Summary
finding substantial evidence supported ALJ's decision to reject examining psychologist because the psychologist made the diagnosis based on plaintiff's self reports one week before administrative hearing and the opinion was contradicted by the inferences that can be fairly drawn from reliable medical evidence
Summary of this case from Mulholland v. AstrueOpinion
01 CIV. 4066 (DLC).
March 28, 2002
Michael Joseph J. Barnas, Esq., New York, NY, For plaintiff.
Susan D. Baird, Assistant United States Attorney, United States Attorney's Office, New York, NY, For defendant.
OPINION AND ORDER
On May 14, 2001, Gary Streeter ("Streeter") filed this action pursuant to Section 405(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405 et seq., seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying his application pursuant to Title II of the Act for Social Security disability insurance benefits. In order to obtain Title II disability insurance benefits, Streeter must be "insured for disability insurance benefits." 42 U.S.C. § 423(a)(1)(A), 423(c)(1). To qualify for insured status, an individual must earn a specified number of "quarters of coverage," which are earned by working at a job that makes payments into the Social Security System on the individual's behalf. 42 U.S.C. § 423(c)(1). Streeter qualified for insured status only until December 31, 1987. Because Streeter failed to apply for disability benefits during his insured status, he cannot obtain disability insurance benefits unless he can establish that he became disabled while he was insured, in this case before December 1987, and that his disability persisted continuously until at least twelve months before he filed his application for benefits. See, e.g., Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989); see also Lisa v. Sec'y of the Dep't of Health and Human Serv., 940 F.2d 40, 41 (2d Cir. 1991). Streeter first filed an application for benefits in August 1993. In sum, Streeter cannot obtain disability insurance benefits unless he was disabled beginning no later than December 31, 1987, and continuing without interruption until at least August 1992.
Title II of the Social Security Act (the Old Age Survivors and Disability Insurance Program), and Title XVI of the Act (the Supplemental Security Income program), each provide for the payment of monthly benefits to disabled persons who meet certain requirements. Dixon v. Shalala, 54 F.3d 1019, 1021 (2d Cir. 1995). Title II provides for the payment of insurance benefits to persons who have previously contributed to the program and suffer from a disability, and Title XVI provides for the payment of disability benefits to indigent persons. Title II has an insured status requirement; Title XVI does not.
Based upon Streeter's cessation of employment in January 1984, and his accumulated quarters of coverage through employment, the parties have stipulated that Streeter qualified for insured status only until December 31, 1987. 42 U.S.C. § 423(c)(1); 20 C.F.R. § 404.101 et seq.
Since Streeter turned 50 seven weeks before December 31, 1987, and thus for purposes of disability benefits was no longer a "younger individual" but had become an individual "closely approaching advanced age," a person of his educational level and previous work background will be considered "disabled" if he is only capable of doing "sedentary" work. The Commissioner found, however, that Streeter had been able to perform "light" work with certain exertional limitations as of December 31, 1987. Streeter challenges that determination. Streeter and the Commissioner have cross-moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons set forth below, Streeter's motion is denied and the Commissioner's motion is granted.
BACKGROUND
Streeter was born on November 9, 1937. He attended Fordham University and received a bachelor's degree in sociology and psychology in 1978. Streeter was in the Air Force for thirteen years, where he learned skills as a teletype technician. After his time in the service, he worked for ITT and then for a furniture store for about a year. He then started work for RCA Service Company as a teletype technician, installing and repairing teletype machines, and worked at RCA in this capacity until 1984. This occupation required him to carry the teletype machines, weighing over 100 pounds, as well as the tool kit and test equipment, weighing between 40 and 60 pounds each, and to string cable on different floors for the installation of the machines. Streeter has not worked since 1984, with the exception of an unsuccessful attempt to return to work in 1986.
March 19, 1981 Injury
The injury to which Streeter traces his disability occurred on March 19, 1981. Streeter fell to the floor, injuring his back and right knee, when a restaurant stool on which he was sitting collapsed. According to Streeter, he was taken to Lenox Hill Hospital where a fracture of the L-5 vertebrae was noted. Following the fall, Streeter complained of severe low back pain radiating into his right buttock and down his right thigh to his right knee. In June of 1981, Streeter began seeing Dr. Robert Dubois, a chiropractor. Dr. Dubois noted that Streeter's straight leg raising was limited and he was unable to bend at the waist or to touch his toes. Streeter was also experiencing muscle spasms.
Dr. Dubois referred Streeter to Dr. Martin B. Camins, a neurological surgeon, who evaluated Streeter in October of 1981. Dr. Camins noted that Streeter's ability to raise his leg was limited, and he was unable to bend at the waist to touch his toes. Dr. Camins also noted that Streeter was experiencing moderate lumbosacral muscle spasms, for which he was taking Flexeril, and walked with a hesitant gait. Streeter's x-rays suggested herniations at the L5-S1 and L4-L5 levels.
March 9, 1982 Back Surgery
Approximately one year after the fall, on March 9, 1982, Dr. Camins performed an intralaminar hemilaminectomy to excise Streeter's herniated degenerated disc fragments at the L4-L5 level. The operative record indicates that Streeter tolerated the procedure without any difficulties. On March 18, Dr. Camins referred Streeter to Dr. Jeffrey Schwartz, an orthopedist, for a consultation about Streeter's right knee. X-rays taken on that day indicated no evidence of fracture, dislocation, or other bone or joint pathology in Streeter's right knee, and no thinning of the intervertebral disc spaces and an otherwise normal lumbar spine appearance. On May 10, Dr. Dubois noted that Streeter had some limited range of motion, was experiencing chronic lumbar muscle spasms and some right buttock pain, and was unable to sit "for any length of time." Streeter's general physician for over twenty years, Dr. Michael Borecky, noted on July 12 apparently, that a battery of tests, including a chest x-ray, electrocardiogram, cardiac stress test, and multiphasic blood and urine tests were all in the normal range except for problems related to Streeter's smoking.
September 10, 1982 Knee Surgery
Approximately six months after his back surgery, on September 10, 1982, Streeter underwent arthroscopic surgery, specifically a medial meniscectomy and patella shaving, on his right knee. The surgery was performed at Lenox Hill Hospital by Dr. Schwartz. The operative record indicates that Streeter tolerated the procedure well. After seeing Streeter in a follow-up visit on October 5, Dr. Camins, who performed the back surgery, noted that Streeter "has had an ideal postoperative course. His only complaint at the present time is mild stiffness at the incision site." Dr. Camins also noted that Streeter had "resumed all of his normal activities," and also appeared to be recovering in normal fashion from his knee surgery.
1983
Dr. Camins examined Streeter again in April 1983. Streeter was complaining of persistent pain in both buttocks as well as an inability to maintain an erection, a complaint not mentioned to Dr. Camins in prior examinations. Dr. Camins noted that Streeter "presents a frustrating situation at the present time. He is unable to return to work and I am not sure why. . . . I am unable to demonstrate any new change in neurologic condition." Dr. Camins referred Streeter to a Dr. Velcek, a urologist specializing in impotence.
1984
Streeter apparently continued to work, at least part-time, following the 1981 accident. He stopped working altogether in January 1984, and claims January 10, 1984, as the date of his disability onset. On January 12, 1984, Streeter first consulted with Dr. Frank G. Wacker, a chiropractor, and continued to see him regularly until June 1985, and thereafter for occasional symptomatic relief. In January 1984, Dr. Wacker noted that Streeter had lost his sensory nerve in his right leg to his foot and had no achilles reflex. Dr. Wacker provided treatment for Streeter's pain, consisting of physiotherapy, ultrasound, and muscle and spinal manipulation.
On June 5, 1984, Streeter was admitted to Lenox Hill Hospital with a fractured left wrist. He was given a splint, and on July 6, 1984, the fracture was no longer evident and had healed. The record contains no further complaints with respect to his wrist.
1985
In a report prepared on June 25, 1985, Dr. Wacker diagnosed Streeter with traumatic lumbar disc syndrome with concurrent right sciatic neuritis, as well as chronic intractable pain. Dr. Wacker characterized Streeter's prognosis as poor, noting that Streeter was in constant pain, was unable to bend and had lost most of his lumbar flexibility, and was unable to sit for any length of time. In Dr. Wacker's view, Streeter was "permanently partially disabled."
1987
There is no record for any medical care given in 1986, but there are reports from two physicians for the year 1987. In a report prepared after Streeter was seen on August 18, 1987, Dr. Wacker characterized Streeter as totally disabled, noting that Streeter was unable to work due to chronic pain following surgery. Dr. Wacker went on to note that Streeter was unable to sit or stand for more than fifteen minutes without experiencing leg numbness, and that he was severely restricted due to pain.
On October 1, 1987, Streeter was seen by Dr. Peter A. Godsick in connection with his lawsuit against the restaurant where the stool had collapsed in 1981. Streeter complained of pain in his back and right knee. Dr. Godsick observed that Streeter was able to walk bearing his weight equally on both legs and could walk on his heels and toes. He characterized Streeter as "status post laminectomy with minimal residuals" and "status post arthroscopy of the right knee with essentially no residuals." Dr. Godsick concluded that Streeter could do sedentary work and use public transportation without restrictions on a full-time basis, but could not do work requiring prolonged squatting, bending, or carrying.
In a physical capacity evaluation prepared on November 3, 1987, Dr. Wacker stated that Streeter was unable to sit or stand for more than two hours, and unable to walk for more than four hours, and suggested that he be trained for work to be done at home at his own pace. Dr. Wacker stated that Streeter could lift only up to twenty pounds occasionally, could engage in simple grasping and fine manipulation with both hands, could not engage in pushing and pulling with either hand nor operate foot controls, and was unable to bend, squat, crawl, climb, and reach above shoulder level.
1988: Illness from Canoeing
On June 2, 1988, Streeter went to see Dr. Borecky, complaining of flu-like symptoms. Dr. Borecky's notes indicate that Streeter's canoe had tipped, causing him to fall into the water with his clothes on.
1989: Fears of Illness from Yardwork
On July 11, 1989, Streeter expressed concern to Dr. Borecky that he might have been exposed to Lyme disease while doing yard work, possibly mowing, at his brother's house in New Jersey.
1990: Fall in KMart
On May 26, 1990, Streeter slipped and fell while shopping at KMart. He was taken to the Hamilton Health Center in Mercerville, New Jersey, where he was examined, x-rayed, medicated and released. Streeter saw Dr. Wacker on June 7, complaining of pains in his head, neck, right shoulder, and lower back, with the lower back pain extending into his right leg. Dr. Wacker's report states that Streeter's right shoulder appeared normal, and "all range of motion studies of his right shoulder were performed in a normal fluid manner and without apparent pain." Dr. Wacker also noted that Streeter's lumbar examination revealed a pronounced loss of range of motion with possible disc involvement and difficulty in walking. Dr. Wacker diagnosed Streeter with traumatic lumbar intervertebral disc syndrome, right sciatic neuritis, and a herniated disc at L4-L5. Dr. Wacker rated Streeter's prognosis as poor and characterized his condition as permanent due to the weakening of his spine by the previous surgery and the two herniated discs. A computerized tomography scan ("CT scan") taken of Streeter's lumbar spine in July 1990, revealed central herniated discs at the L4-L5 and L5-S1 levels.
1991
Dr. Borecky's notes from an office visit on September 18, 1991, indicate that Streeter complained at that time of being tired all the time and having problems with his back that were alleviated somewhat by exercises.
1993
There is no record of medical care for 1992. As noted already, to qualify for Title II disability benefits, Streeter must have been disabled continuously from at least December 31, 1987, through August 1992.
On August 31, 1993, Streeter applied for disability insurance benefits. Social Security records reveal that Streeter asserted only a back disorder at the time of his 1993 application. Immediately thereafter, in September of 1993, Streeter began seeing Dr. Leon R. Harrison. During the course of his treatment by Dr. Harrison, Streeter was prescribed Flexeril and Motrin. In a report completed after Streeter saw Dr. Harrison on December 21, Dr. Harrison diagnosed the following conditions: status post lumbar laminectomy with sequelae, status post right knee arthroscopy with sequelae, and right shoulder bicipital tendinitis. Streeter complained to Dr. Harrison of severe daily pain and stiffness in his back, knee, and shoulder. Streeter characterized his pain as having gradually worsened over the years. Dr. Harrison observed no signs of any psychiatric disorder, and noted that Streeter's knee and shoulder x-rays were normal. It was noted, however, that Streeter's back x-ray demonstrated extensive degenerative changes. Dr. Harrison concluded that Streeter was limited in the following ways: the maximum amount he was able to carry was ten pounds, he was able to stand and/or walk for less than two hours per day, he was able to sit for less than six hours per day, and he was unable to engage in any pushing or pulling.
1994
In a report generated on January 25, 1996, but based upon a last date of examination of June 1994, Dr. Wacker noted that Streeter complained of constant lower back and leg pain, and had been "frustrated and depressed" since his failed surgeries because he was unable to find work and was in constant pain. Dr. Wacker further noted that Streeter was "very depressed and angry" and "has been on anti-depressive medication." Dr. Wacker concluded that Streeter was unable to lift any weight, was unable to walk or stand for any length of time, was unable to engage in pushing or pulling, and was only able to sit for twenty minutes at a time. "He cannot work — sit — stand without pain."
On October 24, Dr. Harrison noted that Streeter's "lumbosacral, right knee and right shoulder problems are permanent. His constant pain makes it impossible to do any gainful work." Dr. Harrison further predicted that "within a year, he will be worse than reported in my report in 1993."
1995
Streeter's August 31, 1993, application for disability insurance benefits was denied initially and on reconsideration. Because that application and Streeter's request for a hearing were lost, Streeter re-filed for benefits on July 11, 1995, claiming a lower back disorder, a right knee injury, and depression.
On December 12, 1995, Streeter continued to complain to Dr. Harrison of daily and increasing pain, stiffness and limited motion in his lumbar spine and right knee, and daily pain and limited motion in his right shoulder. Dr. Harrison reported that conservative treatments had all failed, and stated that all of Streeter's conditions were worsening and that Streeter was unable to work. Dr. Harrison further noted extensive degenerative changes in both Streeter's lumbar spine and right knee. Dr. Harrison concluded that Streeter was unable to lift and carry more than ten pounds, was able to stand and/or walk for less than two hours per day, was able to sit for less than six hours per day, was unable to engage in pushing or pulling, and that Streeter's communicative skills were decreased by his daily pain.
1996
Streeter's hearing on his July 1995 application was scheduled for April 2, 1996. At the April 2 hearing, the plaintiff requested an adjournment to permit him time to secure representation, and the hearing was rescheduled for June 11, 1996.
In a letter dated May 31, 1996, Dr. Harrison stated that Streeter "has been unable to work since January of 1986," and that he would have difficulty performing sedentary labor because he cannot sit or walk for any period of time without pain. Dr. Harrison also noted that a CT scan showed central disc herniations at L4-L5 and L5-S1, and facet arthropathy bilaterally at L4-L5 and L5-S1. In a functional capacity assessment attached to this letter, Dr. Harrison stated that Streeter was able to sit for ten minutes, stand for fifteen minutes, and walk for thirty minutes. He concluded that Streeter was unable to carry more than five pounds, and unable to bend, squat, climb, or to engage in fine manipulations of the hands or pushing and pulling for more than thirty minutes, and unable to grasp with the hands for more than one hour.
Streeter first consulted with Dr. Robert Conciatori, a psychiatrist, on June 4, 1996, one week prior to the June 11 hearing scheduled before Administrative Law Judge Kenneth T. Levin (the "ALJ"). Streeter complained to Dr. Conciatori of depression, insomnia, pain, suicidal ideations, impotence, and incontinence. The history taken by Dr. Conciatori indicates that Streeter had experienced symptoms of depression following his divorce in 1969, and had been hospitalized in the psychiatric in-patient unit of the Veterans Administration hospital in New York for six months. At the hospital, Streeter had been given a number of medications and had been treated as an out-patient for a period thereafter. During this period, Streeter had begun to drink heavily. He had attended AA meetings and recovered sufficiently to begin working for RCA. Regarding Streeter's physical state, Dr. Conciatori's evaluation indicates that Streeter "has constant pain in his back, has become impotent, incontinent and has difficulty performing even simple tasks such as ambulating and getting up from a chair."
Streeter told Dr. Conciatori that he had begun to experience feelings of depression a few months after the March 1981 accident. Streeter's growing feelings of depression had been accompanied by "vegetative symptoms associated with depression such as anxiety, insomnia, hopelessness, poor concentration, low energy, low self-esteem and guilt." Streeter had begun to take Wellbutrin, a prescription anti-depressant medication which he obtained from a friend, and had continued to take Wellbutrin for some time even though it never relieved his depression. Dr. Conciatori concluded that Streeter had declined to seek professional psychiatric help for reasons of pride and self-reliance, feeling that as a man, he should be able to control his emotions.
At the time of his consultation with Dr. Conciatori, Streeter reported that he had not taken the Wellbutrin for six months, and he was experiencing suicidal ideations. Dr. Conciatori diagnosed Streeter with major depression, recurrent and chronic, insomnia, and pain disorder associated with both psychological factors and his general medical condition. He noted that Streeter displayed seven out of nine signs associated with depressive syndrome. It was Dr. Conciatori's opinion that Streeter's depression had been constant and chronic since 1981, for it had "never had an opportunity to remit." Dr. Conciatori further noted that Streeter's second accident in 1989-90 "compounded his physical symptoms and added to his depressive condition." Streeter's prognosis was characterized as "very poor," and Dr. Conciatori noted that he considers Streeter "totally disabled, psychiatrically speaking."
In an assessment of the severity of Streeter's mental disorder, completed the next day, on June 5, Dr. Conciatori rated Streeter as having the most severe or second most severe degree of limitation in all categories. Specifically, he characterized Streeter's limitation in initiating and participating in activities of daily living (such as cleaning, shopping, cooking, and grooming and hygiene) as marked, and his limitation in social functioning as marked. Dr. Conciatori further noted that Streeter frequently: was unable to maintain attention and concentration for extended periods, was unable to follow simple directions or procedures in order to perform a task, was unable to perform repeated sequences of action to complete a task, made errors in concentration testing, and required additional time and assistance to complete test tasks. Dr. Conciatori concluded that Streeter had difficulty "universally" with the stress of making decisions, completing tasks, maintaining attendance, meeting procedures and production deadlines, and interacting with supervisors and co-workers.
In the week before his hearing, Streeter also saw two other doctors. Streeter was seen by Dr. Camins on June 5, 1996. Dr. Camins had performed Streeter's back surgery in 1982, and had last seen Streeter in 1983. In a letter dated June 5, Dr. Camins states that it is explained to all patients prior to surgery that "it is not anatomically possible to remove all disc material," and that as a result, problems can recur and cause symptoms in 15 the future. Dr. Camins compared a CT scan taken on May 30, 1996, which showed no evidence of residual or recurrent disc herniation, with the report of one taken in 1990, stating "[s]ince the most recent scan shows no evidence of recurrent disc, I am not sure what the 1990 CT scan report is referring to." Dr. Camins added:
I am unable to give you adequate explanation as to why the patient has had a regression from the acute improvement noted immediately after surgery. Although there are limitations placed on patients during their acute post operative period, many patients feel so relieved from the pre-operative pain that they participate in activities that may be too vigorous and can result in recurrence of their symptoms.
With respect to Streeter's complaints of impotence, Streeter explained to Dr. Camins that these symptoms were present prior to his first visit in 1982.
In a letter dated June 6, 1996, Dr. Wacker noted that "Mr. Streeter's moods have been very depressive the last 3 or 4 visits to my office. He seem [sic] to lose interest in anything positive. The mood change is quite contrary to the man that has been my patient in the past." He added in a postscript, "[j]ust in case it is not clear, I would rate Mr. Streeter as totally disabled. However, he may be a candidate for some type of retraining."
June 11, 1996 Hearing
Streeter, represented by counsel, testified at a hearing held before the ALJ on June 11, 1996, that he has pain in his back all the time, and pain in his knees and hips when he walks 16 and ascends stairs, and that he has been experiencing this pain for ten to twelve years. Streeter further testified that the pain in his back shoots down his legs, causing his legs to go numb. As a consequence, Streeter testified that he is unable to sit still and is "off balance" when he stands. He testified that his symptoms were alleviated for "three to four weeks, five weeks" after the surgery in March 1982, but that the symptoms then began to return, and within a month after surgery, the pain was back to the level experienced before surgery. Streeter noted that his back pain worsens when he coughs, when he has to stand or walk for any length of time, and during some extremes of weather. He also noted that he is unable to squat or bend. He noted that his pain was alleviated somewhat by medication, and stated that he has been taking Motrin and Flexeril. Streeter further testified that his right shoulder is arthritic, and that consequently, he cannot lift anything without pain and has difficulty holding on to things. He noted that these limitations concerning his arms and hands have been ongoing since 1982.
Streeter also testified about his second accident, noting that he slipped and fell in a KMart near his brother's house in or around 1989. He stated that he felt very good during 1988, prior to this second accident.
Streeter testified that he has taken prescription medications he gets from friends, including Valium, Wellbutrin, Prozac, and "blackbirds." He also testified that he has participated in a study at a clinic for depression, and purchased a pistol that his daughter "threw in the river" because she feared he might attempt to take his life. At the hearing, Streeter noted that he often forgets things and has difficulty concentrating, that he has difficulty sleeping, and that he has not been able to participate in any of the activities he used to enjoy, such as hiking and camping, for ten to twelve years. Streeter testified, though, that he has been able to fish offshore since the onset of his injuries. He testified that he did not recall falling out of a canoe in 1988, as reflected in Dr. Borecky's notes, and that the reference to yardwork in 1989 in Dr. Borecky's office notes involved some raking at his brother's house in New Jersey. Streeter further testified that he has been involved in a sexual relationship since 1986, with a woman he met at an AA meeting. Streeter testified that the relationship has been difficult and that he experiences pain during sex because he suffers from Peyronie's disease.
With respect to the activities of daily life, Streeter testified that he is somewhat limited in terms of personal hygiene and housekeeping, that he sends his laundry out to be done because he is unable to bend to take laundry out of the washing machine, that he cooks for himself using the microwave, and that he is only able to carry small amounts of groceries. Streeter testified that he was unable to drive for some time after the March 1981 accident, but has been able to drive a couple of miles on occasion since 1986, when he purchased a mini-van. He testified that he had problems with alcohol in the past, but completely stopped drinking in 1969. Streeter also testified that he has become incontinent and has developed an impotence problem. He testified that he is very embarrassed by his current physical condition. Streeter has a cane but does not like to carry it, and he has two back braces and a knee brace. He wears the knee brace, but only wears the back brace when standing because it cuts into his stomach when he is sitting.
Lynn Jonas, a vocational expert, also testified at the June 11, 1996, hearing. Ms. Jonas first testified that for jobs classified as sedentary or light exertion, there are customarily three breaks during the workday. The ALJ then presented her with two hypothetical questions, asking her to provide examples and actual numbers of available jobs that someone like Streeter could perform. The first hypothetical described an individual from 45 to 49 years of age, with the plaintiff's education and work experience, who could do sedentary work provided that the job is simple and requires only a low level of concentration. Ms. Jonas identified a range of appropriate jobs, including small parts assembler, sorter, packer, small cutting, and ticket taker. The second hypothetical question described an individual between 45 and 50 years of age, possessing the plaintiff's education and work experience, who can do light work but is limited to simple tasks requiring low levels of concentration and not requiring climbing, squatting, or bending below waist-level. Ms. Jonas identified small parts assembler, table packer, and small parts inspector as jobs such an individual could perform. In response to questions posed by Streeter's attorney, Ms. Jonas testified that, in her opinion, sleeping on the job would be unacceptable, and that all jobs have some minimal attendance requirement.
July 10, 1996 ALJ Decision
In a decision dated July 10, 1996, the ALJ determined that Streeter was not disabled during his insured status period, and found that the record strongly suggested that Streeter would not be able to prove a continuous period of disability beginning during his insured status period and continuing through August 1992. The ALJ found that the medical evidence showed that Streeter has a severe back disorder, but that he did not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulation No. 4; Streeter's subjective complaints were inconsistent with the medical evidence and were not fully credible; and Streeter had during his insured status at least the residual functional capacity to perform the physical exertion and non-exertional requirements of light work except for work that involves lifting or carrying over 20 pounds frequently or 10 pounds occasionally, prolonged/extensive bending or squatting, or that involves more than simple tasks, or that requires any but low levels of concentration. The ALJ also found that Streeter is unable to perform his past relevant work as a technician, and that he does not have any acquired work skills which are transferable. Based on an exertional capacity for light work, and Streeter's age — he turned 50 seven weeks prior to the end of his insured status 20 period ___, education and work experience, section 404.1569 and Rules 202.14 and 202.21, Table No. 2, Appendix 2, Subpart P, Regulation No. 4 would direct a conclusion of "not disabled." Accordingly, the ALJ concluded that Streeter was not under a "disability" as defined in the Social Security Act from his alleged onset date through the close of his insured status period.
The ALJ placed some emphasis on his observation that, while Streeter did shift in his chair during the hearing, he remained seated throughout the more than two hour hearing and was fully able to maintain attention and concentration at all times and to answer all questions put to him without any apparent distraction. The ALJ also noted that Streeter had very little treatment for his complaints prior to the termination of his insured status on December 31, 1987. Specifically, the ALJ noted the few isolated reports from Streeter's chiropractor, Dr. Wacker, limited records provided by Dr. Camins, the report from Dr. Godsick, and some limited office notes from Dr. Borecky. The ALJ stated his belief that Streeter does have some ongoing or recurrent problems with his lower back, as well as depression arising therefrom, but concluded that any impairment present during Streeter's insured status period was not at a disabling level of severity.
The ALJ gave limited weight to the reports of Dr. Wacker, noting that opinions of chiropractors are not entitled to "treating physician" weight, and that Dr. Wacker's treating records were in any event extremely limited, containing 21 essentially no visit-by-visit entries to show either ongoing objective findings or subjective complaints. The ALJ further noted the disparity between Streeter's testimony that, within a month after surgery, his symptoms were back to the severity he experienced before surgery, and the October 1982 report of Dr. Camins seven months after surgery that Streeter was nearly back to normal. The ALJ also relied significantly on the fact that Dr. Camins was unable to find any clinical abnormalities to explain Streeter's complaints of severe pain at his final visit in April 1983, and that a 1996 CT scan of Streeter's lumbosacral spine ruled out a recurrent disc herniation.
The finding that Streeter's complaints of pain were not fully credible was also largely based on the contradictions between Streeter's testimony and the office notes of Dr. Borecky, particularly the canoeing and yardwork incidents. The ALJ found the notations in Dr. Borecky's records, in addition to Streeter's ability to attend AA meetings regularly and to establish a sexual relationship, to be "strongly suggestive of a conclusion that claimant was virtually free of symptoms between about early 1988 and about May 1990," preventing Streeter from making the necessary showing of a continuous period of disability beginning not later than December 1987 and lasting until twelve months before his benefits application date in August 1993. The ALJ also noted that although Streeter was not claiming disability until 1984, his testimony that he had been experiencing severe pain in his back and legs since mid-1982 was undercut by the fact that he continued to work at a very physically demanding job until January 1984. Finally, the ALJ found Streeter's complaints about pain in his right shoulder since 1981 incredible in light of the fact that there was no mention of any problem with his right shoulder in the medical records until June of 1990.
The ALJ placed significant weight on the October 1987 report of Dr. Godsick, noting that although Streeter was only evaluated by Dr. Godsick once, "there simply is not in existence any report with anything like comparable detail as that of Dr. Godsick." Based upon this report, the ALJ concluded that Streeter's condition was "simply not very serious" by the time his insured status was coming to an end. Noting that Dr. Godsick's report was explicit in concluding that Streeter could perform sedentary work and could not perform heavy work at the time, but did not contain an explicit finding as to Streeter's ability to perform either light or medium work, the ALJ concluded that Dr. Godsick's report, "taken as a whole seems quite clear to me that he considered claimant capable of at least light exertional activity, anyway, so long as prolonged squatting or bending was not required."
With respect to the proper weight to be given to Dr. Harrison's opinion that Streeter is totally disabled and has been so since January 1986, the ALJ concluded that Dr. Harrison's retrospective opinion, where he had no treating relationship with Streeter until nearly six years after his insured status expired, and which was based on essentially no clinical information about Streeter's condition during the relevant time period, was entitled to little weight. The ALJ also noted Dr. Harrison's reliance on the 1990 CT scan showing two disc herniations, his ignorance of the fact that the 1996 CT scan demonstrated no herniations, and Dr. Harrison's lack of knowledge of Streeter's canoeing, yardwork, and long-term sexual relationship.
With respect to Streeter's physical impairment from 1984 to 1987, the ALJ noted the difficulty in reaching a precise determination of functional capacity because of the sparse medical records from that time period, but concluded that Streeter had had a remission in symptoms that was "nearly total" for the majority of 1982, and which was complete enough to permit heavy work activity throughout 1983. The ALJ further found no persuasive evidence that any recurrent disc herniation took place following surgery that would explain the claimant's severe complaints of pain. Crediting the possibility that Streeter may have had a period of "relative dysfunction" starting in 1984, and lasting for a year or two, the ALJ nonetheless concluded that the weight of the evidence demonstrated that by 1987 at the latest, Streeter had improved sufficiently to be capable of at least a wide range of light exertional activity not requiring bending or squatting.
With respect to Streeter's mental capacity, the ALJ gave Streeter "the benefit of the assumption that whether because of an undiagnosed and untreated depressive condition, or because of residual back pain, or both, he would have been restricted as of [December 1987] to simple tasks not requiring more than low levels of concentration." It is unclear whether the ALJ based this concession on Streeter's own testimony that he had difficulty concentrating or on the evaluation of Dr. Conciatori; however, Dr. Conciatori's opinion is mentioned in the decision in the following limited way: "a psychiatrist who examined claimant once at counsel's request reported that in June 1996 he was severely disabled by major depression, giving a history of such dating back to 1981." The ALJ did note that there was virtually no evidence of any diagnosable mental impairment between 1984 and 1987.
Based on the testimony of a vocational expert during the hearing that the performance of light jobs would have allowed Streeter to work with interrupted standing or walking, and that assuming Streeter's age, education and work experience, and a capacity to perform light exertional activity without prolonged or extensive bending or squatting, and that Streeter was limited to simple jobs requiring low levels of concentration, the ALJ concluded that there are jobs in the national economy Streeter would have been capable of performing. Accordingly, the ALJ determined that Streeter was not disabled during his insured status period. The decision of the ALJ became final when the Appeals Council denied Streeter's request for review on February 6, 1997.
District Court Review
Plaintiff thereafter filed a complaint in the Southern District of New York for review of the Commissioner's decision. Adopting the Report and Recommendation of Magistrate Judge James C. Francis, the Honorable Barbara S. Jones issued an order on September 9, 1998, remanding the matter for further administrative proceedings.
The court's decision to remand was based on the lack of attention given to the reports by Doctors Conciatori and Godsick. Judge Francis concluded that the hypothetical questions posed to the vocational expert by the ALJ were not consistent with the limitations outlined in Dr. Conciatori's evaluation, including Streeter's difficulty with even simple repetitive tasks, and difficulty engaging in cooperative behavior and coping with job related stresses. He characterized the ALJ's treatment of Dr. Conciatori's opinion as "offhand." Judge Francis also pointed to additional physical limitations noted in Dr. Godsick's report that would restrict Streeter's ability to do light work, such as Dr. Godsick's opinion that the claimant could sit or stand for only two hours, could not engage in pushing or pulling actions with his hands, and could not engage in repetitive motions with his feet.
Because the ALJ did not address his reasons for omitting these facts, the district court remanded the case to the Commissioner and gave the ALJ two options: (1) explain in a specific way why he chose not to credit the above information in Dr. Conciatori's and Dr. Godsick's reports, or (2) incorporate these findings in a hypothetical question posed to a vocational 26 expert. Pursuant to the remand order, the Appeals Council vacated the prior decision of the ALJ and remanded the matter for further proceedings.
September 15, 2000 Hearing
A second hearing was held on September 15, 2000, and plaintiff was again represented by counsel. Streeter testified at this hearing that he had not received any psychiatric treatment since the June 11, 1996 hearing, but that he was still taking Wellbutrin given to him by a friend. Streeter also testified that the relationship discussed at the prior hearing had ended in May of 1999.
At this hearing, Melissa Fass, a second vocational expert, also testified. Ms. Fass first testified that, based on the claimant's job history, he had not acquired transferable skills. The ALJ posed a series of six hypothetical questions to Ms. Fass. The first hypothetical asked her to assume an individual between the ages of 47 and 50, with the education and work experience of the claimant, capable of performing light exertional activity so long as the activity did not involve prolonged or extensive bending or squatting, or repetitive use of foot controls, and was simple or required low concentration. Ms. Fass identified assembly, small cutter, cashier, and counter attendant as jobs such an individual could perform. A second hypothetical asked Ms. Fass to assume the same facts with the modification that the individual is unable to engage in repetitive pushing and pulling with his arms, but is able to engage in fine manipulation, grasping, and handling within body length reach. Ms. Fass responded that the same jobs offered in response to the first hypothetical would all apply. The third hypothetical question assumed sedentary work capacity with a requirement of simple tasks and low concentration. Ms. Fass responded that surveillance system monitor, charge accountant clerk, and order clerk were jobs such an individual could perform. The fourth hypothetical question assumed the same facts as the third, with the modification that the individual could not engage in repetitive pushing and pulling with the arms, but was able to engage in fine manipulation, grasping, and handling within body reach. Ms. Fass responded that the same jobs offered in response to the third hypothetical would all be appropriate for such an individual. A fifth hypothetical question assumed sedentary work capacity, with the same restrictions as in the prior hypotheticals, with the modification that the job must permit alternating between sitting and standing, and perhaps some localized walking. Ms. Fass responded that such an individual would be able to perform the job of surveillance system monitor, and that the positions of charge accountant clerk and order clerk would likely be possible so long as the individual did not need to leave his work station for more than five or ten minutes. The sixth hypothetical question posed was the same as the fifth, with the modification that the individual would have to avoid repetitive pushing and pulling with the arms. Ms. Fass testified that the modification would not limit the jobs already noted. In 28 response to additional hypothetical questions posed by the claimant's attorney, Ms. Fass testified that an individual who had problems being cooperative with others, or who had difficulty coping with the stresses of deadlines, regular attendance requirements and social interaction, or who had difficulty maintaining any concentration and attention would likely be precluded from working.
In addition to holding the second hearing on September 15, 2000, the ALJ also accepted additional evidence. This evidence included four statements from Streeter's friends stating that they had known him for from 15 to 25 years, and had never known him to be drunken or intoxicated. An additional letter from Dr. Harrison explained that the 1996 CT scan may not have shown evidence of two disc herniations because such herniation can "scar down."
These submissions appear to be targeted at a contradiction between the claimant's testimony and a note by Dr. Borecky, going to the amount of time the claimant has been free of alcohol abuse. In his September 2000 decision, the ALJ noted that these statements and Dr. Borecky's notes were not necessarily contradictory, for it is possible for an alcoholic to "slip" and have a drink without becoming so intoxicated that it would be apparent even to longstanding friends. The ALJ added that based upon Streeter's testimony that he had been taking Wellbutrin procured from a friend, as well as Valium, Prozac, and "blackbirds," it appears that Streeter did have a substance abuse problem for a long time after his alleged disability onset date.
September 28, 2000 ALJ Decision
On September 28, 2000, the ALJ again concluded that Streeter was not disabled within the meaning of the Social Security Act. The ALJ first noted that the district court had affirmed the majority of his findings and reasoning, and as such he adopted all aspects of his prior decision that were not rejected by the district court. Addressing his omission of some of the limitations noted in Dr. Godsick's report, the ALJ observed that Judge Francis had erred in describing the document in the record containing the omitted limitations as coming from Dr. Godsick, for the report relied upon was actually signed by Dr. Wacker, Streeter's chiropractor. Because the district court affirmed both the weight accorded to Dr. Wacker's opinion by the ALJ in the first instance, as well as the ALJ's finding that Streeter retained the functional capacity for light work, the ALJ did not address these physical limitations any further. He did, however, incorporate limitations on pushing and pulling with the arms and the need to alternate between standing and sitting throughout the work day into the hypothetical questions he posed to the vocational expert at the second hearing.
With respect to the opinion of Dr. Conciatori, the ALJ explained that he did not intitially and continues not to find credible the suggestion that Streeter had a "severe" psychiatric condition at any point during the first relevant time period (1984-1987), much less that he had substantial functional restrictions from such a condition. In reaching this conclusion, the ALJ stated his belief that Dr. Conciatori's report is entitled to virtually no weight, and that he has virtually no credibility. The ALJ relied significantly on the fact that Dr. Conciatori was hired by the claimant's attorney for the specific purpose of preparing a report to be used in connection with his claim for disability benefits, and the ALJ noted that his concerns with respect to doctors in this position are heightened in the case of psychiatrists, particularly those who do not have a long enough relationship with the claimant to make their own observations, but must rely instead on the history provided by the claimant. The ALJ explained his impression that the history solicited by Dr. Conciatori was not complete by noting that no references were made to the occasional outdoor activities indicated by the record, nor Streeter's more than ten year sexual relationship. Instead, "claimant described himself to the psychiatrist as having been practically an invalid since his 1982 surgery." Dr. Conciatori explained Streeter's failure to seek psychiatric treatment as resulting from embarrassment. At the second hearing held before the ALJ, however, Streeter testified that he had not been receiving psychiatric treatment because he could not afford to do so. The ALJ thus concluded that Dr. Conciatori's explanation for Streeter's failure to seek treatment was not credible. The ALJ further noted his view that Dr. Conciatori's report contained "internal contradictions," namely, the fact that Streeter took Wellbutrin for twelve years and never obtained any relief, and the fact that Dr. Conciatori did not question the fact that Streeter continued to take the medication despite its lack of effectiveness.
The ALJ's conclusions regarding Dr. Conciatori's lack of knowledge of Streeter's condition were compounded by the fact that Streeter saw Dr. Conciatori only once — nine years after the termination of his insured status. Dr. Conciatori's report made no distinction between the level of depression before and after the onset of disability, and referred to an accident occurring sometime in or around 1990, as having compounded Streeter's depressive condition, but made no other distinction between the level of depression before and after the 1990 accident. Accordingly, the ALJ concluded that Dr. Conciatori was not in a position to know how Streeter was really doing between 1984 and 1987, noting that Dr. Conciatori had "grossly overstated" the degree of Streeter's psychiatric dsyfunction.
The ALJ also noted that his characterization of Dr. Conciatori as a "hired gun" was particularly appropriate in light of Dr. Conciatori's specialty in forensic psychiatry. The ALJ's decision also contained disparaging remarks about Dr. Conciatori's educational background, noting that "Dr. Conciatori attended The Ross University School of Medicine and Veterinary Medicine (!) in Roseau, on the tiny Caribbean island of Dominica." The ALJ also noted, it appears incorrectly, that Dr. Conciatori is not Board certified.
The ALJ noted in closing that Streeter's demeanor at the September 15, 2000, hearing, "was not in the slightest degree compatible with the severely disabled person that he portrays himself as having been for the past sixteen years." Indeed, during the hour long hearing, Streeter did not shift in his seat, did not appear "even slightly uncomfortable," and had no difficulty answering the questions put to him.
Streeter has submitted his own statement to address this observation by the ALJ, noting that he was able to sit normally and to appear as if nothing was wrong with him because he was wearing a Transcutaneous Electrical Nerve Stimulation (TENS) portable unit. The statement adds that "the principle of the TENS unit is to interfere with and cut off the nerve pathways that produce pain." Streeter's statement concludes with the observation that "it is inexplicable and most regrettable" that the ALJ never questioned him at the second hearing about his current treatment.
The Current Application for District Court Review
Plaintiff commenced this action seeking review of the Commissioner's determination on remand, and on November 23, 2001, the Commissioner filed the administrative record. Streeter claims that the decision rendered by the ALJ on September 28, 2000, is in error in three respects. Specifically, the claimant contends that (1) the ALJ did not develop the record sufficiently on remand, as instructed by the Appeals Council, (2) a sedentary work classification is the only one applicable to the claimant on this record based on his physical limitations, and (3) when properly credited, the claimant's mental limitations, as reflected in the report of Dr. Conciatori, prevent a finding that the claimant is capable of performing any gainful employment, including sedentary work.
DISCUSSION
In reviewing a decision of the Commissioner, a district court may:
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.42 U.S.C. § 405(g). The factual findings of the Commissioner are conclusive if supported by substantial evidence. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). The district court is not to determine de novo whether the plaintiff is disabled. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). Rather, it is to "determine whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Id. (citation omitted). "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." Id. (citation omitted). This Court may set aside a determination of the ALJ only if it is based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted).
The ALJ's decision must also be guided by the appropriate legal standards. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). To be "disabled" for purposes of the Social Security Act, a claimant must demonstrate:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A); see also Shaw, 221 F.3d at 131. Further, the claimant's 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). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Social Security Administration uses a five-step process to make determinations of disability. See 20 C.F.R. § 404.1520 416.920. The Second Circuit has summarized the procedure as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe 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 could perform.
Curry, 209 F.3d at 122 (citations omitted). In determining whether the claimant can perform other work, the ALJ determines first whether the applicant retains residual functional capacity for work-related activities. If the applicant is subject only to exertional, or strength, limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). Where the grid is not controlling because the claimant possesses non-exertional impairments, an individualized assessment of the claimant's ability to engage in substantial gainful activity must be conducted. A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
1. Development of Record
The steps taken by the ALJ on remand — namely, holding a second hearing at which the claimant was permitted to testify and at which additional hypothetical questions were posed to a second vocational expert, receiving new evidence into the record, and providing additional explanations for the weight accorded certain record evidence — were sufficient. The Order of the Appeals Council remanding the case to the ALJ instructs the ALJ to "provide the claimant an opportunity to appear at a hearing, develop the record pursuant to 20 C.F.R. § 404.1512-404.1518 and/or 416.912-416.918, and issue a new decision." The ALJ did each of these.
Because the provisions of the Code of Federal Regulations noted in the Order explain to claimants the process for gathering and presenting evidence to the Commissioner, and discuss the Commissioner's obligation to make initial requests for medical records, Streeter contends that the ALJ should have recontacted his treating physicians for additional information to clear up any conflict or ambiguity. Streeter does not identify any conflict or ambiguity that required additional information from his treating physicians. Moreover, the court's order of remand did not identify an ambiguity requiring such records. The reference in a form order from the Appeals Council to regulations that include the ALJ's duty to develop the record does not show, by itself, that the ALJ was required to gather more information from Streeter's treating physicians. The ALJ explained his analysis, as specifically required by the court's order of remand, and Streeter does not suggest otherwise.
2. Residual Capacity for Light Work
Streeter also argues that the only residual functional capacity supported by the record is an ability to perform work at the sedentary level. He takes issue with the determination by the ALJ that he retained a residual functional capacity for light work. This argument was already made to and rejected by Judges Francis and Jones when they concluded that the findings of the ALJ in this regard were supported by substantial evidence. Streeter contends that the Order of the Appeals Council remanding the action obligated the ALJ to conduct a de novo review of the entire record. The text of this form order does not require such a conclusion, and there is no reason to disturb the prior conclusions of this court. See, e.g., United States v. Williams, 205 F.3d 23, 34 (2d Cir), cert. denied, 531 U.S. 885 (2000). In any event, even when the record developed on remand is considered in combination with the record from the initial hearing, there is substantial evidence to support the ALJ's findings.
3. Psychological Limitations
Finally, Streeter contends that the explanations provided by the ALJ on remand as to why he rejected the opinion of Dr. Conciatori on Streeter's psychological condition demonstrate that the ALJ did not accord the proper weight to that opinion. The ALJ's decision on remand does contain a number of unfortunate, disparaging remarks with respect to Dr. Conciatori's professional status and educational background, including a comment about Board Certification which appears to have been incorrect. Nonetheless, the ALJ gave the appropriate level of deference to Dr. Conciatori's opinion.
The law gives special evidentiary weight to the opinion of a treating physician. The regulations provide:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527; see also Rosa, 168 F.3d at 78-9 (citations 38 omitted). Dr. Conciatori was not a treating physician and his opinion cannot be given controlling weight. If a patient/physician relationship is not based on the claimant's need for treatment or evaluation, but arises solely from his attorney's desire to obtain a report in support of a claim for disability, the physician is not a treating doctor. 20 C.F.R. § 404.1502. Streeter's first and only consultation with Dr. Conciatori occurred just one week prior to the June 1996 hearing before the ALJ, and was undertaken at the request of Streeter's counsel.
When a medical opinion is not from a treating source, or a determination is made that the opinion of a treating source is not entitled to controlling weight, the ALJ considers (1) the length of the treatment relationship and frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the opinion's consistency with the record as a whole, (5) the physician's specialty with respect to the injury, and (6) any other relevant factors. 20 C.F.R. § 416.927(d); see also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
The fact that Streeter was evaluated by Dr. Conciatori on only one occasion, and that that evaluation was not motivated by a desire for treatment, weigh against according the opinion significant weight. This is particularly appropriate when the opinion is of a person's mental condition and the physician has had no opportunity to make his own observations during the 39 relevant time period. The ALJ noted in this respect that the opinion did not describe the degree of depression experienced by the claimant at different time periods, other than stating baldly that it had been exacerbated by a second accident, making it difficult for the ALJ to determine the symptoms and degree of disability experienced by Streeter during his insured status period.
The ALJ made the determination not to accord significant weight to Dr. Conciatori's opinion based in part on his assessment of the claimant's credibility. This was appropriate since the doctor's opinion rested entirely on a history solicited from the claimant one week prior to the first hearing before the ALJ. In addition, the medical record from the physicians the claimant saw during the relevant time period, between 1984 and 1987, contains no reference to Streeter's mental health. Streeter did not seek treatment for his symptoms during this time, although he does assert that he took a friend's Wellbutrin despite the fact that it provided no relief. The few references in the record to Streeter's mental condition after 1987 include: Dr. Borecky's note in September 1991, indicating that Streeter was tired all the time; Dr. Wacker's note in January 1996, that Streeter had been frustrated and depressed since his failed surgeries; Dr. Harrison's statement in December 1995, that Streeter's communicative skills were decreased by his daily pain; and Dr. Wacker's statement in June 1996, as follows: "Mr. Streeter's moods have been very depressive the last 3 or 4 visits to my office. He seem [sic] to lose interest in anything positive. The mood change is quite contrary to the man that has been my patient in the past." (Emphasis supplied).
The ALJ did not err in according little weight to the opinion of Dr. Conciatori, a non-treating physician providing a retrospective diagnosis unsupported by other record evidence and based entirely on the history provided by the claimant one week prior to the first hearing before the ALJ, particularly when that opinion is in fact contradicted by the inferences that can be fairly drawn from reliable medical evidence dating from the relevant period. The decision to reject Dr. Conciatori's opinion is supported by substantial evidence.
CONCLUSION
The claimant's motion is denied, and the Commissioner's motion is granted. The Clerk of Court shall close the case.
SO ORDERED.