Parker v. Callahan, 3:97CV0124(RNC).

• Decision Date: 28 September 1998
• Docket Number: No. 3:97CV0124(RNC).,3:97CV0124(RNC).
• Citation: 31 F.Supp.2d 74
• Parties: Arabelle PARKER, Plaintiff, v. John J. CALLAHAN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Connecticut

31 F.Supp.2d 74

Arabelle PARKER, Plaintiff, v. John J. CALLAHAN, Acting Commissioner of Social Security, Defendant.

No. 3:97CV0124(RNC).

United States District Court, D. Connecticut.

September 28, 1998.

Louis S. Avitabile, Avitabile & Spat, Waterbury, CT, Meryl Anne Spat, Waterbury, CT, for plaintiff.

Deirdre Anne Martini, U.S. Attorney's Office, Bridgeport, CT, for defendant.

RULING ON DEFENDANT'S MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

CHATIGNY, District Judge.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits. Defendant moves for an order affirming the decision of the Commissioner. Plaintiff opposes the motion and seeks a reversal or remand. She contends that she is disabled within the meaning of the Social Security Act due to a psychological impairment and chronic low back pain and that a remand is required to obtain radiological evidence regarding her back condition. Defendant's motion is granted because the Commissioner's decision is supported by substantial evidence.

I. Background

Plaintiff is a 60-year-old woman with a history of high blood pressure and low back pain. She completed high school and worked as a telephone operator. She then worked as a circuit board assembler for many years, but her job was eliminated in 1991, when she was 54 years old. She managed to obtain work with another company as a circuit board assembler; however, she was laid off approximately two months later and has not worked since.

In June 1993, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act,¹ alleging disability due to a back disorder and high blood pressure. In September 1993, plaintiff's application was denied. The agency determined that, despite plaintiff's history of being treated for high blood pressure and a back problem, she could perform her previous work as a circuit board assembler. Attached to the Disability Determination Rationale form was a Residual Physical Functional Capacity Assessment, completed by Marie H. Monticciolo, M.D. on September 16, 1993, showing a primary diagnosis of "degenerative changes L4-5," based on an x-ray study of September. 7, 1993, which revealed "slow deg[enerative] changes L4-5."² Dr. Monticciolo concluded that plaintiff could lift 25 pounds frequently, stand/walk about six hours in an eight-hour workday, and sit about six hours in an eight-hour workday. No limitations were indicated.

Plaintiff sought reconsideration of the initial decision and complained of additional difficulties involving confusion, memory loss and emotional problems. A Psychiatric Review Technique form was completed and additional medical reports were considered. Nevertheless, the agency once again concluded that plaintiff had "the skills and ability to return to [her] past customary job," and affirmed the September 1993 determination.

On February 1, 1994, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). The hearing was held on March 13, 1994 before ALJ Stanley T. Fuger. Plaintiff, who was represented by counsel, testified regarding a variety of maladies, including not being able to "sit for long" or "stand all day" because of lower back pain. Edmond Calandra, a vocational expert, testified that plaintiff's past work as a circuit board assembler was sedentary and unskilled. In response to a series of questions, he also testified that if plaintiff's testimony concerning her back pain and associated limitations was completely credible, she would not be able to engage in any occupation.³

The ALJ was provided with reports from plaintiff's treating physician, Dr. Fishman, who completed two residual functional capacity forms — one for mental ability and one for physical ability. On the mental assessment form, Dr. Fishman indicated that plaintiff's ability to make occupational adjustments was good,⁴ with the exception of relating to co-workers (fair-seems angry), dealing with the public (fair) and dealing with work stresses (fair). Dr. Fishman noted that plaintiff seemed "depressed" but rated plaintiff's ability to make performance adjustments and personal/social adjustments as consistently unlimited/very good — the highest rating. On the physical ability form, Dr. Fishman indicated that plaintiff's condition would not impair her ability to lift/carry, stand/walk or sit, and that "other than significant obesity I don't think this p[atien]t is limited in her abilities."⁵

The ALJ obtained consultative reports from Drs. Siva, Campagna, Caffrey, and DeFigueiredo. The reports reach differing conclusions. Dr. Siva, a physician specializing in internal medicine, found that plaintiff's "sitting, ambulating, standing, bending, lifting are minimally or mildly affected by the low back pain which is intermittent," and Dr. Campagna, a psychologist, found that "the patient's deficits are not expected to interfere with her capacity to perform familiar activities of daily living." On the other hand, Dr. DeFigueiredo, a physician, found that plaintiff's ability to "perform routine, repetitive tasks ... appears to be limited," and Dr. Caffrey, a psychiatrist, found that plaintiff was depressed and not employable.

On July 28, 1995, the ALJ issued his decision. The ALJ concluded that plaintiff could return to her past relevant work as a circuit board assembler and was thus not entitled to disability benefits. The ALJ found that plaintiff had "a severe back disorder, and organic brain disorder" but did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ found that plaintiff "retains the residual functional capacity to occasionally lift objects weighing up to 20 pounds and to frequently lift objects weighing up to ten pounds. Her abilities to sit, stand, and walk are not significantly limited." The ALJ stated that plaintiff's "testimony was not entirely credible, nor was it consistent with the statements in the record" and that her subjective symptoms "do not prevent her from performing all substantial gainful activity."

In making these findings, the ALJ relied heavily on Dr. Fishman's assessment that "other than the claimant's obesity she has no other significant problems." The ALJ discounted Dr. Caffrey's conclusion that plaintiff was not employable because it was based on a single visit and was not supported by the doctor's findings.⁶ The ALJ noted that plaintiff stopped working in 1991 because she was laid off, not because of pain. In addition, he recounted plaintiff's testimony that she could stand for one-half hour, lift five pounds, sit for one hour, watch television, help to prepare meals, and feed and dress herself.

Plaintiff requested review of the ALJ's decision, but the Appeals Council denied her request, rendering the ALJ's determination the final decision of the Commissioner of Social Security. Plaintiff brought this action to appeal the Commissioner's decision, and defendant's motion seeks an order affirming the decision.

II. Discussion

A person is disabled within the meaning of the Social Security Act

only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.⁷

In determining whether an individual is eligible for disability benefits, the agency considers "the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B).⁸ To be designated a "physical or mental impairment," the condition must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. 423(d)(3). If a medical source determines in his opinion that a claimant is "unable to work," his determination does not bind the Commissioner. 20 C.F.R. § 416.927(e)(1).

It is well settled that the findings of an ALJ are conclusive unless they are not supported by substantial evidence. See Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995).⁹ That said, this court is to "consider[] the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988). Still, the resolution of evidentiary conflicts falls to the ALJ rather than to this court, as does the appraisal of witness credibility. See Aponte v. Secretary, Dept. of HHS, 728 F.2d 588, 590 (2d Cir.1984). Agency regulations provide that the ALJ will give controlling weight to the opinion of plaintiff's treating physician if "it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." Diaz, 59 F.3d at 313 (quoting 20 C.F.R. § 404.1527(d)(2)).

The ALJ's decision denying plaintiff's application is supported by substantial evidence. In the opinion of plaintiff's treating physician, Dr. Fishman, plaintiff's mental ability ranged from fair to very good, and her physical condition resulted in no impairment in her ability to lift/carry, stand/walk, or sit. Dr. Siva's report confirms that plaintiff's low back pain is "intermit...