GARY SHARPE, Magistrate Judge
I. Introduction
Walter Morris challenges the denial of disability benefits by the Commissioner of Social Security, alleging disability due to asthma, degenerative disc disease of the cervical and lumbar spine and chronic impingement of the left shoulder. Having reviewed the administrative record, this court affirms the Commissioner's decision because it was based on substantial evidence.
II. Procedural History
On August 12, 1996, Morris filed an application for Social Security disability benefits which was subsequently denied. He appealed, and on March 3, 1998, a hearing was held before Administrative Law Judge (ALJ) Richard J. Shay. The ALJ's denial of benefits became the final decision of the Commissioner after the Appeals Council affirmed on April 14, 2000.
On May 19, 2000, Morris brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner answered and filed an administrative transcript, Morris then filed his brief and the Commissioner responded.
III. Contentions
Morris asserts that the Commissioner's decision is not supported by substantial evidence, and erroneous as a matter of law. He maintains that the ALJ did not give "controlling weight" to the report of his treating physician, Dr. John Brosnan. Specifically, Morris disputes the ALJ's conclusion that Dr. Brosnan's opinions were inconsistent with the record.
The Commissioner maintains that the ALJ's decision was based on substantial evidence and should be affirmed. The Commissioner argues that the ALJ properly evaluated: (1) Dr. Brosnan's opinion; (2) Morris's testimony; and (3) all the medical evidence.
IV. Facts
Morris was forty-nine years old at the time of the ALJ's decision, has a GED, and previously served as a tank commander in Vietnam. (Tr. 30-32). From 1964 to 1978, he worked as a hospital orderly, and from 1978 to 1988, as a New York City firefighter. (Tr. 32, 35). From 1995 to 1996, he worked as a scoper examining microchips. (Tr. 33). This job required that he sit and examine microchips for about 8 to 12 hours a day. (Tr. 35). In January 1996, Morris claimed that he slipped on ice and reinjured his back. (Tr. 35, 94-96). Subsequently, he could no longer work since he could "not . . . sit or stand for long periods of time" due to neck and back pain. (Tr. 81, 94-96).
Following an accident that restricted his duties in 1988, Morris officially retired from the fire department with a disability pension in 1991. (Tr. 35).
A. Medical Evidence 1. John Brosnan, M.D. (orthopedist)
On January 25, 1996, Dr. Brosnan, Morris's treating orthopedist, diagnosed Morris with degenerative disc disease of the cervical and lumbar spine. (Tr. 137). On this initial visit, Morris complained of increased back and neck pain from a fall on ice the previous week. (Tr. 137). Dr. Brosnan also reviewed a September 1990 MRI of Morris's cervical and lumbar spine which showed "degenerative changes involving the C4-5 disc with no evidence of herniated disc or spinal stenosis." (Tr. 111). He prescribed Relafen and physical therapy. (Tr. 137). On March 7, 1996, Dr. Brosnan reported that Morris had significant neck and low back discomfort with intermittent numbness in the legs. (Tr. 138). Morris was instructed to continue with physical therapy. (Tr. 138). In May 1996, Morris continued to have some pain in the lower back and left trapezius area, and was unable to tolerate sitting at his job. (Tr. 139). In July, Morris reported left shoulder pain and was diagnosed with impingement syndrome. (Tr. 140). In February 1997, Morris returned for a follow-up visit and reported occasional numbness in both legs and arms. A cross-arm adduction test was negative and external rotation strength was near full at grade 5 of 5. (Tr. 141). Dr. Brosnan found chronic impingement of the left shoulder and ordered a cervical and lumbar MRI. (Tr. 141). In March, Dr. Brosnan had a differential diagnosis of degenerative disc disease and impingement of the left shoulder. (Tr. 142). During this visit, Dr. Brosnan discussed arthroscopic surgery for Morris's shoulder. (Tr. 142). In April, Dr. Brosnan performed the arthroscopic procedure for Morris's left shoulder and recommended post-operative physical therapy. (Tr. 142). In May, Morris advised Dr. Brosnan that he missed some physical therapy appointments. (Tr. 143). In November, Morris complained of trouble moving his left shoulder. Morris's motor strength was normal and sensation intact. Morris continued to complain of back discomfort. (Tr. 144). Dr. Brosnan opined that Morris had adhesive capsulitis and degenerative disc disease of the cervical and lumbar spine. (Tr. 144). Dr. Brosnan also noted that Morris had "a moderate permanent disability because of the condition of his neck and lower back." (Tr. 144).
That same day, Dr. Brosnan completed a medical assessment report, and estimated that Morris could occasionally lift and carry a maximum of ten pounds. (Tr. 145-47). Dr. Brosnan found that Morris could stand, walk, and/or sit for a total of four hours. (Tr. 147). Dr. Brosnan opined that Morris was unable to push or pull. (Tr. 147).
2. Robert Bethje, M.D. (Riverfront Medical Services)
In November 1996, Dr. Bethje conducted a consultative examination of Morris. (Tr. 121-28). Morris complained of shortness of breath, neck, low back and recent chest pain. (Tr. 122). Dr. Bethje noted that since 1980, Morris had occasional breathing problems but was not usually short of breath. (Tr. 121-22). Morris had a normal stance and gait, and walked on heels and toes without difficulty. (Tr. 122). Dr. Bethje observed that Morris transferred to the examining table with relative ease. (Tr. 122). Dr. Bethje noted some rotator cuff tenderness in the left shoulder. (Tr. 123). He found that flexion in the neck was to 40 degrees bilaterally, forward flexion to 30 degrees, and extension and rotation to 20 degrees, respectively. (Tr. 123). In the lumbar spine, forward flexion was to 60 degrees before Morris alleged pain, and lateral flexion 20 degrees bilaterally. (Tr. 123). Dr. Bethje observed good chest expansion on examination with no inspiratory or expiratory wheezes, rales or rhonchi. (Tr. 123). Dr. Bethje's impression was moderately severe cervical syndrome without radiculopathy, mild lumbar syndrome without radiculopathy, and bronchial asthma. (Tr. 123).
3. Residual Functional Capacity Assessments
In December 1996, Dr. Donna White, a consulting physician, provided a physical Residual Functional Capacity (RFC) assessment, and found that Morris could sit for about six hours and stand and/or walk for six hours in an eight hour day. (Tr. 152-59). She also opined that Morris had no limitation in the range of motion of the upper and lower extremities. (Tr. 159). However, she noted some limited range of motion of the cervical spine with pain and tenderness. (Tr. 159). An SSA medical consultant agreed with Dr. White's assessment. (Tr. 159).
4. Objective Medical Evidence
In February 1997, multiple x-rays were taken of the cervical spine, and indicated disc space narrowing at the C4-5, with no significant encroachment of the intervertebral foramen. (Tr. 148). The impression was degenerative disc disease at the C4-5. (Tr. 148).
That same month, Morris underwent an MRI of the cervical spine which revealed mild disc space narrowing at the C4-5. The cervical spinal cord was intrinsically normal in appearance, demonstrating normal signal intensity. (Tr. 149). The MRI showed no disc herniation or spinal stenosis. (Tr. 149). The findings were mild disc space narrowing at C4-5 with no herniation, stenosis or neural foraminal encroachment. (Tr. 149).
In February 1997, an MRI of the left shoulder showed mild degenerative changes at the acromio-clavicular joint, but no significant impingement. (Tr. 150). The rotator cuff appeared intact, with no evidence of tear or significant tendonitis, and no significant effusion. (Tr. 150). Another MRI of the lumbar spine showed mild to moderate central posterior protrusion of the L2-L3 intervertebral disc associated with flattening of the ventral aspect of the thecal sac. (Tr. 151). The MRI also showed degenerative changes related to the inferior end plate of L4. (Tr. 151).
B. Administrative Hearing
Morris testified that he did not like to take medication for his muscoskeletal pain. (Tr. 44). However, he occasionally took aspirin which relieved his pain. (Tr. 44, 107). Morris testified that he did light grocery shopping and housekeeping. (Tr. 47, 52, 99). Morris also testified that he took occasional walks, cooked, assisted his wife with the laundry, and went to baseball games. (Tr. 47, 52-54, 99).
V. Discussion
A. Standard and Scope of Review
When reviewing the Commissioner's final decision, the court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible for determining a claimant's eligibility, the actual disability determination is made by an ALJ, and that decision is subject to judicial review on appeal. A court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. 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. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's decision is limited to the determination of whether substantial evidence in the record supports the decision. 42 U.S.C. § 405(g); see Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). "To determine on appeal whether an 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, 859 F.2d at 258. However, a reviewing 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The court has authority to reverse with or without remand 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit claimant to produce further evidence). The Second Circuit has held that in order to "ensure that the correct legal principles are applied in evaluating disability claims, . . . th[e] circuit recognizes the appropriateness of remanding cases because of the lack of specificity of an ALJ's decision." Knapp v. Apfel, 11 F. Supp.2d 235, 238 (N.D.N.Y. 1998). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years and remand would likely result in further lengthening the "painfully slow process" of determining disability).
B. Five-Step Disability Determination
In the Social Security Disability Insurance and Supplemental Security Income context, the definition of "disabled" is the same. A plaintiff seeking SSDI or SSI is disabled if he can establish that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. . . ." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (emphasis added).
In addition, a claimant's
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B).
Therefore, a plaintiff must not only carry a medically determinable impairment but an impairment so severe as to prevent him from engaging in any kind of substantial gainful work which exists in the national economy.
The Commissioner uses a five-step process to evaluate SSDI and SSI disability claims. See 20 C.F.R. § 404.1520, 416.920. Step One requires the ALJ to determine whether the claimant is presently engaging in substantial gainful activity (SGA). 20 C.F.R. § 404.1520(b), 416.920(b). If so, he is not considered disabled. However, if he is not engaged in SGA, Step Two requires that the ALJ determine whether the claimant has a severe impairment. 20 C.F.R. § 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires that the ALJ determine whether the claimant's impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P., Appendix 1, §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if the impairment meets or equals a listed impairment. See Ferraris, 728 F.2d at 584. If the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's RFC precludes the performance of his past relevant work. 20 C.F.R. § 404.1520(e), 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. 20 C.F.R. § 404.1520(f), 416.920(f).
The claimant has the burden of showing that he cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once he has met that burden, the ALJ can deny benefits only by showing, with specific reference to medical evidence, that he can perform some less demanding work. See White v. Sec'y of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing, the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills, to determine if he can perform other work existing in the national economy. 20 C.F.R. § 404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
In this case, the ALJ found that Morris satisfied Step One because he had not worked since January 15, 1996. (Tr. 15). In Step Two, the ALJ determined that Morris suffered from severe impairments; namely, degenerative disc disease of the cervical and lumbar spine, bronchial asthma and chronic left shoulder impingement, all of which would significantly limit his ability to perform basic work activities. (Tr. 15). In Step Three, the ALJ determined that Morris's impairments failed to meet or equal a combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P., Regulation No. 4. (Tr. 12). In Step Four, the ALJ determined that Morris retained the RFC to perform sedentary work. (Tr. 19). In Step Five, the ALJ found that Morris possessed the RFC to work in his previous capacity as a microchip scoper and that his type of work did not involve any lifting. (Tr. 19). The ALJ found that Morris was not disabled, and denied benefits. (Tr. 19).
C. Substantial Evidence
Morris argues that the ALJ disregarded his treating physician's disability opinion, his RFC and his disabling pain. Generally, the opinions of treating physicians are given controlling weight, under certain circumstances, in the belief that an on-going relationship between doctor and patient yields a better evaluation than a one-time physical. Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). In weighing the treating physician's opinion, "[t]he duration of a patient-physician relationship, the reasoning accompanying the opinion, the opinion's consistency with other evidence, and the physician's specialization or lack thereof" are considerations. Id. at 568; 20 C.F.R. § 404.1527(d)(1)-(6), 416.927(d)(1)-(6).
The medical report should include a statement about what an individual can do despite his impairments and should be based on the medical source's findings. See 20 C.F.R. § 404.1513(b)(6), 416.913(b)(6). Furthermore, the opinion of a treating physician must be based upon well-supported, medically acceptable, clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). When the Commissioner fails to give the treating physician's diagnosis controlling weight, he must provide reasons. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).
Moreover, the "ultimate finding of whether a claimant is disabled and cannot work is `reserved to the Commissioner.'" Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted). "That means that the Social Security Administration considers the data that physicians provide but draws its own conclusions." Id. at 133. Thus, a treating physician's disability assessment is not determinative. Id. at 133. Furthermore, where the medical evidence of record includes medical source opinions that are inconsistent with other evidence or are internally inconsistent, the ALJ must weigh all of the evidence and make a disability determination based on the totality of that evidence. 20 C.F.R. § 404.1527(c)(2), 416.927(c)(2).
The court recognizes the inherent difficulty in evaluating a claimant's credibility without actual physical contact. This makes review of an ALJ's credibility assessment particularly onerous and frequently results in significant deference to the ALJ. However, it is clear that the Commissioner is obligated to evaluate all of a claimant's symptoms, including pain. 20 C.F.R. § 404.1529(a), 416.929(a).
In addition, the ALJ must make an RFC determination. The RFC relates to what claimants are capable of doing despite their impairments. 20 C.F.R. § 404.1545(a), 416.945(a). A claimant's RFC is determined by considering all of the relevant evidence consisting, inter alia, of physical abilities, symptoms including pain, and descriptions, including those provided by the claimant, of limitations which go beyond symptoms. 20 C.F.R. § 404.1545, 416.945.
Symptoms such as pain are considered when assessing the RFC, when assessing whether a claimant has a severe impairment, and when assessing all of the remaining steps in the disability determination. 20 C.F.R. § 404.1529(a), (d), 416.929(a), (d).
Here, Morris contends that the ALJ failed to give controlling weight to his treating physician's opinion. Dr. Brosnan had diagnosed Morris with degenerative disc disease of the cervical and lumbar spine and chronic impingement of the left shoulder. (Tr. 145-47). He opined that Morris had chronic neck and low back pain. (Tr.145-47). Dr. Brosnan further stated in the medical assessment report that Morris could sit, stand or walk for a total of four hours in an eight-hour day and could only lift/carry ten pounds occasionally. (Tr. 147).
"If an individual is unable to sit for a total of 6 hours in an 8-hour work day, the unskilled sedentary occupational base will be eroded." Dailey v. Barnhart, 277 F. Supp.2d 226, 235 (W.D.N.Y. 2003) (citation omitted).
The Commissioner maintains that the ALJ properly rejected the treating physician's opinion when he found that the assertions of the disabling nature and severity of Morris's symptoms and functional limitations were not consistent with the detailed medical findings. (Tr. 18). Further, he found that Morris's disability was not supported by Dr. Brosnan's progress notes. (Tr. 18). Specifically, the Commissioner points out that Dr. Bosnan's November 11, 1997, progress note finding a "moderate permanent disability because of the condition of his neck and lower back" did not warrant the two hour sedentary limitation in Dr. Brosnan's medical assessment report to the SSA. (Tr. 144, 147).
The medical report to the SSA was also dated November 11, 1997. (Tr. 145-47).
The ALJ concluded that Morris had an underlying medically determinable impairment that could reasonably cause the pain and other symptoms alleged, but the impairment was not of such an intensity and frequency as to preclude him from work activity. (Tr. 19). To substantiate this conclusion, the ALJ referred to Morris's testimony which showed varied daily activities such as laundry, light grocery shopping, and light housekeeping. (Tr. 18). Furthermore, Morris had reached maximum medical improvement with no indication of surgical intervention or the use of assistive devices. (Tr. 18). The ALJ also referred to the medical assessment reports by the State Agency consultant, Robert Bethje, M.D., who only noted some limitation with the range of motion and a normal stance and gait. (Tr. 16, 122-23). The ALJ pointed to x-rays and an MRI of the cervical spine taken on February 24, 1997, which indicated no disc herniation or spinal stenosis. (Tr. 17). He also referred to the February 26, 1997, MRI reports of the left shoulder and lumbar as further support for his decision since they showed "no evidence of any significant impingement." (Tr. 17-18, 150).
Morris also testified that lying down and aspirin relieved the pain. (Tr. 44).
The Commissioner argues that there was sufficient evidence in the record to contradict the findings of Dr. Brosnan. The law is clear that "the Social Security Administration is required to explain the weight it gives to the opinions of a treating physician." Snell, 177 F.3d at 133 (2d Cir. 1999). Moreover, "[f]ailure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand" Id. at 133 (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). "The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even . . . and perhaps especially . . . when those dispositions are unfavorable." Id. at 134. The Commissioner has done so. Accordingly, the court finds that the ALJ properly concluded that the totality of the medical evidence was inconsistent with Dr. Brosnan's opinion.
Morris also contends that the ALJ did not address his shoulder claim. However, Dr. Brosnan did not give a diagnostic opinion in his assessment report as to the degree of limitation of the left shoulder injury other than stating "[c]hronic impingement left shoulder." (Tr. 145). Dr. Brosnan's progress notes do not mention the quality or degree of the left shoulder injury, but simply state Morris "continues to have trouble with moving it." (Tr. 144). Notwithstanding, the ALJ analyzed the objective medical evidence by addressing the results of the MRI dated February 26, 1997, which showed no evidence of impingement of the shoulder. (Tr. 17, 150). Moreover, the ALJ noted that Morris suffered from severe impairments under the Five Step Disability Analysis which included his left shoulder claim. (Tr. 15). Despite Morris's argument to the contrary, the record amply demonstrates that the ALJ examined Morris's shoulder claim.
After carefully reviewing the entire record, and for the reasons stated, the Commissioner's denial of benefits was based on substantial evidence and not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed.
WHEREFORE, for the foregoing reasons, it is hereby ORDERED, that the decision denying disability benefits is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.