United States District Court, N.D. New York
June 8, 2004.
MARIE E. SINDA, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
DECISION AND ORDER
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
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.
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."
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.
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.
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.
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.
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
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.
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).
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
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.
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),
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
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.