ANDREW J. PECK, United States Magistrate Judge.
Plaintiff Christopher G. DiPalma, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Disability Insurance Benefits ("DIB"). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 14, 17 & 19: Notices of Motion.) The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 24.)
For the reasons set forth below, the Commissioner's cross-motion for judgment on the pleadings (Dkt. No. 17) is GRANTED, and DiPalma's motion (Dkt. Nos. 14 & 19) is DENIED.
On November 15, 2008, DiPalma applied for DIB, alleging that he was disabled since January 6, 2003. (Dkt. No. 9: Administrative Record filed by the Comm'r ("R.") 93.) In his application, DiPalma claimed to suffer from a right knee injury and back and neck pain. (R. 32-33, 136-37.) On March 23, 2009, the Social Security Administration ("SSA") found that DiPalma was not disabled and denied his claim. (R. 46-50.) On April 25, 2009, DiPalma requested an administrative hearing. (R. 65.)
The issue before the Court is whether the Commissioner's decision that DiPalma was not disabled between January 6, 2003 and August 24, 2010 is supported by substantial evidence.
DiPalma was born on July 16, 1961 and was forty-one years old at the time of the alleged onset of his disability. (R. 93.) DiPalma obtained a GED degree in 1979. (R. 142.) Between 1991 and 1999, DiPalma held a number of jobs, including bus driver (light exertion) (R. 144, 148-50), nursing assistant (medium exertion) (R. 144, 147-48) and messenger (light exertion) (R. 144, 146-47). Most recently, DiPalma was an ironworker for a construction company from 1999 to 2003. (R. 144-46.) During those four years, DiPalma engaged in exertionally medium to heavy labor, grabbing, handling and grasping large objects for eight hours. (R. 145.) DiPalma lifted heavy iron pieces, ladders and scaffolding, weighing from fifty to 100 pounds, and stood and walked for four hours each per day. (R. 145.)
In January 2003, DiPalma was injured while working as an ironworker when he stepped into a trough during a blackout. (R. 31-32.) DiPalma injured his right knee and developed pain in his neck and back. (R. 31, 359.) DiPalma had two surgeries to repair his knee and five procedures between the surgeries due to various infections. (R. 35-38, 167-68, 173-74.) DiPalma tried unsuccessfully to return to construction work but could not work for more than two hours. (R. 32.) Aside from a Worker's Compensation settlement of $1.2 million, DiPalma does not receive a pension or disability benefits. (R. 31-32.)
DiPalma lives at home with his wife and two of their four children, ages twelve and fourteen. (R. 34-35.) As a house husband, DiPalma makes breakfast and lunch for his wife, picks up his children from school, and prepares dinner for his family in a typical day. (R. 34.) DiPalma experiences pain when he walks and is unable to sit or stand for long. (R. 33-34.) DiPalma can drive for thirty to forty-five minutes at a time. (R. 34.) DiPalma used to take pain medication but stopped because he is a recovering addict. (R. 35.) DiPalma's knee has not improved since the injury; it remains stiff when he sits and he cannot bend it fully. (R. 35-36.)
After DiPalma's injury on January 6, 2003, DiPalma underwent a MRI of his right knee, which revealed a tear to the posterior horn of the medial meniscus. (R. 364.) DiPalma began treatment with Dr. Marc Appel, who diagnosed the medial meniscus tear. (R. 296.) After two weeks of physical therapy, Dr. Appel performed arthroscopy on February 20, 2003 and saw DiPalma monthly through November 2003. (R. 296, 289-91, 297-302, 322, 373-74.)
Throughout this period, DiPalma continued to report pain in the right knee and
On April 1, 2003, Dr. Appel assessed that DiPalma was not employable. (R. 297.) In May, July, August and November 2003, Dr. Appel indicated that DiPalma could not perform ironwork. (R. 289-90, 298, 322.) On September 26, 2003, Dr. Appel stated that DiPalma could not perform any type of construction work. (R. 291.) On November 4, 2003, Dr. Appel indicated that if DiPalma could not perform his ironwork position in the future, a decision would have to be made about what kind of work DiPalma would eventually be able to perform. (R. 322.)
On January 23, 2004, Dr. Appel reported that DiPalma continued to walk with a limp, had knee pain and "buckling" to his knee; Dr. Appel recommended that DiPalma continue with weight loss, as he had lost thirty pounds in the past few months. (R. 292, 303.) Dr. Appel stated that while it was about a year since DiPalma's surgery, it was "doubtful" that DiPalma would ever be able to work as an ironworker. (R. 292.) On February 20, 2004, Dr. Appel diagnosed medial compartment osteoarthritis and reiterated that DiPalma "cannot do his regular job." (R. 293, 304.) Although total knee replacement was discussed, Dr. Appel opined on March 19, 2004 that DiPalma was not a good candidate for this procedure due to his young age and marked obesity. (R. 295.) Dr. Appel stated that DiPalma was "not employable." (R. 295.) On May 27, 2004, Dr. Appel performed a high tibial osteotomy. (R. 367-68, 371.) DiPalma subsequently developed a painful infection and had several procedures to drain the surgical wound. (R. 312-13, 315-16, 366, 372, 430.) By July 19, 2004, DiPalma no longer used a wheelchair or walker, and although he used a cane, DiPalma was able to bear weight fully on his right leg. (R. 317-18; see R. 309, 314, 433-34.)
On August 2, 2004, Dr. Appel's inspection of DiPalma's knee revealed no erythema, deformity or drainage, and the wound was clean. (R. 197, 319.) DiPalma had an antalgic gait and reported mild arthralgia.
Throughout 2005, Dr. Appel stated that DiPalma could not return to work and had a "temporary total disability." (R. 204,
On January 30 and March 13, 2006, DiPalma again reported that his symptoms were unchanged, including reports of pain on palpation and knee buckling. (R. 207-08, 260, 356-57, 389.) Throughout 2006, Dr. Appel stated that DiPalma could not return to work and was permanently disabled. (R. 357, 390, 392, 394, 396, 398.) In March 2006, Dr. Appel noted that DiPalma had lost sixty pounds in an effort to alleviate the knee pain and facilitate walking. (R. 207, 258, 389.) On September 25, 2006, DiPalma complained of knee pain but only moderate arthralgias, and his symptoms were stable since his last examination. (R. 209-10.)
In 2007, Dr. Appel stated that DiPalma had a "permanent total disability" and could not "return to work." (R. 211-12, 399, 402, 404.) On June 29, 2007, Dr. Appel noted that DiPalma continued to suffer from chronic osteomyelitis, osteoarthritis of the knee, knee pain, meniscus tear, and internal derangement of the knee. (R. 404.) Dr. Appel also specified that DiPalma had a "permanent total disability, for his previous profession/iron worker." (R. 404.) Dr. Appel recommended delaying a total knee replacement as long as possible because DiPalma was too young and his weight had increased. (R. 404.)
On May 15, 2003, orthopedic surgeon Dr. Howard Katz conducted a Worker's Compensation medical examination of DiPalma. (R. 238-40.) DiPalma reported that his knee was improving (R. 239), and the examination showed well-healed arthroscopic portals, slight effusion, and slight tenderness around the portals. (R. 239.) DiPalma's knee was stable and neurovascular examination was intact. (R. 239.) Dr. Katz diagnosed right knee internal derangement and mild cervical and lumbar strain. (R. 239.) Dr. Katz stated that DiPalma had a "temporary marked partial disability," could perform "desk work or sedentary work at this point," and likely could return to his prior work in about four months. (R. 240.) Dr. Katz recommended that DiPalma continue with physical therapy three times a week and be authorized to join a gym. (R. 239.)
Dr. Paul Jones conducted four Worker's Compensation examinations, the first on October 27, 2003. (R. 235-37.) Dr. Jones
On April 26, 2004, Dr. Jones' examination of DiPalma's right knee indicated a palpable spur on the right side and medial joint line tenderness. (R. 232-34.) Dr. Jones assessed a persistent internal derangement of the right knee with degenerative changes. (R. 233.) Dr. Jones again opined that DiPalma could work as long as he avoided prolonged weight bearing, squatting, bending, stairs and ladders. (R. 234.)
On March 21, 2005, Dr. Jones assessed multiple surgical procedures to DiPalma's right knee with a subsequent infection and degenerative changes. (R. 229-31.) Dr. Jones noted that DiPalma could work but had to avoid prolonged weight bearing, squatting, bending, stairs and ladders. (R. 230.) Dr. Jones also assessed partial disability in the moderate to marked range. (R. 230.)
On February 27, 2006, Dr. Jones assessed continued right knee pain following surgery and arthritis. (R. 226-28.) Dr. Jones recommended a trial of Synvisc injections but noted a risk related to DiPalma's history of post-operative infection. (R. 227.) While DiPalma had discussed total knee replacement with Dr. Appel, Dr. Jones agreed that it was not indicated at the time. (R. 226, 228.) Dr. Jones assessed a marked partial disability, and stated that DiPalma could work if he was able to use a cane, had limited weight-bearing, and did not have to run, squat, or climb stairs or ladders. (R. 228.) Dr. Jones also stated that a "permanent partial disability is to be anticipated." (R. 228.)
On February 11, August 20, and September 16, 2008, Dr. Appel saw DiPalma for follow up visits. (R. 215-18, 254-55.) DiPalma's symptoms and Dr. Appel's findings remained unchanged. (R. 215-18, 224-25, 254-55.) DiPalma reported a dull ache, pain with stairs and swelling, and moderate arthralgias. (R. 217, 254.) Dr. Appel noted that DiPalma had lost 110 pounds since having abdominal lap band surgery, and now weighed 280 pounds. (R. 215, 217, 254.)
Following Dr. Appel's retirement (R. 33), Dr. Barry Hyman saw DiPalma on November 12, 2008 for an initial evaluation of his right knee pain. (R. 220-23, 359-62.) DiPalma, who walked with a cane (R. 222), complained of neck and low back pain (R. 220) but reported that he walked and weight-lifted for exercise/recreation (R. 221). Dr. Hyman noted that the x-ray confirmed the osteoarthritis diagnosis at the osteotomy sight with moderate joint space narrowing. (R. 444-47.) Although Dr. Hyman reported that DiPalma was able to do a straight leg raise and that there was stability to varus and valgus stress, Dr. Hyman assessed full permanent disability. (R. 222-23.) DiPalma's pain was sharp and persistent (4 out of 10), and increased with standing and sitting for prolonged periods. (R. 444.) Dr. Hyman further noted that DiPalma's symptoms were severe enough to frequently interfere with attention and concentration. (R. 445.) Dr. Hyman also indicated that since January 2003, DiPalma could sit for less than two hours and stand or walk for less than
On July 1, 2010, at the ALJ's request, Dr. Suraj Malhotra examined DiPalma. (R. 19, 169, 448-52.) DiPalma reported that he has had intermittent neck pain for fifteen years, intermittent low back pain for ten years, and persistent knee pain as a result of a 2003 injury. (R. 448.) In 2003, DiPalma had meniscus surgery for the right knee, followed by osteotomy which had infection. (R. 448.) In 2006, DiPalma was hospitalized because he had a lap band for obesity surgery. (R. 448.)
Dr. Malhotra noted that DiPalma had a minimal limp on the right side but that he could walk on heels and toes without difficulty. (R. 449.) DiPalma could squat but only three-fourths the distance due to right knee pain. (R. 449.) DiPalma did not require a cane to walk. (R. 454.) DiPalma used no assistive device and needed no help changing for the exam, getting on and off the exam table, and rising from a chair without difficulty. (R. 449.) Dr. Malhotra reported that there was a mild limitation of the right knee up to 135 degrees flexion/extension due to slight pain, while the left knee was in full range, and DiPalma had no muscle atrophy or sensory abnormality. (R. 450.) Dr. Malhotra found no joint effusion, inflammation or instability. (R. 450.) Dr. Malhotra diagnosed obesity, cervical and lumbosacral region pain, and "status post meniscus tear repair surgery of right knee with pain." (R. 450.) Dr. Malhotra found "[m]inimal limitation in bending and squatting" and "[m]ild limitation in bending right knee." (R. 451.) Dr. Malhotra stated that DiPalma was able to lift and carry up to twenty pounds continuously, sit for seven hours for fifteen minutes at a time, stand for one hour for fifteen minutes at a time, and walk for one hour for thirty minutes at a time. (R. 453-54.) Dr. Malhotra indicated that he did not have sufficient information to assess DiPalma's past limitations. (R. 458.)
On August 24, 2010, ALJ Katz denied DiPalma's DIB application in a written decision. (R. 9-23.) ALJ Katz reviewed DiPalma's claim of disability resulting from his knee injury and back and neck pain, considering both DiPalma's testimony and the medical record. (R. 14-22.)
ALJ Katz found that DiPalma's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," but that DiPalma's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the objective medical evidence." (R. 15.) In particular, ALJ Katz pointed out that despite complaining of substantial pain when walking or driving for over forty-five minutes, DiPalma "does not take any medication for relief of pain-which is [a] major inconsistency." (R. 15.) ALJ Katz further noted that:
(R. 17.) ALJ Katz also noted that Dr. Appel's opinion that DiPalma cannot return to work because of his permanent total disability is "highly conclusory and does not specifically state just why [DiPalma] could not perform work other than that of an iron worker." (R. 17.) ALJ Katz commented:
(R. 17-18.) In addition, ALJ Katz discounted Dr. Appel's opinion because it was in the context of DiPalma's Worker's Compensation claim, where disability is defined as being unable to return to past relevant work. (R. 18.)
ALJ Katz noted that Dr. Hyman "observed good strength of the right knee without pain to resistance on flexion or extension." (R. 19.) In evaluating Dr. Hyman's opinion, that DiPalma "is totally disabled and capable only of performing a significantly limited range of exertionally sedentary work," ALJ Katz noted that Dr. Hyman had examined DiPalma on only one occasion in late 2008. (R. 18, 21.) ALJ Katz also opined that Dr. Hyman's conclusion regarding DiPalma's limitations "is not consistent with the rather minimal objective findings noted by him upon physical examination. The opinion of residual functional capacity appears to be based solely upon [DiPalma's] subjective complaints." (R. 21.)
ALJ Katz further noted that Dr. Katz indicated in May 2003 that DiPalma could return to desk or sedentary work activities. (R. 19.) Dr. Jones, who performed four examinations of DiPalma between 2003 and 2008, found only a partial disability. (R. 19.) Although Dr. Katz's opinion was made very early in the case history, ALJ Katz found:
(R. 19.) In fact, medical records did not show that DiPalma "was measurably restricted from walking or that he suffered from any symptoms other than a limited range of motion ... in the right leg and an antalgic gait." (R. 17.) Moreover, consultative physician Dr. Malhotra noted that DiPalma "could perform work requiring occasionally lifting or carrying up to twenty pounds, sitting for seven hours and standing or walking for one hour each during an eight-hour workday, and did not require the use of a cane or any other assistive device in order to ambulate effectively." (R. 20.)
ALJ Katz concluded:
(R. 20, record citations omitted.)
ALJ Katz applied the appropriate five step legal analysis, as follows: First, ALJ Katz found that DiPalma had not "engaged in substantial gainful activity during the period from his alleged onset date of January 6, 2003." (R. 14.) Second, ALJ Katz determined that DiPalma had "severe impairments" of "right knee derangement" and "obesity." (R. 14.) Third, ALJ Katz found that DiPalma "did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments." (R. 14.) ALJ Katz determined that DiPalma retained "the residual functional capacity to perform a full range of exertionally sedentary work" (R. 15), adding that:
(R. 21.) Fourth, ALJ Katz determined that DiPalma "was unable to perform any past relevant work." (R. 21.) Further, ALJ Katz found that DiPalma was "46 years old, which classifies him as a younger individual age 45-49, on the date last insured"; DiPalma had "at least a high school education and is able to communicate effectively in English"; and "[t]ransferability of job skills is not material to the determination of disability." (R. 21-22.) At the last step, based on the Grid, ALJ Katz found that "considering [DiPalma's] age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that he could have performed." (R. 22.) ALJ Katz concluded that DiPalma was not "under a disability, as defined in the Social Security Act, at any time from January 6, 2003, the alleged onset date, through December 31, 2007, the date last insured." (R. 22.)
On July 12, 2012, the Appeals Council denied DiPalma's request for review of ALJ Katz's decision, which became the Commissioner's final decision. (R. 1-4, 7-8.)
A person is considered disabled for Social Security benefits purposes when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 379, 157 L.Ed.2d 333 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268, 152 L.Ed.2d 330 (2002); Impala v. Astrue, 477 Fed.Appx. 856, 857 (2d Cir.2012).
42 U.S.C. §§ 423(d)(2)(A)-(B), 1382c(a)(3)(B), (G); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111; Betances v. Comm'r of Soc. Sec., 206 Fed.Appx. at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam).
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record as a whole to support such determination. E.g., 42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 Fed. Appx. 53, 53 (2d Cir.2011); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.2003).
The Court, however, will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 Fed. Appx. 154, 156 (2d Cir.2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80, 157 L.Ed.2d 333 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). The Supreme Court has articulated the five steps as follows:
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S.Ct. at 379-80 (fns. & citations omitted); accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.2012); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S.Ct. at 379-80.
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
20 C.F.R. § 404.1527(d)(2); see, e.g., Meadors v. Astrue, 370 Fed.Appx. 179, 182 (2d Cir.2010); Colling v. Barnhart, 254 Fed. Appx. 87, 89 (2d Cir.2007); Lamorey v. Barnhart, 158 Fed.Appx. 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well supported" by other medical evidence), the ALJ must consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(d)(2)-(6); see, e.g., Gunter v. Comm'r of Soc. Sec., 361 Fed.Appx. 197,
When a treating physician provides a favorable report, the claimant "is entitled to an express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's] favorable ... report and, if the [ALJ or] Council does not credit the findings of that report, to an explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999); see, e.g., Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) (ALJ's failure to consider favorable treating physician evidence ordinarily requires remand pursuant to Snell but does not require remand where the report was "essentially duplicative of evidence considered by the ALJ."); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable [reviewing courts] to decide whether the determination is supported by substantial evidence." (citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May 6, 2003) (The ALJ's "`failure to mention such [treating physician report] evidence and set forth the reasons for his conclusions with sufficient specificity hinders [this Court's] ability ... to decide whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993).
It is the "well-established rule in [the Second] circuit" that the ALJ must develop the record, even where, as here, the claimant was represented by counsel:
Even when a claimant is represented by counsel, it is the well-established rule in our circuit "that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants ... affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding." Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir.2009) (internal quotation marks and brackets omitted) [cert. denied, 559 U.S. 962, 130 S.Ct. 1503, 176 L.Ed.2d 152 (2010)]; accord Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir.2004), reh'g granted in part and denied in part, 416 F.3d 101 (2d Cir.2005); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996); see also Gold v. Sec'y of Health Educ. & Welfare, 463 F.2d 38, 43 (2d Cir.1972) (pro se claimant). Social Security disability determinations are "investigatory, or inquisitorial, rather than adversarial." Butts, 388 F.3d at 386 (internal quotation marks omitted). "[I]t is the ALJ's duty to investigate and develop the facts and develop the arguments both for and against the granting of benefits." Id. (internal quotation marks omitted); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999).
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir.2009).
The first inquiry is whether DiPalma was engaged in substantial gainful activity after his application for DIB. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. ALJ Katz's conclusion that DiPalma did not engage in substantial gainful activity during the applicable time period (see pages 563-64 above) is not contested by DiPalma or the Commissioner. (See Dkt. No. 20: DiPalma Reply Br. at 3; see generally Dkt. No. 18: Comm'r Br.; Dkt. No. 15: DiPalma Br.) The Court therefore proceeds to the second step of the five-step analysis.
The second step of the analysis is to determine whether DiPalma proved that he had a severe impairment or combination of impairments that "significantly limit[ed his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
20 C.F.R. § 404.1521(b)(1)-(6). The Second Circuit has warned that the step two analysis may not do more than "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995). "[T]he `mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment' is not, by itself, sufficient to render a condition `severe.'" McDowell v. Colvin, No. 11-CV-1132, 2013 WL 1337152 at *6 (N.D.N.Y. Mar. 11, 2013), report & rec. adopted, 2013 WL 1337131 (N.D.N.Y. Mar. 29, 2013).
"A finding of `not severe' should be made if the medical evidence establishes only a `slight abnormality' which would have `no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 1999 WL 294727 at *5 (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 2298 n. 12, 96 L.Ed.2d 119 (1987)).
ALJ Katz determined that the medical evidence indicated that DiPalma had "severe impairments" of "right knee derangement" and "obesity." (See page 564 above.) Because this finding favors DiPalma and is not contested by the Commissioner (see Dkt. No. 20: DiPalma Reply Br. at 3; see generally Dkt. No. 18: Comm'r Br.), the Court proceeds to the third step of the five-step analysis.
The third step of the five-step test requires a determination of whether DiPalma had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
ALJ Katz found that while DiPalma's medical conditions were "severe," he did "not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 14) ALJ Katz remarked that DiPalma "has not experienced an inability to ambulate effectively," as required by listings 1.02 and 1.03. (R. 14-15.) Appendix 1 provides a categorization of physical impairments, including musculoskeletal disorders. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00. DiPalma argues that ALJ Katz "erred when he dismissed the medical evidence finding that the claimant did not meet or equal the listing 1.02 or 1.03." (Dkt. No. 15: DiPalma Br. at 17; see Dkt. No. 20: DiPalma Reply Br. at 3-6.)
Section 1.02 outlines the conditions required to establish disorders of the joint. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02. To constitute an Appendix 1 impairment, DiPalma's right knee pain must qualify as "[m]ajor dysfunction of a joint(s)," characterized by:
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02 (emphasis added).
Under Section 1.03, impairment can also arise from:
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.03 (emphasis added).
"Inability [t]o ambulate effectively" means:
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(13)(2)(b)(1). "To ambulate effectively,"
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(2).
There is substantial evidence to support ALJ Katz's finding that DiPalma's right knee condition did not meet or medically equal one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1, including § 1.02 and § 1.03, and that DiPalma could "ambulate effectively."
As a house husband, DiPalma testified before the ALJ that he carried out activities of daily living, including cooking for his family, picking up his children from school and driving for thirty to forty-five minutes at a time. (See page 558 above.) In March-April 2005, DiPalma traveled to Mexico. (See pages 559-60 above.) In November 2008, DiPalma told Dr. Hyman that he often walked and weight-lifted for exercise and recreation. (See pages 561-62 above.) Although DiPalma continuously reported right knee pain, Dr. Appel and Dr. Katz both recommended that DiPalma go to the gym (see pages 559, 560-61 above), an indication of DiPalma's ability to remain active. Although Dr. Appel noted that DiPalma walked with a limp and had an antalgic gait and reported mild arthralgias, DiPalma's neurovascular status, palpation, muscle strength, and range of motion were all normal. (See pages 559-60 above.) Both Dr. Jones and Dr. Malhotra reported that DiPalma could walk on heels and toes without difficulty. (See pages 560-61, 561-62 above.) Dr.
DiPalma did not prove that his knee impairment impacted his ability to ambulate to the extent required by the Listings. See, e.g., Richardson v. Astrue, 10 Civ. 9356, 2011 WL 2671557 at *9 (S.D.N.Y. July 8, 2011) (Peck, M.J.) (claimant who took "public transportation without assistance," "climb[ed] stairs," and "perform[ed] various household chores" could ambulate effectively, even though he "walked with a Trendelenburg gait" and "his ability to ambulate was moderately to severely impaired" (quotations omitted)), report & rec. adopted, 2011 WL 3477523 (S.D.N.Y. Aug. 8, 2011); Paulino v. Astrue, 08 Civ. 02813, 2010 WL 3001752 at *15 (S.D.N.Y. July 30, 2010) (Peck, M.J.) (claimant that "limped slowly [to] avoid[ ] pressure on [her] right ankle and had moderate limitations in walking long distances," could ambulate effectively because she walked "without any assistive device," and was able to climb stairs "to her fourth floor apartment (albeit slowly) and travel by bus and taxi without assistance" (citations & quotations omitted)); Dibiasio v. Astrue, No. 08 CV 0743, 2010 WL 3368429 at *10 (W.D.N.Y. June 10, 2010) (claimant who "made short trips to the store, performed light household chores like laundry, gardening, vacuuming and meal preparation, and was able to travel short distances without a cane" could ambulate effectively), report & rec. adopted, 2010 WL 3368358 (W.D.N.Y. Aug. 23, 2010); Marullo v. Astrue, No. 08 CV 0818, 2010 WL 2869577 at *9 (W.D.N.Y. May 4, 2010) (claimant's testimony that she takes "Tylenol for knee pain, has difficulty walking long distances... and has to sit when she experiences pain in her legs ... without more, ... does not rise to the definition of ineffective ambulation" (citations omitted)), report & rec. adopted, 2010 WL 2869574 (W.D.N.Y. July 20, 2010); Rosado v. Astrue, 713 F.Supp.2d 347, 360 (S.D.N.Y. 2010) (Peck, M.J.) (claimant who "had full range of motion in his ankles," "did not require an assistive device to walk," did "his own shopping and [made] social visits to his son's home" was able to ambulate effectively).
Substantial evidence thus supports ALJ Katz's determination that DiPalma did not meet the criteria for disability based on his musculoskeletal disorder under the Listings of Impairments, 20 C.F.R., Pt. 404, Subt. P, App. 1, §§ 1.02 and 1.03.
Before proceeding to step four, the Court will address ALJ Katz's credibility
Because subjective symptoms like pain only lessen a claimant's residual functional capacity where the symptoms "`can reasonably be accepted as consistent with the objective medical evidence and other evidence,' the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL 3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see, e.g., Campbell v. Astrue, 465 Fed.Appx. 4, 7 (2d Cir.2012) ("As for the ALJ's credibility determination, while an ALJ `is required to take the claimant's reports of pain and other limitations into account,' he or she is `not require[d] to accept the claimant's subjective complaints without question.' Rather, the ALJ `may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.'" (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) ("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310 Fed.Appx. 450, 451 (2d Cir.2009) ("Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings.").
ALJ Katz determined that DiPalma's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, [DiPalma's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the objective medical evidence." (See page 562 above.) ALJ Katz noted that although DiPalma "did complain of some pain and some `clicking'/giving way of the right knee, [he] described his pain as being a dull ache with only moderate arthralgias." (See page 562-63 above.) ALJ Katz noted that DiPalma "was consistently found to maintain intact neurological functioning, deep tendon reflexes and muscle strength." (See pages 562-63 above.) ALJ Katz also noted that DiPalma "was
ALJ Katz determined that DiPalma retained "the residual functional capacity to perform a full range of exertionally sedentary work":
(See page 564 above.) ALJ Katz's assessment that DiPalma is able to perform a full range of exertionally sedentary work is based on substantial evidence. Although Dr. Appel in September 2003 noted that DiPalma was incapable of doing any type of construction work (see page 559 above), Dr. Appel did not preclude all employment. Indeed, as ALJ Katz correctly noted, Dr. Appel's conclusion was in the context of Worker's Compensation, where disability is defined as the inability to return to past relevant work, i.e., ironwork for DiPalma. (See page 563 above; see also Dkt. No. 20: DiPalma Reply Br. at 9, recognizing the difference in the two disability standards.) See, e.g., Gillespie v. Astrue, No. 09-CV-2198, 2012 WL 3646820 at *13 (E.D.N.Y. Aug. 23, 2012) ("Plaintiffs treating physicians opined that he was disabled with regard to workers' compensation. However, those determinations are not dispositive, because the standards for workers' compensation are different than those under the Act."); Rokitka v. Astrue, No. 11-CV-614, 2012 WL 2405197 at *3 (W.D.N.Y. June 25, 2012) ("`[D]isability for purposes of workers' compensation benefits is determined under a different standard than the standard used in the Social Security context[.]'"); Lefever v. Astrue, No. 07-CV-622, 2010 WL 3909487 at *13 (N.D.N.Y. Sept. 30, 2010) ("Workers' compensation determinations are directed to the workers' prior employment and measure the ability to perform that employment rather than using the definition of disability in the Social Security Act. Because disability for purposes of workers' compensation benefits is determined under a different standard than the standard used in the Social Security context, the ALJ is not bound to afford [the treating physician's] finding controlling weight." (citation omitted)), aff'd, 443 Fed.Appx. 608 (2d Cir. 2011); Fortier v. Astrue, 09 Civ. 993, 2010 WL 1506549 at *24 (S.D.N.Y. Apr. 13, 2010) ("[F]indings of disability for workers' compensation purposes are of limited utility for disability purposes under the Social Security Act. Those findings are geared to the person's prior employment and allow findings of partial disability." (quotations omitted)); DeJesus v. Chater, 899 F.Supp. 1171, 1177 (S.D.N.Y.1995).
Moreover, as ALJ Katz properly found as a matter of law, Dr. Appel, who is not a vocational expert, is not qualified to give a general opinion as to whether DiPalma could return to work. (See page 563 above.) See, e.g., Micheli v. Astrue, 501 Fed.Appx. 26, 28-29 (2d Cir.2012) ("Nevertheless, `[a] treating physician's statement that the claimant is disabled cannot itself be determinative.' It is the Commissioner who is `responsible for making the determination
ALJ Katz also did not give weight to Dr. Hyman's opinion that DiPalma is limited to less than two hours of sitting, standing, or walking and is "capable only of performing a significantly limited range" of sedentary work. (See pages 561, 563 above.) ALJ Katz noted that Dr. Hyman's assessment is inconsistent with his clinical observation that DiPalma had good strength of the right knee without pain to resistance on flexion or extension. (See page 563 above.) Moreover, Dr. Hyman examined DiPalma on only one occasion in 2008. (See page 563 above.)
Dr. Katz determined that DiPalma could perform desk or sedentary work. (See page 563 above.) Although Dr. Katz examined DiPalma only once in 2003, ALJ Katz found that Dr. Katz's opinion is "consistent with the overall medical record, which shows hardly any instances when [DiPalma] reported any difficulty whatsoever with `sedentary' activities." (See page 563 above.) Dr. Jones also noted in October 2003 that DiPalma could work as long as he avoided prolonged weight-bearing, squatting, and running. (See pages 560-61 above.) In February 2006, Dr. Jones again stated that DiPalma could work if he could use a cane, had limited weight-bearing, and did not have to run, squat, or climb stairs or ladders. (See page 561 above.) ALJ Katz's determination that DiPalma could perform sedentary work also is consistent with the findings of consultative physician Dr. Malhotra that DiPalma was able to lift up to twenty pounds, sit for seven hours, stand or walk for one hour each during an eight-hour workday. (See page 562 above.)
Accordingly, ALJ Katz's assessment that DiPalma is able to perform a full range of exertionally sedentary work is based on substantial evidence.
The fourth step of the five-step analysis asks whether DiPalma had the residual functional capacity to perform his past relevant work. (See page 566 above.) DiPalma previously worked as an ironworker, requiring heavy exertion. (See page 558
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).
In meeting his burden under the fifth step, the Commissioner:
Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996) (fn. omitted); see, e.g., Heckler v. Campbell, 461 U.S. 458, 461-62, 465-68, 103 S.Ct. 1952, 1954-55, 1956-58, 76 L.Ed.2d 66 (1983) (upholding the promulgation of the Grid); Roma v. Astrue, 468 Fed.Appx. at 20-21; Martin v. Astrue, 337 Fed.Appx. 87, 90 (2d Cir.2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986). "The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Zorilla v. Chater, 915 F.Supp. at 667 n. 2; see 20 C.F.R. § 404.1567. Taking account of the claimant's residual functional capacity, age, education, and prior work experience, the Grid yields a decision of "disabled" or "not disabled." 20 C.F.R. § 404.1569; 20 C.F.R., Pt. 404, Subpt. P, App. 2, § 200.00(a).
However, "relying solely on the Grids is inappropriate when nonexertional limitations `significantly diminish' plaintiffs ability to work so that the Grids do not particularly address plaintiffs limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July 20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov. 2, 2011) (Peck, M.J.), report & rec. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v. Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments `significantly
Rather, where the claimant's nonexertional limitations "`significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.2010) (quoting Bapp v. Bowen, 802 F.2d at 605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir.2013) ("We have explained that the ALJ cannot rely on the Grids if a non-exertional impairment has any more than a `negligible' impact on a claimant's ability to perform the full range of work, and instead must obtain the testimony of a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional impairments are present at the fifth step in the disability analysis, however, `application of the grids is inappropriate.' Instead, the Commissioner `must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'" (quoting & citing Bapp)); Suarez v. Comm'r of Soc. Sec., No. 09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional limitations that `significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." (quoting Zabala)).
ALJ Katz found that a person of DiPalma's age (forty-six years old), education level (GED), work experience, with the ability to perform sedentary work,
DiPalma argues that ALJ Katz erred in failing to obtain testimony from a vocational expert. (Dkt. No. 15: DiPalma Br. at 24-25.) Because ALJ Katz considered but discredited DiPalma's claims of pain, DiPalma's right knee pain did not amount to a non-exertional impairment that significantly limited his capacity to perform sedentary work, and thus ALJ Katz was not required to obtain a vocational expert consultation but could utilize the Grid. See, e.g., Brown v. Astrue, No. 12-cv-243, 2013 WL 310292 at *5 (N.D.N.Y. Jan. 25, 2013) ("While [plaintiff] suffers from traumatic brain injury and neck pain, the medical assessments and clinical findings demonstrate a mild overall presentation and significant improvement sufficient to support the ALJ's determination" that plaintiff did not have any nonexertional limitations.); Pease v. Astrue, No. 06-CV-0264, 2008 WL 4371779 at *12-13 (N.D.N.Y. Sep. 17, 2008) (because the claimant who has pain, depression, and drowsiness can "attend to all personal and daily living needs independently and ... prepare meals and care for his children" and his "medical records are devoid of any reference to any nonexertional limitations or restrictions," a vocational expert was not necessary (quotations omitted)); Crawford v. Bowen, 687 F.Supp. 99, 105 (S.D.N.Y.1988) ("[A]lthough the record demonstrates numerous instances where plaintiff complained of chest pains to his doctors, almost all of the references to chest pain indicated that the pain was exertional in nature," and "there was no evidence that these symptoms would interfere with plaintiffs ability to perform a wide range of sedentary work."); Rodriguez v. Apfel, 96 Civ. 8330, 1998 WL 150981 at *10 (S.D.N.Y. Mar. 31, 1998) ("[C]laims of pain due to the plaintiffs headaches and her dizziness ... did not `significantly diminish' her work capacity such that she could not perform the full range of sedentary employment as indicated by the grids. Hence, there was no need to call a vocational expert.").
For the reasons discussed above, the Commissioner's determination that DiPalma was not disabled within the meaning of the Social Security Act during the period January 6, 2003 to August 24, 2010 is supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 17) is GRANTED and DiPalma's motion for judgment on the pleadings (Dkt. Nos. 14, 19) is DENIED.
SO ORDERED.
