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Swayze v. Barnhart

July 3, 2008

JOYCE M. SWAYZE, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff Joyce M. Swayze 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 September 1, 1999, because of pain and limitations from carpal tunnel syndrome in her left and right wrists, right elbow pain, left ankle pain, heartbeat irregularity, hemochromotosis, and chronic otitis media. 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 September 22, 2003. 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 on September 9, 2004, before ALJ Alfred R. Tyminski, at which time Plaintiff, her husband, and her attorney appeared. The ALJ considered the case de novo, and on December 23, 2004, issued a decision finding that Plaintiff was not disabled. On March 24, 2005, the Appeals Council denied Plaintiff's request for review.

3. On April 12, 2005, 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 July 19, 2005, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Points and Authorities In Support of Plaintiff's Request for Review of Administrative Law Judge's Unfavorable Determination of Employment Disability (hereinafter called "Plaintiff's Brief") on August 1, 2005. On September 13, 2005, Defendant filed a Defendant's Brief in Opposition to Plaintiff's Motion and 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 meets the non-disability requirements for a period of disability And Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of the decision (R. at 19);*fn3 (2) Plaintiff has not engaged in substantial gainful activity since her retirement on September 1, 1999 (R. at 19); (3) Plaintiff's history of tacychardia, history of left ankle ligament repair, and history of carpal tunnel release are considered "severe" based on the requirements in the Regulations 20 C.F.R. § 404.1520(c) (R. at 20); (4) Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 (R. at 20); (5) Plaintiff's allegations regarding her limitations are not entirelycredible (R. at 20); (6) Plaintiff has the residual functional capacity for a full range of at least sedentary work activity. Plaintiff is capable of lifting and/or carrying 10 pounds occasionally, five pounds frequently, standing and/or walking at least two hours in an eight-hour workday, sitting about six hours in an eight-hour workday, with unlimited pushing/pulling as shown for lifting and carrying (R. at 20); (7) Plaintiff's past relevant work as a medical fee clerk in an insurance field did not require the performance of work-related activities precluded by her residual functional capacity (20 C.F.R. § 404.1565) (R. at 20); (8) Plaintiff was not prevented from performing her past relevant work, since the asserted onset date, by any impairment(s) lasting 12 continuous months (R. at 20); and (9) Plaintiff was not under a "disability," as defined in the Social Security Act, at any time through the date of the ALJ's decision (20 C.F.R. 404.1520(f)) (R. at 20). 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 20).

Plaintiff's Allegations

The ALJ Failed to Give Adequate Consideration to the Disability Determination Provided by Plaintiff's Treating Physicians:

10. Plaintiff's first challenge to the ALJ's decision is that he did not give adequate consideration to the medical evidence, and the disability determination, provided by Plaintiff's treating physicians, Doctors Short and Polkowski, and instead substituted his own lay opinion for competent medical evidence*fn4 . See Plaintiff's Brief, pp. 6-8. Thus, Plaintiff asserts the ALJ's determination that she retained the residual functional capacity to perform a full range of sedentary work is not based on the substantial evidence of record. See Plaintiff's Brief, pp. 8-10.

According to the "treating physician's rule,"*fn5 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 physicians, Doctors Short and Polkowski, as well as the opinion of treating physician Dr. Battaglia. 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 September 1, 1999, through the date of the ALJ's decision on December 23, 2004 (R. at 13-20). The medical evidence includes treatment notes, evaluations of Plaintiff's progress, and test results (R. at 96-485). The opinions of Doctors Short, Polkowski, and Battaglia were inconsistent and unsupported by the record as a whole.

Plaintiff's medical record documents that she suffers from ailments that the ALJ determined to be severe, but not disabling, either alone or in combination (R. at 14-20). From March 1974, until August 2003, Plaintiff was treated for chronic otitis media in her left and right ears (R. at 96-141). On August 7, 2003, her treating physician, Dr. F. Sean Hodge, noted Plaintiff's chronic otitis media appeared stable (R. at 122).

Plaintiff was examined by treating physician, Dr. Walter Short, on May 6, 1993, when she complained of pain, numbness, and paresthesias in both hands (R. at 248). Dr. Short noted Plaintiff had undergone nerve conduction studies in January 1993, that revealed minimal carpal tunnel syndrome in the right wrist and normal results in the left wrist. Id. Upon physical examination, Plaintiff had full range of motion in both wrists. Id. She had a positive Phalen's sign and a negative Tinel's sign bilaterally*fn6 . Dr. Short noted Plaintiff had normal motor function bilaterally. Id. In spite of the limited results obtained form Plaintiff's nerve conduction studies, the doctor diagnosed Plaintiff with carpal tunnel syndrome bilaterally, and offered her several treatment options. Id. Plaintiff elected endoscopic carpal tunnel release over more conservative forms of treatment. Id.

Plaintiff underwent endoscopic carpal tunnel release on her right and left wrists on September 7, 1993, and October 19, 1993, respectively (R. at 250-252). At a follow up visit with Dr. Short on November 23, 1993, Plaintiff claimed she was free from the pain and symptoms of carpal tunnel syndrome, and the doctor released her to return to her employment as a medical records clerk the following week (R. at 253).

On May 3, 1994, Plaintiff was treated by Dr. Short after she tripped and fell at work, injuring her right elbow (R. at 254, 265). Upon physical examination, the doctor noted Plaintiff had full range of motion of the elbow, with no effusion in the area of the injury. Id. She had a negative Tinel's sign at the ulnar nerve, and radiology studies of the elbow revealed normal results.

Id. Dr. Short's impression was that Plaintiff had a resolving contusion of the right elbow. Id.

Dr. Short examined Plaintiff again on March 1, 1995, when she complained of continuing pain in her right elbow, and numbness and paresthesias in the ulnar two digits of her right hand (R. at 255). Upon physical examination, Plaintiff had full range of motion of the right elbow, with positive Tinel's sign over the ulnar nerve. Id. The doctor noted Plaintiff had mild medial epicondylar pain. Id. Dr. Short recommended Plaintiff undergo nerve conduction studies to determine if she had ulnar nerve compression at the right elbow. Id. The doctor also performed Plaintiff's final evaluation following her bilateral endoscopic carpal tunnel release surgeries. Id. Dr. Short observed Plaintiff's incisions had healed and she had full range of motion of the digits of both hands. Id. Plaintiff had dorsiflexion and volar flexion of 55 degrees at the wrists. Id. The doctor noted Plaintiff complained of intermittent symptoms in both hands, especially after typing, and suggested Plaintiff should not type more than four hours per day. Id. Dr. Short opined Plaintiff had a permanent partial impairment to both hands. Id.

On March 27, 1995, Plaintiff was admitted to Crouse Irving Memorial Hospital with complaints of right flank pain, accompanied by a fever and nausea (R. at 397-398). Other than fever, Plaintiff's physical examination was normal (R. at 397). Blood, urine, and other laboratory tests were normal. Id. A renal scan and an ultrasound of Plaintiff's gallbladder were unremarkable (R. at 397-398). Plaintiff was diagnosed with pyelonephritis*fn7 and given antibiotic therapy (R. at 398). She was discharged from the hospital with prescriptions for oral antibiotics and pain medication on March 31, 1995. Id.

On April 12, 1995, April 21, 1995, May 3, 1995, Plaintiff followed up with consulting physician, Dr. Joel Bass, after her hospitalization (R. at 399, 401, 406-407). Dr. Bass noted Plaintiff's physical examinations were unremarkable, and stated he was unsure about the etiology of Plaintiff's complaints about pain under her lower right rib in the area if her kidney (R. at 401). Additional renal scans on May 9, 1995, and on May 16, 1995, were normal, with no evidence of obstructive uropathy (R. at 395, 396).

On July 12, 1995, Plaintiff was examined by Dr. Short after undergoing a nerve conduction study of her right elbow (R. at 255). The study showed no evidence of compression of the median nerve, and a slight decrease in the sensory action potential for the ulnar nerve. Id. The doctor advised Plaintiff not to lean on her right elbow, or rest the medial side of her arm against objects. Id.

Plaintiff was examined by Dr. Short on October 4, 1995, when she complained of paresthesias in her right ulnar nerve (R. at 256). The doctor opined Plaintiff had right ulnar nerve entrapment and limited her to using a computer for no longer than five hours each day. Id. Dr. Short advised Plaintiff that if she needed to use a computer for longer than five hours in a workday, she should take frequent breaks. Id.

On November 11, 1995, Plaintiff was examined by treating physician, Dr. Patrick Scerpella, when she complained of left ankle instability resulting from a sprain in March 1994 (R. at 143-144). During physical examination of the ankle, the doctor noted some tenderness and weakness, along with a positive Tinel's sign at the level of the ankle joint with radiation distally into the medial dorsal forefoot (R. at 143). An x-ray of Plaintiff's ankle was normal, and revealed no degenerative changes (R. at 144). However, an MRI showed mild degenerative changes in the bony tarsus, but was otherwise unremarkable (R. at 161). Dr. Scerpella diagnosed left ankle instability and recommended Plaintiff wear an ankle brace and engage in physical therapy. Id.

Plaintiff followed up with Dr. Scerpella on December 28, 1995, and reported that she did not think physical therapy exercises on her left ankle were helping to improve the stability of the ankle (R. at 145). The doctor recommended ...


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