Toro v. Chater

• Decision Date: 10 September 1996
• Docket Number: No. 93 Civ. 6563 (HB).,93 Civ. 6563 (HB).
• Parties: Carmen TORO, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

937 F. Supp. 1083

Carmen TORO, Plaintiff, v. Shirley S. CHATER,¹ Commissioner of Social Security, Defendant.

No. 93 Civ. 6563 (HB).

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

September 10, 1996.

Guilene Cherenfant, Bronx Legal Services, New York City, for plaintiff.

Sapna V. Raj, Assistant United States Attorney, New York City, for defendant.

ORDER

BAER, District Judge.

Pursuant to Fed.R.Civ.P. 12(c), both parties to this litigation moved for a judgment on the pleadings. I referred their motions to Magistrate Judge Grubin for resolution. Magistrate Judge Grubin issued an extensive Report and Recommendation dated April 26, 1996 that recommended (1) granting defendant's motion for judgment on the pleadings, and (2) denying plaintiff's motion.

The Report and Recommendation advised the parties of their obligation to file timely objections under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 6 and 72(b). To date, no objections have been filed and I have found no clear error in the Report and Recommendation of Judge Grubin.

Therefore, defendant's motion for judgment on the pleadings is granted and plaintiff's motion is denied.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE HAROLD BAER, JR.

GRUBIN, United States Magistrate Judge:

This is an action brought under the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), to review a final decision of the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income ("SSI") benefits based on disability. The plaintiff, who brought the action pro se but is now represented by counsel, and the Commissioner have each moved for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c). For the reasons stated below, I recommend that the Commissioner's motion be granted and the plaintiff's denied.

Applicable Principles of Law

For purposes of the Act, a person is considered disabled when he or she 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).² That impairment must be of such severity that the person "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." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The evidence that must be considered in determining whether an individual is disabled includes: (1) objective medical facts; (2) diagnoses and medical opinions based on such facts; and (3) subjective evidence of disability, including any pain experienced by the individual and his or her educational background, age and work history. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir.1988); Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The Commissioner shall consider "all evidence available in such individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability," and "shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis." 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(G). The Commissioner is to give a treating physician's opinion on the nature and severity of the applicant's impairments "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the claimant's case record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the Commissioner determines that a treating physician's opinion is not entitled to controlling weight, she must nevertheless determine what weight to give it by considering five enumerated factors — (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion, i.e., the extent to which the source presents relevant evidence, particularly medical signs and laboratory findings, to support the opinion; (4) consistency of the opinion with the record as a whole; and (5) the specialization of the physician — and must "give good reasons in the notice of determination or decision for the weight given to the treating source's opinion." 20 C.F.R. §§ 404.1527(d), 416.927(d). See Schisler v. Sullivan, 3 F.3d 563, 567-69 (2d Cir.1993) (explaining and upholding regulations superseding what was known in the Second Circuit as the "treating physician rule"); see also Diaz v. Shalala, 59 F.3d 307, 312-13 (2d Cir.1995).

With respect to a claimant's subjective complaints of pain, 42 U.S.C. § 423(d)(5)(A) provides, in pertinent part:

An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph ... would lead to a conclusion that the individual is under a disability.

See also 20 C.F.R. §§ 404.1529, 416.929. When a medically determinable impairment exists that reasonably could be expected to produce the pain alleged, objective medical evidence must be considered in determining whether a disability exists, whenever such evidence is available. 20 C.F.R. §§ 404.1529(b), 416.929(b). If symptoms suggest a greater impairment than can be shown by objective evidence alone, consideration will also be given to such factors as: (1) the claimant's daily activities; (2) the nature, location, onset, duration, frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and adverse side-effects of medication that claimant has taken to alleviate the symptoms; (5) treatment, other than medication, for relief of pain or other symptoms; and (6) any measures which claimant uses or has used to relieve the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). An Administrative Law Judge may reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, see Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979), but must set forth his or her reasons "with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

The Commissioner has established a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920. See Sullivan v. Zebley, 493 U.S. at 525, 110 S.Ct. at 888-89; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987); Bowen v. City of New York, 476 U.S. 467, 470, 106 S.Ct. 2022, 2024-25, 90 L.Ed.2d 462 (1986). As explained by the Court of Appeals in Berry v. Schweiker, 675 F.2d 464 (2d Cir.1982) (per curiam), the five steps are as follows:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.

Id. at 467. The claimant bears the burden of proof as to the first four steps, the Commissioner as to the fifth. Id.; see also Diaz v. Shalala, 59 F.3d at 311 n. 2.

In reviewing a denial of disability benefits, the court is not empowered to make a de novo determination of whether the claimant is disabled. Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991); Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 860 (2d Cir.1990); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990). Rather, it is the function of the Commissioner, and not the reviewing court, to pass on the credibility of witnesses, including the claimant, and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426-27, 28 L.Ed.2d 842 (1971); Aponte v. Secretary, Dept. of...