Brown v. Astrue

Filing 13

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Brown's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/25/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SANDRA LEE BROWN,
Plaintiff,

3:12-cv-243
(GLS)

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Drake, Loeb Law Firm
555 Hudson Valley Avenue
Suite 100
New Windsor, NY 12553
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

GARY J. GOGERTY, ESQ.

BENIL ABRAHAM
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Sandra Lee Brown challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Brown’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On September 16, 2009, Brown, who suffers from, among other
things, mild traumatic brain injury, filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since June 3, 2003. (See
Tr.1 at 21, 87, 124-30.) After her application was denied, (see id. at 10106), Brown requested a hearing before an Administrative Law Judge (ALJ),
which was held on April 28, 2011. (See id. at 47-86, 90-91.) On June 3,
2011, the ALJ issued an unfavorable decision denying the requested
benefits, which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review. (See id.
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Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 7.)
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at 1-6, 16-28.)
Brown commenced the present action by filing her Complaint on
February 8, 2012 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 6, 7.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 9, 11.)
III. Contentions
Brown contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 9 at 1224.) Specifically, Brown claims that the: (1) ALJ erred in assessing her
credibility and failed to evaluate her subjective complaints of pain; (2)
residual functional capacity (RFC) determination is not supported by
substantial evidence; (3) ALJ failed to consider the opinions of treating
chiropractors; and (4) step four determination that she could perform her
past relevant work is not supported by substantial evidence. (See id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (See
Dkt. No. 11 at 5-15.)
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IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 9 at 5-12; Dkt. No. 11 at 1-2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Credibility Determination
Brown first alleges that the ALJ erred in evaluating her credibility.

(Dkt. No. 9 at 12-15.) This argument is two-fold: first, Brown contends that
the ALJ erred by comparing her statements to the RFC determination; and
second, the ALJ failed to consider the factors set forth in 20 C.F.R.
§ 404.1529(c) as well as her strong work history. (See id.) In opposition,
the Commissioner claims, and the court agrees, that the ALJ thoroughly
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evaluated Brown’s subjective complaints of pain in light of the entire record,
and considered the appropriate factors in finding her allegations of
disability not fully credible. (See Dkt. No. 11 at 7-10.)
An ALJ must consider a claimant’s subjective complaints of
limitations resulting from her impairments, including those from pain, in
gauging her RFC. See 20 C.F.R. § 404.1545(a)(3). However, “[a]n
individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). The
Commissioner is obligated to evaluate all of a claimant’s symptoms,
“including pain, and the extent to which [those] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other
evidence.” 20 C.F.R. § 404.1529(a).
Ultimately, “[t]he reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.” SSR 967p, 61 Fed. Reg. at 34,485-86. Thus, “after weighing the objective medical
evidence in the record, the claimant’s demeanor, and other indicia of
credibility,” an ALJ may reject the claimant’s subjective allegations
regarding limitation as long as he sets forth his “reasons with sufficient
specificity to enable [the court] to decide whether the determination is
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supported by substantial evidence.” Lewis v. Apfel, 62 F. Supp. 2d 648,
651 (N.D.N.Y. 1999) (internal quotation marks and citation omitted).
Here, the ALJ determined that Brown’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not credible
to the extent they are inconsistent with the [RFC] assessment.” (Tr. at 22.)
Brown argues that the ALJ impermissibly determined her RFC first, and
then used that RFC to evaluate the consistency of her subjective
complaints. (See Dkt. No. 9 at 14-15.) It is clear, however, that the ALJ
undertook a detailed credibility analysis, and that his reference to
consistency with the RFC determination to which Brown objects was
merely an indication that the RFC determination incorporated those
findings. (See Tr. at 22-23.) Indeed, the ALJ considered the objective
medical evidence, treatment notes from Brown’s health care providers, her
activities of daily living, and the medication and other treatment she
received for her symptoms. (See id.) Despite the ALJ’s failure to explicitly
mention Brown’s work history prior to the motor vehicle accident in June
2003 in which she alleges she sustained her disabling impairments, the
ALJ’s credibility finding, which considered the record evidence and
appropriate factors, is amply supported. See 20 C.F.R. § 404.1529(c).
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(See Tr. at 55-56.)
B.

RFC Determination
Next, Brown claims that the RFC determination is infirm as there is

no medical source statement to support it, specifically, the conclusion that
she can lift up to fifty pounds at a time and frequently lift or carry up to
twenty-five pounds. (See Dkt. No. 9 at 15-20.) The court disagrees.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence2 in
the record. See Frye ex rel. A.O. v. Astrue, No. 11-1585-cv, 2012 WL
2125910, at *2 (2d. Cir. June 13, 2012). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; see also
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
In this case, the ALJ found that Brown retained the RFC to perform
“medium but not heavy” work. (Tr. at 23.) Medium work requires the ability

2

“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
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to lift “no more than [fifty] pounds at a time with frequent lifting or carrying
of objects weighing up to [twenty-five] pounds.” 20 C.F.R. § 404.1567(c).
Although Brown correctly notes that the record does not contain a medical
source statement positing the amount of weight she can lift or carry, (see
Dkt. No. 9 at 16), “‘where the medical evidence shows relatively little
physical impairment, an ALJ permissibly can render a common sense
judgment about functional capacity even without a physician’s
assessment,’” Walker v. Astrue, No. 08-CV-0828, 2010 WL 2629832, at *7
(W.D.N.Y. June 11, 2010) (quoting Manso-Pizarro v. Sec’y of Health and
Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)).
Here, the medical evidence of record supports the ALJ’s
determination that, during the relevant time period—i.e., between June 3,
2003 and December 31, 2008—Brown could perform medium work. (See
Tr. at 21, 23.) Specifically, in October 2003, an MRI of her brain showed
no acute abnormality. (See id. at 236, 253.) Further, Brown’s lab results,
chest x-ray, and EKG were normal. (See id. at 229, 244.) In December
2003, Brown reported to her physician that her symptoms, including
dizziness, lightheadedness, vision problems, and imbalance, had started to
resolve and chiropractic treatment had helped relieve 85% of her problems.
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(See id. at 262.)3 Indeed, Brown treated with various chiropractors
subsequent to her car accident, and treatment notes from October 2003
through February 2007 demonstrate that, although periodically worsening,
her symptoms greatly improved, with her reporting in October 2004 that her
back pain had decreased, neck was feeling well, and headaches were
gone. (See id. at 315, 317-22, 324-25, 341, 343, 345-47, 365, 372-75,
377-78, 383-88, 390, 392.)
Further, although Brown argues that the worsening of her symptoms
began in the winter of 2008, (see Dkt. No. 9 at 18-19; Tr. at 980), she has
repeatedly reported a significant increase in her symptoms beginning in the
winter of 2009, after her date last insured. (See Tr. at 146, 890.) In any
event, even after this alleged worsening of symptoms, Brown’s treating
physician noted that she was able to maintain independence in all basic
self-care, child-care, and household chores, enjoyed outdoor recreation
such as riding four-wheelers or snowmobiles, and complained of fatigue
and the worsening of other symptoms “after heavy exercise.” (Id. at 890.)
In addition, her symptoms were greatly improved with low-dosage

3

Notably, treatment records at this time also state that Brown was
working full time. (See Tr. at 262).
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medication and she exhibited no significant deficits in strength,
coordination, or balance. (See id. at 888-89.) Finally, in March 2009 a CTscan of Brown’s brain was negative, chest x-rays were normal, and an MRI
of her brain was normal. (See id. at 418-20.)
Lastly, Brown takes exception with the ALJ’s failure to explicate his
assessment of her abilities on a function-by function basis. (See Dkt. No. 9
at 19); see 20 C.F.R. § 404.1545(b); Crysler v. Astrue, 563 F. Supp. 2d
418, 436 (N.D.N.Y. 2008). Although the ALJ could have provided further
clarification with respect to Brown’s capabilities, as the ALJ’s decision
examined the relevant factors in reaching an RFC
determination—specifically noting her proficient skills in areas such as
orientation, language, visual processing speed, and recent memory and
reported ability to maintain independence in all activities of daily
living—and the ultimate determination was supported by substantial
evidence, this shortcoming does not amount to legal error. (See Tr. at 23);
see Irizarry v. Astrue, No. 5:09-cv-1370, 2012 WL 177969, at *2 (N.D.N.Y.
Jan. 23, 2012).
C.

Weighing Opinion Evidence
Brown also contends that the ALJ failed to consider the opinions of
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chiropractors Susan Harchak, Mark J. Edwards, and Scott Rosa. (See Dkt.
No. 9 at 20-22.) The Commissioner argues that the ALJ considered the
evidence from Brown’s treating chiropractors and his determination
regarding the weight afforded to Rosa’s opinion is supported by substantial
evidence. (See Dkt. No. 11 at 10-13.) The court again agrees with the
Commissioner.
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
However, opinions from treating sources on issues reserved to the
Commissioner, i.e., dispositive issues, are not given “any special
significance.” 20 C.F.R. § 404.1527(d)(3). Moreover, chiropractors are not
“acceptable medical sources” whose medical opinions may be entitled to
controlling weight, but rather are considered “other sources” whose
opinions “should be evaluated on key issues such as impairment severity
and functional effects, along with the other relevant evidence in the file.”
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SSR 06-03p, 71 Fed. Reg. 45,593, 45,594-95 (Aug. 9, 2006); see 20
C.F.R. § 404.1513(a), (d)(1); O’Connor v. Chater, 164 F.3d 618, 1998 WL
695418, at *1 (2nd Cir. Sept. 25, 1998).
Here, Rosa, who began treating Brown on March 31, 2009,
completed a cervical RFC assessment and stated that her impairments
“relate to the motor vehicle accident of June 2003 and were of a disabling
nature subsequent thereto, and certainly prior to . . . December 31, 2008.”
(Tr. at 995-1000.) The ALJ “decline[d] to give great weight to his opinion”
because Rosa is not an accepted medical source, and, moreover, his
opinion regarding the nature and extent of Brown’s limitations was
unsupported by the medical evidence of record and disproportionate to her
activities of daily living. (Id. at 23.)
The court first notes that Rosa’s opinion that Brown is or was
disabled is not determinative. See Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). In any event, Rosa’s opinion is inconsistent with other
substantial evidence in the record, and, thus, was properly discounted by
the ALJ. See Halloran, 362 F.3d at 32. Specifically, medical records from
Harchak and Edwards, who treated Brown during the relevant time period,
demonstrate that her neck and back pain greatly improved with treatment,
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with her frequently reporting only “occasional” and “mild” pain. (Tr. at 37375, 377, 385-88; see id. at 315, 317-22, 324-25, 341, 343, 345-47, 365,
372, 378, 383-84, 390, 392.) Despite Brown’s contentions, the ALJ did
consider the treatment records of Harchak and Edwards, and the ALJ’s
failure to weigh their opinions was due to the fact that neither of these
treating sources offered any opinion as to Brown’s functional limitations.
(See id. at 22-23.) While Harchak noted on insurance forms that Brown
was disabled as of August 15, 2003, she also indicated that Brown was not
permanently disabled. (See id. at 283.) In any event, this is an issue
reserved to the Commissioner. See 20 C.F.R. § 404.1527(d).
Accordingly, the ALJ’s assignment of weight and assessment of
Brown’s RFC are supported by substantial evidence and, thus, affirmed.
D.

Past Relevant Work
Finally, Brown argues that the ALJ’s determination that she could

perform her past relevant work is not supported by substantial evidence as
the ALJ failed to “make a specific and substantial inquiry into the relevant
physical and mental demands associated with” such work. (Dkt. No. 9 at
23.) Further, Brown claims that, as she suffers from significant
nonexertional impairments, the ALJ should have consulted a vocational
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expert to determine if she was capable of her past relevant work. (See id.
at 24.) This argument is also unavailing.
“[I]n the fourth stage of the SSI inquiry, the claimant has the burden
to show an inability to return to her previous specific job and an inability to
perform her past relevant work generally.” Jasinski v. Barnhart, 341 F.3d
182, 185 (2d Cir. 2003). In other words, a claimant is not disabled if she
can perform her past relevant work, either as she actually performed it, or
as it is generally performed in the national economy. See SSR 82-61,
1982 WL 31387, at *2 (1982); Jock v. Harris, 651 F.2d 133, 135 (2d Cir.
1981). “‘[I]n order to determine at step four whether a claimant is able to
perform her past work, the ALJ must make a specific and substantial
inquiry into the relevant physical and mental demands associated with the
claimant’s past work, and compare these demands to the claimant’s
residual capabilities.’” Kochanek v. Astrue, No. 08-CV-310, 2010 WL
1705290, at *11 (N.D.N.Y. Apr. 13, 2010) (quoting Kerulo v. Apfel, No. 98
CIV. 7315, 1999 WL 813350, at *8 (S.D.N.Y. Oct. 7, 1999)).
In this case, the ALJ found that Brown could perform the work of a
secretary, paralegal, or daycare provider as it is generally performed. (See
Tr. at 24.) Indeed, according to the Dictionary of Occupational Titles the
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positions of paralegal and day care worker are customarily performed at
light exertional levels, while the position of secretary is generally performed
at a sedentary level. See Dictionary of Occupational Titles, Code 119.267026, 1991 WL 647027 (4th ed., 1991); Dictionary of Occupational Titles,
Code 201.362-030, 1991 WL 671672 (4th ed., 1991); Dictionary of
Occupational Titles, Code 359.677-018, 1991 WL 672970 (4th ed., 1991).
Thus, even if Brown cannot perform her past relevant work as she actually
performed it, this does not render the ALJ’s analysis defective.
Brown also argues that she suffers from significant nonexertional
impairments and, as such, testimony from a vocational expert was required
to determine whether she was capable of performing her past relevant
work. (See Dkt. No. 9 at 24.) However, for the reasons stated above, the
ALJ’s overall assessment of Brown’s RFC, which did not include any
nonexertional limitations, is supported by substantial evidence and in
accord with applicable law. While Brown suffers from traumatic brain injury
and neck pain, the medical assessments and clinical findings demonstrate
a mild overall presentation and significant improvement sufficient to support
the ALJ’s determination in this case. (See id. at 229, 244, 253, 262, 315,
317-22, 324-25, 336, 341, 343, 345-47, 365, 372-75, 377-78, 383-88, 390,
15

392, 418-20, 888-90.); cf. Kochanek, 2010 WL 1705290, at *11. For this
reason, the court finds no reversible error with regard to either the ALJ’s
assessment of an ability to perform medium work or his finding that Brown
could perform the work of a day care provider, secretary, or paralegal as it
is generally performed in the economy. (See Tr. at 21-24.)
E.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Brown’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
January 25, 2013
Albany, New York

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