Opinion
No. 04 CV 1748 (JG).
February 7, 2005
HERBERT S. FORSMITH, New York, Attorney for Plaintiff.
ROSLYNN R. MAUSKOPF, United States Attorney, Brooklyn, New York.
Orelia E. Merchant, Assistant United States Attorney, Attorney for Defendant.
MEMORANDUM AND ORDER
Plaintiff Santiago Aponte requests review of a determination by the Commissioner of Social Security ("the Commissioner"), made pursuant to the Stieberger settlement order, that he was not under a disability from February 1, 1987 to August 28, 1990. The Commissioner moves for judgment on the pleadings, and Aponte cross-moves for judgment on his own behalf. For the reasons stated below, the Commissioner's motion is granted and the cross-motion is denied.
BACKGROUND
Aponte applied for disability insurance and Supplemental Security Income ("SSI") benefits on December 6, 1988, claiming eligibility for benefits since January 29, 1987. The Commissioner denied his claim on August 28, 1990, based on the determination of Administrative Law Judge ("ALJ") I. Bradford Spielman that Aponte was not under a disability as defined in the Social Security Act. (Tr. 34-38.) The Appeals Council denied his request for review on June 3, 1991. ( Id. at 29.)
"Tr." refers to the Certified Administrative Record of the Hearing and all documents submitted to the Social Security Administration.
Soon thereafter, Aponte applied once again for benefits. He was found disabled as of August 29, 1990. Thus, the only period at issue here is the one covered by the first application — from February 1, 1987 to August 28, 1990.
Aponte's original application, dated December 6, 1988, was reopened pursuant to the settlement order in Stieberger v. Sullivan, 801 F.Supp. 1079 (S.D.N.Y. 1992). This order allowed claimants who (1) had a disability claim denied or terminated between October 1, 1981 and July 2, 1992 on the ground that the claimant was not disabled; (2) was a New York State resident at the time of the denial or termination; and (3) had a disability claim denied or terminated at any level of review between October 1, 1981 and October 17, 1985, or at the ALJ or Appeals Council level between October 18, 1985 and July 2, 1992 to have their claims readjudicated.
Aponte elected to have his application readjudicated in a form dated April 29, 1999. ( Id. at 144.) The application was reopened pursuant to the settlement for the period between February 1, 1987 and August 28, 1990. (Tr. 134, 137, 152.) By letter dated August 9, 1999, the Commissioner determined that there was no error in its prior denial of benefits. ( Id. at 133-34.) Aponte requested an administrative hearing ( id. at 138), which was held by ALJ Mark A. White on March 14, 2000 ( id. at 41). In a decision dated July 26, 2000, ALJ White found that Aponte was not under a disability during the relevant period. ( Id. at 16-24.) Aponte requested review of that decision the same day, and the Appeals Council received that request on August 11, 2000. ( Id. at 10.) The Council did not make a determination for review until over three and one-half years later, on March 10, 2004, when it denied Aponte's request.
Aponte brought the instant action requesting review of the denial of his application for benefits on April 23, 2004.
A. Medical Evidence for the Period in Question: February 1, 1987 to August 28, 1990
Aponte was born on January 7, 1940 and completed school up to the seventh grade. (Tr. 18, 49, 152.) In his original application for benefits, dated August 9, 1989, his disabling conditions were "high cholesterol, syphilis, stabbing and gunshot wounds." ( Id. at 74.) His condition first bothered him and stopped him from working on January 29, 1987. ( Id.) He had a problem with his back and difficulty walking and climbing stairs. Aponte also reported that he must walk slowly because "otherwise [his] heart beats fast." ( Id.) He listed Dr. Steve Menna, who he said he saw every three weeks from 1988 to at least August 9, 1989, and Dr. P. Noel, who he saw from an unknown date to at least June of 1989, as his treating physicians. He was also treated at Long Island City Hospital.
In that application, Aponte reported that his job required no walking, standing, or bending, and required eight hours of sitting. ( Id. at 79.) He was "constantly" reaching, and he "frequently" lifted up to fifty pound boxes of polishing compound. ( Id.) In his request for reconsideration dated March 9, 1990, Aponte reported that he still had back pain and that he had pain in his kidneys. ( Id. at 88.)
1. Medical Records
The record shows that Aponte was diagnosed with prostate cancer on May 28, 1997, and treated with a radical retropubic prostatectamy on May 29, 1997. (Tr. 180-87.)
Hospital records from Long Island College Hospital show that from November 9, 1989 to January 25, 1990, Aponte visited a male genito-urinary clinic and a medical clinic. On November 9, 1989, he complained of penile discomfort and lower back pain. He had recently tested positive for syphilis. The record stated that he had "not been able to work for two years now because of LBP [lower back pain]." ( Id. at 105.) He was seen again at the clinic on November 30, 1989, and was still experiencing penile discomfort and lower back pain. ( Id. at 99.) On December 14, 1989, he was referred to a medical clinic for "STD treatment," and prescribed penicillin. ( Id. at 97-98.) Aponte returned to the clinic on December 28, 1989, and complained of pain in his waist. He was administered a second dose of penicillin for syphilis. Follow-up visits occurred on January 4, 1990 and January 11, 1990. On January 25, 1990, on a visit to the urology clinic, he complained of "bilateral renal pain" for three weeks, dizziness, bladder burning sensation and "palpitations upon exertion." ( Id. at 93.) As of February 5, 1990, he "still [had] pain in his back," with the record noting that he had a "[c]hronic back ache." ( Id. at 91.)
2. Treating Physicians
Dr. P. Noel completed an evaluation on January 10, 1990. He first treated Aponte on September 25, 1985, and last treated him on August 21, 1989, seeing him about three times per year over this period. (Tr. 117.) In a letter dated August 2, 1990, ALJ Spielman requested that Dr. Noel complete a medical evaluation questionnaire to supplement an earlier evaluation he had completed. ( Id. at 128.) In response to inquiries, Dr. Noel stated that Aponte had the ability to (1) stand for 2 hours; (2) sit for 3 hours; (3) bend and touch his toes; (4) walk one-half mile; (5) stoop; (6) manipulate his arms and fingers; (7) raise his arms above shoulder level; (8) climb stairs; and (9) use public transportation. ( Id.) The doctor noted that his office did not have the capacity to test for the amount of weight he could lift, carry, push or pull. ( Id.) The doctor marked "medium" as Aponte's physical capacity to perform work. ( Id.) There was no additional treatment recommended to improve Aponte's functional ability. He also wrote that he "never told [Aponte] to stop" working. ( Id.) The last recorded contact with Dr. Noel occurred on June 25, 1990, when he referred Aponte to an orthopedist at Long Island College Hospital for further evaluation.
The question asked the doctor about "the claimant's physical capacity to perform the following types of work:" (a) "sedentary" (b) "light" (c) "medium" (d) "strenuous." The doctor seems to have misunderstood this question and simply checked off "medium" rather than assessing Aponte's ability to do each type of work.
In this same evaluation, Dr. Noel also completed a medical report with Aponte's medical history. A chest x-ray on January 1, 1989, showed a "metallic density." On August 22, 1989, Aponte's diagnosis included thoroco lumbar spine and mild dextroscoliosis, as well as a bullet lodged in his right anterior soft tissue. ( Id. at 130.) He also had a history of allergic rhinitis, which was "helped with meds." ( Id. at 131.) A chest x-ray on June 25, 1990, showed no active disease and an echo cardiogram performed on March 29, 1990 was normal. ( Id.) Finally, he was diagnosed with high triglycerides. ( Id. at 132.) Treatment for these diagnoses included naproxen for lower back pain and a referral to a psychiatrist for "mental problem — adjustment disorder." ( Id.)
3. Consultive Examinations
On September 27, 1989, Aponte was examined by Dr. Myron Seidman. (Tr. 107-10.) The doctor reported that Aponte complained of chest pain, back pain and a nervous condition, each of which were one year in duration. His pain was across his lower back, and prevented him from sleeping on a bed. He had been given a tens device, which did not provide any relief. He also had a history of nervous condition, which caused him to be easily startled.
His medication included Motrin, Triacin, and Bactrim. Aponte also took 600 milligrams of Lopid and 500 milligrams of Vitamin C. In 1972, he was hospitalized for a gunshot wound to the chest and in 1987, he was hospitalized for an abdominal stab wound.
Aponte reported a history of urinary tract infections and had a kidney problem "believed to be related to [his] back problem." ( Id. at 108.) With respect to his spine, the doctor found "no scoliosis, no paraspinal muscle spasm and no tenderness." ( Id.) No major chest deformity was found, although there was a scar across his right breast. No abnormalities were found in his abdomen. Test reports indicated that a lumbo-sacral spine showed slight scoliosis. The doctor concluded that follow-up was advised by Aponte's medical attendants. ( Id. at 110, 112.)
4. Psychiatric Evaluations
Dr. Jorge Oldan completed a psychiatric evaluation of Aponte based on an examination performed on February 6, 1990. (Tr. 120-21.) Dr. Oldan found that Aponte's speech was "generally relevant, coherent and associations were goal directed." ( Id. at 120.) His thought process was "logical, sequential and spontaneous." ( Id.) Aponte described aural hallucinations in the form of possible phantom footsteps to the doctor. ( Id.) He also described "his concern about keeping the family together and functioning with the basic needs covered." ( Id.) His affect was "appropriate," but "his facial expression, attitude and posture suggested a moderate degree of anxiety." ( Id.) In terms of sensorium and intellect, Aponte's behavior was not irregular or inappropriate, and he was functioning in the average range of intelligence. His insight and judgment were also unimpaired. ( Id.) He took care of his three children and completed all household chores.
Dr. Oldan diagnosed Aponte with adjustment disorder with mixed and emotional features. He advised that psychotherapy "might be of help," and found that psycotropic medication did not seem necessary. He concluded that Aponte "will keep functioning at the same level as now in the near future." (Tr. 121.)
The record also has a psychiatric evaluation dated July 22, 1999, from Dr. Stavros Sarantakos of the Brooklyn Center for Psychotherapy, Inc., where Aponte was seen from February 14, 1992 to July 2, 1997. Aponte complained of depression in response to his life circumstances, irritability, memory impairment, poor sleep and passive suicidal ideation. (Tr. 204.) He reported a history of polysubstance abuse, which had stopped in 1986.
Dr. Sarantakos's diagnosis was major depression, recurrent, moderate and axis II borderline personality disorder. He recommended psychotherapy and medication. ( Id. at 205.) Over the time period he was seen, Aponte was prescribed various medications. The combination of these medications and "verbalizing his conflicts" stabilized his moods. (Tr. 204-05.) After his last session on July 2, 1997, he did not return to treatment and did not respond to outreach. ( Id.)
5. Testimony at the Hearing
The initial hearing for the determination of benefits for this period occurred on August 2, 1990. The transcript for that hearing is not a part of this record.
The hearing with respect to the determination now before me took place on March 14, 2000. ALJ White inquired of Aponte and his attorney. Specifically, he asked Aponte about his treatment by Dr. Veloso, although he never established whether Dr. Veloso treated Aponte during the relevant period and found no evidence of treatment for back pain in the record. (Tr. 46-47.) He then questioned Aponte about the evaluation by Dr. Sarantakos, which commented on Aponte's drug abuse and "problems with the law," again without establishing whether those issues arose during the relevant time period. ( Id. at 47-49.) Finally he asked Aponte about his education and his last job. ( Id. at 49.) Aponte responded that he had attended school until the seventh grade and could not recall the last time he worked. ( Id.) Aponte's attorney then stated that the medical records for the relevant period were not in the record yet, and requested subpoenas to obtain those records. The ALJ agreed to the request and gave the attorney an opportunity to inquire further into Aponte's condition. She declined to do so and ALJ White concluded the hearing.
There are other medical records in the Administrative Record that are not relevant for the period. ( See, e.g., Tr. 197 (Aug. 27, 1993), 237 (Sept. 13, 1993), 239-43 (Jan. 1994), 244-45 (Mar. 15, 1994), 192 (Apr. 8, 1994), 178 (Mar. 13, 1998), 202-03 (Apr. 23, 1999), 198-201 (June 29, 1999)).
B. The ALJ's Decision
By decision dated July 26, 2000, ALJ White concluded that Aponte had a severe impairment or combination of impairments but retained the residual functional capacity to return to the work he performed in the past. For this reason, he was not at that time under a disability, as the term is defined in the Social Security Act and regulations.
(Tr. 18.) The ALJ found that there was no indication that Aponte was engaged in any substantial gainful activity at any time since January 29, 1987. Aponte had a "low back disorder, hypertension and adjustment disorder" which caused "vocationally relevant limitations," although he did not have any of the impairments listed by the SSA in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id.) The ALJ next considered Aponte's residual functional capacity, which analyzes the work that a claimant can perform despite his impairments or disability. Based on the evidence, he concluded that Aponte was capable of performing a full range of medium work during the relevant time period.
ALJ White referred to medical records in the original claims file, which are not part of the current administrative record. According to the ALJ, those records included an eight-day hospital stay related to an abdominal stabbing. ( Id. at 19.) Additionally, there was a consultative exam on January 29, 1989, which concluded that Aponte had some knee pain, a foreign metallic object near his spine and complaints of lower back pain with "mild functional limitation."
At oral argument, counsel for the Commissioner stated that the file reviewed by ALJ White did not include the record from the prior determination, or the transcript of the hearing from that determination. There are references to the original claims file in the decision. It is unclear whether those references are based on the analysis by ALJ Spielman in the first determination, or on a firsthand review of those records.
ALJ White then summarized the evaluations of Dr. Oldan, Dr. Seidman, Dr. Noel, and the records from Long Island College Hospital related to Aponte's diagnosis of syphilis and lower back pain. He concluded that Dr. Seidman did not provide a diagnosis or indicate that Aponte had any specific physical limitations. He gave considerable weight to Dr. Noel's assessment as Aponte's treating physician. He found that "Dr. Noel's assessment that the claimant could perform medium work [was] convincing, since it [was] consistent with the medical evidence." ( Id. at 21.) He also found that the medical evidence, Dr. Noel's assessment, and the consultative evaluations were consistent, although the consultative "reports might have somewhat overstated [Aponte's] capabilities." ( Id.)
The ALJ considered Aponte's testimony and allegations of back pain and emotional problems. He also noted that at the first hearing, Aponte mentioned "sinus problems, his stab wound, and family problems." (Tr. 20.) The allegations of back pain and emotional problems, as well as testimony regarding a stab wound, family problems and sinus problems were "not entirely credible" given the medical evidence in the record and Aponte's activities. ( Id.) Specifically, "the medical evidence . . . did not identify a medical disorder that would correspond in degree to the extent of pain and limitation alleged." ( Id.) This conclusion was supported by "the lack of medical treatment required during this period." ( Id.)
With regard to a psychiatric disorder, ALJ White found that the evidence did not support a conclusion that Aponte had a significant psychiatric disorder before August of 1990. Based on the evidence and Dr. Oldan's evaluation of it, he found that Aponte "had no significant non-exertional limitations which would narrow the range of work he could perform at the time." ( Id.)
ALJ White concluded that Aponte retained "the residual functional capacity to perform the exertional demands of medium work, or work which requires maximum lifting of 50 pounds and frequent lifting of up to 25 pounds." (Tr. 21.) He also found that Aponte was able to "sit, stand or walk for prolonged periods." ( Id.) In looking at Aponte's work as a jewelry polisher, the ALJ found that there was an inconsistency in the amount of weight that he stated he was required to lift in his work. In a medical report dated December 6, 1988, he had stated that he had to lift up to ten pounds. In a later report dated August 9, 1989, he said he was required to lift up to 50 pounds and to sit for prolonged periods. Based on the evidence in the record, the ALJ found that, during the relevant period, Aponte retained the residual functional capacity to return to his past work. ( Id. at 22.) As this finding was sufficient to deny the application for benefits, ALJ White did not perform the last step of the analysis, which is whether there was other work in the national economy that Aponte could perform.
DISCUSSION
A. Standard of Review
I review the Commissioner's decision and the administrative record to determine whether the Commissioner's findings are "supported by substantial evidence" and whether the Commissioner applied the correct legal standard. 42 U.S.C. § 405(g); Pollard v. Halter, 377 F.3d 183, 188 (2d Cir. 2004) (citing Machadio v. Apfel, 276 F.3d, 103, 108 (2d Cir. 2002)). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 409 U.S. 389, 401 (1971)). Where substantial evidence supports the ALJ's conclusions, this Court will not substitute its own judgment as to the facts. Brown v. Bowen, 905 F.2d 632 (2d Cir. 1990). At the same time, "an error of law . . . that might have affected the disposition of the case . . . is grounds for reversal." Pollard, 377 F.3d at 189 (internal quotation omitted).
In deciding whether there is substantial evidence to support the Commissioner's findings, I must "first be satisfied that `the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Echevarria Sec. of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The ALJ who conducts the administrative hearing has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. Sims v. Apfel, 530 U.S. 103, 110-11 (2000).
The Second Circuit, consistent with the regulations, gives the opinion of a treating physician "controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence." Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999) (citations omitted). If the ALJ does not give the treating physician's opinion controlling weight, she must set forth reasons for the weight she ultimately gives the opinion. In making this decision, the ALJ must consider the following factors: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). Moreover, even where the ALJ obtains an assessment from the treating physician(s), the ALJ's duty in this respect is not necessarily discharged. If those findings are deemed conclusory or unsupported by specific clinical findings, the ALJ should obtain a more detailed explanation of the physician's finding of disability. Cruz, 912 F.2d at 12.
B. Steps for Disability Determination
"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Act." Shaw v. Chater, 221 F.3d at 126, 131 (2d Cir. 2000); see also 42 U.S.C. § 423(a), (d). A claimant is "disabled" within the meaning of the Act when he can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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 impairment 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." 42 U.S.C. § 423(d)(2)(A).
Both the Commissioner and the courts of the Second Circuit use the same five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132 (citing the five steps with approval); Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (same). First, the claimant must not currently be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third, the claimant must establish either that the impairment is listed in Appendix 1 of the regulations or that the impairment is equivalent to a listed impairment. 20 C.F.R. § 404.1520(d). Fourth, if the claimant shows that he has such an impairment, he must show that he has no residual functional capacity to perform his past work. 20 C.F.R. § 404.1520(e). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy that the claimant could perform. 20 C.F.R. § 404.1520(f). The claimant has the burden of proving the first four steps; the Commissioner bears the burden of proof on the last step. Shaw, 221 F.3d at 132.
In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The Second Circuit "has long recognized, the combined effect of a claimant's impairments must be considered in determining disability [and] the [Social Security Administration] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995); see, e.g., De Leon v. Sec'y of Health Human Servs., 734 F.2d 930, 937 (2d Cir. 1984).
C. Aponte's Case
The Commissioner, in her motion for judgment on the pleadings, argues that while Aponte's impairments are severe, they did not impair his residual functional capacity to perform his previous work. In his cross-motion for judgment on the pleadings, Aponte contends that his impairments qualified him for benefits during the relevant period. I find that the Commissioner's decision is supported by substantial evidence.
There is no controversy surrounding the ALJ's findings regarding the first three steps. The parties disagree with respect to whether Aponte could have performed his job as a jewelry polisher between February 1, 1987 and August 28, 1990. In his cross-motion, Aponte argues that ALJ White did not fulfill his duty in creating a complete record before making the disability determination, and did not consider the credibility of his testimonial and other assertions regarding his pain. He also argues that the evaluation submitted to the Appeals Council by another of Aponte's treating physicians, Dr. Cesar Veloso, requires my granting his cross motion.
1. Development of the Administrative Record
As noted above, the ALJ conducting the administrative hearing has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. 20 C.F.R. § 404.900(b) (1999) (expressly providing that the social security authorities "conduct the administrative review process in an informal, nonadversary manner"); Sims v. Apfel, 530 U.S. 103, 110-11 (2000); Shaw, 221 F.3d at 134. Aponte argues that ALJ White fell short of that duty because (a) the record does not include the transcript of the first hearing; (b) Dr. Noel's assessment is incomplete and inconsistent; (c) the record is incomplete with respect to the requirements of Aponte's previous work (and his physicians' assessments of whether he can perform those activities); and (d) the record did not include the file presented to the ALJ who granted Aponte benefits beginning August 29, 2000.
a. Transcript of the First Hearing
First, ALJ White did consider evidence from the original claims file ( see tr. 18, 20), and he also supplemented that file with new evidence, as requested by Aponte's attorney ( see, e.g., 212, 215). Even if he did not have the hearing transcript or consider this evidence, the transcript of the hearing on March 14, 2000 reflects an effort on his part to inquire into Aponte's condition for the relevant period. During the hearing, Aponte's attorney stated that the record was incomplete with respect to medical records from Long Island College Hospital, and that she wanted to subpoena those records. The ALJ granted the request. ( Id. at 50.) After this exchange, the ALJ asked Aponte, "Can you recall anything there about your life or your work and tell me why you don't think you could've worked in that period?" ( Id. at 50-51.) Aponte responded, "I can't remember my daily life that long ago." ( Id. at 51.) The ALJ completed his inquiry and then Aponte's attorney was given the opportunity to inquire, i.e., to supplement his brief testimony, and she said that she did not have any questions. The hearing was then concluded.
The above exchange shows an effort by the ALJ to complete the record beyond what was requested by Aponte's attorney. She suggested that the medical records for that time period would serve to complete the record. Even after this suggestion, the ALJ inquired into Aponte's symptoms, and concluded the hearing after Aponte could not recall his symptoms for the time period in question and after he provided counsel with an opportunity to inquire. Accordingly, I cannot conclude that the ALJ did not fulfill his duty to investigate facts and develop the record.
b. Assessment by Dr. Noel
Dr. Noel's assessments are thorough and supported by medical evidence. Aponte argues that the doctor's statement that (1) Aponte can sit for three hours, and (2) he can perform a medium level of work, are inconsistent. I disagree. There is substantial evidence to support the doctor's conclusion that Aponte can sit for 3 hours at a time. The cause of his lower back pain may be his mild dextroscoliosis, or it may be related to his kidneys. The bullet lodged in his back is not mentioned by any physicians as a possible cause, and is located adjacent to T1, which is the top of the upper back.
A mild lumbar condition could be consistent with the ability to sit for three hours at a time, as well as the ability to lift 25 pounds. Moreover, the doctor concluded that Aponte could stand for two hours and walk one-half mile. In the context of the questionnaire, and the other questions, it appears that the doctor concluded that Aponte can sit for 3 hours at one time, and that is consistent with his believing that Aponte can perform a "medium" level of work, as he can take a break after three hours. Additionally, the medical report he completed lists Aponte's medical history, medical tests, medications and diagnoses. (Tr. 130-32.) I cannot conclude that his evaluation and the records are "conclusory" or unsupported.
c. Aponte's Previous Work
The ALJ's conclusion that Aponte could perform his work as a jewelry polisher is supported by substantial evidence. After finding that Aponte could perform "the exertional demands of medium work, or work which requires maximum lifting of 50 pounds and frequent lifting of up to 25 pounds," the ALJ concluded that Aponte was capable of performing this work based on the descriptions that he provided to the SSA in the medical reports he filed.
The inconsistency in the information provided by Aponte does not warrant my remanding his application to the ALJ. In a disability report dated May 26, 1999, Aponte stated that in his job as a jewelry polisher, he frequently lifted 25 pounds and that the heaviest weight he lifted was 20 pounds [sic]. In a report dated August 9, 1989, he reported that 50 pounds was the heaviest weight he lifted and the weight he lifted frequently. Although not part of the Administrative record here, the ALJ reports that in his Supplemental Security Income application dated December 6, 1988, Aponte reported that his job required him to lift up to ten pounds.
I do not believe that a fourth inquiry would provide conclusive evidence as to the exertion required in Aponte's job as a jewelry polisher. Moreover, the ALJ's conclusion that Aponte could perform medium work during the relevant time period is supported by substantial evidence in the record, including the evaluation of Dr. Noel. Accordingly, the ALJ's conclusion that the exertion required in Aponte's work as a jewelry polisher was short of the exertion required in medium work is supported by substantial evidence.
d. Record of Subsequent Disability Determination
Aponte argues that the record is incomplete because it does not contain the evidence upon which an ALJ subsequently determined that Aponte was under a disability as of August 29, 1990, the day after the relevant period here ends. While I am sympathetic to Aponte's argument, the fact that the record does not contain evidence of his medical condition after the period in question here does not render it incomplete. An ALJ's duty in developing the record is to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. Sims, 530 U.S. at 110-111. The record before me contains assessments by treating physicians, as well as medical records from the relevant period, which are both necessary and sufficient to determine whether Aponte was under a disability during that period. In fact, the administrative record includes hospital records from after the period in question here, and I find that those records are not relevant to my determination. Finally, the ALJ's determination in Aponte's second application established the date of onset of disability to be August 29, 1990. Thus, either the record before him or her did not contain medical evidence before that date, or the ALJ found that there was not sufficient evidence in the record to support a finding of disability prior to that date.
Accordingly, I find ALJ White developed a record from which he could adequately assess the basis for Aponte's disability determination.
2. Credibility of Aponte's Testimony Regarding His Symptoms and Pain
In making her disability determination, the Commissioner must consider subjective evidence of pain or disability testified to by the claimant. See 20 C.F.R. § 404.1529(a). However, "[s]tatements about a claimant's pain cannot alone establish disability; there must be medical evidence that shows that the claimant has a medically determinable impairment that could reasonably be expected to produce the pain or other symptoms alleged." Davis v. Massanari, No. 00 Civ. 4330, 2001 WL 1524495, at *6 (S.D.N.Y. Nov. 29, 2001) (citing, e.g., 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a)). The intensity and persistence of a claimant's subjective symptoms, e.g., pain, is a factor in assessing the scope of any functional limitations resulting from a medically determinable impairment, considering the claimant's credibility in light of "all of the available evidence." Id. (citing 20 C.F.R. § 416.929(c)(1); SSR 96-7p); Sarchese v. Barnhart, No. 01 Civ. 2172, 2002 WL 1732802, at *7 (E.D.N.Y. July 19, 2002). Indeed, the regulations acknowledge that "[s]ince symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, [the ALJ shall] . . . carefully consider any other information [that the claimant] may submit about [her] symptoms." 20 C.F.R. § 404.1529(c)(3).
Seven factors must be considered in evaluating a claimant's subjective complaints: (1) the individual's daily activities; (2) the location, duration, frequency, and intensity of the individual's pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the individual received or has received for relief of pain or other symptoms; (6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for fifteen to twenty minutes every hour, or sleeping on a board); and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
Because the ALJ has discretion to evaluate the claimant's credibility in this regard, if the ALJ's decision not to credit plaintiff's subjective complaints of pain is supported by substantial evidence, then I must uphold that determination. Aronis v. Barnhart, No. 02 Civ. 7660, 2003 WL 22953167, at *7 (citing Aponte v. Secretary, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984). However, the ALJ must set forth his or her reasons for discounting a plaintiff's subjective complaints with "sufficient specificity to enable [the district court] to decide whether the determination is supported by substantial evidence." Miller v. Barnhart, No. 02 Civ. 2777, 2003 WL 749374, at *7 (S.D.N.Y. Mar. 4, 2003) (quotations and citation omitted).
In finding Aponte's testimony "not entirely credible," ALJ White noted (1) that there was no medical disorder that would correspond to the degree and extent of pain claimed by Aponte; (2) the lack of medical treatment required during this period; and (3) the range of Aponte's activities during this period, which included the care of his family. (Tr. 20.) Substantial evidence supports each of these reasons. Dr. Noel diagnosed Aponte with mild dextroscoliosis and lower back pain, for which he prescribed Naprosyn and Motrin. Dr. Veloso checked off "Yes" when asked whether medication has been able to completely relieve the pain, and wrote that "non regular only 2x yearly office visit [sic] might be an indication of control." ( Id. at 230.) The medical records during this period show that Aponte was seen by a physician about three times per year, with a series of visits from late 1989 to early 1990, when he was diagnosed and treated for syphilis, which would not qualify him as under a disability because it is not a condition which can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423. Dr. Noel also reported that "he never told [Aponte] to stop" working. ( Id. at 129.) Finally, Aponte reported that he was the full-time caretaker of his three children, who were seven, eight and thirteen years of age as of 1990. He completed all household chores, was able to bathe and care for himself, shopped for groceries, and used public transportation. ( Id. at 121.) As for other measures Aponte took to alleviate his pain, he reported that he slept on the floor. ( Id. at 107.)
ALJ White found Aponte's testimony was "not entirely credible." While the ALJ could have concluded otherwise, I must defer to his determination where, as here, there is substantial evidence to support that determination. Accordingly, I cannot disturb the ALJ's credibility determination.
3. New Evidence before Appeals Council — Evaluation by Dr. Veloso
In addition to the evidence above, the Appeals Council received a report from Dr. Cesar Veloso. (Tr. 5-7.) Dr. Veloso treated Aponte twice per year from October 19, 1989 to June 16, 1999. In his evaluation of Aponte for the period in question, he reported that Aponte was diagnosed with allergic rhinitis, hypercholesterolemia, neck and lower back pain. ( Id. at 228.) Aponte complained of a nagging achiness with pain around the neck and along his spine, and the doctor rated that pain at a level of four to six, which is described as moderate. ( Id. at 230.) He also found that Aponte's pain would interfere with attention and concentration "frequently." ( Id. at 233.)
Dr. Veloso found that Aponte could sit for four hours and stand or walk for four hours, in an eight-hour day. ( Id.) He checked off a box that stated that is was either "necessary or medically necessary" for Aponte not to sit continuously or stand/walk continuously in a work setting, and that "lifting aggravated the pain." ( Id. at 230-31.) Aponte can occasionally lift and carry five to ten pounds. ( Id. at 231.). He would have only minimal limitation in an eight-hour workday in grasping objects and using his hands for fine manipulations, and would have moderate limitation in using his arms for reaching. ( Id. at 232.) Dr. Veloso checked "yes" when asked whether Aponte's symptoms would increase in a competitive work environment and whether his condition interfered with his ability to keep his neck in a constant position. Aponte could not do "a full time competitive job that requires that activity on a sustained basis" ( id.), and he should not push, pull, kneel, bend, or stoop and needs to avoid heights ( id. at 234).
This report is relevant to the extent that it reflects Dr. Veloso's assessment of Aponte's condition during the period between February of 1987 and August of 1990. Dr. Veloso treated Aponte for less than one year of that period, and presumably examined him two times. Dr. Noel's assessment might be given greater weight for the given time period because he had a more developed relationship with Aponte during the relevant period. Dr. Veloso only began his treatment of Aponte at the end of the period, in October of 1989. Dr. Noel, on the other hand, started seeing Aponte in September of 1985. (Tr. 117.)
Dr. Veloso reports that he treated Aponte twice per year, with his first visit being on October 19, 1989.
Additionally, Dr. Veloso's evaluation was completed on June 22, 2000. ( Id. at 235.) When asked what "the earliest date that the description of symptoms and limitations in this questionnaire applies," the doctor responded "Now." ( Id.) This is the source of some confusion, as the form was completed on June 22, 2000, and states in the right hand corner of the first page, "please fill out this questionnaire addressing patients [sic] condition from 1987-1992 only!" Thus, it is not clear that the information provided by the doctor truly reflected the relevant dates. In fact, the doctor listed Zyrtec as one of the medications prescribed to Aponte, presumably during the relevant period. However, Zyrtec first became available in the United States in 1996. Dr. Noel's assessments, on the other hand, were completed in January and August of 1990. Thus, it was reasonable for the Appeals Board to deny review of Aponte's claim, even with this additional evidence.
See Zyrtec website by Pfizer, Inc. http://www.zyrtec.com/index.asp?pageid=85contentid=85.
Accordingly, I find that the ALJ's finding that Aponte had the residual functional capacity to perform his previous work is supported by substantial evidence.
CONCLUSION
For the foregoing reasons, I grant the Commissioner's motion for judgment on the pleadings, and deny Aponte's cross-motion for judgment on the pleadings. The Clerk of the Court is directed to close the case.
So Ordered.