Connor v. Chater, 95-CV-1473 RWS.

• Decision Date: 09 December 1996
• Docket Number: No. 95-CV-1473 RWS.,95-CV-1473 RWS.
• Citation: 947 F.Supp. 56
• Parties: Kenneth CONNOR, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of New York

Page 56

947 F.Supp. 56

Kenneth CONNOR, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.

No. 95-CV-1473 RWS.

United States District Court, N.D. New York.

December 9, 1996.

James S. Martin, Assistant Public Defender, Schenectady County, Schenectady, NY, for Plaintiff.

Thomas J. Maroney, United States Attorney, Northern District of New York, Syracuse, NY (William H. Pease, Assistant U.S. Attorney, of counsel), for Defendant.

MEMORANDUM-DECISION AND ORDER

RALPH W. SMITH, Jr., United States Magistrate Judge.

Upon consent of the parties, this matter was referred to the undersigned for all further proceedings and the entry of judgment by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Briefs were filed by the parties,¹ and no oral argument was heard.

Plaintiff claims to be disabled as of September 15, 1990, due to alcohol and polysubstance abuse as well as a back impairment, having fallen twenty feet while painting a bridge in September 1986 and sustaining a herniated disc at L4-L5. His application for disability insurance benefits, which was filed on January 14, 1994, was denied at the initial and reconsideration levels of administrative review, as well as by an administrative law judge (hereinafter "ALJ") after a hearing. The Appeals Council then denied plaintiff's request for review.

Plaintiff now seeks a reversal and an annulment of the defendant's final decision and a remand for further proceedings. After a careful review of the submissions of the parties and the entire administrative record, the court has determined that the complaint should be dismissed.

The facts and the evidence of record will not be outlined further as they have been thoroughly summarized in defendant's brief. For the sake of further brevity, the court will also not recite the usual boilerplate language concerning the caselaw regarding the standard of review, the burden of proof, the sequential analysis to be followed, the "treating physician rule," and the analysis of subjective complaints as such language has been repeatedly stated in decisions by the various judges in this district, as well as in part in defendant's brief.

ALLEGED BACK IMPAIRMENT

The ALJ found that medical evidence establishes that plaintiff "has a combination of a lumbar condition and a history of alcohol and drug abuse, but that he did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1" of defendant's regulations. (Rec. 17). With regard to the lumbar condition, the ALJ determined that "[t]hrough September 30, 1994,² [plaintiff] had occasional lumbar discomfort that did not preclude normal sitting, standing and walking during a work routine." (Rec. 17). Furthermore, the ALJ found that plaintiff had the residual functional capacity through September 30, 1994, "to perform the physical exertion and nonexertional requirements of work except for heavy and medium exertion, and skilled and semiskilled work on a sustained basis...." (Rec. 17).

Thus, while plaintiff could not perform his past relevant work as an iron worker, the ALJ determined that there were a significant number of jobs available in the national economy which plaintiff could perform. Examples given, based upon testimony received by a vocational expert, were jobs as an electronic inspector and a cashier. (Rec. 18). Consequently, the ALJ concluded that plaintiff was not disabled and thus was not entitled to a period of disability and disability insurance benefits. (Rec. 18).

Plaintiff contends that the defendant's final decision is not supported by substantial evidence. The bulk of his argument focuses upon his substance abuse, which will be discussed further below. Plaintiff then asserts that "[f]urther complicating [his] ability to work was the severe and continuing impairment relating to his spine." (Pl.'s br. at 7). Nonetheless, he concedes that he has not been in treatment for this impairment since 1990. In any event, he contends that "a fair reading of Exhibit 9 would seem to indicate that there is little that can now be done to improve his condition. Surgical intervention will not be of any use and he has received whatever benefits that ongoing physical therapy can afford to him." (Pl.'s br. at 7-8). He claims he was not pain-free when discharged from physical therapy and contends his testimony concerning his subjective complaints is credible.

Furthermore, plaintiff asserts that the findings of consultative examiner William Rogers should not be given much weight, and were given undue weight by the ALJ, because unlike the treating doctor, Dr. Rogers is not a specialist, nor is he board certified. In addition, Dr. Rogers did not have either the myelogram or CT-scan available during his examination.

Defendant responds that although a CT-scan and a myelogram showed the presence of a herniated disc at L4-L5 (Rec. 101, 116), which would be capable of causing some pain, the totality of the evidence supports the ALJ's decision that plaintiff could perform light work activity. This court agrees.

Very significantly, as pointed out by defendant, plaintiff's treating physician, Dr. Stewart Kaufman, did not believe that plaintiff was disabled from all work activity, and the record contains no further treatment for plaintiff's back after June 1989. On December 22, 1988, Dr. Kaufman advised plaintiff to find work that did not require heavy labor. (Rec. 105). Thereafter, on March 16, 1989, the doctor reported that he did not believe that surgery would solve plaintiff's problem and that plaintiff remained "at least markedly disabled for his previous work...." (Rec. 105). Nonetheless, he advised consideration of testing and retraining. (Rec. 105). Finally, following plaintiff's last visit on June 22, 1989, Dr. Kaufman reported some "mild restriction of motion ... some tenderness, no apparent neurologic deficits." (Rec. 106) (emphasis added). Very significantly, while he opined that plaintiff was "permanently disabled for iron work," he recommended that plaintiff consider "a light type of work." (Rec. 106). These opinions clearly support the ALJ's determination, as do the doctor's objective findings, which are summarized in defendant's brief and need not be repeated here.

Furthermore, as also correctly noted by defendant, plaintiff's own statements about his activities belie his disability claim. In a Disability Report dated January 11, 1994, plaintiff stated that his doctor restricted just heavy lifting and strenuous exercises. (Rec. 86). In addition, plaintiff reported that he cooked, cleaned, did laundry, shopped, cleaned up after himself, fished, went to the library, read, did crossword puzzles, attended A.A. and N.A. meetings, visited relatives and friends, and rode the bus. (Rec. 86).

On another form completed later that month, he reported that he shopped with his girlfriend, cooked and washed dishes every day, took out the trash daily, swept and mopped the floor every other day, and did the laundry once a week. (Rec. 94). He also stated that he went to meetings five times a week and to the Alcohol Council two to three times per week, riding the bus every day. (Rec. 94-95). In addition, when asked about his last two jobs, he did not report his back condition as being one of the reasons for leaving. Rather, he was fired or quit due to being "very stressed out and I was late and missed alot [sic] of days due to drug and alcohol abuse" and he "couldn't cope with the hours and the stress created by the state inspector." (Rec. 95).

Furthermore, when seen by Dr. William Rogers on April 26, 1994, plaintiff complained of "aches in the center of his lumbar spine on an intermittent basis," as well as "numbness in the left anterior thigh and left posterior calf upon awakening which then quickly resolves." (Rec. 274-75) (emphasis added). Plaintiff told the doctor he could sit for an hour, which he tolerated well, and walked extensively, without back complaints. (Rec. 275). His back bothered him the most while sleeping and upon awakening. (Rec. 275). The heaviest things he lifted were grocery bags. (Rec. 275).

Most recently, in a psychological evaluation completed in November 1994, it was reported that plaintiff "currently attends school and spends a good deal of time doing housework. He attends counseling and AA meetings. He plays with his 9 month old daughter and does some work around the house. He will also spend a good deal of time laying on the couch `watching TV'.... [He] is able to cook and clean, but his girlfriend does the laundry and the shopping...." (Rec. 301).

While plaintiff testified during the administrative hearing that his daily activities were much more limited,³ the ALJ properly considered plaintiffs subjective complaints (Rec 15), and substantial evidence supports his disability determination. The ALJ stated:

It should be noticed that the claimant continued working through 1990 engaging in heavy exertion, although he has the lumbar condition and history of alcoholism and drug abuse since at least 1986. Furthermore, the medical records do not reveal any frequent, intense or prolonged lumbar pain radiating to the extremities on a sustained basis through September 30, 1994. Rather, the claimant had occasional lumbar discomfort that allow[ed] him to engage in light exertion.... The claimant indicated in the Disability Report that he could not engage in heavy lifting or strenuous exercise. However, he cooks, cleans, goes shopping and engages in other basic daily activities. He has recreational activities such as fishing and reading. He goes to Alcoholic Anonymous Meetings and has good social relations....

(Rec. 15).

The court also notes that several reports in the record regarding plaintiff's various admissions and treatment for drug and alcohol abuse contain information which supports defendant's determination concerning plaintiff's...