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United States District Court, S.D. New York

March 29, 2004.


The opinion of the court was delivered by: SIDNEY STEIN, District Judge


Rosa Pareja brings this action pursuant to section 205(g) of the Social Security Administration Act ("the Act"), 42 U.S.C. § 405(g), to challenge the final determination of defendant Jo Anne Barnhart, Commissioner of Social Security, denying Pareja Social Security Disability Insurance ("SSDI") benefits. Plaintiff has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). In response, the Commissioner has cross-moved for judgment on the pleadings to affirm the decision of the Commissioner also pursuant to Fed.R.Civ.P. 12(c). Because there is substantial evidence to support the Commissioner's determination, defendant's cross-motion is granted and plaintiff's motion is denied.


 A. Administrative Proceedings

  On February 24, 1998, Pareja filed an application with the Social Security Administration ("SSA") for SSDI payments. (R. 72-75). The application was denied initially on January 14, 1999 (R. 60-61) and again upon reconsideration on July 12, 1999. Page 2 (R. 62). At Pareja's request, Administrative Law Judge Ruben Rivera, Jr. (the "ALJ") reviewed that determination de novo at a hearing on January 4, 2000, and he subsequently found that Pareja was not disabled and thus not entitled to the benefits she sought. (R 19-26). On October 25, 2002, the Appeals Council denied Pareja's request for review of the ALJ's decision, which thereby became the final decision of the Commissioner. (R 7-9). She brings this action to challenge that determination.

 B. Factual Background

  The following facts are from Pareja's testimony. Pareja was fifty-six years old at the time of the ALJ's hearing. She was born in Peru, where she attended high school. Upon arrival in the United States, she was employed for twenty-eight years as a cleaner in a commercial building. Her job responsibilities included vacuuming, emptying trash, dusting, washing the windows, and cleaning. (R. 40, 43, 90). These jobs required her to be on her feet all day and involved constant bending, and frequent weight lifting of up to twenty-five pounds. She last worked in February 1998. Pareja claims that she left her job because of her physical impairments, which have disabled her, and that she is therefore entitled to SSDI (benefits. (R. 41).

  1. Pareja's Testimony

  At the January 4, 2000 hearing, Pareja testified before the ALJ about her arthritis and its symptoms. She described problems "most of the time [with] her hands," and also "most of the time with [her] shoulders, [her] arms, [her] upper arms, [her] neck sometimes, and [her] knees," and visible inflammation causing areas to "get red and big" so that she "[could] not move." (R. 44). She described shoulder pains that prevented her Page 3 from raising her arm, combing her hair, or even dressing. She said she could not lift her "hands over her head," could not walk, and could not drive. (R. 45).

  Pareja also testified that she could spend a "whole week without pain, but some weeks [pains] come[s] week after another, day after another." (R. 46). When she had a good day, increased activity would then cause her to have more problems. On a bad day, she "just lies down on the couch." (R. 48).

  With respect to her residual functional capacity ("RFC"), Pareja claims that on a good day, she could sit for about an hour without feeling discomfort, stand for an hour or two, and pour a gallon of milk with both hands. She could also dust or vacuum her apartment and do light cooking, although her husband assisted by cutting the food. (R. 53). On a bad day, she could not sit, stand, lift anything, or grasp anything with her fingers. (Id.) She could always shower without aid. (R. 53).

  At the time of the hearing, Pareja used Prednisone, Methorex, Celebrex, and codeine to treat her arthritic symptoms. She used Methorex every week, and it "upset her stomach" about two or three weeks in a month. (R. 49). The codeine, which she only used "when [she was] very bad," caused her to feel sleepy. At some time before the hearing, she also had two injection shots of Bupivacaine and Triamcinolone into the caudal canal.

  2. Medical Evidence

  The medical evidence presented to the ALJ supports the conclusion that Pareja suffered from rheumatoid arthritis. Pareja was treated by three physicians and one physical therapist from 1998 until 2000. Two state consultative physicians also reviewed Page 4 her health prior to the hearing before the ALJ. The ALJ considered and evaluated testimony submitted by all of these medical authorities.

  a. Treating Physicians' Reports

  Dr. Mark Horowitz treated Pareja for rheumatoid arthritis on March 31, 1998 and July 27, 1998 and submitted reports of those two visits. Dr. Horowitz's report dated March 31, 1998 indicates that "[Pareja's] condition is severe and she requires permanent disability." (R. 107). He specified that "[b]ecause of the extent and aggressiveness of her disease, namely involvement of both hands, shoulders, and feet, she is unable to return to the work force on a permanent basis" and that she "failed therapy with both Methotrexate and Plaquenil." (R. 108). In the report from the second visit, on July 27, 1998, Dr. Horowitz concluded that Pareja is "unable to do basic activities of daily" life "including dressing, grooming, and mail preparation." (R. 106).

  Dr. Vincent LaSala treated Pareja for pain management from March to July of 1998. His reports record the following treatment. On March 30, 1998, Pareja visited Dr. LaSala with pain in the low back with radiation into the left back of the thigh. Based on a neuromuscular examination, Dr. LaSala stated that Pareja had good mobility at the torso, and was able to do side bends, toe touches, and back bends without difficulty. Based on the physical exam and the distribution of pain, Dr. LaSala assessed that Pareja had Lumbar Radiculopathy. (R. 143). On April 2, 1998, Dr. LaSala performed a Caudal Block injection. (R. 145). On April 8, 1998, Dr. LaSala stated that Pareja experienced "90% relief after the Caudal injection." (R. 146). Pareja returned to Dr. LaSala on June Page 5 25, 1998 and reported an unchanged condition. She was given another Caudal Block injection. (R. 150).

  On June 19, Pareja began a course of physical therapy with Mr. Todd Wilkowski that lasted from June 19, 1998 to July 17, 1998. Mr. Wilkowski determined that "[t]his patient report[ed] a 70% relief of pain." (R. 148). On July 17, 1998, after ten physical therapy visits, Mr. Wilkowski stated that Pareja "was pain-free at discharge." (R. 152). He did note that there was a limitation in side bending and backward bending at the L-spine. There was also a "mild decrease in muscle flexibility through the piriformis." (Id.)

  Dr. Robert Turner began treating Pareja on October 2, 1998 at the Arthritis Center. At that time, Dr. Turner recorded that Pareja's prescription regimen included Tylenol each day, Prednisone 8 milligrams per day, Methotrexate four or five a week for about four years, Plaquenil twice a day, Premarin and Provers. (R. 115). His impression was that she had rheumatoid arthritis, musculoskeletal pain, kyphosis, and anemia, but he noted that "she is doing quite well on her present regimen." (Id.)

  On October 23, 1998, Pareja returned to Dr. Turner because she had "some problems on Sunday, but then she got better." (R. 113). He reported that her arthritis was doing "quite well." On her follow-up visit on December 4, 1998, Dr. Turner stated that "[h]er rheumatoid arthritis is doing quite well on the present regimen. I believe she is disabled from her problems, but is doing relatively well on her present medication." (Id.)

  On March 31, 1999, Pareja returned with complaints of pain and Dr. Turner concluded again that her "rheumatoid arthritis is doing relatively well today." (R. 110). Page 6 On May 11, 1999, he again assessed that she was doing "relatively well." (R. 109). Dr. Turner noted that she was taking Tylenol with Codeine, which was prescribed by her other doctors. On August 17, 1999, Pareja returned to Dr. Turner to discuss her blood studies and X-Rays. His analysis was that "her rheumatoid arthritis, osteoarthritis, and musculoskeletal pain continue to be problems." (R. 154).

  On August 31, 1999, Pareja returned to Dr. Turner for her final visit after she canceled a flight due to the abdominal pain caused by the Naproxen and Cytotec. Dr. Turner cautioned her to reduce her intake of Tylenol with Codeine when taking the regular Tylenol and to take a maximum of eight Tylenol-based medications a day. He assessed that "her rheumatoid arthritis, osteoarthritis, and musculoskeletal pain are doing well on her present regimen." (R 153).

  b. Consultative Physician Reports

  Prior to the ALJ hearing, Pareja was also examined by one state consultative physician for the purpose of evaluating her disability. On December 31, 1998, Dr. Serge Alexandre examined Pareja on a referral by the Office of Disability Determinations. (R 124-128). Dr. Alexandre found joint pain in her musculo-skeletal system, knees, and lower back pain and concluded Pareja had grip strength of 4/5 bilaterally. He observed that she was able to button her shirt and turn a doorknob. He also noted that "both shoulders have significantly decreased internal and external rotation with some mild pain." (R. 127). Dr. Alexandre stated "[i]n general, her right knee, right ankle, both shoulders, and right wrist are more affected. When she has a `flare,' she notes that every joint in her body can become painful." (R. 126). Pareja's supine and straight leg tests were "normal" and her gait was "unremarkable." (Id.). Page 7

  c. State Agency Physician Reports

  Finally, Dr. James Andriole performed a physical RFC Assessment of Pareja on August 9, 1999. Dr. Andriole stated that Pareja could occasionally lift fifty pounds, frequently lift twenty five pounds, stand or walk for about six hours, sit for about six hours, and had unlimited capacity to push or pull. He based this on the fact that she has a 4/5 bilateral grip, a good gait, and that while Pareja experienced "some pain with clinical symptoms of rheumatoid arthritis, she is stable." (R. 129). Dr. Andriole concluded that "[t]he severity or duration of the symptom(s) . . . is disproportionate to the expected severity or expected duration on the basis of the claimant's medically determinably impairment(s)." (R. 133).

  Pareja introduced additional evidence on May 3, 2002 from Dr. Adlersberg and Dr. Theodore Fields, who saw her after October 2000. On October 5, 2000, Dr. Jay Adlersberg reported that Pareja was pain-free, but he treated her developing rheumatoid arthritis discomfort with Remicade treatments on June 28, 2001. (R. 162). Dr. Fields' exam echoed the medical issues that have been detailed above. (R. 165-166).


 A. Standard of Review

  When this Court is deciding an appeal from a denial of disability benefits, "[i]t is not our function to determine de novo whether [Pareja] is disabled.'" Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). The Social Security Act, 42 U.S.C. § 301 et seq., states that "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Thus, this Court's review of the denial of social security benefits is limited to a determination of whether there is "substantial evidence" to support the Page 8 Commissioner's decision. Id.; accord Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). 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 v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)) accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. "The substantial evidence test applies not only to findings of basic evidentiary facts but also the inferences and conclusions drawn from such facts." Lecler v. Barnhart, No. 01 Civ. 8659, 2002 WL 31548600, at *4 (S.D.N.Y. Nov.14, 2002) (quoting Tillery v. Callahan, No. 97 Civ. 0438, 1997 WL 767561, at *2 (S.D.N.Y. Dec.11, 1997)). Additionally, a court "may not substitute its own judgment for that of the [Commissioner], even if it might have reached a different result upon a de novo review." Lecler, 2002 WL 31548600, at *4 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).

  Ultimately, "the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." Jones v. Apfel, 66 F. Supp.2d 518, 536 (S.D.N.Y. 1999). "when reviewing a denial of social security benefits, courts undertake their own plenary review of the administrative record, but it is not the function of the courts to determine de novo whether the applicant is disabled." Providence v. Barnhart, No. 02 Civ. 9208, 2003 WL 22077445, at *5 (S.D.N.Y. Sept. 5, 2003); see Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). This Court will not disturb a decision supported by substantial evidence unless "the decision was the product of legal error." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); accord Jones v. Apfel, 66 F. Supp.2d at 536. Page 9 Accordingly, a district court may itself determine disability and award benefits only if, upon review of the administrative record, "application of the correct legal standard could lead to only one conclusion." Schaal v. Apfel, 143 F.3d 496, 504 (2d Cir. 1998); see Maldonado v. Apfel, No. 98 Civ. 9037, 2000 WL 23208, at *2 (S.D.N.Y. Jan. 13, 2000).

 B. The Definition of Disability Pursuant to the Act

  An individual is "disabled" for the purposes of SSDI benefit claims when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or medical 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), 1382c(3)(A); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques," 42 U.S.C. § 423(d)(3), and it must be "of such severity that [the claimant] is 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." Id. § 423(d)(3); accord Shaw, 221 F.3d at 131; Rosa, 168 F.3d at 77.

  1. The SSA's Five-Step Evaluation Process for Disability

  The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. Bowen v. Yuckert, 482 U.S. 137, 140, (1987); 20 C.F.R. § 404.1520, 416.920. The U.S. Court of Appeals for the Second Circuit articulated this sequence as follows: First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Second, if not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or Page 10 physical ability to do basic work activities. Lastly, if the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience. However, if the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work that the claimant could perform. Shaw, 221 F.3d at 132 (citing DeChirico. v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)).

  Once the claimant has satisfied the burden of proof on the first four steps, the burden shifts to the Commissioner on the fifth step — to show that there is alternative substantial gainful employment in the national economy that the claimant can perform. Id. In determining whether the claimant is disabled, the Commissioner "must consider four factors: (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Jones v. Barnhart, No. 02 Civ. 0791, 2003 WL 941722, at *8 (S.D.N.Y. Mar. 7, 2003) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999)).

  2. Residual Functional Capacity

  For the purposes of step four, RFC assesses what a claimant is capable of doing despite functional limitations and environmental restrictions caused by one or more Page 11 impairments. 20 C.F.R. § 416.945(a). Determination of the claimant's RFC depends on a consideration of all relevant evidence, including physical abilities; symptoms such as pain; descriptions, including those by the claimant, of limitations that go beyond symptoms or objectively proven impairments; and environmental restrictions imposed by impairments. 20 C.F.R. § 416.945. Specifically, the ALJ must ascertain the claimant's strength limitations, or exertional capacity — including the ability to sit, stand, walk, lift, carry, push, and pull. 20 C.F.R. § 416.945(b).

  In evaluating RFC, the "ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient." Melchior v. Apfel, 15 F. Supp.2d 215, 218 (N.D.N.Y. 1998); see Lecler v. Barnhart, 2002 WL 31548600, at *5 ("In making any determination as to a claimant's disability, the Commissioner must explain what physical functions the claimant is capable of performing."); Ferraris v. Heckler, 728 F.2d 582, 586-588 (2d Cir. 1984) ("[T]he ALJ should make specific findings of exactly what [the claimant] can do.") see also 20 C.F.R. § 416.946. The Second Circuit has found that "failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Commissioner." Lecler v. Barnhart, 2002 WL 31548600, at *6; see White v. Sec. of Health and Human Serv., 910 F.2d 64, 65 (2d Cir. 1990); see also Ferraris, 728 F.2d at 586-88.

  The SSA applies a medical-vocational grid to determine disability status when (1) the claimant's impairment and related symptoms, such as pain, only impose exertional limitations in "meeting the strength requirements of a job;" and (2) the claimant's vocational profile is listed in Appendix 2. Rule § 416.969a(b). However, if combined Page 12 exertional and non-exertional limitations exist, the Appendix 2 Rules provide only a framework for disability determination unless a rule directs a conclusion of disability. Rule § 416.969a(d). Thus, when the claimant is incapable of the full range of a certain category of work, such as sedentary work, he "must be evaluated on an individualized basis since the medical-vocational grid used by the ALJ does not apply to claimants who cannot do sedentary work." Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989). Where an individualized evaluation is warranted, "the [Commissioner's] burden can be met only by calling a vocational expert to testify as to the plaintiff's ability to perform some particular job." Id

 C. The ALJ's Determination of Plaintiff's Residual Functional Capacity

  Neither party contests the ALJ's findings relating to the first three steps of the disability sequence where he found "that the claimant has a severe impairment or combination of impairments." (R. 20, Hearing Decision of the Administrative Law Judge, March 25, 2000 ("ALJ Decision") 2). However, Pareja raises three arguments attacking the validity of the ALJ's decision at step four that Pareja "retains the residual functioning capacity to return to past work." (R. 25, ALJ Decision 7). Pareja argues that (1) the ALJ did not assess correctly or give proper weight to the conclusions of her treating physicians; (2) the ALJ's assessment of her credibility was flawed; and (3) the ALJ's final determination that she was not disabled was not supported by substantial evidence.

  1. New Evidence Submitted to the Appeals Council was Properly Rejected

  As an initial matter, it should be noted that Pareja submitted several new medical reports to the Appeals Council. (R. 159-81). Under the Commissioner's regulations, a Page 13 claimant is entitled to submit new evidence to the Appeals Council, provided that it is "`new' and `material.'" Reyes v. Barnhart, No. 01 Civ. 1724, 2002 WL 31385825, at *7 (S.D.N.Y. Oct 21, 2002). The Appeals Council is required to consider such evidence where it relates to the period on or before the date of the ALJ hearing. 20 C.F.R. § 404.970(b), 416.1470(b): see also Reyes, 2002 WL 31385825, at *7.

  These reports do not relate to the period at issue. Dr. Adlersberg wrote in his report that he began treatment on October 5, 2000, six months after the ALJ's evaluation. (R. 162). Dr. Fields evaluated Pareja on March 27, 2001, a year after the ALJ's evaluation. Therefore, neither of these doctors examined Pareja before the March 2000 ALJ decision. Further, these reports, including medical assessments from Dr. Adlersberg and Dr. Fields, were not found by the Appeals Council to change the ALJ's determination. (R. 7-9). Because these assessments did not relate to the period at issue, the Appeals Court properly found that it did not provide a basis for changing the ALJ's decision.

  2. Substantial evidence supports the Commisioner's determination

  In evaluating whether the Commissioner's findings are supported by substantial evidence, the district court must engage in a preliminary review ensuring that the "claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Sec'y of Health and Human Servic., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). Specifically, "it is the rule in [the Second Circuit] that `the ALJ, unlike a judge in a trial must . . . affirmatively develop the record' in light of "`the essentially non-adversarial nature of a benefits proceeding,'" even if the Page 14 claimant is represented by counsel. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria, 685 F.2d at 755); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).

  If the ALJ has not adequately developed the record, it is "appropriate for the district court to remand the matter to the Social Security Administration for further development of the evidence." Selmo v. Barnhart, No. 01 Civ. 7374, 2002 WL 31445020, at *7 (S.D.N.Y. Oct. 31, 2002); see also Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (authorizing remand to the Secretary where there are "gaps in the administrative record" or the application of "improper legal standards"). Here, the ALJ adequately developed the record before reaching a determination, and a review of the record indicates that Pareja had a "full hearing" within the intent of Echevarria, 685 F.2d at 755.

  The ALJ found that Pareja retained the residual functional capacity for medium work, (R. 23, ALJ Decision 5), and that finding is supported by substantial medical evidence. The Commissioner's regulations define medium work as involving lifting no more than fifty pounds at a time with frequent lifting or carrying objects weighing up to twenty five pounds and standing for approximately six hours out of an eight-hour work day. 20 C.F.R. § 404.1567(c) and 416.967(c).

  The ALJ relied in part on the testimony of Dr. LaSala, one of Pareja's treating physicians, who noted that "claimant has good mobility at the torso, able to do side bends, toe touch, and back bends without difficulty." (R. 21, ALJ Decision 3). The ALJ also relied on Dr. LaSala's statement that Pareja's "reflexes and motor functions were grossly within normal." (Id.) Further, the ALJ relied on the opinion of Mr. Wilkowski, Page 15 Pareja's physical therapist, who stated that "claimant was pain-free and independent with all exercises." (R. 24, ALJ Decision 6).

  The ALJ also examined evidence from the consultative physical examination by Dr. Alexandre and the RFC Examination by the state agency physician Dr. Andriole. Dr. Alexandra's testimony suggests that Pareja's "grip strength was 4/5 bilaterally" and that her "passive range of motion of the cervical and thoracic spines was within normal range." (R. 21, ALJ Decision 3). Dr. Andriole's found that Paraja could occasionally lift up to fifty pounds, frequently lift twenty five pounds, stand or walk for about six hours, and sit for about six hours. The ALJ noted that "while claimant has rheumatoid arthritis, there is no evidence of major grip/dexterity function." (R. 24, ALJ Decision 6). The ALJ considered the opinion of Dr. Andriole that "claimant has the residual functioning capacity to perform the exertional demands of medium work." (Id.). Because the ALJ found that this opinion was "supported by the overall medical records," "the opinion [was] given great weight." (Id.).

  Thus, the ALJ adequately relied on evidence from both the treating and state consultative physicians in his decision-making process.

  3. The Treating Physician Rule and its Application

  The Commissioner has adopted regulations that ordinarily give controlling weight to the opinion of a claimant's treating physician. Thomas v. Barnhart, No. 01 Civ. 518, 2002 WL 31433606, at *4 (S.D.N.Y. Oct. 30, 2002) (citing 20 C.F.R. § 404.1527(d)(2)); see also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). To be given such deference, the opinion of the treating physician must be "well supported by medical Page 16 findings and not inconsistent with other substantial record evidence." Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); 20 C.F.R. § 416.927(d)(2).

  Pareja contends that the ALJ failed to give sufficient weight to the opinion of Dr. Horowitz, misread Dr. Turner's opinion, and wrongfully exercised discretion in determining arbitrarily which medical opinions to credit. Pareja's main disagreement with the ALJ's evaluation of her treating doctors' reports was that he did not give deference to their conclusion that Pareja was "disabled." This sort of ultimate determination lies solely within the discretion of the ALJ. 20 C.F.R. § 404.1527(e)(1), 416.927(e)(1). The regulations state:

[The ALJ is] responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, [the ALJ] reviews all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are "disabled" or "unable to work" does not mean that [the ALJ] will determine that you are disabled."
  Therefore, the ALJ's failure to accord these conclusions greater weight was not erroneous. See Jones v. Barnhart, 2003 WL 941722, at *10.

  "An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various "factors" to determine how much weight to give the opinion." Halloran v. Barnhart, Civ. No. 03 Civ. 6094, 2004 WL 423191, at * 3 (2d Cir. Mar. 9, 2004). These factors include "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating Page 17 physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant." Daniels v. Barnhart, No. 01 Civ. 4331, 2002 WL 1905957, at *7 (S.D.N.Y. Aug 16, 2002); see also 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Before the ALJ can reject an opinion of a treating physician, the ALJ must provide "good reasons" for the weight given to the treating source's opinion in his decision. Halloran, 2004 WL 423191, at * 3; Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998) (quoting 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)).

  Here, the ALJ properly set forth his "good reasons" for the credit afforded to various physicians, both treating and non-treating. See Schaal v. Apfel, 134 F.3d at 503-04; 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Moreover, those findings do not conflict with the assessments of the treating physicians. Dr. Horowitz found that Pareja suffered from rheumatoid arthritis in his March 31, 1998 report. (R. 108.) Dr. Turner noted that she improved, yet Dr. Horowitz never evaluated Pareja's functional capacity or expressed an opinion on her ability to perform work-related tasks in light of her improvement. The ALJ stated, "[t]he claimant's condition improved . . . and is inconsistent with a poor prognosis as indicated by Dr. Horowitz." (R. 24, ALJ Decision 6). Thus, he found that "Dr. Horowitz's opinion is not supported by objective medical findings and other substantial evidence of record. Therefore, the [ALJ] reject[ed] the opinion of Dr. Horowitz." (Id.). Thus, there was substantial medical evidence to support the ALJ's rejection of Dr. Horowitz's opinion.

  Dr. Turner initially evaluated Pareja on October 2, 1998, and examined her periodically after that date. The ALJ noted that Dr. Turner "reported that claimant was Page 18 doing quite well on her present regimen," and that Pareja "was doing relatively well and not [experiencing] particular problems with her medication." (R. 24, ALJ Decision 6). Thus, while Dr. Turner's notes revealed that Pareja required clinical attention, the ALJ found that she was able to control her impairments under a medical regimen and "that claimant's condition improved." (Id.).

  In essence, Pareja objects to the weight given the findings of these physicians. To the extent they contain descriptions of Pareja's impairments and reports of Pareja's own complaints of pain, the ALJ appears to have folly accepted them. The ALJ acted within his discretion and balanced these comments with the indications of Pareja's positive progress.

  4. The ALJ's Evaluation of Pareia's Credibility

  Pareja challenges the ALJ's finding that her alleged symptoms of arthritis, back pain, and pain in her shoulders, wrists, elbows, knees, and right ankle arm, and leg swelling were "not entirely credible" in light of her daily activities and the medical record. (R. 23, ALJ Decision 5).

  In reaching the conclusion that Pareja could perform medium work, the ALJ considered Pareja's testimony, her subjective complaints, and medical evidence on the record. (R. 20-23, ALJ Decision 2-5). While a claimant need not prove that she is confined to her house or bed, a claimant's subjective symptoms must be supported by medical signs or conditions that reasonably could be expected to produce the disability or alleged symptoms based on a consideration of all the evidence. See 20 C.F.R. § 404.1529.

  As set forth above, Pareja claimed that the pain from her hands and shoulders was Page 19 very intense, and waxed and waned in an intermittent fashion. (R. 46). On her good days, she was able to be physically active, but on her bad days, she could do very little. (R. 47). She testified that the pain from her ailments prevented her from combing and dressing, lifting, walking, or driving. (R. 45-46). The ALJ considered the fact that Pareja's pain has not "prevented her from continuous travel between New York and Florida." (R. 23, ALJ Decision 5). Further, Pareja "t[ook] short walks and use[d] public transportation." (Id.)

  Despite Pareja's subjective complaints, the ALJ noted that several physicians determined that Pareja could do medium work based on her medical records and on their own evaluations of her test results. "While claimant alleges problems with her hands and her ability to dress. Dr. Alexandre noted that claimant was able to button her shirt and turn the knob to open a door." (R. 23, ALJ Decision 5). As mentioned above, The ALJ noted that the physical therapist reported that Pareja was "pain free." (R. 24, ALJ Decision 6). Further, the ALJ assessed that "[w]hile it is reasonable that claimant's impairments may have caused her severe problems initially, the evidence of the record shows that she has done well on her medication regimen including having normal blood studies." (R. 23, ALJ Decision 5).

  The ALJ reasonably relied upon the medical opinions of Pareja's treating physicians and the state reviewing physicians, and the Court finds that their assessments contribute to the substantial evidence in support of the ALJ's conclusion. While Pareja's subjective testimony contradicts the medical opinions of the state reviewing physicians and her treating physicians, the ALJ rejected the supporting medical evidence based on its inconsistency with the record. Page 20

  The ALJ must resolve conflicts in the record and make determinations of credibility. See Schaal v. Apfel, 134 F.3d at 504. Although Pareja testified that she was unable to walk, drive, and lift only one gallon of milk on a bad day (R. 46, 51), she also testified that her activities include walking around her neighborhood, standing for an hour or two, sitting for an hour, and cooking. (R. 51-54). In light of the testimony and the medical evidence, the ALJ reasonably found that Pareja "has no significant non-exertional limitations which narrow the range of work she can perform" and properly determined that Pareja could perform her past relevant work as a cleaner of commercial spaces. (R. 23, ALJ Decision 5).

 III. Conclusion

  As set forth above, because there is substantial evidence to support the determination of the ALJ, the Commissioner's cross-motion for judgment on the pleadings is granted and the Commissioner's decision is affirmed. Pareja's motion for judgment on the pleadings is denied. The Clerk of Court is directed to enter judgment accordingly.



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