Diaz v. Shalala, 1263
| Citation | 59 F.3d 307 |
| Decision Date | 20 June 1995 |
| Docket Number | No. 1263,D,1263 |
| Parties | , Unempl.Ins.Rep. (CCH) P 14645B Juana DIAZ, Plaintiff-Appellee, v. Donna SHALALA, Secretary of the Department of Health & Human Services, Defendant-Appellant. ocket 94-6213. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Michelle T. Weiner, Asst. U.S. Atty., Brooklyn, N.Y. (Zachary W. Carter, U.S. Atty. E.D.N.Y., Varuni Nelson, Bruce H. Nims, Asst. U.S. Attys., Brooklyn, NY, of counsel), for defendant-appellant.
John E. Antonowicz, Woodbury, NY (Scheine, Fusco, Brandenstein & Rada, P.C., Woodbury), for plaintiff-appellee.
Before: McLAUGHLIN, LEVAL and CABRANES, Circuit Judges.
We review a judgment of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ), reversing a final decision by defendant Secretary of Health and Human Services ("the Secretary"), who had found that plaintiff was not entitled to disability benefits under the Social Security Act. 855 F.Supp. 56 (E.D.N.Y.1994). This appeal presents the question whether plaintiff's chiropractor qualified as a "treating physician" whose opinion warranted "controlling weight" or "binding effect" in evaluating plaintiff's claim for disability insurance benefits. Regulations issued by the Secretary and upheld by our court in Schisler v. Sullivan, 3 F.3d 563 (2d Cir.1993), provide that a "treating source's opinion" will be accorded "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." 20 C.F.R. Sec. 404.1527(d)(2) (1994). The regulations make clear, however, that a chiropractor's opinion is not covered by this rule. Because the district court upset the Secretary's adverse finding by giving the chiropractor's opinion controlling weight and because substantial evidence supported the Secretary's finding, see 42 U.S.C. Sec. 405(g), we reverse the judgment of the district court.
Plaintiff was born in the Dominican Republic in 1946. She has held several jobs both there and in the United States. In the United States she has worked as a sewing machine operator, an eyeglass lens cutting machine operator, a teaching assistant for a day care center, and a census taker. Most recently, she held a job as an electric outlet assembler at the Eagle Electric Factory in New York. While on the job on September 24, 1990, plaintiff fell down an escalator, injuring her head, neck, and back.
After her fall, plaintiff sought workers' compensation and filed an application for disability insurance benefits on June 24, 1991, claiming that she was disabled due to L5 radiculopathy (a disease of the nerve roots) and lower back pain. Her application was denied initially and on reconsideration. Plaintiff then requested a hearing, which was held before an administrative law judge ("ALJ") on June 16, 1992.
The ALJ denied her application in an opinion dated October 28, 1992, finding that the "clinical and laboratory findings, the opinion and assessment of examining physicians, the treatment she received and the claimant's activities" contradicted the opinion of her chiropractor, Dr. Jacob K. Sadigh, who had concluded that plaintiff was totally disabled. Before deciding whether plaintiff was disabled within the meaning of the Social Security Act, 42 U.S.C. Sec. 423(d), 1 the ALJ carefully considered the following evidence.
An electromyogram taken at the direction of Dr. E. Wiseman on January 21, 1991, was found to be positive for left lumbar radiculopathy involving the L5 nerve root. Nerve stimulation studies, however, were within normal limits. Plaintiff received magnetic resonance imaging (MRI) in March 1991, which, according to Dr. David P. Gerstman, revealed normal findings (i.e., the test was negative). There was no evidence of disc degeneration, disc herniation or nerve root impingement. The test showed also that the spinal cord ended normally and the spinal canal was of normal caliber.
Plaintiff began visiting Dr. Sadigh for treatment in October 1990. The frequency of plaintiff's visits to Dr. Sadigh ranged from three times a week to twice a month. Dr. Sadigh reported to the Workers' Compensation Board that plaintiff suffered from acute moderate cervical and lumbar sprain, cervical disc syndrome, lumbar sciatic neuritis and encephalgia (headache). He reported that plaintiff complained mostly of moderate headaches, moderate lower back pain, restricted cervical mobility, difficulty sitting and doing any physical work, and pain in the right arm, right hip, and thigh. In addition, the chiropractor found rigidity in plaintiff's neck muscle, a diminished range of motion and spasm of the cervical spine, nerve root damage, and reflex loss. He concluded that, as a result of her injuries, plaintiff can perform "[l]ess than a full range of sedentary work."
Dr. Sadigh referred plaintiff to Dr. E. Wiseman, a specialist in physical medicine and rehabilitation who saw plaintiff several times. Based on an examination of the plaintiff on January 17, 1991, Dr. Wiseman reported a limited range of motion in the lumbosacral region. He noted that "[d]eep tendon reflexes were present and symmetrical bilaterally." On January 21, 1991, he administered an electromyogram and concluded it was positive for left lumbar radiculopathy mostly involving the L5 root. He also conducted a nerve stimulation study that was "within normal limits." Dr. Wiseman concluded that plaintiff was "unable to perform all her usual duties because there is restricted range of motion, pain and muscle spasticity." He recommended that plaintiff continue chiropractic treatment, but the records do not indicate that he prescribed any pain medication. Dr. Wiseman completed plaintiff's Workers' Compensation Board report forms and checked the box marked "total disability."
Dr. David Weiss, an orthopedist, examined plaintiff on August 7, 1991, at the request of the State Insurance Fund, the insurance carrier to the workers' compensation system. He reported that plaintiff was taking Tylenol "as needed" for lower back and neck pain that also affected her legs and right shoulder. He found that plaintiff was able to walk on her heels and toes and that she could bend forward to her ankles; "back bending, however, reproduces moderate discomfort." He found her "cervical spine flexion and extension ... full" and her rotation "mildly restricted." Based on his examination, Dr. Weiss concluded that plaintiff had a "mild partial orthopedic disability."
Dr. K. Seo, described by the ALJ as an "impartial consultant [for the Social Security Administration]," examined plaintiff on August 24, 1991. Plaintiff stated to him that she had neck and lower back pain, for which she was reported to be taking Tylenol and Motrin as needed. Dr. Seo's examinations indicated that plaintiff walked with a "normal gait," had "no difficulty standing up from the sitting position" or in "getting on and off the examining table." He reported that toe-heel walking and squatting were "possible." He also found the following: "normal flexion and extension" of the cervical spine, "normal ROM [range of motion]" of the lumbosacral spine, a normal range of motion of the hips, a normal range of motion of the shoulders, elbows and wrist with pain in the right shoulder; some "diminished sensation" of the right hand and the right leg; one inch muscle atrophy in the left thigh; and a "mild spasm of the sternocleidomastoid muscles." He concluded that plaintiff had cervical radiculopathy and lumbar radiculopathy. He concluded also that plaintiff "may be able to stand and walk for over one hour and carry more than 10 lbs."
Dr. Nirou examined plaintiff for the Workers' Compensation Board on October 29, 1991. He found "mild restriction in cervical motions in all planes," "mild internal rotation defect of the right shoulder," mild restriction of "trunk motions" and straight leg raising, some numbness of the left lower leg, and a half inch atrophy of the left quadriceps. He reported also that "gross neurological examination are intact" and that her reflexes were "present bilaterally." Based on his examination, he concluded that plaintiff had a "partial disability."
Plaintiff testified that she takes Tylenol, Advil, and Motrin four or five times a week for her pain and that she sometimes suffers from dizziness, which lasts two to three days. She testified that she takes Tylenol more often than Motrin. She also testified that she cooks, watches television, walks short distances and attends church. She stated she did not attend church often, however, because she cannot sit down for too long.
Plaintiff underwent several evaluations at the New York Eye and Ear Infirmary in March and April 1992 for hearing loss. An audiologist reported that plaintiff had "moderately-severe to moderate" hearing loss in the right ear and "mild to slight to mild" hearing loss in the left ear. The audiologist reported also that plaintiff had excellent speech recognition at 10dB in the left ear and 50dB in the right ear.
While finding that "[t]he medical evidence establishes that the claimant has cervical and lumbosacral strain and moderate to mild hearing loss," the ALJ concluded nevertheless that "[t]he claimant's impairments do not prevent [her] from performing her past relevant work" as a sewing machine operator. 2 The ALJ did not credit plaintiff's testimony about dizziness, noting that neither the chiropractor nor the physicians reported that she complained of dizziness. The ALJ also noted that plaintiff did not appear to take potent pain medication and that Dr. Wiseman, who saw plaintiff on several occasions at her...
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