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Warner v. Barnhart

September 11, 2008




1. Plaintiff Wayne C. Warner challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since October 9, 1995, because of neck pain with severe headaches, chronic back pain, arthritis in his left knee, and fatigue. 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 July 22, 2004. His 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 July 18, 2005, before ALJ Lawrence E. Shearer, at which time Plaintiff, his attorney, and a vocational expert appeared. The ALJ considered the case de novo, and on September 8, 2005, issued a decision finding that Plaintiff was not disabled. On January 5, 2006, the Appeals Council denied Plaintiff's request for review.

3. On March 2, 2006, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court to 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 June 13, 2006, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law (hereinafter called "Plaintiff's Brief") on September 14, 2006. On October 25, 2006, 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.


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 last met the insured status requirements for a period of disability and disability insurance benefits set forth in section 216(i) of the Social Security Act on June 30, 2001 (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)) (R. at 20); (3) Through the date last insured, Plaintiff had the following severe impairment: disorders of the back (20 C.F.R. § 404.1520(c)) (R. at 21); (4) Through the date last insured, Plaintiff did not have an impairment or combination impairments that met or medically equaled one of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1, Regulations No. 4 (20 C.F.R. § 404.1520(d)) (R. at 21); (5) Upon careful consideration of the entire record, the ALJ found that, at least through the date insured, Plaintiff had the residual functional capacity (RFC) to perform a limited range of light work. Specifically, Plaintiff was able to lift or carry 10 pounds frequently, 20 pounds occasionally; sit, stand, or walk about 6 hours each in an 8 hour day for up to 45 minute intervals, perform occasional bending, stooping and climbing, and never perform crouching or squatting. Plaintiff does not have any mental impairments that would preclude performing unskilled to skilled work, is able to interact successfully, and is able to maintain a regular work schedule (R. at 23); (6) Through the date last insured, Plaintiff was unable to perform past relevant work (20 C.F.R. § 404.1565) (R. at 24); (7) Plaintiff was born on October 23, 1942 and was 53 years old on the date last insured, which is defined as closely approaching advanced age (20 C.F.R. § 404.1563) (R. at 24); (8) Plaintiff has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564) (R. at 24); and (9) Plaintiff has a skilled work background (20 C.F.R. 404.1568) (R. at 25); (10) Through the date last insured, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy (20 C.F.R. §§ 404.1560(c), 404.1566 and 404.1568(d)) (R. at 25); and (11) Plaintiff was not under a "disability," as defined in the Social Security Act, at any time through June 30, 2001, the date last insured (20 C.F.R. § 404.1520(g). 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 Challenge:

10. Plaintiff challenges the decision of the ALJ on the basis that it is not supported by the substantial evidence of record. Specifically, Plaintiff alleges (1) the ALJ did not give adequate consideration to the medical opinions and disability determination of Plaintiff's treating professionals, and instead substituted his own lay opinions for competent medical testimony, (2) the ALJ failed to properly consider Plaintiff's subjective testimony regarding pain and limitations from his impairments, as well as side effects from medications, and failed to cite specific reasons for rejecting Plaintiff's testimony, and (3) the ALJ failed to establish that Plaintiff had the residual functional capacity to perform light work on a sustained basis. Each of Plaintiff's allegations is discussed below.

Allegation 1: The ALJ Failed to Give Adequate Consideration to the Medical Opinions and Disability Determination Provided by Plaintiff's Treating Professionals:

11. Plaintiff's first challenge to the ALJ's decision is that he did not give adequate consideration to the medical evidence, and the disability determinations, provided by Plaintiff's treating physicians, Doctors Latif, Krawchenko, Peckham, and Wetterhahn, and his chiropractor, Eleanor Campbell, and instead substituted his own lay opinion for competent medical evidence. See Plaintiff's Brief, pp. 4-12. Thus, Plaintiff asserts the ALJ's determinations that he was not disabled prior to his date last insured of June 30, 2001, and that he retained the residual functional capacity to perform a limited range of light work during the time frame relevant to his claim, are not based on the substantial evidence of record (R. at 23). See also Plaintiff's Brief, pp. 4-12.

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).

Further, an ALJ is not free to substitute his own lay opinion for opinions from treating sources. See Brown v. Apfel, 991 F.Supp. 166, 172 (W.D.N.Y. 1998), citing Pietrunti v. Director, Office of Workers' Compensation Programs, 119 F.3d 1035, 1042 (2d Cir.1997), ("Moreover, an ALJ 'cannot arbitrarily substitute his own judgment for competent medical evidence,' " quotingMcBrayer v. Sec. of H.H.S., 712 F.2d 795, 799 (2d Cir.1983)).

Having reviewed the evidence at issue, this Court detects no reversible error in the ALJ's treatment of the opinions and work capacity assessments of Plaintiff's treating physicians, Doctors Latif, Krawchenko, Peckham and Wetterhahn, as well as the opinion and work capacity assessment of Plaintiff's chiropractor, Dr. Campbell. 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 October 9, 1995, through the date Plaintiff was last insured for disability benefits on June 30, 2001, and in the period between the date Plaintiff was last insured through the date of the ALJ's decision on September 8, 2005 (R. at 20-26).

The medical evidence includes treatment notes, evaluations of Plaintiff's progress, and test results (R. at 116-251). The work capacity evaluations of Chiropractor Campbell, and the statement by Dr. Wetterhahn that Plaintiff had to nap for two hours daily to "function normally during the period of time around 6/01," were inconsistent with their own records, as well as inconsistent with the medical records and opinions of Doctors Latif and Krawchenko, and State agency examining physicians, Doctors Nicholas and Peckham.

Plaintiff's medical records document that he suffers from various ailments, including hyperlipidemia, sinusitis, chronic cough, and disorders of the back; however, the ALJ determined only the disorders of the back to be a severe, but not disabling, impairment (R. at 21-24, 116-251).

On March 21, 1997, Plaintiff's chiropractor, Dr. Campbell, prepared a letter for Plaintiff's Workers' Compensation Carrier stating that, as a result of work-related injuries, Plaintiff was unable to perform the duties of his past relevant work as a New York State Trooper or as a heavy machinist (R. at 144). However, Dr. Campbell noted Plaintiff was only "restricted from activities such as: not to lift more than 25 pounds, no extended sitting or standing or push-pull activities. [Plaintiff] must be able to change position at will to bear and control the intensity of the pain." Id.

Plaintiff was examined by his treating neurologist, Dr. Abdul Latif, on May 12, 1997 (R. at 153-154). In this initial visit, Plaintiff related a history of pain from work-related accidents in 1971 and 1987 (R. at 153). Plaintiff told Dr. Latif the pain was mostly in his neck and interscapular area, and "comes and goes." Id. Plaintiff denied any radiation of pain into the shoulder muscles or upper extremities, but claimed "achy" pain in the occipital area near his eyes. Id. He also reported numbness and tingling sensations in his upper extremities, but no weakness in his arms. Id. Plaintiff also claimed "achy" pain in his lower back that had been present since the 1987 accident. Id. He told Dr. Latif the pain radiated towards his left hip and both legs, but denied numbness or weakness in his lower extremities. Id. Upon examination, Dr. Latif noted Plaintiff did not appear to be in any discomfort (R. at 154). The examination revealed mild tenderness in the cervical spine and lumbosacral area. Id. Plaintiff's motor examination showed give-away weakness in his lower extremities, but the doctor noted Plaintiff seemed to be strong in his arms. Id. Plaintiff's muscle tone was within normal limits, and deep tendon reflexes were 1 and symmetrical. Id. Romberg's testing was negative. Id. Straight leg raising test was positive at 75 degrees. Id. Dr. Latif observed Plaintiff's gait was normal.

Id. The doctor assessed Plaintiff with cervical sprain with occipital neuralgia, but wanted to rule out cervical spondylosis and lumbosacral radiculopathy. Id. Dr. Latif recommended Plaintiff undergo MRI examinations of his cervical and ...

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