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United States District Court, S.D. New York

May 13, 2004.

MARK DYCKOFF, Plaintiff,

The opinion of the court was delivered by: DENISE COTE, District Judge


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 his shoulder.

 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 be affirmed.

  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 required.

  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 right arm."

  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 Disability Assistance.

  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 musculoskeletal 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 light work.


  For the reasons stated, Dyckoff's motions to reverse and for a remand are denied. The Government's motion for affirmance is granted.


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