Opinion
01-CV-1100
September 26, 2003
BOND McDONALD, P.C., Geneva, New York, for Plaintiff
GLENN T. SUDDABY, Syracuse, New York, for Defendent
WILLIAM J. McDONALD, ESQ., for Plaintiff Of Counsel
WILLIAM H. PEASE, for Defendent Of Counsel
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 Local Rule 72.3(d). This case has proceeded in accordance with General Order 18. Both parties have filed briefs. (Dkt. Nos. 5, 8). Plaintiff filed a response to defendant's brief. (Dkt. No. 9). Oral argument was not heard.
PROCEDURAL HISTORY
Kimberly Hapstak initially applied for Social Security Disability Insurance Benefits (DIB) on June 4, 1992, alleging disability as of August 1, 1990, due to degenerative disc disease. (Administrative Transcript (T) at 434). Plaintiff's application was denied initially. (T. 443-45). Ms. Hapstak did not request reconsideration. Instead, she filed an application for Supplemental Security Income Benefits (SSI) on August 29, 1994 and a new application for DIB on October 26, 1994, alleging disability as of the August 1, 1990 date. (T. 92-99).
Although decedent subsequently developed Graves Disease, this impairment was not part of her June 1992 application.
Page 53 of the Administrative Transcript is the decision of ALJ Stephan that refers to the August 29, 1994 application. The Table of Contents of the Administrative Transcript states that the actual document was not available and is not pertinent to the claim for Disability Insurance Benefits. (T. 1).
Both applications were denied initially and on reconsideration. (T. 53, 102-104, 129-32). Ms. Hapstak requested a hearing before an Administrative Law Judge (ALJ) which was held before ALJ Carl Stephan on October 1, 1996. (T. 53). The ALJ issued a decision denying Ms. Hapstak's claim on March 11, 1997. (T. 53-62). Ms. Hapstak requested review by the Appeals Council. (T. 47-49). Ms. Hapstak died on January 9, 1999. (T. 682). The Appeals Council remanded the case for further proceedings. (T. 43-45). Ms. Hapstak's son, Clayton Hapstak was substituted for Ms. Hapstak on September 13, 1999. (T. 684).
A new hearing was held on September 21, 1999. (T. 69-91). Clayton Hapstak and Kimberly Hapstak's ex-husband, Gary Hapstak appeared and testified at the hearing. Id. On November 22, 1999, ALJ Joseph Medicis, Jr. found that Kimberly Hapstak was not disabled at any time prior to the expiration of her insured status on September 30, 1993, and was thus not entitled to DIB. (T. 28). The ALJ did find, however, that Ms. Hapstak would have met the standard for disability as of October 25, 1999 for purposes of her SSI application. (T. 28). The disability ceased as of the date of Ms. Hapstak's death, and the ALJ found that since there was no surviving spouse, no SSI benefits were payable. (T. 28). The decision of ALJ Medicis became the final decision of the Commissioner when the Appeals Council denied the request for review on June 8, 2001. (T. 8-9).
Clayton Hapstak has brought this federal court action on behalf of his mother Kimberly.
CONTENTIONS
Plaintiff, Clayton Hapstak, makes the following claims:
1. The decedent's insured date should have been extended by a prior closed period of disability.
2. The ALJ's finding that Kimberly Hapstak was not disabled between August 1990 through November of 1992 is not supported by substantial evidence.
3. The ALJ incorrectly determined the onset date of Ms. Hapstak's "second period" of disability.
4. The ALJ erred in using the Medical Vocational Guidelines (the Grid).
5. The ALJ made an improper assessment of Ms. Hapstak's credibility.
6. The case should be remanded solely for calculation of benefits.
Defendant argues that the Commissioner's decision is supported by substantial evidence and must be affirmed. In a brief responding to defendant's arguments, plaintiff alleges that the Commissioner failed to meet her burden to show that plaintiff was not disabled prior to November of 1992. (Dkt. No. 9). For the following reasons, this court agrees with defendant and will recommend dismissal of the complaint.
DISCUSSION
To be considered disabled, an individual seeking disability insurance benefits or SSI benefits must establish that he or she 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). The impairment or impairments must be severe enough to prevent the claimant from performing his or her prior work as well as any other substantial gainful work that the claimant could do, giving consideration to the individual's age, education, and prior work experience. 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 claims. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The Commissioner first determines whether the claimant currently engages in substantial gainful activity. Id. If not, the Commissioner then determines whether the claimant's impairment is "severe" enough to limit the individual's physical or mental abilities to perform work-related activities. Id. If the Commissioner finds a "severe" impairment, the third inquiry will determine whether, based on medical evidence alone, claimant has an impairment that meets or equals the severity of an impairment listed in Appendix 1 of the regulations. Id. If so, the Commissioner will find the claimant disabled without further consideration. Id.
If the claimant's impairment or impairments do not meet the severity of a listed impairment, the fourth inquiry is whether the claimant has the "residual functional capacity" (RFC) to perform his or her prior work. Id. If the individual cannot perform the prior work, then the Commissioner must determine whether there is any other work that the claimant can perform. Id. The claimant has the burden of establishing disability at the first four steps, however, if the claimant establishes that he or she cannot perform his or her prior work, the burden shifts to the Commissioner to prove the final step. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).
1. Scope of Review
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).
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, 401 (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 at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
2. Facts and Medical Evidence
Although the administrative record in this case is quite voluminous, the first issue that the court must address is whether decedent was disabled prior to the expiration of her insured status on September 30, 1993. Plaintiff's counsel concedes that in November 1992, the decedent's treating physician released decedent to return to work and therefore, decedent was not disabled between November of 1992 and September 30, 1993. Counsel argues, however, that the decedent was disabled between August 1, 1990 and November 30, 1992 and would have been entitled to a "closed period" of disability.
The "plaintiff in this action" is Clayton Hapstak, however, the person to whom all the analysis applies is Kimberly Hapstak. The court will thus refer to Kimberly Hapstak as the "decedent" while referring to Clayton Hapstak as "plaintiff" and to Clayton Hapstak's counsel as "plaintiff's counsel".
ALJ Medicis found that decedent's disability did not begin until October of 1995 , but not before. Based upon ALJ Medicis's decision, if decedent were alive, she would be entitled to SSI benefits as of October of 1995 since SSI benefits do not depend upon insured status . The decedent's son, however, may not be awarded his mother's SSI benefits and may only recover if his mother became disabled prior to the expiration of her insured status, and would have been entitled to disability insurance benefits. Therefore, the first issue for the court is whether decedent was disabled prior to November 30, 1992 when her treating physician released her to return to work.
Plaintiff does not argue otherwise.
Because the first issue deals only with the period between August 1, 1990 and November 30, 1992, this court will only review the medical records relevant to a determination of disability during that time. To the extent that later medical records might be relevant to this determination, they will be reviewed as well. The court is aware that plaintiff's counsel now argues that decedent would have been entitled to two separate periods of disability , one prior to the expiration of her insured status and a period that began after September 30, 1993. Plaintiff's counsel further argues that the expiration of decedent's insured status would have been extended by a period of time equal to her first period of disability, thus allowing her to have a "second" period of disability beginning in April of 1994.
The medical reports in this case begin prior to the date of the claimed onset of decedent's disability. Decedent was injured in May of 1986 while working as a Mental Health Therapy Aide. (T. 179-80). Decedent was lifting a patient and sustained a sprain of her chest muscles. (T. 177). Decedent was examined by two consulting physicians from the State Insurance Fund, Dr. Anthony Saeli and Dr. F. Crimmins. (T. 177, 179-80). On August 20, 1986, Dr. Crimmins stated that decedent should avoid lifting more than forty pounds for the next three months, and then she could work, "without restriction." (T. 180). Both Dr. Saeli and Dr. Crimmins stated that they believed there would be no "permanency" from decedent's 1986 injury. (T. 177, 180).
The record contains progress notes by one of plaintiff's treating physicians, Dr. Michael Eisman, from August 10, 1990 until January 15, 1991. (T. 182-88).
Although there is no indication on the documents themselves that they are written by Dr. Eisman, the Table of Contents of the record indicates that these are Dr. Eisman's reports. (T. 2).
On August 10, 1990, decedent told Dr. Eisman that she had been suffering from chest, shoulder, neck, and back pain for two days after lifting her son. (T. 182). Decedent stated that she had the same injury in 1989. Dr. Eisman diagnosed severe right chest muscle strain, and he prescribed Soma and Tylenol # 3. (T. 182).
There are no medical reports in the record to confirm this allegation.
Soma is a brand name for Carisoprodol. PHYSICIAN'S DESK REFERENCE 3254 (57th Ed. 2003). Soma is indicated for the relief of discomfort associated with acute painful musculoskeletal conditions. Id. There are various warnings regarding the side effects of this drug. Id. at 3255.
On September 10, 1993, decedent returned to Dr. Eisman's office, stating that her "ribs" were better, but her back was worse. (T. 182). It does not appear that decedent was actually examined by Dr. Eisman on that date because the signature appears to be that of Paula Fitzsimmons, Physician's Assistant. ( See T. 182, 184). The examiner found "mild stress, back, [and] mild tenderness over the lumbar spine." Id. Decedent was tense and very tender to palpitation in the right paravertebral muscles. She had decreased range of motion in all directions, but straight leg raising was negative. Id. The writer assessed "acute lower back strain." Id.
Decedent was attending college at the time of the September 10, 1990 examination and stated that she was having trouble sitting through class. The Soma had helped, and decedent told the examiner that a psychiatrist had recently prescribed Pamelor to prevent migraine headaches. Decedent obtained another prescription for Soma and was told that she could take Ecotrin as well. (T. 182). Finally, the examiner stated that decedent would try to "take pillows to class." Id. The September 10, 1993 note also indicates that decedent would discuss the "back program" at her next appointment. (T. 182).
Pamelor, whose generic name is Nortrptyline Hydrochloride, is generally indicated for the treatment of depression.www.pdrhealth.com/drug_into/ixdrugprofiles/drugs/paml 315.shtml.
On September 21, 1990 and November 2, 1990, decedent was examined by Dr. Eisman. (T. 183). On both occasions, decedent complained of pain in the sacroiliac area. Id. Her upper back was tender, and there were "trigger points" present. Id. Decedent was continued on the Soma and was also prescribed Motrin and Feldene. Id. On October 5, 1990, x-rays of the lumbar spine and SI joint were normal. (T. 186). On November 26, 1990, the Physician's Assistant (PA) noted that decedent had severe hip pain, making it difficult to sit down. (T. 183).
On December 19, 1990, decedent returned to Dr. Eisman's office because of a cold and sinusitis. (T. 184). Decedent was examined by PA Fitzsimmons, who noted that plaintiff's school was ending the next day, mentioned that decedent was under a lot of stress, and prescribed an antibiotic for her sinuses. (T. 184). On January 15, 1991, decedent was examined by Dr. Eisman because she had slipped and fallen, resulting in increased back pain. (T. 184). Dr. Eisman stated that decedent had increased spasm in her lower back, was having trouble getting undressed, and had lost all lumbar lordosis. Id. Decedents back hurt in all directions, and straight leg raising was positive bilaterally. Id. Dr. Eisman's diagnosis was "lumbar disc with a spasm." Dr. Eisman prescribed Darvocet, bed rest, and ice compresses for one week . The only other restriction was that decedent should not do "any heavy lifting." (T. 184) (emphasis added).
On January 17, 1991, decedent was admitted to Tompkins Community Hospital. (T. 189-91). Decedent's friends had summoned help because decedent had taken several medications, was falling down, and had some slurred speech. (T. 190, 194). The discharge summary, dated January 20, 1991, written by Dr. Lorrie Penfield, another of decedent's treating physicians, states that plaintiff's diagnoses while in the hospital were back pain due to spinal stenosis at L4-5; moderate lumbar disc bulging at L4-5; osteoarthritis of the back; and Darvocet overdose, secondary to intolerance to back pain. (T. 190). A drug screening was also performed while decedent was hospitalized which was positive for cannabinoid. (T. 191).
Decedent was again hospitalized for a drug overdose on February 8, 1991. (T. 207-209). The February 25, 1991 discharge summary indicated that decedent took an excessive amount of Soma and Tylenol with Codeine. (T. 208). Other discharge diagnoses included back pain, secondary to multiple bulging discs; anxiety and depression; pneumonia (contracted while in the hospital); cigarette abuse; and abnormal liver enzymes. (T. 208). Upon admission, decedent complained of severe back pain, and the discharge summary states that "it was felt she was not able to handle this pain as an outpatient." (T. 208).
Decedent was psychiatrically examined while she was in the hospital by Dr. Michael R. Glass, M.D., who recommended treatment with Prozac, commenting that lifting the decedent's mood might alleviate some of the pain. (T. 208, 218). The psychiatric examination by Dr. Glass noted the harassment that decedent was suffering from her ex-husband, which made dealing with the pain more difficult. (T. 208, 218). Dr. Glass stated that psychotherapy was "quite necessary." (T. 219).
Also during the course of decedent's February 1991 hospitalization, she was examined by Dr. Jacob Skezas, Dr. Penfield's partner. (T. 214-15). Dr. Skezas stated that after decedent's January 1991 hospitalization, she had been examined by Dr. Knierim, a neurosurgeon, who suggested "conservative care." (T. 214). Decedent stated that she was out of school for the semester and had been trying to rest, which was difficult in a household with four children. (T. 214). An examination of decedent's back showed much spasm in the paravertebral areas of the back with decreased flexion-extension and lateral tipping. (T. 215). Plaintiff had diffuse tenderness to percussion and palpation over the spine. (T. 215). Straight leg raising was positive at 45 degrees on the right and 60 degrees on the left. Id. Muscle strength in the legs was intact except for the ankle flexors which were 4/5 on the right. Id. Dr. Skezas stated that decedent had persistent pain, but could not rest at home, so she was "admitted for observation," however, Dr. Skezas stated that at the time of his examination, decedent appeared "almost normal." (T. 215).
There must have been additional children living with Ms. Hapstak in February of 1991, since her June 1992 application for disability benefits listed only two children.
The hospital records also contain an orthopedic report dated February 19, 1991 by Dr. Frank Baldwin. (T. 220). The doctor noted that decedent seemed to have multiple accidents and that she even fell while in the hospital which perhaps aggravated her pain. (T.220). Dr. Baldwin stated that decedent was working at a strenuous "housecleaning-type" job and raising four children. Dr. Baldwin found "mild" pain on straight leg raising on the right at 70 degrees, but negative straight leg raising on the left. (T. 220). Decedent had some pain on right and left hip flexion, with pain on extension of the feet against resistance, no numbness and no reflex loss. Id. Her range of motion was 50% of normal in all directions, there was "overreaction" to palpation in the right sacroiliac and lumbar areas, but she had "appropriate" reaction on simulated rotation of the spine. Id. Dr. Baldwin recommended "exercises, ambulation, and keeping [decedent] off drugs." Id. Dr. Baldwin recommended "leg work, but no heavy lifting ." (T. 220) (emphasis added). Dr. Baldwin also recommended "physiotherapy for moral support." Id.
It is unclear what Dr. Baldwin meant by this statement since plaintiff was not working at the time of her hospitalization.
Decedent was also examined regularly by Dr. Lorrie Penfield. (T. 257-79). Dr. Penfield's diagnoses were back pain, bulging discs, and sciatica. (T. 257, 259, 260). On May 1, 1991, decedent complained that she strained her back while holding her son for allergy testing. (T. 258). On June 28, 1991, Dr. Penfield noted that decedent had "spinal stenosis." (T. 261). On July 26, 1991, the progress notes from Dr. Penfield's office state that decedent's condition was "better than when it 1st started," but worse with activities like laundry. (T. 262). The diagnosis was chronic back pain, and decedent's medications were listed as Soma, Tylenol # 3, and Xanax. (T. 262).
Stenosis is the narrowing or contraction of a body passage or opening. DORLAND'S MEDICAL DICTIONARY 630 (Shorter Ed. 1980). Spinal stenosis results from lumbar spinal canal narrowing which causes pressure on the sciatic nerve roots. THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 476 (17th Ed. 1999).
On August 26, 1991, decedent went to the emergency room because she slipped on a rug and fell, causing increased pain. (T. 228, 263). The emergency room record states that the injury which brought decedent to the emergency room was the fall, but that earlier in the week, she had strained her back lifting her child. (T. 228). A lumbo-sacral spine x-ray, taken on August 24, 1991 showed a slight decrease in normal lumbar lordosis which might have been related to spasm, but was otherwise "unremarkable." (T. 232).
Decedent also underwent a series of three epidural injections, which were not completely successful. (T. 233-34, 237-38, 241-42). Between September 4, 1991 and July 17, 1992, decedent had eight appointments at Dr. Penfield's office. (T. 264-72). A nurse's notation on October 9, 1991 stated that decedent's back had "started hurting since last Tuesday." (T. 266). Decedent apparently sprained her ankle on Halloween and was examined by Dr. Penfield on November 6, 1991 for this injury. (T. 267). Dr. Penfield still noted decedent's back pain, and on January 6, 1992, a nurse stated that decedent's back was "sore." (T. 268). On January 23, 1992, decedent's "chief complaints were groin nodules and breast pain." (T. 269). On the same page, Dr. Penfield noted that one of decedent's diagnoses was back pain, but the doctor was concerned about decedent's "drug overuse." (T. 269). The doctor stated that she would not prescribe any more pain medications. (T. 269). Because of decedent's drug use, she was admitted to the Park Ridge Chemical Dependency program between April 3, 1992 and April 21, 1992. (T. 245-46). The discharge summary noted Cannabis, Opiate, Soma, and Alcohol dependence. (T. 245). The summary noted "ongoing back problems," and stated that decedent was unemployed due to the use of alcohol and drugs together with the back pain. (T. 246). One of the discharge recommendations was for decedent to schedule an appointment at the "Strong Pain Clinic." (T. 246).
Decedent had these injections on October 17, November 7, and November 18, 1991.
On May 4, 1992, decedent was back in Dr. Penfield's office. (T. 270). The nurse stated that decedent "continu[ed] with some back pain." (T. 270) (emphasis added). Dr. Penfield discussed the drug rehabilitation with decedent "at length." (T. 270). Dr. Penfield prescribed regular Tylenol, Naprosyn, and Cytotec. (T. 270). On June 8, 1992, decedent complained that she had picked up milk the week before and had felt pain. (T. 271). Decedent told the nurse that her hips hurt badly. Id. Dr. Penfield noted that decedent had pain down the front of her leg, but there was no numbness or weakness. (T. 271). On July 17, 1992, decedent complained of a "recent" increase in back pain that was worse because her children were home. Id. Dr. Penfield prescribed Relafen, Naprosyn, and Cytotec. Id.
In August of 1992, decedent had a laminectomy and a disc excision for her disc protrusion at L4-5, performed by Dr. Robert Moody, M.D. (T. 247-48). Decedent was in the hospital from August 17 until August 28, 1992. (T. 247). Dr. Moody stated that decedent ambulated the day after surgery without problems. (T. 248). Decedent had subsequent appointments with Dr. Moody on September 29 and November 9, 1992. (T. 255). On November 9, 1992, Dr. Moody reported that decedent was being active and doing quite well . (T. 255). Dr. Moody stated that decedent could return to work "with the usual restrictions" as of the end of November. Id.
On December 1, 1992, decedent was consultatively examined by Dr. Peter Parken, M.D., who after a thorough review of decedent's condition, found that she could lift up to thirty pounds and could do a "full day's work in any work that involves sitting, standing, or work of that sort." (T. 465-67). The court notes that it appears that decedent's Graves disease was not diagnosed until after the expiration of her insured status.
3. Substantial Evidence
Plaintiff's counsel argues, apparently for the first time, that the decedent should have been entitled to a period of disability commencing August 1, 1990 and ending November 30, 1992 when Dr. Moody released her to go back to work. In September of 1990, decedent was attending school, and stated that she was having trouble sitting through class, but stated that she would try to take pillows to class. (T. 182). There is no question that decedent had a back impairment, however, as late as January 15, 1991, her treating physician was simply recommending that decedent do no heavy lifting . (T. 184). The court would point out that prior to the January 15, 1991 examination by Dr. Eisman, decedent had slipped and fallen, which resulted in increased pain. Dr. Eisman recommended Darvocet, bed rest, and ice compresses for one week because of the exacerbation from the fall, but then stated that decedent should not do any heavy lifting. He placed no other restrictions on her abilities.
Plaintiff's counsel did not raise this claim with the ALJ Stephan, and the relevant portion of the ALJ's decision focuses solely upon whether decedent was disabled prior to September 30, 1993. Plaintiff's counsel now concedes that decedent was not disabled after November 30, 1992 until some time in 1994 when he alleges that decedent became disabled again. Counsel argues that this is not a "new" argument, but that he just withdrew part of plaintiff s claim that decedent was disabled for the entire period between August 1, 1990 and her death in 1999.
Plaintiff's counsel argues that the fact that Dr. Eisman only mentioned a restriction on lifting does not mean that there were no additional limitations. If this were true, and decedent should have avoided performing other activities, it is unclear why the doctor would have only mentioned lifting while not including any other limitations. This assessment by Dr. Eisman is also consistent with Dr. Baldwin's assessment of February 19, 1991 which also only mentioned the avoidance of heavy lifting and also stated that decedent should do "leg work." (T. 220). Since the ALJ cannot make medical assessments, he must rely upon the limitations stated by plaintiff s physicians. In 1991, Dr. Eisman and Dr. Baldwin stated that plaintiff should only avoid heavy lifting.
As ALJ Stephan noted in his decision, decedent was hospitalized in January and February of 1991, however, those hospitalizations were precipitated by drug overdoses, not by decedent's back impairment. Certainly once decedent was in the hospital, she was evaluated for her back impairment as well as the drug problem. During the February 1991 hospitalization, Dr. Skezas stated that decedent had persistent pain, but was kept in the hospital "for observation" because she could not rest at home. (T. 215).
On February 19, 1991, again during decedent's hospitalization, Dr. Baldwin noted mild pain on straight leg raising at 70 degrees on the right, and negative straight leg raising on the left. (T. 220). Decedent had some pain on right and left hip flexion and pain on extension of the feet against resistance. At the time of Dr. Baldwin's examination, decedent had no numbness or weakness. (T. 220). Dr. Baldwin recommended "exercises, ambulation, and keeping [decedent] off drugs." (T. 220). As stated above, Dr. Baldwin also specifically recommended "leg work" but "no heavy lifting ." (T. 220) (emphasis added). Decedent's treating physicians put no further restrictions on decedent's physical capabilities, notwithstanding the fact that decedent did have pain and restriction of movement.
Decedent went to the emergency room on August 26, 1991 because she slipped on a rug and fell, however, she also told the doctor that she had strained her back the week before lifting her child. (T. 228). Because of decedents drug and alcohol use, she was admitted to a chemical dependency program from April 3, 1992 until April 21, 1992. (T. 245-46). In the discharge summary, one of the recommendations was that decedent should schedule an appointment at the Strong Pain clinic. On May 4, 1992, the nurse in Dr. Penfield's office stated that decedent continued with "some" back pain. (T. 270).
Plaintiff's counsel argues that since it was clear that decedent could not perform her prior heavy work, which included heavy lifting, then the burden was on the Commissioner to show that she could perform other work. While this statement of the law is correct, the ALJ could rely upon the statements by Dr. Eisman and Dr. Baldwin that decedent should only avoid heavy lifting. In fact, in February of 1991, Dr. Baldwin recommended ambulation and exercises. (T. 220). There are no completed residual functional capacity assessments until a January 11, 1993 non-examining assessment, finding decedent was able to perform light work as of that date. (T. 435-42).
Plaintiff's counsel states that this report is not relevant because it was rendered after decedent's surgery that admittedly restored her ability to work. Plaintiff's counsel also argues that Dr. Parken's consultative report, finding that decedent could perform a "full days work" at any jobs that involved sitting or standing is also not relevant because the examination was after decedent's back surgery, when she had admittedly been released by her treating surgeon to return to work.
Even assuming that counsel's argument regarding the subsequent reports is true, and even though the issue being resolved by the ALJ did not involve a closed period of disability, this court finds that the ALJ's finding that decedent could engage in at least sedentary work prior to the expiration of her insured status is supported by substantial evidence. No treating physician from August of 1990 until November 30, 1992 ever placed greater restrictions on decedent than to avoid heavy lifting.
This is the date that plaintiff's attorney argues is the end of the first closed period of disability.
In fact, some of decedent's exacerbations resulted from attempting to do more than her doctors suggested. On May 9, 1991, she complained that she had strained her back while holding her son for allergy testing. (T. 258). On July 26, 1991, plaintiff stated that her back was better "than when it first started," but worse with activities like laundry . (T. 262). When decedent went to the emergency room in August of 1991, she had slipped on a rug and had fallen, however, she stated that earlier in the week, she strained her back while lifting her child. (T. 228).
The court notes that one of decedent's medical reports indicates that in 1990, decedent's nine year old son weighed only five pounds less than decedent. (T. 182).
The lack of restrictions, other than to avoid heavy lifting, together with decedent's self-described activities is support for the ALJ's finding that decedent could perform sedentary or light work. Additionally, although it is true that the January 11, 1993 RFC evaluation was completed by a non-examining physician, it is entirely consistent with decedent's own physicians' recommendations to avoid heavy lifting. While decedent may have experienced times prior to November of 1992 when she was unable to work due to an exacerbation of her symptoms or during the time that she had surgery for her back, there is no indication that the restrictions, if any, lasted for a continuous period of not less than twelve months as required for disability. 20 C.F.R. § 404.1505(a).
On July 24, 1992, decedent stated in a Disability Report that she cooked every day for her children; cleaned the house, as tolerated; shopped when needed and tolerated; and did the laundry. (T. 449).
The ALJ also mentioned decedent's chemical dependency. Plaintiff's counsel argues that if the ALJ were going to consider the decedent's drug and alcohol problems, the ALJ would have to specifically find that alcoholism and/or drug abuse was "material" to a disability finding. Supplemental Brief at p. 6. Plaintiff's counsel argues that absent this finding by the ALJ, he would have to include the decedent's "mental limitations" in assessing her RFC. Counsel cites 20 C.F.R. § 404.1535.
The regulations provide that decedent may not be considered disabled if alcoholism or drug addiction would be a contributing factor, material to a finding that she is disabled. 20 C.F.R. § 404.470(a). ALJ Medicis stated that "when assessing the decedent's credibility, her involvement with drug and alcohol abuse was a factor that [could] not be ignored when determining whether she was able to sustain competitive employment. (T. 22)." In Lundy v. Massanari, 01-CV-0102, 2001 U.S. Dist. LEXIS 10198 *19-20 (E.D.N.Y. July 10, 2001), the ALJ did not find that alcoholism would be a contributing factor to the disability, but rather simply called attention to the plaintiff's alcohol abuse. The court held that "the evidence in this regard further weakens her claim of disability." Id. Section 404.1535, cited by plaintiff's counsel applies if the Commissioner finds that the decedent is disabled and there is evidence of drug or alcohol addiction. 20 C.F.R. § 404.1535(a). The Commissioner then must determine whether the alcohol or drug addition is a "contributing factor" to the disability, and whether the decedent would be disabled if he or she stopped using alcohol or drugs. Id. § 404.1535(b). In this case, the ALJ found that decedent was not disabled, so there was no issue of whether the alcohol or drug abuse was a contributing factor to the disability. The ALJ did not commit error in failing to specifically follow section 404.1535.
4. Credibility
Plaintiff's counsel alleges that the ALJ improperly assessed decedent's credibility. In rendering a disability determination, the ALJ must consider the decedent's subjective complaints about her symptoms, including pain at each step of the sequential process. 20 C.F.R. § 404.1529(a). Subjective complaints of pain may serve as the basis for establishing disability even where the pain or other symptoms are unsupported by clinical findings, as long as an underlying impairment can be medically ascertained. 20 C.F.R. § 404.1529(b). See also Gallagher on behalf of Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983); Knapp v. Apfel, 11 F. Supp.2d 235, 237 (N.D.N.Y. 1998). A finding that a decedent suffers from disabling symptoms, including pain, requires medical evidence of a condition that could reasonably produce pain, but does not require objective evidence of the pain itself or of its degree. Chandler v. Callahan, 96-CV-1790, 1998 WL 99384 *4 (N.D.N.Y. Feb. 23, 1998 ) (citing Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986)). See 20 C.F.R. § 404.1529(c)(2).
It is clear that ALJ Medicis did not have the opportunity to see decedent's demeanor since she died prior to the second hearing. The ALJ did consider credibility based on the evidence of record. The ALJ found that plaintiff had pain, but that the pain was not sufficient to preclude the performance of sedentary or light work prior to September 30, 1993. Plaintiff's counsel states that the ALJ should not have considered the fact that decedent attended school during the relevant time period because she had trouble sitting in class and that the ALJ should not have considered her ability to perform daily chores because her ex-husband helped her to do them.
Plaintiff's counsel cites page 160-61 as support for this argument. However, the disability report on pages 160-61 was completed in 1994, after decedent's insured status expired. Decedent's ex-husband was not living with her to help her with her household chores during the relevant time period prior to November of 1992. It is true that in 1994, decedent stated that she only cooked 3-4 times per week, however, in July of 1992, decedent stated that she cooked every day for her children, cleaned when tolerated, shopped when needed and tolerated and did laundry. (T. 449). Although it is true that the ALJ may not pick and choose his evidence, the ALJ may consider daily activities in assessing a decedent's credibility. See 20 C.F.R. § 404.1529(c)(3)(i) (ALJ may properly consider daily activities in assessing credibility); Miranda v. Apfel, 2000 U.S. Dist. LEXIS 10638, *23-24 (S.D.N.Y. July 31, 2000). Thus, the ALJ properly rejected decedent's credibility.
Rivera v. Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991).
5. Medical Vocational Guidelines
Plaintiff's counsel argues that the ALJ erred in applying the Medical-Vocational Guidelines (the "Grid") in finding that decedent was not disabled during the relevant time period.
The Grid classifies work into five categories based on the exertional requirements of different occupations. The Grid divides work into sedentary, light, medium, heavy, and very heavy categories, based on the extent of a decedent's ability to sit, stand, walk, lift, carry, push, and pull. Zorilla v. Chater, 915 F. Supp. 662, 667 n. 2 (S.D.N.Y. 1996). See also 20 C.F.R. § 404.1567(a). The ability to perform a particular category of work is referred to as Residual Functional Capacity ("RFC"). Each exertional category of work has its own Grid. The Grid yields a decision of "disabled" or "not disabled," taking into account the decedent's RFC, age, education, and prior work experience. 20 C.F.R. § 404.1569, 404 Subpt. P, App. 2, 200.00(a).
Generally, the result listed in the Grid is dispositive on the issue of disability. Zorilla, 915 F. Supp. at 667 (citation omitted). However, exclusive reliance on the Grid is not appropriate if the medical vocational guidelines "fail to adequately describe a decedent's particular limitations." Id. (Citing 20 C.F.R. Part 404, Subpt. P, App. 2, 200.00(e). Where there are "discrepancies" between the decedent's abilities and the Grid factors, where the decedent's exertional impairments are compounded by significant non-exertional impairment that limit the range of work an individual can perform, or where there is no substantial evidence that a decedent can perform the full range of a particular category of work, then the relevant facts are to be considered in light of the vocational considerations outlined in the regulations at 20 C.F.R. § 416.969(a). If a decedent cannot perform the full range of an exertional category of work, then an individual assessment may be required. Zorilla, 915 F. Supp. at 667 (citing Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989)).
Plaintiff's counsel argues that decedent had a non-exertional impairment that would prevent her from concentrating, keeping pace, and from remembering and carrying out detailed instructions. Supplemental Brief at p. 6. Counsel cites the ALJ's own assessment of decedent's non-exertional restrictions as well as Dr. Penfield's assessment that decedent had some "extreme" limitations in sustained concentration and persistence. (T. 373-82). The court notes, however, that Dr. Penfield's assessment is dated January 29, 1996 and the ALJ found that decedent was disabled as of October of 1995 so Dr. Penfield's assessment is not inconsistent with the ALJ's decision, nor is the ALJ's decision inconsistent with his own findings of more severe limitations after the expiration of decedent's insured status. Counsel previously argued that Dr. Parken's assessment of decedent's physical capabilities should be ignored because it came after decedent had been released to go back to work, however, the same can be said for Dr. Penfield's 1996 assessment of decedent's limitations when decedent had been diagnosed with an additional impairment and was used to determine that decedent was disabled after 1995 .
Counsel has submitted a clearer copy of this document, because the transcript copy is almost illegible. See Plaintiff's Ex. A.
It appears that the ALJ did make a factual error in his decision, however, it is harmless. The ALJ stated that the decedent's additional treating diagnoses, including hyperthyroidism secondary to Graves disease were conditions that decedent was treated for prior to September 30, 1993, it does not appear from Dr. Penfield's records that decedent's thyroid problem was diagnosed until November 5, 1993, shortly after the expiration of decedent's insured status.
There are no assessments regarding the additional limitations caused by any non-exertional impairments prior to the expiration of decedent's insured status .
There is also no evidence that any depression that might have been diagnosed prior to the expiration of decedent's insured status significantly reduced decedent's abilities to perform work-related activities. The court must also note that the ALJ did not consider whether decedent may have had a "closed period" of disability. That was not the issue before the ALJ, and it appears that this was not argued before the appeals counsel, making the analysis more complicated. Thus, the ALJ's use of the Grid and his finding that Ms. Hapstak was not disabled prior to the expiration of her insured status is supported by substantial evidence.
Plaintiff's counsel argues that the claim of a closed period of disability is not a new argument. Instead, counsel argues that this argument represents the "withdrawal of the period November 1992 until April 1994 from the period of disability previously claimed." Supplemental Brief at p. 3. The Commissioner merely notes that this is a new argument and does not claim that plaintiff's counsel is precluded from making it because he did not raise it in the Agency. Defendant's Brief at p. 8. (Dkt. No. 8). Defendant opposed counsel's argument on the merits. It has been held, however, that with some exceptions, the failure to raise an argument in the Agency precludes plaintiff from raising it in federal court. See Fernandez v. Apfel, 97 Civ. 6936, 1998 U.S. Dist. LEXIS 14369 *40-51 (S.D.N.Y. Sept. 11, 1998) (discussing exhaustion at length) (citing inter alia Miranda v. Sullivan, 771 F. Supp. 50, 56 (S.D.N.Y. 1991) (plaintiff waived her right to object to ALJ's use of census data since she made no objection to the Social Security Administration), aff'd, 962 F.2d 3 (2d Cir. 1992)). Without deciding whether defendant would have been successful arguing that plaintiff would have been precluded from making this argument, the court has found that plaintiff's argument fails on the merits.
6. Plaintiff's Additional Arguments
Plaintiff's counsel also argues that the ALJ's finding that Ms. Hapstak was not disabled prior to October 1995 is not supported by substantial evidence, and that Ms. Hapstak was disabled as of April 1994. Plaintiff's counsel makes this argument as a basis for his argument that plaintiff would have been entitled to a second period of disability beginning April of 1994. This argument is only relevant if decedent had been entitled to a prior period of disability that would have allegedly extended decedent's insured status. Counsel argues that if decedent's insured status were extended for a period of 25 months, and decedent had been considered disabled as of 1994 instead of October of 1995, then decedent (and consequently her son) would be entitled to a second period of disability and disability insurance benefits, starting in April of 1994 and continuing until decedent's death in 1999.
I need not consider counsel's other arguments since I have found that the ALJ's decision that decedent was not disabled prior to September 30, 1993 is supported by substantial evidence. Whether decedent became disabled in 1994 or 1995 is no longer relevant. The later onset date applies only to SSI since decedent's insured status for DIB would not have been extended, and decedent's son cannot obtain SSI benefits.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the complaint 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.