United States District Court, S.D. New York
May 13, 2004.
MARK DYCKOFF, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On February 3, 2003, Mark Dyckoff ("Dyckoff") filed this action
pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g),
to obtain review of the final decision of the Commissioner of Social
Security ("Commissioner") denying his application for disability
benefits. Dyckoff brings this motion under Rule 12(c), Fed.R. Civ. P.,
arguing that he is unable to perform even sedentary work and asking that
the Commissioner's decision be reversed, or that the action be remanded
for a new hearing. The Commissioner has cross-moved for judgment on the
pleadings. For the reasons that follow, the decision of the Commissioner is affirmed.
The following facts are taken from the administrative record. Mark
Dyckoff was born on December 21, 1949. Upon finishing high school, he
participated in a union apprenticeship for machinists. He is married and
lives with his wife and son. From 1974 until 1989, Dyckoff worked as a
machinist at Reader's Digest. In 1989, he opened his own deli, where he
worked until 1994, when the business closed. Dyckoff worked as a
production operator at Englehard Corporation from June 10, 1995, until
September 15, 2000. In November of 1999, while employed there, he injured
Overview of Application History
On April 11, 2001, Dyckoff submitted an application for disability
benefits to the Social Security Administration based on his shoulder
injury. He asserted that the injury has resulted in chronic shoulder,
neck and back pain. On June 15, 2001, the application was denied. Dyckoff
requested a hearing, and on May 2, 2002, appeared and testified before
Administrative Law Judge James B. Reap ("ALJ"). On June 26, 2002, the ALJ
determined that Dyckoff was able to perform light work. The decision of
the ALJ became the final decision of the Commissioner when the Appeals
Council denied Dyckoff's request for review on November 8, 2002.
Throughout this time and at the time he filed the instant action Dyckoff
proceeded pro se. On August 22, 2003, Dyckoff retained counsel. Medical History
Dyckoff's relevant medical history begins on November 16, 1999. While
carrying buckets up a ladder at work, Dyckoff injured his right shoulder.
This injury caused him aggravation for several months. On April 19 and
May 12, 2000, he was evaluated by a physician at Englehard Corporation.
The company physician felt that Dyckoff could return to full duty with
the exception of heavy lifting.
1. Treating Physicians
Dr. Jeffrey Yormak ("Yormak") of the Olympic Orthopaedic Group,
P.C. began treating Dyckoff for his persistent pain on May 16, 2000. In
his post-examination report from that day, Yormak stated that Dyckoff
suffered from pain and weakness in his right shoulder. X-rays of the
shoulder indicated no bony anomalies. A cervical spine examination showed
full range of motion but with stiffness in all planes, and a negative
head compression test. Yormak's impression was that Dyckoff suffered from
a right shoulder rotator cuff strain with secondary cervical strain. He
prescribed a course of the drug Celebrex and recommended that Dyckoff
perform only light duty work not involving any heavy lifting. Yormak
recommended that Dyckoff return for a follow up examination in two weeks.
At a second consultation with Yormak on June 1, Dyckoff reported that
although he had improved, he still suffered from severe weakness and
pain. Yormak recommended that Dyckoff obtain a magnetic resonance imaging
scan ("MRI") of his shoulder and advised that he remain on light duty. The MRI, which took place on
June 19, 2000, revealed some "narrowing of the subacromial space with
supraspinatus tendinitis, but no tear, no labral injury, or biceps tendon
injury." On June 21, Yormak referred Dyckoff for physical therapy and
asked that he return for another evaluation in six weeks.
At the follow up consultation on July 19, Yormak reported that,
although there was some improvement of the pain in the right shoulder,
Dyckoff continued to have pain in his paraspinal musculature on the right
side. Yormak's impression was that Dyckoff suffered from "[c]ervical
degenerative disk disease with resolving right rotator cuff impingement."
Yormak prescribed the drug Medrol Dosepak and suggested that if symptoms
continue, an MRI of the cervical spine should be considered.
A week later, on July 27, Dyckoff returned to Yormak complaining of
pain in the neck and right shoulder region radiating around his right
scapula. Yormak referred Dyckoff for the MRI of his cervical spine to
rule out any underlying problem. This MRI revealed "severe right neural
foraminal stenosis at C5-6 and at C6-7." Yormak concluded that Dyckoff's
symptoms were not consistent with a significant rotator cuff problem. On
September 8, Yormak referred Dyckoff to Dr. Ezriel E. Kornel ("Kornel"),
a neurosurgeon, for evaluation.
On September 18, Kornel examined Dyckoff and noted "stiffness of
regular motion of the cervical spine" and "tenderness in the right
suprascapular region." Dyckoff's strength was rated at "5/5" throughout in the upper and lower
extremities. Kernel noted that muscle tone and deep tendon reflexes were
normal and that Dyckoff's sensory exam was intact. Kernel's impression
was that the symptoms were related to cervical spondylosis. He discussed
both surgical and more conservative options with Dyckoff. Kernel
recommended cervical spine films, a course of cervical epidural steroid
and facet blocks, and chiropractic management with Dr. Timothy Slominski,
D.C. ("Slominski"). Kornel also prepared a "To Whom It May Concern"
letter that day stating, "[a]t the present time [Dyckoff] is totally
disabled from work. It is undetermined when he may return." Dyckoff
started chiropractic care at Katonah Chiropractic Center with Slominski
on September 21, and underwent his first of three epidural steroid
injections on November 13.
On January 31, 2001, on the referral of Slominski, Dyckoff obtained a
pain management evaluation from Dr. Jacob Handszer ("Handszer") at Putnam
Hospital Center. Handszer's impression was that Dyckoff suffered from
cervical radiculopathy. Noting that Dyckoff benefitted from the prior
epidural steroid injection, Handszer recommended continuing that course
of treatment. He performed two additional steroid injections, one in
February and one in March of 2001.
On March 7, Yormak once again examined Dyckoff. Yormak stated that
Dyckoff's disability "should restrict him from doing any job the requires
lifting, pushing, pulling or over shoulder work with his right arm." On
March 26, Dyckoff was examined by Dr. Gregory Lieberman ("Lieberman") at Orlin & Cohen Orthopedic
Associates, LLP. After examination, Lieberman recommended in a letter to
Kornel that Dyckoff have surgery on his cervical spine. As noted above,
at this point Dyckoff applied for benefits.
On November 7, Dr. Andrew Peretz ("Peretz"), an orthopedist, examined
Dyckoff. This examination revealed good range of motion of the neck with
some mild pain. Dyckoff's upper extremities showed "5/5" strength in all
muscle groups. Peretz's impression was that Dyckoff had cervical pain,
shoulder pain and vague radicular symptoms.
On January 31, 2002, Dyckoff received a myelogram and CT scan of his
cervical spine. It revealed grade 2 anterolisthesis at C3-4;
ridges/bulges at C4-5 through C6-7; multilevel stenosis; right osteophyte
at C2-3; and cord deformity at C3-4 and C4-5. On February 26, Kornel
performed an anterior cervical corpectomy, C4, C5 and C6, with diskectomy
C3-C4 to C6-C7, on Dyckoff. Kornel noted that a CAT scan revealed that
there was excellent decompression from C3 down to C7. Following surgery,
Kornel reported that Dyckoff was transferred to the recovery room in
stable condition and was moving all of his extremities well.
On March 2, Dyckoff visited Kornel for a follow up appointment. Kornel
noted that Dyckoff was suffering from some soreness but that Dyckoff's
arms and legs were feeling better and that overall he was doing well. He
reported Dyckoff's strength at "5/5", found that the wounds were healing
and concluded that Dyckoff was recovering well. Kornel advised that
Dyckoff begin physical therapy in two to three weeks.
2. Consulting Physician
On November 16, 2000, Dr. John H. Buckner ("Buckner"), an
orthopedic surgeon, performed an independent examination of Dyckoff at
the request of Englehard Corporation's insurance company. It appears that
the purpose of this examination was to determine the causal relationship
between the injury Dyckoff suffered at work and his current problems.
Dyckoff reported at this meeting that his first epidural steroid
injection had helped considerably. After examination, Buckner opined that
Dyckoff's cervical symptoms had resolved; that Dyckoff suffered from a
mild partial disability of his right arm; and, that Dyckoff could perform
light duty work, with no repetitive, above-the-shoulder level use of the
right arm and no lifting greater than twenty-five pounds.
On June 8, 2001, a state agency medical consultant reviewed Dyckoff's
medical records and prepared a Physical Residual Functional Capacity
Assessment ("RFC"). The medical consultant opined that Dyckoff could
frequently lift or carry up to ten pounds and occasionally lift or carry
up to twenty pounds. He concluded that Dyckoff was able to stand or walk
for a total of about six hours in an eight hour work day, sit for a total
of about six hours in an eight hour work day, had limited ability to push
and pull with his upper extremities and that Dyckoff should never climb. 3. Other Evidence
On May 14, 2001, Dyckoff filed forms with the New York State Office
of Temporary Disability Assistance. In the questionnaire, Dyckoff stated
that he could lift ten to twenty pounds two or three times an hour. He
also stated that he could stand, walk or sit intermittently throughout an
entire eight hour work day.
At the hearing, Dyckoff testified that the result of the surgery seemed
to be "ok," that "there were quite a few things coming back to [him],"
and that he was feeling better. Dyckoff also stated that he had been
attending physical therapy three times per week and that he "hoped" that
he was getting better. He said that he took Advil for pain relief but
refused to take any prescription medication. Dyckoff reported that he had
"a high threshold for pain." He testified that he could lift and carry up
to 20 pounds, stand and walk all day, and sit as long as necessary in an
8 hour day.
Administrative Law Judge's Findings
The ALJ found (1) that Dyckoff was not engaged in substantial
gainful activity; (2) that Dyckoff had a severe physical impairment that
significantly limited his ability to do basic work activities; (3) that
Dyckoff did not have one of the listed impairments or its equivalent (4)
that Dyckoff did not have the ability to perform his past work at
Englehard; but (5) that based on the medical evidence, although Dyckoff
was unable to perform any overhead reaching with his right arm and was
unable to climb ladders or scaffolds, he nevertheless retained the ability over an eight hour work day to "lift ten pounds
frequently and twenty pounds occasionally, sit, stand and walk for six
hours." The ALJ found this residual functional capacity to be consistent
with standards set forth under 20 C.F.R. § 404.1567 (b) for "light
work." Light work is defined as follows:
Light work requires lifting no more than 20 pounds
at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this
category when it requires a good deal of walking
or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or
leg controls. To be considered capable of
performing a full or wide range of light work, you
must have the ability to do substantially all of
these activities. If someone can do light work, we
determine that he or she can also do sedentary
work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. § 404.1567.
Based on the testimony of a vocational expert at the hearing, the ALJ
also concluded that there were a significant number of jobs in the
national economy in the "light work" category which Dyckoff could
perform. The ALJ therefore found that Dyckoff was not under a
"disability" as defined in the Act.
Dyckoff contends that the ALJ failed to develop the record, as he was
required by law to do, that he failed to give sufficient deference to the
opinions of Dyckoff's treating physicians, that he failed to assess
properly Dyckoff's residual functional capacity, and that he failed to
make appropriate findings of Dyckoff's credibility. The Commissioner
asserts that the ALJ's opinion is supported by substantial evidence and should
In reviewing a decision of the Commissioner, a District Court may
"enter, upon the pleadings and transcript of the record a judgment
affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for rehearing."
42 U.S.C. § 405(g). The Court must uphold the Commissioner's decision
unless it is not supported by substantial evidence or is based on an
error of law. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
Substantial evidence in this context means "`more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Id. (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Thus, it is
not the function of the reviewing court to determine de novo
whether a claimant was disabled. Id.; see also Melville,
198 F.3d 45, 51 (2d Cir. 1999).
To be considered disabled under the Social Security Act, a claimant
must demonstrate "[i]nability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or 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). Further, the claimant's 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 disability
must be "demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U.S.C. § 432(d)(3). The ALJ's decision
must be guided by the appropriate legal standards. Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
The Social Security Administration uses a five-step process to make
determinations of disability. See 20 C.F.R. § 404.1520. The
Second Circuit has summarized the procedure as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial
gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe
impairment" [that] significantly limits his
physical or mental ability to do basic work
activities. If the claimant suffers such an
impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an
impairment . . . listed in Appendix 1 of the
regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
disabled without considering vocational factors
such as age, education, and work experience. . . .
Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite
the claimant's severe impairment, he has the
residual functional capacity to perform his past
work. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then
determines whether there is other work [that] the
claimant could perform.
Curry v. Apfel, 209 F.3d at 122 (citation omitted).
In determining whether the claimant can perform other work, the ALJ
determines first whether the applicant retains the functional capacity
for work-related activities. If the applicant is subject only to
exertional, or strength, limitations, the ALJ then uses the
medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, Appendix 2 to cross-reference on
a grid the applicant's residual capacity with his age, education, and
work experience. The grid then yields a determination of whether there is
work the applicant could perform in the national economy. Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999); see also Pratts v.
Chater, 94 F.3d 34, 39 (2d Cir. 1996). A claimant bears the burden
of proof as to the first four steps, while the Commissioner bears the
burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501
(2d Cir. 1998). In making his determination by this process, the ALJ 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." Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citation omitted).
1. Duty to Develop the Record
Dyckoff complains that the ALJ failed to develop the record,
principally the record concerning the vocational expert's testimony.
Because of the non-adversarial nature of the proceeding, Social Security
Administration regulations provide, and the Second Circuit has made
clear, that the ALJ has an affirmative duty to develop the administrative
record before making a determination that the claimant is not disabled.
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per
curiam); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996);
20 C.F.R. § 404.1512(d); 20 C.F.R. § 702.338. "[W]here the claimant is unrepresented by counsel, the
ALJ has a duty to probe scrupulously and conscientiously into and explore
all of the relevant facts, and to ensure that the record is adequate to
support his decision." Melville, 198 F.3d at 51. Nevertheless, the claimant
has the burden of "provid[ing] medical evidence" to show that he is
disabled. 20 C.F.R. § 404.1512(c).
Dyckoff contends that the ALJ did not adequately advise him of his
right to cross-examine the vocational expert. The ALJ explicitly invited
Dyckoff to cross-examine the vocational expert. Dyckoff pointed out his
disagreements with the expert's testimony to the ALJ. No more was
Dyckoff also argues without explanation that there may be "possible
evidentiary gaps" in the record. He does not identify any records that
should have been gathered but were not. The ALJ notes that the Social
Security Administration had requested the medical records from each
physician Dyckoff identified and had ordered examinations by consulting
physicians. The ALJ asked Dyckoff at the hearing whether the file was
complete. Dyckoff, responded, "As far as I know, yeah." The ALJ was
entitled to rely on this response and the volume of materials before him.
2. Treating Physician's Testimony
Dyckoff complains that the ALJ did not give controlling weight to
the opinion of his treating physician, Dr. Yormak. While treating
physicians' opinions are typically entitled to controlling weight,
20 C.F.R. § 416.927(d)(2), to be given such deference a treating physician's opinion must not be "inconsistent
with other substantial evidence in [the] record."
20 C.F.R. § 404.1527(d)(2); see Halloran, 362 F.3d at 32;
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
When an opinion is not given controlling weight, the ALJ must consider:
" (i) the frequency of examination and the length, nature, and extent of
the treatment relationship; (ii) the evidence in support of the opinion;
(iii) the opinion's consistency with the record as a whole; (iv) whether
the opinion is from a specialist; and (v) other relevant factors."
Schall v. Apfel 134 F.3d 496, 503 (2d Cir. 1998);
20 C.F.R. § 416.927(d). If an ALJ fails to discuss the weight accorded a
treating physician's opinion, a court must undertake a searching review
of the record to ensure that the substance of the rule was followed.
Halloran, 362 F.3d at 32. A court should "not hesitate to
remand when the Commissioner has not provided `good reasons' for the
weight given to a treating physicians opinion" and where the ALJ has not
"comprehensively set forth reasons for the weight assigned to a treating
physician's opinion." Id. at 33.
Dyckoff correctly points out that the ALJ failed to mention any
opinions rendered by Yormak. Yormak treated Dyckoff from May 16, 2000
through March 7, 2001. During this period, Yormak evaluated Dyckoff's
condition based on numerous office visits, tests, and the evaluations and
reports of specialists to whom he had referred Dyckoff. His final
diagnosis was given during a March 7, 2001 examination. He opined that
Dyckoff suffered from a "partial disability, which should restrict him from doing any job
that requires lifting, pushing, pulling or over shoulder work with his
Although the ALJ should certainly have addressed Yormak's opinions and
the weight to be accorded those opinions, remand for such an evaluation
is unnecessary. First, it is not entirely clear to what extent Yormak's
opinion actually conflicts with the ALJ's finding that Dyckoff could
perform light work.*fn1 Further, when viewed in light of Dyckoff's own
written statements to the New York State Office of Temporary Disability
Assistance one week after March 7, 2001, the omission of a description of
Yormak's views is more understandable. Dyckoff essentially admitted that
he was able to perform the work that falls within the definition of light
work. Third, the ALJ thoroughly discussed the opinions of Dyckoff's other
treating physicians, specifically, Slominski and Kornel, the latter of
whom had seen Dyckoff more recently than Yormak and was a specialist to
whom Yormak had referred Dyckoff.
The ALJ considered the opinions of these specialists in light of all
the evidence on record. The ALJ noted that he gave "some weight" to the
opinions of Buckner and the state agency medical consultant. The ALJ also indicated that he gave
"significant" weight to Dyckoff's testimony at the hearing and his
written statements to the New York State Office of Temporary and
Dyckoff does not complain that the ALJ failed to give appropriate
weight to the opinion of any of his treating physicians other than
Yormak. In light of the care with which the ALJ considered the other
medical evidence, including the more recent evidence, his failure to
discuss Yormak does not require a remand.
3. Assessment of Residual Functional Capacity
Dyckoff argues that the ALJ erred in presenting a hypothetical to
the vocational expert that did not include the limitations found by
Yormak on March 7, 2001. The hypothetical essentially asked if there were
employment opportunities for Dyckoff to do light work so long as that
work would not require Dyckoff to perform "any overhead reaching with his
dominant right arm" and that would not require Dyckoff to climb ladders
and scaffolds. Since, as described below, there was substantial evidence
to find that Dyckoff could perform light work, the ALJ did not err in
placing the hypothetical to the vocational expert.
4. The Plaintiff's Credibility
Dyckoff asserts that the ALJ erred when he found that "claimant's
allegations of pain, and functional limitations are not entirely
credible." Dyckoff contends that the ALJ should have found him credible
given his substantial work history and should not have penalized him for being a person who has a "high
threshold for pain."
In evaluating a claimant's subjective complaints of pain, an ALJ may
consider a claimant's daily activities, objective medical evidence, and
the type and dosage of medication used for pain relief, among other
things. 20 C.F.R. § 416.929 (c)(3). A subjective report of pain
without corroborating medical evidence cannot support a finding of
disability. Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999);
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529 (a).
It is not entirely clear to what the ALJ is referring when he made his
finding regarding Dyckoff's credibility. Dyckoff did testify that he was
feeling pain during the hearing and that he could not perform any job if
his sleep were interrupted. On the other hand, Dyckoff also testified
that surgery had relieved his pain, that Advil was a sufficient pain
reliever, and that he was able to perform certain tasks, including the
tasks that compose light work. Considering Dyckoff's testimony in light
of the other evidence in the record, the record does not permit a finding
that the ALJ erred in concluding that Dyckoff's report of pain at the
hearing and his expressed concern about his ability to sleep were not
entirely credible, at least to the extent that they were offered in order
to prevent a finding that he could perform light work.
5. Listings of Impairments
Dyckoff complains in passing that the ALJ failed to mention the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1,
and failed "to specify a listing within [Section] 1.00." He asserts that
new musculoskeletal listing became effective on February 19, 2002, and
should have been used at the May 2 hearing. Dyckoff does not identify any
portion of the musculoskeletal listing that describes his condition.
The musculoskeletal listing addresses disabilities that result in an
"inability to ambulate effectively . . . or the inability to perform fine
and gross movements effectively on a sustained basis." 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 1.00. If Dyckoff's condition is in a listing, then
he is considered disabled within in the meaning of the Social Security
Act and entitled to benefits. Shaw, 221 F.3d at 132. The
listing does not include Dyckoff's conditions. He has not shown that the
ALJ erred in concluding that Dyckoff's condition did not "meet or equal
the criteria under the Listing of Requirements."
6. Finding of Substantial Evidence
The Government moves for an affirmance of the Commissioner's decision.
There is substantial evidence in the record that Dyckoff can perform
light work so long as it does not involve over the shoulder use of his
right arm, and that employment opportunities that are so restricted exist
for him. His surgery appears to have been successful and his own
statements to the New York State Office of Temporary Disability
Assistance and to the ALJ substantially confirm the medical evidence that
his cervical and right shoulder problems do not prevent him from engaging in
For the reasons stated, Dyckoff's motions to reverse and for a remand
are denied. The Government's motion for affirmance is granted.