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KIGGINS v. BARNHART

United States District Court, S.D. New York


May 20, 2004.

THOMAS B. KIGGINS, Petitioner
v.
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 dismissed.

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 be dismissed.

  PROCEDURAL BACKGROUND

  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 determination.

  FACTUAL BACKGROUND

  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 id.)

  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.
(R. 177.)

  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.)

  DISCUSSION

  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. § 423(d)(2)(A).

  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 time.")

  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 long." (Id.)

  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 testimony.

  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 capacity to:

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 six hours,*fn7 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.

  CONCLUSION

  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. 1989).


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