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Malark v. Barnhart

April 22, 2008

LAURIE A. MALARK, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff Laurie A. Malark challenges an Administrative Law Judge's ("ALJ") determination that she is not entitled to disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges she has been disabled since December 11, 2000, because of pain and limitations from a back condition and from anxiety attacks. Plaintiff met the disability insured status requirements of the Act at all times pertinent to this claim.

Procedural History

2. Plaintiff filed an application for DIB on February 6, 2004. Her application was denied initially and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ. See 65 Fed. Reg. 81553 (Dec. 26, 2000). Pursuant to Plaintiff's request, an administrative hearing was held via video teleconference on March 1, 2006, before ALJ Thomas P. Zolezzi, at which time Plaintiff and her attorney appeared. A vocational expert also appeared and testified at the hearing. The ALJ considered the case de novo, and on March 31, 2006, issued a decision finding that Plaintiff was not disabled. On May 23, 2006, the Appeals Council denied Plaintiff's request for review.

3. On June 7, 2006, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant DIB benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on September 13, 2006, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted Plaintiff's Brief in support of Plaintiff's request for review of the ALJ's unfavorable determination of employment disability on November 30, 2006. On January 11, 2007, Defendant filed a Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.

Discussion

Legal Standard and Scope of Review

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged 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 active-ties. If the claimant has 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) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff met the insured status requirements of the Social Security Act through December 31, 2005 (R. at 20);*fn3 (2) Plaintiff has not engaged in substantial gainful activity at any time relevant to this decision (20 C.F.R. 404.1520(b) and 404.1572 et. seq) (R. at 20); (3) Plaintiff has been found to have a severe mental and musculoskeletal impairment (20 C.F.R. § 404.1520(c)) (R. at 20); (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526) (R. at 21); (5) After careful consideration of the entire record, the ALJ found Plaintiff has the residual functional capacity to perform a wide range of sedentary work activity. More specifically, Plaintiff is capable of lifting no more than ten pounds at a time and occasionally lifting of carrying articles like docket files, ledgers, and small tools. Plaintiff has the ability to walk and stand for a total of two hours in an eight-hour day and is able to sit for at least six hours in an eight-hour workday. However, Plaintiff requires the ability to change her position as needed using a sit/stand option. She is able to sit for 20-30 minutes at a time and stand and walk for approximately ten to fifteen minutes at a time. She should perform little or no bending, kneeling, or squatting and can only occasionally, but not frequently, perform repetitive movements with her hands. Although Plaintiff has been found to have a severe mental impairment, she is able to meet the basic mental demands of work activity (R. at 21); (6) Plaintiff is unable to perform any past relevant work (R. at 25); (7) Plaintiff was born on October 4, 1961 and was 39 years old on the alleged disability onset date, which is defined as a younger individual age 18-44 (20 C.F.R 404.1563) (R. at 25); (8) Plaintiff has at least a high school education and is able to communicate in English (20 C.F.R. 404.1564) (R. at 25); (9) Transferability of job skills is not material to the determination of disability due to the Plaintiff's age (20 C.F.R. 404.1568) (R. at 26); (10) Considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 C.F.R. 404.1560(c) and 404.1566) (R. at 26); (11) Plaintiff has not been under a "disability," as defined in the Social Security Act, from December 11, 2000 through the date of the ALJ's decision (20 C.F.R. 404.1520(g)) (R. at 27). Ultimately, the ALJ determined Plaintiff was not entitled to a period of disability and disability insurance benefits as set forth in sections 216(i) and 223(d) of the Social Security Act (R. at 27).

Plaintiff's Allegations

The ALJ Improperly Rejected the Treating Physician's Opinions

10. Plaintiff's first challenge to the ALJ's decision is that he rejected the medical evidence provided by the physician who has treated Plaintiff since June 2004, and relied instead on reports and opinions of the disability insurance carrier's doctors and other non-treating sources. Plaintiff argues the ALJ's decision was not supported by the substantial evidence of record.

According to the "treating physician's rule,"*fn4 the ALJ must give controlling weight to the treating physician's opinion when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. See de Roman, 2003 WL 21511160, at *9 (citing C.F.R. § 404.1527(d)(2); see also Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Having reviewed the evidence at issue, this Court detects no reversible error in the ALJ's treatment of the opinion of Plaintiff's treating physician, Dr. James Cole. Rather, the ALJ's decision reflects his extensive evaluation of all the medical evidence in the record developed from the date of Plaintiff's alleged disability on December 11, 2000, through the date of her hearing before the ALJ on March 1, 2006 (R. 20-25). The medical evidence includes treatment notes, evaluations of Plaintiff's progress, and test results (R. at 109-304). The opinion of Dr. Cole was inconsistent and unsupported by the record as a whole.

Plaintiff was injured in a fall on September 28, 2000, while working as a nurse at (R. at 109). She was treated at Albany Memorial Hospital on an emergency basis, and then followed up with her regular physician, Dr. Natarajan Ravi. Id. On November 20, 2000, Plaintiff was examined by an orthopedic surgeon, Dr. Donald Cally, at the request of her employer's disability insurance carrier, Liberty Mutual Insurance Company. Id. Plaintiff complained of intermittent pain and discomfort localized to the right side of her lower back (R. at 110). Physical examination revealed that Plaintiff was in no apparent distress. Id. Dr. Cally noted she had normal station and gait, and was able to heel-toe and tandem walk. Id. While Plaintiff had mild discomfort to palpation over the paraspinal muscles on her right side, the rest of her physical, motor, and sensory examination was normal. Id. Dr. Cally's impression was that Plaintiff had non-specific axial low back pain. Id. Because Plaintiff was pregnant at the time, the doctor recommended physical therapy and an at-home program of strengthening and stretching, but no medication. Id. He opined Plaintiff had a temporary mild to moderate partial disability, and recommended Plaintiff work in a light or modified duty position only two days per week (R. at 111).

Plaintiff was examined by consulting physicianDr. Sangbok Kim on January 5, 2001 (R. at 112-13). Dr. Kim noted Plaintiff walked slowly with a stiff posture (R. at 112). Upon examination, the doctor observed moderate tenderness at Plaintiff's lower lumbar and upper sacral paraspinal area and decreased back motility. Id. However, Dr. Kim also noted Plaintiff's range of motion of hips, knees, and ankles were within normal limits and without pain, and muscle strength and sensory examinations in Plaintiff's lower extremities were within normal limits. Id. Dr. Kim's impression was that Plaintiff had low back strain because of her work-related injury. Id. Because Plaintiff was pregnant, Dr. Kim recommended Tylenol, gentle exercise, and moist heat applied to Plaintiff's lower back (R. at 113). Dr. Kim opined Plaintiff was "totally disabled for her job" and that "her pregnancy is partly responsible (50%) for her total disability." Id.

On January 15, 2001, Plaintiff was examined by orthopedic physician, Dr. Joseph Fay, at the request of her primary care physician, Dr. Ravi (R. at 115-116). Dr. Fay noted Plaintiff had a lot of paralumbar muscle spasm, but her strength and reflexes were good, and her sensory exam was normal (R. at 115). Dr. Fay opined Plaintiff had severe back strain and contusion. Id.

Plaintiff was examined again by Dr. Fay on June 7, 2001 (R. at 115). The doctor noted "she had her babies. She had twins" and that Plaintiff still had paralumbar muscle spasm and pain. Id. Dr. Fay reviewed Plaintiff's x-rays and noted "these show spina bifida occulta at L5 but otherwise things look reasonably good."*fn5 Id.

On July 18, 2001, Plaintiff was examined by consulting physicianDr. James Nelson (R. at 126-128). Dr. Nelson reported Plaintiff complained of back pain that did not subside after the delivery of her twin daughters (R. at 127). Upon examination, the doctor noted Plaintiff was tender to palpation over the paravertebral musculature on either side of the midline of the lower lumbar region, and complained of pain with flexing forward, bending laterally, and with trunk rotation. Id. Plaintiff had a positive straight leg raising test on the right side, but not on the left side (R. at 128). Dr. Nelson found no neurologic deficits, and no evidence of gross motor weakness. His impression was chronic muscular and ligamentous lumbar strain. Id. The doctor opined Plaintiff had a moderate, temporary, and partial disability, and recommended treatment of vigorous physical therapy and weight loss. Id.

Plaintiff was examined by Dr. Fay again on August 16, 2001, at which time the doctor reviewed Plaintiff's recent x-rays (R. at 116). The doctor observed the x-rays showed bilateral spondylolysis of the pars interarticularis at L5, but no spondylolisthesis.*fn6 Id. Dr. Fay recommended Plaintiff do exercises to strengthen her abdominal muscles. Id.

On September 28, 2001, Plaintiff again complained of back pain to Dr. Fay (R. at 116). Dr. Fay noted, "I am going to send her to pain management because there is nothing else I know of to make her any better." Id.

At the request of Plaintiff's treating physician, Dr. Ravi, she was examined by consultingorthopedic surgeon, Dr. Alan Moskowitz, on October 26, 2001 (R. at 117-118). Dr. Moskowitz observed Plaintiff's range of motion in her spine was significantly reduced (R. at 117). He noted, however, that Plaintiff's pain came from extending after being flexed. Id. Plaintiff's neurological examination was normal. Id. Sitting and supine straight leg raising were 80 degrees bilaterally. Id. Palpation of Plaintiff's lumbar region revealed tenderness. Id. Dr. Moskowitz obtained supine AP, lateral, and oblique views of Plaintiff's lumbosacral spine, as well as extension x-rays and a Ferguson film (R. at 118). The AP x-ray showed five non-rib bearing vertebrae with the ...


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