United States District Court, N.D. New York
July 1, 2004.
MARY JANE HUNT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
DECISION AND ORDER
Mary Hunt alleges that osteoarthritis and obesity have disabled
her, and challenges the Commissioner's denial of disability
insurance and supplemental security income benefits prior to her
fifty-fifth birthday.*fn1 Having reviewed the administrative
record, the court concludes that the Commissioner's decision was
based on substantial evidence, and affirms.
II. Procedural History
After Hunt filed for disability benefits in June 1998, her
application was denied, and a hearing was conducted by
Administrative Law Judge Thomas Zolezzi (ALJ). In February 1999,
the ALJ issued a decision partially*fn2 denying benefits,
which became the Commissioner's final determination when the
Appeals Council denied review on April 15, 2000.
On May 8, 2000, Hunt 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,*fn3 Hunt filed a brief, and the Commissioner
Hunt contends that the Commissioner's*fn4 decision is not
supported by substantial evidence. She claims that the ALJ: (1)
reached a determination unsupported by the medical evidence; (2)
disregarded the opinions of her treating physicians; (3) failed
to set specific factors in assessing her Residual Functional
Capacity (RFC); and (4) improperly evaluated her subjective
complaints and symptoms.*fn5 The Commissioner counters that
substantial evidence supports the ALJ's decision that Hunt was
The evidence in this case is not in dispute and the court
incorporates the parties' factual recitations. See Pl.'s Br.,
pp. 2-6, Dkt. No. 10; Def.'s Br., pp. 4-6, Dkt. No. 11. 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
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.*fn7 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).
In this case, the ALJ found that Hunt satisfied Step One
because she had not worked since April 1992. (Tr. 14,
20).*fn8 In Step Two, the ALJ determined that she suffered
from a severe impairment, osteoarthritis. (Tr. 15, 20). In Step
Three, the ALJ determined that this impairment failed to meet or
equal an impairment listed in, or medically equal to one listed
in Appendix 1, Subpart P., Regulation No. 4. (Tr. 15, 20). In
Step Four, the ALJ determined that Hunt did not have the RFC to
perform her past relevant work as department store clerk/cashier.
(Tr. 18, 21). In Step Five, the ALJ found that Hunt possessed the
RFC to perform light work which was only limited by her
non-exertional limitations with respect to stooping and
crouching. (Tr. 19, 21). Consequently, he found Hunt not disabled
and denied benefits. (Tr. 21).*fn9 C. Substantial Evidence Treating Physician Rule
Hunt argues that the ALJ's decision is unsupported by
substantial evidence. Her contention that the ALJ disregarded the
opinion of her treating physician*fn10 lacks merit and has
no support in the record. Generally, the opinion of a treating
physician is given controlling weight if it is based upon
well-supported, medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other
substantial evidence. 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 opinion
controlling weight, he must consider several factors, including
the duration of the patient-physician relationship, the reasoning
accompanying the opinion, and the opinion's consistency with
other evidence. See 20 C.F.R. § 404.1527(d)(1)-(6),
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. Furthermore, where the 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).
Hunt claims that the ALJ failed to give reasons for
disregarding her treating physician's opinion. She seeks to
invoke the "treating physician" rule by claiming that the ALJ
"refused to give controlling weight to Dr. Rush's observations
that [she] is totally and permanently disabled." Pl.'s Br. at
15, Dkt. No. 10 (emphasis added). The record is devoid of any
evidence that Dr. Rush ever made such observations. A careful
review of Dr. Rush's treatment notes reveals that he never opined
that Hunt was suffering from total or permanent disability. (Tr.
149-57, 173-79).*fn11 Moreover, he never prepared a written
report to the effect that Hunt was disabled. Thus, since Dr. Rush
never opined that Hunt was disabled, the ALJ could not have
disregarded a non-existing opinion (or give reasons for disregarding it). Moreover, as discussed below, the ALJ also
gave consideration to the doctor's objective findings in
assessing Hunt's condition and functional capacity. Therefore,
Hunt's reliance on the treating physician rule is misplaced.
Hunt also argues that the ALJ's decision is unsupported by the
medical record. There is no support for this contention. The
ALJ's determination is supported by the findings of Hunt's
In August 1995, Dr. Rush noted that Hunt had osteoarthritis,
demonstrated on facets of her lumbar spine and knees, which was
chronic and stable. She had a full range of motion (ROM). (Tr.
In April 1996, he noted full ROM of the neck, with no palpable
abnormalities. (Tr. 150). In July, Hunt complained of low-back
and knee pain. Dr. Rush found no edema or venous distention, full
ROM in the knees, no pain with hip rotation, and negative
straight leg raising. (Tr. 151). In August, he noted that her
arthritic pain had improved with medication. X-rays showed
moderate arthritic changes in her left knee with no evidence of
fracture, and her right knee was normal. (Tr. 156). She had full
ROM in the knees, and no effusions were noted. (Tr. 151).
In June 1997, Hunt complained of pain in her joints and neck
and swollen feet. Dr. Rush noted full ROM in the shoulders, elbows,
knees, and ankles, with no reflex abnormalities. (Tr. 153). He
also found no inflammatory signs that might suggest rheumatism.
(Tr. 154). Cervical spine X-rays revealed minimal degenerative
disc disease with mild osteoarthritic changes. X-rays of the
right elbow and left foot were negative. (Tr. 157).
In July, Dr. Rush noted that Hunt "walk[ed] with an obvious
antalgic gait*fn12 but demonstrate[d] full ROM in her
knees." (Tr. 155). In December, straight left leg raising
produced posterior thigh discomfort, but reflexes were normal.
There was no joint swelling and neck ROM was normal. Dr. Rush
assessed degenerative joint disease and possible mild diffuse
gouty arthritis. (Tr. 176). In February 1998, Hunt showed no
active joint inflammation, and her gout had improved. (Tr. 177).
In April, she had full ROM of the left knee, with no heat,
swelling, or deformity. While she had some tenderness in her
lower back, it was chronic and stable. (Tr. 176).
In June 1997, Hunt complained of diminished strength and
tingling in her right hand, as well as diminished sensation in her fifth and
part of her fourth finger. After a nerve conduction study in
August, Dr. VanEenenaam (orthopedic surgeon) indicated some
slowing of the ulnar nerves across the elbow and entrapment of
the median nerve at the wrist. (Tr. 184-86). However, neck motion
did not affect the symptoms, and ulnar nerves at the elbow were
stable. (Tr. 186). Although the doctor indicated that surgical
decompression might be warranted if the condition worsened, he
decided to "watch" the symptoms for six months. In February 1998,
the symptoms had not changed, and the doctor's plan to "watch"
Hunt's status did not change, and he recommended postural
exercises. (Tr. 186).
The ALJ's determination is also supported by the consulting
physician's findings. In August 1997, Dr. Kasulke reported normal
motor, sensory, and reflex functions in both upper and lower
extremities, except for slightly decreased sensation in the fifth
right finger. (Tr. 159). There was no evidence of muscle atrophy
or anatomical deformity. ROM was only slightly limited in the
lumbosacral and hip areas. Hunt had no difficulty moving around
the examination room, and had a normal gait. Moreover, X-rays of
her lumbar spine and left hip were normal. (Tr. 159-60). The ALJ's determination is also supported by Hunt's RFC
assessment, which is consistent with the findings of the treating
and consulting physicians. In September 1997, Dr. Bostic, a
consulting physician, found that Hunt 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.
166). She found that Hunt could occasionally climb, balance, and
stoop, but could not kneel, crouch, or crawl. There were no other
visual, communicative, environmental, or manipulative
limitations. (Tr. 167-69). She based this assessment on the
diagnosis of obesity and osteoarthritis of the lumbosacral and
cervical spine, left hip, and knee; Hunt's essentially negative
X-rays; her normal gait and ability to move around the exam room
without difficulty; and the absence of neurological abnormalities
or severe motor limitations. (Tr. 170).*fn13 In December,
Dr. Siddiqi, a second consulting physician, concurred with those
findings. Therefore, based on the above record, the ALJ's
determination is supported by substantial evidence.
Hunt's last two arguments overlap, in part. She argues that the
ALJ's RFC determination is deficient because he failed to make
specific findings.*fn14 In this context, she contends that the ALJ
failed to give proper weight to her testimony about her pain and
physical limitations. First, the record shows that the ALJ's
findings are clearly present in the decision. The ALJ considered
the objective medical evidence from Drs. Rush, VanEenenaam, and
Kasulke. (Tr. 15-17). The decision also included the RFC
assessment by Drs. Bostic and Siddiqi. (Tr. 18). Based on the
above, the ALJ found that Hunt was able to carry twenty pounds
occasionally and ten pounds frequently; sit, stand and walk for
six hours; and was unable to stoop and crouch. (Tr. 18).
The ALJ also properly considered Hunt's allegations of pain and
functional limitations. The court recognizes the inherent
difficulty in evaluating a claimant's credibility without actual
physical contact. This makes review of an ALJ's credibility assessment particularly
onerous and frequently results in significant deference to the
ALJ.*fn15 A claimant's statements about the persistence,
intensity, and limiting effects of these symptoms is evaluated in
the context of all objective medical evidence.
20 C.F.R. § 404.1529(c)(4), 416.929(c)(4). Pain alone may, under some
circumstances, serve as the basis for establishing disability.
See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir. 1983);
Gallagher ex rel Gallagher v. Schweiker, 697 F.2d 82, 84 (2d
Cir. 1983). However, some pain does not automatically translate
into disabling pain. See Dumas v. Schweiker, 712 F.2d 1545,
1552 (2d Cir. 1983) ("disability requires more than mere
inability to work without pain").
A finding that a claimant suffers from disabling pain requires
medical evidence of a condition that could reasonably produce
pain. 20 C.F.R. § 404.1529(a)-(b), 416.929(a)-(b). It does not
require objective evidence of the pain itself or its degree.
Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986); see
§§ 404.1529(c)(2), 416.929(c)(2). The pain must be properly
evaluated, considering the applicant's credibility and motivation as well as the medical evidence of impairment to reach an
independent judgment concerning the true extent of the alleged
pain, and the degree to which it hampers the applicant's ability
to engage in substantial gainful employment. See Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Where the alleged
symptoms suggest that the impairment is greater than demonstrated
by objective medical evidence, the ALJ will consider other
factors, such as daily activities, the location, duration,
frequency and intensity of symptoms, the type, effectiveness and
side effects of medication, and other treatment or measures to
relieve those symptoms. 20 C.F.R. § 404.1529(c)(3),
416.929(c)(3). Furthermore, an ALJ rejecting subjective testimony
concerning pain and other symptoms "must do so explicitly and
with sufficient specificity to enable the court to decide whether
there are legitimate reasons for the ALJ's disbelief and whether
his determination is supported by substantial evidence." Brandon
v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987).
In this case, the ALJ considered multiple factors in assessing
Hunt's complaints. Hunt testified that she read, went shopping,
vacuumed, and did light cleaning, dishes, and laundry. (Tr. 17,
39-43). The ALJ also noted that Hunt had not stopped working in
1992 due to any impairment, but in order to care for her husband Moreover, he indicated that
Hunt had reported some of her current complaints several years
before the alleged onset of her disability. The ALJ also noted
that the medical evidence did not support Hunt's complaints of
pain and limitations. As already discussed, the objective medical
evidence supported the ALJ's RFC determination. As such, it did
not corroborate Hunt's subjective symptoms. Based on the above,
the ALJ did not err in his evaluation of Hunt's subjective
After careful review of the entire record, and for the reasons
stated, this court finds that the Commissioner's denial of
benefits was based on substantial evidence. 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.