KEVIN NATHANIEL FOX, Magistrate Judge.
TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE
Michael Mayo ("Mayo") commenced this action against the Acting Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated November 4, 2016, finding him ineligible for disability insurance benefits ("DIB"), pursuant to Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 401-434. The ALJ's decision became final on March 14, 2017, when the Appeals Council denied Mayo's request for review. This action followed. Before the Court are the parties' respective motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
On March 20, 2013,
On February 11, 2014, the start of the relevant period for the purposes of the instant application, x-rays showed that Mayo's right hip had severe degenerative changes and a cyst formation in the femoral head; the left hip had mild degenerative changes. On March 6, 2014, Dr. Marc H. Appel ("Dr. Appel"), an orthopedic surgeon, opined that a total hip replacement was necessary. On April 21, 2014, similar physical examination findings and recommendations appeared in Mayo's N.Y. Workers' Comp. Law evaluation and he advised Dr. Oh that he wanted to proceed with surgery. On April 30, 2014, Mayo underwent a total right hip replacement surgery, performed by Dr. Oh. While hospitalized, Mayo was evaluated for tachycardia, for which he tested positive, but he denied chest pain, shortness of breath, vomiting, coughing, or nausea and reported that his pain was well controlled. At the time, Mayo reported being independent in his activities of daily living and had three jobs, two of which were at a nursing home. Mayo was discharged from the hospital on May 5, 2014. In Mayo's discharge report, Dr. Oh stated that his primary diagnosis was localized osteoarthritis in the hip and pelvic region and secondary diagnoses were morbid obesity, essential hypertension, diabetes, cardiac dysrhythmia and dehydration. On June 13, 2014, Mayo told Dr. Oh that his hip was feeling better, he was taking analgesic medication occasionally, and he had completed his home physical therapy program. On June 18, 2014, Dr. Oh completed a questionnaire stating Mayo would be totally disabled until July 29, 2014, but then would be able to return to work full time.
On July 12, 2014, while he was recovering from his hip replacement surgery, Mayo suffered a right-sided cerebro-vascular accident ("CVA"). The CVA occurred approximately five months after the alleged disability onset date of February 11, 2014. The CVA caused Mayo to have weakness in his right arm and leg and difficulty speaking. Mayo began attending physical therapy sessions, after the CVA, to regain use of his limbs and recover from his speech impairment. Mayo started taking Plavix to prevent another CVA. In August 2014, Mayo underwent an orthopedic independent medical evaluation by Dr. Joseph Elfenbein ("Dr. Elfenbein") in connection with his worker's compensation claim and completed a workers' compensation questionnaire through which he indicated that: (1) his treatment consisted of physical therapy; (2) he used a cane; and (3) he was in constant pain.
On October 13, 2014, Mayo met with internal medicine consultative examiner Dr. Douglas Greenfield ("Dr. Greenfield"). Dr. Greenfield interviewed and examined Mayo, who recounted his medical history. Mayo reported hip pain at a level of six and one-half, on a scale of one to ten, and admitted that he had improved significantly from prior to his surgery. He reported his history of a CVA, stating that since that occurrence, his speech had markedly improved and his right arm and left leg felt much better, although not completely normal. On examination, he was unable to walk on his heels and toes, his gait and stance were wide based and he had an antalgic gait but he was in no acute distress, did not use a cane, needed no help changing or getting off the examination table, and was able to rise from a chair without difficulty. Mayo was diagnosed with asthma hypertensions status-post right total hip replacement, type 2 diabetes, and a CVA with right sided weakness and speech difficulty, resolved. Dr. Greenfield concluded that Mayo had a mild restriction in his ability to stand, walk, climb stairs, and squat and that due to his history of asthma he should avoid smoke, dust and other respiratory irritants.
At his hearing before the ALJ on July 26, 2016, Mayo testified concerning,
An administrative hearing was held on July 26, 2016, in White Plains, New York, before AU Vincent M. Cascio, at which Mayo, represented by counsel, testified. As noted, vocational expert Distefano also testified at the hearing. The issue before the ALJ was whether Mayo is disabled. Following a review of the plaintiff's submissions and the record in this case, the ALJ found that Mayo: (1) "meets the insured status requirements of the [SSA] through December 31, 2019 [sic]"; (2) has not engaged in substantial gainful activity since February 11, 2014, the alleged onset date; (3) has the following severe impairments: history of CVA, degenerative joint disease of the hips, status-post total right hip replacement, and obesity; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), with the following limitations: Mayo can occasionally climb ramps or stairs but can never climb ladders, ropes, or scaffolds; he can occasionally balance, stoop, kneel, crouch, or crawl, but must avoid unprotected heights and hazardous machinery; (6) is unable to perform any past relevant work; (7) was born on June 17, 1962, and was 51 years old (which is defined as an individual closely approaching advanced age) on the alleged disability onset date; and (8) has at least a high school education and is able to communicate in English. The ALJ also found that: (9) in this case, transferability of job skills is not material to the determination of disability because using the Medical Vocational Rules as a framework supports the finding that Mayo is "not disabled," whether or not he has transferable job skills; (10) considering Mayo's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform; and (11) Mayo has not been under a disability, as defined in the SSA, from February 11, 2014, through the date of the ALJ's decision.
The ALJ found that, in addition to his severe impairments, Mayo had medically determinable non-severe impairments, including asthma, diabetes mellitus, hyperlipidemia, hypertension, degenerative joint disease of the knees, and neck, shoulder and back pain. The ALJ determined that these impairments were not severe, as defined by the relevant regulations, because there was no indication that they would impose significant work-related functional limitations. In finding that Mayo does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments, the ALJ relied upon Listings of Impairments ("Listings") numbers 1.02 ("Major dysfunction of a joint(s)(due to any cause"); 1.03 ("Reconstructive surgery or surgical arthrodesis of a major weight bearing joint, with inability to ambulate effectively"), and 11.04 ("Vascular insult to the brain"). 20 C.F.R. Pt. 404, Subpt. P, App.1, Pts. A1 & A2.
Concerning Listings 1.02 and 1.03, the ALJ considered whether Mayo's hips were impaired such that he was unable to ambulate effectively, for example, was unable to walk without a walker, or two crutches or canes. The ALJ concluded that no evidence existed in the record showing that Mayo required the use of a walker or two crutches or canes in order to ambulate effectively; rather, Mayo reported that he could walk short distances. Moreover, Mayo did not demonstrate more than minimal gait problems on examination after his total right hip replacement suggesting that he has the ability to ambulate effectively for the purposes of the relevant listings. The ALJ noted, further, that Mayo had recovered from the effects of his CVA, primarily: difficulty speaking and right arm and leg weakness, within three months of the incident, suggesting that the effects of his CVA had not persisted sufficiently for his condition to meet the requirements of Listing 11.04. The ALJ also considered whether Mayo's obesity may have combined with his other impairments to result in a condition meeting the requirements of the relevant Listings; he concluded, however, that while Mayo's obesity is a severe impairment, no evidence exists that his obesity, either alone or in combination with his other impairments, had rendered his condition of Listing-level severity.
The ALJ also discussed his determination that Mayo has the residual functional capacity to perform light work. He noted that Mayo alleged several physical symptoms arising from his severe impairments and indicated that he was unable to work because of a stroke, right hip and leg impairments, diabetes mellitus, high cholesterol, hypertension, and a lower back impairment. The ALJ also noted that Mayo had elaborated on his condition at the hearing, recounting how he had slipped on ice in February 2014 and subsequently required, hip replacement surgery; in addition, while recovering from hip replacement surgery, in July 2014, he suffered a CVA which caused him to have difficulty speaking and weakness in the right arm and leg.
The ALJ, having considered the evidence, found that Mayo's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical and other evidence in the record." According to the ALJ, the finding that Mayo has the residual functional capacity to perform light work, with additional postural and environmental limitations, addresses Mayo's symptoms to the extent that the medical record substantiates them; specifically, the finding addresses his history of CVA, degenerative joint disease of the hips, status-post total right hip replacement, and obesity.
The ALJ noted that Mayo met with Dr. Elfenbein in August 2014, who performed an orthopedic independent medical evaluation pursuant to Mayo's claim under the N.Y. Workers' Comp. Law. According to the ALJ, Dr. Elfenbein found that Mayo had a right-side limp and was using a cane; he also had tenderness and reduced ROM in the right hip and reduced strength in the right arm and leg on examination.
The ALJ noted that Mayo followed up with Dr. Oh every month and then every two months between September 2014 and August 2015. During that period, he rarely complained of any hip pain and suggested that he managed his condition with a combination of anti-inflammatories and regular physical therapy, a relatively conservative course of treatment. Dr. Oh found on examination that Mayo had recovered well, except for a consistent finding that he had "minimal Trendelenburg gait."
The ALJ addressed how the determination of Mayo's residual functional capacity accounts for his problems by restricting him to work requiring relatively less lifting or carrying and by limiting his postural activities and exposure to workplace hazards. It also recognizes Mayo's report that his condition improved with conservative treatments and recognizes that Mayo is able to perform many activities of daily living such as carrying groceries, using public transportation and driving himself. It also accounts for Mayo's obesity by restricting him to work requiring relatively less lifting and carrying and by limiting his postural activities.
The ALJ also noted that the record suggests that Mayo's symptoms are not as severe as alleged. The purported severity of his symptoms is inconsistent with his conservative treatment and subsequent record as well as his reported activities. For example, Mayo has not consistently been prescribed narcotic pain management or injections since February 2014; instead, he has relied on anti-inflammatories and physical therapy. Additionally, Dr. Elfenbein's findings suggest that Mayo had recovered significantly from his CVA and total right hip replacement by August 2014 and had "more or less" fully recovered by the time of Dr. Greenfield's examination in October 2014.
The ALJ noted that, in reaching his findings, he had considered examining and treating source opinions, including the opinions of Dr. Greenfield, Dr. Elfenbein and Dr. Oh. He noted that he gave "significant weight" to Dr. Greenfield's opinion because it was supported by his direct examination of Mayo. However, he limited the weight of Dr. Greenfield's opinion because he recommended certain environment limitations,
The ALJ noted that Dr. Elfenbein performed an evaluation of Mayo pursuant to Mayo's claim under N.Y. Workers' Comp. Law, which was made in August 2014, and found that Mayo had a moderate partial disability and could not lift over 20 pounds or walk for prolonged periods and required significant postural limitations. The ALJ stated that he gave significant weight to Dr. Elfenbein's opinion since it was supported by a direct examination of Mayo but limited the weight of the opinion because it was developed under the standards of N.Y.'s Workers' Comp. Law, which differ from those of the SSA. Similarly, the ALJ gave little weight to Dr. Oh's finding that Mayo was between 50 percent and 100 percent disabled, because it was developed under state-law standards, whereas a finding of disability is reserved to the Commissioner.
Mayo contends that the ALJ's decision is "internally inconsistent" and that he failed to consider the entire record and accord proper weight to the treating physicians' respective opinions. Mayo points out that the ALJ, in relying upon Dr. Elfenbein's opinion, found that Mayo had a moderate partial disability which required significant postural limitations and meant that Mayo could not lift over 20 pounds or walk for prolonged periods. According to Mayo, the ALJ first acknowledged that significant weight should be accorded to Dr. Elfenbein's opinion but then decided to limit the weight of his opinion on the "untenable basis that the opinion was developed under the standards of New York's [W]orkers' [C]omp[.] [L]aw and regulations as opposed to the [SSA] and regulations."
The plaintiff also contends that the ALJ failed to consider the entire record. In particular, Mayo asserts, the ALJ failed to consider the diagnosis issued by WestMed, namely, that Mayo was certified as "disabled." He states that: "the report's MRI evaluation revealed that Mayo['s] right hip was experiencing worse osteoarthritic change than in his left hip [and] [t]here was a sharply circumscribed degenerative cyst at the right femoral head superiorly." According to Mayo, these findings "seemed to show reactive marrow edema associated with osteoarthritic change and raise the possibility of contusion." However, he asserts, the ALJ's opinion did not take into account WestMed's assessment.
Furthermore, according to the plaintiff, the ALJ failed to accord proper weight to the treating physicians' respective opinions. He states that "[u]nder the `treating physician's rule,' an ALJ must give controlling weigh[t] to the treating physician's opinion when (1) the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques, and (2) the opinion is consistent with other substantial evidence in the record, such as [the] opinion of other medical experts."
Here, Mayo asserts, the ALJ failed to afford "considerable weight" to the opinions of treating physicians Dr. Elfenbein and Dr. Oh, as he was required to do. Furthermore, he argues, when a treating physician's opinions are not given controlling weight, Social Security Administration regulations require the ALJ to consider certain factors in determining how much weight the treating physician's opinions should receive. In this case, however, the ALJ failed to consider the relevant factors used to determine how much weight a treating physician's opinion deserves and failed to explain his reasons for not crediting fully the opinions of Mayo's treating physicians. Such an omission, he argues, is a ground for remand.
The defendant contends that the ALJ's determination that Mayo is not disabled is supported by substantial evidence and that he properly weighed the opinions of Mayo's medical and treating physicians and considered all relevant evidence of record, including the ALJ's finding concerning Mayo's residual functional capacity. According to the defendant, the ALJ relied properly on opinion evidence, including that of Dr. Greenfield, who examined Mayo in October 2014, considered properly the objective medical evidence, and analyzed correctly Mayo's subjective claims. In addition, the defendant asserts, the ALJ found, properly, that Mayo's impairments were not so limiting as to preclude the performance of a range of light work, one of the least demanding categories of work under the regulations.
The defendant contends that the ALJ assigned great weight to Dr. Greenfield's opinion properly, because it was supported by detailed clinical examination findings and was consistent with the plaintiff's treatment records, and because Dr. Greenfield was familiar with the requirements of the disability program.
Further, the defendant contends, the ALJ considered properly substantial medical evidence that was generally consistent with Dr. Greenfield's assessment that Mayo had only mild limitations and that supported the finding concerning Mayo's residual functional capacity for a range of light work. For example, the ALJ noted that Mayo met with Dr. Cy Blanco in June 2016 for a left hip injection and, upon discharge, the plaintiff was able to walk without difficulty. The ALJ also considered properly Mayo's subjective claims, the defendant contends, observing that Mayo performed chores regularly, including preparing food two to three times a week, washing dishes, doing laundry and shopping for groceries. He noted that Mayo can dress himself, drive, and take public transportation on his own. He walks four times a week and goes to his physical therapy appointments and to the library. The ALJ noted specifically that Mayo's ability to perform these daily activities is inconsistent with his allegations regarding the limiting effects of his symptoms. According to the defendant, the ALJ has the discretion to make an independent judgment concerning the nature of Mayo's symptoms and substantial evidence supports the ALJ's finding that Mayo's impairments were not disabling to the extent alleged.
The defendant also asserts that the ALJ evaluated the opinions of Mayo's medical and treating physicians properly and, to the extent that he rejected the portions of those opinions that were not supported by objective medical evidence and were based on conclusions reached under N.Y.'s Workers' Comp. Law, he was within his right to do so. This is so because under the SSA and the Social Security Administration's regulations, the opinion that an individual is "disabled" or "unable to work" is not, properly, a medical opinion; rather, it is an opinion on an issue reserved to the Commissioner. Hence, even disability determinations made by other government agencies that purport to follow the Commissioner's rules would not be binding because only the Commissioner can find a claimant disabled under the SSA. For this reason, any such determination is not entitled to controlling weight or any special significance.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The court shall have power to 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).
"Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations."
To qualify for disability benefits, an individual must be 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). The Social Security Administration's regulations establish a five-step process for determining a disability claim.
"Although the claimant bears the general burden of proving that he is disabled under the statute, `if the claimant shows that his impairment renders him unable to perform his past work, the burden then shifts to the [Commissioner] to show there is other gainful work in the national economy which the claimant could perform.'"
Upon careful review of the record, the Court finds that the ALJ followed the five-step sequential analysis properly when making the disability determination in this case and committed no legal error. The Court also finds that the ALJ's findings are supported by substantial evidence.
The ALJ's finding that Mayo's severe impairments include a history of CVA, degenerative joint disease of the hips, status-post total right hip replacement and obesity was supported by the medical records. The ALJ's finding that Mayo's asthma, diabetes mellitus, hyperlipidemia, hypertension, degenerative joint disease of the knees, and neck shoulder and back pain were not severe was also supported by substantial evidence insofar as the record shows that they were diagnosed and were being treated and controlled or were asymptomatic, and that they would not impose significant work-related functional limitations.
The ALJ's finding that Mayo's impairments, while severe, did not meet or medically equal a condition listed in the Listings is also supported by substantial evidence. Specifically, as the ALJ found, Mayo's impairments did not meet the criteria set forth in the Listings numbers 1.02 ("Major dysfunction of a joint(s) due to any cause)"; 1.03 ("Reconstructive surgery or surgical arthrodesis of a major weight bearing joint, with inability to ambulate effectively"); and 11.04 ("Vascular insult to the brain"), because: (1) no evidence existed that Mayo required the use of a walker, two crutches or canes in order to ambulate effectively, thus demonstrating the ability to ambulate effectively for the purposes of Listings 1.02 and 1.03; and (2) Mayo's treatment notes indicated that he recovered quickly from the effects of his CVA (within three months) suggesting that the effects of the CVA did not persist sufficiently for his condition to meet the requirements of Listing 11.04.
Further, the plaintiff's contention that the ALJ's decision was "internally inconsistent," because he allegedly granted significant weight to Dr. Elfenbein's opinion but then limited the weight of that opinion on the basis that it was made under the standards of N.Y.'s Workers' Comp. Law, is without merit. The ALJ gave significant weight to Dr. Elfenbein's opinion to the extent that it was supported by his direct examination of Mayo and offered a functional analysis of his retained abilities. However, the ALJ limited the weight of the opinion on the ground that it had been developed under the standards of N.Y.'s Workers' Comp. Law, which differ from those promulgated under the SSA. Moreover, under the relevant provisions of the SSA at the time the ALJ's decision was rendered, only the Commissioner could make a disability determination.
Substantial evidence also supports the determination by the ALJ concerning the proper weight to accord the treating physicians' respective opinions. First, with respect to Dr. Elfenbein, the record shows he was not a treating source but, rather, saw Mayo only once in connection with an independent medical evaluation for Mayo's workers' compensation claim. Further, with regard to Dr. Oh, the ALJ was not bound by his opinion insofar as his finding of disability was developed for and under the standards of N.Y. Workers' Comp. Law. Moreover, although "a treating physician's report is generally given more weight than other reports and . . . a treating physician's opinion will be controlling if it is `well-supported by medically acceptable [evidence] and is not inconsistent with the other substantial evidence in [the] record' . . . [w]hen other substantial evidence in the record conflicts with the treating physicians' opinion . . . that opinion will not be deemed controlling."
For the reasons set forth above, I recommend that the Commissioner's decision be affirmed, the plaintiff's motion for judgment on the pleadings, Docket Entry No. 11, be denied, and the defendant's motion for judgment on the pleadings, Docket Entry No. 17, be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections.
