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William P. Atwater v. Michael J. Astrue

December 30, 2011

WILLIAM P. ATWATER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

1. Plaintiff William P. Atwater challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled due to osteoarthritis in his right shoulder and hips and lower back, as well as degenerative disc and ankle disease since October 11, 2002. (R. at 245.)*fn1 Plaintiff contends that his impairments render him unable to work. He therefore asserts that he is entitled to disability benefits under the Act.

2. Plaintiff filed an application for disability insurance benefits on October 31, 2002. (R. at 226-27.) Plaintiff's application was initially denied on January 24, 2003 (R. at 78-81), prompting Plaintiff to request a hearing before an ALJ (R. at 82). ALJ Robert T. Harvey conducted a hearing on September 30, 2003. (R. at 870-895.) The ALJ issued a written decision denying Plaintiff's claim on February 20, 2004. (R. at 111-21.) That decision was vacated and remanded by the Appeals Council on November 10, 2004. (R. at 134-37.) ALJ Harvey conducted a second hearing on March 2, 2005 (R. at 896-918) and a supplemental hearing on March 29, 2005 (R. at 919-954.) The ALJ issued a second decision on April 19, 2005, again denying Plaintiff's claim. (R. at 67-73.) This decision was vacated by the Appeals Council on June 21, 2006, and remanded for consideration by ALJ Marilyn D. Zahm. (R. at 198-201.) ALJ Zahm held a third hearing on June 14, 2007 (R. at 797-867), and issued the third decision in this matter, denying Plaintiff's claim, on January 25, 2008. (R. at 18-34.) This time, on March 19, 2010, the Appeals Council declined to review the decision. (R. at 10-12.) Plaintiff filed this action challenging Defendant's final decision on May 18, 2010.*fn2

3. The parties subsequently filed Motions for Judgment on the Pleadings.*fn3 After full briefing, this Court deemed oral argument unnecessary and took the motions under advisement on April 15, 2011. For the following reasons, Defendant's motion is granted and Plaintiff's motion is denied.

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 & 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 that which 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 the 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 position 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 will 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 & 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 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, 140-42, 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 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) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. Although the claimant has the burden of proof on 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, 584 (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 the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since October 11, 2002 (R. at 23); (2) Plaintiff's "right ankle disorder, degenerative joint disease and osteoarthritis involving his back, hips and right shoulder, and carpal tunnel syndrome" constitute "severe" impairments within the meaning of the Act (R. at 23); (3) Plaintiff's impairments or a combination of impairments do not meet the criteria necessary for finding a disabling impairment under the regulations (R. at 23); (4) Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work with certain limitations (R. at 23-32);*fn4 and (5) Plaintiff has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (R. at 33-34). Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act from October 11, 2002, through January 25, 2008, the date of the ALJ's decision. (R. at 34.)

10. Plaintiff advances four challenges to the ALJ's decision. First, Plaintiff argues that the ALJ erred by failing to give adequate weight to the opinions of Plaintiff's treating physician Dr. Mythili Srikrishnan. (Pl.'s Mem., Docket No. 13, pp. 14-19.)*fn5 Dr. Srikrishnan's assessment of March 1, 2005 opines that Plaintiff's RFC was below a sedentary level. (R. at 547.) Plaintiff argues that the ALJ improperly discounted Dr. Srikrishnan's opinion in favor of her own medical opinions. (Pl.'s Mem., pp. 17-19.)

An ALJ must give controlling weight to a treating physician's opinion when it 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. Carter, 221 F.3d 126, 134 (2d Cir. 2000). Even if a treating physician's opinion is not given controlling weight, an ALJ may give it "extra weight" if appropriate. To determine whether such weight is to be accorded a non-controlling treating physician's opinion, the ALJ should consider: (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 Roman v. Barnhart, No. 03-Civ.0075(RCC) (AJP), 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003).

Applying these principles to the ALJ's treatment of Dr. Srikrishnan, this Court finds no error in the ALJ's decision to give no weight to Dr. Srikrishnan's opinion. Dr. Srikrishnan submitted a residual functional capacity evaluation. (R. at 743.) This consisted of a single page stating that Plaintiff could carry zero pounds frequently, stand and/or walk for less than two hours per day, sit for less than six hours per day, and change his position from sitting to standing every ten minutes, among other impairments. The ALJ properly determined that this evaluation was not supported by objective medical evidence because the paper did not detail how the stated conclusions had been arrived at or what techniques had been employed in their formation. The ALJ did provide Dr. Srikrishnan the opportunity to clarify his diagnosis. Recontacting medical providers is necessary when the ALJ cannot make a disability determination based on the evidence of record. 20 C.F.R. ยง 404.1512(e). ALJ Zahm sent Dr. Srikrishnan a detailed set of interrogatories requesting information on what diagnostic tests had been conducted and what objective signs led to Dr. Srikrishnan's diagnosis. (R. at ...


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