United States District Court, E.D. New York
March 2, 2004.
CATHERINE MOLLO, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Catherine Mollo ("Mollo" or the "plaintiff") commenced this action
pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
challenging the final determination of the Commissioner of Social
Security (the "Commissioner") denying disability insurance benefits to
her. Both parties move for judgment on the pleadings pursuant to
Rule 12(c) of
the Federal Rules of Civil Procedure ("Fed.R. Civ. P.").
A. The Procedural History
On January 18, 1995, Mollo filed an application for social security
disability insurance benefits, claiming disability since December 22,
1992 due to back pain. After her application initially and on
reconsideration was denied, she requested a hearing before an
administrative law judge ("ALJ"). On March 14, 1996, a hearing was
conducted before Administrative Law Judge Murray Sklaroff ("ALJ
Sklaroff"). The plaintiff appeared with her attorney. In a decision dated
June 24, 1996, the ALJ Sklaroff found that Mollo was not disabled within
the meaning of the Act and was therefore not entitled to disability
insurance. On July 15, 1996, she filed a request for review with the
Appeals Council. On October 17, 1997, the Appeals Counsel declined to
review the claim, making the ALJ's decision the final administrative
On December 5, 1997, the plaintiff commenced an action with this Court
under civil action 97 CV 7122. On December 5, 1998, this Court "so
ordered" a Stipulation and Remand entered into by the parties.
Subsequently, on February 8, 1999, the Appeals Council issued an Order
remanding this matter to the Commissioner for further proceedings
pursuant to the sixth sentence of 42 U.S.C. § 405(g).
On May 26, 1999, a second hearing was held before ALJ Sklaroff. The
plaintiff appeared with her attorney. ALJ Sklaroff stated that he would
consider all the evidence de
novo including the new evidence. On June 16, 1999, ALJ Sklaroff
again denied the plaintiff's claim, concluding that she was not disabled.
On March 19, 2001, based on the exceptions to ALJ Sklaroff's decision
filed by the plaintiff, the Appeals Council issued an Order, remanding
this matter to a different ALJ for further administrative proceedings.
On July 17, 2001, a third hearing was conducted before Administrative
Law Judge Richard Karpe ("ALJ Karpe"). Again, the plaintiff appeared with
her attorney. ALJ Karpe considered the case de novo. On July 20, 2001,
ALJ Karpe concluded that Mollo was not disabled during the relevant
period. This decision became the Commissioner's final decision when the
Appeals Council concluded on March 22, 2003 that there was no basis to
review ALJ Karpe's decision. Subsequently, the plaintiff commenced this
action under civil action 03 CV 2545, challenging ALJ Karpe's decision.
B. The Record
1. The Plaintiff's Background and Testimony
Mollo was born on April 18, 1944, making her 51 years of age at the
time of the first administrative hearing before ALJ Sklaroff. The
plaintiff graduated from high school and worked as a full time
bookkeeper for a retail company. On December 22, 1992, the plaintiff fell
at work and injured her back. She reported that she was disabled from
December 22, 1992 through April 15, 1996, the date on which she states
her condition improved to the extent she was able to return to work.
At the first hearing in March 1996, Mollo testified that she was
awarded Workers' Compensation benefits as a result of her injury. The
plaintiff described her back pain as radiating to her lower extremities
which restricted her abilities to sit, stand, and walk. Mollo said that
she could lift or carry small items, such as dishes. She said that,
although she was unable to do heavy housework, she was able to cook. The
plaintiff further stated that her retired husband and her adult children
Mollo testified that she initially received physical therapy for her
condition until it was discontinued by her insurance company. The
plaintiff reported that she then sought treatment from chiropractor Dr.
Nancy Paritsky. In connection with her Workers' Compensation claim, the
plaintiff began seeing an orthopedist, Dr. Jacob Lehman. She said that
she was also evaluated by a neurologist, Dr. Henry Moreta. The plaintiff
testified that her prescribed treatment during the relevant period
consisted primarily of oral analgesic medication, which she did not take
unless absolutely necessary. She indicated that she took over the
counter medication, such as Tylenol and Advil.
On May 26, 1999, during the second hearing, Mollo testified that she
still felt pain but that she was working part time for a
temporary agency. The plaintiff reported that she stopped going to
doctors, did not take prescribed medication, and tried to do pool
exercises in order to get her strength back. Mollo stated that she was
entitled to benefits through April 15, 1996, the date of her last visit
with Dr. Lehman. According to the plaintiff, during the
relevant period, she could not participate in many activities and
was limited in performing household chores. The plaintiff testified that,
while she could take care of her personal needs, she performed them
slowly, so as not to aggravate her condition. Mollo testified she stopped
seeing doctors because she "decided to try it on [her] own." She further
testified that Dr. Lehman informed her that her pain "was something [she]
was going to have to learn to live with."
At the July 17, 2001 hearing before ALJ Karpe, the plaintiff testified
that she was unable to sit or stand for any length of time during the
relevant time. The plaintiff stated that she had previously taken
Vicodin. She also said that she had taken either Relafen or Flexeril. She
testified that during the relevant time she had trouble sleeping because
of her medication and that she felt "groggy" during the day.
2. The Diagnostic Tests
On February 2, 1993, Mollo underwent an magnetic resonance imaging test
("MRI") of the lumbosacral spine. The MRI revealed bulging of the fibrous
annulus at L5-S1, but no gross disc herniation. The test also showed some
dessication of the disc, suggesting degenerative changes.
A January 9, 1995 MRI of the lumbosacral spine showed evidence of
degenerative disc disease with bulging annulus at the L5-S1, but no
associated compression of the thecal sac or exiting nerve roots. Because
a signal abnormality at the L1-2 level was noted, the
examiner suggested comparing Mollo's 1993 MRI with this finding to
determine its significance. In comparing the January 1995 MRI to the
February 1993 MRI, the examiner concluded that the appearance of the
L5-S1 disc had not appreciably changed. In addition, the comparison
revealed that there was no signal abnormality or abnormal enhancement
within or around the thecal sac at the L1-2 disc level. The examiner
attributed the previously described signal abnormality to a flow related
The results of a January 20, 1995 EMG revealed an abnormal
electrodiagnostic examination consistent with right S1 radiculopathy. The
examiner recommended that Mollo continue her treatment. A February 13,
1995 MRI showed no signal abnormality or abnormal enhancement within or
around the thecal sac at the L1-2 disc level.
3. The Relevant Medical Evidence
Between November 3, 1993 to December 7, 1994, the plaintiff sought
treatment from chiropractor Dr. Nancy Paritsky for pain in her lower
back, numbness in her fingers and toes, a sensation of "pins and needles"
in the arms and legs, and numbness in the fingers and toes. In an undated
physical capacities evaluation form, Dr. Paritsky noted that Mollo could
sit less than three hours, stand and walk less than two hours, and lift
and carry ten pounds occasionally.
On September 20, 1994, Dr. Jacob Lehman, the orthopedic surgeon, saw
the plaintiff on consultation. Based on a physical examination, Dr.
Lehman noted that "there is
good range of motion right shoulder. There is considerable muscle
spasm over the lumber spine. Motions of the lumber spine are restricted
60% due to pain." Dr. Lehman stated that Mollo had a "marked disability"
at this time. He advised her to continue chiropractic treatment and
recommended that she see a neurologist. Dr. Lehman requested
authorization for an MRI of the lumbar spine. Dr. Lehman reported to the
Workers' Compensation Board that her disability was "total."
On November 29, 1994, Dr. Lehman again treated the plaintiff and
relayed his findings of tenderness and muscle spasm over the plaintiff's
lower back with straightening of the normal lumbar lordotic curvature. He
noted abduction of the right shoulder was to 150 degrees. Dr. Lehman
stated that Mollo's right ankle reflex was diminished, but that all other
reflexes were present. According to Dr. Lehman, the pain and muscle spasm
in her back and pain radiating into her legs precluded her from
performing any type of work, even light sedentary work on a part
time basis. He added that "this disability is expected to persist for
more than one year from the time of [his] last examination."
On a follow up visit on February 13, 1995, Dr. Lehman observed that her
left ankle reflex was present. The remaining examination findings were
unchanged from the previous examination. Dr. Lehman also noted the
January 1995 MRI finding of a desiccated L5-S1 bulging disc. In April
1995, Dr. Lehman completed a physical capacities evaluation, noting that
Mollo could sit less than two hours, stand and walk less than one hour
and lift and carry
ten pounds occasionally. The doctor further noted that she could
use her hands for sustained, repetitive action performing simple
grasping/gripping, fine manipulation and reaching overhead. In addition,
Dr. Lehman assessed that she could occasionally bend and reach during an
eight hour workday.
At Dr. Lehman's request, neurologist Dr. Henry Moreta examined Mollo on
November 16, 1994. Based on an examination, Dr. Moreta observed
tenderness of the lumbosacral and sacroiliac spine. Dr. Moreta also noted
that there was no significant hip joint tenderness and Patrick's sign was
negative bilaterally. In addition, he reported positive straight leg
raising test bilaterally. A neurological examination revealed that
strength was full at grade 5/5 bilaterally and that sensation was normal
to pinprick bilaterally. Dr. Moreta assessed deep tendon reflexes of the
extremities were all equal 1. Dr. Moreta observed that the plaintiff's
gait was steady. Dr. Moreta also assessed lumbosacral sprain, post
traumatic myofascial pain and ruled out lumbosacral radiculopathy
and herniated disc. He recommended a repeat MRI of the lumbosacral spine
and continued chiropractic care.
On December 27, 1995, Dr. Moreta re evaluated the plaintiff. He
reported that the MRI diagnostic studies revealed no evidence of disc
herniation or extruded disc fragment. Upon examination, the doctor noted
left sacroiliac and left paralumbar tenderness. In addition, he stated
that straight leg raising was negative and motor strength and sensation
were unchanged. Dr. Moreta also stated that deep tendon reflexes were
increased to 2.
His assessment was lumbosacral myofascial pain, bilateral heel
arthritis or tendonitis. He ruled out systemic factors. Dr. Moreta
recommended a trial of Advil and blood tests.
On February 15, 1995, state agency physician Dr. Alan Kaye completed a
residual functional capacity report. Based on the January 1995 MRI and
Dr. Moreta's November 1994 findings, Dr. Kaye opined that Mollo could
lift and/or carry up to twenty pounds occasionally and up to ten pounds
frequently. He further determined that she could sit and stand and/or
walk for a total of about six hours each in an eight hour
workday. Dr. Kaye noted that her ability to push and/or pull with her
lower extremities was limited and that she could occasionally perform the
postural activities of climbing, stooping, kneeling, crouching and
crawling, and frequently perform balancing. Dr. Kaye opined that she
could perform reaching as tolerated by her back pain.
On March 22, 1996, psychologist Eugene Zanger, Ph.D., evaluated the
plaintiff. During the examination, Dr. Zanger observed that Mollo was
restless and unable to sit for longer than fifteen minutes at one time.
Aside from this, Dr. Zanger stated that she was "very cooperative" and
that "no unusual behavior was noted." He did not note that she was in
pain. Dr. Zanger indicated that the plaintiff stated that she spent her
days at home walking, reading, and watching television. Mollo also stated
she and her husband go out once or twice a week to eat and sometimes
visit friends. The plaintiff reported that she was taking an anti
inflammatory, a muscle relaxant, and a pain killer. Mollo also informed
him that "ice
packs on and off her back and swimming relieves her pain."
The plaintiff's answers to a coping strategies questionnaire showed
that Mollo appeared "to be more of an active person than one who feels
hopeless in dealing with her pain. . . ." A multi dimensional
pain inventory indicated that the plaintiff had the "same amount of
control over her life as the normative group" but "seemed to do less
household chores and less outdoor work than they do." Dr. Zanger also
administered a John Hopkins test for validating the plaintiff's complaint
of pain, which concluded that Mollo was "not exaggerating her pain" and
that she has an "organic recognized syndrome." In a letter, dated April
15, 1996, Dr. Lehman stated that he "tend[ed] to agree" with Dr. Zanger's
At the March 1996 hearing, ALJ Sklaroff took the testimony of medical
expert Dr. Richard Goodman, a board certified orthopedic surgeon
who had reviewed the record and heard the plaintiff's testimony. Dr.
Goodman testified that, although the plaintiff had subjective back pain,
electrical studies were normal, which was consistent with, but not
diagnostic of, S-1 radiculopathy. In addition, Dr. Goodman testified that
MRI studies in 1993 and 1995 showed only a bulging disc, which in his
opinion was a normal finding. According to Dr. Goodman, the fact that
Mollo's reflexes and sensory perception were found to be normal by
different medical sources is consistent with the essentially normal
diagnostic studies. Dr. Goodman further indicated that the results of her
tests were typical for someone the plaintiff's age. In light of the
negative medical evidence and despite Mollo's
subjective complaints, Dr. Goodman said that he was unable to
substantiate any evidence of organic disease.
A. Standard of Review
A Court may set aside a determination by the Commissioner only if the
decision is based on legal error or is not supported by substantial
evidence. See 42 U.S.C. § 405(g); Brown v. Apfel,
174 F.3d 59, 61-62 (2d Cir. 1999). Substantial evidence is "more than a
mere scintilla." Richardson v. Perales, 402 U.S. 389, 401,
91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
Rather, substantial evidence requires enough evidence that a reasonable
person "might accept as adequate to support a conclusion."
Brown, 174 F.3d at 62-63.
In determining whether the Commissioner's findings are supported by
substantial evidence, the Court's task is "to examine the entire record,
including contradictory evidence and evidence from which conflicting
interferences can be drawn." Id. at 62 (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). In
addition, the Court is mindful that "it is up to the agency, and not this
court, to weigh the conflicting evidence in the record." Clark v.
Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Indeed,
in evaluating the evidence, "`the court may not substitute its own
for that of the Secretary, even if it might justifiably have
reached a different result upon de novo review.'" Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v.
Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
B. Analytical Framework
Federal disability insurance benefits are available to those
individuals who are "disabled" within the meaning of the Act.
See 42 U.S.C. § 423(a), (d). To qualify for disability
benefits under the Act, a plaintiff must establish her "inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or
can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). The impairment must be of "such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy."
42 U.S.C. § 423(d)(2)(A).
The federal regulations set forth a five step analysis that the
Commissioner must follow in evaluating disability claims:
1. The ALJ must consider whether the claimant is
currently engaged in substantial gainful
2. If not, the ALJ must consider whether the
claimant has a "severe impairment" which limits
her mental or physical ability to do basic work
3. If the claimant has a "severe impairment," the
ALJ must ask whether, based solely on medical
evidence, that limitation is listed in Appendix
1 of the regulations.
4. If the impairment is not "listed" in the
regulations, the ALJ then asks whether she has
residual functional capacity to perform her
past work despite her severe impairment.
5. If she is unable to perform her past work, the
burden shifts to the ALJ to prove that the
claimant retains the residual functional
capacity to perform alternative work.
20 C.F.R. § 404.1520, 416.920; Green-Younger v.
Barnhart, 335 F.3d 99
, 106 (2d Cir. 2003) (citing Draegert v.
Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)). The claimant bears the
burden of proof as to the first four steps, while the ALJ bears the
burden of proof as to the fifth step. See Shaw v.
Chater, 221 F.3d 126
, 132 (2d Cir. 2000). In proceeding through the
five step analysis, the Commissioner must consider four factors:
"(1) objective medical facts, (2) diagnosis or medical opinions based on
these facts; (3) subjective evidence of pain and disability; and (4) the
claimant's educational background, age, and work experience."
Mongeur v. Heckler, 722 F.2d 1033
, 1037 (2d Cir. 1983).
C. ALJ Karpe's Findings
ALJ Karpe denied Mollo's disability claim. Aside from the December 1995
report from Dr. Moreta and a February 1995 MRI report, ALJ Karpe
concluded that there was very little "new" evidence, both medical and
testimonial, since the previous proceedings.
Following the five step procedure, the ALJ first determined
that Mollo had "not
engaged in substantial gainful activity" during December 22, 1992
through April 15, 1996. At steps two and three, the ALJ concluded that,
although the plaintiff was "severely impaired" during the germane period,
her impairment did not meet or equal the specifications of severity of
any impairment in Appendix 1 of the regulations. Because the impairment
was not listed, the ALJ proceeded to the fourth step and concluded that,
based on Mollo's age, education, and work experience, she retained the
functional capacity to perform sedentary work and, therefore, could
return to her past relevant work as a bookkeeper. Accordingly, the ALJ
found that Mollo was not disabled during the relevant time period under
Mollo challenges the ALJ's conclusion that she could perform her
previous work during the relevant period. First, the plaintiff argues
that the ALJ failed to appropriately weigh the various medical source
statements in the record. Second, the plaintiff argues that the ALJ
improperly failed to consider her subjective complaints of pain.
1. The ALJ's Decision was Supported by Substantial Weight
The ALJ is required to accord special evidentiary weight to the opinion
of the treating physician, as long as the treating physician's opinion is
supported by medically acceptable techniques, results from frequent
examinations, and the administrative record. See Clark v.
Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir. 1998).
However, if the opinion is not "well supported" by objective
evidence, the obligation to give controlling
weight to a treating physician's opinion is inapplicable.
Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). When
controlling weight is not given to a treating physician's medical
opinion, the ALJ must consider (1) the length of the treatment
relationship and frequency of the examination; (2) the nature and extent
of the treatment relationship; (3) the extent to which the opinion is
supported by medical and laboratory findings; (4) the physician's
consistency with the record as a whole; and (5) whether the physician is
a specialist. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Furthermore,
the ALJ must provide "good reasons" for not crediting the opinion of a
plaintiff's treating physician. Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505
(2d Cir. 1998)).
As a preliminary matter, the Court notes that conclusion by Dr. Lehman,
the treating physician, that the plaintiff was totally disabled and could
not perform any type of work was not determinative, as the ultimate issue
of disability is reserved for the ALJ. See
20 C.F.R. § 404.1527(e), 416.27(e); Snell, 177 F.3d at 133 ("[S]ome kinds
of findings including the ultimate finding of whether a claimant
is disabled and cannot work are `reserved to the Commisioner'")
(citing 20 C.F.R. § 404.1527(e)(1)); see also Murphy
v. Barnhart, No. 00 Civ. 9621, 2003 U.S. Dist. LEXIS 6988, at *7
(S.D.N.Y. Jan. 21, 2003) ("The ALJ is not required to give controlling
wight to a treating physician's opinions as to the ultimate issue of
whether the claimant meets the statutory definition of disability.").
"That means that the Social Security Administration considers the data
that physicians provide but draws its own
conclusions as to whether those data indicate disability."
Snell, 177 F.3d at 133. The ALJ is solely responsible for the
final determination of a plaintiff's residual functional capacity.
See 20 C.F.R. § 404.1546.
The Court finds that the ALJ properly evaluated the opinions of the
plaintiff's treating physician, Dr. Lehman, and gave "good reasons" for
not affording his assessment controlling weight. In particular, the ALJ
noted that Dr. Lehman's opinion regarding the plaintiff's limitations was
rendered after only three examinations and, therefore, were not premised
on a longitudinal treatment history. See
20 C.F.R. § 404.1527(d)(2)(i)-(iii). Notwithstanding this, the ALJ correctly noted
that Dr. Lehman's opinion was not supported by the record as a whole, as
the opinion was not accompanied by clinical and laboratory findings.
Indeed, diagnostic testing revealed the presence of a mild back
impairment, with no evidence of disc herniation or nerve root
Moreover, the clinical findings, including those of Dr. Lehman,
revealed no neurological abnormality, such as motor, sensory or reflex
deficit. In addition, Dr. Lehman's opinion regarding Mollo's limitations
is inconsistent with the opinions of state agency consultant Dr. Kaye and
Dr. Goodman who acted as a consultant to the ALJ. The ALJ considered the
nature of the treating relationship, the lack of any evidence in support
of Dr. Lehman's opinion, and the fact that his opinion was not supported
by any other medical records. Furthermore, the Court observes that the
ALJ did not completely disregard or
ignore Dr. Lehman's assessments, but found that he could not
conclude that Mollo was disabled based on Dr. Lehman's assessments. As
such, the ALJ was correct in not assigning controlling weight to his
In addition, to the extent that Mollo argues that the ALJ improperly
decided to give no weight to Dr. Partisky's findings, the Court notes
that "a chiropractor's opinion is not a medical opinion." Diaz v.
Shalala, 59 F.3d 307, 313 (2d Cir. 1995). As such, the Second
Circuit has made clear that the ALJ is not required to give controlling
weight to a chiropractor's opinion. Id. at 314. Here, Partisky
opined in a physical capacities evaluation that Mollo could sit less than
three hours, stand/walk less than two hours and lift/carry ten pounds.
However, the fact that Partisky noted these limitations does not preclude
a finding that Mollo was capable of sedentary work. Based on the medical
evidence as set forth below, the ALJ found that these opinions were not
supported by the objective medical evidence. Thus, the Court finds that
there is substantial evidence supporting the ALJ's decision that Dr.
Partisky's reports are contradicted by the balance of the objective
medical evidence and therefore deserve no weight.
The medical evidence as a whole supports ALJ Karpe's conclusion that
Mollo was capable of performing relevant, sedentary work as a bookkeeper.
The term "sedentary work" is defined as "involving only occasional
standing or walking, the lifting of no more than ten pounds at a time,
and the occasional lifting and carrying of light objects." Schaal
Apfel, 134 F.3d 496, 501 n.6 (1998). "Sedentary work also
generally involves up to two hours of standing or walking and six hours
of sitting in an eight hour workday." Perez v. Chater,
77 F.3d 41, 46 (2d Cir. 1996).
Dr. Lehman's reports from his three examinations in September and
November 1994 and February 1995 reveal that Mollo had muscle spasm,
tenderness and decreased range of movement of the lumbar spine. However,
the examinations also revealed that the plaintiff had good range of right
shoulder movement and that her deep tendon reflexes were present. He did
not observe atrophy or loss of motor strength or sensation. These
particular findings were consistent with the findings of her consulting
neurologist Dr. Moreta who examined the plaintiff twice. Dr. Moreta found
that the plaintiff had a grade 5/5 motor strength, normal symmetrical 1
deep tendon reflexes, and a steady gait. Dr. Moreta ruled out lumbosacral
radiculopathy and herniated disc. Significantly, Dr. Moreta did not note
any functional restrictions preclusive of work activity. Dr. Moreta's
examination in December 1995 revealed an improvement of Mollo's condition
and that motor strength and sensation remained unchanged.
Moreover, none of the objective medical evidence support Mollo's claim
that her lumbar condition was incapacitating to the extent that she could
not perform sedentary work. The MRIs from February 1993 and January and
February 1995, and an EMG from January 1995 revealed a small dessicated
bulging disc at L5-S1 level and suggested S1
radiculopathy. However, these studies did not reveal any disc
herniations or compression of the nerve roots or thecal sac. Further, as
previously noted, neurological examinations were normal.
In addition, based on the objective medical evidence and the
plaintiff's testimony, Dr. Goodman testified in March 1996 that the
diagnostic studies were normal. According to Dr. Goodman, MRI studies
showed only a bulging disc, which he opined was a normal finding, and the
EMG only suggested radiculopathy. Dr. Goodman pointed out that Mollo's
reflexes and sensory perception were found to be normal by different
medical sources a factor consistent with the essentially normal
diagnostic studies. Based on the negative medical evidence and despite
the plaintiff's subjective complaints, Dr. Goodman was unable to
substantiate any evidence of organic disease. Also, according to Dr.
Kaye, the January 1995 MRI and Dr. Moreta's November 1994 findings
revealed that the plaintiff had the ability to lift and/or carry up to
twenty pounds occasionally and ten pounds frequently, as well as sit and
stand and/or walk for a total of about six hours each in an eight
hour workday. This assessment exceeds the requirements for the full range
of sedentary work.
Furthermore, Dr. Zanger noted that Mollo was cooperative, followed
instructions well, expressed her ideas adequately, acted appropriately,
could concentrate, had good eye contact, appeared to have adequate
judgment, had control of her drives, possessed adequate receptive and
expressive language, and had no unusual behavior. Dr. Zanger
further noted that the plaintiff appeared restless during testing
but did not observe the plaintiff to be in pain. Dr. Zanger indicated
that the plaintiff reported that she spent her days at home walking,
reading, and watching television and that she went out once or twice a
week to eat or visit friends. Indeed, psychological testing revealed that
Mollo apparently coped with her pain better than other test samples and
possessed the same control as others tested. These opinions provided a
sufficient basis for the ALJ to determine that the plaintiff's physical
impairments were not disabling. Accordingly, the Court finds that the ALJ
correctly applied the proper legal standard in denying the plaintiff's
2. The ALJ Properly Assessed the Plaintiff's Credibility
While "the subjective element of pain is an important factor to be
considered in determining disability," Mimms v. Heckler,
750 F.2d 180, 185 (2d Cir. 1984), "the 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,
615 F.2d 23, 27 (2d Cir. 1979). "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, 728 F.2d 588, 591 (2d Cir.
1984). An individual's statements of pain alone cannot establish
disability. Instead, there must be objective medical findings that show
that the claimant has a medically determinable impairment. See
42 U.S.C. § 423(d)(5)(A).
The plaintiff testified that she had trouble sitting or standing for
any length of time. The ALJ considered Mollo's subjective complaints of
pain but declined to give weight to her testimony because it was not
substantiated by the medical evidence. In this regard, the ALJ noted that
the diagnostic testing did not corroborate the plaintiff's acount of the
disabling nature of her back pain. Rather, the tests revealed, at most,
the presence of a mild impairment. The plaintiff's abnormalities appeared
to be typical findings for someone her age.
In addition, although the ALJ noted that the plaintiff's activities
appeared to be limited during the relevant time, he pointed to the
"conservative" nature of Mollo's treatment, i.e., some
chiropractic treatment and primarily over the counter
medication. The plaintiff's testimony regarding her physical limitations
is also inconsistent with Dr. Zanger's medical evidence which indicated
that the plaintiff reported that she spent her days at home walking,
reading, and watching television and went out once or twice a week to eat
and sometimes visit friends. Thus, the ALJ's decision to discount the
plaintiff's subjective complaints of pain is supported by substantial
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's motion for judgment on the
pleadings dismissing the appeal is GRANTED; and it is further
ORDERED, that Mollo's motion for judgment on the pleadings is
DENIED; and it is further
ORDERED, that the Clerk of the Court is directed to close
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