Walden v. Commissioner of Social Security Administration
Filing
15
ORDER granting 10 Motion for Judgment on the Pleadings. For the reasons in the attached Memorandum and Order, the defendant's motion is granted and the decision of the Commissioner is affirmed. The clerk of the Court is directed to close this case. Ordered by Judge Denis R. Hurley on 8/13/2013. (Kaley, Regina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALTON P. WALDEN,
Plaintiff,
MEMORANDUM AND ORDER
CV-11-2721 (DRH)
- against MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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APPEARANCES:
For the Plaintiff:
Kassoff, Robert & Lerner, LLP
100 Merrick Road, Suite 508W
Rockville Centre, NY 11570
By:
Steven P. Lerner, Esq.
For the Defendant:
United States Attorneys Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, NY 11722-4454
By:
Vincent Lipari, Esq.
HURLEY, Senior District Judge:
Plaintiff Alton P. Walden commenced this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a final decision by the Commissioner of Social Security (“Commissioner” or
“defendant”), which denied his claim for disability benefits. Presently before the Court is the
defendant’s motion for judgment on the pleadings affirming the Commissioner’s decision to
deny plaintiff Social Security disability benefits. For the reasons set forth below, defendant’s
motion for judgment on the pleadings is granted and the decision of the Commissioner is
affirmed.
BACKGROUND
I.
Procedural Background
Plaintiff applied for Social Security disability insurance benefits under Title II and
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “SSA”)
on September 2, 2008. (Transcript (“Tr.”) 10, 92-95.) Plaintiff alleged that since January 1,
2006, he has been disabled due to depression, heart disease, and high blood pressure. (Tr. 2829.) Plaintiff’s application for disability was denied on February 9, 2009, (Tr. 60-65), and
plaintiff subsequently requested a hearing before an administrative law judge (“ALJ”) on
February 20, 2009. (Tr. 66.) A hearing was held before ALJ Brian J. Crawley on June 29, 2009,
where plaintiff, although informed of his right to representation, appeared unrepresented. (Tr.
17-57.) The ALJ issued a decision on November 2, 2009, finding that plaintiff was not disabled
within the meaning of the SSA. (Tr. 10-16.) Plaintiff then requested a review by the Appeals
Council (“AC”). (Tr. 143-47.) By notice dated April 8, 2011, the AC denied plaintiff’s request
for review, thereby finding that the ALJ’s decision became “the final decision of the
Commissioner.” (Tr. 1; see 20 C.F.R. § 404.981 (1987) (“[T]he decision of the administrative
law judge if the request for review is denied, is binding . . . .”).) Subsequently, plaintiff appealed
the ALJ’s decision to this Court.
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II.
Factual Background1
A. Non-Medical Background
1. Plaintiff’s Testimony
Plaintiff was born on November 7, 1969 (Tr. 92), was 36 years of age on the date of the
alleged onset of disability, January 1, 2006, (Tr. 104), and 40 years of age on the date of the
ALJ’s decision, November 2, 2009. (Tr. 10-16). Plaintiff holds a high school diploma, and after
graduating high school, plaintiff worked as a tractor trailer driver until he was laid off on January
1, 2006. (Tr. 29, 48-49.) Prior to that date, plaintiff’s employer placed him on restricted duty
because he had high blood pressure and respiratory problems. (Tr. 28.) While on restricted duty,
he no longer drove a tractor trailer, but performed custodial tasks such as cleaning the
warehouse. (Tr. 28-29; Pl.’s Mem. in Opp’n at 3.) Plaintiff testified that he was laid off because
after he was unable to perform his duties as a tractor trailer driver, his employer did not have
enough work for him. (Pl.’s Mem. in Opp’n at 3.)
During the hearing with the ALJ, plaintiff testified that he experienced trouble breathing,
depression, pain in his right hip radiating to his right leg, back pain, chest pain, memory
problems, and headaches. (Tr. 30, 33-34, 35, 44, 46-47.) Plaintiff testified, however, that he was
not being treated for breathing problems or for depression. (Tr. 30, 44.) Plaintiff stated that he
used Tylenol for pain management because his doctors advised him that anything stronger would
not be good for his heart. (Tr. 47.) Plaintiff also testified that he had a stroke that caused his
right leg to give out. (Tr. 34-35.) At the hearing, however, he was not using any cane or brace
as a walking aid. (Tr. 49.)
1
The facts provided here are recited in defendant’s Memorandum in Support of its
Motion for Judgment on the Pleadings at pages 2-13, and according to the plaintiff, “are accurate
and not in dispute.” (Pl.’s Mem. in Opp’n. at 3.)
3
Plaintiff also gave testimony regarding his physical abilities. Plaintiff testified that he
lived with his parents and that he could not perform household chores except for helping with the
dishes for limited time periods. (Tr. 28, 44.) Plaintiff also stated that he could sit for about one
half hour before needing to change position. (Tr. 50-51.) Plaintiff testified that he sometimes
needed his father’s help to clean his back and hold him up when showering, but that he could
dress himself. 2 (Tr. 49-50.) Plaintiff also testified that he was able to lift two gallons of milk,
(Tr. 51), and that he drove a car about once a week and occasionally took the bus to his doctor
appointments. (Tr. 42-43.)
Additionally, plaintiff testified that he spends his days mostly walking about his house,
napping, reading, going on the internet, watching television, and taking walks to his former high
school. (Tr. 36, 41-42.) Plaintiff explained that the distance to the high school is about five
blocks, and that once there he usually walks around the school’s quarter-mile track once or
twice. (Tr. 36-37.) Plaintiff testified that it takes him about one to two hours to complete the
entire walk because he has to rest for about ten to fifteen minutes and drink water at least a few
times during each walk. (Tr. 37-38, 41.) He stated that he usually feels chest pain and shortness
of breath during the walks and that he has to take naps when he gets home. (Tr. 45-47.)
Plaintiff’s mother testified that at least once a week plaintiff calls for his parents to come pick
him up because he is too tired to complete the walk. (Tr. 39-40.)
2. Function Report
On November 5, 2008, plaintiff completed a Function Report for submission to the New
York State Office of Temporary and Disability Assistance, Division of Disability Determination.
(Tr. 112-22.) In the report, plaintiff described his daily activities as watching television and
2
Plaintiff told Dr. Ciati that he could shower himself. (Tr. 216.)
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moving around the house. (Tr. 113.) Plaintiff stated that he was afraid of going to sleep and had
a loss of appetite. (Tr. 113-14.) Plaintiff also stated that he had no desire to maintain his
personal hygiene and needed his parents to remind him to change his clothes, wash himself,
brush his teeth, and take his medications. (Tr. 114.) Plaintiff indicated that he did not perform
household chores or prepare meals because he had shortness of breath and got tired easily. (Tr.
114-15.) Plaintiff stated that his hobbies and interests included reading and listening to music,
but that he could not engage in these activities for long periods of time due to his short attention
span. (Tr. 116.) Plaintiff also indicated that he is often tired, is forgetful, is in pain, and has a
hard time using his left side. (Tr. 117.) Plaintiff further stated that he could walk about half a
block before getting tired and having to rest for five to ten minutes. (Tr. 118.)
B. Hospital Evidence
1. Franklin Hospital
On August 4, 2008, plaintiff visited the emergency room (“ER”) at Franklin Hospital,
where he complained of fever, aches, chills, headache, and a sore throat. (Tr. 149, 173, 179.)
His blood pressure upon arrival was 132/84, and he received intravenous fluid and intravenous
antibiotics. (Tr. 150, 152.) A chest x-ray taken that day revealed an enlarged heart, however, a
lung x-ray did not show any pneumonia or pleural effusion. (Tr. 153.) Plaintiff was discharged
that same day and was told to follow up with the clinic in a couple of days. (Tr. 152.)
On or about August 8, 2008, plaintiff was admitted to Franklin Hospital because the
doctor wanted to test for sepsis. (Tr. 156-57, 173, 283.) On that day, an echocardiogram
revealed severe aortic insufficiencies. (Tr. 165.) Ultimately, plaintiff was diagnosed with
endocarditis. (Tr. 179.) Plaintiff then developed respiratory failure and required intubation and
a high dose of steroids. (Tr. 179.) In addition, the plaintiff developed progressive kidney
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insufficiencies, (Tr. 173, 179), and a sensitive staph infection that required antibiotic treatment.
(Tr. 167, 174, 179-80, 283.)
2. North Shore University Hospital
On August 15, 2008, plaintiff was transferred to North Shore University Hospital
(“NSUH”) to undergo a transesophageal echocardiography, the results of which showed “severe
aortic valve regurgitation and severe mitral valve regurgitation.” (Tr. 167, 173-74, 179-80, 283.)
On that same day, plaintiff underwent emergency surgery for replacement of the aortic valve and
mitral valve. (Tr. 167, 179-81, 280, 282-85.) Plaintiff required post-operative critical care
management including full ventilatory support due to respiratory failure. (Tr. 170.)
On August 19, 2008, the doctor ordered an electrocardiogram, which returned normal
results, (Tr. 202), however, since the plaintiff still required long-term ventilation, he underwent a
tracheostomy on August 22, 2008. (Tr. 177, 280.) The plaintiff also developed “a bout of acute
renal failure that resolved eventually.” (Tr. 167, 170, 280.)
On September 1, 2008, plaintiff underwent an x-ray of his chest that suggested the
plaintiff was suffering from pneumonia. (Tr. 201.) Further x-rays of plaintiff’s chest taken on
September 3 and 7, 2008, also revealed left pleural effusion. (Tr. 193, 199-200.) On September
8, 2008, plaintiff underwent another echocardiogram that revealed normal left and right
ventricular systolic function, normal tricuspid and pulmonic valves without vegetations, mildmoderate tricuspid regurgitation, and minimal pulmonic regurgitation. (Tr. 194-95.) On that
same day, the doctor ordered a CT-scan of plaintiff’s brain, which showed no evidence of acute
stroke. (Tr. 198.)
On September 12, 2008, plaintiff was discharged from NSUH with a blood pressure of
120/90. (Tr. 167, 171, 186, 190, 280.) Upon discharge, plaintiff’s medications included Lasix,
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K-Dur, Lopresso, Coumadin, Zoloft, Colace, Prilosec, Klonoin, folic acid, Neutrontin, Clonidine,
and nafcillin. (Tr. 168, 281.) Plaintiff was supposed to go to a rehabilitation center where he
would continue receiving intravenous antibiotics, but because he and his mother were not
satisfied with the cleanliness of the facility, the plaintiff returned to NSUH. (Tr. 186, 289, 293.)
Plaintiff was discharged again on September 17, 2008. (Tr. 298.) Upon final discharge the
doctors advised plaintiff to follow a low-salt diet and perform daily activities as tolerated. (Tr.
298.)
C. Cardiologists
1. Dr. Saeed A. Siddiqui
Plaintiff first saw Dr. Siddiqui, a Board certified cardiologist and internist with
Cardiocare Consultants, on April 16, 2009. (Tr. 257-59, 309-11.) At his initial visit, plaintiff
complained that for the past few months he had experienced shortness of breath lasting a few
minutes, particularly when walking uphill and up staircases. (Tr. 257.) Plaintiff, however,
denied any recent muscle aches, muscle weakness, muscular cramps, or joint pains. (Id.) Dr.
Siddiqui also noted no recent history of chest pain, chest tightness or pressure, cold extremities,
cough, distal cyanosis, distal swelling, dyspnea, edema, hemoptysis, murmurs, palpitations,
phlebitis, tachycardia, thrombosis, varicosities, or wheezing. (Id.) Dr. Siddiqui reported that
plaintiff was “well built and nourished.” (Tr. 258.) Dr. Siddiqui further reported that plaintiff’s
blood pressure was 150/104, his lungs were clear, and his heart had a regular rhythm, with
normal S1 and S2 sounds, and a sharp click. (Id.) Examination of the plaintiff’s extremities
showed no edema, no cyanosis, and no clubbing. (Id.) Dr. Siddiqui assumed plaintiff’s
symptoms were secondary to his increased blood pressure and advised him to keep taking his
current medication, to start taking Coumadin, and to exercise and lose weight. (Tr. 258.)
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Plaintiff returned to Dr. Siddiqui for a second visit on April 30, 2009. (Tr. 262-63, 31415.) At this visit, plaintiff complained that for the last few days he had experienced sporadic
dizziness when getting up from laying or sitting. (Tr. 262.) Plaintiff further complained of
shortness of breath lasting for a few minutes when walking up staircases. (Id.) Plaintiff’s blood
pressure was 120/96 and his heart examination revealed regular rhythm, no murmurs or gallops,
normal S1 and S2 sounds, and no ectopy, rubs, or clicks. (Id.) Dr. Sidiqqui examined plaintiff’s
lungs and found that they were clear. (Id.) Dr. Siddiqui also performed an EKG, ordered a
nuclear stress test, and advised plaintiff to continue on his current medications, to exercise, and
to lose weight. (Tr. 262-63.)
On May 11, 2009, plaintiff returned to Dr. Siddiqui to undergo a nuclear stress test. (Tr.
264-65, 316-17.) Upon examination, plaintiff’s heart rhythm was normal and his lungs were
clear. (Tr. 264.) A musculoskeletal examination showed no edema, no cyanosis, and no
clubbing. (Id.) The nuclear stress test suggested that plaintiff’s heart rate and blood pressure
were responding normally to exercise and that plaintiff was not experiencing ischemia or
arrhythmias. (Tr. 265.) The test results, however, suggested that plaintiff had experienced an
infarction during valve replacement surgery. (Tr. 265, 267.)
On May 14, 2009, plaintiff again visited Dr. Siddiqui. (Tr. 267-68, 319-20.) At this visit,
plaintiff did not complain of any chest pain, dizziness, shortness of breath, or palpitations, and
his blood pressure was 114/88. (Tr. 267.) Dr. Siddiqui found that plaintiff’s heart rhythm was
regular. (Id.) Similarly, the plaintiff’s lungs were clear and a musculoskeletal examination
showed no edema, no cyanosis, and no clubbing. (Id.) Dr. Siddiqui changed one of plaintiff’s
medications, but advised him to continue his other medications, to exercise, and to lose weight.
(Id.)
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On May 28, 2009, Plaintiff returned to Dr. Siddiqui, (Tr. 269-70), because he was
noticing a fluttering in his chest, but a 24-hour Holter monitoring test beginning on May 18,
2009 did not show any arrhythmia, except for “one episode of bradycardia at 9:00 a.m.” (Def.’s
Mem. in Supp. at 10; Tr. 269.) In addition, Dr. Siddiqui found that plaintiff’s heart had a regular
rhythm with no murmur or gallop, normal S1 and S2 sounds, and no ectopy, rubs, or clicks. (Tr.
269.) The examination also showed that plaintiff’s lungs were clear. (Id.) Plaintiff was once
again advised to continue on his current medications, to exercise, and to lose weight. (Id.)
Plaintiff returned to Dr. Siddiqui for a follow-up on July 1, 2009. (Tr. 323-24.) At that
time, plaintiff complained that he still noticed shortness of breath and experienced skipped
heartbeats, although rarely. (Tr. at 323.) A heart examination showed that the plaintiff’s heart
rhythm was regular, and a lung examination showed his lungs were clear. (Id.) Dr. Siddiqui’s
musculoskeletal examination showed no edema, no cyanosis, and no clubbing. (Id.) Dr.
Siddiqui added norvase to plaintiff’s list of medications, but otherwise advised him to keep
taking his other medications, to keep exercising, and to lose weight. (Tr. 324.)
Plaintiff returned to Dr. Siddiqui on August 27, 2009. (Tr. 325-26.) At this visit,
plaintiff complained of becoming easily fatigued, but denied any chest pain, shortness of breath,
or dizziness. (Tr. 325.) At this visit, plaintiff’s blood pressure read 130/90. (Id.) Examinations
showed that the plaintiff’s heart was beating regularly and his lungs were clear. (Id.) The
musculoskeletal examination of plaintiff showed no edema, no cyanosis, and no clubbing. (Id.)
Dr. Siddiqui suggested plaintiff’s weakness was from cardiomyopathy and advised plaintiff to
continue with his current medications, to keep exercising, and to lose weight. (Tr. 325-26.)
On March 29, 2010, after the ALJ hearing, plaintiff returned to Dr. Siddiqui and
complained of swelling in his legs. (Tr. 329-30.) Plaintiff’s blood pressure was 140/80, and a
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heart examination showed regular rhythm with a metallic click. (Id.) Plaintiff’s lungs were also
clear. (Id.) Dr. Siddiqui recommended that plaintiff continue on his current medications, keep
exercising, and loose weight. (Tr. 330.) Dr. Siddiqui also stated that a physical therapist would
be better equipped than he to determine plaintiff’s capacity to lift and pull heavy objects. (Id.)
2. Dr. Pilar Stevens Cohen—Cardiologist
On August 14, 2009, Dr. Pilar Stevens Cohen, a cardiologist at Cardiocare Consultants
(the same clinic as Dr. Siddiqui 3), completed an assessment of plaintiff’s ability to do workrelated activities. (Tr. 297-302.) Dr. Cohen found that plaintiff could continuously lift up to
twenty pounds, frequently lift up to fifty pounds, and occasionally lift up to 100 pounds. (Tr.
297.) Dr. Cohen also found that plaintiff could frequently carry up to twenty pounds and
occasionally carry up to fifty pounds. (Id.) In addition, Dr. Cohen stated that plaintiff could
continuously sit for eight hours and stand or walk for three hours and that in an eight-hour
workday he could sit for eight hours and stand or walk for seven hours. (Tr. 298.) Further, Dr.
Cohen found that plaintiff did not require a cane to walk around. (Id.) Dr. Cohen also stated that
plaintiff could continuously reach, handle, finger, feel, push, and pull with both hands because he
had no history of limitations in his extremities. (Tr. 299.) Moreover, Dr. Cohen found that
plaintiff was able to continuously climb stairs, ramps, ladders, or scaffolds, and balance, stoop,
kneel, crouch, and crawl. (Tr. 300.) Dr. Cohen, however, found that plaintiff could be exposed
only occasionally to unprotected heights, extreme cold, and extreme heat. (Tr. 301.)
On November 19, 2009, plaintiff returned to Dr. Cohen for a follow-up visit. (Tr. 327328.) At this time, plaintiff’s disability application already had been denied, based in part on Dr.
Cohen’s assessment. (Tr. 327.) Plaintiff told Dr. Cohen that he disagreed with Dr. Cohen’s
3
Plaintiff argues that Dr. Cohen is not his treating physician. See Part IV.C infra.
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assessment and that he wanted to be reevaluated. (Id.) Dr. Cohen stated that her earlier
assessment was “based on [plaintiff’s] current cardiac state, which was based on his most recent
stress test data, age, and upon the information available to [Dr. Cohen] based on review of
medical records, and in fact, did not take into account physical limitations [plaintiff] may have.”
(Id.) Dr. Cohen’s report also stated that she believed plaintiff’s “symptoms were out of
proportion to his exams and test results.” (Id.) On that date, Dr. Cohen examined the plaintiff
and found that his blood pressure was 150/110, his heart was beating regularly with a metallic
click, and his lungs were clear. (Id.) Dr. Cohen found that the plaintiff’s cardiac state would
remain stable as long as he stayed on his current medications. (Tr. 328.) Dr. Cohen suggested
that plaintiff would benefit from physical therapy and that a physical therapist would be better
equipped to make a final determination on his body functionality. (Id.)
D. Other Medical Evidence
1. Dr. Jerome Caiati
At the request of the State Disability Determination Services (“DDS”), Dr. Caiati
examined plaintiff on December 17, 2008. (Tr. 215-118.) Dr. Caiati reviewed plaintiff’s
medical history, (Tr. 215), and found that plaintiff did not appear to be in any acute distress and
that he walked slowly with a normal gait, with or without the cane plaintiff stated was prescribed
to him for balance. (Tr. 216.) In addition, plaintiff needed no help getting on and off of the
examination table and was able to get up from a chair without any difficulty. (Id.) Dr. Caiati
also found that plaintiff’s chest was clear, his heart was beating with a regular rhythm, and his
extremities gave no indication of cyanosis, clubbing, or edema. (Tr. 217.) Dr. Caiati also found
that plaintiff had full flexion and rotation of his cervical spine, full movement of his shoulders,
11
elbows, forearms, hip, knees, and ankles, and full strength in his upper and lower extremities.
(Id.) A neurological examination did not reveal any neurological deficit. (Id.)
Dr. Caiati’s diagnoses of plaintiff included uncontrolled hypertension and depression
with history of drug abuse. (Tr. 217-18.) Dr. Caiati provided that plaintiff did not require any
restrictions with respect to sitting, standing, walking, reaching, pushing, pulling, lifting,
climbing, and bending. (Tr. 218.) Dr. Caiati also found that plaintiff’s condition would remain
fair with diet and medication adjustment and that plaintiff would benefit from psychiatric or
psychological evaluation. (Id.)
2. Kathleen Acer, Ph.D.
Upon request of the State DDS, Kathleen Acer, Ph.D., a New York State licensed
psychologist, conducted a psychiatric evaluation of plaintiff on January 7, 2009. (Tr. 219-22.)
During the evaluation, plaintiff reported an “onset of emotional distress” prior to his heart
surgery and stated that he had not been in treatment. (Tr. 219.) Plaintiff further complained of
sleep difficulty, loss of appetite, depressed mood, irritability, stress, anxiety, nervousness, and
frustration over his physical problems and inability to work. (Id.) Plaintiff also reported that he
was worried about his financial situation, was socially withdrawn, felt overwhelmed, had no
patience, and felt tired. (Id.) Dr. Acer reported that plaintiff appeared well dressed, and well
groomed, but that he was irritable and hostile at times during the evaluation. (Tr. 220.) Dr. Acer
noted that plaintiff walked with a limp and used a cane. (Id.) Dr. Acer’s evaluation showed that
plaintiff’ symptoms “appear[ed] to be consistent with some stress related problems, but in and of
[themselves did] not appear to be significant enough to interfere with functioning.” (Tr. 220-21.)
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3. Dr. R. Lopez
On January 15, 2009, Dr. R. Lopez, a State Agency psychological consultant completed a
Mental Residual Functional Capacity Assessment form for the plaintiff after reviewing plaintiff’s
medical records. (Tr. 237-39; Def.’s Mem. in Supp. at 8.) Dr. Lopez found that plaintiff was
“capable of following supervision, relating appropriately to coworkers and performing
[substantial gainful activity],” but found that he should not perform tasks that could lead to a
high degree of stress. (Tr. 239.)
4. Dr. S. Gowd
On January 29, 2009, at the request of the New York State Division of Disability
Determination, Dr. S. Gowd, having reviewed plaintiff’s medical records, provided medical
advice regarding plaintiff’s condition. (Tr. 241-42.) Dr. Gowd found that plaintiff was limited
to standing six hours per day, lifting twenty pounds occasionally, and stooping and crouching
occasionally. (Id.)
5. Dr. Osvaldo Fulco
On October 6, 2009, Dr. Osvaldo Fulco, an expert witness for the defendant, responded
to interrogatories from the plaintiff. (Def.’s Mem. in Supp. at 12; Tr. 304-08.) Having reviewed
plaintiff’s medical records, Dr. Fulco observed that none of plaintiff’s impairments met or
equaled any of the impairments in the Listing of Impairments, (20 C.F.R. Pt. 404, Subpt. P, App.
1), and that there was “no clinical evidence of congestive heart failure.” (Tr. 307.) Dr. Fulco
found that in an eight-hour work day, plaintiff could stand and/or walk for two hours and sit for
six hours. (Tr. 308.) Dr. Fulco also found that plaintiff could frequently lift and carry up to ten
pounds and occasionally lift and carry up to twenty pounds. (Tr. 308.) Dr. Fulco further stated
13
that plaintiff’s ability to stand, walk, and climb, was limited “because of dyspnea on exertion and
left ventricular dysfunction.” (Def.’s Mem. in Supp. at 12; Tr. 306.)
6. Jules Heyman, Ph.D.
Plaintiff submitted to the AC two letters from Jules Heyman, Ph.D., a New York State
licensed psychotherapist. (Tr. 141-42.) The letters, dated July 12, and July 22, 2010, were
written after the ALJ’s decision. (Id.) In these letters, Dr. Heyman stated that the plaintiff’s
fatigue, dizziness, light-headedness, and agitation were side effects of his medication. (Tr. 141.)
Dr. Heyman further stated that plaintiff suffered from depression, feelings of helplessness, and
anxiety because “[h]is hopes, his dreams, [and] his ambitions were all shattered” when he no
longer could work as a tractor trailer driver. (Id.) Dr. Heyman stated that he would work with
plaintiff “to reduce his depression, anxiety, and feelings of helplessness and hopelessness.” (Tr.
141.)
DISCUSSION
I.
Standard of Review
A. Review of the ALJ’s Decision
In reviewing a decision of the commissioner, a court may “enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g). The court may set aside a determination of the ALJ only if it is “based upon
legal error or is not supported by substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999) (internal quotation marks omitted). “Substantial evidence is ‘more than a mere
scintilla,’ and is ‘such relevant evidence as [a] reasonable mind might accept as adequate to
support a conclusion.’” Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (quoting
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Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct 1420, 28 L. Ed. 2d 842 (1971)).
Furthermore, the findings of the Commissioner as to any fact, if supported by substantial
evidence, are conclusive, 42 U.S.C. § 404(g), and thus, the reviewing court does not decide the
case de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). Thus, the only issue before
the Court is whether the ALJ’s findings that plaintiff was not eligible for disability benefits was
“based on legal error or is not supported by substantial evidence.” Rosa, 168 F.3d at 77.
B. Eligibility for Benefit
To be eligible for disability benefit under the SSA, a claimant must 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 12 months.” 42 U.S.C. §
423(d)(1)(A). The SSA further states that this impairment must be “of such severity that [the
claimant] 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 . . . .” Id. § 423(d)(2)(A).
The SSA has promulgated regulations prescribing a five-step analysis for evaluating
disability claims. See 20 C.F.R. § 404.1520 (2012). This Circuit has described the procedure as
follows:
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 . . . . Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe impairment, he has the
15
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.
Rosa, 168 F.3d at 77 (alterations in original) (quoting Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982) (per curium)). The claimant bears the burden of proof at steps one through
four, while the burden shifts to the Commissioner at step five to show that the claimant is
capable of working. Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
II.
The ALJ’s Decision
Applying the five-step analysis detailed in 20 C.F.R. § 404.1520, the ALJ found that
plaintiff satisfied the first two steps of the analysis: (1) plaintiff had not engaged in substantial
gainful activity since January 1, 2006; and (2) plaintiff’s “left ventricular dysfunction, shortness
of breath and hypertension” constituted severe impairments. (Tr. 12.) In contrast, the ALJ
determined that plaintiff’s “mental impairment of depression” caused only minimal limitations
on his ability to work and was therefore a “non-severe limitation.” (Id.) The ALJ then moved on
to step three and found that plaintiff did not have an impairment or a combination of impairments
that met or equaled one of the impairments listed in Part 404, Subpart P, Appendix 1 of the
regulations. (Tr. 13.)
Before proceeding to steps four and five, the ALJ found that plaintiff had “the residual
functional capacity 4 to perform the full range of sedentary work.” (Id.) Sedentary work is
defined as work that involves “lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools” and is “performed primarily in a
seated position,” although walking and standing is required occasionally, i.e., no more than one4
Residual functional capacity is defined as the “ability to do physical and mental work
activities on a sustained basis despite limitations” from impairments. (Tr. 11; see 20 C.F.R. §
416.945(a) (2012) (“Your residual functional capacity is the most you can still do despite your
limitations”).)
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third of the time. SSR 83-10, 1983 WL 31251 (Jan. 1, 1983). In making this finding, the ALJ
considered “all [of plaintiff’s] symptoms and the extent to which these symptoms [could]
reasonably be accepted as consistent with objective medical evidence.” (Tr. 13.) The ALJ also
relied heavily on the opinions of Dr. Fulco and Dr. Cohen, both finding that plaintiff could
perform sedentary work. (Tr. 14-15.)
The ALJ then proceeded to steps four and five of the analysis. At step four, the ALJ
determined that plaintiff was unable to perform his past work as a tractor trailer driver. (Tr. 14.)
The ALJ then turned to the fifth and final step in the analysis—whether plaintiff, given his
residual capacity to perform sedentary work, was capable of performing any job in the national
economy. Rosa, 168 F.3d at 77. Here, the ALJ considered a number of factors including
plaintiff’s age and education. (Tr. 14-15.) The ALJ noted that plaintiff, who was 36 years old at
the time of the alleged onset of disability, was considered a “younger individual” pursuant to 20
C.F.R. §§ 404.1563 and 416.963. (Tr. 14). The ALJ also noted that the plaintiff held a high
school diploma and was able to communicate in English. (Id.) Furthermore, the ALJ concluded
that “[b]ased on a residual functional capacity for the full range of sedentary work, considering
the claimant’s age, education, and work experience,” the plaintiff was not disabled. (Tr. 15.)
III.
The Parties Arguments
The defendant argues that the decision of the ALJ should be affirmed because it “is
supported by substantial evidence in the record and is based upon application of the correct legal
standards.” (Def.’s Mem. in Supp. at 1.) The plaintiff, on the other hand, objects to the ALJ’s
decision and argues that it “was not supported by substantial evidence and should be reversed or
annulled, or in the alternative, . . . remanded for a new administrative hearing . . . .” (Pl.’s Mem.
in Opp’n at 1.) The plaintiff sets forth three reasons for its position. First, the plaintiff asserts
17
that “the Commissioner has arbitrarily disregarded the subjective evidence of limitations and
disability as testified to by the plaintiff and his mother, and documented by his physicians.” (Id.
at 9.) Second, the plaintiff asserts that the AC should have considered “additional medical
evidence that [was] secured subsequent to the Administrative Hearing and provided to the
[ALJ]” from Dr. Jules Heyman. (Id. at 8.) Third, the plaintiff asserts that the ALJ relied too
heavily on the residual functional capacity evaluation of Dr. Cohen and failed to “give proper
weight to the opinion of the plaintiff’s treating sources,” in particular, Dr. Siddiqui. (Id. at 8-9.)
IV.
Application of the Governing Law
A. Assessment of Credibility and Plaintiff’s Subjective Testimony
Social Security regulations require an ALJ to consider a claimant’s subjective testimony
regarding his symptoms when analyzing whether he is disabled. See 20 C.F.R. § 404.1529(a)
(2011). The regulations contemplate a two-step process to evaluate a claimant’s subjective
testimony regarding his symptoms. First, the ALJ must determine “whether there is an
underlying medically determinable physical or mental impairment . . . that could reasonably be
expected to produce” the claimed symptoms. See SSR 96-7p, 1996 WL 374186, at *2 (July 2,
1996). Here, the ALJ found that plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms.” (Tr. 14.)
Second, the ALJ “must evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.” SSR 96-7p, 1996 WL 374186 at *2 (July 2, 1996).
Moreover, if a claimant’s subjective evidence of pain is supported by objective medical
evidence, it is entitled to “great weight.” Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir.
1992) (internal quotation marks omitted). If, however, a claimant’s subjective explanation of his
18
symptoms suggests a greater severity of impairments than can be demonstrated by the objective
medical evidence, the ALJ must consider additional factors to determine the credibility of the
plaintiff, including the plaintiff’s daily activities, the location, duration, frequency, and intensity
of symptoms, the type, dosage, effectiveness and side effects of medications taken to relieve
symptoms, and other treatments or measures taken to relieve those symptoms. See 20 C.F.R. §
404.1529(c)(3). Ultimately, if after consideration of the entire case record the findings of the
ALJ as to the credibility of the plaintiff are supported by substantial evidence, then “the court
must uphold the ALJ’s decision to discount a [plaintiff’s] subjective [statements].” Aponte v.
Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citing; McLaughlin v.
Sec’y, of Health, Educ. and Welfare, 612 F.2d 701, 704 (2d Cir. 1982)); SSR 96-7p, 1996 WL
374186.
Here, there was substantial evidence in the record for the ALJ to conclude that “the
claimant’s statements concerning the intensity, persistence, and limiting effects of his symptoms
are not credible to the extent they are inconsistent with the . . . residual functional capacity
assessment.” (Tr. 14.) In particular, the ALJ noted that although plaintiff testified that he was
not able to sit for longer than thirty minutes before having to change position, not able to lift
more than two gallons of milk, and only able to walk short distances, the objective medical
evidence presented by Dr. Fulco and Dr. Cohen suggested otherwise. (Id.) Dr. Fulco found that
plaintiff could stand and/or walk for two hours and sit for six hours in an eight-hour workday,
frequently lift and carry up to ten pounds, and occasionally lift and carry up to twenty pounds.
(Tr. 308.) Similarly, Dr. Cohen found that plaintiff could sit for eight hours and stand or walk
for seven hours in an eight-hour work day. (Tr. 297-98.)
19
The findings of Dr. Cohen and Dr. Fulco are supported by the other medical evidence in
the record. For example, Dr. Siddiqui repeatedly found that plaintiff’s heart had a normal
rhythm, plaintiff’s lungs were clear, plaintiff was well built and nourished, and that plaintiff had
no musculoskeletal complications. (See, e.g., Tr. 258, 262, 267, 323.) Similarly, Dr. Caiati
imposed no restrictions on plaintiff’s ability to sit, stand, walk, and lift. (Tr. 217-218.) While
Dr. Acer found that plaintiff had stress related problems, she stated these problems did not
interfere with plaintiff’s functioning, (Tr. 221), and Dr. Lopez stated that plaintiff could engage
in substantial gainful activity as long as it did not lead to a high degree of stress. (Tr. 239.)
Furthermore, Dr. Gowad opined that plaintiff could stand for six hours and lift twenty pounds
occasionally. (Tr. 241.)
In addition, evidence concerning plaintiff’s daily activities supports the ALJ’s findings
that the plaintiff could perform sedentary work. For example, the plaintiff testified that he
spends his days, reading, watching television, going on the internet, and “walk[ing] up and down
through the house.” (Tr. 35-36, 41.) He is able, albeit with occasional rest stops along the way,
to walk five blocks to his former high school and walk around the track, which is approximately
a quarter-mile long. At the hearing, plaintiff testified that he did not require any sort of cane or
brace. (Tr. 49.) Plaintiff also reported to Dr. Caiati that he could shower and dress himself, (Tr.
216), and testified at the hearing that he drove a car about once a week and was able to take the
bus if his parents were unavailable to drive him. (Tr. 42-43.)
Therefore, the Court concludes that the ALJ’s findings as to plaintiff’s credibility are
supported by substantial evidence and are, therefore, upheld.
B. Consideration of Evidence Post-Dating the Hearing from Dr. Jules Heyman
20
The plaintiff asserts that two letters from Dr. Heyman, dated July 12 and 22, 2010 were
not properly considered as part of the medical evidence when the AC made its decision not to
review his case. (Pl.’s Mem. in Opp’n at 8.) The AC will only consider new medical evidence if
it relates to a period on or before the plaintiff’s hearing with the ALJ. 20 C.F.R. §§ 404.970(b),
416.1470(b) (1987). Here, as the defendant points out, the letters, written by Dr. Heyman and
submitted to the AC concerning plaintiff’s mental impairments and the side effects of plaintiff’s
medications, both post date the ALJ’s November 2, 2009 decision by almost nine months. (Tr.
141-42; Def’s Mem. in Supp. at 20.) In addition, the letters indicate that Dr. Heyman will work
with plaintiff “to reduce his depression, anxiety, feelings of helplessness, and hopelessness,” and
the extent to which these letters relate to the period on or before the ALJ’s decision, or if at all, is
unclear. (Tr. 141.)
Even if the AC could have considered Dr. Heyman’s letters, his opinion is not controlling
because there is no evidence to establish that Dr. Heyman is or was the plaintiff’s treating
physician. 5 The Social Security regulations define a treating physician as a claimant’s “own
physician . . . who has, or has had, an ongoing treatment relationship with [the claimant].” 20
C.F.R. § 404.1502 (2011). Although Dr. Heyman states in his letters that he has known the
plaintiff “for most of his life” (Tr. 141), there is no evidence to suggest that Dr. Heyman had an
ongoing treatment relationship with the plaintiff. Finally, to the extent the Court could construe
Dr. Heyman’s letters as providing any medical opinion, Dr. Heyman states only that plaintiff
“despite his efforts to pursue his former career . . . is totally unable to do so” and makes no
recommendation as to plaintiff’s ability to perform other work existing in the national economy.
5
See Part IV.C infra, discussing “treating physician rule.” (The opinion of an applicant’s
treating physician receives “controlling weight” if supported by substantial evidence in the case
record. 20 C.F.R. § 404.1527(c)(2) (2011)).
21
(Id.) As discussed above, a plaintiff is entitled to benefits only if he cannot perform any work
existing in the national economy, which substantial evidence in the record states that he can
perform.
Therefore, the Court finds that plaintiff’s submission of Dr. Heyman’s letters after the
ALJ’s decision did not require the AC to review plaintiff’s case.
C. The Treating Physician Rule
Plaintiff argues that the AC should have overturned the ALJ’s decision based on “records
secured subsequent to the Administrative Hearing and presented to the Appeals Council
prov[ing] that Dr. Cohen was not the plaintiff’s treating cardiologist, but rather, Dr. Saeed A.
Siddiqui was.” 6 (Pl.’s Mem. in Opp’n at 9.) Social Security regulations require that the medical
opinion of an applicant’s treating physician receive “controlling weight” so long as that opinion
is “well-supported by medically acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 404.1527(c)(2) (2012); see also Rosa, 168 F.3d at 78-79. The “treating physician rule”
does not apply, however, when the treating physician’s opinion is inconsistent with the other
substantial evidence in the record, “such as the opinions of other medical experts.” Halloran,
362 F.3d at 32. If the ALJ determines not to give the treating physician’s opinion controlling
weight, he or she “must consider various ‘factors’ to determine how much weight to give to the
opinion.” Id. (citing 20 C.F.R. § 404.1527(c)). 7 These factors include: (1) the length, nature,
and extent of the treatment relationship; (2) the evidence in support of the treating physician’s
6
Here, the parties do not dispute whether the AC could consider new medical evidence
from Dr. Siddiqui. Therefore, the Court will assume that the AC could have considered evidence
from Dr. Siddiqui insofar as it relates to the plaintiff’s condition on or before the hearing. See 20
C.F.R. §§ 404.970(b), 416.1470(b).
7
Since the Second Circuit decided Halloran, the Social Securities Regulations have been
amended. At the time Halloran was written, the language cited here was found at 20 C.F.R. §
404.1527(d).
22
opinion; (3) consistency of the opinion with the entirety of the record; (4) whether the treating
physician is a specialist; and (5) other factors that are brought to the attention of the Social
Security Administration that tend to support or contradict the opinion. 20 C.F.R. §
404.1527(c)(2) (i-ii) & (c)(3-6); see also Halloran, 362 F.3d at 32. Furthermore, when giving
the treating physician’s opinion less than controlling weight, the ALJ must provide the claimant
with “good reasons” for doing so. 20 C.F.R. § 404.1527(c)(2) (2011). Even if the ALJ commits
error in discounting the treating physician’s opinion, however, “where application of the correct
legal principles to the record could lead [only to the same] conclusion, there is no need to require
agency reconsideration.” See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (quoting
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
Here, no remand is required because the plaintiff does not point to any portion of Dr.
Siddiqui’s opinion that contradicts Dr. Cohen. In fact, Dr. Siddiqui’s medical opinion supports
both Dr. Cohen’s and Dr. Fulco’s assessments that plaintiff can perform sedentary work. As
discussed above, Dr. Siddiqui frequently found that plaintiff’s heart and lungs were normal and
that he was generally well nourished and had no musculoskeletal problems. As a result, remand
for further consideration of Dr. Siddiqui’s records would lead only to the same conclusion that
plaintiff is not disabled and is, therefore, not required. See Zabala, 595 F.3d at 409.
Still, plaintiff seeks to cast doubt upon Dr. Cohen’s opinion by relying on a report from
November 19, 2009 (after the ALJ hearing) stating that in determining plaintiff’s ability to
perform sedentary work Dr. Cohen “did not take into account any physical limitations Mr.
Walden may have.” 8 (Tr. 327.) This statement alone, however, is not enough to discount the
8
Again, the parties do not dispute that the AC could have considered new medical
evidence from Dr. Cohen. It seems the ALJ could have considered Dr. Cohen’s statement since
23
substantial evidence in the record that plaintiff can perform sedentary work. (Tr. 327.) In the
same report, Dr. Cohen reiterates that his previous assessment was based “on [plaintiff’s] most
recent stress test data, age, and upon the information available to [her] based on review of
medical records.” (Id.) Moreover, medical evidence from Dr. Fulco, Dr. Siddiqui, and Dr. Acer
supports Dr. Cohen’s assessment. In fact, none of the physicians who evaluated the plaintiff’s
condition has opined that plaintiff is unable to perform sedentary work. As a result, even if Dr.
Cohen’s statement could somehow be construed as support for plaintiff’s argument that he
cannot perform sedentary work, there is not substantial evidence in the record to support
plaintiff’s view. Remand, therefore, would result in the same conclusion and is not required.
See Zabala, 595 F.3d at 409.
CONCLUSION
For the foregoing reasons, the defendant’s motion is granted and the decision of the
Commissioner is affirmed. The clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
August 13, 2013
/s/
Denis R. Hurley
Unites States District Judge
it relates to her treatment of plaintiff before the ALJ hearing. See 20 C.F.R. §§ 404.970(b),
416.1470(b).
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