Opinion
6:01-CV-0899 (LEK/GJD)
September 11, 2003
GREGORY R. GILBERT, ESQ., AMDURSKY, PELKY LAW FIRM, Oswego, New York, Attorneys for Plaintiff.
GLENN T. SUDDABY, WILLIAM H. PEASE, ESQ., Syracuse, New York, Attorneys for Defendant.
REPORT-RECOMMENDATION
This matter was referred to me for report and recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard.
PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits on June 18, 1999. (Administrative Transcript ("T") at 60.) The application was denied initially and upon reconsideration. (T. at 40, 45.)
Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on April 27, 2000. (T. at 24.) Plaintiff was represented by counsel and testified at the ALJ hearing. (T. at 24-37.)
In a decision dated October 4, 2000, the ALJ found that plaintiff was not disabled. (T. at 13-19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiffs request for review on April 19, 2001. (T.at 5.) This action was filed on June 6, 2001. (Dkt. No. 1.)
CONTENTIONS
Plaintiff makes the following claims:
(1) The ALJ erred in failing to apply the Treating Physician Rule pursuant to Social Security Ruling 96-2p. (Dkt. No. 6 at 5.)
(2) The ALJ erred in improperly applying Social Security Ruling 96-7p and failed to properly credit plaintiffs testimony that her shoulder and hand problems were so severe that the could not write for any length of time on a sustained basis. (Dkt. No. 6 at 5.)
(3) The ALJ erred in failing to adopt the vocational expert's testimony that plaintiff would be precluded from performing any substantial gainful employment if she could not write for more than a few minutes at a time. (Dkt. No. 6 at 5.)
(4) The ALJ erred in finding that plaintiff could perform the job of a patcher and assembler of electrical components. (Dkt. No. 6 at 5.)
Defendant argues that the Commissioner's determination is supported by substantial evidence in the record and must be affirmed.
FACTS
This court adopts the facts contained in plaintiffs brief under the heading "Factual History" (Dkt. No. 6 at 3-4), and supplemented in defendant's brief under the heading "Administrative Record" (Dkt. No. 7 at 2-7), with any exceptions noted.
DISCUSSION
I. Five Step Disability Determination
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff'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. § 1382c(a)(3)(B).
The Commissioner uses a five step process, set forth in 20 C.F.R. § 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 basic work activities. If the claimant suffers such an impairment, the third inquiry is wether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disable without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant dose not have a listed impairment, the fourth inquiry is whether, despite the claimant's sever impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. § 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision 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).
II. Scope of Review
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); 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 on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)). "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 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), cert. denied, 459 U.S. 1212 (1983).
III. Medical Evidence A. Dr. Joy Dolorico In January, 1998, Plaintiff injured her left shoulder when she hit it on a door handle. (T. at 157.) On February 11, 1998, plaintiff complained of pain in her left shoulder and was examined by Joy Dolorico, M.D. at Oswego County Opportunities, Inc. Health Centers. (T. at 157-58.) Dr. Dolorico told plaintiff that an x-ray of her shoulder would be taken and that plaintiff should take ibuprofen and apply warm compresses to the area. (T. at 158.)
On March 16, 1998, Dr. Dolorico noted that the x-ray of plaintiff's shoulder was normal and that there was a slight restriction on full abduction of plaintiffs left shoulder, but there was no actual erythema or swelling. (T. at 158.) Dr. Dolorico diagnosed plaintiff with left shoulder strain. ( Id.) On April 6, 1998, Plaintiff complained of continued pain in her left shoulder which was "making it harder do" her daily living activities. (T. at 159.) Dr. Dolorico found that there was no erythema or swelling in plaintiffs left shoulder but noted tenderness in plaintiffs trapezius muscle and positive restriction of full abduction of the left shoulder. (T. at 159.) Plaintiffs internal and external rotations were normal. Dr. Dolorico diagnosed plaintiff with tendinitis and scheduled plaintiff for physical therapy. (T. at 159.)
Dr. Dolorico examined plaintiff again on May 22, 1998 for pain in her left shoulder. (T. at 161.) Plaintiff had been attending physical therapy, and the physical therapist reported that plaintiffs prognosis was fair. ( Id.) Plaintiff told Dr. Dolorico that her shoulder felt better but "still hurts occasionally." (T. at 161.) Dr. Dolorico conducted a physical exam, and noted no erythema, swelling, or tenderness of the trapezius muscle. ( Id.) Plaintiffs internal and external rotations were normal and Dr. Dolorico noted that the tendinitis in plaintiffs left shoulder was "improving." (T. at 161.)
Plaintiff called Dr. Dolorico's office on May 26, 1998 and asked her whether plaintiffs light duty restriction should be extended. (T. at 161.) In a record of the telephone call, apparently written by the person to whom plaintiff spoke, it states that Dr. Dolorico did not want to extend light duty at that time, but would wait for a report from the physical therapist.
The court assumes that plaintiff was referring to a "light duty" restriction "at work."
On July 13, 1998, plaintiff was again examined by Dr. Dolorico regarding the tendinitis in plaintiffs left shoulder. (T. at 162.) Plaintiff claimed that the physical therapy worked initially, but during the last few sessions, she was not noticing any improvement. ( Id.) Plaintiff also complained of a popping sound when she elevated her shoulder beyond eighty degrees. (T. at 162.) Dr. Dolorico's examination revealed that although there was a slight restriction on full abduction of the shoulder, there was no erythema or swelling and external and internal rotations were normal. (T. at 162.) Dr. Dolorico referred plaintiff to an orthopedic specialist for further evaluation. ( Id.)
B. Dr. Thomas Smallman
Plaintiff was first examined by Thomas Smallman, M.D., an orthopedic surgeon, on August 21, 1998. (T. at 203-204.) Dr. Smallman's physical examination of plaintiff revealed that she had a full range of motion in her shoulders, no ecchymosis or edema, but that plaintiff had pain with abduction, flexion, and internal rotation of her left shoulder. (T. at 203.) Dr. Smallman also noted that there was a positive impingement sign, consistent with Dr. Dolorico's findings. ( Id.) Dr. Smallman stated that plaintiffs x-rays appeared negative for calcific tendinitis or arthritis. (T. at 203.) The doctor's assessment was that plaintiff had rotator cuff tendinitis and he prescribed Naprosyn. ( Id.)
On September 9, 1998, plaintiff complained that despite the use of anti-inflammatories and an adequate therapy program, her symptoms continued. (T. at 202.) Dr. Smallman kept "her out of work for a month" and stated that he would re-evaluate plaintiff in one month's time. ( Id.) On October 19, 1998, plaintiff continued to have "mild to moderate symptoms," consistent with Dr. Smallman's previous diagnosis of left shoulder impingement. (T. at 200.) Dr. Smallman stated that although plaintiffs rotator cuff itself was strong, plaintiff had limited internal rotation, positive painful arc, positive impingement sign, and pain with resisted internal and external rotation. (T. at 200.) Dr. Smallman ordered an MRI and prescribed Depomedrol and Marcaine. ( Id.)
Impingement syndrome is defined as "the progressive pathological changes resulting from mechanical encroachment of the acromion, coracoacromial ligament, coracoid process, or acromioclavicular joint on the rotator cuff, including reversible edema and hemorrhage, fibrosis, tendinitis, pain, bone spur formation, and tendon rupture." BORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1632 (28th ed. 1994).
On November 25, 1998, plaintiff complained of persistent mild pain in her left shoulder at her next appointment. (T. at 199.) Dr. Smallman's examination revealed that plaintiffs range of motion was full and symmetric bilaterally. ( Id.) Dr. Smallman also noted that plaintiff had positive impingement sign, positive painful arc of her shoulder, pain with resisted internal and external rotation, as well as pain with active cross chest adduction. (T. at 199.) Plaintiff also complained of occasional numbness and tingling in her left arm and her fingers. ( Id.) Dr. Smallman continued to assess plaintiff with left shoulder impingement and prescribed Relafen. (T. at 199.)
Plaintiff had another appointment on January 15, 1999 and continued to have "discomfort." (T. at 198.) By this time, plaintiff had been terminated from work. ( Id.) Plaintiff continued to have limited internal rotation, a painful arc, positive impingement signs, and pain with resisted internal and external rotation. Dr. Smallman's assessment was again, left shoulder impingement. (T. at 198.) Dr. Smallman injected plaintiffs left shoulder with Depomedrol and Marcaine. (T. at 198.)
At her February 16, 1999 appointment with Dr. Smallman, plaintiff complained of continued discomfort and as a result, Dr. Smallman ordered an arthroscopic evaluation of plaintiffs left shoulder. (T. at 197.) Dr. Smallman noted that plaintiff had attempted physical therapy, non-steriodal anti-inflammatory medications, and three cortico-steroid injections. (T. at 197.) According to plaintiff, these treatments produced only temporary relief. ( Id.)
On May 17, 1999, a Magnetic Resonance Imaging ("MRI") was taken of plaintiffs left shoulder. (T. at 196.) Brian Meagher, M.D. stated that the MRI showed anatomic impingement and while there was no discrete cuff tear, "fraying of the superior aspect of the supraspinatous could be present and evaluated arthroscopically." ( Id.)
On June 1, 1999, Dr. Smallman examined plaintiff and noted that plaintiff had not responded to conservative management, the injury occurred over a year ago, and she remained "essentially disabled as a result of it." (T. at 195.) Dr. Smallman remarked that the MRI confirmed his clinical impression of impingement. ( Id.) At this appointment, plaintiff also complained of numbness and tingling in the hand consistent with carpal tunnel syndrome. (T. at 195.) Dr. Smallman noted positive Tinel's at the wrist and a positive Phalen's, although plaintiff experienced no numbness at the appointment. (T. at 195.)
At her July 26, 1999 appointment, plaintiffs wrists continued to be mildly symptomatic of carpal tunnel syndrome. (T. at 194.) Plaintiff was scheduled for left side carpal tunnel release on August 31, 1999. ( Id.) Dr. Smallman's Operative Report noted that plaintiff had experienced pain in her left wrist and numbness, pain, and occasional weakness in her left hand for approximately ten months. (T. at 191.)
On September 9, 1999 Dr. Smallman removed plaintiffs sutures. (T. at 188.) Dr. Smallman noted that the incisional site was healing nicely, plaintiff reported a return of sensation, and she was quite happy with the results of the carpal tunnel surgery. ( Id.)
Dr. Smallman completed a range of motion chart and a form for the New York State Office of Temporary and Disability Assistance, Division of Disability Determination, which although undated, states that the date of Dr. Smallman's last examination of plaintiff was on September 9, 1999. (T. at 182-187.) Dr. Smallman stated that the treating diagnosis was left shoulder impingement. (T. at 182.) Dr. Smallman also noted that his clinical findings included decreased range of motion in plaintiffs shoulder, positive painful arc, and positive impingement. (T. at 183.) The form also references plaintiffs carpal tunnel surgery, states that the incision site was healing nicely, and states that plaintiff had a good preliminary response after the surgery. (T. at 183.)
In the range of motion chart, Dr. Smallman indicated limitations in the forward elevation, abduction, adduction, and internal and external rotation of plaintiffs left shoulder. (T. at 185.) Dr. Smallman noted that plaintiffs last physical therapy notes dated November 3, 1999 indicated that plaintiffs grip strength was thirty-two pounds in her left hand and forty-nine pounds in her right hand. (T. at 187.) Dr. Smallman stated that plaintiffs fine motor manipulation was slowly improving with physical therapy and that plaintiffs gross motor manipulation was progressing appropriately with physical therapy. (T. at 187.) Dr. Smallman noted that plaintiff had not been released to perform repetitive movements. ( Id.)
Plaintiff was examined by Dr. Smallman again on October 14, 1999. (T. at 226.) The paresthesia plaintiff experienced before the carpal tunnel surgery no longer existed after the surgery. (T. at 226.) Plaintiff did feel intermittent cramping and had begun physiotherapy for strengthening. ( Id.)
On November 4, 1999, plaintiff told Dr. Smallman that she had significant relief from the symptoms she experienced before the surgery. (T. at 227.) Plaintiff also stated that she was feeling less cramping than at the October 14 appointment. ( Id.) Dr. Smallman noted that plaintiff had progressed significantly with her grip strength. (T. at 227.)
Plaintiff had a left shoulder arthroscopy and acromioplasty on December 13, 1999. (T. at 230-231.) Dr. Smallman examined her four days after the procedure and stated that plaintiff had little discomfort and excellent function of her hand and elbow. (T. at 230.) Dr. Smallman prescribed Relafen because the previously prescribed Cotorolac bothered plaintiffs stomach. (T. at 230.)
On January 7, 2000, Dr. Smallman noted that plaintiff was not progressing as well as expected. (T. at 231.) Plaintiffs pre-operative pain was not substantially different after the procedure. ( Id.) Dr. Smallman stated that plaintiff had a positive impingement sign and pain on activation of the subscapularis and global activation of the cuff at forty-five degrees against resistence. (T. at 231.) However, there was no pain on activation of the supraspinous and infraspinous against resistence and no pain at the sternoclavicular or AC joints. ( Id.) Dr. Smallman's assessment was that plaintiff had a recurrence of "impingement like pain." (T. at 231.)
On January 21, 2000, plaintiff again had positive impingement sign and a painful arc. (T. at 232.) Dr. Smallman stated that there was no evidence of cuff pathology in plaintiffs January 7, 2000 x-rays. ( Id.) Dr. Smallman's found that plaintiff had no evidence of cuff tendinitis, but plaintiff had pain with initiation of abduction, external rotation, and downward pressure on the cuff at forty-five degrees against resistence. (T. at 232.) Dr. Smallman prescribed Vioxx and gave plaintiff an injection in her shoulder. (T. at 232.)
Dr. Smallman's notes regarding plaintiffs February 11, 2000 appointment state that "[w]hen previously seen 3 weeks ago, she had experienced a marked recurrence of her symptoms after a relatively asymptomatic interval." (T. at 233.) However, the symptoms were "completely ablated" at that moment by a sub-deltoid injection. ( Id.) Dr. Smallman noted on February 11 that plaintiffs symptoms are "remarkably" improved since the injection and Vioxx prescription but that plaintiff remained "off work." (T. at 233.)
On March 21, 2000, Dr. Smallman remarked that plaintiff was making "gradual, consistent progress" regarding her left shoulder and that she had responded remarkably January injection. (T. at 234.) Plaintiff still had a slight irritation at the anterior aspect of the shoulder but had a comfortable range of motion at ninety degrees of abduction and much less pain at the impingement point. (T. at 234.) Dr. Smallman found no evidence of thoracic outlet syndrome. (T. at 234.)
On April 11, 2000, Dr. Smallman completed a "Medical Assessment of Ability To Do Work-Related Activities (Physical)" form, stating he had last examined or treated plaintiff on March 21, 2000. (T. at 236-239.) In that form, Dr. Smallman noted that plaintiffs lifting and carrying abilities were affected by her impairment. (T. at 236.) Specifically, plaintiff was never to lift or carry more than eleven pounds, but Dr. Smallman indicated that plaintiff could occasionally lift and carry up to ten pounds. (T. at 236.) Furthermore, Dr. Smallman stated that plaintiff had continuous use of her right hand and frequent use of her left hand for simple grasping and fine manipulation. (T. at 237.)
Dr. Smallman placed no restrictions on plaintiffs sitting, standing, or walking. (T. at 237). While Dr. Smallman stated that plaintiff should never climb or crawl, he placed no restrictions on plaintiffs balancing, stooping, crouching, or kneeling. (T. at 238.) Dr. Smallman also stated plaintiff could frequently reach, push, pull, and handle, but could never perform overhead reaching and plaintiffs pushing and pulling were limited to "max 5#." (T. at 238.) Finally, Dr. Smallman indicated plaintiff should avoid all exposure to heights (because plaintiff would be unable to protect herself if she fell) and avoid concentrated exposure to vibrations. (T. at 239.) Otherwise, plaintiff had no restrictions with regard to moving machinery, chemicals, noise, humidity, dust, temperature extremes, or fumes. (T. at 239.)
C. Dr. Tamara A. Scerpella
Dr. Smallman referred plaintiff to Tamara A. Scerpella, M.D. for a second opinion. (T. at 240.) Dr. Scerpella examined plaintiff on July 25, 2000 and found that plaintiff had full left shoulder motion except for internal rotation to the thoracolumbar junction only, as opposed to T7 on the right. (T. at 240.) Dr. Scerpella noted plaintiffs mild discomfort in the impingement positions and with resisted supraspinatus testing, but Dr. Scerpella also noted that plaintiff had good strength with rotator cuff testing in all positions. (T. at 240.)
Dr. Scerpella's assessment was that plaintiffs pain "is very likely due to her capsular laxity" and recommended a thermal capsulorrhapy. (T. at 241.) Because plaintiff showed no strength deficits on rotator cuff testing, Dr. Scerpella did not believe continued physical therapy would improve plaintiffs symptoms. (T. at 241.)
A capsula is "a general term for a cartilaginous, fatty, fibrous, or membranous structure enveloping another structure, organ, or part; called also capsule." BORLAND'S ILLUSTRATED MEDICAL DICTIONARY 259 (28th ed. 1994). Laxity is defined as "slackness or displacement (whether normal or abnormal) in the motion of a joint" Id. at 906.
D. Dr. Myra Shayevitz
Plaintiff was referred to Myra Shayevitz, M.D. by the New York State Division of Disability Determinations for an orthopedic examination which Dr. Shayevitz conducted on July 8, 1999. (T. at 205.) Dr. Shayevitz's physical examination revealed that plaintiffs forward elevation and abduction of the left shoulder was 100 degrees and the right shoulder was 150 degrees. (T. at 206.) Furthermore, adduction on the left side was ten degrees and on the right was forty degrees. (T. at 206.) Internal rotation on the right was twenty degrees, forty degrees on the right, and external rotation was eighty degrees bilaterally. ( Id.) Dr. Shayevitz also noted positive impingement signs on the left.
Regarding plaintiffs fine motor activity, plaintiff was able to "hold a large object, pick up and manipulate a coin, write with a pen, button a button, open a cap, zip a zipper. Intrinsics, grasp, handshake, grip and pinch grip are 5/5 bilaterally. Can make a full fist bilaterally. Tinel sign is negative bilaterally." (T. at 206.) Dr. Shayevitz's impression was that plaintiff had a torn rotator cuff on the left side with positive impingement sign. (T. at 207.) Dr. Shayevitz's prognosis was guarded and she noted that plaintiff might require surgery. ( Id)
E. Dr. Jose R. Lopez
Plaintiff was also referred to Jose R. Lopez, M.D., an orthopedic surgeon, for an evaluation which was conducted on August 26, 1999. (T. at 215.) Dr. Lopez reviewed plaintiffs May 17, 1999 MRI and said "[d]efinitely there is no evidence of any rotator cuff tear. . . ." (T. at 216.) During Dr. Lopez's examination, plaintiff complained of persistent pain in her left shoulder, despite being out of work for over a year, since August 21, 1998. (T. at 216.) Dr. Lopez's examination of plaintiff's left shoulder revealed that her passive abduction was 170 degrees, active abduction was 135 degrees, forward flexion passively 170 degrees, actively 160 degrees, internal rotation to the T-10 level, external rotation to six degrees and adduction across the mid-line. (T. at 217.) Dr. Lopez's impression was that plaintiff had left shoulder impingement syndrome and left carpal tunnel syndrome and his prognosis was guarded. (T. at 217.) Dr. Lopez thought arthroscopic evaluation might be needed and that there was no evidence of a rotator cuff tear. ( Id.)
F. Dr. Sury Putcha
On July 22, 1999, Sury Putcha, M.D. completed a Physical Residual Functional Capacity Assessment ("RFC Assessment"). (T. at 208-214.) It appears that Dr. Putcha did not examine plaintiff. Dr. Putcha indicated that plaintiff could occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds. (T. at 209.) Furthermore, Dr. Putcha stated that plaintiff could sit, stand, and/or walk for about six hours in an eight hours work day, with normal breaks. ( Id.) Furthermore, Dr. Putcha said plaintiffs ability to push and/or pull (including operation of hand and/or foot controls) was unlimited, except for the limitations noted for lifting and carrying. (T. at 209.) Dr. Putcha noted no postural, manipulative, visual, communicative, or environmental limitations. (T. at 210-212.)
G. Dr. In T. Seok
On December 13, 1999, In T. Seok, M.D., also a non-examining physician, completed an RFC Assessment. (T. at 219-225.) Dr. Seok indicated that plaintiff could occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds. (T. at 220.) Furthermore, Dr. Seok opined that plaintiff could sit, stand, and/or walk for about six hours in an eight hours work day, with normal breaks. (T. at 220.) Furthermore, Dr. Seok said plaintiffs ability to push and/or pull (including operation of hand and/or foot controls) was unlimited, except for the limitations noted for lifting and carrying. (T. at 220.) Dr. Seok limited plaintiffs reaching in all directions (including overhead) and plaintiffs fingering (fine manipulation) but did not limit plaintiffs handling (gross manipulation) or feeling. (T. at 222.) Dr. Seok noted no postural, visual, communicative, or environmental limitations. (T. at 221-223.)
IV. Treating Physician
The medical conclusions of a treating physician are controlling if well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). See also Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999). An ALJ may not arbitrarily substitute his own judgment for a competent medical opinion. Rosa v. Callahan, 168 F.3d at 79 (citations omitted).
The regulations broadly define the term "treating physician" as any physician who "has provided [the claimant] with medical treatment or evaluation and who has or has had an ongoing treatment relationship with [the claimant]." 20 C.F.R. § 404.1502.
If the treating physician's opinion is not given "controlling weight," the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician for the condition(s) in question, the medical evidence supporting the opinion, the consistency of the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2-6), 416.927(d)(2-7). Failure to follow this standard is a failure to apply the proper legal standard and is grounds for reversal. Barnett v. Apfel, 13 F. Supp.2d 312, 316 (N.D.N.Y. 1998) (citing Johnson v. Bowen, 817 F.2d at 985).
Plaintiff argues that the ALJ erred in failing to give the appropriate weight to Dr. Smallman's opinions, including his finding that plaintiff remained fully disabled through the date of the hearing. (Dkt. No. 6 at 7, 9.) Plaintiff also argues that Dr. Smallman's opinions should receive greater weight because his opinions regarding plaintiffs restrictions are consistent with other doctors of record.
In reviewing the ALJ's decision, this court finds that the ALJ properly relied on Dr. Smallman's opinions and reports, as evidenced by the fact that the ALJ cites to them repeatedly. See T. at 15-16, references to Exs. 3F, 8F, 9F. Although Dr. Smallman is not mentioned by name, exhibits 3F, 8F, and 9F are Dr. Smallman's reports, notes, and records regarding plaintiff and her treatment. In fact, the ALJ only cited Dr. Smallman's reports, notes, and records, thereby giving his opinions treating physician weight.
Additionally, Dr. Smallman examined plaintiff approximately twenty times as well as performing her carpal tunnel surgery, arthroscopy, and acromioplasty. See supra at 9-16. Furthermore, Dr. Smallman's opinions and diagnoses are consistent with other doctors of record. Dr. Smallman's diagnosis regarding plaintiffs shoulder was left shoulder impingement. (T. at 182, 195, 196, 198, 199, 200, 231, 232.) This diagnosis was similar to and consistent with the diagnoses of Dr. Dolorico (diagnosis of left shoulder strain and tendinitis (T. at 158, 159, 161)), Dr. Lopez (diagnosis of impingement syndrome (T. at 217)), and Dr. Scerpella (diagnosis of capsular laxity (T. at 241)).
Tendinitis is defined as the "inflammation of tendons and of tendon-muscle attachments." BORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1667 (28th ed. 1994).
The only doctor who had a slightly different diagnosis was Dr. Shayevitz, who saw plaintiff only once and diagnosed plaintiff with a torn rotator cuff on the left side with positive impingement sign. (T. at 207.) Dr. Meagher definitively stated that there was " no discrete cuff tear" upon reading the MRI of plaintiff's left shoulder. (T. at 196, emphasis added.) Additionally, after reviewing the MRI, Dr. Lopez similarly stated "[d]efinitely there is no evidence of any rotator cuff tear. . . ." (T. at 216.)
Dr. Putcha's primary diagnosis was also that plaintiff had a torn rotator cuff, as noted in the RFC Assessment. (T. at 208.) However, it is unclear whether Dr. Putcha ever examined or saw plaintiff as there are no notations in the RFC Assessment as to any examination date or appointment.
Further support that the ALJ gave Dr. Smallman's opinions controlling weight is found in the fact that the ALJ sent Dr. Smallman's RFC evaluation to the vocational expert. The vocational expert used Dr. Smallman's stated limitations in determining that plaintiff could perform work in the national economy. (T. at 127-130, 140-141) (citing Exhibit 9F — Dr. Smallman's RFC at T. 235-239.)
Therefore, because Dr. Smallman's opinions regarding Plaintiffs physical condition are consistent with the other physicians' findings and because Dr. Smallman's opinions are well-supported by substantial evidence in the record, the ALJ correctly gave Dr. Smallman's medical conclusions controlling weight. V.
Pain and Credibility
"An [ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons 'with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Lewis v. Apfel, 62 F. Supp.2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No. 96 Civ. 9435, 1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999)).
To satisfy the substantial evidence rule, the ALJ's credibility assessment must be based on a two step analysis of pertinent evidence in the record. See 20 C.F.R. § 404.1529, 416.929; see also Foster v. Callahan, No. 96 Civ. 1858, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3, 1998). First, the ALJ must determine, based upon the claimant's objective medical evidence, whether the medical impairments "could reasonably be expected to produce the pain or other symptoms alleged. . . ." 20 C.F.R. § 404.1529(a), 416.929(a). Second, if the medical evidence alone establishes the existence of such impairments, then the ALJ need only evaluate the intensity, persistence, and limiting effects of a claimant's symptoms to determine the extent to which it limits the claimant's capacity to work. 20 C.F.R. § 404.1529(c), 416.929(c).
When the objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the claimant's symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to symptoms. 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3).
Plaintiff claims that the ALJ erred in failing to credit plaintiffs testimony that her shoulder and hand problems were so severe she could not write for any length of time on a sustained basis. (Dkt. No. 6 at 9.) The ALJ found that based upon the medical evidence, plaintiff did not meet the first step of the two step analysis articulated in 20 C.F.R. § 404.1529, 416.929, thus "the objective findings in this case fail to provide strong support for the claimant's allegations of disabling symptoms and limitations. More specifically, the medical evidence does not support the existence of limitations greater than those determined above." (T. at 15.)
During the course of time that plaintiff was treated by Dr. Dolorico (January 1998 through July 1998), Dr. Dolorico's notes stated that plaintiffs shoulder felt better but hurts "occasionally" and that plaintiffs shoulder was improving. (T. at 161.) Plaintiffs treating physician, Dr. Smallman, noted over the course of plaintiffs treatment that she had "mild to moderate symptoms," persistent mild pain, and "discomfort," in her left shoulder. (T. at 198, 199, 200.) Furthermore, plaintiffs symptoms were "completely ablated" by a sub-deltoid injection given on February 11, 2000 and that plaintiffs symptoms had "remarkably" improved since the injection and being prescribed Vioxx. (T. at 233.) Dr. Smallman noted that plaintiff was making "gradual, consistent progress" with her left shoulder and that she had responded "remarkably" to the injection given in January. (T. at 234.)
Regarding plaintiffs carpal tunnel syndrome, plaintiff had carpal tunnel release surgery performed on August 31, 1999. (T. at 194.) At her post-operation appointment on September 9, 1999, plaintiff reported a return of sensation and was "quite happy" with the results of the surgery. (T. at 188.) Furthermore, on October 14, 1999, Dr. Smallman noted that the paresthesia plaintiff experienced prior to the surgery no longer existed. (T. at 226.) On November 4, 1999, Dr. Smallman noted that plaintiff was feeling less cramping, that she was progressing "significantly" with her grip strength, and that she was "quite happy with her results." (T. at 227.)
There is no evidence in the record that plaintiff complained of an inability to write for any length of time. Additionally, Dr. Smallman's RFC evaluation specifically states that plaintiff can use her right hand "continuously" for simple grasping and manipulation and can use her left hand "frequently" for simple grasping and manipulation. (T. at 236-237.)
While plaintiffs symptoms regarding her shoulder and hands were clearly documented, the record supports the ALJ's determination that the medical evidence does not support the existence of limitations greater than those articulated in the ALJ's decision, which were the limitations imposed by plaintiffs own treating physician. Thus, this court finds that the ALJ's finding that plaintiffs allegations regarding her inability to write and any additional limitations were not fully credible is supported by substantial evidence.
VI. Testimony of Vocational Expert A. Proper Hypothetical If a claimant is unable to perform a full range of a particular exertional category of work, or the issue is whether a claimant's work skills are transferable to other jobs, the ALJ may utilize the services of a vocational expert. 20 C.F.R. § 404.1566, 416.966. A vocational expert may provide testimony regarding the existence of jobs in the national economy and whether a particular claimant may be able to perform any of those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988) and Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983). Although the ALJ is initially responsible for determining the claimant's capabilities based on all the evidence, a hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984) and Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be "substantial record evidence to support the assumption upon which the vocational expert based [her] opinion." Dumas, 712 F.2d at 1554.
Dumas, 712 F.2d at 1554 n. 4.
The ALJ used a vocational expert in this case to find that although plaintiff could not perform her past relevant work, she could perform the job of a patcher and assembler of electrical components. The vocational expert was given hypothetical questions which conformed to the facts of this case. (T. at 121-122.) Plaintiff argues that the ALJ erred in failing to adopt the vocational expert's opinion that plaintiff would be precluded from any substantial gainful activity if she could not write for more than a few minutes at a time.
This court finds that the questions posed by the ALJ properly articulated plaintiffs restrictions. The ALJ asked the vocational expert to assume a person with age, education, and work experience similar to plaintiff had the limitations set forth in Exhibit 9F, which was the RFC Assessment completed by Dr. Smallman. (T. at 122.)
The vocational expert did state that if plaintiff could not write, she would not be able to work at any job. (T. at 129.) However, the ALJ properly rejected plaintiffs claim that such a limitation existed. In addition, plaintiffs counsel proposed follow up interrogatories to the vocational expert, which he answered. (T. at 140-141.) The vocational expert again took into consideration the limitations posed in Exhibit 9F, the RFC Assessment completed by Dr. Smallman. (T. at 140.141.) This court finds that the ALJ properly and accurately evaluated the evidence presented by the vocational expert.
B. Performance of Specific Jobs
Plaintiff argues that the ALJ erred in finding that plaintiff could perform the jobs of patcher and assembler of electrical components. Plaintiff first argues that the regulations specify that an individual who has the RFC for only sedentary work and who has had any significant limitation in the ability to manipulate and handle small objects with both hands must be considered disabled. (Dkt. No. 6 at 12) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h)). Although plaintiff cites the rule properly, there is no evidence to support plaintiffs claim that she has had a "significant" limitation in bilateral manual dexterity. Dr. Smallman stated that plaintiff could use her right hand continuously and her left hand frequently. Thus, the ALJ did not err in applying this regulation.
Finally plaintiff disagrees with the vocational expert's interpretation of the Dictionary of Occupational Titles ("DOT"), in which the descriptions of the relevant jobs are found. Plaintiffs counsel wrote to the ALJ, specifically proposing additional questions regarding the requirements of the stated jobs. (T. at 133-137.) The ALJ then wrote to the vocational expert and asked the vocational expert plaintiffs additional questions. (T. at 138-139.) The vocational expert responded, essentially stating that based on the limitations set forth in Dr. Smallman's RFC Assessment, plaintiff could still perform the sedentary jobs of patcher and assembler. (T. at 140-141.) Although plaintiffs counsel argues that the vocational expert misinterpreted the provisions of the DOT, there is no indication that this is true. There is also no indication that plaintiff could not perform these jobs, given Dr. Smallman's RFC Assessment and the vocational expert's expert opinion. Although the court is not finding that the vocational expert's interpretation of the DOT is not correct or inconsistent, the court would point out that the Second Circuit has recently held that even an expert's deviations from the DOT are not necessarily incorrect or in conflict with the DOT. See Jasinski v. Barnhart, No. 02-6268, 2003 U.S. App. LEXIS 16788, at *6-7 (2d Cir. Aug. 14, 2003). While Jasinski dealt with a case at step four of the sequential evaluation in which the plaintiff still had the burden of proof to show that she could not perform her prior work, the reasoning is applicable to this case, in which plaintiff challenges the expert's interpretation of the DOT requirements for a particular job, and whether plaintiffs RFC would meet those requirements. This court finds that the ALJ's acceptance of the vocational expert's opinion was supported by substantial evidence.
WHEREFORE, based upon the findings above, it is hereby
RECOMMENDED, that the decision of the Commissioner be AFFIRMED and the Complaint (Dkt. No. 1) be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Svcs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b); FED. R. CIV. P. 6(a), 6(e), 72.