United States District Court, N.D. New York
July 20, 2004.
DIANE M. CROWE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
DECISION AND ORDER
Diane Crowe alleges that back and neck pain, headaches, and
dizziness have disabled her, and challenges the denial of
disability benefits by the Commissioner of Social Security.
Having reviewed the administrative record, the court affirms the
II. Procedural History
After Crowe filed for disability benefits in April 2000, her
application was denied, and a hearing was conducted by
Administrative Law Judge John Lischak (ALJ). In May 2001, the ALJ
issued a decision denying benefits, which became the
Commissioner's final determination when the Appeals Council
denied review on September 7, 2001.
On October 17, 2001, Crowe 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, Crowe filed a brief, and the
Crowe contends that the Commissioner's decision is not
supported by substantial evidence and erroneous as a matter of
law. Crowe claims the ALJ improperly: (1) disregarded the opinion of her treating
physician;*fn1 (2) relied on the opinions of examining (but
non-treating) physicians in determining her residual functional
capacity (RFC); (3) failed to consider her "non-exertional
impairments;" and (4) failed to obtain vocational expert
testimony with respect to her occupational base. The Commissioner
counters that substantial evidence supports the ALJ's decision
that Crowe was not disabled.
The evidence in this case is undisputed and the court
incorporates the parties' factual recitations. See Pl.'s Br.,
pp. 2-5,*fn2 Dkt. No. 8; Def.'s Br., pp. 2-9, Dkt. No. 11.
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). 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)*fn3 (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.*fn4 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),
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 Crowe satisfied Step One
because she had not worked since August 11, 1996.*fn5 (Tr.
16, 21).*fn6 In Step Two, the ALJ determined that she suffered from severe impairments:
back disorder and fibromyalgia. (Tr. 16, 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. 16, 21).
In Step Four, the ALJ determined that Crowe did not have the RFC
to perform her past relevant work as a nursing home laundry
worker. (Tr. 20, 21). In Step Five, the ALJ found that Crowe
possessed the RFC to perform substantially all of the
requirements of sedentary work.*fn7 (Tr. 21). Consequently,
he found Crowe not disabled and denied benefits. (Tr. 21).
C. Substantial Evidence
1. Treating Physician Rule
Crowe argues that the ALJ disregarded the opinion of her
treating physician. 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). An ALJ may not arbitrarily substitute his own
judgment for a competent medical opinion. Rosa v. Callahan,
168 F.3d 72, 79 (2d Cir. 1999). If the treating physician's opinion
is not given "controlling weight," the ALJ must assess the
following factors to determine how much weight to afford the
opinion: the length of the treatment relationship, the frequency
of examination by the treating physician for the condition(s) in
question, the medical evidence supporting the opinion, the
consistency of the opinion with the record as a whole, the
qualifications of the treating physician, and other factors
tending to support or contradict the opinion.
20 C.F.R. § 404.1527(d)(2-6); 416.927(d)(2-6).
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. 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).
Crowe appears to base part of her "treating physician" argument
on the Workers' Compensation (WC) forms filed by Dr. Lowenstein,
in which he indicated (by way of checking a box) that she was
"totally" disabled. See Pl.'s Br. at 3, 6; (Tr. 189-90,
250-56). This argument is unavailing for two reasons. First, as
already noted, the final determination of disability is reserved
for the Commissioner, and therefore the doctor's opinions of
"total" disability were not binding on the ALJ. Second, the
opinions were rendered in the context of Crowe's WC claim, which
is governed by standards different from the disability standards
under the Social Security Act. See Gray v. Chater, 903 F. Supp. 293,
301 n. 8 (N.D.N.Y. 1995) ("Workers' compensation
determinators are directed to the worker's prior employment and
measure the ability to perform that employment rather than using
the definition of disability in the Social Security
Act.").*fn8 Therefore, the ALJ was not required to find Crowe
"totally"*fn9 disabled based on Dr. Lowenstein's WC
Crowe also claims that the ALJ erroneously disregarded Dr.
Lowenstein's RFC assessment.*fn10 Her sole contention here
is a conclusory statement that the doctor's opinion is supported
by: (1) an October 1996 lumbar spine CT scan showing a small
L4-L5 disc herniation; and (2) a February 1999 three-level
discogram showing abnormalities at L4-5 and L5-S1 levels. (Tr.
192-95, 257, 259). This argument has no support in the record.
Dr. Lowenstein's report is devoid of any indication that he
relied on the above findings in rendering his RFC opinion.
Instead, the report merely states that it is based on "clinical &
historical evaluation" and "pain & intermittent dizziness." (Tr.
185). Absent a cogent connection between the basis for Dr.
Lowenstein's opinion and the above evidence, Crowe's argument cannot
stand*fn11 Based on the above, it was proper for the ALJ to
find that Dr. Lowenstein's RFC assessment was not entitled to
controlling weight because it was not supported by medically
acceptable clinical and laboratory techniques.
In addition, the ALJ found that Dr. Lowenstein had "relied
quite heavily on the subjective report of symptoms and
limitations provided by [Crowe], and seemed to uncritically
accept as true most, if not all, of what [she] reported." (Tr.
19). A review of the record supports the ALJ's determination. In
his treatment notes, Dr. Lowenstein bases his clinical assessment
of Crowe almost entirely on her subjective complaints of pain.
(Tr. 173-84). However, the ALJ questioned the reliability of
Crowe's complaints, and found them to be disproportionate to
those reflected in other medical reports. (Tr. 18, 19). Records
from Crowe's treating physicians at the Office of Pain Management
show that she reported pain ranging from 4 to 7 on a 0-10 scale,
which the ALJ found to correspond to a moderate pain profile,
manageable with medication. (Tr. 18, 201-08, 241-42, 248-49). In addition, Crowe had stopped taking her
prescription of Fioricet (a narcotic pain reliever with codeine),
and found her pain medications helpful. (Tr. 241-42). The record
also shows that her headaches had decreased in severity and
frequency with the use of medication. (Tr. 241). Moreover, the
Office of Pain Management office notes quote Crowe as saying: "I
guess I don't even have [headaches]." (Tr. 241). In addition,
Crowe denied any side effects from her medications. (Tr. 201-02,
206-07, 241, 244, 246).
The ALJ also found that Crowe's complaints of disabling
symptoms and complications were undermined by her daily
activities. (Tr. 18). Crowe was able to bathe and dress without
any assistance; she could cook, grocery shop, wash dishes, sweep,
mop, and do light work; she spent her spare time reading,
watching television, visiting relatives, playing cards, dining
out, and going to her son's basketball games. (Tr. 74-82, 147).
Crowe also drove two to three times a week. (Tr. 34-35).
Based on the above, the ALJ properly found Crowe's subjective
complaints of pain to be unreliable, and as such, they did not
constitute a proper basis for Dr. Lowenstein's RFC. Consequently,
the ALJ's decision not to accord controlling weight to Dr.
Lowenstein's opinion was not erroneous.
2. Examining Physicians' Opinions in RFC Finding
Crowe argues that the ALJ improperly relied on the opinions of
Drs. Ganesh and Hochreiter in determining her RFC, to the
exclusion of her treating physician's opinion. Although in
different form, Crowe essentially argues that the ALJ should have
given controlling weight to Dr. Lowenstein's opinion. Since the
issue of the ALJ's decision not to accord controlling weight to
the treating physician's opinion has been addressed, and because
Crowe offers no additional rationales in support,*fn12 this
contention is without merit.
3. Crowe's "Non-exertional*fn13 Impairments" and
Need for Vocational Expert
Crowe submits that she suffers from dizziness, lightheadedness,
and headaches, all caused by her medications. She argues that
these constitute non-exertional impairments that have diminished
her occupational base, and that the ALJ should have obtained
vocational expert testimony to support his finding that she was
not disabled. This argument is misplaced.
As the regulations and Social Security Ruling 96-9p point out,
"`[s]edentary work' represents a significantly restricted range
of work, and individuals with a maximum sustained work capability
limited to sedentary work have very serious functional
limitations." 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(4);
see SSR 96-9p. Where an individual is unable to perform the
full range of sedentary work, her occupational base will be
eroded by additional limitations or restrictions on her
exertional and nonexertional capacities. SSR 96-9p. According to
the Ruling, if any of a claimant's capacities is limited or
restricted, her occupational base would erode significantly.
Id. Social Security Ruling 96-9p directs the use of additional
vocational resources, such as vocational experts, when "an
individual has been found to have a limited ability in one or
more . . . basic work activities." Id.
In his RFC assessment, the ALJ determined that Crowe could
perform essentially the entire range of activities required for
sedentary work. Crowe was only limited with respect to repetitive
reaching above shoulder level; climbing ladders, ropes, or scaffolds; and
performing jobs requiring exposure to cold temperatures,
unprotected heights, or more-than-routine levels of stress. (Tr.
17). Under SSR 96-9p, the above restricted activities are not
required in, and do not significantly erode the occupational base
of, sedentary work. Therefore, contrary to Crowe's contention,
the ALJ did not need to call a vocational expert, and his
"failure" to do so was not erroneous.
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.