United States District Court, S.D. New York
May 20, 2004.
THOMAS B. KIGGINS, Petitioner
JO ANNE B. BARNHART, Commissioner of Social Security, Respondent
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
On November 25, 2003, Magistrate Judge Theodore Katz issued a Report
and Recommendation ("Report") recommending that the Defendant's motion
for judgment on the pleading be granted and that the Complaint be
In reviewing the Report, the Court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). The Court is required
to make a de novo determination as to the aspects of the Report
to which objections are made. United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). However, when a party makes only
conclusory or general objections, or simply reiterates his original
arguments, the Court reviews the Report only for clear error. See
United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction
Corp., 00 CV 7552 (HB) 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y.
Dec. 26, 2002); Camardo v. General Motors Hourly-Rate Employees
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Chabrier
v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at *1 (S.D.N.Y.
Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691
(JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994). Objections to a
Report and Recommendation "are to be specific and are to address only
those portions of the proposed findings to which the party objects."
Camardo, 806 F. Supp. at 381-382.
The Court has in this connection considered carefully all of the
parties' submissions in this case. Since the Petitioner's arguments focus
largely on errors in the judgment of the Administrative Law Judge (ALJ),
which was the issue before the Magistrate Judge, Petitioner's objections
as to the decisions of the ALJ essentially reiterate the arguments in his
earlier submissions. Petitioner does assert that "the Magistrate Judge
erred in relying on the testimony of Mr. Meola, when the ALJ did not." However, Petitioner
makes only this one conclusory accusation and the discussion surrounding
Mr. Meola merely rehashes the argument that was before the Magistrate
Judge. Therefore the Court reviews the entire Report and Recommendation
for clear error. See Schoolfield v. Dep't of Corr., No. 91
Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994)
(objections stating the magistrate judge's decisions are wrong and
unjust, and restating relief sought and facts upon which complaint
grounded, are conclusory and do not form specific basis for not adopting
report and recommendation)
The Court has reviewed thoroughly the remainder of Judge Katz's
well-reasoned Report and finds no clear error on the face of the record.
The Court adopts the Report for the reasons stated therein. Accordingly,
the motion for judgment on the pleadings is granted, the decision of the
Commissioner is affirmed as supported by substantial evidence and free
from legal error, and the Complaint is dismissed.
Magistrate Judge Katz's Report follows.
SO ORDERED. FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
TO: HON. LAURA T. SWAIN, UNITED STATES DISTRICT JUDGE.
This social security action was referred to the Court for a Report and
Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (C)
and Rule 72.1(a) of the Local Civil Rules of the Southern District of
New York. Plaintiff has moved, and Defendant has cross-moved, for
judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons that follow, I respectfully recommend
that Defendant's motion on the pleadings be granted, and that this action
Plaintiff filed an application for Social Security Disability Insurance
Benefits ("DIB") under 42 U.S.C. § 423, on July 13, 1992, claiming
that he had been disabled since September 13, 1991, as a result of
injuries to his shoulder and both knees. See Kiggins v.
Shalala, No. 94 Civ. 319 (AGS), 1995 WL 450478, at * 1 (S.D.N.Y.
July 31, 1995). Plaintiff's application and subsequent request for
reconsideration were denied. (See R. 106-108, 119-121.)*fn1
Plaintiff then requested and received a hearing before an Administrative
Law Judge ("ALJ"). See Kiggins, 1995 WL 450478, at *1. The ALJ
found that (1) Plaintiff met the requirements for disability insured
status, (2) he had not engaged in substantial gainful activity during the
relevant period, (3) he produced sufficient medical evidence to establish
severe internal derangement of both knees and a rotator cuff injury, and
(4) these injuries precluded him from performing his past relevant work
as a police officer. (See R. 217-18.) However, the ALJ also
found that Plaintiff's "allegations of pain and functional loss are not
credible to the extent stated" and that he had the residual functional
capacity for the full range of sedentary work. (R. 218.) Consequently,
the ALJ held that Plaintiff was not under a "disability" as defined by the Social Security Act and therefore not entitled to DIB.
(See id.) On November 22, 1993, the Appeals Counsel denied
Plaintiff's request for review, thus rendering the ALJ's denial of DIB
the final decision of the Commissioner of Social Security
("Commissioner"). Plaintiff challenged the Commissioner's final
determination by bringing an action in this Court under
42 U.S.C. § 405(g) and 1383(c)(3). See Kiggins, 1995 WL 450478. On July 31,
1995, the Court (Schwartz, J.) remanded the case to the Commissioner
because it was "not possible to determine from the record . . .
whether the ALJ (1) did not evaluate the treating physician's opinion
. . . at all, (2) evaluated the treating physician's opinion, but did
not assign it appropriate weight in accordance with established criteria,
or (3) evaluated the treating physician's opinion, assigned it
appropriate (perhaps negligible) weight, but simply did not articulate
his rationale for disregarding it." Id. at *5.
On remand, Plaintiff amended his application to limit it to a closed
period beginning September 13, 1991, and ending May 21, 1995.
(See Plaintiffs Amended Complaint ("Am. Compl.") ¶ 13.) On
May 31, 1996, there was a hearing on Plaintiffs amended application,
which the ALJ denied in a decision issued on June 19, 1997.
(See R. 342-48.) However, on May 28, 1998, the Appeals Council
remanded the ALJ's decision because the tape of the May 31, 1996 hearing
could not be located, making the administrative record incomplete.
(See R. 380.) In order to reconstruct the record, an ALJ
presided over a second hearing on July 7, 1999. (See R. 50-96.)
On December 28, 1999, the ALJ issued a decision finding that (1)
Plaintiff met the special insured status requirements of the Social
Security Act for the closed period at issue, (2) Plaintiff did not engage
in substantial gainful activity during the closed period, (3) Plaintiff's
disabilities did not meet or equal the severity of any impairments listed
in Appendix 1, Subpart P to Regulation No. 4, (4) Plaintiffs allegations
of significant functional limitations which precluded his ability to
engage in work activity were not supported by the medical and other
evidence, (5) although Plaintiff did not have the capability to perform his past relevant work as a police
officer, he had the residual functional capacity to engage in the full
range of sedentary work, and therefore (6) Plaintiff was not under a
"disability" as defined by 20 C.F.R. § 404.1520(g)(1).*fn2
(See R. 32-41.) On November 19, 2001, the Appeals Council
denied Plaintiff's request for review, making the ALJ's decision the
final determination of the Commissioner. (See R. 2-3.)
Plaintiff then filed this action challenging the Commissioner's
Plaintiff was born on July 19, 1952. (See R. 98) He was
employed as a police officer from 1974 through 1991. (See R.
133, 237.) In 1984, Plaintiff injured his left knee at work and had
arthroscopic surgery. (See R. 5.) In 1988, Plaintiff injured
his right knee and subsequently had arthroscopic surgery performed on
that knee. (See id.) During the procedure on his right knee,
Plaintiff's lung went into spasm and the doctors had "great difficulty
extubating him." (R. 147.) On July 2, 1991, Plaintiff was chasing a
suspect, and in an attempt to vault a fence he fell, injuring both knees
and his right shoulder. (See R. 5, 268.) Plaintiff returned to
work, but on the advice of his treating physician, Dr. Dutkowsky, was
restricted to light duty. (See R. 162.) He continued on a light
desk duty schedule until September 12, 1991 when, again on the advice of
Dr. Dutkowsky, he stopped working entirely. (See R. 160.) September 12, 1991 marks the beginning of the closed period in
Plaintiff's application for DIB. At that time, Plaintiff had a high
school degree and had completed five semesters of college. (See
R. 66.) During the closed period, Plaintiff recommenced college and
secured a Bachelor of Science Degree from St. Thomas Aquinas College.
(See id.) Plaintiff testified that he attended classes four
days a week for three to six hours each day. (See R. 68.) Each
class period was about forty-five minutes in length and, according to
Plaintiff, he was able to alternate between sitting and standing, as
required. (See R. 71.) Plaintiff also earned a Master's Degree
in social work from Hunter College during the closed period. He attended
classes at Hunter two days a week for about four hours each day.
(See id.) Again, according to Plaintiff, his professors
permitted him to move around and change positions as needed. He commuted
from Nanuet, New York to Hunter College, located in New York City, by a
combination of car, railroad and subway. (See R. 67.)
In May 1995, immediately after completing his graduate degree,
Plaintiff began working as an alcohol rehabilitation counselor.
(See R. 59-60.) The commencement of this job marks the end of
the closed period in Plaintiffs application for DIB. Plaintiff testified
that this was a desk job where he had the "freedom to get out of [his]
chair and stand, sit or lean [or] walk." (R. 59-60.) He estimated that he
spent about one-third of his time at work sitting, one-third standing and
one-third walking. (See R. 59.) Subsequently, Plaintiff began a
job as an employee counselor for the Metropolitan Transit Authority.
(See R. 59-60.) Plaintiff testified that this was a desk job
with demands similar to his previous counseling job, where he had the
freedom to alternate between sitting, standing and walking.
(See R. 58-60.) However, Plaintiff testified that at the second
job he spent between fifty to sixty percent of his time seated, and the
remaining time standing or walking. (See id.) Plaintiff was examined by five doctors during the closed period. Aside
from Dr. Dutkowsky, Plaintiff's treating physician, and his colleague,
Dr. Stephen Brenner, all the doctors examined Plaintiff in a consultative
capacity. In addition, two non-examining state agency medical consultants
assessed Plaintiff's ability to perform work-related physical activities
based solely on a review of his medical records. There is a clear
consensus among all of the doctors that Plaintiff's injuries were severe
enough to prevent him from returning to work as a police officer.
However, there is disagreement between Plaintiffs treating physician and
the consulting physicians as to the cumulative effect of Plaintiff's
impairments on his residual work capacity.
According to his notes, Dr. Dutkowsky, who is a physiatrist, examined
Plaintiff on at least sixteen occasions between July 2, 1991, when he
sustained the injury to his shoulder and compounded the injuries to his
knees, and July 20, 1992. (See R. 150-57.) Plaintiff was under
Dr. Dutkowsky's care before and after this period, but on a less frequent
basis. After evaluating MRIs of Plaintiff's injuries, Dr. Dutkowsky
diagnosed him with internal derangement in both knees; a torn lateral
meniscus in the left knee; a torn medial meniscus in the right knee, with
a questionable infrapatellar chondral defect; internal derangement and a
rotator cuff tear in the right shoulder; severe degenerative
acromioclavicular arthritis; and a degenerative cyst of the humeral head
of the right arm. (See R. 150.) In July, 1991, Dr. Dutkowsky
recommended that Plaintiff try to return to work as a police officer on a
light desk duty basis. (See R. 162.) However, by August 5,
1991, Dr. Dutkowsky noted that he did not know "how much longer
[Plaintiff] would be able to persist on a light duty schedule
experiencing such pain and difficulty" (R. 163), and on September
12, 1991, he advised Plaintiff to discontinue work "due to the severity
of this disability." (R. 151.) Plaintiff testified that this light duty
schedule consisted mainly of answering the telephone and taking messages.
(See R. 251.) However, the phone was positioned on the wall in
such a way that Plaintiff had to stand up and reach with his right shoulder in order to
answer it. (See id.) Consequently, the repetitive "up and down,
up and down," combined with having to reach with his right arm caused
constant pain. (Id.)
By early June 1992, Dr. Dutkowsky opined that Plaintiff's condition was
continuing to get worse, leading him to conclude that Plaintiff was not
only unable to perform the duties of a police officer, but also "unable
to perform even [a] light sedentary clerical position." (R. 155.) Dr.
Dutkowsky referred Plaintiff to Dr. Brenner for a surgical evaluation.
After examining Plaintiff and the MRIs of his knees and shoulder, Dr.
Brenner concurred with Dr. Dutkowskys diagnosis and recommended surgery
for Plaintiff's shoulder and both knees in order to "prevent later
degenerative changes and disability." (R. 167.) However, because
Plaintiff was reluctant to undergo further surgery due to the
laryngospasm he suffered during the previous surgery on his knee, Dr.
Brenner recommended intensive physical therapy in the alternative.
(See R. 198.)
Dr. Dutkowsky submitted a "work capacity evaluation" for Plaintiff on
May 29, 1993. (See R. 188-93.) In Dr. Dutkowsky's opinion,
Plaintiff's physical impairments left him with the ability to sit, stand
or walk for only ten minutes at a time and for no more than a total of
one hour each, during an eight-hour work day. (See R. 190.)
Therefore, according to Dr. Dutkowsky, Plaintiff could not get through an
eight-hour workday with normal breaks, on a regular basis, without having
to lie down. (See id.) Additionally, Dr. Dutkowsky reported
that Plaintiff must be permitted to walk around every ten to fifteen
minutes for varying periods, depending on his pain. (See id.)
Dr. Dutkowsky noted that Plaintiff had the ability to lift up to ten
pounds, one-third of the time, and he was restricted from reaching,
pushing or pulling with both arms, but retained the ability to grasp,
twist, turn or finely manipulate objects with both hands. (See
Dr. Jerome L. Meisel examined Plaintiff several times in
connection with Plaintiffs claim for worker's compensation. (See R. 147-149.) After a
consultative exam in November, 1991, Dr. Meisel noted that Plaintiff had
signs of chronic rotator cuff tendonitis, acromio-clavicular arthritis,
symptoms of internal derangement, including swelling in both knees, and a
"rather marked limitation of movement and use" of the right shoulder. (R.
148.) He agreed with Dr. Dutkowsky that surgery was indicated, and he
also acknowledged Plaintiff's fear of surgery. (Id.) Following
another consultative examination on June 24, 1992, Dr. Meisel found signs
of anterior cruciate instability in both knees, a re-tear of the medial
cartilage in the right knee, and an impingement and rotator cuff
tendonitis in the right shoulder. (See R. 169-71.) These
findings led Dr. Meisel to conclude that Plaintiff's impairments not only
left him "permanently [and] totally disabled as far as working as a
policeman is concerned," (R. 171.), but also prevented him from doing
"desk type of work which requires him getting up and down, walking
stairs, and using his right upper extremity on the phone and writing."
(R. 149.) Dr. Meisel noted that "even with the therapy with Dr.
Dutkowsky, [Plaintiff] is going gradually downhill and is losing tone and
it is because of this that he is unable to work." (R. 171.)
Dr. Amy Weiss-Citrome examined Plaintiff in a consultative capacity and
issued a letter on August 14, 1992, reporting her findings.
(See R. 172-73.) She noted that although it was associated with
pain, Plaintiff had a full range of motion in his right shoulder.
(See R. 172.) Regarding Plaintiff's knee injuries, she found
that he had mild effusion in the right knee, trace effusion in the left
knee, and mild anterior instability in both. (See id.) The
adductor stress test and anterior drawer sign were positive on the right
knee. (See id.) She also noted that she did not observe any
atrophy in the legs. Her impression from these observations was that
Plaintiff had "bilateral knee internal derangements and probable chronic
right rotator cuff partial tear." (R. 173.) Dr. Weiss-Citrome opined that
Plaintiff could perform a job that included "sitting, minimal walking,
minimal standing, minimal lifting, moderate carrying, normal handling, hearing,
speaking and traveling." (R. 173.)
Dr. Norman Rubenstein examined Plaintiff on September 24, 1992, at the
request of the Orangetown Police Department, Plaintiff's last employer
before the beginning of the closed period. (See R. 175-77.) He
also read the reports completed by Drs. Dutkowsky, Brenner, and Meisel.
Dr. Rubenstein diagnosed Plaintiff with a rotator cuff injury and
tendonitis in the right shoulder, internal derangement and medial
meniscus injury in the left knee, lateral meniscus injury in the right
knee, and cruciate insufficiency in both knees. He concluded by stating:
I would agree with [Plaintiff's] physicians who
are caring for him, and who have also been
consulted about him, that this man is disabled
from performing the normal duties of a police
officer. I think that this disability is probably
long term, and would continue even after surgery,
if he ever consented to having it done. However, I
think his disability is not total. By that I mean
that he could do an occupation which did not
require him to be stair climbing, on his feet for
long periods of time, or heavy lifting and filing.
Two state agency medical consultants, Dr. A. Kovary and Dr. H. Frumim,
evaluated Plaintiff's ability to perform work related physical
activities. After examining the evidence of record, Dr. Kovary completed
a "Disability Determination and Transmittal" form on September 10, 1992.
(See R. 110-18.) Dr. Kovary estimated that Plaintiff had the
ability to stand or walk, with normal breaks, for a total of at least two
hours in an eight-hour workday, and with normal breaks, sit for about six
hours during an eight-hour workday. (See R. 112.) According to
Dr. Kovary, Plaintiff's impairments prohibited him from lifting, pushing
or pulling more than ten pounds on either an occasional or frequent
basis. (See id.) In addition to these exertional limitations,
Dr. Kovary recognized that Plaintiff had postural limitations that
restricted him from climbing ramps, stairs or ladders, balancing,
stooping, kneeling, crouching, or crawling on anything more than an
occasional basis. (See R. 113.) Furthermore, due to his
shoulder impairments, Plaintiff lacked the ability to reach in all directions. (See R. 114.) Finally, Dr.
Kovary recommended that Plaintiff avoid concentrated exposure to hazards
such as machinery and working at heights. (See id.) According
to Defendant, Dr. Frumin also examined all the medical evidence of
record, and although he did not complete a "Disability Determination and
Transmittal" form, on November 11, 1992, he "affirmed" Dr. Kovary's
conclusions "as written." (R. 118.)
I. Applicable Legal Principles
For purposes of SSD benefit eligibility, a person is deemed disabled
when he is unable "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). An individual's physical impairment is not disabling
unless it is "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. . . ." Id. §
The applicable regulations promulgated by the SSA set forth a
sequential five-step process for evaluating disability claims.
See 20 C.F.R. § 404.1520. The Second Circuit has explained
the sequential evaluation process as follows:
First, the SSA considers whether the claimant is
currently engaged in substantial gainful
employment. If not, then the SSA considers whether
the claimant has a "severe impairment" that
significantly limits the "ability to do basic work
activities." . . . If the claimant does suffer
such an impairment, then the SSA determines
whether this impairment is one of those listed in
Appendix 1 of the regulations. If the claimant's
impairment is one of those listed, the SSA will
presume the claimant to be disabled. If the
impairment is not so listed, then the SSA must
determine whether the claimant possesses the
"residual functional capacity" to perform his or
her past relevant work. Finally, if the claimant
is unable to perform his or her past relevant
work, then the burden shifts to the SSA to prove
that the claimant is capable of performing "any
other work." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)(citing
20 C.F.R. § 404.1520, 416.920)(footnote omitted): see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Teiada v. Apfel,
167 F.3d 770, 774 (2d Cir. 1999); DeChirico v. Callahan,
134 F.3d 1177, 1179 (2d Cir. 1998); Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996). The claimant has the burden of proof as to the first four
steps. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000);
Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998);
Perez, 77 F.3d at 46; Carroll v. Secretary of Health
& Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The burden of
proving the fifth step that the claimant is able to perform
alternative substantial gainful activity falls on the
Commissioner. See Balsamo, 142 F.3d at 80 ("If the claimant
satisfies her burden of proving the requirements in the first four steps,
the burden shifts to the [Commissioner] to prove in the fifth step that
the claimant is capable of working.")(quoting Perez, 77 F.3d
at 77); Curry, 209 F.3d at 122; Perez, 77 F.3d at 46:
Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983). To meet
that burden, the Commissioner may procure the testimony of a vocational
expert. See 20 C.F.R. $404.1566(V): see also Nelson v.
Bowen, 882 F.2d 45, 49 (2d Cir. 1989): Dumas v.
Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983).
In assessing a claim of disability, the Commissioner must consider
objective and subjective factors, including: (1) 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 other
witnesses; and (4) the claimant's education, age, and work experience.
See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999):
Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984):
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983).
This 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); Rosa, 168 F.3d
at 77; Balsamo, 142 F.3d at 79. "Substantial evidence is `more
than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'"
Schaal, 134 F.3d at 501 (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971))(internal
quotation marks and citation omitted). To determine whether substantial
evidence supports a finding of the Commissioner, this Court must view the
supporting evidence in light of the administrative record as a whole,
including any contradictory evidence and evidence from which conflicting
inferences may be drawn. See Tejada, 167 F.3d at 774;
Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997);
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988);
Molina v. Barnhart, No. 00 Civ. 9522 (DC), 2002 WL 377529,
at *5 (S.D.N.Y. Mar. 11, 2002). Review of the Commissioner's factual
findings is not de novo, but is instead limited to an
assessment of the Commissioner's treatment of the administrative
record as a whole. See Wagner v. Secretary of Health and Human
Services, 906 F.2d 856, 860 (2d Cir. 1990). Judicial review of
the Commissioner's legal conclusions and application of legal
principles is de novo. See Rivera, 923 F.2d at
967. However, this Court may reverse the Commissioner's finding and
award Plaintiff benefits "only if . . . `application of the correct
legal standard could lead to only one conclusion.'" Luna de Medina
v. Apfel, No. 99 Civ. 4149 (SHS), 2000 WL 964937, at *3 (S.D.N.Y.
July 12, 2000)(quoting Schaal, 134 F.3d at 504).
II. Application of Law to Record Evidence
In the instant case, the ALJ concluded that Plaintiff retained the
functional capacity to perform the full range of sedentary work and was
therefore not disabled as defined by the Social Security Act and
Regulations. (See R. 39; 20 C.F.R. § 404.1520(g)(1).)
"Sedentary work involves lifting no more than 10 pounds at a time
. . . [and] [a]lthough a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties." 20C.F.R. § 416.967(a). "
Sedentary work . . . generally involves upto two hours of standing or walking and six hours of sitting in an eight-hour work day."
Perez, 77 F.3d at 46; see also, Carroll v. Secretary of
Health and Human Services, 705 F.2d 638, 643 (2d Cir. 1983)("By its
very nature `sedentary' work requires a person to sit for long periods of
A. Consideration of the Treating Physician's Opinion
As noted above, Dr. Dutkowsky, Plaintiff's treating physician, opined
that Plaintiff could only sit, stand or walk for ten minutes at a time
and for no more than one hour each during an eight-hour work day, thereby
precluding him from performing sedentary work. (See R. 190.)
Plaintiff argues that the ALJ ignored evidence supporting Dr. Dutkowsky's
opinion and improperly failed to give the opinion controlling weight.
The opinions of the claimant's treating physician are entitled to
"controlling weight" if they are well supported by medical findings and
not inconsistent with other substantial record evidence. See
20 C.F.R. § 404.1527(d)(2). 416.927(d)(2); Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); Schisler v. Sullivan,
3 F.3d 563, 567-68 (2d Cir. 1993). The ALJ may discount the treating source's
opinion, but must consider the following factors in doing so: "(i) the
frequency of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the opinion,
i.e., [t]he more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more
weight that opinion is given; (iii) the opinion's consistency with the
record as a whole; (iv) whether the opinion is from a specialist; if it
is, it will be accorded greater weight; and (V) other relevant but
unspecified factors." Schisler, 3 F.3d at 567 (discussing
20 C.F.R. § 404.1527(d)(2)(i), (ii) and (d)(3)-(6))(alteration in
original)(internal quotation marks omitted); see also Clark v.
Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998);
Schaal, 134 F.3d at 503: McLay v. Apfel, No. 99 Civ.
3505 (KMW). 2001 WL 197879, at *2 (S.D.N.Y. Feb. 20, 2001);
Kiggins, 1995 WL 450478, at *5. The regulations further require that ALJs "always give good reasons in
[their] notice of determination or decision for the weight [they] give to
[the] treating source's opinion." 20 C.F.R. § 404.1527(d)(2);
see also 56 Fed. Reg. 36932-01 at 36951; Schisler, 3
F.3d at 570.
In the instant case, the ALJ accorded little weight to Dr. Dutkowsky's
May 29, 1993, work capacity evaluation (see R. 188-193),
finding that it was not well-supported by medical findings and was
inconsistent with other substantial evidence in the record.
(See R. 37.) The ALJ did not take issue with Dr. Dutkowsky's
medical diagnosis of Plaintiff's condition, which is supported by
objective findings and is consistent with the diagnosis of the other four
examining physicians. Rather, it is Dr. Dutkowsky's estimation of the
degree to which Plaintiff's impairments affected his functional capacity
that the ALJ found unreliable.
Each of the examining physicians reached virtually the same diagnosis
concerning Plaintiff's knee and shoulder conditions. However, none of
them concluded that Plaintiff's impairments had as severe an impact on
his functional capacity as Dr. Dutkowsky. For example, Dr. Rubenstein,
who diagnosed Plaintiff with a rotator cuff injury and tendonitis in the
right shoulder, internal derangement and medial meniscus injury in the
left knee, lateral meniscus injury in the right knee, and cruciate
insufficiency in both knees, concluded that Plaintiff's disability is not
total and that "he could do an occupation which did not require him to be
stair climbing, on his feet for long periods of time, or heavy lifting or
filing." (R. 177.) Dr. Meisel noted that Plaintiff had signs of chronic
rotator cuff tendonitis, acromio-clavicular arthritis, and "rather marked
limitation of movement and use" of the right shoulder. (R. 148.)
Additionally, Dr. Meisel observed symptoms of internal derangement,
including swelling, in both knees, and found signs of anterior cruciate
instability in both knees, a re-tear of the medial cartilage in the right
knee, and an impingement and rotator cuff tendonitis in the right
shoulder. (See id.) However, Dr. Meisel concluded that
Plaintiff had a "partial moderate to severe physical disability," which precluded him from
"indoor desk type of work which requires him getting up and down, walking
stairs, and using his right upper extremity on the phone and writing."
(R. 149.) Dr. Weiss-Citrome diagnosed Plaintiff with "bilateral knee
internal derangements and probable chronic right rotator cuff partial
tear," but concluded that he could perform a job that included `sitting,
minimal walking, minimal standing, minimal lifting, moderate carrying,
normal handling, hearing, speaking and traveling." (R. 173.)
In contrast, Dr. Dutkowsky concluded that Plaintiff's impairments had a
more severe impact on his functional capacity. Dr. Dutkowsky opined that
Plaintiff was only capable of sitting, standing or walking for ten
minutes at a time, and for no more than one hour each, during an
eight-hour day, thus, according to the ALJ, "leaving five hours when the
only available position is prone." (R. 37-38.) The ALJ found this
evaluation of Plaintiff's condition not credible considering that
Plaintiff had been a full-time college student, and then a full-time
graduate student, during the closed period. (See R. 66.)
Plaintiff testified that he attended college classes four days a week
between three and six hours a day, and later attended graduate classes
two days a week for four hours a day. (See R. 68.) The ALJ
found Plaintiff's ability to maintain this class schedule conflicted with
Dr. Dutkowsky's opinion of Plaintiff's functional capacity. Dr.
Dutkowsky's opinion was further undermined in the eyes of the ALJ
because, in May of 1993, Dr. Dutkowsky reported that Plaintiff's pain was
severe enough to frequently impair his attention and concentration; yet,
at the same time, Plaintiff had been a Dean's List student since
returning to college, three weeks after he stopped working.
(See R. 37.) Moreover, Plaintiff himself testified that "for
the most part" he could concentrate on what he is doing. (R. 246.)
There are a number of other inconsistencies between Plaintiff's
testimony and Dr. Dutkowsky's work capacity evaluation. Specifically, the
ALJ noted that Dr. Dutkowsky opined that Plaintiff was unable to lift, push or pull with his left upper
extremity, whereas Plaintiff testified that there was nothing wrong with
his left arm and that he was capable of lifting between thirty-five and
forty pounds. (See R. 38.)
Dr. Dutkowsky's conclusory indication on the work capacity evaluation
that Plaintiffs impairments left him with the functional capacity to sit
for only ten minutes at a time and for no more than one hour in an
eight-hour work day (see R. 190), also conflicts with
Plaintiffs testimony, as well as other evidence in the record. During a
period of two years of treatment, there is only one mention in Dr.
Dutkowsky's treatment notes and clinical findings of limitations on
Plaintiff's ability to sit. On June 23, 1991, prior to the closed period,
Dr. Dutkowsky wrote: "we will keep [Plaintiff] on light desk duty with
instructions that he must maintain changes of positioning, i.e., getting
up from desk, walking about, doing some stretching while on duty, wall
climbing exercises, to avoid sitting in any one position too long." (R.
150.) Dr. Dutkowsky did not conclude in his note that Plaintiff could not
work at a job that required sitting. Rather, he indicated that Plaintiff
must change positions and "avoid sitting in any one position for too
Plaintiff himself contradicted Dr. Dutkowsky's functional capacity
evaluation when he testified at a hearing on June 3, 1993, that he could
sit without difficulty for a period of forty-five minutes to an hour
before he had to stand up and move around. (See R. 238, 243.)
On July 7, 1999, at the most recent hearing, Plaintiff testified that he
still experienced the same symptoms, but to a lesser degree.
(See R. 63.) This statement by Plaintiff is consistent with his
testimony that by 1999 he could sit for up to an hour and a half,
although if his pain flared up it could be as short as twenty minutes.
(See R. 63.) By contrast, on April 1, 1996, Dr. Dutkowsky
reported that Plaintiffs condition was "progressive over the past year or
two to the point where the knees are becoming increasingly more
symptomatic." (R. 310.) During the period that Dr. Dutkowsky referred to, however, Plaintiff returned to substantial gainful activity at a
job where he spent about one-third of his time sitting, one-third
standing and one-third walking around. (See R. 59.) The ALJ
noted, "[i]f Dr. Dutkowsky is to be taken seriously, it would mean that
the claimant's condition during the period in question for which he seeks
benefits was less severe than it was in 1996 when the claimant was
working." (R. 38.)*fn3
Based on the inconsistencies between Plaintiff's testimony and activity
and Dr. Dutkowsky's assessment of his functional capacity, as well as the
lack of medical support for Dutkowsky's functional assessment, and the
contrary medical opinions, the ALJ declined to give Dr. Dutkowsky's
opinion controlling weight.
Once an ALJ has determined that the treating source's opinion is not
entitled to controlling weight, the regulations require consideration and
discussion of several factors when determining how much weight to accord
the opinion. See 20 C.F.R. § 404.1527(d)(2)(i), (ii) and
(d)(3)-(6). The first of these factors is "the frequency of examination
and the length, nature, and extent of the treatment relationship."
Schisler, 3 F.3d at 567; 20 C.F.R. § 404.1527(d)(2)(i) and
(ii). The Regulations provide that "the longer a treating source has
treated you and the more times you have been seen by a treating source,
the more weight we will give to the source's medical opinion" . . .
and "[w]hen the treating source has seen you a number of times and long
enough to have obtained a longitudinal picture of your impairment, we
will give the source's opinion more weight than we would give it if it
were from a nontreating source." 20 C.F.R. § 404.1527(d)(2)(i). The
ALJ acknowledged that Plaintiff was seen by Dr. Dutkowsky "on an average
of about once a month, and not at all between August 24, 1994 and April
1996." (See R. 310.) The second factor the ALJ was required to consider was the medical
evidence in support of Dr. Dutkowsky's opinion, particularly the medical
signs and laboratory findings. See
20 C.F.R. § 404.1527(d)(3). The ALJ found that "Dr. Dutkowsky's office
treatment notes are long on discussion and short on objective findings."
(R. 37.) Dr. Dutkowsky does cite to MRI results and range of motion and
flexion tests to support his medical diagnosis. However, as discussed,
it is Dr. Dutkowsky's assessment of Plaintiff's functional capacity
that the ALJ found of "questionable credibility," rather than his medical
diagnosis. (R. 37.) As noted, there is only one mention in Dr. Dutkowsky's
records relating to Plaintiff's ability to sit.
The third factor requiring consideration and discussion is to what
degree the treating physician's opinion is consistent with the record as
a whole. See 20 C.F.R. § 404.1527(d)(4). As discussed, the
ALJ found several significant inconsistencies between Dr. Dutkowsky's
work capacity evaluation and other substantial evidence of record,
including the medical evidence of record, the opinions of the other
examining and two non-examining physicians, and notably, Plaintiff's own
It is clear from the ALJ's decision that he considered the factors
listed in the regulations when determining what weight to accord Dr.
Dutkowsky's opinion. See id. at §§ 404.1527(d)(2)(i), (ii)
and (d)(3)-(6). Consequently, the ALJ did not commit legal error by
discounting Dr. Dutkowsky's opinion. Moreover, based on his consideration
and discussion of the evidence of record, it is clear that much of it
significantly conflicted with Dr. Dutkowsky's opinion. Therefore, there
was a sound basis for the ALJ's decision to give little weight to the
treating physician's opinion that Plaintiff could only sit for ten
minutes at a time and a total of one hour in an eight-hour day.
B. Plaintiff's Ability to Perform Sedentary Work
The burden is on the Commissioner to show that Plaintiff has the
residual functional capacity to perform other work. Schaal, 134 F.3d at 501 (citing
20 C.F.R. § 404.1520, 416.920)(footnote omitted): see also
Rosa, 168 F.3d at 77: Tejada, 167 F.3d at 774;
DeChirico, 134 F.3d 1179; Perez, 77 F.3d at 46.
Since residual functional capacity is a medical assessment, the ALJ
must cite to an accepted expert medical source to support a conclusion
that Plaintiff is capable of performing sedentary work.
See 20 C.F.R. § 404.1513(c) and (d)(3); Irizarry
v. Callahan, No. 97 Civ. 6093 (DLC), 1998 WL 556157, at *8
(S.D.N. Y. Aug. 31, 1998)("Commissioner's burden of demonstrating
that a claimant can perform at a certain exertional level is therefore
unsustained where the ALJ has failed to point to at least some expert
medical testimony or other medical evidence to support his
decision.")(internal quotation marks and citations omitted); see
also Gray v. Chater, 903 F. Supp. 293, 301 (N.D.N.Y. 1995.)
In the instant case, the ALJ relied on the assessment of two state
agency physicians, as well as the other consulting physicians, in
concluding that Plaintiff was capable of performing sedentary work.
(See R. 38.) The ALJ found their opinions to be consistent with
the evidence of record and determined that their conclusions should
therefore override Dr. Dutkowsky's opinion. See Schisler, 3
F.3d at 567-68 (affirming the Commissioner's August 1991 regulations and
noting that they "permit the opinions of nonexamining sources to override
treating sources' opinions provided they are supported by evidence in the
record."); Diaz v. Apfel, 59 F.3d 307, 313 (2d Cir. 1995.) Drs.
Frumin and Kovary concurred that Plaintiff retained the ability to sit,
with normal breaks, for six hours, and stand or walk for two hours in an
eight-hour work day. (See R. 112.) Although they opined that
Plaintiff could climb, balance, stoop, kneel, crouch and crawl
occasionally, they found that his shoulder condition limited his ability
to reach in all directions and allowed him to lift no more than ten
pounds on a frequent basis. (See R. 113-14.) Finally, they
cautioned that Plaintiff should avoid concentrated hazards, such as
working at heights or with heavy machinery. (See R. 155.)*fn4
The opinions of Drs. Rubenstein and Weiss-Citrome, both examining
physicians, also support the conclusion that Plaintiff could perform a
job that required substantial sitting. Dr. Rubenstein opined that
Plaintiff "could do an occupation which did not require him to be stair
climbing, on his feet for long periods of time, or heavy lifting or
filing." (R. 177.) Dr. Weiss-Citrome opined that Plaintiff could perform
a job that required "sitting, minimal walking, minimal standing, minimal
lifting, moderate carrying, normal handling, hearing, speaking and
traveling." (R. 173.)*fn5
Considering the medical evidence of record and Plaintiff's testimony,
the ALJ concluded that Plaintiff retained the residual functional
lift and carry ten pounds frequently and twenty
pounds occasionally and can sit six hours, and
stand or walk for two hours in an eight hour day.
While he cannot kneel, crouch or crawl, he can
occasionally climb, balance and stoop. He is
limited in reaching in all directions, including
overhead with his non-dominant upper extremity,
but manual manipulation and the use of his right
elbow and hand are not precluded.
(R. 38.) The ALJ then utilized a vocational expert to determine whether, given
Plaintiff's functional limitations, age, experience, and education, there
were sedentary jobs in the national economy which he could perform.*fn6
(See R. 39.) The ALJ posed a hypothetical question to the
vocational expert which considered Plaintiff's exertional and
non-exertional impairments, including his ability to sit for a total of
and stand and walk for a total of two hours in an
eight-hour work day, his inability to reach in all directions, his
inability to kneel, crouch or crawl, and his ability to climb, balance
and stoop only occasionally. (See R. 77.) The ALJ did not
include impaired concentration in his hypothetical. However, as
discussed, based on Plaintiff's testimony and school experience, the ALJ
determined that Plaintiff did not suffer from impaired concentration.
Considering Plaintiff's exertional and non-exertional limitations and his
age, education and past work experience, the vocational expert, testified
that there was a wide range of sedentary jobs which Plaintiff could
perform, which exist in significant numbers in the national and regional
economies, and he provided an illustrative list. (See R. 79.)
The expert testified that the jobs he identified, while requiring six
hours of sitting, would allow Plaintiff to stand up, change position, and stretch or move about for a few
minutes at different intervals. (See R. 82-83.)
Relying on this testimony, the ALJ found that Plaintiff was able,
despite his impairments, to perform sedentary work during the closed
period. Therefore, the ALJ concluded, Plaintiff was not under a
"disability" as defined by the Social Security Act and Regulations.
The decision of the ALJ that during the period from September,
1991 through May, 1995, Plaintiff was capable of performing sedentary
work and was thus not disabled supported by substantial evidence
and free from legal error.
For the reasons stated above, this Court respectfully recommends that
Defendant's motion for judgment on the pleadings be granted, and that the
action be dismissed.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten days from service of
this Report to file written objections. See also Fed.R. Civ.
P. 6(a) and (e). Such objections shall be filed with the Clerk of the
Court, with extra copies delivered to the chambers of the Honorable Laura
T. Swain, U.S.D.J., and to the chambers of the undersigned, Room 1660.
Any requests for an extension of time for filing objections must be
directed to Judge Swain. Failure to file objections will result in a
waiver of those objections for purposes of appeal.
Thomas v. Arn, 474 U.S. 140, 149-52, 106 S.Ct. 466, 472-73
(1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899 (1986);
IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d
Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.),
cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small
v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.