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SINDA v. COMMISSIONER OF SOCIAL SECURITY

United States District Court, N.D. New York


June 8, 2004.

MARIE E. SINDA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge

DECISION AND ORDER

I. Introduction

  Marie Sinda alleges that degenerative disc disease and depression have disabled her, and challenges the denial of disability benefits by the Commissioner of Social Security. Having reviewed the administrative record, the court concludes that the Commissioner's decision was based on substantial evidence, and affirms.

  II. Procedural History

  After Sinda filed for disability benefits in June 1997,*fn1 her application was denied, and a hearing was conducted by Administrative Law Judge Daniel Heely (ALJ). In February 1999, the ALJ issued a decision denying benefits, which became the Commissioner's final determination when the Appeals Council denied review on March 3, 2000.

  On April 11, 2000, Sinda brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner then filed an answer and a certified administrative transcript, Sinda filed a brief, and the Commissioner responded.

  III. Contentions Sinda contends that the Commissioner's decision is not supported by substantial evidence because the ALJ disregarded the opinions of Sinda's treating physician.*fn2 Sinda claims that the ALJ: (1) based his decision upon an erroneous evaluation of the medical evidence; (2) disregarded the opinions of her treating physicians; and (3) reached conclusions that were not based on the facts and were contrary to law.*fn3 The Commissioner counters that substantial evidence supports the ALJ's decision that Sinda was not disabled.

  IV. Facts

  Sinda was thirty-six years old at the time of the ALJ's decision. (Tr. 39). She has a high school education and has completed a course in office shorthand (Tr. 42). From 1982 to 1984, she worked as an administrative assistant. (Tr. 141). From 1984 to May 1994, she worked in four different capacities for Hartford Insurance. (Tr. 86-98, 141-42). She was a clerk from 1984 to 1987, a disability processor from 1987 to 1989, a secretary from 1989 to 1991, and a senior claims specialist from 1991 to 1994. (Tr. 86). As a senior claims specialist, Sinda was required to stand for three hours, walk and sit for four hours each, and frequently lift and carry files and office supplies weighing up to fifty pounds. (Tr. 96-98).

  Sinda injured her back in October 1993, when she tried to reach for ten empty folded boxes at work. (Tr. 336). She worked until her disability onset date of May 9, 1994. (Tr. 101). In her SSA disability report, she claimed that she was disabled due to depression and pain, and stated that she had "difficulty in stressful situations and functions." (Tr. 101). She indicated a decreased ability to perform daily activities such as personal hygiene, household chores, shopping and errands, taking care of finances, and driving. (Tr. 122-23). She also reported that her "physical condition" affected her recreational and social activities. (Tr. 124). She further indicated that her condition affected her ability to sit, stand, walk, kneel, squat, climb, bend, lift, reach, use her hands, concentrate, remember, understand, and sleep. (Tr. 124).

  In a Social Services form, Sinda indicated that she needed assistance with cooking, shopping, and other chores. (Tr. 126). She had no recreational activities or hobbies, watched television and read, but could not stay focused. (Tr. 126). She had occasional visits from friends, and rarely drove alone, with the exception of five-minute trips to her church. (Tr. 126). Later, Sinda stated in an SSA reconsideration application that the pain down her hand and legs was getting worse and affected her ability to walk, hold things, and twist caps. (Tr. 129). She also claimed she was unable to handle everyday living, and that her depression was caused by her injury. (Tr. 129).

  A. Medical Evidence

  1. Robert Parke, M.D. (family physician)

  In October 1993, Dr. Parke diagnosed Sinda with lumbosacral strain (Tr. 336-37). Sinda reported back muscle pain radiating down her left leg while trying to reach for ten folded boxes. (Tr. 336-37). Dr. Parke prescribed pain medication, advised her to rest for two days, and ordered lumbosacral spine X-rays. (Tr. 336-37). The X-rays revealed slight disc space narrowing at the T11/12 and T10/11 levels consistent with degenerative disc disease (DDD). (Tr. 367). They also showed mild degenerative change at the L2/3 level with no significant disc space narrowing. (Tr. 367). There was no evidence of mal-alignment, fracture, vertebral displacement or dissolution, and the neural passages were unobstructed. (Tr. 367). Dr. Parke indicated in a Workers' Compensation (WC) form that Sinda was working and not disabled. (Tr. 337). In November 1993, Sinda complained of low back pain when getting up in the morning, but stated she did not want to take time off work. (Tr. 339). In March 1994, she indicated that her back pain was constant and radiated into her neck and right shoulder. (Tr. 340).

  In May 1994, X-rays of Sinda's cervical spine returned negative. (Tr. 368). Dr. Parke noted that she might be depressed. (Tr. 343). In November, Dr. Parke advised Sinda to seek a psychiatric opinion on her disability and depression. (Tr. 347). He also indicated that her back pain "may not be as much mechanical as it is aggravated by her present depression and stress." (Tr. 347). In December, magnetic resonance imaging (MRI) scans of Sinda's cervical spine revealed minimal early DDD at the C5/6 level. (Tr. 369). A lumbar spine MRI revealed DDD at the L2/3, T10/11 and T11/12 levels, with no evidence of neural impingement or spinal stenosis. (Tr. 369-70).

  Dr. Parke continued to diagnose Sinda with cervical and lumbar strain and depression throughout his treatment. (Tr. 342-51). In August 1995, Sinda complained of left shoulder pain. (Tr. 351). On examination, Dr. Parke noted good neck and arm range of motion. (Tr. 351). He opined that Sinda was disabled from her prior job, but should be able to do at least part-time work. (Tr. 351). In September, Sinda complained of longer, recurring episodes of "extreme" low-back and upper-neck pain with leg numbness, but could not give any specific examples. (Tr. 352). Dr. Parke noted no major change on examination. (Tr. 352). In November, Sinda related that she could not lift things and felt pain when turning her head. (Tr. 352). She stated she got more depressed as her pain increased. (Tr. 352). On examination, her deep tendon reflexes were normal, and her neck range of motion was "good." (Tr. 352).

  In January 1996, Sinda related increasing back pain and leg numbness after slipping on ice. (Tr. 353). Dr. Parke noted no changes on examination. (Tr. 353). He also explained to Sinda the need to verify whether depression was a consequence of her injury that influenced her delayed recovery. (Tr. 353). In March, Sinda complained of arm numbness and tingling in her hands in addition to her back pain. (Tr. 354). Dr. Parke noted no changes on examination of her back, and found her motor functions and reflexes intact. (Tr. 354). He indicated that Sinda was not able to return to her old job. (Tr. 354). In June, Dr. Parke opined in a WC report that Sinda was partially disabled due to decreased use of her back and depression. (Tr. 356). In a February 1997 WC report, he indicated that Sinda was totally disabled. (Tr. 360). On October 29, 1997, Dr. Parke noted in a WC visit addendum that there was "not much objective evidence" of Sinda's pain and that she was "hyper sensitive to even light touch." (Tr. 366). He opined that her chronic pain syndrome was aggravated by chronic depression and fibromyalgia syndrome. (Tr. 366). In an undated medical assessment report, Dr. Parke noted that Sinda's chronic depression was her primary problem, and that it exacerbated her back pain. (Tr. 373). He estimated that she could occasionally lift and carry up to five pounds, stand/walk up to six hours, and sit less than six hours per day. (Tr. 373-74). He also noted that her ability to push/pull was limited. (Tr. 374). He did not provide any clinical or laboratory findings in support of his opinion. (Tr. 372-73).

  2. Gene Stunkle, M.D. (orthopedic surgeon)

  In June 1994, Dr. Stunkle saw Sinda for an independent medical examination. (Tr. 147-48). Sinda claimed that she could not bend over, lift more than twenty-five pounds, and sit, stand or drive for more than 30 minutes. (Tr. 147). Dr. Stunkle noted that she did not wear a lumbar brace and had no history of back problems. (Tr. 147). On examination, she flexed her lumbar spine to seventy-five to eighty degrees before feeling pain. (Tr. 148). She extended to twenty degrees with "very little" discomfort, and flexed to twenty degrees laterally with no discomfort. (Tr. 148). Deep tendon reflexes were two-plus, straight leg raising was negative, and she had no sensory deficits in her legs. (Tr. 148). She could stand on her heels and toes and squat without difficulty, and her gait was normal. (Tr. 148). Dr. Stunkle also reviewed Sinda's cervical and lumbar X-rays and noted they were unremarkable. (Tr. 148).

  Dr. Stunkle diagnosed Sinda with remote sprain of the lumbosacral spine. (Tr. 148). He stated that he found no objective evidence of any significant back problem, and saw no orthopedic reason why Sinda could not return to work. (Tr. 148).*fn4

  3. Joseph Conrad, M.D. (orthopedic surgeon)

  In September 1996, Dr. Conrad examined Sinda and reviewed her medical records at the request of her employer. (Tr. 288-97). Sinda complained of right shoulder blade pain that occasionally radiated in her cervical spine. (Tr. 294). She also related radiating pain in her right arm and hand (Tr. 294). She claimed her symptoms were worsened by moving her neck "the wrong way," driving a car, peeling potatoes, and writing. (Tr. 294). She further complained of intermittent numbness from her right elbow to her fingertips and weakness in her right hand (Tr. 294). She also reported constant low back pain radiating to her thoracic spine and right leg. (Tr. 294). These symptoms were aggravated by "everything" she did. (Tr. 294). Finally, she complained of intermittent numbness of her right thigh from the groin to the knee. (Tr. 294).

  On examination, Sinda noticeably restricted all active ranges of cervical, thoracic, and lumbar spine motion, and complained of pain. (Tr. 295). Straight leg raising was positive at ten degrees bilaterally in the supine position, and negative in the sitting position. (Tr. 295). The Patrick test could not be performed in either leg because she complained of low back pain. (Tr. 295). Active forward flexion and abduction of the shoulders were moderately restricted, and medial and lateral rotation was normal. (Tr. 295). Deep tendon reflexes were normal in all extremities. (Tr. 295). Dr. Conrad also noted Sinda's prior X-rays and MRIs, which were unremarkable, and referenced a June 1994 report from Ricelli Physical Therapy indicating that nerve conduction and EMG studies were negative. (Tr. 290-91).

  Dr. Conrad diagnosed Sinda with low back pain and neck pain (cervicalgia). (Tr. 288). In his opinion, Sinda did incur an injury to her lower back in October 1993, but her neck, arm and cervical spine symptoms were neither caused by, nor related to the injury. (Tr. 289).

  4. Kalyani Ganesh, M.D.

  In August 1997, Dr. Ganesh examined Sinda at the request of Social Services. (Tr. 317-20). Sinda complained of constant pain in her back, neck, legs, and arms, which she rated as ten on a one-to-ten scale. (Tr. 318). She reported that she could only walk for ten minutes, sit for twenty minutes, stand for twenty minutes, drive for five to ten minutes, use her arms for ten to fifteen minutes, and lift less than five pounds. (Tr. 318-19).

  On examination, Sinda moved her neck "very little." (Tr. 319). She flexed her cervical spine forward to thirty degrees, laterally to twenty degrees, rotated to twenty degrees, and stated "I can't go any more" on extension. (Tr. 319). She elevated and abducted her shoulders to 140 degrees, adducted to twenty-five degrees, rotated internally to thirty degrees, and externally to seventy-five degrees. (Tr. 319). She was able to bend forward to seventy-five degrees and laterally to twenty degrees. (Tr. 319). Straight leg raising was positive at sixty degrees on the right and seventy-five degrees on the left. (Tr. 319). She displayed a normal range of elbow and wrist motion, and Tinel's sign was negative. (Tr. 319). Dr. Ganesh noted that Sinda moved slowly, moaned, and groaned during the examination. (Tr. 319). Neurologically, Sinda had normal sensation over her right arm but complained of diminished sensation in her left arm and forearm. (Tr. 319). Pinprick was normal bilaterally, fine movements of her hands were preserved, and her grip was at four out of five. (Tr. 319).

  Sinda's range of knee motion was also normal. (Tr. 319). She flexed her hips to ninety degrees on the right and 100 degrees on the left, extended backward to twenty-five degrees, rotated internally to thirty degrees on the right and thirty-five degrees on the right side, rotated externally to forty degrees on the right and forty-five on the left, abducted to thirty degrees on the right and thirty-five degrees on the left, and adducted to ten degrees on the right and fifteen degrees on the left. (Tr. 319). Her ankle range of motion was normal and knee jerk was one-plus with no effusion or tenderness. (Tr. 320). Babinsky and Romberg tests were negative. (Tr. 320). Her posture and gait appeared normal. (Tr. 320).

  5. Lawrence Hurwitz, M.D. (psychiatrist)

  Dr. Hurwitz first saw Sinda in April 1996. (Tr. 304). In a June 1996 WC form, Dr. Hurwitz indicated Sinda was totally disabled due to major depression, single episode. (Tr. 304). In July 1996, Sinda voluntarily admitted herself to Community-General Hospital due to depression. (Tr. 166-287). Sinda had difficulty caring for her two children, difficulty in her relationship with her husband, and complained of financial problems. (Tr. 168). Her symptoms included sleep disorder, decreasing appetite, weight loss, trouble concentrating, fatigue, and feelings of helplessness, hopelessness and guilt. (Tr. 168). On examination, she was alert and cooperative, her speech was normal, and her affect was depressed from a mild to severe degree. (Tr. 168). She had racing thoughts, paranoid ideations, and recent visual hallucinations. (Tr. 168). She did not have auditory hallucinations, had marginal judgment and partial insight, her memory was intact and her knowledge of information was average. (Tr. 168). Sinda was diagnosed with severe major depression with psychotic features, alcohol abuse, and histrionic personality.*fn5 (Tr. 169).

  In a June 1997 Social Services report, Dr. Hurwitz diagnosed Sinda with major depression, single episode. (Tr. 298). He indicated that she showed "slow steady progress" in response to medication and therapy sessions, was "generally open to therapy," and her behavior was appropriate. (Tr. 299-300). Her speech was coherent, some thought patterns reflected anxiety and difficulty staying focused, and her perceptions were normal. (Tr. 300). She was alert and had a normal fund of information, her memory was intact, and her ability to perform calculations was not impaired. (Tr. 300). She drove and maintained average daily living skills. (Tr. 301). Furthermore, she showed increased emotional insight, her judgment was not impaired, and she had no suicidal features. (Tr. 300-01). Dr. Hurwitz noted that Sinda's depression and anxiety would decrease her ability to function in a work setting. (Tr. 301). However, the primary cause of this dysfunction was physical. (Tr. 301). There were also no limitations to her understanding, memory, and social interaction. (Tr. 302). She was limited in the areas of sustained concentration, persistence, and adaptation. (Tr. 302). In October 1997, Dr. Hurwitz indicated similar findings in a second report. (Tr. 329-34). In a January 1998 letter to Sinda's attorneys, he indicated that she continued to experience chronic pain which affected her daily activities. (Tr. 396). Sinda had difficulty coping with her injury, was depressed, anxious, "stressed out," and had low self-esteem. (Tr. 396). He opined that she was totally disabled and stated he did not "foresee a resolution of her depressive symptoms until her physical injury is resolved." (Tr. 396). Between March and October 1998, Dr. Hurwitz completed five WC forms indicating Sinda had been totally disabled since April 1996. (Tr. 398-404).

  6. Michael Thompson, Ph.D. (psychiatrist)

  In November 1997, Dr. Thompson evaluated Sinda's mental status. (Tr. 375-79). Sinda related ongoing symptoms of emotional distress and discomfort worsening the negative impact of her low back problem. (Tr. 377). Her appearance, attitude and behavior were normal. (Tr. 377). She appeared to be in pain and displayed mild emotional distress during evaluation. (Tr. 377). Her speech and thought processes were relevant and coherent. (Tr. 377). Her thinking showed no signs of confusion or psychotic disorganization. (Tr. 377). There was no evidence of delusions, hallucinations, obsessions, phobias or preoccupations. (Tr. 377). Sinda's cognitive and concentration skills, orientation, and short/long-term memory was good. (Tr. 377). Although she related that her depression and emotional distress occasionally disrupted her cognitive functioning, Dr. Thompson found no evidence of primary cognitive impairment and estimated her intellectual functioning to be average. (Tr. 377).

  Dr. Thompson assessed that Sinda's symptoms revealed ongoing clinical depression, and diagnosed her with "adjustment disorder with depressed mood." (Tr. 378). His assessment of her psychiatric functioning revealed no significant problems regarding her competence to perform household chores and daily activities. (Tr. 378-79). Her level of personal and social adjustment was mildly to moderately impaired. (Tr. 379). Her symptoms were also secondary to her physical injury. (Tr. 379). However, Dr. Thompson stated that while her depressive symptoms caused emotional distress, they did not, in and of themselves, preclude gainful employment. (Tr. 379).

  7. Residual Functional Capacity (RFC) Assessments

  In August 1997, Dr. Oh, a consulting physician, provided a physical RFC assessment, and found that Sinda could occasionally lift twenty pounds, frequently lift ten pounds, could stand, walk, and sit for six hours each, and push or pull without limitation. (Tr. 322). He found that Sinda had no postural, visual, communicative, environmental, or manipulative limitations. (Tr. 323-25). He based this assessment on the lumbar spine X-rays showing disc space narrowing consistent with DDD, Sinda's decreased range of motion in her neck and shoulders, straight leg raising positive at sixty and seventy-five degrees, grip strength at 4/5, and normal gait and station. (Tr. 322). In December 1997, Dr. Pellegrino, a second consulting physician, also provided a physical RFC assessment, which included identical findings. (Tr. 388-94).

  In August 1997, a mental RFC assessment found that Sinda had affective disorder, a severe impairment which did not equal or meet a listed impairment. (Tr. 306, 312). Specifically, the consulting psychiatrist found that Sinda's understanding and memory, social interaction, adaptation, and most of her sustained concentration and persistence functions, were "not significantly limited" by the impairment. (Tr. 313-14). He found Sinda only "moderately limited" in her ability to maintain attention and concentration for extended periods, perform activities within schedule, maintain regular attendance and be punctual, and sustain ordinary routine without special supervision. (Tr. 313).

  In November 1997, Dr. Charles, a consulting psychiatrist, also provided a mental RFC assessment, and found that Sinda's affective disorder did not meet a listed impairment. (Tr. 380-86). He found Sinda only "moderately limited" in her ability to complete a normal workday or week without interruptions due to psychological symptoms and to perform at a consistent pace without unreasonable rest periods. (Tr. 384). He further found that Sinda was "not significantly limited" in performing any of the remaining activities. (Tr. 383-84). In his assessment, he noted that Sinda had a history of depressive episodes, and that her current communication and social skills were fair. (Tr. 385).

  B. The Administrative Hearing

  Sinda alleged pain in her neck, back, legs, arms and hands. (Tr. 43). She testified that she was able to stretch for ten minutes, sit twenty-five to thirty minutes, stand for twenty minutes, and walk for five minutes a day. (Tr. 46). She had constant low back pain, which was aggravated by bending, reaching, and vacuuming. (Tr. 54-55). She had pain in both legs, aggravated by prolonged standing. (Tr. 55). Her neck pain was constant and radiated to her shoulders and arms. (Tr. 55). She also had tingling, burning, and numbness in her fingers. (Tr. 55). She had difficulty grasping and often dropped objects. (Tr. 56-57). She had trouble lifting and carrying a gallon of milk. (Tr. 47). She could not climb more than two or three stairs without feeling tingling in her legs. (Tr. 61).

  Sinda further testified that she could take care of her personal hygiene. (Tr. 47). She went grocery shopping with her husband weekly and sewed twenty minutes each day. (Tr. 48). She did light housekeeping, but no vacuuming. (Tr. 49). She attended church for forty-five minutes on Sundays and weekly choir practices lasting sixty to ninety minutes. (Tr. 49). She had trouble sitting or standing at choir, and had to lie down for one to two hours afterwards due to back pain. (Tr. 49, 60). She used a computer to send e-mail, but experienced pain after typing for five minutes. (Tr. 53).

  Sinda also testified that she was unable to engage in former hobbies such as bowling, ice skating, tennis, aerobics, or weight training. (Tr. 61). She did not participate in outdoor activities such as camping, fishing, or hunting. (Tr. 51). She drove approximately twice a week to go to her doctors, and had driven fifteen miles to the hearing. (Tr. 41). In August 1998, she visited her parents in North Carolina, but did not drive herself and had to stop every thirty to forty-five minutes because she could not sit; she returned by plane. (Tr. 50, 61). Several months after applying for disability in 1994, she unsuccessfully tried to find employment. (Tr. 43).

  She saw Dr. Parke and Howard Walsdorf, a chiropractor, for her physical symptoms, and Dr. Hurwitz for her depression. (Tr. 45). She was not involved in a physical therapy program, and no surgery for her physical symptoms had been scheduled. (Tr. 46). She wore a sacroiliac brace for four hours a day. (Tr. 44). She was taking medication for her depression, but her doctor had discontinued pain medications because they did not work. (Tr. 44-45). She had not seen Dr. Parke for the past seven months, and saw Dr. Hurwitz and her chiropractor weekly. (Tr. 45). The ALJ instructed Sinda's attorney to obtain updated treatment records from Dr. Hurwitz. (Tr. 63). After the hearing, Dr. Hurwitz produced his treatment notes, but did not return the requested mental assessment form. (Tr. 146).

  V. Discussion

  A. Standard and Scope of Review

  When reviewing the Commissioner's final decision, the court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible for determining a claimant's eligibility, the actual disability determination is made by an ALJ, and that decision is subject to judicial review on appeal. A court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

  A court's factual review of the Commissioner's decision is limited to the determination of whether substantial evidence in the record supports the decision. 42 U.S.C. § 405(g); see Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

  The court has authority to reverse with or without remand 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit claimant to produce further evidence). In order to "ensure that the correct legal principles are applied in evaluating disability claims . . . th[e Second C]ircuit recognizes the appropriateness of remanding cases because of the lack of specificity of an ALJ's decision." Knapp v. Apfel, 11 F. Supp.2d 235, 238 (N.D.N.Y. 1998) (citing Johnson, 817 F.2d at 985). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years and remand would likely result in further lengthening the "painfully slow process" of determining disability).

  B. Five-Step Disability Determination

  In the Social Security Disability Insurance and Supplemental Security Income context, the definition of "disabled" is the same. A plaintiff seeking SSDI or SSI is disabled if she can establish that she 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 twelve months. . . ." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A)*fn6 (emphasis added).

  The Commissioner uses a five-step process to evaluate SSDI and SSI disability claims. See 20 C.F.R. § 404.1520, 416.920. Step One requires the ALJ to determine whether the claimant is presently engaging in substantial gainful activity (SGA). 20 C.F.R. § 404.1520(b), 416.920(b). If so, she is not considered disabled. However, if she is not engaged in SGA, Step Two requires that the ALJ determine whether the claimant has a severe impairment. 20 C.F.R. § 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires that the ALJ determine whether the claimant's impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P., Appendix 1, §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if the impairment meets or equals a listed impairment. See Ferraris, 728 F.2d at 584. If the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's RFC precludes the performance of her past relevant work. 20 C.F.R. § 404.1520(e), 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. 20 C.F.R. § 404.1520(f), 416.920(f).

  The claimant has the burden of showing that she cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once she has met that burden, the ALJ can deny benefits only by showing, with specific reference to medical evidence, that she can perform some less demanding work. See White v. Sec'y of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing, the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills, to determine if she can perform other work existing in the national economy. 20 C.F.R. § 404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

  The ALJ must also apply a "special technique" when the claimant suffers from a mental impairment. See 20 C.F.R. § 404.1520a, 416.920a; Rosado v. Barnhart, 290 F. Supp.2d 431, 437 (S.D.N.Y. 2003). The ALJ must first determine whether the mental impairment is "severe." 20 C.F.R. § 404.1520a(c), 416.920a(c). The ALJ must then rate the claimant's limitations in four "broad functional areas:" (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3), 416.920a(c)(3).*fn7 A ranking of "none" or "mild" in the first three areas and of "none" in the fourth generally warrants a finding that the impairment is not "severe." 20 C.F.R. § 404.1520a(d)(1), 416.920a(d)(1). If the impairment is severe, the ALJ must determine whether it meets or is equivalent to a listed impairment. 20 C.F.R. § 404.1520a(d)(2), 416.920a(d)(2). If the impairment is not listed, the ALJ must assess the claimant's mental RFC. 20 C.F.R. § 404.1520a(d)(3), 416.920a(d)(3).*fn8 The decision must incorporate the findings and conclusions based on the technique. 20 C.F.R. § 404.1520a(e)(2), 416.920a(e)(2).

  In this case, the ALJ found that Sinda satisfied Step One because she had not worked since May 9, 1994. (Tr. 12, 21). In Step Two, the ALJ determined that she suffered from severe impairments: degenerative disc disease and depression. (Tr. 12-14, 21). In Step Three, the ALJ determined that her impairments failed to meet or equal a combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P., Regulation No. 4. (Tr. 14, 21). The ALJ also prepared the required psychiatric review technique form (PRTF) applying the "special technique" to Sinda's mental impairments. (Tr. 19, 23-25). In Step Four, the ALJ determined that Sinda did not have the RFC to perform her past relevant work as secretary or claims processor. (Tr. 20, 21). In Step Five, the ALJ found that Sinda possessed the RFC to perform light exertional work which was limited by her non-exertional mental limitations to jobs with simple, routine, and repetitive tasks. (Tr. 17, 19-21). Consequently, he found Sinda not disabled and denied benefits. (Tr. 22).

  C. Substantial Evidence — Treating Physician Rule

  Sinda erroneously argues that the ALJ's decision is unsupported by substantial evidence. She contends that the ALJ disregarded the opinion of her treating physician. Generally, the opinions of treating physicians are given controlling weight, under certain circumstances, in the belief that an on-going relationship between doctor and patient yields a better evaluation than a one-time physical. Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). In weighing the treating physician's opinion, "[t]he duration of a patient-physician relationship, the reasoning accompanying the opinion, the opinion's consistency with other evidence, and the physician's specialization or lack thereof" are considerations. Id. at 568; 20 C.F.R. § 404.1527(d)(1)-(6), 416.927(d)(1)-(6).

  The medical report should include a statement about what an individual can do despite his impairments and should be based on the medical source's findings. See 20 C.F.R. § 404.1513(b)(6), 416.913(b)(6). Furthermore, the opinion of a treating physician must be based upon well-supported, medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); see Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998). When the Commissioner fails to give the treating physician's diagnosis controlling weight, he must provide reasons. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).

  Moreover, the "ultimate finding of whether a claimant is disabled and cannot work is `reserved to the Commissioner.'" Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted). "That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions." Id. at 133. Thus, a treating physician's disability assessment is not determinative. Id. at 133. Furthermore, where the medical evidence of record includes medical source opinions that are inconsistent with other evidence or are internally inconsistent, the ALJ must weigh all of the evidence and make a disability determination based on the totality of that evidence. 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2).

  Sinda bases her objections to the ALJ's findings on Dr. Parke's medical assessment report. In the report, Dr. Parke opined that Sinda could lift and/or carry up to five pounds, stand and/or walk up to two hours, and sit for less than six hours a day. He did not, however, provide the basis for his opinion with respect to these limitations. Moreover, Dr. Parke indicated that Sinda's depression was the primary problem. Thus, the opinion was unsupported by acceptable clinical and diagnostic evidence. Moreover, it was internally inconsistent and ambiguous with respect to the primary cause of Sinda's limitations. Furthermore, Dr. Parke's opinion was inconsistent with his other diagnoses. Dr. Parke had initially diagnosed Sinda with a lumbosacral strain. His subsequent diagnosis of cervical and lumbar strain and depression remained constant throughout Sinda's treatment. He further indicated that there was not much objective evidence of Sinda's symptoms. As the ALJ observed, Sinda was not referred to an orthopedic surgeon. Finally, Sinda had not seen Dr. Parke for approximately eight months prior to the hearing.

  Dr. Parke's opinion was also inconsistent with the substantial medical evidence on record. Sinda's October 1993 X-rays showed slight disc space narrowing consistent with DDD at the T10-11 and T11-12 levels. They also revealed mild degenerative change at the L2-3 level, with normal neural passages and no evidence of mal-alignment or disc fracture. A May 1994 cervical spine X-ray was negative. In December 1994, MRI scans revealed minimal early DDD at the C5-6 level and DDD at the L2-3, T10-11, and T11-12 levels. There was no evidence of nerve impingement, disc herniation, or spinal stenosis.

  Moreover, Dr. Parke's opinion was inconsistent with the findings and diagnoses of examining physicians. As the ALJ observed, the most that any physician (including Dr. Parke) had diagnosed regarding Sinda's back was low back sprain or strain. In June 1994, Dr. Stunkle diagnosed Sinda with remote sprain of the lumbosacral spine. Dr. Stunkle noted that Sinda's cervical and lumbar X-rays were unremarkable. He stated that he found no objective evidence of any significant back problem, and saw no orthopedic reason why Sinda could not return to work.

  In September 1996, Dr. Conrad diagnosed Sinda with low back pain and neck pain. In his opinion, Sinda did incur an injury to her lower back in October 1993, but her neck, arm and cervical spine symptoms were neither caused by, nor related to the injury. Dr. Conrad also noted that Sinda's prior X-rays and MRIs were normal, and that nerve conduction and EMG studies were negative.

  Accordingly, the ALJ's decision not to give controlling weight to Dr. Parke's opinion was proper, since Dr. Parke's opinion was unsupported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Furthermore, the opinion was inconsistent with substantial medical evidence in the record. The court is also satisfied that the ALJ properly considered the requisite factors in deciding what weight to give to Dr. Parke's opinion. See 20 C.F.R. § 404.1527(d)(1)-(6), 416.927(d)(1)-(6).

  Sinda also argues that the ALJ based his decision on a small portion of the medical evidence. She claims that the ALJ relied on the opinion of Dr. Stunkle, who did not have the benefit of subsequent X-rays and MRI scans. There is no support for this contention. While the MRIs in question did not exist at the time Dr. Stunkle examined Sinda, they were reviewed by Dr. Conrad and Dr. Ganesh. The MRIs were also considered by the ALJ in his decision. Moreover, as the Commissioner points out, the MRIs do not reveal any significant impairments that were substantially different from those revealed by the earlier X-rays, and as such do not contradict Dr. Stunkle's opinion. Sinda also contends that the ALJ improperly relied on the RFC determination by Dr. Oh.*fn9 She claims that Dr. Oh's opinion is inconsistent with that of Dr. Parke. Because the court has already addressed the basis for the ALJ's decision not to accord controlling weight to Dr. Parke's opinion, it need not consider this argument.

  Finally, Sinda contends that her physical limitations notwithstanding, she was "totally disabled" due to her mental impairments. She bases this argument on Dr. Hurwitz's notations of total disability in numerous WC disability forms. As already noted by the court, the final determination of disability is reserved to the Commissioner. Therefore, Dr. Hurwitz's opinion on Sinda's total disability was not binding on the ALJ.*fn10 Since Sinda does not argue that the ALJ erroneously considered her mental limitations in assessing her mental RFC, the court need not address this issue.

  After carefully reviewing the entire record, and for the reasons stated, this court finds that the Commissioner's denial of benefits was based on substantial evidence and not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed.

  WHEREFORE, for the foregoing reasons, it is hereby

  ORDERED, that the decision denying disability benefits is AFFIRMED; and it is further

  ORDERED that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.


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