her short letter.*fn1 This court finds that the Commissioner's decision should be affirmed since it was based on substantial evidence.


  Matice filed an application for benefits on June 20, 1991. In a decision dated May 19, 1992, Administrative Law Judge James Johnsen found that she was disabled and awarded benefits due to bronchial asthma. On September 27, 1996, Matice was informed that the Commissioner planned to review her claim to determine whether her disability continued. On July 9, 1997, the Commissioner found that Matice's disability had ceased. The initial determination was affirmed after Page 3 she testified before a disability hearing officer on January 27, 1998. Matice appealed this determination, waiving her right to a personal appearance before an ALJ. On September 3, 1998, the ALJ considered the case de novo and found that her disability had ceased on July 31, 1997. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied her request for review on August 6, 1999.

  On October 29, 1999, Matice 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 December 20, 2000.*fn2


  Matice contends that the ALJ's decision was erroneous. She claims that the medical evidence shows that she was disabled and that she experienced disabling pain.

  The Commissioner maintains that the ALJ's determination was supported by substantial evidence and should be affirmed. Specifically, the Commissioner contends that the ALJ properly evaluated: (1) the Page 4 medical evidence; (2) her subjective complaints of pain; and, (3) her ability to do sedentary work.

  IV. FACTS*fn3

  Matice was thirty-five years old when the ALJ issued the decision in this case. She previously worked as a cashier and stocker. She completed the tenth grade.

  A. Previous Disability Determination

  Matice had a long history of asthma starting as a young child, which had been quiescent for years, then returned when she was twenty-three years of age. Since that time, she experienced numerous episodes requiring emergency room treatment. Matice used her inhalers on a steady basis as prescribed. The ALJ found that her clinical finding on pulmonary function testing did not meet or equal the criteria for the asthma listing section at 20 C.F.R. Part 404, Subpart P, Appendix 1. However, her treating physician, Dr. Abdur Jalalzai, assessed that she was unable to lift ten pounds, could never engage in several postural activities and was environmentally restricted from working with chemicals, dust, fumes, and humidity. Ultimately, the ALJ found Dr. Jalalzai's opinion to be Page 5 persuasive and Matice was found disabled as of June 20, 1991.

  B. Medical Evidence Dated After the Commissioner's Notice of Continuing Disability Review on September 27. 1996

  On January 27, 1997, Dr. Robert Kasulke, a consulting physician, examined Matice. Matice indicated that she used an inhaler three times per day, a nebulizer four times per day, and Slo-Bid tablets twice per day. Dr. Kasulke noted that Matice had two emergency room visits in the past two years without having been hospitalized. He found that her pulmonary function test results were consistent with moderate, partially reversible, pulmonary obstructive defect.

  Dr. Lewis Yecies has been Matice's treating physician since November of 1992. In February of 1997, Dr. Yecies opined that Matice had no limitations on lifting, carrying, sitting, standing, walking, pushing or pulling. In June of 1997, a consulting physician for a state agency opined that Matice could lift and carry up to twenty pounds, stand/walk for six hours per day, and sit for six hours. However, she was to avoid extreme weather changes and respiratory irritants. On February 26, 1998, Dr. Braxton Hillerman performed endoscopic sinus surgery. Thereafter, Dr. Hillerman completed a questionnaire indicating that Matice was environmentally restricted from dust and fumes. He did not find any other Page 6 limitations.

  C. Testimony

  On January 27, 1998, Matice testified in front of a disability hearing officer that she needed to use a nebulizer six times per day. She stated that this would prevent her from keeping a regular work schedule. She also testified that overhead reaching and/or carrying grocery bags caused her arms to ache. She testified that even standing still for fifteen to thirty minutes precipitated her asthma and caused chest tightness, for which she needed the nebulizer.

  D. Additional reports submitted to the District Court

  The medical reports provided to this court indicate that Matice currently suffers from fibromyalgia, headaches and backaches*fn4 (see Dkt. No. 17). Page 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 Page 8 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 Page 9 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).

  II. Legal Standard for Continuing Disability

  As a general rule, if the Commissioner finds that an individual is no longer disabled, her benefits may be terminated. 42 U.S.C. § 1382c(a)(4). However, benefits can only be terminated if there is substantial evidence demonstrating a "medical improvement" which enables the individual to engage in substantial gainful activity. Id.

  Medical improvement is defined as a decrease in the medical severity of the impairments, specifically, an improvement in the individual's Page 10 symptoms, signs and/or laboratory findings. 20 C.F.R. § 416.994(b)(1)(i). If medical improvement is found to be related to an individual's ability to work, then the ALJ is required to carry out the sequential evaluation process that is used in an initial determination. 20 C.F.R. § 416.994(b)(5)(i)-(vii). If the impairments are severe, but do not meet or equal the severity of any impairment contained in the Listing of Impairments, the individual's current Residual Functional Capacity (RFC) must be assessed based on all current impairments. 20 C.F.R. § 416.994(b)(5)(i)-(vi). As in an initial determination, the individual's current RFC will be compared to her past relevant work in order to determine if she can perform this work. 20 C.F.R. § 416.994(b)(5)(vi). If the RFC, age, education and work experience do not permit an individual to perform past relevant work, a determination will be made as to whether there is other work in the national economy that she can do. 20 C.F.R. § 416.994(b)(5)(vii). If such work exists, the claimant's disability will have ended. Id.

  In this case, the ALJ found that Matice had not worked since the original onset date of June 20, 1991.*fn5 The ALJ determined that Matice had Page 11 asthma, a severe impairment which did not meet an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Social Security Regulation No. 4. The ALJ noted that the medical evidence established that there had been an improvement in Matice's medical condition since May 19, 1992. Next, the ALJ noted that the improvement was related to her ability to work. He then determined that Matice had no past relevant work experience but had the RFC to perform sedentary work since July of 1997. Subsequently, the ALJ noted that she was 35 years old with non-exertional limitations which did not allow her to perform the full-range of sedentary work. Thereafter, the ALJ found that Matice was not disabled since there were jobs which existed in the economy that she could do despite her limitations.

  III. Substantial Evidence

  An applicant seeking to overturn the final decision of the Commissioner must establish that the decision is not supported by substantial evidence on the record. Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citations Page 12 and internal quotation marks omitted). The Commissioner's findings concerning any fact are conclusive if supported by substantial evidence. Id. at 390.

  In addition, the Commissioner is obligated to evaluate all of a claimant's symptoms, including pain. 20 C.F.R. § 404.1529(a) and 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. 20 C.F.R. § 404.1529(c)(4) and 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); Gallagherex 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.").

  In this case, the ALJ's decision was supported by substantial evidence and should be affirmed. The medical evidence shows that Matice's asthma had improved so that she was capable of working. Page 13 Numerous medical sources, including her treating physician, noted that her condition improved. Specifically, Dr. Yecies opined that Matice had no limitations on lifting, carrying, standing, walking, sitting, pushing or pulling. He also noted that her clinical findings were stable. Dr. Hillerman, the otolaryngologist who performed her sinus surgery, opined that she had no limitations except that she should avoid dust and fumes. In June of 1997, a state agency physician assessed that Matice was capable of lifting up to twenty pounds, stand/walk for six hours in an eight-hour day, sitting for six hours and push/pull to an unlimited extent. However, the physician noted that she should avoid concentrated exposure to extreme cold, humidity and respiratory irritants. The medical evidence supports the conclusion that Matice is no longer disabled.

  In addition, this court finds that the ALJ properly determined that Matice's pain was not disabling. The ALJ found that while some of the symptoms alleged could have been produced by her impairments, they were not disabling. The ALJ also noted that her statements concerning her disability were not credible. For instance, Matice testified that she needed to use the nebulizer six times a day for up to half an hour each time and that no employer would hire her. However, the medical records Page 14 did not show that she was using the nebulizer as often as she claimed.

  Dr. Yecies' notes from September 19, 1997, indicated that Matice was using the nebulizer twice a day. His notes from October 28, 1997, show that she was using her nebulizer four times a day. Dr. Kasulke's notes indicated that Matice was using her nebulizer four times a day. As the ALJ mentioned, the inconsistency in her statements served to undermine her claims concerning her impairment.

  Lastly, Matice told the hearing officer that she had arm pain on overhead lifting due to heavy breathing, severe headaches, vision problems and backaches. However, as the ALJ noted, the medical record did not show treatment for these alleged complaints. This court finds that the ALJ's decision was supported by substantial evidence and should be affirmed. Accordingly, this court ORDERS the Commissioner's decision be affirmed and the case dismissed.

  WHEREFORE, for the foregoing reasons, it is hereby

  ORDERED, that the decision denying disability benefits is AFFIRMED; and it is further

  ORDERED that the Clerk of the Court serve a copy of this Order Page 15 upon the parties by regular mail.

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