United States District Court, S.D. New York
August 31, 2005.
WILLIAM BAEZ, Plaintiff,
JO ANNE BARNHART, COMMISSIOER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
Plaintiff William Baez brought this action seeking judicial
review of the finding of defendant Jo Anne Barhnart, Commissioner
of Social Security, that plaintiff is not disabled. Before the
Court are the parties' cross-motions for judgment on the
pleadings. For the reasons that follow, plaintiff's motion is
denied in its entirety and defendant's motion is granted.
The administrative record contains the following facts.
Plaintiff was born in the Dominican Republic in 1953. R. 25, 36.
He was 41 years old when he filed his applications for
Supplemental Security Income ("SSI") and Social Security
Disability ("SSD") benefits. R. 36. Previously, plaintiff had
been employed in the United States since 1977 as a parking
attendant, building superintendent, factory worker, forklift
operator, and taxi driver. R. 25, 26. In 1992 he ceased working
because of foot and ankle pain and diabetes. R. 88.
I. Administrative Proceedings
Plaintiff filed for SSI and SSD benefits on August 16, 1994. R.
36-39, 52-54. The applications were denied, as was plaintiff's
request for reconsideration. R. 40-51, 55-66. Plaintiff then
requested a hearing before an administrative law judge. R. 65.
Plaintiff was represented by counsel and testified at that first
hearing on October 3, 1995. R. 22-35. The ALJ issued a decision on October 23, 1995, finding that
plaintiff was not disabled. R. 12-16. The Appeals Council denied
plaintiff' request for review of that decision, R. 3-4, and
plaintiff commenced this action.
The parties stipulated, on May 21, 1997, to a remand of the
case to the Commissioner for further proceedings. R. 303-04. On
October 3, 1997, the Appeals Council vacated its prior action,
granted plaintiff's request for review, and remanded the case to
an ALJ, because of the failure of the ALJ to consider the timely
submitted report of a new treating physician, Dr. Roger Antoine.
The second hearing was held on January 9, 1998. R. 264.
Plaintiff, again represented by counsel, appeared and testified,
as did a medical expert, Dr. Plotz,*fn1 and a vocational
expert, Ms. Jonas. R. 264-302. The ALJ, in a decision dated March
28, 1998, found that Plaintiff was not disabled at any time
through that date. R. 255-61. The Appeals Council denied
plaintiff's request for review, and the ALJ's decision thus
became final. R. 212-13.
II. Claimant's Testimony and Work History
At various times, plaintiff described the physical requirements
that his jobs entailed. In his 1994 "Disability Report," plaintiff said the parking attendant job involved one
hour a day of walking, five hours a day of sitting, occasional
bending but no reaching, lifting, or carrying. R. 93. At the
January 1998 hearing, plaintiff reported that the parking
attendant job required standing all day except for one half-hour
when he was parking the car. R. 270. He also reported in 1994
that his job as building superintendent involved sweeping and
mopping the building, R. 92, but at the 1995 hearing, plaintiff
testified that he had a helper who did the cleaning. R. 26. At
the 1998 hearing, plaintiff said this job involved walking most
of the time and lifting only a light tool box weighing about five
pounds. R. 271.
At the 1995 hearing, plaintiff testified that he had no
problems using public transportation, still had a driver's
license, could walk a block or more without stopping, could stand
for two to three minutes and sit for one-half an hour. R. 25-26,
30-31. He could lift up to ten pounds. R. 31. At the 1998
hearing, however, plaintiff testified that he could not use
public transportation because he suffered from dizziness. R. 268.
He also testified that he took his diabetes medication and stuck
to his diet. R. 273. He took Motrin for his foot pain, which was
effective but upset his stomach. R. 273-74. Plaintiff testified
that he got dizzy when his blood sugar went up, and that his high
cholesterol made him sleepy. R. 276-77. He reported that he could walk half a block at a time, stand for two
to three minutes and sit for fifteen minutes; in an eight hour
day he could walk twenty-five minutes, stand ten or twelve
minutes and sit for almost twenty-five minutes. R. 275-76. He
added that he was afraid of dizziness from sitting for too long,
and that sitting caused his foot to hurt because of a circulation
problem. R. 279-80.
III. Medical Evidence
The first notation in the record of plaintiff' having been
treated for foot pain is dated March 22, 1994. R. 172. On that
date, plaintiff was seen at the Foot Clinics of New York for a
complaint of pain in his right ankle. R. 172. The examination
revealed ankle tenderness and edema, as well as scaling on the
plantar aspect. R. 179. An x-ray performed on the same date
revealed marked nonuniform narrowing in the ankle joint, and
neither traumatic arthritis nor Charcot ankle could be ruled out.
R. 179, 194. Plaintiff was given an air cast to wear daily. R.
On March 29, 1994, plaintiff reported chronic pain in the ankle
which he attributed to a sprain of the ankle a year earlier,
although there is no medical evidence in the record reflecting
such a sprain. R. 182. He reported that the air cast provided
some relief but the pain persisted. R. 182. The edema was gone,
but there was still tenderness, and the physician's impression was traumatic arthritis. R. 182. Physical therapy was
recommended. R. 182. On April 8, 1994, plaintiff was prescribed
Motrin 600. R. 185. A week later Plaintiff reported improvement
with the Motrin and the air cast, and stated that his diabetes
was well-controlled. R. 186. An opthalmological exam performed on
April 21, 1994, showed no signs of diabetic retinopathy. R. 189.
On April 29, 1994, plaintiff reported feeling much better and had
no redness or edema of the ankle. R. 188. He was told to continue
to wear the air cast and to avoid too much exercise. R. 188.
Plaintiff subsequently reported that the ankle "brace" was
helping to relieve the pain, but that the pain persisted on rainy
days. R. 190. He was diagnosed with athlete's foot at that time.
Beginning on June 24, 1994, plaintiff received his medical
treatment at the New York Medical Group through the Health
Insurance Plan of Greater New York ("HIP"). R. 131. On that date
plaintiff complained of foot pain. R. 131. He showed a deformity
of the ankle and walked with a painful gait. R. 131. On July 7,
1994, an orthopedic surgeon, Dr. Emmanuel, examined plaintiff.
Plaintiff reported pain in his ankle and inability to stand for
long periods. R. 130. An x-ray of the same date showed an old but
mended fracture but did not show any recent traumatic
abnormality. R. 122. On July 20, 1994, Plaintiff reported that
his ankle had been painful for two or three months. R. 121. On July 27, 1994, Dr. Emmanuel wrote a letter for
plaintiff stating that plaintiff was "being followed" for pain in
the right ankle, and was tender on palpation of the ankle with
valgus deformity. R. 119. Dr. Emmanuel noted that plaintiff was
unable to do work that requires prolonged standing or walking. R.
On August 8, 1994, Dr. Itzkovitz reported that plaintiff was
being treated for insulin-dependent diabetes mellitus. R. 118.
However, plaintiff was feeling "O.K." on that date even though he
was not checking his glucose levels nor was he taking his
cholesterol medication. R. 126. On November 14, 1994, plaintiff
asked for sleeping pills, had stopped taking his oral diabetes
medication, and reported chronic discomfort in the lower left
quadrant. R. 128.
Some seven months later, on June 19, 1995, plaintiff visited
the facility again. In the interim, he was a "no show" for two
appointments with a nutritionist. R. 125-26.
Meanwhile, on November 21, 1994, plaintiff was examined by a
consulting physician, Dr. Graham. R. 140-49. Plaintiff reported a
one-year history of liver disease for which he took no
medication; a two-year history of pain in the right ankle for
which Motrin provided some relief and a seven-year history of
diabetes for which he took insulin. R. 140. He reported a
constant throbbing pain in the ankle but denied any problem walking, except the occasional use of a cane. R. 140. He also
reported blurry vision and numbness and paresthesia in the
fingers and toes. R. 140.
On examination, plaintiff's uncorrected visual acuity was 20/50
in each eye; he stood and walked normally and had no difficulty
dressing or getting on or off the examination table; he had a
full range of motion of all the joints without any pain, swelling
or redness; there was no evidence of muscle wasting; he was
unable to stand on his toes due to ankle pain, but he was able to
perform a full squat. R. 141-42. An x-ray of the right ankle
revealed mild degenerative changes and some evidence consistent
with old post-traumatic changes. R. 146.
Dr. Graham's assessment was liver disease by history with no
clinical evidence of disease, joint pains by history with no
swelling or tenderness and no functional deficit; and diabetes
mellitus by history with no evidence of diabetic retinopathy. R.
142. Dr. Graham identified no limitations on plaintiff's ability
to perform such functions as sitting, standing, walking, lifting
and carrying. R. 143.
Also during this period, two state agency physicians reviewed
the medical evidence in the file and offered their assessments of
plaintiff's ability to perform basic work activities. R. 102-17.
Each of these physicians reported that plaintiff was able to lift
twenty-five pounds frequently and fifty pounds occasionally, stand or walk for about six hours in
an eight-hour day and sit for about six hours in a day. R. 103,
111. Finally, on May 4, 1995, Dr. Emmanuel completed a form for
plaintiff's attorneys on which she reiterated that plaintiff was
not able to do prolonged standing or walking. R. 171.
When plaintiff returned to HIP on June 19, 1995, his only
complaint was of a sore throat. R. 346. On subsequent visits,
plaintiff reported pain in the chest and a tooth. R. 345. On
September 22, 1995, Dr. Itzkovitz reported that plaintiff
continued to wear the brace on his right leg, he was compliant
with his medications and his glucose level was within the normal
range. R. 344.
An October 11, 1995, entry by Dr. Antoine noted that plaintiff
was status post fracture of the right ankle and was diabetic. R.
344. It is not clear whether these statements were based on a
review of plaintiff's records or on an actual examination of
plaintiff. R. 344. Also on that date, Dr. Antoine completed a
form for plaintiff's attorneys. R. 311-12. He indicated that in
an eight-hour day, plaintiff could sit and stand or walk for a
total of zero to one hour each; he could occasionally lift up to
five pounds. R. 311.
Dr. Antoine did see plaintiff on October 18, 1995. R. 343. At
that time plaintiff complained of pain, stiffness and giving way
of the right ankle. R. 343. Plaintiff was wearing the air splint and was taking 400 milligrams of Motrin twice a day. R.
343. On a form completed for plaintiff's attorney on that date,
Dr. Antoine stated that plaintiff was taking 800 milligrams of
Motrin twice a day; he was unable to perform any full time work
because he could not stand for long periods of time; and he had
been disabled since 1991. R. 309.
Plaintiff returned for follow-up visits for his diabetes in
April, May, and June, 1996. R. 339-41. He was not adhering to the
prescribed dosage of insulin; he was not keeping good records;
and he was again a "no show" for an appointment with a
nutritionist. R. 339.
In December 1996, plaintiff said that he was taking the insulin
as prescribed and his blood tests were good. R. 335. In January
1997, plaintiff reported fainting in the street when his blood
sugar level was elevated. R. 334.
On June 13, 1997, Dr. Itzkovitz reported that plaintiff was not
checking his sugar levels as directed and he failed to produce
his diary. R. 333. On June 16, 1997, Dr. Antoine reported that
plaintiff continued to wear the air splint and he was walking
with a cane. R. 376. On that same date, Dr. Antoine repeated his
earlier assessment that plaintiff could not sit, stand or walk
for more than an hour a day and could lift up to five pounds only
occasionally. R. 328. Two weeks later, Dr. Antoine advised
plaintiff's attorney that plaintiff was taking Motrin and wearing his air splint. R. 327. He stated that
plaintiff was unable to stand or walk for prolonged periods. R.
A July 1997 note reported that plaintiff's diabetes was
difficult to control but his blood sugar levels were getting
better. R. 331. In the following month plaintiff admitted that he
had not been taking his insulin. R. 330. On January 28, 1998, Dr.
Antoine stated, purportedly on behalf of Dr. Itzkovitz, that
plaintiff had been unable to work since June 18, 1993. R. 403. On
an undated report, Dr. Itzkovitz herself reported that she had
first seen plaintiff in June 1994. R. 398.
Dr. Plotz reviewed the evidence in the record and appeared at
the January 9, 1998 hearing. R. 281. He testified the plaintiff
had insulin dependent diabetes that was slightly brittle*fn2
but had not produced any complications. R. 281. Dr. Plotz
explained that lowered, rather than elevated, blood sugar causes
dizziness, and that elevated cholesterol does not produce the
symptoms that plaintiff described. R. 281. Dr. Plotz noted that
plaintiff reported that the pain in his ankle began in April or
May of 1994, and that there was no evidence of any significant
swelling. R. 282. Contrary to plaintiff's claim that a problem
with his circulation caused pain in the ankle when he sat for too
long, R. 280, Dr. Plotz testified that there was no medical evidence of a circulation problem, nor was there any reason for
plaintiff to have to elevate his foot. R. 282. He noted that
plaintiff had "[n]ormal motion of the right ankle." R. 282.
In Dr. Plotz's opinion, based on the medical record, plaintiff
should be able to stand and walk for six hours in an eight-hour
day, sit for eight hours and lift and carry twenty-five pounds.
R. 284. There were no other limitations imposed by plaintiff's
medically determinable impairments. R. 284. Dr. Plotz
acknowledged that the record contained more restrictive
assessments by plaintiff's treating sources, but in his opinion
those assessments are "kind of absurd." R. 284. Specifically, he
stated that the medical record contains "absolutely no basis" for
Dr. Antoine's assessment that plaintiff could not sit, stand or
walk for more than one hour or carry more than five pounds. R.
285. Nor did Dr. Plotz believe that plaintiff's medically
determinable impairments could reasonably be expected to produce
the symptoms that plaintiff alleged. R. 285.
IV. Vocational Evidence
Ms. Jonas,*fn3 at the January 1998 hearing, testified that
plaintiff's job as a parking attendant is considered light and
unskilled work. R. 297-98. While the job of building
superintendent usually involves medium exertion, as plaintiff
described his performance of that job it involved only light exertion. R. 299. Ms. Jonas testified that a hypothetical
individual who was able to perform the activities described by
Dr. Plotz, i.e., standing or walking for six hours, sitting for
eight hours and lifting twenty-five pounds, would be able to
perform both of these jobs. R. 299. If such an individual was
required to use a cane for prolonged walking, Ms. Jonas
testified, he would not be able to perform either of plaintiff's
past jobs. R. 299. Such an individual, however, would be able to
perform a number of sedentary jobs that exist in significant
numbers in the national economy. R. 299-301. Finally, if a
hypothetical individual had either all the functional limitations
described by plaintiff at that hearing, or the restrictions
identified in the record by Dr. Antoine, Ms. Jonas testified,
such an individual would be unable to perform any jobs that exist
in the national economy. R. 301.
I. Standard of Review
Under 42 U.S.C. § 405(g), the Commissioner's findings as to
disability shall be conclusive if supported by substantial
evidence. Substantial evidence is "more than a mere scintilla,"
it is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971) (internal quotation and citation
omitted); Blaylock-Taylor v. Barnhart, No. 03 Civ. 3437 (JGK),
2005 WL 1337928 at *6 (S.D.N.Y. June 6, 2005). "A court may set aside a
determination by the Commissioner only if it is based on legal
error or is not supported by substantial evidence in the record."
Blaylock-Taylor, 2005 WL 1337928 at *6 (citations omitted).
Even if a court's independent analysis of the record would differ
from the Commissioner's, the Commissioner's decision, when
supported by substantial evidence, stands. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
II. Disability Defined
The Social Security Act defines "disability" as the "inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . which
has lasted . . . not less than 12 months."
42 U.S.C. § 423(d)(1)(A). The impairment must be "demonstrable by medically
acceptable clinical and laboratory diagnostic techniques."
42 U.S.C. § 423 (d)(3). In addition, the impairment must be "of such
severity that [claimant] is not only unable to do his previous
work but cannot . . . engage in any other kind of substantial
gainful work which exists in the national economy."
42 U.S.C. § 423(d)(2)(A).
The Social Security Administration's regulations establish a
five-step inquiry by which the Commissioner determines whether a
claimant meets this definition. Schaal V. Apfel, 134 F.3d 496,
501 (2d Cir. 1998); Blaylock-Taylor, 2005 WL 1337928 at *6. The Court of Appeals for the Second Circuit has summarized the method
of conducting the five-step inquiry as follows:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to
perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464
, 467 (2d Cir. 1982); see
Blaylock-Taylor, 2005 WL 1337928 at *6-7 (quoting Shaw v.
Chater, 221 F.3d 126
, 132 (2d Cir. 2000)).
At steps one through four of the above analysis, the burden of
proof is on the claimant; if claimant satisfies this burden of
proof through step four, then at step five the burden of proof
shifts to the Commissioner. Blaylock-Taylor, 2005 WL 1337928 at
*7 (citing cases and statutes). In considering the above five
steps, the Commissioner may look to objective medical facts and
clinical findings; diagnoses or opinions based on such facts; subjective evidence of pain or disability testified to by
claimant or others; and claimant's age, educational background,
and work history. Rodriguez v. Barnhart, No. 03 Civ. 7272
(RWS), 2004 WL 1970141 at *10 (S.D.N.Y. Aug. 23, 2004) (citing
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999)). Of these four
factors, two are of particular relevance to the matter before the
Court. First, under 20 C.F.R. § 404.1527(d), the weight to be
accorded to a medical opinion varies based on the source of the
opinion and the support for that opinion in the record.
Generally, a treating physician's opinion gets more weight than
the opinion of a non-treating physician if the treating
physician's opinion is well-supported and not inconsistent with
other substantial evidence in the record. 20 C.F.R. § 404.1527(d)
(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
"When other substantial evidence in the record conflicts with the
treating physician's opinion, however, that opinion will not be
deemed controlling. And the less consistent that opinion is with
the record as a whole, the less weight it will be given."
Snell, 177 F.3d at 133. When the Commissioner does not give
controlling weight to the opinion of a treating physician, he or
she must explain why controlling weight was not given.
20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons in our notice
of determination or decision for the weight we give your treating
source's opinion."); see Snell, 177 F.3d at 133. Second, under 42 U.S.C. § 423(d) (5) (A), a claimant's report
of pain or other symptoms will not be sufficient to establish
disability in the absence of medical findings of an impairment
that could reasonably be expected to produce the pain alleged.
See also 20 C.F.R. § 404.1529(a); Snell, 177 F.3d at 135.
Only after a claimant establishes an underlying physical
impairment that could reasonably be expected to produce the
claimant's symptoms must the adjudicator assess the claimant's
credibility by evaluating additional factors to "determine the
extent to which the symptoms limit the individual's ability to do
basic work activities." Social Security Ruling 96-7p, 1996 WL
374186 (S.S.A. July 2, 1996).
At the end of the day, the ALJ must weigh all evidence and make
his or her own determination of disability. The Commissioner must
resolve genuine conflicts in the medical evidence, see Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), and it is "up to
the agency . . . to weigh the conflicting evidence." Clark v.
Comm'r, 143 F.3d 115, 118 (2d Cir. 1998).
The ALJ denied plaintiff' application for benefits at step four
of the five-step analysis outlined above. At that point, the
burden was on plaintiff to demonstrate inability to do his past
relevant work, i.e., as a parking attendant or building
superintendent. The ALJ found that plaintiff could perform the activities required, based on the testimony of Dr. Plotz and the
medical reports in the record. This Court finds that the ALJ
applied the correct legal standards in making his determination,
and that substantial evidence supports the ALJ's ruling.*fn4
The ALJ properly relied on the medical evidence to support his
finding that plaintiff is not disabled. First, the testimony of
Dr. Plotz, the medical expert, emphasized that there was no
medical evidence for the limitations that plaintiff alleged.
Based on his reading of the medical record, Dr. Plotz assessed
plaintiff's limitations as being much less severe than had Drs.
Emmanuel and Antoine. In fact, Dr. Plotz considered those more
limiting assessments "kind of absurd." R. 284.
Second, the administrative record included Dr. Graham's
evaluation of plaintiff, as well as the reports of two
non-examining consultants. Dr. Graham's examination of plaintiff
revealed full range of motion in all joints, no pain or swelling,
a normal walk (and plaintiff even denied difficulty in walking at
this exam), x-ray findings of only mild degenerative changes to
the ankle, and no functional deficit of the ankle. The two medical consultants, who also reviewed the evidence in the
record, both opined that plaintiff could stand or walk for six
hours, could sit for six hours, and could carry up to twenty-five
Plaintiff puts great importance on the opinions of Drs.
Emmanuel and Antoine, who both opined that plaintiff is totally
disabled and incapable of performing any work. Plaintiff urges
that Drs. Emmanuel and Antoine are treating physicians, and that
their opinions should therefore be accorded controlling weight.
This argument fails. While plaintiff may have visited Drs.
Emmanuel and Antoine as treating physicians rather than as
consulting physicians, he saw neither doctor enough Dr.
Emmanuel only once and Dr. Antoine three times to require that
their opinions override the substantial contradictory medical
evidence. Moreover, the medical evidence revealed at the visits
to those two physicians does nothing to advance plaintiff's
claim. An x-ray on the same date as plaintiff's visit to Dr.
Emmanuel showed no evidence of recent trauma to the ankle. Dr.
Antoine's only actual medical findings were limitation on range
of motion, status post ankle fracture and traumatic arthritis.
However, both doctors made assessments based on those findings
that contradicted all the other assessments in the record. Under
these circumstances, the relevant laws and regulations did not
require the ALJ to give special weight to the opinions of Drs. Emmanuel and Antoine, or to give less weight to the opinions of
the non-treating physicians whose opinions were well-supported
with medical evidence.
The ALJ also properly determined that plaintiff's testimony was
not credible based on the evidence before him. As required by the
regulations, the ALJ gave more than a conclusory statement that
he found plaintiff' testimony less than credible. The ALJ noted
that plaintiff's testimony as to his pain and other symptoms and
limitations was not supported by the medical evidence: No
medically determinable impairments existed that could reasonably
be expected to produce the symptoms plaintiff alleged. The record
also discloses inconsistencies in plaintiff's testimony which are
material. See supra pp. 2-4.
The record provides substantial evidence to support the ALJ's
findings, and the ALJ committed no legal error in his evaluation
of the evidence. The motion of the claimant is denied and the
Commissioner's motion is granted. CONCLUSION
For the reasons given above, plaintiff's motion is denied and
the Commissioner's cross-motion for judgment on the pleadings is
granted. The Court closes the case and orders its removal from
the active docket.
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