United States District Court, N.D. New York
February 11, 2004.
LINDA G. MATICE, Plaintiff
COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2
DECISION AND ORDER
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.
II. PROCEDURAL HISTORY
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
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
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
medical evidence; (2) her subjective complaints of pain; and, (3)
her ability to do sedentary work.
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
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
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
The medical reports provided to this court indicate that Matice
currently suffers from fibromyalgia, headaches and backaches*fn4
(see Dkt. No. 17).
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
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
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
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
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
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
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
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.
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
did not show that she was using the nebulizer as often as she
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
upon the parties by regular mail.