WILLIAM M. SKRETNY, Chief District Judge.
1. Plaintiff, Michael S. Kitt, challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Kitt alleges that he has been disabled due to low-back, cervical spine, and carpal tunnel problems since May of 2007. Kitt contends that his impairments render him unable to work. He therefore asserts that he is entitled to disability insurance benefits and supplemental security income (collectively "benefits") under the Act.
2. Kitt filed an application for benefits under Titles II and XVI of the Act on August 27, 2007, alleging disability from a work-related accident since May 9, 2007.
3. On May 17, 2011, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Kitt followed suit by filing his own motion for judgment on the pleadings three months later on August 4, 2011. Briefing on the motions concluded September 9, 2011, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is granted and Kitt's motion is denied.
4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to "more than a mere scintilla"; it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5. "To determine on appeal whether the 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 on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act.
7. This five-step process is detailed below:
8. Although the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step.
9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Kitt has not engaged in substantial gainful activity since May 9, 2007 (R. 15);
10. Kitt raises three challenges to the ALJ's decision. First, Kitt argues that the ALJ erred when she did not properly evaluate the opinion of his treating physician, Dr. Michael Landi, M.D. Second, he asserts that the ALJ failed to properly evaluate his RFC. Third, Kitt argues that the ALJ improperly discredited his hearing testimony.
11. As described by Kitt, "at each and every visit from the alleged onset to the time of the hearing and after[, Dr. Landi] opined that the claimant was totally disabled." (Memorandum of Law in Support of Plaintiff's Motion ("Memo"), p. 14; Docket No. 11.) Kitt argues that these findings were improperly disregarded in favor of those of the consultive physicians and Mary Orrange, an occupation physical therapist.
12. Under the "treating physician's rule,"
13. If the ALJ finds that the treating physician's opinion should not be given controlling weight, then, under 20 C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors: (1) length of the treatment relationship and the frequency of examination; (2) nature and extent of the treatment relationship; (3) supportability of opinion; (4) consistency; (5) specialization of treating physician; and (6) other factors that are brought to the attention of the court.
14. Kitt contends that the ALJ failed to "conduct th[is] requisite analysis." (Memo, p. 14.) But a finding by a medical source that a claimant is "disabled" or "unable to work" does not mean that the Commissioner must determine that the claimant is disabled within the meaning of the Act.
15. The findings of the other physicians were not to the contrary. For example, Dr. Sandra Boehlert, a consultive physician, examined Kitt nearly a year earlier but found that Kitt had limitations only in heavy exertional activities and heavy lifting. (R. 330.) Dr. John Devanny, who evaluated Kitt in August of 2007, opined that Kitt was capable of working provided that he avoided lifting, carrying, pushing, or pulling more than 50 pounds. (R. 302.)
16. ALJ Zahm considered this distinction between his job, which required very heavy lifting, and other jobs that exist in the national economy that a person having the claimant's qualifications could perform. She accepted the fact that he was totally disabled from performing his job, (R. 23), but concluded that he could perform less strenuous jobs. (
17. Moreover, even if Dr. Landi's opinion were considered under the broader Social Security standard, it would be controlling only if it was well supported, and was not inconsistent with, other substantial evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Here, Dr. Landi's summary of Kitt's August 14, 2008 visit reflects that Kitt was healing and doing well post-surgery. It specifies few impairments. His finding of total disability is thus unsupported by even his own summary of the evaluation. As laid out in more detail below, it is also inconsistent with other substantial evidence in the record. (See infra, ¶ 19.)
Further, his conclusion also contradicts Kitt's own testimony. At the administrative hearing, Kitt testified that he could stand for up to 30 minutes at a time, lift ten pounds in his left hand, and lift fifteen and carry twenty pounds in his right hand. (R. 1306-08.) Such abilities fit squarely within the bounds of sedentary work, 20 C.F.R. §§ 404.1567(a), 416.967(a); SSR 96-9p, 1996 WL 374185 (S.S.A. 1996), which the ALJ found Kitt could perform. As such, Kitt's motion on this ground is denied.
18. Kitt next argues that ALJ Zahm failed to properly evaluate his RFC. An RFC assessment is made by the ALJ and it is meant to determine Kitt's maximum sustained ability to perform work activity. 20 C.F.R. §§ 404.1545, 416.945. In other words, it reflects a claimant's highest capacity to perform work-related tasks despite his impairment.
19. Although, as Kitt points out, Dr. Eugene Gosy found that Kitt could not lift or carry any amount of weight, Kitt's own testimony, outlined above, contradicts this finding. Further, considering the evidence as a whole, the collective evidence indicates that Kitt could perform a sedentary job.
20. Lastly, Kitt argues that the ALJ failed to properly evaluate his credibility. The ALJ certainly discredited certain aspects of Kitt's testimony relating to his physical disabilities. However, in so doing, she carefully considered his alleged symptoms to the extent that they were reasonably compatible with the other evidence.
Kitt rests much of his argument on his position that the ALJ "discounted his credibility solely on the notion that since his past-work was heavy and the plaintiff testified that he would like to return to the same employer as he had worked for that company for 31 years." (Memo, p. 18.) But this Court finds that the ALJ did not discredit Kitt on this ground. His experience at his former job weighed, instead, in his favor. ALJ Zahm noted that Kitt's history of working with one employer for 31 years and the fact that he returned to work after his 2004 surgery "both speak to his credibility that he would be working if he could." (R. 22.) Kitt's credibility was undermined for other reasons — mainly his performance during the Functional Capacity Evaluation ("FCE"), conducted by Orrange.
21. Orrange noted four inconsistencies between Kitt's initial exam — where he claimed that he was very physically limited — and his actual functional limitations as borne out through subsequent testing. For example, Orrange notes that Kitt "demonstrated limited neck active range of motion during the muscloskeletal exam," but during the FCE, he "was observed to present with full neck, shoulder, and trunk active range of motion." (R. 569.) Along with two other inconsistencies, Orrange also indicates that he initially failed to "attain shoulder flexion to 120°," but that during the FCE, he "safely completes" such a lift six times with a 15-pound weight. (
Nor was Orrange the only examiner to notice that Kitt seemed to embellish his symptoms. Dr. Devanny also observed that Kitt exhibited "moderate-to-marked symptom magnification and pain behavior." (R. 301.)
In light of these findings and the evidence suggesting Kitt could perform a sedentary job, ALJ Zahm reasonably concluded that Kitt's allegations were not entirely credible.
22. Accordingly, for the reasons stated above and having found that ALJ Zahm's finding was supported by substantial evidence, Kitt's motion for judgment on the pleadings is denied and the Commissioner's motion is granted.
IT HEREBY IS ORDERED, that Defendant's Motion for Judgment on the Pleadings (Docket No. 6) is GRANTED.
FURTHER, that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 11) is DENIED.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
