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Blackwood v. Commissioner of Social Security

June 23, 2008

JAMES BLACKWOOD, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff James Blackwood ("Blackwood") brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Blackwood moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Docket Nos. 8, 13. For the reasons which follow, the Commissioner's decision is affirmed.

I. Procedural History

On April 22, 2004, Blackwood filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 43-46.*fn1 That application was denied on November 9, 2004. T. 23-26. Blackwood requested a hearing before an administrative law judge ("ALJ"), which was held before ALJ Carl Stephan on February 1, 2006. T. 29, 222-39. In a decision dated July 21, 2006, the ALJ held that Blackwood was not entitled to disability benefits. T. 12-21. On August 1, 2006, Blackwood filed a request for review with the Appeals Council. T. 9. The Appeals Council denied Blackwood's request for review on February 15, 2007, thus making the ALJ's findings the final decision of the Commissioner. T. 3-6. This action followed.

II. Contentions

Blackwood contends that the ALJ erred when he failed to (a) credit properly his subjective complaints of pain, (b) consider properly the opinions of Blackwood's treating physicians, and (c) find that the record lacked substantial evidence to conclude that Blackwood had the residual function capacity ("RFC") to perform work which existed in significant numbers in the national economy. The Commissioner contends that there was substantial evidence to support the determination that Blackwood was not disabled.

III. Facts

Blackwood is currently forty-three years old and received a General Educational Development ("GED") diploma. T. 225, 227. Blackwood has worked as an automotive mechanic, production worker, and, most recently, a truck driver. T. 70-71. Blackwood alleges that he became disabled on September 13, 2002 from degenerative disc disease of the lumbar spine and from glaucoma. T. 12, 14.

IV. Standard of Review

A. Disability Criteria

"Every individual who is under a disability shall be entitled to a disability. . . benefit. . . ."

42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. -4 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] 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 [or her] 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 [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] 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). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).

"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." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a 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. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.

V. Discussion

A. Medical Evidence

1. Degenerative Disc Disease

Blackwood alleges that he became disabled on September 13, 2002 due to degenerative disc disease and glaucoma. T. 14. Blackwood underwent an MRI on November 20, 2002. T. 95-96. The MRI showed multiple disc bulges and protrusions. Id. The impression was that Blackwood had degenerative disc disease and that the bulging was causing displacement of his left S1 nerve root. T. 95.

On January 14, 2003, Blackwood began seeing Dr. James Greenspan concerning his back injury. T. 130-32. Dr. Greenspan's initial conclusions were that Blackwood was 100% disabled despite having no tenderness in his spinal regions, retaining good range of motion, and little pain. T. 131. At this point, surgery was not necessary, but physical therapy and steroid injections were recommended. T. 132. On March 29, 2003, Blackwood had an appointment with Dr. Leonard Gleman. T. 97. Dr. Gleman noted that Blackwood's pain was transient, though it intensified when he was moving about for any length of time. Id. Additionally, although Blackwood's straight-leg raises*fn2 showed discomfort, he was able to sit up and his power, tone, and sensation were all within normal limits. Id. Dr. Gelman diagnosed Blackwood with a back strain and also recommended physical therapy and other routine conservative methods with follow-up appointments as needed. Id.

On May 20, 2003, Blackwood was again examined by Dr. Greenspan. T. 127-28. Blackwood continued to suffer from lower back and left leg pain which Dr. Greenspan stated was "more likely than not related to a herniated disc . . . ." T. 127. Blackwood indicated that he did not want to pursue surgical intervention, so he was again recommended to undergo physical therapy and potential steroid injections. Id. The physical examination revealed that Blackwood had no back tenderness, there was no evidence of spasticity, focal, motor, or sensory changes, and his gait was normal. T. 127. Dr. Greenspan stated that, at this point, Blackwood was no more than 62 1/2 %, or moderate to marked, disabled. T. 128, 129. On August 12, 2003, Blackwood saw Dr. Greenspan again. T. 124-25. Blackwood's back and leg pain was still present and the current pain medication was not effectively alleviating his discomfort. T. 124. The physical examination again revealed no tenderness or motor or sensory changes although straight leg raises on the left were positive. Id. Blackwood was given a prescription for Vicoden and deemed 66 b% disabled. T. 126. A month later Blackwood saw Dr. Greenspan again. T. 121-22. Dr. Greenspan's notes indicated no changes in Blackwood's condition, with the exception that Blackwood was now experiencing mild tenderness over his spine. T. 121.

On October 16, 2003, Blackwood underwent an independent medical examination with Dr. Charles Kalman for his Workers' Compensation claim. T. 98. Dr. Kalman concluded that Blackwood was suffering from a temporary, moderate to marked, partial disability.*fn3 Id. A few weeks later Blackwood met with Dr. Greenspan. T. 118-19. Dr. Greenspan agreed that Blackwood was suffering from multilevel degenerative disc space changes and disc bulges but no significant herniations. T. 118. Additionally, Dr. Greenspan noted that Blackwood had a normal gait and that his physical examination was relatively unchanged except for a ...


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