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United States District Court, N.D. New York

July 20, 2004.

DIANE M. CROWE, Plaintiff,

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


I. Introduction

  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 Commissioner's decision.

  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 Commissioner responded.

  III. Contentions

  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.

  IV. Facts

  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.

  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). 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)*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), 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 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 notations alone.

  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.

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